Directions of Supreme Court for admission to NEET (UG and PG)

The submissions were urged before Supreme Court over a span of two days which necessitated a detailed interim order on the applicability of the EWS criteria as notified by OM 2019 for NEET-PG 2021. The formulation of the reasons in the interim order on the EWS reservation would take some time and therefore shall be delivered on a later date.

However the validity of the OBC reservation in the AIQ seats in NEET-PG and NEET-UG is upheld for reasons to follow. In the meantime, due to an urgent need to commence the process of Counselling the following operative directions were given by Supreme Court on 7th January 2022:

7 (i) We accept the recommendation of the Pandey Committee that the criteria which have been stipulated in OM 2019 be used for 2021-2022 in order to ensure that the admission process is not dislocated;

(ii) Counselling on the basis of NEET-PG 2021 and NEET- UG 2021 shall be conducted by giving effect to the reservation as provided by the notice dated 29 July 2021, including the 27 per cent reservation for the OBC category and 10 per cent reservation for EWS category in the AIQ seats;

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Arbitrary denial of Admission to MBBS Course.

The Respondent No.1 passed the final year MBBS Examination in January, 2019. She completed the one-year Compulsory Rotary Internship as a Resident Intern from 28.03.2019 to 27.03.2020 at Malla Reddy Narayana Multispecialty Hospital. Thereafter, she was awarded Bachelor of Medicine and Bachelor of Surgery Degree on11.06.2020. In the meanwhile, she appeared in the All-India National Eligibility-cum-Entrance Test (NEET)Medical PG Entrance examination, 2020 on 05.01.2020.She secured All India Rank-93563 with 327 marks in the NEET examination for admission into Post Graduation Medical Course. The Respondent No.1 was called for counselling and was given provisional admission to the MS (General Surgery) course in the Mop-up Phase (MQ)-P3 on 28.07.2020 and was allotted to the Respondent No.2- College under Management Quota. According to the provisional allotment order, Respondent No.1 was required to report before the Principal of Respondent No.2-College by 04:00 PM on 30.07.2020. In case of failure to report before Respondent No.2 -College within the prescribed time, the provisional selection of Respondent No. 1 shall be automatically cancelled.According to Respondent No.1, she approached Respondent No.2-College along with her father on29.07.2020 and 30.07.2020 for submission of certificates and payment of tuition fees as well as college fees. Inspite of her presence in Respondent No. 2-College, the admission of Respondent No.1 was not completed. On30.07.2020, the last date for admission into PG Medical Courses was extended till 30.08.2020 pursuant to the directions issued by this Court. Respondent No.1 made an attempt to meet the Chairman of Respondent No.2-College on 07.08.2020. However, she was not permitted to meet the Chairman. 3.Having left with no other alternative, Respondent No.1 filed a Writ Petition for seeking a declaration that denial of admission to her in the PG Medical Course for the academic year 2020-2021 as illegal. Respondent No.1 also sought a direction to Respondent No.2-College to grant admission in MS (General Surgery). Respondent No.2-College filed a counter in the Writ Petition in which it was stated that the University constituted a Committee for verification of original certificates and students who were allotted provisional admission by the University were directed to approach the said Committee for the purpose of verification of original certificates. Respondent No.2-College denied that Respondent No.1approached the College for admission on 29.07.2020 or 30.07.2020. In the next sentence the Respondent No.2-College averred that Respondent No.1 and her father visited the College on 29.07.2020 only for the purpose of enquiring about the admission procedure and the requisite fee. As Respondent No.1 did not avail the opportunity of admission, Respondent No.1-Collegecontended that Respondent No.5 was given admission on 11.08.2020.

By its judgment dated 18.09.2020, a Division Bench of the High Court allowed the Writ Petition and directed the Appellant to create a seat in MS (General Surgery)and to grant admission to Respondent No.1. The High Court disbelieved the statement of Respondent No.2-College that Respondent No.1 did not approach the College either on 29.07.2020 or 30.07.2020. The admission granted to Respondent No.5 who is 2000ranks below Respondent No.1 on 11.08.2020 was found fault with by the High Court. As Respondent No.1 was illegally denied admission by Respondent No.2-College,the High Court directed creation of a seat and to grant admission in MS (General Surgery) to her.

In S. Krishna Sradha case(supra), Supreme Court held as follows:

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Teachers after superannuation may continue in service for entire academic year

University Statute on Superannuation:

The appellants relied on Statute No. 16.24 of the University, applicable to them,contending that they were entitled to continue beyond the last date of the month in which each of them attained the age of superannuation, till the “30th of June following”in terms of that provision. That statute reads as follows:

“16.24 (1) The age of superannuation of a teacher of the University, whether governed by the new scale of pay or not shall be sixty-five years.(2) No extension in service beyond the age of superannuation shall be granted to any teacher after the date of commencement of these statutes.provided that a teacher whose date of superannuation does not fall on June 30, shall continue on service till the end of the academic session, that is June 30, following and will be treated as on re-employment from the date immediately following his superannuation till June, 30, following.(Provided further that such physically and mentally fit teachers shall be reappointed for a further period of two years, after June, 30, following the date of their superannuation as were imprisoned for taking part in freedom struggle of 1942 and are getting freedom fighters pension) Provided also that the teachers who were re-appointed in accordance with the second proviso as it existed prior to the commencement to the Kumaun University (Twenty-third amendment) First Statute, 1988 and a period ofone year has not elapsed after the expiry of the period of their reemployment, may be considered for re-appointment for a further period of one year.”

Teachers to continue till June 30th

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Reservation procedure when Reserved candidate selected on merits.

Reserve candidate qualifying on merits

Often, in a competitive examination held for the purpose of admission in technical and medical institutions etc. some candidates belonging to reserved category/categories, qualify for the higher ranking on the basis of their own merit and depending on their performance in the common entrance test, are placed in the general merit list. Such class of candidates belonging to reserved categories who qualify on their own merit, to be placed in general merit list, are described, for the purpose of convenience, as Meritorious Reserved Candidate (MRC). It is by now well settled that a MRC who goes on to occupy a general category seat is not counted against the quota reserved for a reserved category candidates, but is treated as an open competition candidate or general merit candidate. This Court in the case of Indra Sawnhey v. Union of India, 1992 Supp (3) SCC 217 has observed thus: Continue reading “Reservation procedure when Reserved candidate selected on merits.” →

Distance Education in Technical field by Deemed Universities

Validity of Engineering by Postal Education.

Technical Education in India and Role of AICTE:

Technical education leading to the award of degrees in Engineering consists of imparting of lessons in theory as well as practicals. The practicals form the backbone of such education which is hands-on approach involving actual application of principles taught in theory under the watchful eyes of Demonstrators or Lecturers. Face to face imparting of knowledge in theory classes is to be reinforced in practical classes. The practicals, thus, constitute an integral part of the technical education system. If this established concept of imparting technical education as a qualitative norm is to be modified or altered and in a given case to be substituted by distance education learning, then as a concept the AICTE ought to have accepted it in clear terms. What parameters ought to be satisfied if the regular course of imparting technical education is in any way to be modified or altered, is for AICTE alone to decide. The decision must be specific and unequivocal and cannot be inferred merely because of absence of any Guidelines in the matter. No such decision was ever expressed by AICTE. On the other hand, it has always maintained that courses leading to degrees in Engineering cannot be undertaken through distance education mode. Whether that approach is correct or not is not the point in issue. For the present purposes, if according to AICTE such courses ought not to be taught in distance education mode, that is the final word and is binding – unless rectified in a manner known to law.

Deemed University’s Commercial Venture:

The concerned Deemed to be Universities had gone far beyond their limits and to say the least, had violated binding policy statements. Even when they did not have any experience in the concerned field and had no regular faculty or college in Engineering, they kept admitting students through distance education mode. When there was nothing at the core, the expansion was carried at the tertiary levels in brazen violation. The idea was not to achieve excellence in the field but the attempts appear to be guided by pure commercial angle. We therefore, direct the UGC to consider whether the Deemed to be University status enjoyed by the concerned institutions, namely, JRN, AAI, IASE and VMRF calls for any such withdrawal and conduct an inquiry in that behalf. If the concerned Deemed to be Universities fail to return the moneys to the concerned students as directed above, that factor shall also be taken into account while conducting such exercise.

Students holding such degree to undergo test.

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Right to free Education under Constitution of India

Free education to all: A reneged constitutional objective of India!

Article 45 of Constitution of India providing objective of free education to all:

Article 45 of the Constitution of India as originally enacted had a promise to provide free education to all children until they reach the age of 14 years. This objective remain unfulfilled with no steps taken to achieve this objective which was in the nature of a directive principle to the governance of State. In 2002 this directive was modified and the obligation was changed to provide free education to children upto the age of six years. Thus the executive fainaiguer was constitutionally accepted.

Recent amendments in Constitution of India to provide free education:

Constitution (Eighty-Sixth Amendment) Act, 2002 reduced the age of children entited to free education to six years and inserted an article 21-A in the Constitution with the following objective:

“The Constitution of India in a Directive Principle contained in article 45, has ‘made a provision for free and compulsory education for all children up to the age of fourteen years within ten years of promulgation of the Constitution. We could not achieve this goal even after 50 years of adoption of this provision. The task of providing education to all children in this age group gained momentum after the National Policy of Education (NPE) was announced in 1986. The Government of India, in partnership with the State Governments, has made strenuous efforts to fulfil this mandate and, though significant improvements were seen in various educational indicators, the ultimate goal of providing universal and quality education still remains unfulfilled. In order to fulfil this goal, it is felt that an explicit provision should be made in the Part relating to Fundamental Rights of the Constitution.

Article 21A of the Constitution of India:

“21A. Right to education.: The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine.”

Constitution (Ninety-third Amendment) Act, 2005 (with effect from 20.01.2006) was enacted to provide following object:

“Greater access to higher education including professional education to a larger number of students belonging to the socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes has been a matter of major concern. At present, the number of seats available in aided or State maintained institutions, particularly in respect of professional education, is limited in comparison to those in private unaided institutions.”

This Constitution (Ninety-third Amendment) Act inserted clause (5) of Article 15 in the Constitution of India:

“Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30.

Challenge to provision for free education to backward classes:

The Clause (5) in Article 15 of the Constitution, vested a power on the State, independent of and different from, the regulatory power under clause (6) of Article 19, and question raised was whether this new power vested in the State which enables the State to force the charitable element on a private educational institution destroys the right under Article 19(1)(g) of the Constitution. Thus Supreme Court of India was called upon to decide the following two substantial questions of law:

Whether by inserting clause (5) in Article 15 of the Constitution by the Constitution (Ninety-third Amendment) Act, 2005, Parliament has altered the basic structure or framework of the Constitution of India
Whether by inserting Article 21A of the Constitution by the Constitution (Eighty-Sixth Amendment) Act, 2002, Parliament has altered the basic structure or framework of the Constitution India.

Reasoning of Supreme Court while upholding the above Constitutional Amendments:

In India by Constitution (Eighty- Sixth Amendment) Act, a new power was made available to the State under Article 21A of the Constitution to make a law determining the manner in which it will provide free and compulsory education to the children of the age of six to fourteen years as this goal contemplated in the Directive Principles in Article 45 before this constitutional amendment could not be achieved for fifty years. This additional power vested by the Constitution (Eighty-Sixth Amendment) Act, 2002 in the State is independent and different from the power of the State under clause (6) of Article 19 of the Constitution and has affected the voluntariness of the right under Article 19(1)(g) of the Constitution. By exercising this additional power, the State can by law impose admissions on private unaided schools and so long as the law made by the State in exercise of this power under Article 21A of the Constitution is for the purpose of providing free and compulsory education to the children of the age of 6 to 14 years and so long as such law forces admission of children of poorer, weaker and backward sections of the society to a small percentage of the seats in private educational institutions to achieve the constitutional goals of equality of opportunity and social justice set out in the Preamble of the Constitution, such a law would not be destructive of the right of the private unaided educational institutions under Article 19(1)(g) of the Constitution.

Under Section 12(1)(c) read with Section 2(n)(iv) of the Act, an unaided school not receiving any kind of aid or grants to meet its expenses from the appropriate Government or the local authority is required to admit in class I, to the extent of at least twenty-five per cent of the strength of that class, children belonging to weaker section and disadvantaged group in the neighbourhood and provide free and compulsory elementary education till its completion. We further find that under Section 12(2) of the 2009 Act such a school shall be reimbursed expenditure so incurred by it to the extent of per- child-expenditure incurred by the State, or the actual amount charged from the child, whichever is less, in such manner as may be prescribed. Thus, ultimately it is the State which is funding the expenses of free and compulsory education of the children belonging to weaker sections and several groups in the neighbourhood, which are admitted to a private unaided school. These provisions of the 2009 Act, in our view, are for the purpose of providing free and compulsory education to children between the age group of 6 to 14 years and are consistent with the right under Article 19(1)(g) of the Constitution

The width and amplitude test:

A plain reading of clause (5) of Article 15 would show that the power of a State to make a law can only be exercised where it is necessary for advancement of socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes and not for any other purpose. Thus, if a law is made by the State only to appease a class of citizen which is not socially or educationally backward or which is not a Scheduled Caste or Scheduled Tribe, such a law will be beyond the powers of the State under clause (5) of Article 15 of the Constitution. A plain reading of clause (5) of Article 15 of the Constitution will further show that such law has to be limited to making a special provision relating to admission to private educational institutions, whether aided or unaided, by the State. Hence, if the State makes a law which is not related to admission in educational institutions and relates to some other aspects affecting the autonomy and rights of private educational institutions as defined by this Court in T.M.A. Pai Foundation, such a law would not be within the power of the State under clause (5) of Article 15 of the Constitution. In other words, power in clause (5) of Article 15 of the Constitution is a guided power to be exercised for the limited purposes stated in the clause and as and when a law is made by the State in purported exercise of the power under clause (5) of Article 15 of the Constitution, the Court will have to examine and find out whether it is for the purposes of advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes and whether the law is confined to admission of such socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes to private educational institutions, whether aided or unaided, and if the Court finds that the power has not been exercised for the purposes mentioned in clause (5) of Article 15 of the Constitution, the Court will have to declare the law as ultra vires Article 19(1)(g) of the Constitution. In our opinion, therefore, the width of the power vested on the State under clause (5) of Article 15 of the Constitution by the constitutional amendment is not such as to destroy the right under Article 19(1)(g) of the Constitution.

A law made under clause (5) of Article 15 of the Constitution by the State on the ground that it treats private aided educational institutions and private unaided educational institutions alike is not immune from a challenge under Article 14 of the Constitution. Clause (5) of Article 15 of the Constitution only states that nothing in Article 15 or Article 19(1)(g) will prevent the State to make a special provision, by law, for admission of socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes to educational institutions including private educational institutions, whether aided or unaided by the State. Clause (5) of Article 15 of the Constitution does not say that such a law will not comply with the other requirements of equality as provided in Article 14 of the Constitution.

Exclusion of minority institutions from obligation to provide free education:

Minority educational institutions, by themselves, are a separate class and their rights are protected under Article 30 of the Constitution, and, therefore, the exclusion of minority educational institutions from Article 15(5) is not violative of Article 14 of the Constitution. By excluding the minority institutions referred to in clause (1) of Article 30 of the Constitution, the secular character of India is maintained and not destroyed.

[Source: Pramati Educational & Cultural Trust v. Union of India, (Supreme Court of India)]