SHIKHAR & ANR.versusNATIONAL BOARD OF EXAMINATION & ORS.

918                      [2022]REPORTS
               SUPREME COURT    6 S.C.R. 918                 [2022] 6 S.C.R.


A                              SHIKHAR & ANR.
                                        v.
              NATIONAL BOARD OF EXAMINATION & ORS.
                       (Writ Petition (C) No. 208 of 2022)
B                                APRIL 05, 2022
                [DR DHANANJAYA Y CHANDRACHUD,
               SURYA KANT AND BELA M. TRIVEDI, JJ.]
             Education/Educational Institutions: Admission – Eligibility
      criteria – Formulation of eligibility standards for admission is within
C
      the domain of executive and regulatory authorities.
            Education/Educational Institutions: NEET-PG 2022 –
      Admission – Writ petition instituted by doctors, aspirants of NEET-
      PG 2022 challenging the deadline set for completion of internship
      for appearing for NEET-PG 2022 – Students claimed that the
D
      commencement of internships was delayed due to Covid situation
      and as a consequence they would not be able to fulfill the cut-off
      date and therefore, sought extention of cut-off date to accommodate
      them in NEET-PG 2022 – In the alternative, it was alleged that the
      period spent on Covid duties should be allowed to be counted
E     towards the internship requirements – Held: The authorities have
      provided cogent reasons as to why the deadline for completing the
      internship cannot be extended – An extension of the cut-off any
      further would result in the disruption of the educational schedule,
      as indicated to the Court by the Additional Solicitor General –
      Moreover, students who have qualified in terms of the cut-off of
F
      31 July 2022 will be prejudiced by the inevitable postponement of
      the schedule – Hence, no such directions can be passed – The
      alternative prayer for inclusion of period of Covid duties in the
      internship requirements would also involve this Court in micro-
      managing the curriculum for the completion of medical courses –
G     This is a function which should not be assumed by the Court –
      Hence, though hardship has been caused to those students whose
      internship commenced much later, it would not be possible, at this
      stage, to disturb the schedule as it would affect the other students
      who fulfill the cut-off date of 31 July 2022 – Petition under Art.32
H
                                       918
SHIKHAR & ANR. v. NATIONAL BOARD OF EXAMINATION                       919
                      & ORS.

of the Constitution cannot be entertained – Constitution of India –   A
Art.32.
      Dismissing the writ petition, the Court
      HELD: 1.1 While the present cut-off date for the completion
of the internship would put certain students at a disadvantage, it
is the domain of the executive and regulatory authorities to          B
formulate appropriate eligibility standards for admission.
Whenever a cut-off is extended, some students are likely to fall
on the other side of the dividing line. [Paras 9, 12][923-A; 925-
E]
      Shivam Satyarthee v. Union of India Writ Petition (C)           C
      No. 68 of 2022; Indian Institute of Technology
      Kharagpur & Ors. v. Soutrik Sarangi (2021) SCC
      OnLine SC 826; All India Council for Technical
      Education v. Surinder Kumar Dhawan (2009) 11 SCC
      726 : [2009] 3 SCR 859; Rachna v. Union of India &              D
      Ors. (2021) 5 SCC 638; State of Bihar v. Ramjee Prasad
      (1990) 3 SCC 368 : [1990] 2 SCR 468; Hirandra
      Kumar v. High Court of Judicature at Allahabad & Anr.
      (2020) 17 SCC 401 : [2019] 2 SCR 608 – relied on.
      1.2 In the present case, cogent reasons have been provided      E
as to why the deadline for completing the internship cannot be
extended. An extension of the cut-off any further would result in
the disruption of the educational schedule, as indicated to the
Court by the Additional Solicitor General. Moreover, students
who have qualified in terms of the cut-off of 31 July 2022 will be
prejudiced by the inevitable postponement of the schedule. Hence,     F
it would not be appropriate for this Court to issue any such
direction. The alternative prayer for the inclusion of the period
of Covid duties in the internship requirements would also involve
this Court in micro-managing the curriculum for the completion
of medical courses. This is a function which should not be assumed    G
by the Court. Hence, though hardship has been caused to those
students whose internship commenced much later, it would not
be possible, at this stage, to disturb the schedule as it would
affect the other students who fulfill the cut-off date of 31 July
2022. [Para 14][927-E-H]
                                                                      H
920               SUPREME COURT REPORTS                         [2022] 6 S.C.R.


A              Poulami Mondal & Ors. v. All India Institute of Medical
               Sciences & Ors. 2022 (6) SCALE 70 – distinguished.
            2. Crucially, the case dealt with conducting of an
      examination during a pandemic where strict lockdowns were in
      place. It did not relate to fixing of a cut-off date, which is bound to
B     exclude some aspirants and include others. The law is clear that
      such exclusion will always be incidental to fixing of any cut-off
      date and cannot be termed arbitrary. Thus, it would not be
      appropriate to entertain the petition under Article 32 of the
      Constitution. [Paras 15 and 16][928-G-H; 929-A-B]
C                                  Case Law Reference
      [2009] 3 SCR 859                      relied on           Para 9
      (2021) 5 SCC 638                      relied on           Para 10
      [1990] 2 SCR 468                      relied on           Para 12
D
      [2019] 2 SCR 608                      relied on           Para 13
            CIVIL ORIGINAL JURISDICTION: Writ Petition (C) No. 208
      of 2022.
               Under Article 32 of The Constitution of India.
E
             Gopal Sankaranarayanan, Sr. Adv., Dr. Charu Mathur, Sanjay
      Kumar Dubey, Ms. Tanvi, Ms. Ishita Chowdhury, Advs. for the
      Petitioners.
             Ms. Aishwarya Bhati, ASG, B. K. Satija, Rajat Nair, Sandeep
F     Kumar Mahapatra, Ketan Paul, Aman Sharma, Raj Bahadur Yadav, Advs.
      for the Respondents.
               The Judgment of the Court was delivered by
               DR DHANANJAYA Y CHANDRACHUD, J.

G            1. The petition under Article 32 of the Constitution has been
      instituted by doctors who are aspirants of NEET- PG 2022. They have
      challenged the deadline set for the completion of internship for appearing
      for NEET-PG 2022. The facts which give rise to the present petition are
      set out below.
      1
H         “Information Bulletin”
    SHIKHAR & ANR. v. NATIONAL BOARD OF EXAMINATION                               921
        & ORS. [DR DHANANJAYA Y CHANDRACHUD, J.]

       2. On 15 January 2022, the first respondent released the NEET-             A
PG 2022-23 Information Bulletin1 providing the examination schedule
and eligibility criteria. Clause 4.4 of the Information Bulletin stipulates
amongst the eligibility criteria that the internship completion certificate
has to be submitted at the time of counselling/admission to the allotted
medical college and that the internship should have been completed by
                                                                                  B
31 May 2022.
      3. On 8 February 2022, this Court, while considering a petition 2
under Article 32 of the Constitution, permitted the petitioners, who were
seeking a postponement of the internship deadline, to submit a
representation before the Union Ministry of Health and Family Welfare.
This Court observed:                                                              C

          “The issue which has been raised by the petitioners requires a
          determination of facts bearing on the position in different parts of
          the country. Prescribing a cutoff date pertains to the policy domain.
          The ends of justice would be met by permitting the petitioners to
          submit a representation to the Union Ministry of Health and Family      D
          Welfare setting out the nature of the hardship which has been
          faced by the petitioners and similarly placed candidates. The
          representation shall be considered expeditiously, within a period
          of one week of the date of its submission, by the competent
          authority. Since the Court is leaving it open to the petitioners to     E
          move the MoHFW with a representation, no opinion has been
          expressed by this Court on the merits of the grievance at the
          present stage.”
         4. After considering the representations which were received,
the National Board of Examination issued a notice on 16 February 2022             F
extending the cut-off date for completion of internship to 31 July 2022 to
fulfill the eligibility criteria for the NEET-PG examination. The petitioners
are aggrieved by the revised cut-off date and have invoked the jurisdiction
of this Court under Article 32 of the Constitution.
       5. The grievance of the petitioners is that the extension of the cut-      G
off from 31 May to 31 July 2022 would still leave out students from
certain States who are unable to complete their internships by the cut-
off date. It has been submitted that on 3 May 2021, the Union Government
in the Ministry of Health and Family Welfare had authorized the States/
2
    Shivam Satyarthee v Union of India, Writ Petition (C) No 68 of 2022           H
922            SUPREME COURT REPORTS                           [2022] 6 S.C.R.


A     UTs to deploy medical interns in Covid management duties. Besides
      this, it was envisaged that the services of final year MBBS students
      may be utilized for providing services such as tele-consultation and
      monitoring of mild Covid cases.
              6. Mr Gopal Sankaranarayanan, senior counsel appearing on behalf
B     of the petitioners, submitted that in certain States, the internships of
      medical students commenced later as a result of the deployment of final
      year medical students on Covid duties. For instance, it has been stated
      that in Kerala, the internships commenced in August 2021, in Bihar in
      October 2021, in Jharkhand in August 2021, in Uttar Pradesh in
      September 2021 and in Jammu and Kashmir in November 2021. The
C     submission is that the commencement of the internships was delayed in
      these States due to the Covid situation and as a consequence, these
      students would not be able to fulfill the cut-off date of 31 July 2022.
      Hence, it has been urged that the cut-off date should be extended further
      to accommodate these students for the NEET-PG 2022. In the alternative,
D     it has been urged that the period spent on Covid duties should be allowed
      to be counted towards the internship requirements.
              7. Having due regard to the above submission, this Court had on
      30 March 2022 requested the Solicitor General to assist the Court after
      seeking the views of the Ministry of Health and Family Welfare.
E     Ms Aishwarya Bhati, Additional Solicitor General has in the course of
      her submissions placed before the Court the practical difficulties in
      acceding to the request of the petitioners and the cascading effect if the
      submission of the petitioners is accepted. The Additional Solicitor General
      stated that the examinations are now scheduled to be held on 21 May
      2022; counselling will be expected to commence in the third or fourth
F     week of July 2022; and, under the time schedule which is proposed,
      classes are likely to commence on 1 August 2022. Hence, it has been
      submitted that any extension of the internship completion deadline would
      result in the disruption of the entire schedule. Moreover, it has been
      submitted that if the time schedule which is now prescribed is adhered
G     to, the next examination is likely to be held in January 2023.
             8. Responding to the alternative submission of Mr Gopal
      Sankarnarayanan that the period which has been spent on Covid duties
      should be treated towards the internship requirements, the Additional
      Solicitor General submitted that Covid duties do not cover all specialties
      and, hence, the acceptance of this request would result in tinkering with
H     the educational curriculum.
    SHIKHAR & ANR. v. NATIONAL BOARD OF EXAMINATION                              923
        & ORS. [DR DHANANJAYA Y CHANDRACHUD, J.]

       9. While we understand that the present cut-off date for the              A
completion of the internship would put certain students at a disadvantage,
we are conscious that it is the domain of the executive and regulatory
authorities to formulate appropriate eligibility standards for admission.
In Indian Institute of Technology Kharagpur & Ors. v. Soutrik
Sarangi3, a three-judge Bench of this Court held that courts should be
                                                                                 B
circumspect in exercising their powers of judicial review in matters
concerning academic policies, including admission criteria. In that case,
this Court refused to interfere with the eligibility criteria for appearing in
JEE (Advanced) 2021 which prevented a candidate who had secured a
seat in one of the IITs from competing in a subsequent examination.
This Court relied on All India Council for Technical Education v.                C
Surinder Kumar Dhawan4, where it was observed that judicial
interference motivated by concerns of mitigating the hardship faced by
students may result in unintended consequences adversely affecting the
education system. This Court held thus:
         “19. The reasoning of the High Court of Criterion 5 not permitting      D
         IIT students to participate in IIT (Advanced) for the second time
         being arbitrary, in the opinion of this Court is not supportable.
         This Court has repeatedly emphasized that in matters such
         as devising admissions criteria or other issues engaging
         academic institutions, the courts’ scrutiny in judicial review
         has to be careful and circumspect. Unless shown to be plainly           E
         arbitrary or discriminatory, the court would defer to the wisdom
         of administrators in academic institutions who might devise policies
         in regard to curricular admission process, career progression of
         their employees, matters of discipline or other general
         administrative issues concerning the institution or university5. It     F
         was held by this court in All India Council for Technical Education
         v. Surinder Kumar Dhawan6
            “16. The courts are neither equipped nor have the academic
            or technical background to substitute themselves in place of
            statutory professional technical bodies and take decisions in        G
            academic matters involving standards and quality of technical
            education. If the courts start entertaining petitions from
            individual institutions or students to permit courses of
3
    2021 SCC OnLine SC 826
4
    (2009) 11 SCC 726
                                                                                 H
924                SUPREME COURT REPORTS                           [2022] 6 S.C.R.


A                  their choice, either for their convenience or to alleviate
                   hardship or to provide better opportunities, or because
                   they think that one course is equal to another, without
                   realizing the repercussions on the field of technical
                   education in general, it will lead to chaos in education
                   and deterioration in standards of education.”
B
               20. Given this general reluctance of courts to substitute the views
               of academic and expert bodies, the approach of the High Court in
               proceeding straightaway to characterize the rationale given by
               the IIT in fashioning the Criteria No. 5 cannot be supported.”
C                                                               (emphasis supplied)
             10. In Rachna v. Union of India & Ors.5 a petition under Article
      32 of the Constitution was instituted before this Court with a prayer to
      grant one additional attempt to clear the Civil Services (Preliminary)
      Examination 2020 to petitioners who were otherwise not eligible to
D     participate in subsequent examinations due to their exhausting available
      attempts or because of crossing the age bar. The petitioners pleaded
      that on account of the unprecedented Covid-19 pandemic, they had faced
      difficulties in preparing for the examination. The petitioners also argued
      that the government had previously granted such a relaxation in 2015.
      This Court dismissed the petition and held that policy decisions are taken
E     by the executive considering the prevailing circumstances. The Court
      further observed that the petitioners cannot invoke the writ jurisdiction
      of the Court to direct the government to come out with a specific policy
      granting relaxation to certain candidates as a matter of right. The following
      observations of this Court are relevant:
F              “45. Judicial review of a policy decision and to issue mandamus
               to frame policy in a particular manner are absolutely different. It
               is within the realm of the executive to take a policy decision based
               on the prevailing circumstances for better administration and in
               meeting out the exigencies but at the same time, it is not within
G              the domain of the courts to legislate. The courts do interpret the
               laws and in such an interpretation, certain creative process is
               involved. The courts have the jurisdiction to declare the law as
               unconstitutional. That too, where it is called for. The court is called
               upon to consider the validity of a policy decision only when a
      5
H         (2021) 5 SCC 638
    SHIKHAR & ANR. v. NATIONAL BOARD OF EXAMINATION                               925
        & ORS. [DR DHANANJAYA Y CHANDRACHUD, J.]

         challenge is made that such policy decision infringes fundamental        A
         rights guaranteed by the Constitution or any other statutory right.
         Merely because as a matter of policy, if the 1st respondent has
         granted relaxation in the past for the reason that there was a
         change in the examination pattern/syllabus and in the given situation,
         had considered to be an impediment for the participant in the Civil
                                                                                  B
         Services Examination, no assistance can be claimed by the
         petitioners in seeking mandamus to the 1st respondent to come
         out with a policy granting relaxation to the participants who had
         availed a final and last attempt or have crossed the upper age by
         appearing in the Examination 2020 as a matter of right.”
       11. In the previous proceedings when this Court passed an order            C
dated 8 February 2022, the Court was conscious of the fact that any
extension of cut-off dates pertains to the policy domain. The decision
was hence left to the expert agencies of the Union of India. However,
having regard to the hardship which was faced by the petitioners and
similarly placed persons, we left it open to them to submit a representation      D
to the Union Government. Responding to the request, an extension of
the cut-off date has been granted from 31 May 2022 to 31 July 2022.
       12. Whenever a cut-off is extended, some students are likely to
fall on the other side of the dividing line. In State of Bihar v. Ramjee
Prasad6, the State had prescribed that applicants applying for the post           E
of Assistant Professors must have three years of experience. In the
preceding year, the cut-off date for the receipt of applications was set in
June, however, in the year in question, the date was fixed in January
making certain candidates ineligible owing to their failure to meet the
three-year requirement. This Court held that the cut-off date cannot be
held to be arbitrary unless it is shown that it is unreasonable, capricious       F
or whimsical even if no reasons are forthcoming as to the choice of
date. This Court observed thus:
         “8. In the present case as pointed out earlier the past practice
         was to fix the last date for receipt of applications a month or one
         and a half months after the date of actual publication of the            G
         advertisement. Following the past practice the State Government
         fixed the last date for receipt of applications as January 31, 1988.
         Those who had completed the required experience of three years

6
    (1990) 3 SCC 368                                                              H
926               SUPREME COURT REPORTS                             [2022] 6 S.C.R.


A              by that date were, therefore, eligible to apply for the posts in
               question. The respondents and some of the intervenors who were
               not completing the required experience by that date, therefore,
               challenged the fixation of the last date as arbitrary and violative
               of Article 14 of the Constitution. It is obvious that in fixing the last
               date as January 31, 1988 the State Government had only followed
B
               the past practice and if the High Court’s attention had been invited
               to this fact it would perhaps have refused to interfere since its
               interference is based on the erroneous belief that the past practice
               was to fix June 30 of the relevant year as the last date for receipt
               of applications. Except for leaning on a past practice the High
C              Court has not assigned any reasons for its choice of the date. As
               pointed out by this Court the choice of date cannot be
               dubbed as arbitrary even if no particular reason is
               forthcoming for the same unless it is shown to be capricious
               or whimsical or wide off the reasonable mark. The choice
               of the date for advertising the posts had to depend on
D
               several factors, e.g. the number of vacancies in different
               disciplines, the need to fill up the posts, the availability of
               candidates, etc. It is not the case of anyone that experienced
               candidates were not available in sufficient numbers on the cut-off
               date. Merely because the respondents and some others
E              would qualify for appointment if the last date for receipt of
               applications is shifted from January 31, 1988 to June 30,
               1988 is no reason for dubbing the earlier date as arbitrary
               or irrational. We are, therefore, of the opinion that the High
               Court was clearly in error in striking down the government’s action
               of fixing the last date for receipt of applications as January 31,
F
               1988 as arbitrary.”
                                                                (emphasis supplied)
             13. Recently in Hirandra Kumar v. High Court of Judicature
      at Allahabad & Anr.7, a two-judge Bench of this Court, of which one
G     of us (DY Chandrachud, J) was a part held that the cut-off date or an
      age limit does not become arbitrary and violative of Article 14 of the
      Constitution merely because certain candidates fall on the wrong side of
      it. A cut-off date or an age bar would always exclude some candidates.
      This Court emphasised that the determination of the cut-off date is within
      7
H         (2020) 17 SCC 401
SHIKHAR & ANR. v. NATIONAL BOARD OF EXAMINATION                                 927
    & ORS. [DR DHANANJAYA Y CHANDRACHUD, J.]

the sphere of the executive and the court cannot assume that function.          A
This Court observed:
      “21. The legal principles which govern the determination of a cut-
      off date are well settled. The power to fix a cut-off date or age-
      limit is incidental to the regulatory control which an authority
      exercises over the selection process. A certain degree of                 B
      arbitrariness may appear on the face of any cut-off or age-limit
      which is prescribed, since a candidate on the wrong side of the
      line may stand excluded as a consequence. That, however, is no
      reason to hold that the cut-off which is prescribed, is arbitrary. In
      order to declare that a cut-off is arbitrary and ultra vires, it must
      be of such a nature as to lead to the conclusion that it has been         C
      fixed without any rational basis whatsoever or is manifestly
      unreasonable so as to lead to a conclusion of a violation of Article
      14 of the Constitution.
      27….the validity of the Rule cannot be made to depend on cases
      of individual hardship which inevitably arise in applying a principle     D
      of general application. Essentially, the determination of cut-off
      dates lies in the realm of policy. A court in the exercise of the
      power of judicial review does not takeover the function for itself.
      Plainly, it is for the rule-making authority to discharge that function
      while making the Rules.”                                                  E
       14. In the present case, cogent reasons have been provided as to
why the deadline for completing the internship cannot be extended. An
extension of the cut-off any further would result in the disruption of the
educational schedule, as indicated to the Court by the Additional Solicitor
General. Moreover, students who have qualified in terms of the cut-off          F
of 31 July 2022 will be prejudiced by the inevitable postponement of the
schedule. Hence, it would not be appropriate for this Court to issue any
such direction. The alternative prayer for the inclusion of the period of
Covid duties in the internship requirements would also involve this Court
in micro-managing the curriculum for the completion of medical courses.
This is a function which, in our view, should not be assumed by the             G
Court. Hence, though hardship has been caused to those students whose
internship commenced much later, it would not be possible, at this stage,
to disturb the schedule as it would affect the other students who fulfill
the cut-off date of 31 July 2022.
                                                                                H
928                 SUPREME COURT REPORTS                        [2022] 6 S.C.R.


A            15. The petitioners have sought to rely on an order of this Court in
      Poulami Mondal & Ors. v. All India Institute of Medical Sciences
      & Ors.8 where the Institute of National Importance Combined Admission
      Test (INI CET) for admission to the Post Graduate courses for the July
      2021 session was directed to be postponed by this Court. The
      consideration that weighed with this Court, inter alia, was that owing to
B
      the lockdown in several states, it would have been virtually impossible
      for candidates to reach the examination centres. Further, it was observed
      that many of the doctors who would be appearing for the examination
      were exposed to Covid-19 and would have to quarantine and isolate
      themselves. There was also an apprehension that conducting the
C     examination at that time could lead to the spread of the virus. The relevant
      observations are reproduced below:
                “The attention of the court has also been drawn to news reports
                of extensions of lock down, in many States. It is reported that in
                Odisha lock down has been extended till 16th June, 2021. In
D               Maharashtra and Andhra Pradesh and also in Kolkata, the lock
                down has been extended till 15th June, 2021. It would be extremely
                difficult, if not virtually impossible for many candidates for the
                INI CET to reach their examination centres from their places of
                duty. Many of the doctors are exposed to and are running the risk
                of contracting Covid 19 and they may have to isolate and/or
E               quarantine themselves. Even otherwise holding the INICET on
                16th June, 2021 will result in spread of the virus and increase in
                Covid19 cases.
                Having regard to the circumstances, pleaded, fixing of the INI
                CET on 16.06.2021 is arbitrary and discriminatory, more so since
F               other important examinations including Joint Entrance
                Examinations, Board Examinations etc. have been postponed.
                The impugned notice is, therefore, set aside. The INI CET is
                directed to be postponed by at least a month from 16th June,
                2021.”
G
             The factual matrix that led to the postponement of INI CET was
      completely different from the present circumstances. Crucially, the case
      dealt with conducting of an examination during a pandemic where strict
      lockdowns were in place. It did not relate to fixing of a cut-off date,
      8
H         Writ Petition (s) (Civil) No(s). 623 of 2021
 SHIKHAR & ANR. v. NATIONAL BOARD OF EXAMINATION                                 929
     & ORS. [DR DHANANJAYA Y CHANDRACHUD, J.]

which is bound to exclude some aspirants and include others. The law is          A
clear that such exclusion will always be incidental to fixing of any cut-
off date and cannot be termed arbitrary.
      16. Thus, on a considered view of the matter, it would not be
appropriate to entertain the petition under Article 32 of the Constitution.
The petition is accordingly dismissed.                                           B
       17. Pending application, if any, stands disposed of.


Devika Gujral                                         Writ Petition dismissed.

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