2500 PG Seats Removed From 'Just Merit' Due To OBC Quota In NEET-AIQ : Petitioners To Supreme Court

Challenging the Centre's notification of granting 27% reservation for OBC  in 50% All India Quota ("All India Quota") seats in admission to medical courses, Senior Advocate Shyam Divan told Supreme Court that the Centre's decision to implement 27% reservation in AIQ had resulted in the removal of 2500 Post Graduate seats from the realm of "just merit".

"Society requires doctors who have enormous merit. During the pandemic, we have seen the services that they rendered. If we talk about the difference, 2500 PG seats are not available now. If we have to remove 2500 seats from "just merit", this is a factor which should weigh with the court," submitted Senior Advocate Shyam Divan before the bench of Justices DY Chandrachud, Vikram Nath and BV Nagarathna.

Senior Advocate Shyam Divan represented the petitioner in the petition by Dr Madhura Kavishwar filed through Advocate Vivek Singh wherein the petitioners had challenged the 27% reservation for OBC in admission to Postgraduate medical courses.

The notification was challenged on the ground that it was in direct contravention of the Top Court's judgement in Union of India v R Rajeshwaran & Ors (2003) 9 SCC 294 and Union of India v K Jayakumar & Anr (2008) 17 SCC 478 in which the Court had held that requirement of the reservation should not apply to seats of All India Quota.

To draw the Court's attention to the effect and impact of covering 2500 Post Graduate Seats, Senior Counsel commenced his submissions by referring to the press note dated July 29, 2021 as per which 27% seats were reserved for OBC in AIQ. Divan firstly argued that the 2500 Post Graduate Medical Seats which were for open general category were sucked out and were no longer available to them. "Around 1500 OBC students in MBBS and 2500 in postgraduation will be benefitted through this reservation", Divan read out the press note.

He also submitted that Impugned Notice, which was published after 5 months after the exam dates were initially announced(and later postponed due to COVID second wave), changed the rules of the game long after it had begun. He pointed out that had it not been due to the postponement due to the COVID Second Wave, the exams would have got over in April. So, the decision to introduce OCB quota after the exam dates were announced amounted to "changing the rules of the game after it has begun".

To aver that the impugned notice was unconstitutional and contrary to the settled law, Senior Counsel referred to the judgement in Dr. Pradeep Jain v. Union of India [(1984) 3 SCC 654] where 3 judge bench of this Court had devised 50% All India Quota as a method to provide for admission in PG medical courses solely on the basis of merit and submitted that 50% AIQ was a creature of this court.

Laying the genesis of the same, Senior Counsel further submitted that "This arose due to the domicile quota. The Court had concluded that domiciliary preference would be 50% and 50% would be All India."

Relying on the Top Court's judgement in Abhay Nath v University of Delhi [(2009) 17 SCC 705] which dealt with grant of reservations for the SC/ST category in seats reserved in the 50% All India Quota, Senior Counsel submitted that the law laid down by the Court could not be nullified by an Executive Order.

"Court lays down constitutional principles. If there has to be a departure, the parties need to approach this Court to explain the reason for departure," Senior Counsel submitted.

It was also his contention that if the Government wanted to depart from the agreed percentage they should have approached this court.For introducing SC/ST reservation in AIQ, the Centre had sought the permission of the Supreme Court. Hence, the same course should have been adopted before taking the decision to implement OBC/EWS quota.

"Several other decisions of this Hon'ble Court have held that the rights of a party which had been crystallised in the judgments of the Supreme Court cannot be nullified by legislation made by the State," Senior Counsel added.

Submitting that the counselling proceeded on the basis of the scheme approved by the Supreme Court, Senior Counsel referred to Regulation 9A of "The Postgraduate Medical Education Regulations 2000" and contended that the existing scheme should not be departed with.

While referring to the Madras High Court judgement, Justice Chandrachud, presiding judge of the bench said, "This 27% quota also has a history. A petition was filed before the Madras High Court for implementation of 27% reservation in AIQ. The Bench directed Union to constitute a Committee and then the Committee said 27% should be implemented. So this is in compliance with the mandamus that was issued."

Responding to Justice Chandrachud, Senior Counsel submitted that the notification at the end of the day was an executive direction and that taking history into consideration, the Centre should have approached the Court for some deviation.

"State cannot use a shield of mandamus and will have to approach the Court to say that the notification stands up to the constitutional tests laid down," Senior Counsel added to substantiate his contention.

Bench at this juncture said that it will have to consider whether there was any qualitative difference between the quota for SC/ST and OBC.

"Is there any qualitative difference between SC/ST reservation and OBC reservation? Once we have approved the SC/ST reservation in AIQ, is there is any ground to make a distinction between OBC? Can we fault the govt for giving the OBC reservation, once SC/ST reservation in AIQ is allowed?", Justice Chandrachud asked.

"If we are talking about the difference, that is 2500 PG seats. They are now not available. If we are to remove 2500 seats from "just merit", that is a factor which should weigh with the Court", Divan submitted.

The bench has asked the Additional Solicitor General to get instructions on the arguments raised by Divan regarding the limited application of quota in PG seats. The bench has also question the basis for the criteria of Rs 8 lakhs annual income for EWS quota. The hearing will continue on October 21.

Also Read :  NEET-AIQ : Supreme Court Questions Rs 8 Lakh Criteria For EWS; Asks How Can It Be Applied Uniformly Across Country