NIMS University v. Union of India

1 In these proceedings under Article 32 of the Constitution, the petitioners seek directions (a) for the lowering of the cut off percentile for admission to Super Specialty courses; and (ii) to the Medical Counselling Committee (MCC) to conduct a mop up and stray vacancy round of the NEET - Super Specialty counselling to fill up seats which are vacant for the DM/MCh courses. 2022 INSC 537

2 On 5 April 2018, Gazette Notification No MCI-19(I)/2018-Med./100818 was issued by the then Medical Council of India in the following terms: “In order to be eligible for admission to Postgraduate Course for an academic year, it shall be necessary for a candidate to obtain minimum of marks at 50th percentile in the ‘National Eligibility-Cum-Entrance Test for Postgraduate courses’ held for the said academic year. However, in respect of candidates belonging to Scheduled Castes, Scheduled Tribes, and Other Backward Classes, the minimum marks shall be at 40th percentile. In respect of candidates with benchmark disabilities specified under the Rights of Persons with Disabilities Act 2016, the minimum marks shall be at 45th percentile for General Category and 40th percentile for SC/ST/OBC. The percentile shall be determined on the basis of highest marks secured in the All India Common merit list in National Eligibilitycum-Entrance Test for Postgraduate courses. Provided when sufficient number of candidates in the respective categories fail to secure minimum marks as prescribed in National Eligibility-cum-Entrances Test held for any academic year for admission to Postgraduate Courses, the Central Government in consultation with Medical Council of India may at its discretion lower the minimum marks required for admission to Post Graduate Course for candidates belonging to respective categories and marks so lowered by the Central Government shall be applicable for the academic year only.” 3 The respondents have declined to exercise the power under the above proviso to reduce the eligibility percentile below 50 for the current year. This has resulted in the invocation of the jurisdiction under Article 32.

4 Mr P S Patwalia, senior counsel appearing on behalf of the petitioners submitted that 940 Super Specialty seats are vacant for academic year 2021-2022 and that it will be a colossal waste of scarce resources if these seats are not filled up. Moreover, it was submitted that during the previous academic years, 2019-2020 and 2020-2021, the cut off percentile which was initially fixed at 50 was reduced to 30 (for 2019-2020) and 45 (for 2020- 2021). Moreover, it has been submitted that the cut off percentile has been reduced in the case of admissions in respect of post graduate medical courses and hence there is no reason why a distinction should be made for Super Specialty courses.

5 Ms Aishwarya Bhati, Additional Solicitor General has tendered a note on record. The note contains the following comparative tables: “For Academic Year 2019-20 Total Seats Percentile Eligible candidates Vacant Seats 3183 50 10,037 809 3183 30 11,930 537 For Academic Year 2020-21 3693 50 10,359 916 3693 45 11,149 825 For Academic Year 2021-22 4691 50 9850 940 6 The above table indicates that during 2019-2020, the eligibility percentile of 50 was reduced to 30 as a result of which the number of vacant seats came down by 272 from 809 to 537. For 2020-2021, the percentile was reduced from 50 to 45, as a result of which the number of vacancies reduced from the original 916 seats to 825. For the current academic year 2021-2022, the percentile has been maintained at 50 for Super Specialty courses resulting in 940 vacant seats. The table is only a broad indication because the percentile was reduced for the general category and for reserved seats to a differing extent.

7 The note which has been submitted by the Union Government indicates that:

(i) A major part of the seats which have remained vacant is in subjects such as Cardiology, Pediatric surgery, Neurology and Nephrology, where seats do remain vacant as a matter of contemporary experience;

(ii) For the current year 2021-2022, 13,000 candidates appeared for the

NEET - Super Specialty examination, out of which 9850 candidates were eligible for 4691 seats;

(iii) A meeting was convened by the Ministry of Health and Family Welfare on 4 May 2022 comprising of other stake holders and after considering whether a reduction in the percentile should be made, it was decided against doing so since a lowering of the cut off in the NEET - Super Specialty examination would lead to a compromising of the standards; and

(iv) A sufficient number of candidates was available for undertaking the counselling for vacant seats and the decision not to reduce the percentile is based on the rationale of not compromising on merit. Doctors have to deal with life and death situations and merit cannot be disregarded in the Super Specialty courses.

8 Mr P S Patwalia, senior counsel, in the course of his submissions has relied upon the earlier decision of a two-Judge Bench of this Court in the case of Harshit Agarwal and Others v Union of India and Others[1]. This decision has been recently considered by this Court in Neppali Sai Vikash and Others vs Union of India and Others[2]:

9 The question as to whether the percentile should be reduced is a matter of academic policy. The reasons which have weighed with the Ministry of Health and Family Welfare in declining to reduce the percentile cannot be regarded as extraneous or arbitrary. Super specialty courses cannot be equated with post graduate courses or for that matter with the percentile fixed for under graduate admission. In the circumstances, it is not possible for this Court to entertain the request of the petitioner by directing a reduction in the percentile. The Court cannot be unmindful of the fact that Super Specialty courses are at the apex of the academic spectrum. If a considered decision is taken not to lower standards by reducing the percentile fixed for eligibility, such a decision cannot be faulted. The reasons furnished are not extraneous or arbitrary.