NEPPALI SAI VIKASH & ORSversusUNION OF INDIA & ORS

                          [2022] 3 S.C.R. 591                             591


                   NEPPALI SAI VIKASH & ORS                               A
                                   v.
                     UNION OF INDIA & ORS
              (Miscellaneous Application No 735 of 2022)
                                   In
                                                                          B
                 (Writ Petition (Civil) No 124 of 2022)
                             MAY 02, 2022
         [DR. DHANANJAYA Y CHANDRACHUD AND
                         SURYA KANT, JJ.]
       Education – Admissions – Post Graduate Medical Admissions
                                                                          C
– Reduction in percentile fixed for eligibility – Plea for further
reduction in the percentile – Held: Not tenable – Proviso to Regn.
9(3) of the Post-Graduate Medical Education Regulations stipulates
that the Central Government has the power to lower the minimum
marks for admission to PG courses in consultation with the National
Medical Commission when a sufficient number of candidates fail to         D
secure minimum marks – On facts, Central Government in exercise
of this power had already reduced the minimum marks in
consultation with the National Medical Commission – After stray
rounds were conducted on the reduction in the percentile, only 282
seats are left vacant – Central Government has taken a considered
                                                                          E
decision to not reduce the minimum marks further – The Court would
not be inclined to interfere unless there is a manifest arbitrariness
in the decision making process or in the decision – There is no
arbitrariness here – Responding to the vacancies, the Union
Government took a decision after due consideration, of reducing
the percentile by 15 – The Court would not be justified in the exercise   F
of the power of judicial review to direct a further reduction of 5
percentile since that would be trenching upon the academic/policy
domain – Post-Graduate Medical Education Regulations 2000 –
Regn.9(3) – Judicial Review – Scope.
       Education – Admissions – Post Graduate Medical Admissions          G
– Need for filling up vacant seats vis-à-vis other considerations –
Held: The need for filling up vacant seats, which undoubtedly is a
matter of public interest has to be balanced with other considerations
such as ensuring that the batch of admitted students commences the
course, the standards of medical education are not diluted and
                                                                          H
                                 591
592             SUPREME COURT REPORTS                            [2022] 3 S.C.R.


A     uncertainty is not created by ad-hoc reductions in the norms of
      eligibility.
             Harshit Agarwal v. Union of India, [Decision of two
             Judge Bench of Supreme Court in WP(C) 54 of 2021]
             – distinguished.
B            CIVIL ORIGINAL JURISDICTION : Miscellaneous Application
      No.735 of 2022.
             In
             Writ Petition (Civil) No.124 of 2022.
             (Under Article 32 Of The Constitution of India)
C            Prashant Bhushan, Ramesh Allanki, Ms. Aruna Gupta, Srinivas
      Rao Pachwa, D. Rahuvawsy, Syed Ahmad Naqvi, Alig Raj, Advs. for
      the Petitioners.
             Ms. Aishwarya Bhati, ASG, Ms. Ruchi Kohli, Aman Sharma, G.
      S. Makker, Siddhant Buxy, N. V. R. SSS Vara Prasad, Neeraj Kumar,
D     M/s Ramesh Allanki And Associates, Advs. for the Respondents.
             The Judgment of the Court was delivered by
             DR. DHANANJAYA Y CHANDRACHUD, J.
             1. The Miscellaneous Application seeks revival of the petition under
      Article 32 of the Constitution. The petition was disposed of by an order
E     dated 14 March 2022.
             2. The grievance in the petition was that there were vacant post
      graduate medical seats and a reduction in the percentile fixed for eligibility
      will ensure that more candidates become eligible to fill up the vacancies.
             3. The Union Government in the Ministry of Health and Family
F     Welfare1 took a decision on 12 March 2022 to carry out a reduction of
      15 percentile across all categories for admission to NEET PG courses.
      For the general category, the cut-off percentile has been fixed at 35, for
      the physically handicapped category at 30 and for the reserved SC/ST
      categories at 25.
G            4. Mr Prashant Bhushan, counsel appearing on behalf of the
      petitioners, submits that even with the reduction which has been effected,
      there are still about 1,500 seats which are vacant in the states’ quota
      and, hence, if a further reduction of 5 percentile is effected, some more
      candidates would be able to gain admission. Moreover, counsel submitted
      1
H         “MoH&FW”
  NEPPALI SAI VIKASH & ORS v. UNION OF INDIA & ORS                          593
       [DR. DHANANJAYA Y CHANDRACHUD, J.]

that in the previous year, there was a reduction of 20 percentile and       A
hence a further reduction of 5 percentile for this year may be considered
because of the pandemic.
       5 Ms Aishwarya Bhati, Additional Solicitor General, has tendered
a statement on behalf of MoH&FW, which is extracted in its entirety for
convenience of reference:                                                   B
                            “Mop up Round



                              Stray Round
                                                                            C



      *Results to be declared on 2nd May 2022. Last day of reporting is
      7th May 2022.
      ** Most of the seats that remain vacant are pre-para. These           D
      subjects are teaching subjects and usually remain vacant.
      •     There are currently 600 seats under counselling for the
            deemed universities and the counselling would be completed
            by 7th May2022.
      •     The petitioner has prayed for an additional round of mop-       E
            up round to be conducted and to permit and facilitate the
            petitioners/ applicants and also similarly situated to
            participate in the NEET-PG Counselling 2021 and allot of
            the vacant seats under the available quota for the academic
            year 2021-22, from amongst all candidates who appeared
                                                                            F
            for the NEET PG 2021 with no qualifyingmark.
      •     It is pertinent to mention that the current curriculum is
            already 4 months behind schedule and the another round of
            counselling is not in the best academic interest of the
            students. Further, the Ministry of Health and Family Welfare
            has decided in consultation with the National Medical           G
            Commission has decided that there shall be a reduction
            across all categories of 15 percentile for admission to the
            NEET PG courses. Thus, for the general category, the cut-
            off percentile is 35, for the physically handicapped general
            category 30 and for the reserved SC/ST25.                       H
594                SUPREME COURT REPORTS                        [2022] 3 S.C.R.


A              •    There are around 40,000 seats that are available for NEET
                    PG counselling. 92,000 candidates/doctors were initially
                    eligible for counselling for these seats. However, when the
                    percentile was lowered vide communication dated 12th May
                    2022, another 25,000 candidates became eligible. Therefore,
                    there are sufficient candidates that are available for
B                   counselling for the vacant seats and further lowering of
                    percentile would not be in the interest of the public at large
                    because the doctors have to deal with life and death
                    situations and merit cannot given a completego-by.”
             6. The above statement indicates that initially 92,000 candidates
C     were eligible for counselling for nearly 40,000 seats which were available
      for the post graduate courses. After the lowering of the percentile, 25,000
      more candidates became eligible. A total of 6,206 seats were available
      in the mop up round and after 4,747 candidates joined, 1,459 seats
      remained vacant. In the stray round, out of 1,459 seats, 1,177 seats have
      been allotted, leaving 282 seats vacant. This data is for the all-India
D     quota. The results are to be declared on 2 May 2022 and the last date
      for reporting is 7 May 2022.
             7. The data which has been placed on the record indicates that:
             (i)    A significant proportion of seats which remain vacant are
                    in “pre-para subjects”: these are teaching subjects where
E                   seats generally remain vacant;
             (ii) The current term is already behind schedule and a
                    considered decision has been taken to the effect that holding
                    another round of counselling would not be in the best
                    academic interest of students; and
F            (iii) As a result of a reduction of 15 percentile which was already
                    made on 12 March 2022, another 25,000 candidates became
                    eligible and it may not be in the best interest of medical
                    education to effectuate a further reduction.
             8. The counsel for the petitioners relied on the judgment of a two-
      Judge Bench of this Court in Harshit Agarwal v. Union of India2,
G     where the petitioners had sought a direction to lower the minimum marks
      by 20 percentile in each category for NEET-UG 2020 for admission to
      the BDS course. Allowing the writ petition, the decision of the Central
      Government dated 30 December 2020 to not reduce the minimum marks
      for admission to the BDS course was set aside on the ground that it
      2
H         WP(C) 54 of 2021
  NEPPALI SAI VIKASH & ORS v. UNION OF INDIA & ORS                                595
       [DR. DHANANJAYA Y CHANDRACHUD, J.]

suffered from illegality and irrationality. This Court directed that the vacant   A
seats in first year BDS course for 2020-21 were to be filled after reducing
the percentile by 10 points. However, the circumstances were different
in that case. The Dental Council of India had recommended the lowering
of the qualifying cut-off percentile to the BDS courses for the year
2020-21. The petitioners then submitted a representation to the Union
Government seeking a reduction in the qualifying percentile based on              B
the recommendation of the Dental Council of India. Sub-Regulation (ii)
of Regulation II of the Dental Council of India, Revised BDS Course
Regulations 2007 stipulates that the Central Government in consultation
with the Dental Council of India may at its discretion, lower the minimum
marks required for admission if a ‘sufficient’ number of candidates fail
to secure the minimum marks. This Court in that case was deciding on              C
the limited question of whether the decision of the Union Government to
not reduce the percentile in spite of the recommendations of the Dental
Council of India was arbitrary. It was observed that the contention of
the Union of India that the percentile was not reduced because there
were sufficient eligible candidates was erroneous since it had not
                                                                                  D
considered vital facts on the ratio of seats available vis-à-vis eligible
candidates:
        “11.The stand of the Central Government is that there are seven
        candidates available for each seat and, therefore, there is no need
        to lower the minimum marks. This calculation of the first
        Respondent is without taking into account the fact that NEET              E
        (UG) 2020 is conducted for admission into different courses like
        MBBS, BDS, UG AYUSH and other medical courses. Admissions
        for UG AYUSH and other UG medical courses are included in
        the NEET for the first time from this year. That apart, it is clear
        from the letter of the Dental Council of India that NEET has been
        made mandatory for admission to AIIMS and AIIMS like                      F
        institutions and ZIPMER. Hitherto, AIIMS and AIIMS like
        institutions and other institutions like ZIPMERwere conducting
        their own separate entrance test. The total number of seats
        available for the academic year 2020-2021 for MBBS are 91,367,
        BDS are 26,949 and AYUSH are 52,720 making it a total of
        1,71,036 seats. Whereas, the NEET qualified candidates are                G
        7,71,500.The ratio of seats available vis-à-vis eligible students is 1
        : 4.5 and not 7. The basis for the decision to not reduce minimum
        marks that there are sufficient eligible candidates is without
        considering the above vital facts. The decision which materially
        suffers from the blemish of overlooking or ignoring, wilfully or
                                                                                  H
596             SUPREME COURT REPORTS                           [2022] 3 S.C.R.


A             otherwise, vital facts bearing on the decision is bad in law4. The
              decision of the first respondent was propelled by extraneous
              considerations like sufficient number of Dentists being available
              in the country and the reasons for which students were not inclined
              to get admitted to BDS course which remits in the decisionbeing
              unreasonable. Consideration of factors other than availability of
B             eligible students would be the result of being influenced by
              irrelevant or extraneous matters. There is an implicit obligation on
              the decision maker to apply his mind topertinent and proximate
              matters only, eschewing their relevant and the remote”
              9. The proviso to Regulation 9(3) of the Post-Graduate Medical
      Education Regulations 2000 stipulates that the Central Government has
C
      the power to lower the minimum marks for admission to PG courses in
      consultation with the National Medical Commission when a sufficient
      number of candidates fail to secure minimum marks. On 12 March 2020,
      the Central Government in exercise of this power reduced the minimum
      marks in consultation with the National Medical Commission. After the
D     stray rounds were conducted on the reduction in the percentile, only 282
      seats are left vacant. The Union of India has taken a considered decision
      to not reduce the minimum marks further. As submitted by the respondent,
      the vacancy in the seats does not arise from non-fulfillment of minimum
      marks but also from course preferences and college preferences of the
      students. This Court would not be inclined to interfere unless there is a
E     manifest arbitrariness in the decision making process or in the decision.
      There is no arbitrariness here. Responding to the vacancies, the Union
      Government took a decision after due consideration, of reducing the
      percentile by 15. This Court would not be justified in the exercise of the
      power of judicial review to direct a further reduction of 5 percentile
      since that would be trenching upon the academic/policy domain. The
F     need for filling up vacant seats, which undoubtedly is a matter of public
      interest has to be balanced with other considerations such as ensuring
      that the batch of admitted students commences the course, the standards
      of medical education are not diluted and uncertainty is not created by
      ad-hoc reductions in the norms of eligibility. Hence, we find no merit in
      the Miscellaneous Application. The Miscellaneous Application is
G     dismissed.
              10. In view of the disposal of the Miscellaneous Application, no
      orders are required to be passed on the application for impleadment
      which is accordingly disposed of.

H     Bibhuti Bhushan Bose                                        M.A. disposed of.