NEIL AURELIO NUNES & ORS.versusUNION OF INDIA & ORS.

970             SUPREME COURT
                          [2022]REPORTS
                                 1 S.C.R. 970                   [2022] 1 S.C.R.


A                       NEIL AURELIO NUNES & ORS.
                                           v.
                            UNION OF INDIA & ORS.
                        (Writ Petition (C) No. 961 of 2021)
B                               JANUARY 07, 2022
               [DR DHANANJAYA Y CHANDRACHUD AND
                        A.S. BOPANNA, JJ.]
             Education – Reservation – National Eligibility cum Entrance
      Test (NEET)– Notice issued implementing reservation for OBC (non-
C     creamy layer) and Economically Weaker Section (EWS) categories
      in the All India Quota (AIQ) seats – Challenge to – Held: A detailed
      interim order on the applicability of the EWS criteria as notified by
      OM 2019 for NEET-PG 2021 is necessitated – Validity of the OBC
      reservation in the AIQ seats in NEET-PG and NEET-UG is upheld –
      Counselling on the basis of NEET-PG 2021 and NEET-UG 2021 be
D     conducted by giving effect to the reservation as provided by the
      notice, including the 27 per cent reservation for the OBC category
      and 10 per cent reservation for EWS category in the AIQ seats –
      Further, the recommendation of Pandey Committee (formed by Union
      Government to review the criteria for identifying EWS) that the
E     criteria stipulated in OM 2019 be used for 2021-2022 is accepted
      – The criteria for the determination of the EWS notified by OM
      2019be used for identifying the EWS category for candidates who
      appeared for NEET-PG 2021 and NEET-UG 2021 examinations –
      Validity of the criteria determined by the Pandey Committee for
      identification of EWS would prospectively for the future be subject
F     to the final result of the petitions – Petitions be listed for final hearing
      on the validity of the EWS criteria as recommended by the Pandey
      Committee.
            CIVIL ORIGINAL JURISDICTION: Writ Petition (C) No. 961
      of 2021.
G
            (UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA)
            With
            Writ Petition (C) Nos. 967, 1002, 1021 and 1105 of 2021.
           Tushar Mehta, SG, K. M. Nataraj, Vikramjit Banerjee, ASGs, V.
H     Krishnamurthy AAG, Arvind Datar, Shyam Divan, P. Wilson, A.
                                          970
             NEIL AURELIO NUNES v. UNION OF INDIA                             971


Mariarputham, Anand Grover, Sr. Advs., Dr. Charu Mathur, Sanjay Kumar         A
Dubey, Rahul Unnikrishnan, Malak Bhatt, Vivek Singh, Shrirang
Choudhary, Subodh S. Patil, Chaitanya Deshpande, Ms. Supriya Patil,
Kanu Agrawal, Apoorv Kurup, Vatsal Joshi, Shailesh Madiyal, Sugosh
Subramaniam, Amrish Kumar, Ms. Archana Pathak Dave, Ms.
Swarupama Chaturvedi, Vikas Bansal, Gurmeet Singh Makker, Gaurav
                                                                              B
Sharma, Kirtiman Singh, Waize Ali Noor, Dhawal Mohan, Prateek Bhatia,
Ms. Srirupa Nag, Taha Yasin, R. Nedumaran, Ms. Chandra Priya C.,
Mukul Lather, Dr. Joseph Aristotle S., V. K. Biju, Ms. Ria Sachthey,
Chetanya Singh, Amlendu Kumar Akhilesh Kumar Jha, Shaji George,
Ms. Vijay Laxmi, Devashish Bharuka, Ms. Sarvshree, Justine George,
Apporve Karol, Mithu Jain, Kartikay Trivedi, Shashank Ratnoo, Vikram          C
Hegde, Shantanu Lakhotia, Kumar Prashant, Ms. Vanya Gupta, Avnish
Dave, Parmod Kumar Vishnoi, Varun Thakur, Brajesh Pandey, Varinder
Kumar Sharma, Advs. for the appearing parties.
      The Order of the Court was passed by
      DR. DHANANJAYA Y CHANDRACHUD, J.                                        D

       1. There is a challenge, in this batch of petitions under Article 32
of the Constitution, to a notice which was issued by the Directorate
General of Health Services in the Union Ministry of Health and Family
Welfare on 29 July 2021. The notice implements a 27 per cent reservation
for Other Backward Classes1 (non-creamy layer) and a 10 per cent              E
reservation for the Economically Weaker Section,2 while filling up 15
per cent undergraduate and 50 per cent post-graduate3 All India Quota4
seats in pursuance of the National Eligibility cum Entrance Test5. The
notice takes effect from the current admission year, 2021-2022. The
petitioners are doctors who appeared in the NEET- PG 2021 examination.        F
       2. The petitions were instituted on 24 August 2021 to challenge
the validity of the notice dated 29 July 2021. Notice was issued by this
Court on 6 September 2021. The NEET-PG results were announced on
28 September 2021. Arguments were heard in part on 7 October 2021.
It was argued that there cannot be any reservation for the OBC and            G

1
  “OBC”
2
  “EWS”
3
  “PG”
4
  “AIQ”
5
  “NEET”                                                                      H
972               SUPREME COURT REPORTS                       [2022] 1 S.C.R.


A     EWS category in the AIQ seats in NEET-PG and that the criteria for
      the determination of the EWS category notified by O.M 36039/1/20196
      was unconstitutional. By an order dated 21 October 2021, this Court
      sought clarifications in regard to the criteria provided by the OM of 2019
      of using Rs 8 lakhs as the cut - off income limit for identifying EWS.
      Two weeks were granted to the Union Government to file an affidavit in
B
      this regard. When the batch was taken up for hearing on 21 October
      2021, the Union Government had not filed the affidavit. The ASG, Mr
      KM Nataraj informed this Court that an affidavit will be filed within two
      days. By an order dated 21 October 2021, this Court then formulated
      issues requiring the Union Government to disclose the rationale for the
C     adoption of the criteria used to identify the EWS. On 25 October 2021,
      the Union Government of its own accord deferred the counselling due to
      the pendency of the petitions. Thereafter, the Union Government filed
      an affidavit justifying the EWS criteria on 26 October 2021 stating that
      the criteria was adopted after due deliberation within the Ministry of
      Social Justice and Empowerment and all the concerned stakeholders.
D
             3. When the matter was listed for hearing on 28 October 2021,
      the Solicitor General sought an adjournment and requested that the
      petitions be heard after Diwali. On 25 November 2021, this Court was
      informed by the Solicitor General that the Union Government has taken
      a considered decision to revisit the criteria for determining the EWS and
E     requested four weeks to complete this exercise, which was acceded to
      by this Court. The Union Government formed a Committee7 on 30
      November 2021 to review the criteria for identifying EWS. The
      Committee submitted its report on 31 December 2021. Thereafter, the
      Union Government filed an affidavit before this Court accepting the
F     recommendations of the Committee including the recommendation that
      the existing criteria for identifying EWS be retained for the present
      admission year 2021-2022.
             4. The petitions were taken up for urgent hearing by this Court on
      5 January 2022 after a request was made by the Solicitor General. It
G     was submitted on behalf of the Union Government that the OBC and
      EWS reservation (with the old criteria according to OM 2019) be allowed
      to be implemented for the current admission year of 2021.

      6
          “OM 2019“
      7
H         “Pandey Committee”
              NEIL AURELIO NUNES v. UNION OF INDIA                              973
              [DR. DHANANJAYA Y CHANDRACHUD, J.]

       5. We have heard Mr, Arvind Datar, Mr Shyam Divan and Mr                 A
Anand Grover, Senior Counsel and Mr Shrirang Choudary, Ms. Archana
Pathak Dave, Mr Apoorva Karol, Mr Subodh Patil and Mr Varun Thakur
for the doctors and intervenors challenging the validity of the reservations
for OBC and EWS categories. On the other side, we heard Mr Tushar
Mehta, Solicitor General, Mr. Nataraj, Additional Solicitor General, Mr P
                                                                                B
Wilson for the Dravida Munnetra Kazhagam, Mr Mariarputham for the
State of Tamil Nadu, and Mr Biju and Mr. Shashank Ratnoo for the
intervenors.
       6. The submissions which have been urged before this Court over
a span of two days necessitate a detailed interim order on the applicability    C
of the EWS criteria as notified by OM 2019 for NEET-PG 2021. The
formulation of the reasons in the interim order on the EWS reservation
would take some time. The validity of the OBC reservation in the AIQ
seats in NEET-PG and NEET-UG is upheld for reasons to follow. In the
meantime, there is an urgent need to commence the process of
Counselling. We are hence issuing the following operative directions at         D
this stage :
      7. (i) We accept the recommendation of the Pandey Committee
             that the criteria which have been stipulated in OM 2019 be
             used for 2021-2022 in order to ensure that the admission
             process is not dislocated;                                         E

      (ii)    Counselling on the basis of NEET-PG 2021 and NEET-
              UG 2021 shall be conducted by giving effect to the
              reservation as provided by the notice dated 29 July 2021,
              including the 27 per cent reservation for the OBC category
              and 10 per cent reservation for EWS category in the AIQ           F
              seats;
      (iii)   The criteria for the determination of the EWS notified by
              OM 2019 shall be used for identifying the EWS category
              for candidates who appeared for the NEET-PG 2021 and
                                                                                G
              NEET-UG 2021examinations;
      (iv)    The validity of the criteria determined by the Pandey
              Committee for identification of EWS would prospectively
              for the future be subject to the final result of the petitions;
              and
                                                                                H
974                SUPREME COURT REPORTS                          [2022] 1 S.C.R.


A            (v)     The petitions shall be listed for final hearing on the validity
                     of the EWS criteria as recommended by the Pandey
                     Committee in the third week of March 2022.
             8. Reasons shall follow.

B
      Divya Pandey                                                  Directions issued.
      (Assisted by : Roopanshi Virang, LCRA)




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