NIMS UNIVERSITYversusUNION OF INDIA AND OTHERS

584                       [2022]
               SUPREME COURT     3 S.C.R. 584
                              REPORTS                          [2022] 3 S.C.R.


A                            NIMS UNIVERSITY
                                        v.
                      UNION OF INDIA AND OTHERS
                      (Writ Petition (Civil) No 316 of 2022)
B
                           MAY 09, 2022
              [DR. DHANANJAYA Y CHANDRACHUD AND
                        SURYA KANT, JJ.]
            Education/Educational Institutions: Medical admission –
C     Admission to NEET-super specialty courses – Lowering of cut off
      percentile – Permissibility of – Held: Reduction of the percentile is
      a matter of academic policy – Super specialty courses cannot be
      equated with post graduate courses or under graduate admission –
      Court cannot be unmindful of the fact that Super Specialty courses
      are at the apex of the academic spectrum – Reasons given by the
D     Ministry of Health and Family Welfare in declining to reduce the
      percentile cannot be regarded as extraneous or arbitrary – Thus,
      writ petition seeking lowering of cut off percentile for admission in
      NEET Super Speciality courses not interfered with – Constitution
      of India – Art. 32.
E           Disposing of the writ petition, the Court
             HELD: 1.1 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
F     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
G     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. [Para 9][589-E-G]

H
                                       584
    NIMS UNIVERSITY v. UNION OF INDIA AND OTHERS                             585


      1.2 In regard to the alternate prayer, since a second round            A
of counselling has been held at the end of which 940 seats still
remain vacant, the Additional Solicitor General has informed the
Court that a mop up round of counselling would be held for those
seats including for the stray vacancies, while maintaining the
eligibility percentile at 50 for the year 2021-2022. [Para 10]
                                                                             B
[589-H; 590-A]
      Union of India and others vs. Dinesh Engineering
      Corpn. and another (2001) 8 SCC 491; Vice-Chairman
      & Managing director, City and Industrial Development
      Corporation of Maharashtra Ltd. and Another vs.
      Shishir Realty Private Limited and Ors. Civil Appeal                   C
      No. 3956-57 of 2017 – referred to.
                        Case Law Reference
(2001) 8 SCC 491                  referred to              Para 42
      CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No.316             D
of 2022.
      (Under Article 32 of The Constitution of India)
     P. S. Patwalia, Sr. Adv., Prashant Kumar, Aditya Dev Triguna,
Ms. Awantika Manohar, M/s Ap & J Chambers, Advs. for the Petitioner.
                                                                             E
       Ms. Aishwarya Bhati, ASG, Ms. Ruchi Kohli, Aman Sharma, Ms.
Srishti Mishra, Manvendra Singh, Ms. Shivika Mehra, Advs. for the
Respondents.
      The Judgment of the Court was delivered by
      DR. DHANANJAYA Y CHANDRACHUD, J.                                       F

       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       G
are vacant for the DM/MCh courses.
       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:
                                                                             H
586            SUPREME COURT REPORTS                           [2022] 3 S.C.R.


A           “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
B
            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
C           highest marks secured in the All India Common merit list in National
            Eligibility-cum-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
D           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.”
E
             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.

F            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
G     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
H     a note on record. The note contains the following comparative tables:
    NIMS UNIVERSITY v. UNION OF INDIA AND OTHERS                              587
        [DR. DHANANJAYA Y CHANDRACHUD, J.]

                    “For Academic Year 2019-20                                A




                     For Academic Year 2020-21
                                                                              B




                     For Academic Year 2021-22
                                                                              C


      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         D
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.                        E
      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        F
              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
                                                                              G
              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                                                             H
588               SUPREME COURT REPORTS                            [2022] 3 S.C.R.


A              (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.
B
             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
      Others1. This decision has been recently considered by this Court in
      Neppali Sai Vikash and Others vs Union of India and Others2:
C
               “8. The counsel for the petitioners relied on the judgment of a
               two-Judge Bench of this Court in Harshit Agarwal v. Union of
               India, where the petitioners had sought a direction to lower the
               minimum marks by 20 percentile in each category for NEET-UG
               2020 for admission to the BDS course. Allowing the writ petition,
D              the decision of the Central Government dated 30 December 2020
               to not reduce the minimum marks for admission to the BDS course
               was set aside on the ground that it suffered from illegality and
               irrationality. This Court directed that the vacant seats in first year
               BDS course for 2020-21 were to be filled after reducing the
E              percentile by 10 points. However, the circumstances were different
               in that case. The Dental Council of India had recommended the
               lowering of the qualifying cut-off percentile to the BDS courses
               for the year 2020-21. The petitioners then submitted a
               representation to the Union Government seeking a 2 WP(C) 54
               of 2021 5 reduction in the qualifying percentile based on the
F              recommendation of the Dental Council of India. Sub-Regulation
               (ii) of Regulation II of the Dental Council of India, Revised BDS
               Course Regulations 2007 stipulates that the Central Government
               in consultation with the Dental Council of India may at its
               discretion, lower the minimum marks required for admission if a
G              ‘sufficient’ number of candidates fail to secure the minimum marks.
               This Court in that case was deciding on the limited question of
               whether the decision of the Union Government to not reduce the
               percentile in spite of the recommendations of the Dental Council
      1
          (2021) 2 SCC 710
      2
H         MA No 735 of 2022 In WP (C) No 124 of 2022.
    NIMS UNIVERSITY v. UNION OF INDIA AND OTHERS                                  589
        [DR. DHANANJAYA Y CHANDRACHUD, J.]

      of India was arbitrary. It was observed that the contention of the          A
      Union of India that the percentile was not reduced because there
      were sufficient eligible candidates was erroneous since it had not
      considered vital facts on the ratio of seats available vis-à-vis eligible
      candidates:
        […]                                                                       B
      9. The proviso to Regulation 9(3) of the Post-Graduate Medical
      Education Regulations 2000 stipulates that the Central Government
      has the power to lower the minimum marks for admission to PG
      courses in consultation with the National Medical Commission
      when a sufficient number of candidates fail to secure minimum               C
      marks. On 12 March 2020, the Central Government in exercise
      of this power reduced the minimum marks in consultation with
      the National Medical Commission. After the stray rounds were
      conducted on the reduction in the percentile, only 282 seats are
      left vacant. The Union of India has taken a considered decision to
      not reduce the minimum marks further. As submitted by the                   D
      respondent, the vacancy in the seats does not arise from non-
      fulfillment of minimum marks but also from course preferences
      and college preferences of the students. This Court would not be
      inclined to interfere unless there is a manifest arbitrariness in the
      decision making process or in the decision.”                                E
       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          F
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          G
faulted. The reasons furnished are not extraneous or arbitrary.
      10. However, in regard to the alternate prayer, since a second
round of counselling has been held at the end of which 940 seats still
remain vacant, the Additional Solicitor General has informed the Court
                                                                                  H
590                SUPREME COURT REPORTS                        [2022] 3 S.C.R.


A     that a mop up round of counselling shall be held for those seats including
      for the stray vacancies, while maintaining the eligibility percentile at 50
      for the year 2021-2022.
              11. The Petition is accordingly disposed of in the above terms.
              12. Pending applications, if any, stand disposed of.
B

      Nidhi Jain                                           Writ petition disposed of.




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