NEET Admissions : Supreme Court Asks Kerala To Carry Out Fresh Verification Of NRI Claims Of 38 Students

The bench of Justices DY Chandrachud and Hima Kohli issued the directions to ensure that the proper verification is carried out with regards to the admission of the NRI candidates.

The bench was considering a Special Leave Petition assailing Kerala High Court's order dated April 8, 2022 which dismissed the writ appeal preferred by Kerala Private Medical College Management Association ("KPMCMA") and upholding single judge's order of refusing to grant time.

The Supreme Court in the order passed yesterday stated :

"Out of the 38 petitioners who claim admission as NRI, it is common ground that 7 candidates were in the NRI category list which was originally published by the CCE on January 31, 2022. As for the rest, the submission of the state is that: 12 candidates lack proper documentation and 19 had not claimed NRI status.

As regards the seven candidates, who were in the original list of NRI candidates, Mr Jaideep Gupta, senior counsel appearing for the respondents stated that though four of them had registered their options for NRI seats in self-financing colleges, they did not furnish their options for the mop up round after the issuance of the notification dated 26 March 2022.

In order to controvert this submission, Mr Huzefa Ahmadi, senior counsel appearing on behalf of the petitioners has drawn the attention of the Court to the fact that the option in regard to petitioner No 2 was uploaded on 28 March 2022. Senior counsel states that similar options are available in respect of each of the other candidates forming a part of the seven candidates referred to above and perhaps in respect of others. Mr Ahmadi states that he will furnish the necessary material in support to Mr Jaideep Gupta so that it can be believed.

In order to ensure that a proper verification is carried out, we request Mr Jaideep Gupta, senior counsel to ensure that a fresh exercise of verification is carried out in regard to the status of these candidates who claimed as NRI candidates and to place the result of verification on the record in the form of an affidavit. The affidavit shall be exchanged on or before the next date of listing".

The petitions will be heard next on May 4.

In the impugned judgment, the High Court division bench bench headed by Chief Justice S Manikumar had said,

"Since it has been pointed out that the last date for admission for MBBS course is today 08.04.2022, as per the directions issued by the National Medical Commission, the appellants cannot be given liberty to grant time for fresh registration in NRI quota. We find that sufficient time was granted to the NRI quota candidates to exercise their option. Ext. P2 list was published as early as on 24.12.2021. Therefore, the same can only mean that no eligible NRI candidate is available to exercise option. We are not inclined to grant any relief to the appellants."

Submissions Of Counsels

NRI Seats Are Inviolable, Sacrosanct & Cannot Be Touched; Kerala Has No Power To Touch These Seats: Senior Advocate Dushyant Dave

Appearing for the Kerala Private Medical College Management Association ("KPMCMA"), Senior Advocate Dushyant Dave commenced his submissions by contending the right to establish medical institutions and the right to admit students has been considered by the Top Court in various judgements and that there has been cap only with regards to the capitation fees.

He also referred to the Top Court's judgment in TMA Pai Foundation wherein the High Court while dealing with the sustainability of institutions with regards to the fees had observed that institutions will have the right to admit NRI students upto 10-15%.

Against this backdrop, Senior Counsel said, "Rationale behind this was important... that by charging the fees institutions will be able to subsidize the students coming from reserved categories and that was the rationale. Now this has been held that these seats are inviolable, sacrosanct and cannot be touched. Kerala has no power to touch these seats. It is the law declared by this court which governs the NRI seats."

He further said, "Clause 5.5.4 of the prospectus says that in case any quota is left unavailable, it will go to the prohibited category and the special category is the army."

"Why did you flip the quota? These seats provide sustainability to the institutions," Justice DY Chandrachud asked Senior Advocate Jaideep Gupta, appearing for the State of Kerala.

Responding to the remarks posed by the bench, Senior Advocate Jaideep Gupta said that the proposition was coming only now.

Urging the Court to even hear the National Medical Commission, he further said, "Algorithm which the MCC has put this category into the special reservation & provides for the flip. If this question has to be gone into, NMC should be heard. On mop up day when no applicants were left, it would either go flipped or waste and now they have filed the applications to allow candidates in the NRI Category. There were no applicants available & they are asking extension of time beyond the time which is of 6 months"

Objecting to the submissions made by Kerala's Counsel, Dave said, "The law says that you can't touch it. They didn't allow students to operate the NRI option. A CBI inquiry should be ordered."

Responding to the submissions made by Dave, Senior Advocate Jaideep Gupta submitted that the petitioners pursuant to the closure of admissions were asking to reopen the same at the stage of Mop Up.

"Some of them now want to change over the NRI Category whereas the time for doing that was in 2021. 638 persons had shown their documents and had come in the category and now 638 seats have been exhausted now," he further submitted.

Referring to the circular issued by DGHS on March 11, 2022 wherein the DGHS had given an option to the candidates who want to convert were allowed to do so, Dave said, "State is misguiding your lordships completely & state is playing fraud upon the High Court. Even if the time limit is over, if they are contrary to the rules we will set aside the admissions- there is a judgment. Why should NRI students be deprived of their right to be considered? Facts are wrong."

NRI Quota Is Creation Of Supreme Court & The Fees By NRI Is Subsumed For Other Category Candidates But Its Not Of Special & Mandatory Reservation: Senior Advocate Huzefa Ahmadi

Appearing for the students, Senior Advocate Huzefa Ahmadi submitted that even as per the status report submitted by the State, 7 students appeared in the list who were claiming admission as NRI.

"Seats were 385 & candidates were 614. Even according to them, 7 students were available. Even they admit that there were actually 7 to the list they were available. For whatever reasons which were not far to see they wanted to accommodate the 45 from the state category. That's how they have acted. This technical argument should not come in my way with regards to the last date," Ahmadi submitted.

He further contended that clause 5.5.4 of the prospectus would be applicable only if the seats were unavailed and that the clause pertained to only the special and mandatory reservation.

Referring to the various heads mentioned under special category wherein various heads were Ex Servicemen, dependent of defense personnel, serving defense personnel, CAPF, Jewish Quota, Ahmadai said that NRI were not clearly covered by special reservation.

Referring to various heads mentioned under the mandatory reservations some of them being, State merit, EWS in General Category, SEBC etc, Ahmadi said, "NRI is clearly not within either special or mandatory reservation and thus on reliance by the HC on 5.5.4 is ex facie erroneous. NRI Quota is creation of SC & the fees by NRI is subsumed for other category candidates but its not of special & mandatory reservation. This clause only comes in when they are unavailed."

"One thing is very clear that NRI is within the rubric of "special reservation". It's only if the seat is unavaialed," Justice Chandrachud remarked at this juncture.

Senior Advocate Hufeza Ahmadi also drew Court's attention that the option with regards to petitioner number 2 was uploaded on March 28, 2022 and that similar options are there in regards to each of the other candidates forming the part of the candidates listed above.

He also drew Court's attention to the document wherein the candidates who wished to register options in mop up allotment had to pay the registration fees for entrance examination.

"Fresh options were given, these people paid their fees of Rs 1 lakh and they were very much there in the list. Now see the cut off dates which is very important. Till 30th you could apply. Now make a note that the last date for admissions was extended by them to 28/04/2022 by a notification. State is now saying that we flip those and now whatever has happened cant be reverted back," he further submitted.

Association Wanted Us To Reopen The Process Altogether To Bring Them In Line & This Was Done Long After The Date Of Doing So Was Over: Senior Advocate Jaideep Gupta

Appearing for the State of Kerala, Senior Advocate Jaideep Gupta submitted that out of the 38 petitioners who claim admission as NRI it was common ground that 7 candidates were in the NRI category list which was originally published by the CCE on January 31, 2022. He further submitted that 12 candidates lacked proper documentation and 19 had not claimed NRI status. It was also his contention that the 7 candidates who were in the original list, though 4 of them had registered their option for NRI seats in self financing colleges they did not furnish the options of the mop up.

"If they wanted to register for a mop up round they had to register fresh and none of them registered for the fresh mop up. We have to give fresh options for mop up and that is why fresh payment has to be made. These 4 persons who were in the list had not exercised their option in the mop up counseling. 2nd phase allotment also confirms that online option confirmation is mandatory, otherwise the counselor does not know that you are still in the list. They have to register their option for a particular college. None had given any option in the NRI seats in the mop up round and it was flipped only because at that stage, otherwise the seat would go to waste. Those who did not make it fell into 2 categories, 12 who did not have documents & 19 who did not claim seats at any stage. As far as they are concerned, the association wanted us to reopen the process altogether to bring them in line and this was done long after the date of doing so was over," Gupta further submitted.

"We followed your whole line of argument that these 7 were registered & were in the list and the option list contained both the potions but the prob arises much later because out of the 38, 7 came in the list and out of those 7 4 registered their options in self financing colleges initially but they did not register for mip up now & we have nothing to doubt the veracity for what they are saying," Justice DY Chandrachud said to Senior Advocate Ahmadi.

 "One petitioner uploaded on March 28- they are not in the wrong place," submitted Ahmadi.

"This can be uploaded at any stage but if its for that college or not, let me check up. They did not apply at Mop Up stage for this college. I'll check," Gupta replied.

Accordingly the bench at this juncture asked the State of Kerala to carry out an exercise afresh and file a status report clarifying the case of these 38 students who claimed NRI admission.

"We are impressed with your submissions that if you didn't flip these, the same could have gone to waste. File a short affidavit and annex the same. Come back with us on Wednesday," the bench said.

Case Details : Maha P and others versus State of Kerala and others | SLP(c)  7293/2022

Click here to read/download the order