Tannu Kumari And 10 Others vs Union Of India And 2 Others on 11 January, 2024

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Allahabad High Court

Tannu Kumari And 10 Others vs Union Of India And 2 Others on 11 January, 2024

1. Heard Sri Nipun Singh along with Sri Rishi Upadhayay and Sri Aishwarya Pratap Shahi, learned counsel for the petitioners, Sri Manish Goyal, learned Additional Advocate General assisted by Sri A.K. Goyal, learned Additional Chief Standing Counsel for the State of U.P. as well as Mr. Vivek Kumar Singh, learned counsel for Union of India-respondent no.1.

2. The writ petition has been filed seeking the following reliefs :-

"Issue a writ, order or direction in the nature of Mandamus directing the respondent no. 2 to permit the petitioners to participate in the mop-up round/stray round counselling of UP NEET UG-2023 conducted by the respondent no.2."

3. The matter was heard at length on 26.09.2023 by another bench. At that stage a detailed order was passed primarily to ascertain, if any candidate, lower in merit, had been accommodated in preference over the petitioners who had been awarded higher marks.

4. On 27.09.2023 following detailed order was passed :-

"1. Let State of U.P. through Principal Secretary, Medical Health & Education be impleaded as respondent no.4 to the writ petition, forthwith. Once we directed to implead the Principal Secretary, Medical Health & Education in the writ petition, we made a request to Sri M.C. Chaturvedi, learned Additional Advocate General to assist the Court on behalf of newly impleaded respondent no.4.

2. Heard Mr. Nipun Singh, learned counsel for the petitioners; Mr. M.C. Chaturvedi, learned Additional Advocate General assisted by Mr. B.B. Pandey, learned Chief Standing Counsel, Mrs. Uttara Bahugana, learned Additional Chief Standing Counsel for the State-respondents, Mr. S.P. Singh, learned Additional Solicitor General, assisted by Mr. Vivek Singh, learned counsel appearing for the Union of India and Mr. Ayank Mishra, learned counsel for the respondent nos.2 and 3.

3. The matter was taken up on 26.9.2023 and the Court had proceeded to pass following order:-

"1. Heard Sri Nipun Singh, learned counsel for the petitioners; Sri Vivek Kumar Singh, learned counsel for Union of India (respondent no.1) and Sri Ayank Mishra, learned counsel for respondent nos.2 and 3.

2. The petitioners are before this Court with request to issue a writ, order or direction in the nature of mandamus directing the Director General, Medical Education and Training, U.P. Lucknow (respondent no.2) to permit them to participate in the mop-up round/stray round counselling of UP NEET UG-2023 conducted by the respondent no.2.

3. Sri Nipun Singh, learned counsel for the petitioners submits that the petitioners are resident of outside the State of Uttar Pradesh and they belong to OBC-NCL/SC/ST category. They appeared in the National Eligibility-cum-Entrance Test (UG)-2023 conducted by the National Testing Agency. The result of the said examination was declared on 13.06.2023, wherein the cut off marks of general category in the mop-up round online counselling was 138, whereas the cut off marks of OBC and SC/ST category was 107. The petitioners have scored more than cut off percentile in their category. Details of marks obtained by the petitioners and their NEET All India Rank with category have been given in paragraph-4 of the writ petition.

4. Sri Nipun Singh further submits that on 13.07.2023 the respondent no.2 has issued necessary guidelines/policy for the candidates appearing in the counselling for MBBS/BDS Course for the academic session 2023-24 in the Government Medical Colleges as well as for Private Medical Colleges. As per the guidelines, the counselling requires to be conducted followed by mop-up round. Clause 2 of the guidelines provides eligibility criteria. Clause 2 (2) states that for admission in all Government Medicals/Dental Colleges/Medical Universities/Minority institutions the applicant, who is applying for MBBS/BDS Course, has to be domicile of the State of Uttar Pradesh. However, Clause 2 (4) states that for admission in Private Medical/Dental Colleges, it is not necessary for the candidate to be the domicile of the State of Uttar Pradesh or to have passed the High School and Intermediate Examinations from the State of Uttar Pradesh. Clause 7 of the policy lays down about the reservation in admission. In the said clause under the heading of Horizontal Reservation, it is specifically mentioned that for private Medical/Dental Colleges there will be no reservation of any kind. As per the schedule, the counselling for the admission in the under-graduate courses of different Dental Colleges of the State was conducted centrally by the respondent no.2 from the NIIT (UG)-2023 passed students for the session 2023-24.

5. It is submitted that when the petitioners tried to apply online for the first round of counselling under their respective categories in MBBS/BDS Course, they could not fill up the aforesaid forms as the information shown "not eligible". Thereafter, the time schedule of second round of online counselling for UP NEET PG-2023 was issued by the respondent no.2 on 21.08.2023. Again the petitioners tried to fill up their respective online forms but the same was again denied with the same endorsement "not eligible". After two rounds of online counselling, the time schedule of mop-up round online counselling of UP NEET PG-2023 was also issued by the respondent no.2 on 05.09.2023. Since the petitioners were not allotted any seat in two rounds of counselling, therefore, they again tried to fill up their online forms for the said mop-up round but the same was not accepted by the respondent authority and the forms of the petitioners could not be submitted. The Director General, Medical Education & Training, U.P. Lucknow has also issued the time schedule for "stray vacancy" round online counselling of UP NEET UG-2023 on 20.09.2023, wherein the schedule of online counselling for admission to undergraduate courses (MBBS/BDS) of Government/Private Medical/Dental Colleges/Institutes/Universities is given with date of online registration from 22.9.2023 (from 5 PM) to 24.9.2023 (till 5 PM); date of deposition of registration & security money from 22.9.2023 (from 5 PM) to 24.9.2023 (till 5 PM); date of on-line document verification from 23.9.2023 to 25.9.2023 (till 11 AM); date of merit list declaration on 25.9.2023; date of online choice filling from 26.9.2023 (from 11 AM) to 28.9.2023 (till 5 PM); date of allotment result declaration on 29.9.2023 and date of downloading the allotment letters and admission on 30.09.2023, 01 and 03.10.2023. It is further submitted that the admissions were provided to the candidates belonging from the State of Uttar Pradesh, who obtained the same marks but the petitioners have been denied admission even in the mop-up round on the ground that they belong different States other than the State of Uttar Pradesh.

6. It is submitted that in previous academic sessions i.e. 2021-22 and 2022-23 as well as in the present academic session 2023-24, no change has been made in the policy/guidelines for providing admissions to the candidates in the MBBS/BDS Course in respect of candidates of outside the State of Uttar Pradesh. In the academic sessions 2021-22 and 2022-23, similarly situated candidates, who belonged to different States, were provided admission in the mop-up round, but the petitioners have been denied admission by the respondent no.2, which is wholly illegal, arbitrary and against the policy/guidelines.

7. Learned counsel for the petitioner submits that the petitioners are not claiming any reservation in the admission. Certain candidates, who had obtained lower marks, were accorded admission in the private Medical Colleges in the State of UP. In this regard, he has also placed reliance on the registration slips for UG counselling-2023 of Versha Naidu and Krapal Singh, who have scored 114 and 125 NEET marks, respectively and they have been provisionally allotted seats in BDS First year in D.J. College of Dental Sciences & Research, Modinagar, Ghaziabad (Private) Co-Education on the basis of Mop-up round allotment on 04.08.2023 and 17.09.2023. He has also placed the score card of Danish, who has scored 120 marks in NEET (UG)-2023 and he has been given admission in Kalka Dental College, Meerut (Private) Co-Education on the basis of second allotment on 28.08.2023. The petitioners are eligible for the admission in the MBBS/BDS Course and about 780 seats are still lying vacant. In similarly situate circumstances in previous academic session, two candidates namely Aman Raj and Jyotishman Das approached this Court by preferring Writ C Nos.35369/2022 and 35371/2022 and the said writ petitions were disposed of by this Court vide orders dated 25.11.2022 in terms of the instructions. In compliance thereof, the petitioners in the said writ petitions have been given admission. In case no relief is accorded, the career of the petitioners would be jeopardized.

8. Let Sri Ayank Misra, learned counsel for the respondent nos.2 and 3 seek proper instructions in the matter, as to how students with lesser marks than the petitioners had got admission in the Private Medical Colleges, whereas the petitioners are not allowed even to participate in the stray round of counselling.

8. Put up this matter again tomorrow i.e. 27.9.2023 at 11.30 AM as fresh."

4. In response to the aforesaid order dated 26.9.2023, Sri Ayank Mishra, learned counsel for the respondent nos.2 and 3 has placed detailed instruction sent by the Director General, Medical Education and Training, Uttar Pradesh Lucknow (respondent No.2), which is taken on record. Relevant portion of the instruction is reproduced herein below:-

"2. अभ्यर्थी दानिश नीट रोल- 4409070360 जो उ०प्र० के बागपत के निवासी हैं तथा अन्य पिछड़ा वर्ग के हैं, को नीट यू०जी० 2023 में 120 अंक प्राप्त हुए हैं, जिसे कालका डेण्टल कालेज गाजियाबाद उ०प्र० में आवंटन प्राप्त हुआ है। (संलग्नक-1)

3. अभ्यर्थी वर्षा नायडू, नीट रोड नं० 4455040081 उ०प्र० के सहारनपुर के निवासी हैं तथा अनुसूचित जाति के श्रेणी के हैं, को नीट यू०जी० 2023 में 114 अंक प्राप्त हुए हैं, जिसे डी०जे० डेण्टल कालेज गाजियाबाद उ०प्र० में आवंटन प्राप्त हुआ है। (संलग्नक-2)

4. अभ्यर्थी कृपाल सिंह नीट रोल नं०4413030694 उ०प्र० अलीगढ़ के निवासी हैं, तथा अनुसूचित जाति श्रेणी के हैं, को नीट यू०जी० 2023 में 125 अंक प्राप्त हुए हैं, जिसे डी०जे० डेण्टल कालेज गाजियाबाद उ०प्र० में आवंटन प्राप्त हुआ है। (संलग्नक-3)

5. उक्त से यह स्पष्ट है कि नीट यू०जी० 2023 हेतु ओ०बी०सी०/एस०टी० अभ्यर्थियों हेतु भारत सरकार द्वारा निर्धारित नीट कट/ऑफ-107 से अधिक अंक प्राप्त होने तथा उ०प्र० राज्य के निवासी होने के कारण आरक्षित श्रेणी के कट-ऑफ का लाभ प्राप्त करने हेतु अर्ह थे. जिसके आधार पर ऑन-लाईन काउंसिलिंग के माध्यम से आवंटन प्राप्त कर निजी क्षेत्र के अन्तर्गत डेण्टल कालेजों में प्रवेशित हैं।

6. प्रदेश के निजी क्षेत्र के मेडिकल/डेण्टल कालेजों की समस्त सीटें अनारक्षित (ओपेन) श्रेणी की होती हैं, जिस पर आवंटन के समय कोई भी आरक्षण देय नहीं है।

7. एन०टी०ए० द्वारा निर्धारित कट ऑफ स्कोर के अनुसार अनारक्षित श्रेणी हेतु न्यूनतम 137 अंक प्राप्त करना अनिवार्य है। समस्त याचीगण के नीट प्राप्तांक 137 से कम हैं, अतः वह यू०पी० नीट 2023 की काउंसिलिंग के पंजीकरण हेतु अर्ह नहीं है।

8. उत्तर प्रदेश के अतिरिक्त अन्य राज्यों के समस्त अभ्यर्थी अनारक्षित श्रेणी में माने जायेंगे। अतः उनके लिए अनारक्षित श्रेणी का कट-ऑफ (137 अंक) ही मान्य होगा।"

5. The aforesaid instruction is self-conflicting. One one hand, they are acknowledging that there is no reservation in the private Medical/Dental Colleges in the State of U.P. and seats are unreserved (open) and on the other hand, taking shelter of the Government order, wherein it is claimed that the Government of India has fixed the minimum cut of marks as 107 for OBC/SC candidates in NIIT (UG)-2023, the respondent nos.2 and 3 are trying to justify their step on the ground that these candidates are domicile of the State of UP and they belong to OBC/SC category. When there is no reservation in the Private Medical Colleges, how can students at point nos.2, 3 and 4, who have much lower marks than the petitioners, can be admitted in the Private Medical Colleges. It is apparent from the record that back door entries have been granted to certain privileged and highly connected candidates.

6. Considering the matter in hand, we restrain the respondent authorities to fill up 11 seats in the on-going counselling for filling up the UG Seats in the stray vacancies.

7. On the next date, the respondent nos.2, 3 and the Principal Secretary, Medical Health and Education, U.P., who has been impleaded as respondent no.4 are directed to file personal affidavits as to how OBC/SC candidates with marks of 120, 114 and 125, were granted admissions in Private Medical Colleges, wherein the reservation is not applicable and what was the reason for not allowing the candidates of outside the State of Uttar Pradesh, who have higher marks than the petitioners, to participate in the counselling.

8. Even though the said discrepancy was highlighted by the Court, when the matter was taken up before the recess and the matter was adjourned for getting the appropriate instructions. Sri Ayank Mishra, learned counsel for the respondent nos.2 and 3 has failed to produce any instructions in support of his submission and once the discrepancy is writ large, the respondent nos.2, 3 and 4 are directed to file personal affidavits.

9. Put up this matter as fresh on 4.10.2023. "

5. The matter remained pending for some more time. In the meanwhile under orders of the Supreme Court Special Mop-up round of Counselling was required to be conducted. At that stage, the writ petition came to be dismissed by the coordinate bench in terms of the following order dated 06.11.2023 :-

"1. Heard Sri Nipun Singh, learned counsel for the petitioners, Sri Vivek Kumar Singh, learned counsel for Union of India-respondent no.1, Sri A.K. Goyal, learned Additional Chief Standing Counsel for the respondent nos.2 and 3, Sri Anoop Trivedi, learned Senior Counsel assisted by Sri Aishwarya Pratap Shahi, learned counsel for the intervener.

2. Sri A.K. Goyal, learned Additional Chief Standing Counsel for the first time has placed the order of Hon'ble Supreme Court pointing out that the same issue is already pending before Hon'ble Supreme Court in W.P. (C).76/2015 and the Hon'ble Supreme Court was pleased to passed an order on 30.10.2023. Paragraph no.7 of the order dated 30.10.2023 is as follows:-

"7.Bearing in mind the element of public interest in filling up the unfilled seats, we allow the Miscellaneous Application by permitting the applicants to conduct a Special Stray Vacancy Round for which purpose an extension of two weeks for NEET (UG)-2023 counselling in the All India Quota shall stand granted."

3. Considering the fact that this issue is subjudice before the Hon'ble Supreme Court and the Hon'ble Supreme Court has granted extension of two weeks for counselling for filling up the vacant seats, we are now not inclined to entertain the writ petition and the interim order passed on 27.09.2023 stands vacated.

4. In view of above, the writ petition is dismissed with liberty to the parties to take appropriate legal steps. "

6. The petitioners assailed that order before the Supreme Court in Civil Appeal No. 7924 of 2023 Khushi Kataria & Ors Vs. Union of India & Ors.. The Civil Appeal came to be disposed of by the following order dated 04.12.2023. "1. Leave granted.

2. Since no order prejudicial to the interest of the respondents is being passed, requirement of notice is waived.

3. The appellants had approached the High Court raising a grievance that requirement of candidate(s) being domiciled in the State of Uttar Pradesh or they having passed 10th and/or 12th standard from the State was arbitrary.

4. In the alternative, it was the case of the appellants that the said requirement was applicable only in so far as the Government Medical Colleges are concerned and was not applicable to the Private Medical colleges.

5. However, the High Court refused to entertain the grievance of the appellants on the ground that this Court, vide an order dated 30.10.2023 in WP (C) No. 76/2015, has granted extension of two weeks' time for NEET (UG)-2023 counselling for filling up of the vacant seats.

6. The High Court, in our considered view, ought to have entertained the grievance on the merits, inasmuch as the extension of two weeks' period by this Court had nothing to do with the issues raised by the appellants.

7. In that view of the matter, the impugned judgment and order dated 6th November, 2023 passed by the High Court is quashed and set aside.

8. We allow this appeal and relegate the parties to the High Court by restoring the Writ C. No. 32495 of 2023 on the file of the High Court to its original number so that it can be decided by the High Court afresh on its own merits.

9. Pending application(s), if any, stand(s) disposed of."

7. Upon reopening of the Court, the matter came to be placed before this bench on 04.01.2024. Affidavits have been exchanged and matter heard at length.

8. On 13.06.2023 the result for NEET M.B.B.S., B.D.S. Examination 2023 was declared by the National Testing Agency (N.T.A. in short). Para 2, 8 and 9 of the Press Release dated 13.06.2023 reads as below :-

"As per Section 14 of the National Medical Commission Act, 2019, the NEET (UG) has to be conducted as a common and uniform National Eligibility-cum-Entrance Test [(NEET (UG)] for admission to undergraduate medical education in all medical institutions. Similarly, as per Section 14 of the National Commission for Indian System of Medicine Act, 2020, there shall be a uniform NEET (UG) for admission to undergraduate courses in each of the disciplines i.e. BAMS, BUMS, and BSMS courses of the Indian System of Medicine in all Medical Institutions governed under this Act. NEET (UG) shall also be applicable to admission to BHMS course under National Commission for Homeopathy. The Result of NEET (UG) - 2023 may be utilized by other Entities of Central and State Governments, in accordance with their respective eligibility criteria / other norms /applicable regulations/guidelines/ rules. The result data will also be utilized for B.Sc. (H) Nursing courses in accordance with their respective eligibility criteria / other norms /applicable regulations/guidelines/ rules. The NEET (UG) - 2023 data will also be used for admissions to BVSc & AH courses under the 15% quota of VCI in recognized Veterinary Colleges. The responsibility of NTA is to conduct the examination and declare the result based on eligibility criteria provided by NMC. The candidates submitted their category as per National Category List and based on the same the result has been declared. The NTA has provided All India Rank to the candidates and the admitting Authorities will draw merit list based on All India Rank for the seats of MBBS/BDS falling under their jurisdiction. When candidates apply to their State, they will mention their category as per State Category List. State Counselling Authorities will accordingly make their Merit List. The same is the case with the domicile. The NTA has no role in it."

9. Relevant to the adjudication to be made in the present case, Clause 7 of the result thus declared reads as below :-

"7. The category wise number of Candidates Qualified, based on qualifying criteria of NEET (UG)- 2022 and 2023. Category Qualifying Criteria NEET (UG)-2022 NEET (UG)-2023 Marks Range No. of Candidates Marks Range No. of Candidates UR/EWS 50th Percentile 715-117 881402 720-137 1014372 OBC 40th Percentile 116-93 74458 136-107 88592 SC 40th Percentile 116-93 26087 136-107 29918 ST 40th Percentile 116-93 10565 136-107 12437 UR/EWS &PH 45th Percentile 116-105 328 136-121 405 OBC & PH 40th Percentile 104-93 160 120-107 179 SC & PH 40th Percentile 104-93 56 120-107 50 ST & PH 40th Percentile 104-93 13 120-108 23 Total 993069 114976

10. Consequent to the result declared, the Government of Uttar Pradesh notified its Policy for State Quota Counselling (hereinafter referred to as 'Policy') to fill up 85 % of the vacant seats inside the State of U.P. for M.B.B.S. and B.D.S. courses. Clause 2 pertaining to eligibility reads as below :-

"अर्हतायें (Eligibility)-

शैक्षणिक सत्र 2023-24 में यू०पी० नीट यू०जी०-2023 की काउंसिलिंग/प्रवेश हेतु अर्हतायें निम्नवत हैः-

1. ऐसे अभ्यर्थी जिन्होंने नीट यू०जी०-2023 की परीक्षा में प्रतिभाग किया हो तथा नीट परीक्षा उत्तीर्ण किया हो, ही काउंसिलिंग हेतु अर्ह माने जायेंगे।

2. प्रदेश के राजकीय क्षेत्र के समस्त मेडिकल कालेजों/स्वशासी राज्य चिकित्सा महाविद्यालयों/विश्वविद्यालयों/संस्थानों/डेण्टल कालेजों तथा अल्पसंख्यक संस्थाओं में एम०बी०बी०एस०/बी०डी०एस० पाठ्यक्रमों में प्रवेश हेतु अभ्यर्थी को उत्तर प्रदेश का मूल निवासी होना आवश्यक है। इस निमित्त, ऐसे अभ्यर्थी जिन्होंने हाईस्कूल एवं इण्टरमीडिएट अथवा समकक्ष, दोनो परीक्षायें उत्तर प्रदेश से उत्तीर्ण की हो, उनके लिए डोमिसाईल/सामान्य निवास प्रमाण पत्र आवश्यक नहीं होगा।

3. ऐसे अभ्यर्थी जिन्होंने हाईस्कूल/इण्टरमीडिएट में से एक अथवा दोनो परीक्षायें उत्तर प्रदेश के बाहर से उत्तीर्ण की है तथा उत्तर प्रदेश राज्य का मूल निवासी हैं, उनके लिए डोमीसाइल/सामान्य निवास प्रमाण पत्र हेतु सामान्य प्रशासन विभाग, उ०प्र० शासन के शासनादेश संख्या-157/तीन-2003-77(11)/83 दिनांक 18.2.2003 में जो प्रारूप निर्धारित किया गया है, उसी प्रारूप पर डोमीसाइल/सामान्य निवास प्रमाण पत्र प्रस्तुत करना होगा।

4. प्रदेश के निजी क्षेत्र के मेडिकल/डेण्टल कालेजों/चिकित्सा विश्वविद्यालयों/अल्पसंख्यक संस्थाओं में प्रवेश हेतु अभ्यर्थी को उत्तर प्रदेश का मूल निवासी होना या हाईस्कूल तथा इण्टरमीडिएट की परीक्षा उत्तर प्रदेश से उत्तीर्ण करना अनिवार्य नहीं होगा। भारत के अन्य प्रदेशों से हाईस्कूल एवं इण्टरमीडीएट परीक्षा उत्तीर्ण अभ्यर्थी भी अर्ह होंगे।"

11. Clause 7 (Kha) pertaining to reservation reads as below :-

"निजी क्षेत्र की मेडिकल/डेण्टल कालेजों की सीटों पर किसी भी प्रकार का आरक्षण देय नहीं है।"

12. Undisputedly the 11 petitioners before this Court had appeared in the NEET (U.G.)- 2023 as candidates domiciled outside the State of Uttar Pradesh under different categories of social/vertical reservation, namely, O.B.C., S.C. and S.T. None of the petitioners had claimed domicile inside the State of Uttar Pradesh or reservation inside the State of Uttar Pradesh. The details of marks awarded to the 11 petitioners together with their NEET All India Ranks awarded to them is as below :-

Names Marks Obtained NEET All India Rank Category Tannu Kumari 117 1143345 OBC-NCL Aditya Aarya 125 1092185 OBC-NCL Pronami Das 108 1208843 SC Debargha Das 111 1183571 SC Himanshu 127 1073416 OBC-NCL Akhil Kumar Vatswal 130 1057337 SC Khushi Kataria 119 1127807 SC Milli Yoyum 118 1133732 ST Monika Kumari 132 1040257 OBC-NCL Ningombam Napolean Singh 128 1067936 OBC-NCL Muskan Raj 118 1138721 OBC-NCL

13. The first round of counselling for admissions commenced on 25.07.2023 with opening of registrations for counselling. Consequently seat allotment was made on 3rd and 4th August, 2023. Those admissions were completed between 5th-8th August, 2023. Thereafter, the second round of counselling was conducted between 16th -18th August, 2023 with admissions being completed between 29th August, 2023 and 4th September, 2023.

14. After completion of the second round of counselling, in terms of the Clause 4 of the Policy, fresh registrations were invited between 8th-11th September, 2023 for Mop-up round of counselling. Petitioners having failed in their attempts to register for the Mop-up round of counselling, they approached this Court on 15th September, 2023 for the relief noted above. For completion of fact narration, it may be noted that the registration for Stray Vacancy Round of counselling was conducted between 22nd and 24th September, 2023 with last date of admission arising therefrom falling on 3rd October, 2023. Thereafter under the orders of the Supreme Court in Writ-C No. 76 of 2015 a Special Stray Vacancy Round of counselling was also conducted. For that registrations arose between 2nd and 3rd November, 2023 with last date of admission 11th November, 2023. During that period when the Special Stray Vacancy Round of counselling was going on, the writ petition filed by the present petitioners was dismissed.

15. The submission of learned counsel for the petitioners are, the petitioners had earned a right to be offered counselling by the State of Uttar Pradesh for reason of their having qualified the NEET 2023. Heavy reliance has been placed on Clause 2 (1) of the Policy. Thus, it has been submitted, the respondents State Authorities have arbitrarily prevented the petitioners from participating in the counselling by not allowing them to register either for the first round or the second round of counselling or for Mop-up Round, the Stray Vacancy Round or the Special Stray Vacancy Round of counselling. Referring to the merit list of candidates allowed to participate in the Mop-up round prepared and published by the State Authorities to invite candidates for that round of counselling (annexed to the reply to the Personal Affidavit of respondent No. 2), dated 08.10.2023, it has been vehemently urged that besides 59 all remaining candidates invited for that round of counselling were below the cut off mark 137 fixed for Open/Unreserved Category. Referring to their higher marks-108 to 132, it has been submitted various candidates having much lower marks up to 107 were invited for counselling. Undisputedly many of those candidates have been admitted to private medical colleges in B.D.S. course.

16. Referring to Clauses 2.2 (2) read with 2 (4) of the Policy, it has been next submitted, in absence of reservation at private medical colleges inside the State of Uttar Pradesh, the respondents may never have negated the rule of merit and enforced or permitted reservation at private medical colleges by admitting candidates placed lower in merit than the petitioners, at private medical colleges for B.D.S. course. Since all such candidates placed lower in merit belong to Unreserved/Open Category inside the State of Uttar Pradesh, it has been urged that the rule of reservation has been colourably implemented, contrary to the Policy.

17. Though no challenge has been raised either to the Policy or to the selections, the petitioners' claim a right to be selected against existing 518 vacancies that continue to exist at B.D.S. course at private medical colleges inside the State of Uttar Pradesh. Reliance has been placed on a decision of a coordinate bench in Pankaj Kumar Yadav Vs. State of U.P. AIR OnLine 2019 ALL 3125. Referring to the facts of that case, it has been submitted, the Writ Court granted the discretionary relief after considering the law laid down by the Supreme Court in K. Krishna Sradha Vs. State of Andhra Pradesh 2020 (17) SCC 465, Asha Vs. Pd. B.D. Sharma University of Health Sciences (2012) 7 SCC 389 and Chandigarh Administration & Anr. Vs. Jasmine Kaur & Ors. (2014) 10 SCC 521. Though facts were not identical, at the same time it has been strenuously urged, in that case also admission was granted to that petitioner much beyond the cut off date 30th September, 2023 and 30th October, 2023 inasmuch as that writ petition was allowed on 18.12.2019. Mr. Nipun Singh has stated that the above order of the coordinate bench had not been challenged before the Hon'ble Supreme Court.

18. On the other hand, learned Additional Advocate General would submit, the State has no role to play in the conduct of examination and declaration of result and also in the prescription of qualifying marks for counselling for different categories of students. That function is to be performed by the NTA, in consultation with the National Medical Counselling (N.M.C). As extracted above, the Press Release dated 13.06.2023 makes it clear that the marks for the UR/EWS, O.B.C., S.C., S.T., U.R./E.W.S. & P.H., O.B.C. & P.H., S.C. & P.H. , S.T. & P.H. were notified separately at 720-137, 136-107, 136-107, 136-107, 136-121, 120-107, 120-107 and 120-108 respectively. Relying heavily on Clause 2 of the Policy, it has been urged that the counselling was offered by the State Authorities strictly in accordance with law. Only such candidates were offered counselling and thus registered for the first and second round, Mop-up round, Stray Vacancy Round and Special Stray Vacancy round of counselling, who met the eligibility prescribed under Clause 7 of the result declared by the N.T.A. Under the Open/Unreserved Category only such candidates were allowed to register for counselling who had achieved marks in the range 720-137. Since all the petitioners are candidates who claimed reservation with domicile outside the State of Uttar Pradesh, under the Policy guidelines, they had to qualify in that mark range to be offered counselling in the State of Uttar Pradesh under the Unreserved/Open Category. Since the N.T.A. never modified that mark specification, respondents State authorities could not have ever offered counselling to the petitioners.

19. To explain the incongruity and discrimination cited by learned counsel for the petitioners that other candidates with similar and lower marks were allowed to be registered and were allowed to participate in the Mop-up round of counselling, it has been explained that those were candidates domiciled inside State of Uttar Pradesh who had registered for counselling inside the State of Uttar Pradesh under their respective reservation category. Since the qualifying range of marks for such reserved categories ranged from 107-136, all such candidates had been registered at the appropriate time i.e. the first and second round of counselling and thereafter for the Mop-up round of counselling etc.

20. Taking that further, it has been submitted, thus the registered candidates were offered admission to private medical colleges on the strength of their inter-se merit and preference for course and college. However, no candidate who may have secured below 137 marks was offered M.B.B.S. course at any private medical college. Yet, it has been stated that many such candidates may have been offered B.D.S. course at private college colleges purely on the strength of their inter-se merit amongst the candidates participating in the counselling.

21. In absence of challenge raised to the validity of the marks notified by the N.T.A. and in absence of any challenge raised to the Government Policy for counselling as also in absence of challenge to any of the selections made, it has been submitted, the petitioners cannot be heard to be selected, since they do not meet the qualifying cut off marks 137 notified for Unreserved/Open Category.

22. In any case, relying on the decision of the Supreme Court in Priya Gupta Vs. State of Chattisgarh & Ors. (2012) 7 SCC 433 and S. Krishna Sradha (Supra), it has been submitted, in any case no admission may now be granted beyond the cut off date 30 September (under Priya Gupta) and 30, October (under S. Krishna Sharda). Too much time has passed to allow for any exception to be made, at this belated stage. While last admission may have been made on 11.11.2023, the petitioners may not claim any benefit of the same as those admissions arose under the order passed by the Supreme Court in exercise of its powers under Article 142 of the Constitution of India.

23. Having heard learned counsel for the parties and having perused the record, first it may be noted, the admission to particular medical colleges may arise only against valid counselling. For the purpose of eligibility to counselling, under the scheme evolved under the directions issued by the Supreme Court, first a candidate must qualify NEET for the year in which he seeks admission. That examination is conducted by the NTA. Second, the eligibility gained at the examination may itself not entitle a candidate to counselling unless the marks secured by such candidate fall within the range of marks notified by the NTA for counselling, relevant to the category under which such candidate may have applied. As is commonly known, that range of marks for the Unreserved/Open category remains higher than that notified for the Reserved categories. Thus, a candidate achieving marks at the NEET examination less than the cut-off marks notified by the NTA for the purpose of counselling with reference to the category to which such candidate may belong may disentitle such candidate to be called for counselling. By way of a corollary, candidates placed higher in marks achieved in the range of marks prescribed for counselling earn first/preferential right to counselling than those placed in lower range of marks. Third, for the purposes of allotment of seats, it is undisputed between the parties that 15% of the seats are to be allotted by the Central Government on the strength of All India Merit Position achieved in NEET examination, the remaining 85% seats are filled up by individual States adopting their own policy for allotment of those seats. In case of the State of Uttar Pradesh, the Policy noted above, has given rise to the present litigation. At the same time, it may be noted here itself that the Policy has not been challenged. Under the said Policy all candidates not domiciled inside the State of Uttar Pradesh who may have appeared in the NEET (UG)-2023, claiming reservation granted by their respective States would be treated candidates belonging to Unreserved/Open category in other State/Uttar Pradesh for the purpose of allotment of seats under the 85% State quota in Uttar Pradesh. That principle would also apply for allotment of 100% seats for MBBS and BDS courses at privately run medical colleges inside the State of Uttar Pradesh. Against such seats, those candidates would remain ineligible.

24. The above inference arises on a plain reading of Clause 2(2), (3) and (4) read with bullet point seven of Clause 7(Kha) of the Policy. That clause has been extracted above. Therefore, all petitioners who had appeared in the NEET (UG)-2023 as candidate not domiciled in Uttar Pradesh had to be treated candidate belonging to Unreserved/Open category for the purpose of allotment of seat for MBBS and BDS courses inside Uttar Pradesh under 85% State quota and at private medical colleges, irrespective of the social/vertical reservation available in their home State. That reservation stood dissolved by virtue of the specific Policy clause noted above.

25. The upshot of the above discussion is to avail admission either at the government medical or the private medical college, the petitioner had to achieve the cut-off prescribed by the NTA for Unreserved/Open category, whether to avail counselling/admission under either of the 85% quota for the State Government applicable to government medical colleges or allotment to such seats at any private medical college inside the State of Uttar Pradesh.

26. As noted above, that marks ranged between 720-137. Thus, 137 became the cut-off marks for the petitioners to earn the eligibility to be invited for counselling to take admission either at the government medical college or at private medical college inside the State of U.P. Undisputedly, the petitioners achieved lower than 137 marks, highest being 132. It is also not in dispute that the NTA did not modify or revise the range of marks for any of the categories.

27. In absence of any challenge raised either to the marks range fixed by the NTA or the Policy of the State Government, it is not open to us to consider the legality or reasonableness of said measures. For the purpose of present adjudication, it has to be assumed that those measures were legal and reasonable.

28. For that reason, we find no error on part of the State authorities in not allowing the petitioners to be registered for counselling under the State quota or for private medical colleges situated inside the State of U.P.. Notionally, the petitioners belong to Unreserved/Open category (in the State of Uttar Pradesh) who have not achieved cut-off marks 137 prescribed by the NTA. A candidate who did not achieve the cut-off marks, never became entitled to be invited for counselling notwithstanding the fact that another candidate (belonging to Reserved Category) may have been treated eligible by virtue of his reservation.

29. Once under the Policy, the claim of reservation was dissolved on the basis of lack of domicile status inside the State of U.P., it would be self-contradictory to say that the petitioners are eligible for counselling because they belonged to a Reserved Category. The status of the candidate may not fluctuate between the Reserved and Unreserved Category for the purposes of state counselling outside his State. Petitioners were rightly treated to be belonging to Unreserved/Open Category inside the State of U.P. by virtue of the Policy provisions noted above.

30. What then survives for consideration is, if the respondents have practiced pick and choose amongst other similarly situated persons. While the petitioners who had not achieved the cut-off marks 137 under Unreserved/Open Category have not been allowed to register and have thus been prevented from taking admission at private medical college in BDS course, others who had similarly not achieved the cut-off marks 137 and by virtue of the policy clause had to be treated as Unreserved/Open candidates for the purposes of allotment of seats at the private medical colleges have been granted such admission. Though exact number and names of such candidates are not known, at the same time, from a plain perusal of the merit list appended to the affidavit filed by the petitioners in response to the Personal Affidavit of the respondent no.2 leaves no matter of doubt that such occurrence has taken place.

31. For ready reference, the names and details of the first and the last candidate appearing in that list are extracted as below:

State Merit Roll Number Name Father's Name UPCategory Upsub Category Neetmarks NeetRank 4118 4505030227 KANISHKA KAUSHIK PRASHANT KAUSHIK UR OP 142 981067 4302 4409030130 MOHD SAMAR MOHD SHAHID BC OP 107 1217639

32. In all, 185 candidates were thus invited for counselling and were alloted seats. Of that, only 59 candidates secured cut-off marks 137 or more. It is a self-admission of the respondents that remaining 126 number of candidates, all of whom were claiming reservation under the U.P. category i.e. they were candidates domiciled inside the State of U.P. were treated as Open Category candidates under the UP sub-category drawn solely for the purposes of grant of counselling and admission at private medical colleges. Thus, the State respondents were conscious of the fact that they may not provide for reservation at private medical colleges. Therefore, they deliberately dissolved the pre-existing category entitlement of individual candidates under the respective Reserved Category.

33. Seen in that light, in face of the specific Policy stipulations, it never became open to the State respondents to allow for counselling or admission to any of those 126 candidate either for the M.B.B.S. or B.D.S. course at a private medical college as they had not achieved the minimum cut-off marks i.e. 137 at NEET (UG) 2023.

34. If such action were to be permitted in law, it would suffer the vice of twin violation. First, it would violate the law of allowing a candidate falling under the Unreserved category to be admitted to M.B.B.S./B.D.S. course without achieving the minimum marks notified by the NTA in consultation with NMC. Second, it would introduce through backdoor/colourably reservation at private medical college. That would be a direct violation of Policy decision of the State Government.

35. Neither on account of violation of the rule of merit nor for reason of violation of rule against reservation at private medical colleges, any admission may have arisen at such private medical college below the minimum cut off marks notified for Unreserved/Open Category.

36. Since no challenge has been raised to the selection granted, contrary to the law, we are not proposing to deal with the issue any further. However, the State respondents may remain obligated to ensure due compliance of the law in future i.e. from NEET (UG) 2024 onwards.

37. Insofar as we have found that those who may have been admitted to private medical colleges below the cut off marks 137 were not so entitled in law, we are further not inclined to consider the case of the petitioners to be granted any parity. It is well settled principle in law that unless the petitioners are entitled in law to relief, they may not be granted the same merely because similarly situated persons may have been granted such relief, wholly contrary to law.

38. As to the guidelines issued by the Supreme Court from time to time, again there is no doubt. In view of the conclusions noted above, the issue of time-lines prescribed by the Supreme Court for making admission at private medical colleges need not be gone into any further. Suffice to note, time is of utmost essence in these matters. Too much time has passed.

39. Accordingly, the writ petition lacks merit and is dismissed. No order as to costs.

 
Order Date :- 11.1.2024
 
Faraz/Prakhar/Abhilash/Gaurav
 

 

 
(Manjive Shukla, J.)     (S. D. Singh, J.)

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