NILAY GUPTA versus CHAIRMAN NEET PG MEDICAL AND DENTAL ADMISSION/ COUNSELLING BOARD 2020 AND PRINCIPAL GOVT. DENTAL COLLEGE & ORS.

[2020] 12 S.C.R. 161

NILAY GUPTA

CHAIRMAN NEET PG MEDICAL AND DENTAL ADMISSION/COUNSELLING BOARD 2020 AND PRINCIPAL GOVT.DENTAL COLLEGE & ORS.

(Civil Appeal No. 3345 of 2020 Etc.)

OCTOBER 09, 2020

[L. NAGESWARA RAO AND S. RAVINDRA BHAT, JJ.]

Education/Educational Institutions:

Admission – To Post Graduate Medical and Dental Courses– In Colleges in the State of Rajasthan – For academic year2020-2021 – Change in seat matrix, eliminating NRI Quota andmerging the same with management quota – Challenged by two NRICandidates – Single Judge of High Court held elimination of NRIQuota as unsustainable and directed admission of the candidates –Admission of the candidates in NRI quota pursuant to the order –Division Bench of High Court set aside the order of Single Judge –Appeal to Supreme Court – Held: NRI quota is not an unqualifiedand unalterable part of the admission process in post-graduatemedical courses – Management has the discretion to indicatewhether, and to what extent, NRI reservation could be provided –However, while exercising such discretion, reasonable notice shouldbe given to those aspiring for such seats – Single Judge could nothave directed admission of the candidates – In the facts of the case,the final seat matrices acted to the disadvantage of NRI candiates –Therefore, in order to do complete justice to all the parties, it isdirected that special counselling session be carried out, confinedonly to number of seats filled as result of Single Judge’s judgment– Such seats to be offered to the NRI candidates on merit basis –The seats vacated by such merited students shall then to be offeredto the beneficiaries of the order of Single Judge – The specialcounselling should not disturb those admissions where the NRIcandidates had accepted deletion of NRI quota and wereaccommodated in management quota – Medical Council of IndiaAct, 1956.

162SUPREME COURT REPORTS

ADisposing of the matters, the Court

HELD : 1.1 combined effect of the provisions of theMedical Council of India Act, 1956 and regulations with respectto admissions (which have been progressively amended in respectof eligibility for admission to courses, procedure for admission,Betc.) and the decisions of this court, is that private colleges andinstitutions which offer such professional and technical courses,have some elbow room: they can decide whether, and to whatextent, they wish to offer NRI or management quotas (the limitsof which are again defined by either judicial precedents, enactedlaw or subordinate legislation). In these circumstances, theCrespondent management possessed the discretion to indicatewhether, and to what extent, NRI reservations could be provided.There is nothing in *PA Inamdar case, to say that 15% NRIquota is an unqualified and unalterable part of the admissionprocess in post-graduate medical courses. It was, and remainsDwithin the discretionary authority of the management of privatemedical colleges, within their internal policy making domain.[Para 28][184-B-E]

1.2 Nevertheless, the discretion of private managementswho set up and manage medical colleges cannot be left to suchEan untrammelled degree as to result in unfairness to candidates.Undoubtedly, these private institutions have the discretion tofactor in an NRI or any other permissible quota. Yet that discretionshould be tempered; if the discretion to have such quota isexercised, it should be revised or modified reasonably, and withinreasonable time. [Para 30][185-C-D]F

1.3 In the present case the admission calendar appears tohave been thrown out of gear on account of the Covid-19pandemic. The rapidity with which the pandemic progressedperhaps generated broad consensus among private collegesthat going ahead with the NRI quota would be inadvisable. ThisGCourt cannot comment on the wisdom of such thinking as it fallswithin the exclusive domain of private decision-making. Whenthe final seat matrices were published on 13.04.2020, it acted tothe unfair detriment of these NRI students. The NRI studentshad not only started applying for counselling, but had alsosubmitted all their documents for verification to determine theirH

eligibility for the NRI quota seats, and in sense, committedthemselves as candidates for NRI quota seats in Rajasthan.[Para 30][185-E-F; 186-A-C]

1.4 Thus, the NRI quota is neither sacrosanct, not inviolablein terms of existence in any given year, or its extent. However, ifa medical college or institution or, for that matter, the stateregulating authority, such as the board in the present case, decideto do away with it, reasonable notice of such decision should begiven to enable those aspiring to such seats to choose elsewhere,having regard to the prevailing conditions. [Para 33][187-B-D]

1.5 The writ proceedings initiated by the two candidatesdid not claim that it was representative in character. It only soughtto highlight the arbitrariness in the admission procedure andpremised it largely upon the violation of the mandate of this courtin *PA Inamdar case. Though private medical colleges are notobliged to provide for such NRI quota seats to the extent of 15%in any given year, but the peculiarities of this case, which are: theprevailing pandemic, the various steps which impelled the NRIquota candidates to commit themselves, and the eleventh hourpolicy change brought about through the final matrix publishedon 13.04.2020, acted to the distinct disadvantage of these NRIcandidates. It also appears from the record that most of thestudents reconciled themselves to their candidature beingconsidered on merits at par with the management quotacandidates. Many such NRI students who did not approach thecourt were given admission in disciplines other than their primarychoices, due to their relative standing in the state merit list ofNEET eligible candidates. [Para 31][186-C-G]

*P.A. Inamdar & Ors. v. State of Maharashtra (2005) 6SCC 537 : [2005] 2 Suppl. SCR 603; Modern DentalCollege and Research Centre v. State of M.P & Ors.2012 (7) SC 433 : [2012] 5 SCR 768; ManipalUniversity v. Union of India (2017) 15 SCC 664; TMAPai Foundation v. State of Karnataka (2002) 8 SCC481 : [2002] 3 Suppl. SCR 587; Christian MedicalCollege Vellore Association v. Union of India,(2020) SCC OnLine SC 423 – referred to.

A2.1 The Single Judge could not have directed admission ofthe candidates. Sans statutory duty, positive direction to dosomething in specific manner, cannot be given (“it must be shownthat there is statute which imposes legal duty and the aggrievedparty has legal right under the statute to enforce its performance).The NRI candidates could not assert right to be admitted;Bfurthermore, while granting relief, the Single Judge could at besthave directed consideration of the cases of the writ petitionersbefore him. However, the broad nature of the relief grantedresulted in creation of rights which, implicated parties had not inthe first instance, approached the High Court at the cost of thirdCparties who had by then been given admission based on theirmerit as management quota students, another set of individualswho had not professed any grievance, were given admission, postjudgement of the Single judge. [Para 29][184-E-G; 185-A-C]

Tirumala Tirupati Devasthanams v. K. JotheeswaraDPillai, (2007) 9 SCC 461 : [2007] 6 SCR 1; BiharEastern Gangetic Fishermen Coop. Society Ltd. v.Sipahi Singh (1977) 4 SCC 145 : [1978] 1 SCR 375 ;K. V. Rajalakshmiah Setty v. State of Mysore, AIR 1967SC 993 : [1967] SCR 70 ; Bihar Eastern GangeticFishermen Coop. Society Ltd. v. Sipahi Singh, (1977) 4ESCC 145 : [1978] 1 SCR 375 – relied on.

2.2 The directions of the Single Judge resulted in so-called second round of counselling exclusively meant for NRIcandidates (in the second and third week of July, 2020), resultingin the drawing up of an NRI quota list, which was then acted upon.FThe resultant displacements led to those who had been givenadmission based upon the relatively higher merit ranking in themanagement quota, approaching the Division Bench with third-party appeals. The Division Bench set aside the Single Judge’sdirections. Another round of admissions to postgraduate seatsGwas given to the third-party appellants. [Para 32][186-F-H; 187-A-B]

2.3 In the circumstances of the present case and to dojustice to all the parties, it is directed that special counsellingsession should be carried out by the board, confined or restrictedH

ABC

to the seats in respect of which admissions were made pursuantto the Single Judge’s directions. In this counselling session, theboard should ensure participation of the concerned colleges; thecounselling shall be limited one, confined only to the number ofseats offered and filled as result of the Single Judge’s judgment.Such seats shall be offered to the NRI applicants solely on thebasis of merit; the seats vacated by such merited students (inthe other disciplines) shall then be offered to the beneficiaries ofthe Single Judge’s orders. If for any reason, such students (i.e.lower down in NRI merit, who are offered seats in otherdisciplines) do not wish to take up the offer, the college concernedshall refund the fee collected from such student. It is also madeclear that this special round of counselling should not disturbthose admissions, where students had accepted the deletion ofthe NRI quota, and were accommodated in the management quota,unless they had approached the court at the earliest opportunity,in April 2020, before the judgment of the Single Judge. [Para34][187-D-G]

2.4 It is clarified that the validity of deletion of the NRIquota altogether, by colleges, and their “merger” as part of thelarger management quota, was not questioned as generalproposition; the premise on which the parties argued their caseswas that the NRI quota is inflexible and cannot be altered. Thetime within which an institution decides to do away with the quotaduring an ongoing admission process has not been prescribed,inasmuch as the observations as to unfairness in the nature ofthe deletion is in the specific circumstances of the present case.The directions are with regard to the circumstances of the presentcase, and to do complete justice to all parties. [Para 35][187-G-H; 188-A-B]

BCIVIL APPELLATE JURISDICTION: Civil Appeal No. 3345of 2020.

From the Judgment and Order dated 25.08.2020 of the High Courtof Judicature for Rajasthan Bench at Jaipur in DB Special appeal WritNo. 499/2020 in S.B.Civil Writ Petition No. 5426 of 2020.C

With

CIVIL APPEAL NOS. 3346 – 3348, 3349, 3350 & 3351- 3352Of 2020.

Shyam Divan, Siddhartha Dave, V.Giri, Wasim Qadri, Dr. ManishDSinghvi, P.S. Narasimha, Nakul Dewan, Sr. Advs, D.K. Garg, PulkitManuja, Dhananjay Garg, Abhishek Garg, Anand Varma, Sandeep SinghShekhawat, Abhishek Prasad, Sanchar Anand, Vinay Kumar Misra,Anant Kumar Vatsya, Devendra Singh, Ms. Udita Singh, Sandeep KumarJha, Shiv Mangal Sharma, M/s. Aura & Co., Gaurav Sharma, SaranshSaini, Anshul Sharma, Bhrigu Sharma, Puneet Parihar, M/S. Unuc LegalELLp, Purvish Jitendra Malkan, Ms. Dharita Purvish Malkan, Ms. DeepaGorasia, Ms. Neha Ambastha, Ms. Bhavna Sarkar, Advs. for theappearing parties.

The Judgment of the Court was delivered by

FS. RAVINDRA BHAT, J.

1. These appeals were heard with the consent of learned counselfor the parties.

2. The appellants are aggrieved by decision of Division Benchof the Rajasthan High Court, which upset the findings of learned SingleGJudge of that High Court, who found that the change of seat matrix foradmission to post graduate (PG) medical and dental seats in colleges inthe State of Rajasthan, for the academic year 2020-21, by eliminatingthe Non-Resident Indian (NRI) quota was unsustainable in law. Theappellants were admitted pursuant to the direction issued by the learned

NILAY GUPTA v. CHAIRMAN NEET PG MEDICAL & DENTAL ADMISSION/COUNSELLING BOARD 2020 & PRINCIPAL GOVT. DENTAL COLLEGE[S. RAVINDRA BHAT, J.]

Single Judge, who had ruled that the deletion of such quota was contraryto law. Two sets of appeals and intervention applications arise forconsideration: one, appeals arising from petitions filed by Dr. Nilay Gupta,and Dr. Surmil Sharma, the original writ petitioners (who had succeededbefore the single judge and were consequently given admission as NRIcandidates) and two, appeals filed by Dr. Arushi Mittal, Dr. PriyankaSharma, Dr. Anjali Agarwal, Dr. Aditya Punia, Dr. Varun Bhargava andDr. Deepak Ramnani, who are aggrieved by the impugned judgmentinasmuch as the admissions they were granted pursuant the single judge’sdirections, despite not being parties to the original writ petition, havenow been overturned. An application to intervene has been preferred byDr. Tirth Jitendra Kumar Modi, who was granted admission to PGcourse in the respondent private college on 27.08.2020, after the impugnedjudgment was delivered; he has paid the fees and attended classes sofar.3. The factual matrix is that the process of admission to PG medicaland dental courses for academic year (AY) 2020-21 began sometime inearly 2020. The procedure for selection for admissions began with theNEET Post Graduate Test/Common Eligibility Test, which was held inJanuary, 2020. The schedule/calendar for filling of the PG seats wasmade available online and also published in leading newspapers.Contemporaneously, meeting of the PG Counselling board for admissionsto MD/MDS course was held by the Chairman, NEET PG Counsellingboard – 2020 (hereafter “board”). This meeting held on 17.03.2020,was attended by representatives of colleges, including private collegesas well as officials of the State and Union Governments. The minutes,inter alia, recorded as follows:

“The following is brief record of discussions held anddecisions taken during the meeting.

1. The notification for NEET PG Medical Dental advertisementwas discussed finalized and approved.

2. The instruction booklet was discussed and finalized andon direction it was decided to send it to Hon’ble AdvocateGeneral for vetting.

3. The seat matrix and fees structure was obtained from allmedical dental colleges.

A4. It was decided to send the instruction booklet along withseat matrix and the fee structure information obtained fromall the medical dental college to the Government.

5. Seats remaining vacant, if any due to non availability ofNRI candidates in second round of counselling will be filledBup as per merit and choice of the candidates applying under15% quota of the college and fees as prescribed by the feecommittee of the college.

Meeting ended with the vote of thanks.”

4. The NEET PG 2020 examination had been held sometime inCJanuary, and the results were declared on 31.01.2020. The appellantswere registered under the NRI category with the board for allotment ofseats in the discipline of MD (Radio-diagnosis) in Rajasthan, sometimein the third week of March 2020.

5. The Instruction Booklet for State Medical & Dental PG SeatsDAllotments, 2020, which intimated the terms which applied to candidatesstated inter alia that:

(a) NEET qualified candidates possessing degree of MBBS/BDS from colleges situated in the State of Rajasthan, and allmedical officers/ medical teachers serving under theEGovernment of Rajasthan are eligible to participate foradmissions in 50% of the total seats in private medical colleges;

(b) For the remaining 50% of the total seats in private colleges,all NEET qualified candidates possessing an MBBS/ BDSdegree from anywhere are eligible to participate;F

(c) There are 3 types of seats as per the Medical Council of India(MCI) – government seats, management seats, and NRI seats.The responsibility for the type of seats in the seat matrix liewith the concerned institution.

6. The Instruction Booklet further stipulated, inter alia, that theGseat matrix would be announced in “due course”. The medical and dentalcolleges which offered admissions, were to delineate the categories ofseats as well as the respective fee to be charged in accordance withprevailing laws, regulations etc. Clause 19 of the Instruction Bookletrequired separate documents to be furnished for NRI candidates inHProforma II and in the form of undertakings.

NILAY GUPTA v. CHAIRMAN NEET PG MEDICAL & DENTAL ADMISSION/COUNSELLING BOARD 2020 & PRINCIPAL GOVT. DENTAL COLLEGE[S. RAVINDRA BHAT, J.]

7. The eligibility for filling NRI seats was spelt out in the following

terms:

“Eligibility for NRI Seats

As per order no. F.5 (968)DME/LC/2018/1997 dated29.04.2019 of Government of Rajasthan, following will bethe guidelines applicable for the admission in UnderGraduate/Post Graduate, Medical/Dental courses under NRIquota in all Private and Government institutions of the State:

1. At least one of the parents of students should be an NRIand shall ordinarily be residing abroad as an NRI; or

2. The person who sponsors the student for admission shouldbe first degree relative of the student (i.e. real Brother/real Sister)and should be ordinarily residing abroad as an NRI; or

3. If student is taken as ward by some other nearest relative[as mentioned below (i) to (v) such students also may be consideredfor admission provided the guardian has bonafidely treated thestudent as ward. For this following nearest relative (NRI) ofcandidate, who should be ordinarily residing abroad as an NRIcan only be considered:

(I) Real Brother and sister of father i.e. real uncle and realaunt.

(ii) Real brother and sister of mother i.e. real maternal uncleand maternal aunt.

(iii) Father and mother of father i.e. grandfather andgrandmother.

(iv) Father and mother of mother i.e. maternal grandfatherand maternal grandmother.

(v) First degree-paternal and maternal cousins.”

4. All NRI candidates shall submit proof being sponsoredas NRI/OCI/PIO in the form of certificate issued by the Indianembassy/Ministry of external affairs, Government of India for thispurpose. In the absence of that certificate duly notarizedundertaking executed by the sponsor and notarized by the NotaryPublic of the foreign country where the sponsor resides being

Asubmitted by the sponsor, it be treated as sufficient as to the factumof the residence of the sponsor.

5. An affidavit from the sponsor that he/she looks after suchstudent and will sponsor the entire course fee of the candidate.

(Refer requirement of additional documents for candidatesBapplying for NRI seatsunder ‘List of documents to be deposited atthe time of reporting’, Page 11 and 12 of the instruction booklet)

Priority

For admission under NRI Quota in Medical/Dental CoursesCin the colleges in the State of Rajasthan, priority shall be given tothe NRI with ancestral background of the State of Rajasthan byown/parents/Grandparents resided in State of Rajasthan at leastfor period of 5 years at any time. The proof of residence will alsobe applicable for the consideration priority for NRI Quota, for whichdocument (electricity/water bill/Documents of immovable property/DIndian Passport/Ration Card/Voter ID/Aadhaar Card etc.) to theeffect for this criteria is required to be submitted by ward of NRI(including PIO/OCI).

Firstly, allotments of NRI Quota seats shall be allotted tocandidate having ancestral background of the State of RajasthanEby own/parents/Grandparents resided in State of Rajasthan at leastfor period of 5 years. Later on remaining Vacant NRI seats will beallotted/filled by the candidates of NRI belonging to other states.

For PIO/ OCI: Overseas Citizens of India (OCI), Persons ofIndian Origin (PIO) are allowed for admission under NRI Quota.”F

8. On 11.04.2020 apparently, one of the respondents, i.e. MahatmaGandhi Medical College, Jaipur (hereafter “MGMC”), published itsadmission notification which stated inter alia that the total MD seatsoffered were 144; that NRI/management quota seats would be 22, (i.e.15% of the total seats) and that other than NRI/management quota seats,Gthe other 50% would be state quota seats (of the total, i.e. 72) and 50seats were All India quota seats. The details of MD/MS seats availablein the MGMC were also shown in tabular form. For MD (Radiodiagnosis), 1 seat was earmarked in the All-India 35% quota; 3 seatswere set apart for the state quota; and 2 seats were set apart for NRI/management quota seats. The appellants had by then, furnished theHNILAY GUPTA v. CHAIRMAN NEET PG MEDICAL & DENTAL ADMISSION/COUNSELLING BOARD 2020 & PRINCIPAL GOVT. DENTAL COLLEGE

[S. RAVINDRA BHAT, J.]

requisite documents to claim admission in the NRI quota sometime inearly March itself.

9. The original notice spelling out the schedule for admissions,including verification of documents etc. had fixed 30.03.2020 as the datefor verification of status of NRI applicants. This process was postponedon 10.04.2020, to 14.04.2020. Before that date, however, on 13.04.2020,the State NEET PG Counselling board published seat matrix in whichthe NRI quota was shown as NIL. It transpired that the MGMC had, inthe meanwhile furnished seat matrix to the State NEET Board showingthat there would be no separate seats earmarked for the NRI quota, andthat such NRI candidates would be considered for admission in themanagement quota. The final seat matrix for PG medical allotments forAY 2020-21 - furnished by the MGMC - was annexed to the reply filedby the board before the single judge. It clearly showed that 22 seatswere set apart as ‘management’ seats, and nonewere shown as part ofthe management seats under the NRI quota. With respect to RadioDiagnosis, the position was that out of total of 6 seats, 1 was keptapart as ‘management quota’.

On 14.04.2020, notification was issued by the board statingthat the seat matrix for the current year would not contain the NRIQuota. The said notification/ intimation read as follows:

“Office of the Chairman,

NEET PG Medical & Dental Amission/Counseling Board -2020and Principal, Govt. Dental College, Subhash Nagar, BehindT. B. Hospital, Jaipur, RajasthanPhone: 0141-2280090

NEET PG MEDICAL & DENTAL ADMISSION/COUNSELING2020

(Rajasthan State)

IMPORTANT INFORMATIONFORNRI CANDIDATES

14.04.2020

Seat Matrix (13.04.2020) available at the website (compiledon the basis of seats information provided by respectivecolleges) does not have any NRI seat this year. The candidates

Awho have applied for allotment on NRI seats will accordinglybe considered based on their remaining eligibility criteria.

ChairmanNEET PD Medical & Dental AdmissionCounseling Board-2020 andPrincipal, Govt. Dental College, Jaipur

10. Feeling aggrieved, the two appellants, i.e. Dr. Nilay Guptaand Dr. (Ms) Surmi Sharma (both of who had concededly applied asNEET qualified candidates for the admission in the NRI seats) approachedthe Rajasthan High Court, contending that the decision to do away withCthe NRI quota was arbitrary. They highlighted their having received anotice on 10.04.2020 to be in readiness for online counselling towardsadmission to the NRI seats. They relied upon the minutes of the meetingdated 17.03.2020 and submitted that the the NEET Counselling Boardwas to first fill the NRI seats in NRI quota, and if there were no left outseats, to fill them as part of the larger management quota. It was alsoDsubmitted that on 13.04.2020, the NEET PG Counselling Bord whimsicallyand without any rationale, in its final seat matrix deleted the NRI quotaaltogether following it up with notification of 14.04.2020, stating thatall NRI seats would now be considered as part of the managementquota. The board and the MGMC resisted the writ petition, especiallyEthe appellants’ reliefs claimed (that the respondents be directed to givethem admission to seats as NRI candidates). It was stressed by therespondents that no student has right to claim admission and that privatemedical colleges cannot be compelled to earmark separate quota forNRI candidates if they chose not to do so out of volition. It was furtherstated that NRI candidates could and were considered for admission toFseats in the management quota.11. By the judgment and order dated 10.07.2020, the learned SingleJudge of the High Court, relying upon the seven judges’ ruling of thisCourt in P.A. Inamdar & Ors. v. State of Maharashtra[1], as well asother rulings[2] held that after having appeared in the NEET PGGexamination and qualifying it, and after having approached the colleges(including MGMC) for the NRI seats, the appellants could not be deprivedof their choice of admission in NRI seats by the respondents through the

1 (2005) 6 SCC 537

2 Modern Dental College and Research Centre v. State of M.P & Ors.. 2012 (7) SC 433Hand Manipal University v. Union of India (2017) 15 SCC 664.

process of deletion of the NRI quota seats altogether. The learned SingleJudge held that there can be no distinction between the NRI seats andmanagement seats and it was only after exhausting the option of fillingeligible NRI candidates in that quota that the remaining seats in the 15%could be treated as management quota seats. Relying upon the minutesof the meeting of 17.03.2020, which indicated the sequence of admission(in which NRI students were to be first counselled for the purpose oftheir document verification, after which management seats could be filled),it was held that the change of policy mid-stream as it were, by the boardand the colleges was contrary to law. The learned Single Judge alsodirected that the appellants, i.e. the writ petitioners before the High Courtshould be given admission forthwith.

12. In compliance with the directions of the single judge, the twoappellants were given admission to courses of their choice. Since thejudgment had far reaching repercussions, third party appeals were filedby students who had been offered MD/MDS seats in the managementquota, and who faced threat to their admission; likewise, the board tooappealed. The Division Bench allowed these appeals by the impugnedjudgment, by accepting the plea of the colleges, the board and the third-party appellants. The Division Bench reasoned that no student can claima right to quota (NRI quota in this case). It also held that the judgmentsof this court in P.A. Inamdar[3]and the other decisions nowhere indicatethat an obligatory NRI quota should be earmarked by all private colleges,which have choice of either doing it, or filling the seats, which otherwisefall within the management quota, as part of the management quotaseats. In other words, according to the Division Bench, the privateinstitution has the choice of earmarking an NRI quota or not doing so,and proceeding to fill the management quota by considering NRI studentsas part of the general management seats quota. The impugned judgmentalso held that the respondents could not be blamed for not providing anNRI quota, or for changing the seat matrix; it further noted that theobject of carving out quota was to enable the private institution tocharge higher fee; in the present case, it held that the fee prescribedfor NRI candidates and management quota candidates was the same;therefore, the private colleges could well exercise their discretion not toearmark an NRI quota.

A13. Mr. V. Giri, learned senior counsel for the appellants arguedthat the action of the board, in countenancing the MGMC’s decision toabolish the NRI quota, after calling the students to opt for such quota,much after the declaration of NEET test results on 31.01.2010, isarbitrary. It was urged that the entire sequence in this case, shows thatthe board, the universities and the concerned colleges were clear thatBthere would be an NRI quota and that if seats from that quota, after thecounselling, remained unfilled, only such residual seats would be filledup by management quota candidates. Much emphasis was placed uponthe minutes of the meeting dated 17.03.2020, under the aegis of theboard, to which all colleges were parties. This court’s attention was alsoCdrawn to the original seat matrix, published in the notification dated11.04.2020, of MGMC, which clearly represented that out of 144 seatsin the MGMC, clear 15% NRI quota was shown; and that the tableeven detailed that two NRI seats in the Radio Diagnosis discipline forMD seats. Being so, the board and the MGMC could not have goneback on their decisions, at late stage, when the students (who hadDopted for NRI seats in Rajasthan) were left with little or no choice.

14. Mr. Siddharth Dave, learned senior counsel appearing foranother candidate who was prejudiced on account of the Division Bench’sdirections, supported Mr. Giri’s submissions. He highlighted that rightfrom the decision in P.A. Inamdar[4]this court has maintained that anENRI quota is available for overseas/NRI candidates, who wish toundertake studies in private colleges in India, especially in medicalcourses. There is twin objective behind creation of this quota: first, toaugment the coffers of the private college, and enable “cross-subsidization” of seats, for the benefit of meritorious but poor students,Fand secondly, to enable students who have been schooled abroad toculturally immerse themselves and find their roots in Indian society. Suchbeing the case, the managements of private colleges could not haveunilaterally and at the last moment, withdrawn this quota, to the detrimentof the students who had consciously opted for it, and were left with little,

or worse, no options. It was submitted that even the seat matrix shownGlast, i.e. on 13.04.2020, should not have included management quotacandidates as eligible for the NRI quota; this aspect was noticed, andcommented upon by the single judge, based on correct reading of thescheme of admissions.

15. Mr. Wasim Qadri, learned senior counsel, Mr. Anand Vermaand Mr. DK Garg, learned counsel, made submissions on behalf ofcandidates. It was submitted that as result of the single judge’s directions,another round of counseling had taken place and students wereaccommodated in the NRI quota; they had to give up the seats whichthey had previously opted for, in other medical colleges, to accept NRIseats, because that conformed to their choice of discipline. Hence,submitted these counsel, the Division Bench’s ruling has resulted inadverse consequences to them.

16. Mr. Manish Singhvi, learned Additional Advocate General forthe state of Rajasthan, argued that the NRI quota could not apply in thefacts and circumstances of the case as the institutions (private colleges)had not claimed any seats under the NRI quota, for which the seatmatrices were furnished by them on 11.04.2020. The allotment of seatswas thus required to be made strictly in accordance with the merit of thecandidates who had applied in the NRI quota, as well as for themanagement seats. It was urged that the learned Single Judge erred inusurping the powers of the Counselling Board and directing it to allotparticular subjects (Radio-diagnosis to Dr. Nilay Gupta and Obstetrics& Gynaecology to Dr. Ms. Surmil Sharma).17. Mr. Nakul Dewan, learned senior counsel appearing for theintervenor, Dr. Modi, highlighted that due to disruption which occurredon account of the Covid-19 pandemic, the process for admission of PGcourses was delayed; on 10.04.2020, the revised schedule was issuedby the board. When the private colleges had to furnish their seat matricesto the board, they took decision not to avail of the NRI quota. Thus, theboard published the seat matrix, which clearly indicated that 22 seatswere earmarked for candidates who had applied in the managementquota category. Agreeing with the submissions on behalf of the state,that an NRI quota was not obligatory, Mr. Dewan contended that thegenesis of that quota can be traced to the observations in TMA PaiFoundation v. State of Karnataka[5] that unaided private colleges are“entitled to autonomy in their administration” even when they arebound to make merit-based admissions. The court had stated that a“certain percentage” (of the total intake) can be set apart to be filledby college managements, based on merit determined by common test,to be conducted by the state or its agencies, or the college. These

5 2002 (8) SCC 481

Aobservations were elaborated, and the court enabled the creation of anNRI quota in such colleges, in P.A Inamdar[6]. He also relied on thesubsequent decision in Modern Dental College[7].

18. Mr. Shiv Mangal Sharma, appearing for the fourth respondent,i.e. Dr. Anjaneya Singh Kathait, in the appeal filed by Dr. DeepakBRamnani, supported the submissions of Shri Dewan, and highlighted thatall candidates who were granted admissions in the NRI quota, after thesingle judge’s directions, were considerably low in merit. They weregiven undeserving benefit, entirely because of erroneous directions bythe single judge, who could have at best required the board to considerNRI candidates, on the basis of their merit, in the NEET process. It wasCsubmitted that as result, there was no question of interfering with theimpugned judgment, which was justified both on merits as well as in law.This position was also adopted on behalf of the board, which is separatelyarrayed as respondent.Analysis and ConclusionsD

19. The documents on the record show that total of 717 seatswere initially notified for admission in postgraduate medical courses ingovernment colleges in the Rajasthan State; 427 of were notified asintake in five private colleges in the state. The board, in its notificationdated 10-04-2020 had stated that the rescheduling of Central NEETECounselling for the state of Rajasthan had been re-notified; the freshschedule for the state indicated that counselling fee was to be depositedbetween 11.04.2020 and 13.04.2020. Concurrently the online registrationfor first counselling and information for filing of applications by thecandidates was between 11.04.2020 and 13.04.2020, up to 11.55 PM.FThe third and fourth steps comprised of verification of disability certificateof all persons with disabilities as well as verification of status of NRIapplicants. Management quota seats were notified by MGMC on13.04.2020; these were 22 (out of total of 144 seats available in thatcollege.) During the intervening period, the private colleges lodged theirseat matrices; consciously, they omitted the NRI quota. After publishingGthe matrix on 13.04.2020 and after the board’s notification of 10.04.2020(setting out sequentially, in terms of date and time, the steps to be takenfor registration counselling and admission), the final position vis-à-visunavailability of NRI seats was notified on 14.04.2020.

6 Supra n.1H7 Supra n.2

20. The provisions of the Rajasthan University of Health SciencesAct, 2005[8] throws open admission to all courses, offered by medicalcolleges affiliated to the University, to be open to all, subject to suchreservations as may be made in favour of Scheduled Caste, Scheduledtribe, Other backward classes, girl students “and other categories inaccordance with any law or orders of the State Government for thetime being in force.” By virtue of insertion of Section 10-D in the MedicalCouncil of India Act, 1956 and regulations framed thereafter, participationin common National Examination, (“NEET”) by institutions offeringmedical courses – including postgraduation courses, as well as its attemptby candidates wanting admission, became compulsory. The governingenactment, which set up the respondent MGMC, is the Mahatma GandhiUniversity of Medical Sciences and Technology, Jaipur Act, 2011. Itprovides[9 ]for the procedure to be adopted for admissions, as well as forreservations. Per proviso to Section 32(2), admission in professionalcourses is to be only through entrance test; By Section 32(3), reservationsfor “scheduled castes, scheduled tribes, backward classes, specialbackward classes, women and handicapped persons shall beprovided as per the policy of the State Government.” Regulationsframed pursuant to the amendment effected in 2016, to the MedicalCouncil of India Act, in respect of admission to postgraduate medicalcourses, made it obligatory for both institutions and students alike to giveeffect to the common eligibility test (NEET).[10]

8 Section 7

9 Section 32, which reads as follows:

“32. Admissions. - (1) Admission in she University shall be made strictly on the basisof merit.

(2) Merit for admission in the University may be determined either on the basis ofmarks or grade obtained in the qualifying examination and achievements in co-curricularand extra-curricular activities or on the basis of marks or grade obtained in the entrancetest conducted at the State level either by an association of the universities conductingsimilar courses of by any agency of the State:

Provided that admission in professional and technical courses shall be made onlythrough entrance test.

(3) Reservation in admission to the University for scheduled castes, scheduled tribes,backward classes, special backward classes, women and handicapped persons shallbe provided as per the policy of the State Government.”

10 Regulation 9, to the extent it is relevant, introduced in 2018, reads as follows:

“9. Procedure for selection of candidate for Postgraduate courses shall be as follows:-(1) There shall be uniform entrance examination to all medical educational institutionsat the Postgraduate level namely ‘National Eligibility-cum-Entrance Test’ for admission

A21. The rival contentions of the parties may be summarized asfollows. The original writ petitioners, (all of whom are before this court)argue on the one hand that the admission process really began sometimein January 2020 when the NEET written test took place. The meetingconvened by the board and attended by all parties concerned includingprivate colleges who participated in admissions to postgraduate coursesBin private colleges, clearly intended as on 17.03.2020, to fill up the 15%quota firstly amongst eligible NRI candidates and thereafter fill the leftoverseats as part of the management quota. This understanding resulted intwo consequences for NRI candidates; the first was that they filed theirapplications and produced all relevant documents to support the claimCthat they were eligible for that quota; secondly with the publication ofthe board’s notification of 10.04.2020, some of them (if not all of them)had applied as NRI candidates within the time indicated in the rescheduledtimeline. Thus, goes the argument, having held out to all NRI candidatesabout the availability of seats for that quota as well as the sequence ofDto postgraduate courses in each academic year and shall be conducted under the overallsupervision of the Ministry of Health & Family Welfare, Government of India.

(2) The “designated authority” to conduct the ‘National Eligibility-cum-Entrance Test’shall be the National Board of Examination or any other body/organization so designatedby the Ministry of Health and Family Welfare, Government of India.

(3) In order to be eligible for admission to Postgraduate Course for an academic year,Eit shall be necessary for candidate to obtain minimum of marks at 50th percentile inthe ‘National Eligibility-Cum-Entrance Test for Postgraduate courses’ held for the saidacademic year. However, in respect of candidates belonging to Scheduled Castes,Scheduled Tribes, and Other Backward Classes, the minimum marks shall be at 40thpercentile. In respect of candidates with benchmark disabilities specified under theRights of Persons with Disabilities Act, 2016, the minimum marks shall be at 45thpercentile for General Category and 40th percentile for SC/ST/OBC. The percentileFshall be determined on the basis of highest marks secured in the All India Commonmerit list in National Eligibility-cum-Entrance Test for Postgraduate courses.Provided when sufficient number of candidates in the respective categories fail to secureminimum marks as prescribed in National Eligibility-cum-Entrance Test held for anyacademic year for admission to Postgraduate Courses, the Central Government inconsultation with Medical Council of India may at its discretion lower the minimummarks required for admission to Post Graduate Course for candidates belonging toGrespective categories and marks so lowered by the Central Government shall beapplicable for the academic year only.

(4) The reservation of seats in Medical Colleges/institutions for respective categoriesshall be as per applicable laws prevailing in States/Union Territories. An all India meritlist as well as State-wise merit list of the eligible candidates shall be prepared on thebasis of the marks obtained in National Eligibility-cum-Entrance Test and candidatesHshall be admitted to Postgraduate Courses from the said merit lists only.”

filling up those seats, at the penultimate hour, the board could not havedecided unilaterally or even permitted colleges unilaterally to withdrawthe NRI quota seats altogether. In support of their arguments two linesof authorities are cited: the first are those judgements starting with P.A.Inamdar[11] which hold that while private educational institutions havethe right to admit students of their choice, that right can be regulated bylaw and that quota for NRI candidates to the extent of 15% ispermissible. The second is the line of reasoning which says, typically inthe context of selection process for recruitment to public posts[12], thatonce the process begins, there cannot be change in the “rules of thegame”, i.e. substantial change in the matrix of consideration whichadversely or irreversibly affects the prospects of candidates who reposedtheir faith and expectations on the integrity of the procedure, and itscontinuance till its completion.22. The arguments of the state, the colleges and candidates (whowere admitted to the seats after the impugned judgment), on the otherhand, is that P.A. Inamdar[13]did not carve out the NRI quota in stone. Inother words, private educational institutions including medical colleges,are not obliged to set apart such quota, and that the observations ofthis court in the said decision only enablethe colleges or universities toavail of that quota to the extent of 15%. In given year, the managementof the private college may choose not to have any quota for NRIcandidates; in the next year, it may choose to have it but not to the extentof 15% and prefer to limit it to 5%; likewise, for the third year, dependingon demand, the private college or institution may provide for 15% NRIquota. It is hence argued that the decision of all private colleges inRajasthan not to avail of the NRI quota reservation or set apart, andrather fill up the entire 15% from amongst those who had opted formanagement seats, was justified. The counsel appearing for the privatecolleges urged that the decision not to offer an NRI quota in medicalcolleges in the state of Rajasthan was voluntarily and consciously taken,given the extraordinary and unusual situation created by the pandemic.The explanation given by the colleges was that in their assessment, NRIquota seats might not have been filled up to the normal expected levelsand in the circumstances, it was more appropriate to merge the seatsearmarked for NRI candidates with the management seats. The

11 Supra n.1

12 K. Manjushree v. State of Andhra Pradesh & Anr.,(2008) 3 SCC 512

13 Supra n.1

Aaccommodation of NRI quota candidates who had opted to be treatedas such, in the admission process was transparent and uniform in that allof them were considered on merits for the management quota seats.Thus, there was no real prejudice suffered by such NRI candidates. Itwas underlined by the candidates admitted pursuant to the impugnedjudgement, that were the clock to be set back and the directions of theBsingle judge affirmed, they would be irreparably prejudiced. It was lastlyargued that the single judge could not have directed the admission of thepetitioners who had approached the High Court, regardless of their merit,even within the NRI quota.

23. It is undoubtedly matter of record that on 17.03.2020, whenCthe board convened the meeting attended by representatives of allparticipating colleges (including private medical colleges offering seatsin the postgraduate medical courses in Rajasthan), the unanimous thinkingwas to offer NRI/Management seats to the extent of 15% of the totaladmission intake. This 15% turned out to be about 22 seats in MGMC.DIn the same meeting, it was unanimously decided that the task of fillingNRI seats would be taken up before filling the management seats; thismeant as corollary, that NRI counselling would be taken up first andafter allocation of seats to suitable NRI candidates, the leftover seatswould be filled by management quota candidates. This was followed bythe submission of forms by NRI candidates for the purpose of verificationEof their documents. When the provisional seat matrix was published on10.04.2020, it did not indicate that those opting for admission exclusivelyas NRI candidates would be considered as belonging to any othercategory. It was only on 11.04.2020 that the private colleges appear tohave sent their final matrix to the board. This matrix, unbeknown to theFNRI candidates, proposed deletion of the NRI quota. In the circumstances,when the final matrix was published for each college detailing the quotasfor individual disciplines, the original earmarking for NRI candidates wasabsent.

24. plain reading of the judgement of this court in Inamdar[14]Greveals that provision for 15% NRI quota was not compulsory; itwas only potential. This is clearly evident from the following passage inthat judgment, which all counsel from either side of the bar, insisted onreading:

NILAY GUPTA v. CHAIRMAN NEET PG MEDICAL & DENTAL ADMISSION/COUNSELLING BOARD 2020 & PRINCIPAL GOVT. DENTAL COLLEGE[S. RAVINDRA BHAT, J.]

“Here itself we are inclined to deal with the question as toseats allocated for Non-Resident Indians (‘NRI’, for short)or NRI seats. It is common knowledge that some of theinstitutions grant admissions to certain number of studentsunder such quota by charging higher amount of fee. Infact, the term ‘NRI’ in relation to admissions is misnomer. Byand large, we have noticed in cases after cases coming tothis Court, neither the students who get admissions under thiscategory nor their parents are NRIs. In effect and reality, underthis category, less meritorious students, but who can affordto bring more money, get admission. During the course ofhearing, it was pointed out that limited number of such seatsshould be made available as the money brought by suchstudents admitted against NRI quota enables the educationalinstitutions to strengthen its level of education and also toenlarge its educational activities. It was also pointed out thatpeople of Indian origin, who have migrated to other countries,have desire to bring back their children to their own countryas they not only get education but also get reunited with Indiancultural ethos by virtue of being here. They also wish themoney which they would be spending elsewhere on educationof their children should rather reach their own motherland.A limited reservation of such seats, not exceeding 15%, inour opinion, may be made available to NRIs depending onthe discretion of the management subject to two conditions.First, such seats should be utilized bona fide by the NRIsonly and for their children or wards. Secondly, within thisquota, the merit should not be given complete go-by. Theamount of money, in whatever form collected from such NRIs,should be utilized for benefiting students such as fromeconomically weaker sections of the society, whom, on well-defined criteria, the educational institution may admit onsubsidized payment of their fee. To prevent misutilisation ofsuch quota or any malpractice referable to NRI quota seats,suitable legislation or regulation needs to be framed. So longas the State does not do it, it will be for the Committeesconstituted pursuant to Islamic Academy’s direction toregulate.”

(emphasis supplied)

ABC

DEF

AClearly, this court had the benefit of past experience with theconcept of NRI quota: witness its skepticism about filling of such seats(in the past) by undeserving and unmerited candidates, to the detrimentof more meritorious students. Therefore, the court indicated limitedquota with some essential controls in the manner of filling up of suchNRI quota seats. These were:B

a) The NRIs, who wish to bring their children to this country notonly for their education but also to get them reunited with theIndian cultural ethos by virtue of being here and to enable theNRIs to expend money, (which they would be spending elsewhereon education of their children) to reach their mother land.

b) Having pointed out the reality behind the incorrect or“misnamed” NRI quota and found substance in the purpose behindallowing such quota, this court favoured limited reservation, notexceeding 15% of sanctioned seats,to be made available for theNRIs, however, depending on the discretion of theDmanagement.

c) This court, however, imposed two conditions for admission underthe NRI quota, firstly, that such seats should be utilized bona fideby NRIs only and for their children or wards and secondly, thatwithin this quota, merit should not be given complete go by.E

25. The four crucial elements in the NRI quota, per Inamdar[15]are: one, the discretion of the management (whether to have the quotaor not); two, the limit (15%); three, that seats should be available forgenuine and bona fide NRI students, and lastly that the quota was tobe filled based on merit.F

26. The board’s notification dated 10.04.2020 with respect to thesequence or calendar of events, for the purpose of admissions to PGcourses in medical colleges in Rajasthan, on which much emphasis wasplaced, reads as follows:

NILAY GUPTA v. CHAIRMAN NEET PG MEDICAL & DENTAL ADMISSION/183COUNSELLING BOARD 2020 & PRINCIPAL GOVT. DENTAL COLLEGE[S. RAVINDRA BHAT, J.]

ABCD

27. Earlier, the break of seats published on 17.03.2020, stated that15% of the total intake in PG medical courses were to be filled by NRI/management quota aspirants; the sequence to be adopted undoubtedlyclarified that in the order of things, the NRI candidates’ applicationswould be considered first for counselling and admissions, and the ‘leftover’ seats would then be filled from amongst merited managementquota applicants, in addition to the 35% management seat candidates.The colleges, however consciously decided not to go-ahead with theNRI quota - decision, the basis of which is explained as the assessmentby such private colleges offering MD courses, that there was likelihoodthat many NRI seats would go unfilled.

28. Given that the decision in TMA Pai Foundation[16]was by alarger bench of 11 judges, and PA Inamdar[17]was judgment deliveredby seven judges, this court is clear that precedentially, those and otherprevious judgements of this court, only declared that as part of the

16 Supra n.317 Supra n.1

Aprivate colleges’ autonomous decision making, they could set apartsome percentage of seats for admission to students of their choice.The Inamdar[18]decision is important, inasmuch as it declared that theset apart (or quota, so to say) for NRIs should be about 15% of theoverall intake. Other decisions of this court[19] have underlined theparamountcy of the NEET requirement as common standard regulatingBmedical courses’ admissions in India, irrespective whether the coursesare offered in publicly owned, state owned or privately owned or managedinstitutions. combined effect of the provisions of the Medical Councilof India Act and regulations with respect to admissions (which havebeen progressively amended in respect of eligibility for admission toCcourses, procedure for admission, etc.) and the decisions of this court, isthat private colleges and institutions which offer such professional andtechnical courses, have some elbow room: they can decide whether, andto what extent, they wish to offer NRI or management quotas (the limitsof which are again defined by either judicial precedents, enacted law orsubordinate legislation). In these circumstances, it is held that theDrespondent management (of MGMC) possessed the discretion to indicatewhether, and to what extent, NRI reservations could be provided. As isevident, there is nothing in PA Inamdar[20] to say that 15% NRI quota isan unqualified and unalterable part of the admission process in postgraduate medical courses. It was, and remains within the discretionaryEauthority of the management of private medical colleges, within theirinternal policy making domain.

29. The impugned judgment, in this court’s opinion, is correct, inthat it held that the single judge could not have directed admission of thecandidates before him. There is body of case law[21] which clarifies

Fthat sans statutory duty, positive direction to do something in specificmanner, cannot be given (“it must be shown that there is statutewhich imposes legal duty and the aggrieved party has legalright under the statute to enforce its performance.”[22]). The NRI

18 Supra n.119 Modern Dental College & Research Centre (supra) and the recent decision in ChristianGMedical College Vellore Association v. Union of India, 2020 SCC OnLine SC 42320 Supra n.1

21 Tirumala Tirupati Devasthanams v. K. Jotheeswara Pillai, (2007) 9 SCC 461; BiharEastern Gangetic Fishermen Coop. Society Ltd. v. Sipahi Singh (1977) 4 SCC 145; K.V.Rajalakshmiah Setty v. State of Mysore, AIR 1967 SC 993.

22 Bihar Eastern Gangetic Fishermen Coop. Society Ltd. v. Sipahi Singh, (1977) 4 SCC145.H

NILAY GUPTA v. CHAIRMAN NEET PG MEDICAL & DENTAL ADMISSION/COUNSELLING BOARD 2020 & PRINCIPAL GOVT. DENTAL COLLEGE[S. RAVINDRA BHAT, J.]

candidates could not assert right to be admitted; furthermore, whilegranting relief, the single judge could at best have directed considerationof the cases of the writ petitioners before him. However, the broadnature of the relief granted resulted in creation of rights which, implicatedparties had not in the first instance, approached the High Court (unlikeDr. Nilay Gupta or Dr. Surmil Sharma), at the cost of third parties whohad by then been given admission based on their merit as managementquota students, another set of individuals who had not professed anygrievance, were given admission, post judgement of the single judge.

30. The preceding observations ought to have been dispositive ofthe present case. Nevertheless, the court is of the opinion that thediscretion of private managements who set up and manage medicalcolleges cannot be left to such an untrammelled degree as to result inunfairness to candidates. Undoubtedly, these private institutions havethe discretion to factor in an NRI or any other permissible quota. Yetthat discretion should be tempered; if the discretion to have such quotais exercised, it should be revised or modified reasonably, and withinreasonable time. This case presents some unusual features in that theadmission calendar appears to have been thrown out of gear on accountof the Covid-19 pandemic. The NEET written test was held in January,and the results were declared on i.e. 31.01.2020. At that stage, and soonthereafter till the end of March, the thinking of the colleges and theboard appears to be that the NRI quota in private medical colleges wouldbe maintained (evident from the minutes of meeting dated 17.03.2020).The rapidity with which the pandemic progressed perhaps generated abroad consensus among private colleges that going ahead with the NRIquota would be inadvisable. This court cannot comment on the wisdomof such thinking as it falls within the exclusive domain of private decision-making. What is striking however is that even when this thinking wasemerging, the original schedule, and the sequence for filling up of theNRI seats was maintained – and even rescheduled. Thus, in terms ofthe board’s notification of 10.04.2020, the NRI students’ documents wereto be verified on 14.04.2020. Apparently, immediately day after thatnotification, on 11.04.2020 to be precise, the private colleges en masseappear to have decided not to proceed with the NRI quota and instead‘merge’ it with the 35% management quota seats, and proceed to fillthem entirely based upon rank based merit of the management quotacandidates arranged in terms of their ranking and performance in theNEET. NRI candidates were to be treated as management quota

Acandidates, and their applications too, considered on the basis of theiroverall merit in that category. Viewed in isolation, this decision is perfectlyvalid; it gives one the impression that NRI students were not prejudiced.Undoubtedly, the decision to abolish the NRI quota was exclusively withinthe scope of the private institutions’ decision-making. Yet what is apparentis that by this time, the NRI students had not only started applying forBcounselling, but had also submitted all their documents for verification todetermine their eligibility for the NRI quota seats, and in sense,committed themselves as candidates for NRI quota seats in Rajasthanfor whatever perceived advantages they could reasonably see in theirfavour. Hence, when the matter stood thus, when the final seat matricesCwere published on 13.04.2020, it acted to the unfair detriment of theseNRI students.

31. Noticeably, the writ proceedings initiated by the two candidates(Dr. Nilay Gupta and Dr. Surmil Sharma) did not claim that it wasrepresentative in character. It only sought to highlight the arbitrariness inDthe admission procedure and premised it largely upon the violation of themandate of this court in PA Inamdar[23]. As held earlier, private medicalcolleges are not obliged to provide for such NRI quota seats to the extentof 15% in any given year, but the peculiarities of this case, which are:the prevailing pandemic, the various steps which impelled the NRI quotacandidates to commit themselves, and the eleventh hour policy changeEbrought about through the final matrix published on 13.04.2020, acted tothe distinct disadvantage of these NRI candidates. It also appears fromthe record that most of the students reconciled themselves to theircandidature being considered on merits at par with the managementquota candidates. Many such NRI students who did not approach theFcourt were given admission in disciplines other than their primarily choices,due to their relative standing in the state merit list of NEET eligiblecandidates.

32. The directions of the single judge injected in an altogetherdifferent dimension to the facts in directing that the writ petitioners beforeGhim be given admission, rather than leaving it to the board. pandora’sbox of fresh claims appears to have been opened up. This resulted in aso-called second round of counselling exclusively meant for NRIcandidates (in the second and third week of July, 2020), resulting in thedrawing up of an NRI quota list, which was then acted upon. The resultantH23 Supra n.1

displacements led to those who had been given admission based uponthe relatively higher merit ranking in the management quota, approachingthe Division Bench with third-party appeals. The Division Bench setaside the single judge’s directions. Another round of admissions topostgraduate seats was given to the third-party appellants. It thereforefalls upon this court to work out the most equitable manner of ensuringthat the least disturbance occurs in the particular circumstances of thiscase.

33. As result of the above discussion, it is evident that the NRIquota is neither sacrosanct, not inviolable in terms of existence in anygiven year, or its extent. However, if medical college or institution or,for that matter, the state regulating authority, such as the board in thepresent case, decide to do away with it, reasonable notice of such adecision should be given to enable those aspiring to such seats to chooseelsewhere, having regard to the prevailing conditions.

34. In the circumstances of this case and to do justice to all theparties, this court is of the opinion that special counselling sessionshould be carried out by the board, confined or restricted to the seats inrespect of which admissions were made pursuant to the single judge’sdirections. In this counselling session, the board should ensure participationof the concerned colleges; the counselling shall be limited one, confinedonly to the number of seats offered and filled as result of the singlejudge’s judgment. Such seats shall be offered to the NRI applicantssolely on the basis of merit; the seats vacated by such merited students(in the other disciplines) shall then be offered to the beneficiaries of thesingle judge’s orders. If for any reason, such students (i.e. lower downin NRI merit, who are offered seats in other disciplines) do not wish totake up the offer, the college concerned shall refund the fee collectedfrom such student. It is also made clear that this special round ofcounselling should not disturb those admissions, where students hadaccepted the deletion of the NRI quota, and were accommodated in themanagement quota, unless they had approached the court at the earliestopportunity, in April 2020, before the judgment of the learned single judge.The entire process shall be completed within week from the date ofthis judgment.

35. This court clarifies that the validity of deletion of the NRIquota altogether, by colleges, and their “merger” as part of the largermanagement quota, was not questioned as general proposition; the

Apremise on which the parties argued their cases was that the NRI quotais inflexible and cannot be altered. The time within which an institutiondecides to do away with the quota during an ongoing admission processhas not been prescribed, inasmuch as the observations as to unfairnessin the nature of the deletion is in the specific circumstances of this case.Likewise, the directions in the previous paragraph are with regard to theBcircumstances of this case, and to do complete justice to all parties.

36. The appeals and pending applications are disposed of in theabove terms.

CKalpana K. Tripathy

Matters disposed of.