Nipun Tawari & Ors. vs The State of Maharashtra & Ors.

HELD: 1.1 Clause 7.2 of the brochure issued by the State Government provides that 50% of seats in post graduate diploma courses would be reserved for in-service candidates. Clause 7.2 also provides that “for in-service quota reservation, any change made by Government from time to time will be applicable”. An additional weightage for in-service candidates was also prescribed by Clause 7.2 in terms of clauses 9(IV) and (VII) of the MCI Regulations. Clause 8.16.1 prescribes that the eligibility for inservice candidates would be in terms of the Government Resolution dated 19 March 2019 or any other Government Resolution issued from time to time. Incentive marks of up to 10% marks for each year of service in remote and/or difficult areas subject to a maximum of 30% of the marks obtained in the NEET-PG 2022 was prescribed in Clause 8.17 of the brochure. [Para 28][605-D-F]

1.2 Clause 3 of the Government Resolution dated 26 September 2022 which prescribes a reservation of 20% of the State quota seats for in-service candidates also makes it clear that an in-service candidate seeking admission to the general category will not get any additional marks other than the marks obtained in the NEET Examination. In other words, an in-service candidate who opts for a seat in the general category would not be entitled to any weightage of marks. The weightage of marks is, therefore, prescribed in relation to those candidates who aspire for a seat in the 20% quota which is set apart for in-service candidates. [Para 29][605-F-H]

1.3 The submission of the appellants that the Government Resolution dated 26 September 2022 ought not to apply for the current academic year on the ground that it has altered the ‘rules of the game’ midstream cannot be accepted. The High Court has principally rejected the submission of the appellants on the ground that there was no challenge to the validity of the Government Resolution dated 26 September 2022 in which event, it is not permissible for the court to read it down so as to exclude its applicability for the current academic year. [Para 30][606-A-B] ORS.

1.4 There was no specific prohibition in the brochure in the matter of reservation for in-service candidates. On the contrary, Clause 7.2 of the brochure issued by the State of Maharashtra clearly specified that in quota reservations would abide by Government Resolutions as may be issued from time to time. Following the decision of the Constitution Bench in Tamil Nadu Medical Officers Association’s case, a writ petition was filed before the High Court of Judicature at Bombay seeking reservation for in-service candidates. In an order dated 24 January 2022, the High Court noted that there was a difference of perspective between the Public Health Department and Medical Education Department of the state. In this backdrop, the Division Bench, while noting the view which was taken by the Constitution Bench of this Court, adjourned the proceedings to 1 February 2022. Evidently, the State Government was in the process of taking a final decision which was ultimately reflected in the Government Resolution dated 26 September 2022. Thus, the background of the facts indicated in the earlier part of the judgment would show that there was a reservation for in-service candidates in post graduate degree courses in the State of Maharashtra until the situation came to be altered as a result of the decision of the three-judge bench in Dinesh Singh Chauhan’s case. The validity of reservation for in-service candidates in degree courses has since been restored following the decision of the Constitution Bench in Tamil Nadu Medical Officers Association’s case. The provisions in the brochure that in-service quota reservations would abide by any change made by government from time to time must be understood in the context of the above facts. [Para 31][606-C-G]

1.5 The provisions of the brochure specifically placed students on notice that in- service reservations would abide by such resolutions as may be issued by the government from time to time. The issue, therefore, has to be construed in the specific background of the facts as they pertained to reservation in the State of Maharashtra for in-service candidates in post graduate degree courses. [Para 32][607-A-B]

1.6 Clause 7.2 of the brochure issued by the State of Maharashtra clearly specifies that the reservation policy for inH service candidates is subject to any changes made by the government from time to time. Hence, the brochure envisages that there may be a change in the reservation policy for in-service candidates and accounts for the same. The rules of the examination have remained constant and the Government Resolution dated 26 September 2022 did not change the rules of the game after the admission process had commenced. [Para 33][607-E-F]

1.7 The selection criteria were not changed after the selection process commenced. To the contrary, the Government Resolution dated 26 September 2022 is in consonance with the brochure issued by the Government of Maharashtra. [Para 34][607-F-G; 608-A]

1.8 Out of 1416 post graduate medical degree seats in the State of Maharashtra, 282 have been reserved for in-service candidates. It would appear that 268 candidates obtained No Objection Certificates from their departments to apply for the in-service reservation. In the first round of counselling, 69 students were held to be eligible, having received marks above the cut off. 52 candidates have been granted admission in a post graduate medical program. [Para 35][608-B-C]

1.9 The Government of India, through the Ministry of Health and Family Welfare, has issued a communication on 17 October 2022 providing for a reduction in the cut- off marks in the NEETPG 2022 by 25 percentile across all categories. Following the above decision, it is likely that additional candidates would become eligible to participate in the subsequent rounds of counselling. Moreover, from a reading of Clause 7.10 of the brochure, it is apparent that if any seats which have been provided for the inservice quota remain unfilled, they shall be distributed to the ‘non-in-service’ category of candidates using the NEET-PG 2022 merit list. [Para 36][608-D-E]

1.10 The judgment of the High Court does not call for interference. [Para 37][608-E-F]

Tamil Nadu Medical Officers Association v. Union of India (2021) 6 SCC 568 : [2020] 8 SCR 583 - followed. ORS.

Dr Prerit Sharma v. Dr Bilu B S (2022) 2 SCC 751; State of Uttar Pradesh v. Dinesh Singh Chauhan (2016)

9 SCC 749 : [2016] 6 SCR 571; Dr Suryakant Tejrao Lodhe v. State of Maharashtra, Neil Aurelio Nunes (OBC Reservation) v. Union of India (2022) 4 SCC 1; A. P. Public Service Commission v. B. Swapna (2005) 4 SCC

154 : [2005] 2 SCR 991; Maharashtra SRTC v.

Rajendra Bhimrao Mandve (2001) 10 SCC 51 –

referred to.