NRI quota is at the discretion of the private college – Supreme Court
In the case of Nilay Gupta Vs Chairman Neet Pg Medical And Dental Admission/Counselling Board 2020 And Principal Govt. Dental College &amp; Ors. [Civil Appeal No. 3345/2020] Supreme Court held that private institutions have the discretion to factor in an NRI or any other permissible quota. Yet that discretion should be tempered; if the discretion to have such a quota is exercised, it should be revised or modified reasonably, and within reasonable time. The NEET PG 2020 examination had been held sometime in January, and the results were declared on 31.01.2020. The appellants were registered under the NRI category with the board for allotment of seats in the discipline of MD (Radiodiagnosis) in Rajasthan, sometime in the third week of March 2020. The Instruction Booklet for State Medical &amp; Dental PG Seats Allotments, 2020, stipulated that the seat matrix would be announced in ‘due course’. Clause 19 of the Instruction Booklet required separate documents to be furnished for NRI candidates. Mahatma Gandhi Medical College, Jaipur (hereafter ‘MGMC’), furnished a seat matrix to the State NEET Board showing that there would be no separate seats earmarked for the NRI quota, and that such NRI candidates would be considered for admission in the management quota. Feeling aggrieved, the two appellants, approached the Rajasthan High Court, contending that the decision to do away with the NRI quota was arbitrary. It was stressed by the respondents that no student has a right to claim admission and that private medical colleges cannot be compelled to earmark a separate quota for NRI candidates if they chose not to do so out of volition. The learned Single Judge held that there can be no distinction between the NRI seats and management seats and it was only after exhausting the option of filling eligible NRI candidates in that quota that the remaining seats in the 15% could be treated as management quota seats. In compliance with the directions of the single judge, the two appellants were given admission to courses of their choice. Since the judgment had far reaching repercussions, third party appeals were filed by students who had been offered MD/MDS seats in the management quota, and who faced threat to their admission; likewise, the board too appealed. The Division Bench allowed these appeals by the impugned judgment, by accepting the plea of the colleges, the board and the third-party appellants. The Division Bench reasoned that no student can claim a right to a NRI quota. The appellants approached the Apex court being aggrieved by a decision of a Division Bench of the Rajasthan High Court. Court observed that, “The provisions of the Rajasthan University of Health Sciences Act, 20058 throws open admission to all courses, offered by medical colleges affiliated to the University, to be open to all, subject to such reservations as may be made in favour of Scheduled Caste, Scheduled tribe, Other backward classes, girl students and other categories in accordance with any law or orders of the State Government for the time being in force.” Court relied on the case of P.A. Inamdar &amp; Ors. v. State of Maharashtra (2005) 6 SCC 537 whose plain reading reveals that a provision for 15% NRI quota was a not compulsory; it was only potential. This court, however, imposed two conditions for admission under the NRI quota, firstly, that such seats should be utilized bona fide by NRIs only and for their children or wards and secondly, that within this quota, merit should not be given a complete go by. Court held that, “It is evident that the NRI quota is neither sacrosanct, not inviolable in terms of existence in any given year, or its extent. However, if a medical college or institution or, for that matter, the state regulating authority, such as the board in the present case, decide to do away with it, reasonable notice of such a decision should be given to enable those aspiring to such seats to choose elsewhere, having regard to the prevailing conditions.”
 IN THE CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 3345 2020 ...APPELLANT(S CHAIRMAN NEET PG MEDICAL AND BOARD 2020 AND PRINCIPAL GOVT DENTAL COLLEGE & ORS CIVIL APPEAL NOS. 3346 3348 2020 CIVIL APPEAL NO. 3349 2020 CIVIL APPEAL NO. 3350 2020 CIVIL APPEAL NOS. 3351 3352 2020 JUDGMENT S. RAVINDRA BHAT J These appeals were heard with the consent of learned counsel for the parties. The appellants are aggrieved by a decision of a Division Bench of the Rajasthan High Court which upset the findings of a learned Single Judge of that High Court who found that the change of seat matrix for admission to post graduate PG) medical and dental seats in colleges in the State of Rajasthan for the academic year 2020 21 by eliminating the Non Resident Indian quota was unsustainable in law. The appellants were admitted pursuant to the direction issued by the learned Single Judge who had ruled that the deletion of such quota was contrary to law. Two sets of appeals and intervention applications arise for consideration: one appeals arising from petitions filed by Dr. Nilay Gupta and Dr Surmil Sharma the original writ petitionersand two appeals filed by Dr. Arushi Mittal Dr. Priyanka Sharma Dr. Anjali Agarwal Dr. Aditya Punia Dr. Varun Bhargava and Dr. Deepak Ramnani who are aggrieved by the impugned judgment inasmuch as the admissions they were granted pursuant the single judge’s directions despite not being parties to the original writ petition have now been overturned. An application to intervene has been preferred by Dr. Tirth Jitendra Kumar Modi who was granted admission to a PG course in the respondent private college on 27.08.2020 after the impugned judgment was delivered he has paid the fees and attended classes so far The factual matrix is that the process of admission to PG medical and dental courses for academic year 2020 21 began sometime in early 2020. The procedure for selection for admissions began with the NEET Post Graduate Test Common Eligibility Test which was held in January 2020. The schedule calendar for filling of the PG seats was made available online and also published in leading newspapers. Contemporaneously a meeting of the PG Counselling board for admissions to MD MDS course was held by the Chairman NEET PG Counselling board 2020 in Rajasthan sometime in the third week of March 2020. The Instruction Booklet for State Medical & Dental PG Seats Allotments 2020 which intimated the terms which applied to candidates stated inter alia that: a) NEET qualified candidates possessing a degree of MBBS BDS from colleges situated in the State of Rajasthan and all medical officers medical teachers serving under the Government of Rajasthan are eligible to participate for admissions in 50% of the total seats in private medical colleges b) For the remaining 50% of the total seats in private colleges all NEET qualified candidates possessing an MBBS BDS degree from anywhere are eligible to participate c) There are 3 types of seats as per the Medical Council of India government seats management seats and NRI seats. The responsibility for the type of seats in the seat matrix lie with the concerned institution. The Instruction Booklet further stipulated inter alia that the seat matrix would be announced in “due course”. The medical and dental colleges which offered admissions were to delineate the categories of seats as well as the respective fee to be charged in accordance with prevailing laws regulations etc. Clause 19 of the Instruction Booklet required separate documents to be furnished for NRI candidates in Proforma II and in the form of undertakings. The eligibility for filling NRI seats was spelt out in the following terms “Eligibility for NRI Seats As per order no. F.5and should be ordinarily residing abroad as an NRI or If student is taken as a ward by some other nearest relativetosuch students also may be considered for admission provided the guardian has bonafidely treated the student as a ward. For this following nearest relativeof candidate who should be ordinarily residing abroad as an NRI can only be considered I) Real Brother and sister of father i.e. real uncle and real aunt ii) Real brother and sister of mother i.e. real maternal uncle and maternal aunt iii) Father and mother of father i.e. grandfather and grandmother iv) Father and mother of mother i.e. maternal grandfather and maternal First degree paternal and maternal cousins.” All NRI candidates shall submit a proof being sponsored as NRI OCI PIO in the form of certificate issued by the Indian embassy Ministry of external affairs Government of India for this purpose. In the absence of that certificate a duly notarized undertaking executed by the sponsor and notarized by the Notary Public of the foreign country where the sponsor resides being submitted by the sponsor it be treated as sufficient as to the factum of the residence of the sponsor An affidavit from the sponsor that he she looks after such student and will sponsor the entire course fee of the candidate Refer requirement of additional documents for candidates applying for NRI seats under ‘List of documents to be deposited at the time of reporting’ Page 11 and 12 of the instruction booklet For admission under NRI Quota in Medical Dental Courses in the colleges in the State of Rajasthan priority shall be given to the NRI with ancestral background of the State of Rajasthan by own parents Grandparents resided in State of Rajasthan at least for a period of 5 years at any time. The proof of residence will also be applicable for the consideration priority for NRI Quota for which document electricity water bill Documents of immovable property Indian Passport Ration Card Voter ID Aadhaar Card etc.) to the effect for this criteria is required to be submitted by ward of NRIPersons of Indian Originare allowed for admission under NRI Quota.” On 11.04.2020 apparently one of the respondents i.e. Mahatma Gandhi Medical College Jaipurpublished its admission notification which stated inter alia that the total MD seats offered were 144 that NRI management quota seats would be 22 and that other than NRI management quota seats the other 50% would be state quota seatsand 50 seats were All India quota seats. The details of MD MS seats available in the MGMC were also shown in a tabular form. For MD 1 seat was earmarked in the All India 35% quota 3 seats were set apart for the state quota and 2 seats were set apart for NRI management quota seats. The appellants had by then furnished the requisite documents to claim admission in the NRI quota sometime in early March itself. The original notice spelling out the schedule for admissions including verification of documents etc. had fixed 30.03.2020 as the date for verification of status of NRI applicants. This process was postponed on 10.04.2020 to 14.04.2020 Before that date however on 13.04.2020 the State NEET PG Counselling board published a seat matrix in which the NRI quota was shown as NIL. It transpired that the MGMC had in the meanwhile furnished a seat matrix to the State NEET Board showing that there would be no separate seats earmarked for the NRI quota and that such NRI candidates would be considered for admission in the management quota The final seat matrix for PG medical allotments for AY 2020 21 furnished by the MGMC was annexed to the reply filed by the board before the single judge. It clearly showed that 22 seats were set apart as ‘management’ seats and none were shown as part of the management seats under the NRI quota. With respect to Radio Diagnosis the position was that out of a total of 6 seats 1 was kept apart as ‘management quota’. On 14.04.2020 a notification was issued by the board stating that the seat matrix for the current year would not contain the NRI Quota. The said notification intimation read as follows “Office of the Chairman NEET PG Medical & Dental Amission Counseling Board 2020 and Principal Govt. Dental College Subhash Nagar Behind T. B. Hospital Jaipur Phone: 0141 2280090 NEET PG MEDICAL & DENTAL ADMISSION COUNSELING 2020 Seat Matrixavailable at the websitedoes not have any NRI seat this year The candidates who have applied for allotment on NRI seats will accordingly be considered based on their remaining eligibility criteria NEET PD Medical & Dental Admission Counseling Board 2020 and Principal Govt. Dental College Jaipur Feeling aggrieved the two appellants i.e. Dr. Nilay Gupta and Dr.Surmi Sharmaapproached the Rajasthan High Court contending that the decision to do away with the NRI quota was arbitrary. They highlighted their having received a notice on 10.04.2020 to be in readiness for online counselling towards admission to the NRI seats. They relied upon the minutes of the meeting dated 17.03.2020 and submitted that the the NEET Counselling Board was to first fill the NRI seats in NRI quota and if there were no left out seats to fill them as part of the larger management quota. It was also submitted that on 13.04.2020 the NEET PG Counselling Bord whimsically and without any rationale in its final seat matrix deleted the NRI quota altogether following it up with a notification of 14.04.2020 stating that all NRI seats would now be considered as part of the management quota The board and the MGMC resisted the writ petition especially the appellants’ reliefs claimedfor the NRI seats the appellants could not be deprived of their choice of admission in NRI seats by the respondents through the process of deletion of the NRI quota seats altogether. The learned Single Judge held that there can be no distinction between the NRI seats and management seats and it was only after exhausting the option of filling eligible NRI candidates in that quota that the remaining seats in the 15% could be treated as management quota seats. Relying upon the minutes of the meeting of 17.03.2020 which indicated the sequence of admissionit was held that the change of policy mid stream as it were by the board and the colleges was contrary to law. The learned Single Judge also directed that the appellants i.e. the writ petitioners before the High Court should be given admission 16 SCC 537 2 Modern Dental College and Research Centre v. State of M.P & Ors.. 2012SC 433 and Manipal University v. Union of India15 SCC 664 In compliance with the directions of the single judge the two appellants were given admission to courses of their choice. Since the judgment had far reaching repercussions third party appeals were filed by students who had been offered MD MDS seats in the management quota and who faced threat to their admission likewise the board too appealed. The Division Bench allowed these appeals by the impugned judgment by accepting the plea of the colleges the board and the third party appellants. The Division Bench reasoned that no student can claim a right to a quotawere left with little or no choice. 14. Mr. Siddharth Dave learned senior counsel appearing for another candidate who was prejudiced on account of the Division Bench’s directions supported Mr Giri’s submissions. He highlighted that right from the decision in P.A. Inamdar4 this court has maintained that an NRI quota is available for overseas NRI candidates who wish to undertake studies in private colleges in India especially in medical courses. There is a twin objective behind creation of this quota: first to augment the coffers of the private college and enable “cross subsidization” of seats for the benefit of meritorious but poor students and secondly to enable students who have been schooled abroad to culturally immerse themselves and find their roots in Indian society. Such being the case the managements of private colleges could not have unilaterally and at the last moment withdrawn this quota to the detriment of the students who had consciously opted for it and were left with little or worse no options. It was submitted that even the seat matrix shown last i.e. on 13.04.2020 should not have included management quota candidates as eligible for the NRI quota this aspect was noticed and commented upon by the single judge based on a correct reading of the scheme of admissions 4 Supra n.1 Mr. Wasim Qadri learned senior counsel Mr. Anand Verma and Mr. DK Garg learned counsel made submissions on behalf of candidates. It was submitted that as a result of the single judge’s directions another round of counseling had taken place and students were accommodated in the NRI quota they had to give up the seats which they had previously opted for in other medical colleges to accept NRI seats because that conformed to their choice of discipline. Hence submitted these counsel the Division Bench’s ruling has resulted in adverse consequences to them. 16. Mr. Manish Singhvi learned Additional Advocate General for the state of Rajasthan argued that the NRI quota could not apply in the facts and circumstances of the case as the institutionshad not claimed any seats under the NRI quota for which the seat matrices were furnished by them on 11.04.2020. The allotment of seats was thus required to be made strictly in accordance with the merit of the candidates who had applied in the NRI quota as well as for the management seats. It was urged that the learned Single Judge erred in usurping the powers of the Counselling Board and directing it to allot particular subjectsSCC 481 colleges are “entitled to autonomy in their administration” even when they are bound to make merit based admissions. The court had stated that a “certain percentage” can be set apart to be filled by college managements based on merit determined by a common test to be conducted by the state or its agencies or the college. These observations were elaborated and the court enabled the creation of an NRI quota in such colleges in P.A Inamdar6. He also relied on the subsequent decision in Modern Dental College7 18. Mr. Shiv Mangal Sharma appearing for the fourth respondent i.e. Dr Anjaneya Singh Kathait in the appeal filed by Dr. Deepak Ramnani supported the submissions of Shri Dewan and highlighted that all candidates who were granted admissions in the NRI quota after the single judge’s directions were considerably low in merit. They were given undeserving benefit entirely because of erroneous directions by the single judge who could have at best required the board to consider NRI candidates on the basis of their merit in the NEET process. It was submitted that as a result there was no question of interfering with the impugned judgment which was justified both on merits as well as in law. This position was also adopted on behalf of the board which is separately arrayed as respondent Analysis and Conclusions The documents on the record show that a total of 717 seats were initially notified for admission in postgraduate medical courses in government colleges in the Rajasthan State 427 of were notified as intake in five private colleges in the state The board in its notification dated 10 04 2020 had stated that the rescheduling of Central NEET Counselling for the state of Rajasthan had been re notified the fresh schedule for the state indicated that counselling fee was to be deposited between 11.04.2020 and 13.04.2020. Concurrently the online registration for first counselling and information for filing of applications by the candidates was between 11.04.2020 6 Supra n.1 7 Supra n.2 and 13.04.2020 up to 11.55 PM. The third and fourth steps comprised of verification of disability certificate of all persons with disabilities as well as verification of status of NRI applicants. Management quota seats were notified by MGMC on 13.04.2020 these were 22 During the intervening period the private colleges lodged their seat matrices consciously they omitted the NRI quota. After publishing the matrix on 13.04.2020 and after the board’s notification of 10.04.2020the final position vis à vis unavailability of NRI seats was notified on 14.04.2020 The provisions of the Rajasthan University of Health Sciences Act 2005 8 throws open admission to all courses offered by medical colleges affiliated to the University to be open to all subject to such reservations as may be made in favour of Scheduled Caste Scheduled tribe Other backward classes girl students “and other categories in accordance with any law or orders of the State Government for the time being in force.” By virtue of insertion of Section 10 D in the Medical Council of India Act 1956 and regulations framed thereafter participation in a common National Examination by institutions offering medical courses including postgraduation courses as well as its attempt by candidates wanting admission became compulsory. The governing enactment which set up the respondent MGMC is the Mahatma Gandhi University of Medical Sciences and Technology Jaipur Act 2011. It provides9 for the procedure to be adopted for admissions as well as for reservations. Per proviso to Section 32(2) admission in 8 Section 7 9 Section 32 which reads as follows “32. Admissions. Admission in she University shall be made strictly on the basis of merit Merit for admission in the University may be determined either on the basis of marks or grade obtained in the qualifying examination and achievements in co curricular and extra curricular activities or on the basis of marks or grade obtained in the entrance test conducted at the State level either by an association of the universities conducting similar courses of by any agency of the State Provided that admission in professional and technical courses shall be made only through entrance test 3) Reservation in admission to the University for scheduled castes scheduled tribes backward classes special backward classes women and handicapped persons shall be provided as per the policy of the State professional courses is to be only through entrance test By Section 32(3) reservations for “scheduled castes scheduled tribes backward classes special backward classes women and handicapped persons shall be provided as per the policy of the State Government.” Regulations framed pursuant to the amendment effected in 2016 to the Medical Council of India Act in respect of admission to postgraduate medical courses made it obligatory for both institutions and students alike to give effect to the common eligibility testargue on the one hand that the admission process really began sometime in January 2020 when the NEET written test took place. The meeting convened by the board and attended by all parties concerned including private colleges who participated in admissions to postgraduate courses in private colleges clearly intended as on 17.03.2020 to fill up the 15% quota firstly amongst eligible NRI candidates and thereafter fill the leftover seats as part of the management quota. This understanding resulted in two consequences for NRI candidates the first was that they filed their applications and produced all relevant documents to support the claim that they were eligible for that 10 Regulation 9 to the extent it is relevant introduced in 2018 reads as follows “9. Procedure for selection of candidate for Postgraduate courses shall be as follows: There shall be a uniform entrance examination to all medical educational institutions at the Postgraduate level namely ‘National Eligibility cum Entrance Test’ for admission to postgraduate courses in each academic year and shall be conducted under the overall supervision of the Ministry of Health & Family Welfare Government of India. 2) The “designated authority” to conduct the ‘National Eligibility cum Entrance Test’ shall be the National Board of Examination or any other body organization so designated by the Ministry of Health and Family Welfare Government of India. 3) 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 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 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 Entrance Test held for any academic year for 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. 4) The reservation of seats in Medical Colleges institutions for respective categories shall be as per applicable laws prevailing in States Union Territories. An all India merit list as well as State wise merit list of the eligible candidates shall be prepared on the basis of the marks obtained in National Eligibility cum Entrance Test and candidates shall be admitted to Postgraduate Courses from the said merit lists only.” quota secondly with the publication of the board’s notification of 10.04.2020 some of themhad applied as NRI candidates within the time indicated in the rescheduled timeline. Thus goes the argument having held out to all NRI candidates about the availability of seats for that quota as well as the sequence of filling up those seats at the penultimate hour the board could not have decided unilaterally or even permitted colleges unilaterally to withdraw the NRI quota seats altogether. In support of their arguments two lines of authorities are cited: the first are those judgements starting with P.A. Inamdar11 which hold that while private educational institutions have the right to admit students of their choice that right can be regulated by law and that a quota for NRI candidates to the extent of 15% is permissible. The second is the line of reasoning which says typically in the context of selection process for recruitment to public posts12 that once the process begins there cannot be a change in the “rules of the game” i.e. substantial change in the matrix of consideration which adversely or irreversibly affects the prospects of candidates who reposed their faith and expectations on the integrity of the procedure and its continuance till its completion The arguments of the state the colleges and candidateson the other hand is that P.A. Inamdar13 did not carve out the NRI quota in stone. In other words private educational institutions including medical colleges are not obliged to set apart such a quota and that the observations of this court in the said decision only enable the colleges or universities to avail of that quota to the extent of 15%. In a given year the management of the private college may choose not to have any quota for NRI candidates in the next year it may choose to have it but not to the extent of 15% and prefer to limit it to 5% likewise for the third year depending on demand the private college or institution may provide for 15% NRI quota. It is hence argued that the decision of all Supra n.1 12 K. Manjushree v. State of Andhra Pradesh & Anr. 3 SCC 512 13 Supra n.1 private colleges in Rajasthan not to avail of the NRI quota reservation or set apart and rather fill up the entire 15% from amongst those who had opted for management seats was justified. The counsel appearing for the private colleges urged that the decision not to offer an NRI quota in medical colleges in the state of Rajasthan was voluntarily and consciously taken given the extraordinary and unusual situation created by the pandemic. The explanation given by the colleges was that in their assessment NRI quota seats might not have been filled up to the normal expected levels and in the circumstances it was more appropriate to merge the seats earmarked for NRI candidates with the management seats. The accommodation of NRI quota candidates who had opted to be treated as such in the admission process was transparent and uniform in that all of them were considered on merits for the management quota seats. Thus there was no real prejudice suffered by such NRI candidates. It was underlined by the candidates admitted pursuant to the impugned judgement that were the clock to be set back and the directions of the single judge affirmed they would be irreparably prejudiced. It was lastly argued that the single judge could not have directed the admission of the petitioners who had approached the High Court regardless of their merit even within the NRI quota It is undoubtedly a matter of record that on 17.03.2020 when the board convened the meeting attended by representatives of all participating colleges including private medical colleges offering seats in the postgraduate medical courses in Rajasthan) the unanimous thinking was to offer NRI Management seats to the extent of 15% of the total admission intake. This 15% turned out to be about 22 seats in MGMC. In the same meeting it was unanimously decided that the task of filling NRI seats would be taken up before filling the management seats this meant as a corollary that NRI counselling would be taken up first and after allocation of seats to suitable NRI candidates the leftover seats would be filled by management quota candidates. This was followed by the submission of forms by NRI candidates for the purpose of verification of their documents. When the provisional seat matrix was published on 10.04.2020 it did not indicate that those opting for admission exclusively as NRI candidates would be considered as belonging to any other category. It was only on 11.04.2020 that the private colleges appear to have sent their final matrix to the board. This matrix unbeknown to the NRI candidates proposed deletion of the NRI quota. In the circumstances when the final matrix was published for each college detailing the quotas for individual disciplines the original earmarking for NRI candidates was absent 24. A plain reading of the judgement of this court in Inamdar14 reveals that a provision for 15% NRI quota was a not compulsory it was only potential. This is clearly evident from the following passage in that judgment which all counsel from either side of the bar insisted on reading “Here itself we are inclined to deal with the question as to seats allocated for Non Resident Indiansor NRI seats. It is common knowledge that some of the institutions grant admissions to certain number of students under such quota by charging a higher amount of fee. In fact the term NRI in relation to admissions is a misnomer. By and large we have noticed in cases after cases coming to this Court neither the students who get admissions under this category nor their parents are NRIs. In effect and reality under this category less meritorious students but who can afford to bring more money get admission. During the course of hearing it was pointed out that a limited number of such seats should be made available as the money brought by such students admitted against NRI quota enables the educational institutions to strengthen its level of education and also to enlarge its educational activities. It was also pointed out that people of Indian origin who have migrated to other countries have a desire to bring back their children to their own country as they not only get education but also get reunited with Indian cultural ethos by virtue of being here. They also wish the money which they would be spending elsewhere on education of their children should rather reach their own motherland. A limited reservation of such seats not exceeding 15% in our opinion may be made available to NRIs depending on the discretion of the management subject to two conditions. First such seats should be utilized bona fide by the NRIs 14 Supra n.1 only and for their children or wards. Secondly within this quota the merit should not be given a complete go by. The amount of money in whatever form collected from such NRIs should be utilized for benefiting students such as from economically weaker sections of the society whom on well defined criteria the educational institution may admit on subsidized payment of their fee. To prevent misutilisation of such quota or any malpractice referable to NRI quota seats suitable legislation or regulation needs to be framed. So long as the State does not do it it will be for the Committees constituted pursuant to Islamic Academy s direction to regulate.” Clearly this court had the benefit of past experience with the concept of NRI quota: witness its skepticism about filling of such seatsby undeserving and unmerited candidates to the detriment of more meritorious students. Therefore the court indicated a limited quota with some essential controls in the manner of filling up of such NRI quota seats. These were a) The NRIs who wish to bring their children to this country not only for their education but also to get them reunited with the Indian cultural ethos by virtue of being here and to enable the NRIs to expend money to reach their mother land b) Having pointed out the reality behind the incorrect or “misnamed” NRI quota and found substance in the purpose behind allowing such quota this court favoured a limited reservation not exceeding 15% of sanctioned seats to be made available for the NRIs however depending on the discretion of the management c) This court however imposed two conditions for admission under the NRI quota firstly that such seats should be utilized bona fide by NRIs only and for their children or wards and secondly that within this quota merit should not be given a complete go by The four crucial elements in the NRI quota per Inamdar15 are: one the discretion of the management two the limit 15%) three that seats should be available for genuine and bona fide NRI students and lastly that the quota was to be filled based on merit 26. The board’s notification dated 10.04.2020 with respect to the sequence or calendar of events for the purpose of admissions to PG courses in medical colleges in Rajasthan on which much emphasis was placed reads as follows 15 Supra n.1 Earlier the break of seats published on 17.03.2020 stated that 15% of the total intake in PG medical courses were to be filled by NRI management quota aspirants the sequence to be adopted undoubtedly clarified that in the order of things the NRI candidates’ applications would be considered first for counselling and admissions and the ‘left over’ seats would then be filled from amongst merited management quota applicants in addition to the 35% management seat candidates. The colleges however consciously decided not to go ahead with the NRI quota a decision the basis of which is explained as the assessment by such private colleges offering MD courses that there was a likelihood that many NRI seats would go unfilled 28. Given that the decision in TMA Pai Foundation16 was by a larger bench of 11 judges and PA Inamdar17 was a judgment delivered by seven judges this court is clear that precedentially those and other previous judgements of this court only declared that as a part of the private colleges’ autonomous decision making they could set apart some percentage of seats for admission to students of their choice The Inamdar18 decision is important inasmuch as it declared that the set apartfor NRIs should be about 15% of the overall intake. Other decisions of this court19 have underlined the paramountcy of the NEET requirement as a common standard regulating medical courses’ admissions in India irrespective whether the courses are offered in publicly owned state owned or privately owned or managed institutions. A combined effect of the provisions of the Medical Council of India Act and regulations with respect to admissionsand the decisions of this court is that private colleges and institutions which offer such professional and technical courses have some elbow room: they can decide whether and to what extent they wish to offer NRI or management quotas the limits of which are again defined by either judicial precedents enacted law or subordinate legislation). In these circumstances it is held that the respondent managementpossessed the discretion to indicate whether and to what extent NRI reservations could be provided. As is evident there is nothing in PA Inamdar20 to say that a 15% NRI quota is an unqualified and unalterable part of the admission process in post graduate medical courses. It was and remains within the 16 Supra n.3 17 Supra n.1 18 Supra n.1 19 Modern Dental College & Research Centre and the recent decision in Christian Medical College Vellore Association v. Union of India 2020 SCC OnLine SC 423 20 Supra n.1 discretionary authority of the management of private medical colleges within their internal policy making domain. The impugned judgment in this court’s opinion is correct in that it held that the single judge could not have directed admission of the candidates before him There is a body of case law21 which clarifies that sans a statutory duty a positive direction to do something in a specific manner cannot be givenat the cost of third parties who had by then been given admission based on their merit as management quota students another set of individuals who had not professed any grievance were given admission post judgement of the single judge. The preceding observations ought to have been dispositive of the present case Nevertheless the court is of the opinion that the discretion of private managements who set up and manage medical colleges cannot be left to such an untrammelled degree as to result in unfairness to candidates. Undoubtedly these private institutions have the discretion to factor in an NRI or any other permissible quota. Yet that discretion should be tempered if the discretion to have such a quota is exercised it should be revised or modified reasonably and within reasonable time. This case presents some unusual features in that the admission calendar appears to have been thrown out of gear on account of the Covid 19 pandemic. The NEET written test was 21 Tirumala Tirupati Devasthanams v. K. Jotheeswara Pillai 9 SCC 461 Bihar Eastern Gangetic Fishermen Coop. Society Ltd. v. Sipahi Singh4 SCC 145 K.V. Rajalakshmiah Setty v. State of Mysore AIR 1967 SC 993. 22 Bihar Eastern Gangetic Fishermen Coop. Society Ltd. v. Sipahi Singh 4 SCC 145 held in January and the results were declared on i.e. 31.01.2020. At that stage and soon thereafter till the end of March the thinking of the colleges and the board appears to be that the NRI quota in private medical colleges would be maintained evident from the minutes of meeting dated 17.03.2020). The rapidity with which the pandemic progressed perhaps generated a broad consensus among private colleges that going ahead with the NRI quota would be inadvisable. This court cannot comment on the wisdom of such thinking as it falls within the exclusive domain of private decision making. What is striking however is that even when this thinking was emerging the original schedule and the sequence for filling up of the NRI seats was maintained and even rescheduled. Thus in terms of the board’s notification of 10.04.2020 the NRI students’ documents were to be verified on 14.04.2020 Apparently immediately a day after that notification on 11.04.2020 to be precise the private colleges en masse appear to have decided not to proceed with the NRI quota and instead merge it with the 35% management quota seats and proceed to fill them entirely based upon rank based merit of the management quota candidates arranged in terms of their ranking and performance in the NEET. NRI candidates were to be treated as management quota candidates and their applications too considered on the basis of their overall merit in that category. Viewed in isolation this decision is perfectly valid it gives one the impression that NRI students were not prejudiced. Undoubtedly the decision to abolish the NRI quota was exclusively within the scope of the private institutions’ decision making. Yet what is apparent is that by this time the NRI students had not only started applying for counselling but had also submitted all their documents for verification to determine their eligibility for the NRI quota seats and in a sense committed themselves as candidates for NRI quota seats in Rajasthan for whatever perceived advantages they could reasonably see in their favour. Hence when the matter stood thus when the final seat matrices were published on 13.04.2020 it acted to the unfair detriment of these NRI students. 31. Noticeably the writ proceedings initiated by the two candidatesdid not claim that it was representative in character. It only sought to highlight the arbitrariness in the admission procedure and premised it largely upon the violation of the mandate of this court in PA Inamdar23. As held earlier private medical colleges are not obliged to provide for such NRI quota seats to the extent of 15% in any given year but the peculiarities of this case which are the prevailing pandemic the various steps which impelled the NRI quota candidates to commit themselves and the eleventh hour policy change brought about through the final matrix published on 13.04.2020 acted to the distinct disadvantage of these NRI candidates. It also appears from the record that most of the students reconciled themselves to their candidature being considered on merits at par with the management quota candidates. Many such NRI students who did not approach the court were given admission in disciplines other than their primarily choices due to their relative standing in the state merit list of NEET eligible candidates. The directions of the single judge injected in an altogether different dimension to the facts in directing that the writ petitioners before him be given admission rather than leaving it to the board. A pandora’s box of fresh claims appears to have been opened up. This resulted in a so called second round of counselling exclusively meant for NRI candidatesresulting in the drawing up of an NRI quota list which was then acted upon. The resultant displacements led to those who had been given admission based upon the relatively higher merit ranking in the management quota approaching the Division Bench with third party appeals. The Division Bench set aside the single judge’s directions Another round of admissions to postgraduate seats was given to the third party appellants. It therefore falls upon this court to work out the most equitable manner of ensuring that the least disturbance occurs in the particular circumstances of this case 23 Supra n.1 33. As a result of the above discussion it is evident that the NRI quota is neither sacrosanct not inviolable in terms of existence in any given year or its extent However if a medical college or institution or for that matter the state regulating authority such as the board in the present case decide to do away with it reasonable notice of such a decision should be given to enable those aspiring to such seats to choose elsewhere having regard to the prevailing conditions. In the circumstances of this case and to do justice to all the parties this court is of the opinion that a special counselling session should be carried out by the board confined or restricted to the seats in respect of which admissions were made pursuant to the single judge’s directions. In this counselling session the board should ensure participation of the concerned colleges the counselling shall be a limited one confined only to the number of seats offered and filled as a result of the single judge’s judgment. Such seats shall be offered to the NRI applicants solely on the basis of merit the seats vacated by such merited studentsdo not wish to take up the offer the college concerned shall refund the fee collected from such student. It is also made clear that this special round of counselling should not disturb those admissions where students had accepted the deletion of the NRI quota and were accommodated in the management quota unless they had approached the court at the earliest opportunity in April 2020 before the judgment of the learned single judge. The entire process shall be completed with a week from the date of this judgment. This court clarifies that the validity of deletion of the NRI quota altogether by colleges and their “merger” as part of the larger management quota was not questioned as a general proposition the premise on which the parties argued their cases was that the NRI quota is inflexible and cannot be altered. The time within which an institution decides to do away with the quota during an ongoing admission process has not been prescribed inasmuch as the observations as to unfairness in the nature of the deletion is in the specific circumstances of this case. Likewise the directions in the previous paragraph are with regard to the circumstances of this case and to do complete justice to all parties The appeals and pending applications are disposed of in the above terms [L. NAGESWARA RAO [S. RAVINDRA BHAT New Delhi October 9 2020