DR VISHAL DAHIYA AND ORS v. THE MEDICAL COUNSELLING COMMITTEE MCC & ANR.

23. Mr. Singh, further places reliance on clause 6.[6] of the Information Bulletin and Counselling Scheme issued by the MCC in the first week of October, 2021 to urge that the policy and scheme for admission was mentioned in clear terms in the bulletin. Clause 6.[6] thereof reads as under: “6.[6] CENTRAL INSTITUTES- VMMC & SJH, ABVIMS & RML, ESIC, BASAIDARAPUR 50% Seats will be contributed by the Central Institutes (VMMC & SJH, ABVIMS & RML, ESIC, Basaidarapur) to All India Quota. For the remaining 50% seats, candidates who have completed their MBBS/BDS from I.P. University (VMMC & SJH; ABVIMS & RML; Dr. Baba Saheb Ambedkar Medical College & Hospital, New Delhi; Army College of Medical Sciences, Delhi; North Delhi Municipal Corporation (Medical College) Hindu Rao Hospital) are eligible for Internal seats of 50% in Central Institutes (VMMC & SJH, ABVIMS & RML, ESIC, Basaidarapur). Reservation Policy:  The reservation policy of the Central Government is followed:  S.C. – 15 %  S.T. – 7.[5] %  O.B.C.- (Non-Creamy Layer) as per the Central OBC list- 27%  EWS- as per Central Government norms- 10%  PwD- Horizontal Reservation as per NMC norms- 5%  Reservation of seats under PWD Category has been increased from 3% to 5% in AIQ and the 21 Benchmark Disabilities as envisaged under the regulations of Rights of Persons with Disabilities Act 2016 and as per NMC norms. For range of disabilities included, please see Annexure '1'.

CENTRAL INSTITUTES VMMC & SJH, ABVIMS & RML, ESIC, BASAIDARAPUR 50% AIQ 50% internal seats  Candidates who want to avail 5% PwD reservation in PG seats of Govt. /Central medical institutions should obtain Disability certificate as per 21 Benchmark Disabilities given under RPWD Act 2016, from the designated disability centres as per the list enclosed as

24. He further submits that the admissions on the basis of the Delhi OBC list will necessarily amount to reservation on the basis of the domicile of the candidates, which is not permissible in terms of the decision of the Apex Court in Dr. Pradeep Jain v Union of India 1984 (3) SCC 654 followed by the decision in Nikhil Himtahni v. State of Uttrakhand & Ors. even though the issue as to whether resident/domicile based reservation is permissible has been referred to a larger bench in Dr. Tanvi Behl v. Shrey Goel and Ors. 2020 13 SCC 675 the legal position, as on date, is that no such reservation is permissible.

25. In response to the second issue raised by the petitioners, Mr. Singh by drawing my attention to paragraph 6.[6] of the Information Bulletin and Counselling Scheme issued by the MCC, submits that right from 03.10.2021, when the brochure was issued, all candidates were aware that the VMMC and ABVIMS are central institutes, where the central OBC list will be applicable. He submits that once these institutes are fully funded by the central government, they would qualify as central educational institutes in terms of Section 2(d)(iv) of the CEI Act, 2006. Without prejudice to his submission that the two institutes are central education institutes, he submits, that even otherwise once the institutes are completely governed and funded by the central government, it is open for the central government to apply the central OBC list to these institutes. The petitioners’ plea that the central government derives its power to provide for reservation and the manner in which it should be provided only under the CEI Act, 2006 is wholly misplaced. By placing reliance on the observations of the Apex Court in paras 30 to 51 of Neil Aurelio Nunes(supra), he submits that the central government has the power to provide for reservation in terms of the Articles 14, 15 & 16 of the Constitution of India.

26. He further contends that it is not as if the petitioners have become ineligible on account of this clarification as they were already granted an opportunity to change their category from OBC to unreserved, which opportunity they have all availed successfully. He, therefore, prays that in the light of his submissions, the present writ petition be dismissed.

27. In support of the stand taken by the respondent no.1/MCC, learned counsel for respondent no.2, Ms. Anita Sahni, and Dr. Charu Mathur, learned counsel for the interveners, jointly submit that they agree with the stand taken by the respondent no. 1/MCC, insofar as it relates to the applicability of the reservation policy, that there has been no last minute change in the Admission and Counselling Bulletin as the same has been made in accordance with the General Admissions Brochure issued by the respondent no.2/GGSIPU. Dr. Mathur, who is representing the candidates from the Central OBC list, further submits that the writ petition be dismissed in view of the fact that the relief sought in the present petition is akin to demanding preferential treatment towards the candidates from the Delhi OBC list.

28. Having considered the submissions of the parties and perused the record, it would be appropriate to, at the outset, note the impugned notice dated 10.01.2022, published on the MCC website on 12.01.2022, whereby the respondents have clarified the NEET-PG Counselling Scheme 2021. The same reads as under:- “Ref.U-12021/06/2021-MEC Dated: 10-01-2022 NOTICE Urgent Attention Candidates/Institutions of NEET-PG: The Counselling for NEET-PG is scheduled to commence from 12/01/2022. However, the following changes/modifications in the counselling scheme will be implemented from the academic year 2021- 22: S.N o. NEET-PG Counselling up to NEET-PG Counselling 2021 onwards

1. 2 rounds of AIQ counselling AIQ Round 1 AIQ Round 2 Seats reverted back to the respective States after completion of round 2 of AIQ. 4 rounds of AIQ counselling AIQ Round 1 AIQ Round 2 AIQ Mop-up Round AIQ Stray Vacancy Round No seat will be reverted back to the respective States after completion of

2. Unfilled NRI/Muslim Minority/Jain Minority seats are reverted to the Deemed Universities after completion of Mop-Up Round for conduction of Stray Vacancy Round by Deemed Universities. Unfilled NRI/Muslim Minority/Jain Minority seats to be converted to Indian National seats after exhaustion of all the eligible NRI/Muslim Minority/Jain Minority Candidates during the Mop-Up Round before reverting it back to the respective Deemed University.

3. Reservation Policy of AIQ: S.C.- 15% Reservation Policy of AIQ for Central Institutes/University as S.T.- 7.5% O.B.C.- (Non-Creamy Layer) as per the Central OBC list- 27% (Only in Central Institutes/University) EWS- as per Central Government norms- 10% (Only Institutes/University) PwD- Horizontal NMC norms- 5% well as State contributed seats: S.C.- 15% S.T.- 7.5% O.B.C.- (Non-Creamy Layer) as per the Central OBC list- 27% EWS- as per Central Government norms- 10% PwD- Horizontal Reservation as per NMC norms- 5%

29. As noted hereinabove, the first and foremost grievance of the petitioners is that the respondents have, at the last minute, "changed the rules of the game", thereby excluding them from being considered against the OBC reservation even in the 'Institutional Preference Quota' seats. It has been urged that the bulletin issued by the respondent no. 1 on 03.10.2021, clearly provides in Clause No. 6.5.[3] that eligibility for internal seats in Central Institutes (VMMC & SJH, ABVIMS & RML, ESIC, Basaidarapur) would be as per their admission brochure, which position remained unchanged when the brochure was amended on 10.01.2022. It was only in the evening of 12.01.2022, that this position was sought to be changed alongwith the answer to FAQ No.50. It has therefore, been contended that this last minute change of the eligibility criteria for availing the OBC reservation was impermissible, for which reliance has been placed on Ankita Chaudhary (supra).

30. The petitioners have also vehemently urged that once in terms of the clause 6.5.[3] of the Bulletin issued by respondent no.1 on 03.10.2021, eligibility conditions were to be determined as per the admission brochure of the institute, they were all along made to believe that as per past practice, OBC reservation against institutional seats in VMMC & SJH, ABVIMS & RML, ESIC, Basaidarapur would be as per the Delhi OBC list and not as per the Central OBC list, which was applicable only to AIQ seats. In order to appreciate this plea, it would be necessary to refer to Clause 6.1.[4] of the said brochure which besides clarifying that the reservation in the OBC category was not applicable at the Masters and Post Graduate level, also provided that for central government institutions, OBC reservation would be as per the Central OBC List. The said Clause reads as under:- “6.1.[4] Other Backward Castes 27% seats are reserved for Delhi OBC Category belonging to the list of OBC castes in Delhi. The reservation will be available only in the University Schools of Studies and other Government Institutions. Students will be admitted in this category on the submission of a certificate to this effect from the Competent Authority of the Government of NCT of Delhi. Certificate issued by Govt. of India or any state government will not be accepted under any circumstances. The reservation for OBC Category is only for candidates who are from Delhi Region. A certificate issued by a Competent Authority of Delhi to an individual on the basis of Caste Certificate of his/her parents from another state will be accepted for claiming a seat under OBC Category if and only if the caste is in the list of notified OBC list by Govt. of NCT of Delhi. Reservation in OBC Category is not applicable for Master's Level and Postgraduate Diploma programmes. The non-creamy layer certificate should be issued after 31st March, 2021. It is mandatory to submit the Non-Creamy Layer Certificate issued after 31st March 2021 for claiming Reservation against OBC Category. However for Central Government Institutions, seat allocation is on all India basis among the category of seats including OBC and for such reservation the certificate issued should be as per the central list of OBC and the non-creamy layer certificate should be issued after 31st March, 2021.” (emphasis supplied) Reference may also be made to Clause 7.[2] which provided that counselling to both AIQ and State quota would be by respondent no. 1 MCC. The said Clause reads as under:- “7.[2] PGMC (CET Code 102)

1. The candidates must qualify NEET – PG for admissions to the Academic Session.

2. Out of total seats that shall be available for admissions, 50% seats are reserved for All India Quota, to be filled up on the basis of All India Entrance Test conducted by an institution on behalf of DGHS, Government of India.

3. The other 50% seats will be reserved for MBBS graduates of Guru Gobind Singh Indraprastha University. Reservation will be applicable in these seats as per policy of University as applicable from time to time for Scheduled Caste (SC), Scheduled Tribe (ST) and OBC candidates. For reservation to Physically Challenged (PWD) candidates, guidelines of Medical Council of India will be applicable. Earlier 50% quota was called 'State Quota', Since these 50% seats are exclusively for MBBS graduates of GGSIP University, hence these 50% seats will be termed as 'GGSIP University Quota' (State Quota).

4. Any change in reservation policy, if taken by the Government of India/NCT of Delhi or the University, the counselling will be conducted in accordance to that.

5. Counselling for all the seats of State Quota & All India Quota shall be conducted by Medical counseling Committee, DGHS, Govt. of India, Delhi”

31. A perusal of the aforesaid Clause 6.1.[4] from the Information Bulletin issued by respondent no. 2, shows that while it provided for 27% reservation for OBC candidates from the Delhi OBC list, it was made clear the same would be applicable only in University Schools of Studies & other Government Institutes. However, it is important to note that the class of Central Government Institutes was, placed in a different category; by specifically providing that for availing the OBC reservation in these institutes, the candidates should possess a certificate as per the Central OBC list. The bulletin issued by respondent no. 1 also categorically described VMMC & SJH, ABVIMS & RML, ESIC, Basaidarapur as Central Institutes which position, the petitioners never challenged. In this regard, reference may be made to FAQ no. 54, wherein this position was clarified, the same reads as under:

32. By drawing my attention to Section 2(d) of the CEI Act, 2006, Mr. Venugopal has vehemently urged that the VMMC & SJH, ABVIMS & RML, ESIC, Basaidarapur could, by no stretch of imagination, qualify as a Central Educational Institution, as despite receiving aid from the Central Government, it continued to be affiliated to a state university and therefore, did not fulfil the conditions envisaged under Clause (iv) of Section 2(d) of the CEI Act. By placing reliance on V. Anto (supra) and Ram Awtar Manda (Supra) it has been urged that unless both the conditions of receiving aid and affiliation with a central university are fulfilled, the institute cannot be treated as Central Educational Institution. In order to appreciate this plea, Section 2(d) of the CEI Act, 2006 may be noted and the same reads as under: "2(d) “Central Educational Institution” means—

(i) a university established or incorporated by or under a

(ii) an institution of national importance set up by an Act of Parliament;

(iii) an institution, declared as a deemed University under section 3 of the University Grants Commission Act, 1956 (3 of 1956) and maintained by or receiving aid from the Central Government;

(iv) an institution maintained by or receiving aid from the

Central Government, whether directly or indirectly, and affiliated to an institution referred to in clause (i) or clause (ii), or a constituent unit of an institution referred to in clause (iii);

(v) an educational institution set up by the Central

33. In my view, once it is an admitted position that VMMC & SJH, ABVIMS & RML, ESIC, Basaidarapur continue to be affiliated to respondent no. 2, a state university, the petitioners are justified in contending that the same cannot be said to be Central Educational Institutions (hereinafter referred to as 'CEI') under the CEI Act, 2006. The issue, however, is whether merely because VMMC & SJH, ABVIMS & RML, ESIC, Basaidarapur do not qualify as CEI under the CEI Act, which makes it mandatory for the Central Government to provide 27% reservation for OBC candidates, can it denude the Central Government of its power to decide OBC list to use, the Central or the State list? For an answer to this question it would be necessary to examine the objective of the CEI Act, which was conceptualized to ensure provision of a certain percentage of reservation in CEIs. The same reads as under: "An Act to provide for the reservation in admission of the students belonging to the Scheduled Castes, the Scheduled Tribes and Other Backwards Classes of citizens in certain Central Educational Institutions established, maintained or aided by the Central Government, and for matters connected therewith or incidental thereto." Upon a perusal of the aforesaid, it is evident that the CEI Act merely provides for a mandatory reservation in the central educational institutes and does not in any manner envisage interference with the constitutional power of the Central Government to make reservations for admissions to any institute. The answer therefore, to the question hereinabove has to be a clear ‘NO’. Merely because institutes such as VMMC and ABVIMS do not fall under the ambit of the term ‘central educational institutions’ as defined in 2 (d) cannot imply that the central government does not have the power to provide for reservations in these institutes. Similarly, it cannot be said that the central government does not have the power to prescribe that only the central OBC list would be applicable in these institutes. In this regard, reference may be made to the observations of the Apex Court in Paragraph 41 of its decision in Neil Aurelio Nunes and others (supra), wherein the Court dealt with the constitutional power of the State to make reservations in educational institutions. The same reads as under:-

34. In the present case, both the institutions in question, have all along been described as Central Institutes both by the respondent no. 1 and respondent no. 2, this was made clear as early as on 10.06.2021 when the respondent no. 2 issued its Information Bulletin, and was reiterated in the Information Brochure issued by respondent no.1 on 03.10.2021. It is also undisputed that these institutes are funded and maintained by the Central Government. In my view, this position that in all Central Institutions, admissions against seats reserved for the OBC was meant to be only for those in the Central OBC list was, therefore, crystal clear to everyone right from the beginning. Moreover, all the candidates were also well aware that in all central institutes including the VMMC & SJH, ABVIMS & RML, ESIC, BASAIDARAPUR, it was only the central OBC list which was being followed for Under Graduate courses from NEET-PG 2020 itself. At the same time, it cannot be denied that FAQ no. 50 as initially notified on 03.10.2021, and thereafter, on 10.01.2022 sought to convey otherwise. Undoubtedly, the impression sought to be given was that the admission against OBC seats in the institutional preference seats would be as per the Delhi OBC list; this was however, changed on 12.01.2022. While the respondent no. 1 claims it was a mistake which was corrected, the petitioners contend otherwise. The changes in FAQ no. 50 are mentioned hereinbelow: NEET-PG Information Bulletin & Counselling Scheme on Respondent No.1’s website before 13.1.2022 NEET-PG Information Bulletin & Counselling Scheme on Respondent No.1’s website on 13.1.2022

University? Ans: There will be provision for OBC candidates of state quota of IP University to exercise their right of OBC reservation in IP University seats while they will be treated as UR (General Category) in All India Quota.

Institutes of IP University? Ans: The rules of Central Institutes/University and the OBC list as per Central Rules will apply.

35. Though, the petitioners are justified in urging that they were misled by answer to FAQ no. 50, which was changed only on 12.01.2022 to exclude them, the fact remains that all other clauses, of both the brochure of respondent no. 1, and the Information Bulletin of respondent no. 2 clearly indicated that in these two institutes, described as Central Institutes, it was the Central OBC List which would be applicable, both for the AIQ and Institutional seats. The brochure and bulletin have to be read as a whole and compositely; merely because there was an error in the answer to one of the many FAQs, which error too was amended before the petitioners were to undertake their choice filling, cannot unfortunately, come to their aid.

36. In fact since, the respondent no.1 has also not seriously disputed the position that some last minute changes were introduced in its brochure, and therefore the petitioners are justified in urging that the position that candidates in Delhi OBC list will not be eligible even for the institutional quota seats of respondent no. 2 became clear only on 12.01.2022. This clarification was, however, issued before the petitioners were asked to exercise their choices on 13.01.2022 and not after counselling had commenced, as was sought to be urged by Mr. Venugopal.

37. Thus, despite some clarifications having been issued by the respondent no. 1 at the last minute, I am of the considered view, that upon a holistic reading of the Bulletin issued by respondent no.1 and the Brochure issued by respondent no.2, it is apparent that the respondents’ intention to rely only on the Central OBC list for reservation even for institutional preference seats, was made abundantly clear from day one itself. It can therefore, not be said that there was any change in the ‘rules of the game’ after it had begun. At best, it was a case where a clarification was issued belatedly, yet the same was also issued before the counselling was to begin on 13.01.2022. This, when viewed together with the fact that all the candidates including the petitioners, were given an option to change to the Un-Reserved Category, which option they admittedly exercised, leads to only one conclusion, that neither were the petitioners taken by surprise nor has any prejudice been caused to them on account of the impugned notification. Moreover, the petitioners’ alternative prayer that they be given an opportunity to apply in the Un-Reserved category has already been granted and about 1,200 similarly situated candidates have exercised this option; in fact, a number of petitioners’ have been allotted seats in the Un-Reserved category and therefore, on this count also the petition is liable to be rejected.

38. In my considered opinion, the decision of this Court in Ankita Choudhary (supra) upon which the petitioners have placed heavy reliance to contend that the ‘rules of the game’ cannot be changed after the select list is published is, not applicable to the facts of the present case; in that case, a policy change to exclude central categories was brought in at the last minute. In the present case, there is no last minute change but only a last minute clarification of an inadvertent error. The petitioners have also not denied that this policy to use only the Central OBC list for admission to the Under Graduate courses in these two institutes has been in vogue since the last academic year. This decision is therefore clearly distinguishable and does not forward the case of the petitioners.

39. For the reasons stated hereinabove, I do not deem it necessary to deal with the submissions of the respondent that granting the relief sought in the present petition would result indirectly in reservations based on the domicile of candidates, which, it has been contended is not permissible in view of the various decisions of the Apex Court.

40. For the reasons stated above, the writ petition is dismissed with no orders as to costs.

JUDGE FEBURARY 15, 2022 sr/acm