NEET-SS : Supreme Court Reserves Interim Order On Plea Challenging 50% Reservation In Super Speciality Courses In Tamil Nadu

After hearing submissions made by the Counsels for the parties, a Bench comprising Justices L. Nageswara Rao and B.R. Gavai has reserved the interim order.

Senior Advocate, Mr. Dushyant Dave, appearing on behalf of the petition in one of the batch matters, submitted that the G.O. so issued, was completely unconstitutional and without any authority. To substantiate his submission he referred to the NEET-SS Bulletin for the academic year 2020-2021. He informed the Bench that a similar Bulletin had been issued for the present academic year i.e. 2021-2022.

"Scope of NEET SS

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No state government/private medical college/Universities including the UT of Jammu & Kashmir shall be conducting any separate entrance for admission to their DM/MCh Courses for the academic session 2021-22"

Thereafter, he referred to Clause 10.10, which deals with reservation of seats for admission to Super Speciality courses.

"10.10.Reservation: As per judgment of the Constitution Bench of Supreme Court of India Writ Petition (C) No. 350 of 1998, there is no reservation of seats for super specialty DM/M.Ch. courses."

The Bench enquired about the date when the impugned GO was issued. Mr. Dave responded that it was issued on 07.11.2020. He submitted that it appears that the rationale behind the issuance of the G.O. was largely based on the decision of the Apex Court in Tamil Nadu Medical Officers Association v. Union of India (2021) 6 SCC 568, wherein the power of the States acting under Entry 25 List III to enact special provisions for admissions for in-service doctors in medical courses including post-graduate courses was upheld. It was clarified that the said judgment did not pertain to in-service candidates at the Super Speciality level, but was only limited to PG courses.

"It singularly relies on the judgment of the Constitutional Bench without understanding. Because that judgment was with respect to Post-Graduate."

To make good his arguments, he relied on Tamil Nadu Medical Officers Association (supra), as under -

4) the Medical Council of India which has been constituted under the provisions of the Indian Medical Council Act, 1956 is the creature of the statute in exercise of powers under Entry 66 List I and has no power to make any provision for reservation, more particularly, for in­service candidates by the concerned States, in exercise of powers under Entry 25 List III;

5) that Regulation 9 of MCI Regulations, 2000 does not deal with and/or make provisions for reservation and/or affect the legislative competence and authority of the concerned States to make reservation and/or make special provision like the provision providing for a separate source of entry for in­service candidates seeking admission to postgraduate degree courses and therefore the concerned States to be within their authority and/or legislative competence to provide for a separate source of entry for in­service candidates seeking admission to postgraduate degree courses in exercise of powers under Entry 25 of List III;

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8) that the State has the legislative competence and/or authority to provide for a separate source of entry for in­service candidates seeking admission to postgraduate degree/diploma courses, in exercise of powers under Entry 25, List III. However, it is observed that policy must provide that subsequent to obtaining the postgraduate degree by the concerned in­service doctors obtaining entry in degree courses through such separate channel serve the State in the rural, tribal and hilly areas at least for five years after obtaining the degree/diploma and for that they will execute bonds for such sum the respective States may consider fit and proper;"

He reiterated -

"This subsection deals with only postgraduate degrees."

The Bench asked him to limit his arguments to the issue of interim order -

"Come to the point of interim order."

Mr. Dave referred to the relevant portion from the interim order passed for the academic year 2020-2021 in Dr. Prerit Sharma And Ors. v. Dr. Bilu B.S. And Ors. Civil Appeal No. 3840 of 2020, with respect to reservation in Super Speciality courses.

"Mr. Sanjay Jain, learned Additional Solicitor General supported the submissions made on behalf of the Petitioners that it has been clearly laid down by this Court in Jagdish Saran v. Union of India (1980) 2 SCC 768, Dr. Pradeep Jain & Ors. v. Union of India & Ors. (1984) 3 SCC 654, Dr. Preeti Srivastava and Another vs. State of M.P. and Others (1999) 7 SCC 120 and Indira Sawhney & Ors. v. Union of India & Ors. (1992 Supp. (3) SCC 217) that there can be no reservation in Super Specialty Courses and that the Constitution Bench was only concerned with the postgraduate courses in Tamil Nadu Medical Officers Association v. Union of India (supra). He submitted that there is no reference to any cogent material on the basis of which reservation was provided to in-service doctors by the Government order dated 07.11.2020. One of the directions given in GOMS No.462 dated 07.11.2020 is to post the in-service candidates in hospitals in rural or remote or difficult areas which even according to Mr. Vikas Singh, learned Senior Counsel for National Medical Commission is not a valid reason for providing reservation to in-service doctors in the Super Specialty Medical Courses. He submitted that it is impossible to provide reservation for in-service Doctors for this year as the admission process is at an advance stage.

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Though, the learned counsel appearing for the Petitioners made an attempt to argue that the judgment of the Constitution Bench in Tamil Nadu Medical Officers Association v. Union of India (supra) requires reconsideration, we prevented them from doing so as we made it clear that the hearing today is only for the purpose of deciding whether the counselling for Super Specialty Medical Courses for the year 2020-2021 should be held without providing reservations for in-service doctors.

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As stated supra, several submissions ranging from the correctness of the judgment of this Court in Tamil Nadu Medical Officers Association (supra) to the applicability of the judgment of super speciality courses have been made on behalf of the Petitioners. Other points pertaining to permissibility of reservations for admission to Super Specialty courses in view of the earlier judgments of this Court and interpretation of Regulation 9 of the 2017 Regulations framed by the MCI are to be considered in detail.

The process for admissions to Super Specialty Medical Courses started on 03.08.2020 and it was made clear to all the competing candidates that there shall be no reservation to Super Specialty Medical Courses. The Government order issued by the State of Tamil Nadu on 07.11.2020 reserving 50 per cent seats for in-service doctors would be detrimental to the interests of the meritorious Doctors as 50 per cent of the available seats in the State of Tamil Nadu in Super Specialty Medical Courses will not be available to them. We are not in agreement with the submission of Mr. Vaidyanathan and Mr. Giri that nobody will be prejudiced if the Government Order is given effect to. There will be reduction of 50% of seats in Super Specialty courses in Tamil Nadu if the Government Order is carried out, which is detrimental to their chances of admission. Admittedly no reservation for in-service Doctors was implemented since 2016. As the admission process is at the final stages, we cannot permit reservation for in-service Doctors for this year."

Mr. Dave submitted that the Court had extensively considered all the issues while passing the interim order last year. Considering that the petitioner's case is covered by four Constitution Bench judgments, he argued that the same ought to be extended for the present academic year.

"Your lordships have considered very extensively previously. We are supported by four direct judgments of your lordships' court. That order needs to be extended for the current year 2021-2022."

The Bench noted that there had been some developments in the interim. The Madras High Court in Dr. D. Suresh v. Government of India has now declared the validity of the impugned G.O. The Bench clarified that the interim order for the previous year was largely based on the fact that the reservation policy was announced much later and the candidates were under the impression from the beginning that there would be no reservation in Super Speciality seats for the academic year 2020-2021.

"In the meanwhile there is judgment of the Madras High Court upholding the G.O. against which an SLP is filed…There is subsequent development. At that point in time we had passed the interim order because everybody was informed that there would be no reservation for that year. So, introducing reservation at a late stage was not permissible is what we said."

Mr. Dave asserted that the NEET-SS Bulletin makes it clear to applicants across the country that there will be no reservation in Super Speciality courses even for the current academic year.

Senior Advocate, Mr. Shyam Divan, appearing for the petition in another connected matter, placed reliance on Clause 10.10 of the latest NEET-SS Bulletin.

He emphasised that the impugned order of the Madras High Court validating the G.O. does not consider the issues.

"...when one reads the impugned judgment, it is in the nature of friend match wherein order is passed. There is no real consideration and contestation."

He added that the law is settled in favour of the petitioner i.e. there is no provision for reservation at the Super Speciality level.

"This has been the settled law, right through. Super Speciality ought not to be mixed up with PG…We request that an interim order would be entirely consistent with the previous Constitution Bench judgments."

Senior Advocate, Mr. Gopal Sankaranarayanan, appearing for the petitioner in another connected matter, argued that unlike PG courses, no prospectus was issued by the State to make the candidates aware of the fact that the State intended to implement the G.O. in the current academic year.

He submitted that in Dr. D. Suresh (supra) the Madras High Court had specifically stated that the impugned G.O. can be implemented if there is no impediment in that regard. It was argued that the NEET-SS Bulletin is an impediment which would deter implementation of the G.O. by the Government of Tamil Nadu.

"The judgment of Madras High Court referred to now, that is those which in-service filed a petition seeking clarity on whether the G.O. will apply. The Court in its concluding paragraph says that if there are no obstacles it may be implemented. In my view the obstacle is the NEET Bulletin."

He referred to the relevant portion of the judgment in Preeti Srivastava and Another v. State of M.P. and Others (1999) 7 SCC 120.

"At the level of admission to the super speciality courses, no special provisions are permissible, they being contrary to national interest. Merit alone can be the basis of selection.

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In the group of civil appeals decided by Post Graduate Institute of Medical Education & Research, Chandigarh and Ors. v. K.L. Narasimhan & Anr. (supra), the appeal of the present petitioners had challenged an Admission Notice No.15/90 issued in the Indian Express of 25.11.1990, under which six seats for the super speciality courses of D.M./M.C.H. were kept reserved for the Scheduled Caste and the Scheduled Tribe candidates. The petitioners rightly contend that at the super speciality level there cannot be any relaxation in favour of any category of candidates. Admissions should be entirely on the basis of open merit.

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In the case of Dr. Jagdish Saran & Ors. v. Union of India (supra) this Court observed that at the highest scales of speciality, the best skill or talent must be hand-picked by selection according to capability. Losing a potential great scientist or technologist would be a national loss. That is why the Court observed that the higher the level of education the lesser should be the reservation. There are similar observations in Dr. Pradeep Jain & Ors. v. Union of India & Ors. (supra). Undoubtedly, Dr. Pradeep Jain & Ors. v. Union of India & Ors. (supra) did not deal with reservation in favour of the Scheduled Castes and the Scheduled Tribes. It dealt with reservation in favour of residents and students of the same university. Nevertheless it correctly extended the principle laid down in Dr. Jagdish Saran & Ors. v. Union of India (supra) to these kinds of reservation also, holding that at the highest levels of medical education excellence cannot be compromised to the detriment of the nation. Admissions to the highest available medical courses in the country at the super-speciality levels, where even the facilities for training are limited, must be given only on the basis of competitive merit. There can be no relaxation at this level.

He concluded stating that the three reasons for passing the interim order for the last academic year on 27.11.2020 exist till date and therefore, the benefit of the interim order ought to be extended for the current academic year.

Additional Solicitor General, Ms. Aishwarya Bhati appearing on behalf of the Union Government also opposed reservation of any kind in the Super Speciality courses as it would go against the national interest. She submitted -

"The Union has also filed an application seeking continuation of stay for this year also. The only mode of entrance in the Super Specialty courses is through a common central entrance test… Since NEET-SS 2017 there has been no reservation in Super Speciality. The institutions that are offering super speciality are not heterogeneous across the country, it is not like the State of Tamil Nadu, State of Assam etc. can be compared. There are few institutes. Therefore, if the State restricts entry in any manner it is going to be detrimental to national interest."

She stated that the process of admission is already late, reservation if now grated would further delay the process.

"We are already running late. We had changed the curriculum, which was challenged. We made an undertaking that we will revert back to the previous curriculum for this year. This is for the course of 2021-2022. Results were announced on 31.01.2022. We are at the fag end. We are waiting for your lordships' clarity on how to proceed."

Senior Advocate, Mr. C.S. Vaidyanathan appearing for the State of Tamil Nadu pointed out the intent behind making the special provision for in-service doctors. He highlighted the the object of such provision has been appreciated by the Apex Court in Tamil Nadu Medical Officers Association (supra) -

"Why did the Government make this provision? The in-service candidates who are serving the State; they are not mercenaries like the petitioners who want to get a super speciality course and want to go abroad and practice. They have been serving the common man in the State. The wholesome object has been appreciated by a Constitution Bench of this Court.

He emphasised that even though Tamil Nadu Medical Officers Association (supra) held National Medical Commission (erstwhile Medical Council of India) has no power to make any provision for reservation, more particularly, for in­-service candidates by the concerned States, in exercise of powers under Entry 25 List III, it had formulated Clause 10.10 in contravention.

"And the Medical Council of India which is a statutory body has not even taken into account the Constitution Bench judgment while formulating paragraph 10.10."

He expressed concern that the non-service candidates who oppose the special provision made for in-service doctors are the ones who abandon their duty towards the State after taking admission and undergoing the course. They do not even stand by their undertaking to serve in the State after taking the course -

"Who are the people who are coming before your lordships asserting their rights. They have no equity. I have the data…how they have all taken admission, undergone the course and deserted. They have never kept their undertaking to serve in the State or in hospitals in rural areas."

Mr. Vaidyanathan distinguished between 'reservation' and the 'separate source of entry' provided for the doctors who are already serving under the State.

"This is not a reservation. These are people who are already serving in the Govt. hospitals. It is a separate source of filling up vacancies."

Justice Rao pointed out that Preeti Srivastava (supra) had held that there can be no relaxation of any kind in case of Super Speciality courses.

Mr. Vaidyanathan submitted that the said judgment was not concerned with in-service candidates.

"Preeti Srivastava was concerned neither with in-service candidates nor with admission. It was concerned with relaxation of marks for reserved categories. It was not concerned with quota at all.

He added that when in Preeti Srivastava (supra) the Court says, 'there can be no relaxation at this level, it is with respect to marks and not separate source of entry.

Justice Rao enquired, "What is it then, if not reservation? We understand the difference between a reservation on the basis of communal reservation and reservation for in-service doctors. Ultimately it is a reservation, is it not?

Referring to the judgment in Tamil Nadu Medical Officer Association (supra) Mr. Vaidyanathan responded -

"Please consider, in the Constitutional Bench judgment, the question was asked whether it is reservation and the Court said no it is not."

Justice Rao clarified that the Constitution Bench stated that it was reservation, but not akin to the reservation made on communal basis.

"The Constitution Bench did not say that it is not reservation. What the Constitution Bench is saying is this reservation for in-service doctors is not akin to reservation made on communal basis. To that extent you might be right."

Justice Rao further added -

"But, this Constitution Bench only refers to PG courses according to the petitioner. How do you deal with that?"

Mr. Vaidyanathan referred to the Tamil Nadu Medical Officer Association (supra) -

"4)the Medical Council of India which has been constituted under the provisions of the Indian Medical Council Act, 1956 is the creature of the statute in exercise of powers under Entry 66 List I and has no power to make any provision for reservation, more particularly, for in­-service candidates by the concerned States, in exercise of powers under Entry 25 List III;

5)that Regulation 9 of MCI Regulations, 2000 does not deal with and/or make provisions for reservation and/or affect the legislative competence and authority of the concerned States to make reservation and/or make special provision like the provision providing for a separate source of entry for in­service candidates seeking admission to postgraduate degree courses and therefore the concerned States to be within their authority and/or legislative competence to provide for a separate source of entry for in­service candidates seeking admission to postgraduate degree courses in exercise of powers under Entry 25 of List III;"

He added that when the power to provide for reservation was taken away by the above-mentioned judgment, NMC could not have come up with Clause 10.10 in the fresh notification.

"When they issued the fresh notification after this power was held to be not available to them, MCI could not have issued paragraph 10.10."

Thereafter, he took the Court's attention to the interim order passed last year in Dr. Prerit Sharma (supra), wherein the Court had categorically clarified that the interim order was passed for the academic year 2020-2021, primarily because the admissions for the years were already in process.

"…Admittedly no reservation for in-service Doctors was implemented since 2016. As the admission process is at the final stages, we cannot permit reservation for in-service Doctors for this year.

We make it clear that we have not expressed any opinion on the validity of GOMS No.462 of 07.11.2020. We direct that the counselling for admission to Super Specialty Medical Courses for the academic year 2020- 2021 shall proceed on a date to be fixed by the competent authority without providing for reservations to in-service doctors for the academic year 2020-2021. We reiterate that the above direction would be operative only for the current academic year i.e. 2020-2021."

He concluded that in the present academic year the candidates had participated in the process after being fully aware of the special provision for the in-service doctors.

"Kindly see in the counter affidavit we have a huge number of vacancies in the State. We need people to man the post. This is not a case where an interim order is to be passed. Under the knowledge of G.O.they participated, they were aware of it."

Senior Advocate, Mr. P. Wilson, appearing for the in-service candidates, referred to several judgments and reiterated that the special provision for in-service doctors was not reservation, but merely a source of entry.

Advocate, Amit Anand Tiwari appearing for the State submitted that the Union of India also has similar provisions for in-service candidates, which it refers to as sponsorship. He informed the Bench that, in eleven institutions, the Centre is providing such sponsorship.

The Bench stated -

"This is not for NEET. This is for All India Institute of Medical Sciences admission. These are Super Speciality courses in institutes of national importance. These are separate examinations."

To demonstrate the conduct of the non-service candidates who had taken admission in Super Speciality Courses in the last four years, he referred to his counter affidavit. It was pointed out that the majority of the candidates do not comply with the bond conditions. Most of the students who complete the courses do not serve the State. Therefore, the State is unable to sustain the institutions and the hospitals, which witness a dearth of doctors.

"Kindly see what non service candidates in the last four years have done. 73% have not even complied with bond conditions. 75% in the second year. Those who have completed, 92% go away after 2 years. How will I sustain my institution, my hospitals?"

He submitted that such special provisions for in-service candidates serve a larger purpose, i.e., help sustain State run institutions.

[Case Title: N. Karthikeyan And Ors. v. State of Tamil Nadu WP (C) No. 53 of 2022 and connected matters]

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