Maha P. & Ors vs The State of Kerala & Ors

Maha P. & Ors vs The State of Kerala & Ors

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले



Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal No. 3654 of 2022
Maha P. & Ors ....Appellants
Versus
The State of Kerala & Ors. .... Respondents
And with
Civil Appeal No. 3655 of 2022
2
J U D G M E N T
Dr Dhananjaya Y Chandrachud, J
1 These appeals arise from a judgment dated 8 April 2022 of a Division
Bench of the Kerala High Court, by which a writ petition seeking a direction to
grant time for fresh registration in the Non-resident Indian1 quota in NEET-UG in
unaided private medical colleges in the State of Kerala was dismissed. At the
core of the dispute is whether the seats reserved for the NRI quota in private
medical colleges in the State of Kerala can be transferred to the unreserved
category.
2 The National Testing Agency invited online applications for NEET-UG
2021-22 from 1 June 2021 to 21 June 2021. The last date for submitting
applications was extended to 24 June 2021. A notification was issued on 25
June 2021 granting an opportunity to candidates to make corrections to their
applications. The candidates were allowed to rectify defects from 11 September
2021 to 17 September 2021. Two extensions for the submission of documents
were given. The Government issued orders permitting the NRI candidates to cure
defects in attestation by 31 March 2022.
3 The private institutions reserve 15% of the total seats for the NRI category.
The unaided private medical colleges in the State of Kerala have a total of 358
seats in the NRI quota. The rank list of the eligible NRI quota candidates in
NEET-UG 2021-22 was exhausted after two rounds of counselling conducted by
 1 “NRI”
3
the Commissioner for Entrance Examination2
. However, even after the
exhaustion of the NRI rank list, 57 seats were vacant. The Kerala Private
Medical College Management Association3 made a representation to the CEE on
17 March 2022, requesting the authority to invite fresh applications to fill up the
vacant seats in the NRI quota on the ground that many students were unable to
submit the required documents before the cut-off date due to the Covid-19
pandemic. A writ petition was instituted on 24 March 2022 seeking a direction to
grant time to candidates to register for the NRI quota seats before the
commencement of the mop-up counselling. By an order dated 29 March 2022,
the Single Judge of the Kerala High Court directed the CEE to consider the
representation filed by the respondent association. Pursuant to the judgment of
the Single Judge, the respondent association made another representation to the
CEE on 30 March 2022. The CEE considered the representation and by an order
dated 31 March 2022 held that no further extension of time could be provided
since candidates had been given sufficient time to apply for the NRI quota:
“During this year, the applicants had been given sufficient
time to apply for NRI quota. After two phases of
allotments there are about 300 students remaining in the
NRI category list and awaiting for allotment. The mop up
counselling process is going on and the allotment is
scheduled to be published on 02.04.2022. As per MCI
schedule, the admission to MBBS course has to be
completed before 05.04.2022.
In these circumstances, it is not possible to invite fresh
applications for NRI quota. Hence, your demand in the
representation could not be considered.”
 2 “CEE” 3 “respondent association”
4
The CEE transferred 47 vacant NRI seats in private medical institutions to the
general state quota for the mop-up round. The Single Judge of the Kerala High
Court dismissed the writ petition on 4 April 2022 observing that:
(i) Out of the 358 NRI seats in the State of Kerala, 300 seats were filled
up before the second allotment. At the time of the filing of the writ
petition, about 57 seats in the NRI quota were vacant. After the
interim order dated 29 March 2022, a few more students exercised
their options. As of date, there are 46 vacant NRI quota seats;
(ii) Sufficient time was granted to the NRI quota candidates to exercise
their options. The classes have commenced. The last date for
admission is 5 April 2022; and
(iii) The CEE would be at liberty to transfer vacant seats in accordance
with clause 5.5.4 of the Prospectus for admission to Kerala
Engineering, Architecture, and Medical courses4
. There is no
challenge to the prospectus. If any further extension is granted for
fresh registration, it would disrupt the academic schedule.
4 The writ appeal against the judgment of the Single Judge was dismissed
by the Division Bench by its impugned judgment on 8 April 2022 on the following
grounds:
(i) Clause 5.5.4 of the Prospectus provides that the vacant seats in the
‘special reservation’ category, including the quota for persons with
disabilities will be transferred to the ‘mandatory reservation’ quota.
 4 “prospectus”
5
Clause 5.5.4 is an inclusive provision that includes the NRI quota
seats within the phrase ‘special reservation’; and
(ii) The CEE need not seek the permission of the members of the
respondent association before converting the vacant NRI seats as
per clause 5.5.4 of the prospectus; and
(iii) The last date for admission to MBBS courses is 8 April 2022.
Therefore, time for fresh registration in the NRI quota cannot be
granted. The NRI quota candidates were granted sufficient time to
exercise their options. The rank list was published on 24 December
2021. Thus, it can be assumed that no eligible NRI candidate is
available to exercise the options for the vacant seats.
5 The appellants are candidates who have qualified in the NEET exam and
had applied for the MBBS seats under the NRI category. The appellants were not
parties before the High Court. Mr Dushyant Dave and Mr Huzefa A Ahmadi,
senior counsel appearing for the appellants made a three-fold submission: one,
the NRI quota seats do not fall within the purview of ‘special reservation’ under
clause 5.5.4 of the Prospectus. Thus, vacant NRI quota seats cannot be
transferred; second, a three-Judge Bench of this Court in Modern Dental
College & Research Centre v. State of MP5
, held that vacant NRI seats in
unaided institutions cannot be transferred to the State following the earlier
decisions of this court; and third, the admission of the unreserved category
candidates to the 46 NRI seats in the mop-up and stray vacancy counselling
rounds is contrary to law and thus stands vitiated.
 5 “Modern Dental College”, (2009) 7 SCC 751
6
6 Mr Jaideep Gupta, senior counsel appearing for the State of Kerala
submitted that the representation of the respondent association to the CEE for
inviting fresh applicants for the NRI quota had been rejected after due
consideration. It was submitted that none of the 7 appellants whose names found
a place in the NRI list had exercised their options with respect to the 45 vacant
NRI seats that were transferred. Further, the senior counsel argued that the
judgment of the three-Judge Bench in Modern Dental College (supra) is not
applicable to the facts in the present case since the appellants had neither
challenged the prospectus nor the information bulletin which stipulates that
vacant NRI seats shall be transferred.
7 The State of Kerala submitted a status report on 23 April 2021 pursuant to
an interim direction of this Court. The status report states as follows:
(i) Admission to various professional degree courses is conducted in
terms of the Prospectus. By a notification dated 31 May 2021, CEE
invited online applications for professional degree courses from 1
June 2021 to 21 June 2021. Clause 7 of the notification stipulates
that the documents and certificates will have to be uploaded along
with the online applications. Clause 7(iv) of the notification states
that documents necessary for applying to the NRI quota will have to
be submitted by the applicants. By a Notification dated 26 June
2021, the time for uploading the online application was extended to
26 June 2021, and to upload the documents to 30 June 2021;
(ii) By a notification dated 30 October 2021, those who had applied for
admission to MBBS and BDS courses, were provided a further
7
extension of time from 30 October 2021 to 8 November 2021 for
uploading the documents. The candidates who had not claimed
reservation, including under the NRI quota for admission to medical/
allied courses were again granted an extension from 4 December
2021 to 10 December 20201 for uploading the relevant documents.
On the direction of the Admission Supervisory Committee, the CEE
granted candidates applying under the NRI quota seats, one
month’s time from the date of counselling or two days before the
second allotment for submitting attested documents from the
Embassy/Consulate. Therefore, the Respondent has provided
sufficient time for the submission of documents to candidates
seeking to apply under the NRI quota;
(iii) For the academic year of 2021-22, 385 seats were earmarked for
the NRI quota in 19 private self- financing private colleges in the
State. The CEE published a list of 614 candidates in the NRI
category;
(iv) According to the Medical Council of India Guidelines, options
exercised by the candidates for the Mop-up round are to be
considered final and will be used for filing up any stray vacancies
that may arise. Due to a lack of options filed by the candidates for
the final phase of counselling, 45 NRI quota seats were converted to
the ‘State Merit seats’ for mop-up allotment;
(v) The Information Bulletin published by the Medical Counselling
Committee provides that the vacant seats have to be converted
8
during the Mop-up round. According to the conversion algorithm
mentioned in the Information Bulletin, the unavailed NRI seats have
to be converted to the unreserved category. Therefore, given the
procedure provided under the Information Bulletin, the 45 NRI seats
were converted to State merit seats;
(vi) Only two vacant seats are available in Private Medical Colleges for
MBBS courses in the State after the first stray vacancy round. A
second round for stray vacancy allotment was published on 18 April
2022 to fill the two vacant seats in the self-financing colleges.
Among the two allotted candidates, one did not join the allotted
college. Thus, one seat is lying vacant in the All India Merit category
in Karuna Medical College, Palakkad as of 20 April 2022;
(vii) According to the schedule of the Medical Counselling Committee,
admission to the MBBS courses ought to have been completed by
the second week of April 2022. Fresh applications from the
candidates for the NRI quota cannot be invited when the counselling
process is nearing completion; and
(viii) Of the 38 petitioners, the names of 7 candidates find a place in the
NRI category list published by the Respondent. 12 candidates were
excluded from the final NRI category list due to the lack of proper
documentation and 19 candidates did not claim NRI quota seats at
any stage of the admission process. Of the 7 candidates, only 4
candidates had registered options for NRI seats in self-financing
9
medical colleges. None of the candidates had provided the option
for NRI seats during the mop-up round.
8 Clause 2 of the prospectus categorizes the seats in colleges. Clause 2.2
states that the categorization of seats in self-financing colleges run by institutions
under Government control and other private self-financing colleges will be notified
separately:
“The categorization of seats in self-financing colleges run
by institutions under Govt. control and other Private Selffinancing colleges will be notified separately. As per the
orders of the Hon’ble Supreme Court of India dated:
09.05.2017 on WP(C) No. 267/2017, the
allotments/admissions to the State Quota seats in all the
Government as well as Private Self Financing Medical
and Dental colleges shall be done through a Common
Counselling to be conducted by the Commissioner for
Entrance Examinations. The Common Counselling will
include NRI seats in Self-Financing Medical & Dental
Colleges and Minority Community Quota seats in Private
Self Financing Medical & Dental Colleges having Minority
Status.”
Clause 4 of the prospectus provides a list of reservations. Clauses 4.1.4 and
4.1.5 define ‘Special reservation’ and ‘mandatory reservation’ respectively:
“[…]
4.1.1 (ii) Reservation for All India Quota for
MBBS/BAMS/BSMS/BUMS Courses in Self-Financing
Medical/Ayurveda/Sidda/Unani colleges:-
Fifteen percent of the seats for the admission of students
to MBBS/BAMS/BSMS/BUMS Courses in Self-Financing
Medical/Ayurveda/Siddha/Unani Colleges in Kerala are
set apart for the allotment of candidates irrespective of
their Domicile as per the rank list prepared by the
Commissioner for the Entrance Examinations on the
basis of the rank obtained in NEET-UG 2021 conducted
by the National Testing Agency (NTA) New Delhi.
See clause 4.1.11(a) and 4.1.13(a) &(b)
4.12 Reservation for Nominees: These are the seats set
apart for the nominees of the Government of India, Union
Territories or other States for the various courses. [For
10
details, refer Clauses 4.1.11 (b), 4.1.12, 4.1.13, 4.1.14,
4.1.15]
4.1.3 Reservation for Persons with Disabilities: Leaving
the seats set apart under Clauses 4.1.1, 4.1.2 above, all
types of supernumerary seats sanctioned, five percent of
the seats available for the state for allotment from the
Entrance rank lists for all the courses in all the
Government and Aided Colleges are reserved for the
candidates with Benchmark disabilities [For details, refer
Clause 5.3]
4.1.4 Special Reservation: These are the seats reserved
for certain specific categories, for different courses. [For
details, refer Clause 5.2]
4.1.5 Mandatory Reservation: Leaving the seats set apart
for All India Quota, Government of India Nominees,
Special reservations, Persons with Disabilities, all types
of supernumerary seats sanctioned and Management
Quota, the remaining Government seats for each course
in Govt./Aided/KAU/KVASU/KUFOS Colleges will be
distributed as per the mandatory reservation principle as
contemplated in G.O (P) 208/66/Edn. Dated 2.5.1966,
G.O (Ms) No. 95/08/SCSTDD Dated 06.10.2008, GO
(Ms) No. 10/2014/BCDD Dated 23.05.2014 and as
modified from time to time.
The percentage break up of seats as per mandatory
reservation is as follows:
(A) State Merit (SM)
-50%
(B) Economically Weaker Sections in General Category
(EWS) -10%
(C) Socially and Educationally backward Classes (SEBC)
-30%
(a) Ezhavu(EZ)
-9%
(b) Muslim (MU)
-8%
(c) Other Backward Hindu (BH)
-3%
(d) Latin Catholic and Anglo Indian (LA)
-3%
(e) Dheevara and related communities (DV)
-2%
(f) Viswakarma and related communities (VK)
-2%
(g) Kusavan and related communities (KN)
-1%
(h) Other Backward Christian (BX)
-1%
(i) Kusumbi (KU)
-1%
11
(D) Scheduled Castes and Scheduled Tribes
-10%
(a) Scheduled Castes (SC)
-8%
(b) Scheduled Tribes (ST)
-2%
[…]
5.5.4 If any seat, in any special reservation quota including
PwD quota, is left unavailed by the candidates to that
particular category, it will go to the Mandatory reservation
quota, unless otherwise stated.”
9 Clause 4.1.4 of the Prospectus defines ‘Special Reservation’ as seats
reserved for ‘specific categories, for certain specific courses’. Clause 5.2 provides
a list of special category reservations which include Ex-servicemen Quota,
dependent of Defence personnel killed/missing/disabled in action, serving
Defence Personnel, CAPF, and Jewish quota. Furthermore, quotas specific to
courses are also termed ‘special reservations’. For instance, degree holders in
MBBS and BHMS have a quota in BAMS course, degree holders in Ayurveda
and Homeopathy have a quota in the MBBS course, children of Agriculturists
have a quota in BSc. (Hons.) Agri. Degree, and the children of Fishermen in
BFSc. course. Clause 4.1.5 which stipulates the breakup of reservation makes it
evident that only vertical reservation as mandated by Article 15, that is for the
socially and educationally backward classes6 and economically weaker section7
of the unreserved category are brought within the phrase ‘mandatory reservation’.
Clause 5.5.4 is broadly worded. Though the reservation for persons with
disabilities8 does not find a place in clause 5.2 of the proposal, clause 5.5.2
states that unavailed seats of special reservation ‘including PwD’ would be
transferred to mandatory reservation quota.
 6 “SEBC” 7 “EWS”
8 “PwD”
12
10 The Single Judge and the Division Bench of the High Court held that CEE
can transfer the unavailed seats of the NRI quota to the State merit quota under
Clause 5.5.4. The High Court held that Clause 5.5.4 was broadly worded to
include the NRI quota within the meaning of ‘special reservation’. The prospectus
does not mention the NRI quota in chapter 4 which is titled ‘reservation of seats
for various courses’. The only reference to the NRIs’ in the prospectus is in
clauses 2.2, 5.7 and 7.6(i). Clause 2.2 states that the categorization of seats in
self-financing colleges run by institutions shall be notified separately. It also
stipulates that the NRI seats in self-financing medical colleges shall be allotted by
common counselling. Clauses 5.7 and 7.6(1) provide information on the
documents required to be submitted under the NRI quota. The phrase ‘special
reservation’ cannot be read to include the NRI quota when the prospectus does
not stipulate the NRI quota as a category of reservation under Clause 4.
Moreover, Clause 2.2 states that the categorization of seats in self-financing
colleges shall be notified separately. Even if the argument that the NRI quota is a
special reservation is accepted, the unoccupied seats can only be transferred to
the mandatory quota (i.e SEBC and EWS reservation seats). However, in the
present matter, the CEE has transferred the unoccupied NRI quota seats to State
merit. Therefore, the reasoning of the High Court that the respondent could
transfer the unoccupied NRI quota seats to state merit by virtue of clause 5.5.4 is
erroneous.
11 The Medical Counselling Committee issued the Information Bulletin and
Counselling Scheme9 for admission to medical courses in 2021. Chapter 3 of the
 9 “Bulletin”
13
bulletin provides the process of admission for the MBBS course in 100% deemed
universities. The relevant portions of the bulletin are extracted below:
“ Chapter 3- 100% Deemed University
[…]
Reservation Policy:
• Candidates who fall under the category of NRI as per the
directions/orders of the Hon’ble Supreme Court of India in
the case (W.P (C) No. 689/2017-Consortium of Deemed
Universities in Karnataka (CODEUNIK) & Anr. v. Union of
India & Ors.) dated 22-08-2017 are eligible for NRI
category. OCI/PIO/Foreign Nationals candidates will be
considered as NRI. OCI/PIO/Foreign Nationals
Candidates will only be eligible for NRI seats vide Ministry
of Home Affairs Gazette notification No. S.O.1050(E)
dated 04th March 2021.
[…]
JAIN MINORITY/MUSLIM MINORITY/NRI
CONVERSION: JAIN MINORITY/MUSLIM
MINORITY/NRI seats remaining vacant during the MopUp rounds will be converted to Private Deemed
University seats after the exhaustion of all eligible Jain
Minority/Muslim Minority/NRI candidates to avoid
wastage of seats.
 The conversion of seats will be carried out during the
Mop Up Round of Deemed Universities. The said
conversion will be done only when the eligible
Candidates belonging to the said Conversion Category
have exhausted.
CONVERSION ALGORITHM
S. No. Conversion Category Category
Converted To
1 NRI/Jain Minority/Muslim
Minority
UR
The information bulletin elaborates on the categorisation of seats for the NRI
quota in deemed universities, the eligibility for the NRI quota and the conversion
of unoccupied NRI quota seats to unreserved seats (that is, State merit seats).
12 In Modern Dental College (supra), petitions were filed challenging the
constitutional validity of the Madhya Pradesh Niji Byavsayik Shikshan Sanstha
(Pravesh Ka Viniyaman Avam Shulk Ka Nirsharan) Adhiniyam 2007 and the
Rules framed thereunder. This Court held that the provisions of the 2007 Act
14
providing that the entire selection process for admission to UG and PG medical
courses and fee fixation shall be done by the State Government is contrary to the
principles laid down by the eleven-Judge Bench in TMA Pai Foundation v. State
of Karnataka10 and PA Inamdar v. State of Maharashtra11. However, this Court
issued an interim order for admission to the medical seats in unaided colleges for
the academic term of 2009-10:
“We, therefore, direct that the admissions in the private
unaided medical/dental colleges in the State of Madhya
Pradesh will be done by first excluding 15% NRI seats
(which can be filled up by the private institutions as per
para 131 of Inamdar case [(2005) 6 SCC 537] ), and
allotting half of the 85% seats for admission to the
undergraduate and post-graduate courses to be filled in
by an open competitive examination by the State
Government, and the remaining half by the Association of
the Private Medical and Dental Colleges. Both the State
Government as well as the Association of Private Medical
and Dental Colleges will hold their own separate entrance
examination for this purpose. As regards “the NRI
seats”, they will be filled as provided under the Act
and the Rules, in the manner they were done earlier.”
 (emphasis supplied)
A dispute arose over the unfilled seats in the 15% seats that are set aside for
NRIs’. In RD Gardi Medical College v. State of MP12, 10 NRI quota seats in the
petitioner-college were unfilled. The High Court held that the unfilled NRI seats
have to be shared between the State and the petitioner-college in equal
proportion. This Court dismissed the appeal against the judgment of the High
Court observing that the order was in compliance with the judgment in Modern
Dental College (supra) where it was directed that the NRI seats be filled “as
provided under the Act and the Rules, in the manner they were done earlier.’
 10 (2002) 8 SCC 481 11 (2005) 6 SCC 537 12 (2010) 10 SCC 225
15
Since Rule 8 of the Admission Rules 2008 stipulated that the vacant NRI seats
shall be merged into the general pool, it was held that the vacant NRI seats were
filled up in accordance with the judgment in Modern Dental College (supra):
“28. A plain reading of the above leaves no manner of
doubt that unfilled NRI seats had to be transferred to the
general pool to be filled up on the basis of the merit of the
candidates in the State-level common entrance test
conducted by the Madhya Pradesh Vyavsayik Pariksha
Mandal or by any other agency authorised by the State
Government for that purpose. The unfilled seats in the
NRI quota were, therefore, to be treated as a part of the
general pool and once that was done the share of the
College in terms of the order passed by this Court would
be 50% out of the said seats. The High Court has, in that
view, rightly held that while the management was justified
in filling up 5 unfilled seats in NRI quota, the remaining 5
could not have been filled up otherwise than on the basis
of the entrance test referred to in Rule 8.”
13 In view of the observations in RD Gardi Medical College (supra), IAs
were filed for modication/clarification of the orders passed by the two-Judge
Bench in Modern Dental College (supra) and RD Gardi Medical College
(supra). This Court noted that there is a conflict between the observations in para
28 of the judgment in RD Gardi Medical College (supra) and para 27(1) of TMA
Pai Foundation v. State of Karnataka13. In TMA Pai (supra), it was observed
that the college shall admit students in the order of merit in the vacant NRI quota
seats. Therefore, the matter was referred to a larger Bench. However, the larger
Bench could not resolve the apparent conflict before the admissions for the
academic year 2011-12 were to begin.
14 The same issue of transfer of vacant NRI seats arose in the academic year
of 2012-13. A two-judge Bench by an order dated 9 December 2011 had directed
that the matter be placed before a Constitution Bench. However, since the matter
 13 (1995) 5 SCC 220
16
was not likely to be heard by a Constitution Bench shortly, a three-Judge Bench
in Modern Dental College and Research Centre v. State of Madhya
Pradesh,
14 heard the IA’s on the issue of transfer of unfilled NRI seats for the
academic term of 2012-13. Allowing the IA’s, it was observed that the finding in
RD Gardi Medical College (supra) is contrary to the judgments of the
Constitution Bench in TMA Pai Foundation v. State of Karnataka15, a threeJudge Bench in TMA Pai Foundation v. State of Karnataka16, and Inamdar
(supra). The Court observed:
“18. We are of the considered view that the above
principles laid down by the larger Benches of this Court,
in the matter of filling up of NRI seats were not correctly
understood or applied by this Court in R.D. Gardi Medical
College [(2010) 10 SCC 225] while interpreting Rule 8 of
the M.P. Admission Rules, 2008. The finding recorded
in R.D. Gardi Medical College [(2010) 10 SCC 225] that
the unfilled seats in NRI quota in unaided professional
colleges should be treated as a part of the general pool
and be shared equally by the State and the unaided
professional colleges goes contrary to the principles laid
down by the eleven-Judge Bench in Pai
Foundation [(2002) 8 SCC 481] , Inamdar [(2005) 6 SCC
537] as well as the judgments rendered by the threeJudge Bench [Ed. : And the judgment rendered by the
five-Judge Bench in Pai Foundation, (1994) 4 SCC 728.]
in Pai Foundation [(1995) 5 SCC 220] , referred to earlier.
The wrong interpretation given in R.D. Gardi Medical
College [(2010) 10 SCC 225] is seen incorporated in Rule
5 of the Madhya Pradesh Private Medical and Dental
Undergraduate Course Entrance Examination Rules,
2011 as well, which in our view cannot be legally
sustained.”
15 The Constitution bench in TMA Pai Foundation (supra) had held that the
unfilled NRI quota seats can only be filled by the management at its discretion:
“3. So far as the NRI quota is concerned, we fixed the
same as 15% last year. We fixed the NRI quota in
 14 (2012) 4 SCC 707, “Modern Dental College and Research Centre” 15 (1994) 4 SCC 728 16 (1995) 5 SCC 220
17
respect of minorities' institutions as 5%. Although the NRI
quota should not, normally, be more than 5%, but
keeping in view the reduction in the fee structure, we fix
the same as 10% (of the total seats) for this year. We
further make it clear that in case any seat in the NRI
quota remains unfilled, the same can be filled by the
management at its discretion.”
The three judge Bench in TMA Pai Foundation (supra) reiterated the
observations of the Constitution Bench:
“(1) So far as NRI quota is concerned, it is fixed at fifteen
per cent for the current academic year. It shall be open to
the management to admit NRI students and foreign
students within this quota and in case they are not able to
get the NRI or foreign students up to the aforesaid
specified percentage, it shall be open to them to admit
students on their own, in the order of merit, within the
said quota. This direction shall be a general direction and
shall operate in the case of all the States where
admissions have not been finalised. It is, however, made
clear that by virtue of this direction, no student who has
already been admitted shall be disturbed or removed.”
A similar observation was also made by a two-Judge Bench of this Court in
AP(P) Engineering College Management Association v. Government of
AP17. This Court in Modern Dental College and Research Centre (supra) had
further referred to Inamdar (supra) where it was held that the imposition of the
reservation policy of the State on unaided private universities is an encroachment
of the right and autonomy of private professional educational institutions:
“125. […] such imposition of quota of State seats or
enforcing reservation policy of the State on available
seats in unaided professional institutions are acts
constituting serious encroachment on the right and
autonomy of private professional educational institutions.
[…] Such appropriation of seats can also not be held to
be a regulatory measure in the interest of the minority
within the meaning of Article 30(1) or a reasonable
restriction within the meaning of Article 19(6) of the
Constitution.”
 17 (2000) 10 SCC 565
18
16 In Modern Dental College and Research Centre (supra), an IA was filed
challenging the transfer of unfilled NRI seats to the State. However, in the matter
before us, only an extension of time for the submission of documents necessary
for applying for the NRI quota seats was sought. The prayer in the writ petition is
extracted below:
“i. Issue a Writ of Mandamus or such other writ, order or
direction directing the Respondents to grant time for fresh
registration in NRI Quota to the eligible before
commencement of the Mop-up counselling.
ii. Issue a Writ of Mandamus or such other writ, order or
direction directing, the 3rd Respondent to consider and
pass orders in Exhibit P3 representation within a time
limit to be fixed by this Hon’ble Court.
iii. Permit the members of the Petitioner association to
admit the NEET qualified eligible students who produce
the necessary documents in NRI Quota before the cut off
date stipulated by the Kerala University of Health
Sciences vide Exhibit P4, in the event the Respondents
does not invite fresh applications in the NRI Quota.
Issue such other writ, order, or direction as may be just
and necessary in the interest of justice.”
17 Moreover, the observations in Modern Dental College and Research
Centre (supra) were made concerning admissions for the year 2011-2012. The
principal issue of whether the unfilled NRI seats in unaided universities can be
transferred to the State is pending before the Constitution Bench. Further, the
observations made in PA Inamdar (supra) and the Constitution Bench in TMA
Pai (supra) will have to be read with Article 15(5) which was included by the
Constitution (Ninety-third Amendment) Act 2005.
18 The names of only 7 of the 37 appellants find place in the NRI category list
which was published by CEE on 31 January 2022. The respondent has submitted
that of the 7 appellants whose names find place in the NRI category list, only 4 of
them had registered options for NRI seats. However, candidates who had
19
received a higher rank than them were allotted those seats. Further, it was also
submitted by the respondent that none of the 7 candidates registered their
options for the 45 NRI seats that were later converted to unreserved seats. The
respondent submits that only because none of the 7 candidates registered their
options concerning NRI seats, were the seats converted to unreserved seats to
prevent the seats from lying vacant.
19 Since the appellants have not challenged the provisions of the Information
Bulletin which stipulate that the vacant NRI seats shall be converted to
unreserved seats during the mop-up round, we cannot decide on the legality of
such a conversion of seats. The 4 appellants who had registered their options for
NRI seats had not exercised their options with respect to any of the vacant 45
NRI seats. The respondents merely complied with the provisions of the
Information Bulletin which is not in challenge before us in the present
proceedings. The respondent association had only sought an extension of time
for submission of documents by candidates seeking to apply for the NRI quota
seats. The representation was rejected by CEE since sufficient time and
extension had been given for the submission of the documents. The appellants
have not contended that the rejection of the representation was malafide or
arbitrary.
20
20 We accordingly dismiss the appeals for the reasons set out above.
21 Pending applications, if any, stand disposed of.
…..…..…....…........……………….…........J.
 [Dr Dhananjaya Y Chandrachud]
…..…..…....…........……………….…........J.
 [Bela M Trivedi]
New Delhi;
May 18, 2022

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