CASE COMMENT ON:
DOES QUOTA AGAINST MERIT DETRIMENTAL TO NATIONAL INTEREST? ANALYSIS IN REFERENCE TO NEET PG CASE
Authored By- Hemlata Yadav
(Neil Aurelio Nunes vs Union of India, Writ (C) No.961OF 2021)
NEET PG case is about the constitutional challenges to reservation for OBC and EWS quota in the NEET UG and PG medical entrance exam. The analysis revolves around the SC verdict that the reservation in PG course is not Antithesis of Merit.
The notice was issued by the Director General of Health Services in the Union Ministry of Health and Family welfare which provided 27 percent reservation for OBC ( NCL) and 10 percent reservation for EWS in 15% and 50% All India Quota (AIQ) from academic year 2021-2022.
Before 1986, several State Governments reserved a proportion of seats in medical colleges for students domiciled in that State. In 1986, the Supreme Court held that the quota in State Government medical colleges for domicile students should not exceed 70% for undergraduate (UG) and 50% for postgraduate (PG).1 This prompted the creation of the All-India Quota (AIQ), which provides domicile-free, merit-based opportunities to medical students. In 1986, the Court accepted the Union’s suggestion to reduce AIQ seats to 15% for UG courses and 50% of PG courses. In 2003, the Court reiterated that the Government had no obligation to provide reservation in AIQ seats in three separate judgments. Then, in Abhay Nath v University of Delhi2 (2006), the Supreme Court held that 22.5% reservation (15% for Scheduled Castes and 7.5% for Scheduled Tribes) should be included in AIQ.3
Four writ petitions were filed against the Four writ petitions were filed challenging the AIQ scheme by doctors and students who wish to appear for NEET (the National Entrance-cum Eligibility Test) under the AIQ. There have been various arguments from both sides. These should be considered first.
ARGUMENTS AGAINST THE RESERVATION IS NOT ANTITHESIS TO MERIT INCLUDES FOLLOWING:
• Once a person is qualified as a doctor, he cannot be treated as belonging to a backward class anymore. Therefore, admission in PG seats must be purely based on merit, without any reservation;
• At the level of PG and super-speciality, doctors are required to possess high degree of skill and expert knowledge in specialised areas. This skill cannot be acquired by everyone. It would be detrimental to national interest to have reservations at this stage. Opportunities that are available for such training are minimal and therefore, it should only be available to the most meritorious;
• All India Quota was created in medical examinations by the Supreme Court in Pradeep Jain4 (1984) to provide a category of merit based seats free from increasing domicile reservations. Chandrachud J accordingly held that OBC reservations were permissible in the AIQ in Abhay Nath 5 (2009), the Court had already clarified that only domicile reservations are barred in the AIQ.
The above arguments are clearly presented and supported in a way with intention to consider that in PG course requires high degree of skills and expertise and such opportunities must be available to the most meritorious and providing any reservation for PG seats would be detrimental to national interest.
A binary was sought to be created between merit and reservation, where reservation becomes antithetical to establishing meritocracy should be considered.
ARGUMENTS FAVOURING THE RESERVATION IS NOT ANTITHESIS TO MERIT INCLUDES FOLLOWING:
• The AIQ scheme is a Central scheme. Therefore, the Central List of OBCs shall be used for implementing the reservation. Around 1500 OBC students in UG and 2500 in PG will be benefitted through reservation for OBC category in AIQ seats
• Providing reservation for the AIQ seats in medical/dental courses is a matter of policy and has never been held to be unconstitutional.
• That in Pradeep Jain6 only held that there would be no domicile-based reservation in the AIQ seats. It was not held that no reservation otherwise would be impermissible in the AIQ seats.
• That 27% OBC reservation in educational institutions was introduced by Central Educational Institution Act, 2006 and it was challenged in Ashok Kumar Thakur (supra) before a 5-judge bench of Supreme Court, the apex court, upheld the validity of 27% OBC reservation for admission in educational institutions.
• Merit cannot be measured solely in terms of marks. Merit must be construed in terms of the social value of a member in the medical profession.
SUPREME COURT VERDICT:
RESERVATION IS NOT ANTITHESIS OF MERIT
Merit to be balanced with Social Justice: A 2 judge bench of hon’ble Supreme Court ruled in favour that Reservation is not antithesis to merit. It was felt by Constitutional Assembly, that there must be a provision that enables entry of those communities into administration since they were deprived of such access in the past and formal equality of opportunity would not suffice. Shri Phool Singh emphatically provided a conception of substantive equality when he stated that merit of candidates cannot be evaluated through an open competition without
Regard to their social positions. Court balanced these competing imperatives. In such an understanding, merit is equated to formal equality of opportunity which has to be balanced against the concerns of social justice through reservation. Binary of merit and reservation has now become superfluous once this Court has recognized the principle of substantive equality as the mandate of Article 14 and as a facet of Articles 15 (1) and 16(1). An open competitive exam may ensure formal equality where everyone has an equal opportunity to participate. However, widespread inequalities in the availability of and access to educational facilities will result in the deprivation of certain classes of people who would be unable to effectively compete in such a system.
Benefit of any class not an exception to the general principle of equality:
MR Balaji vs State of Mysore8 , a constitution bench of this court observed that Article 15 (4) is an exception to Article 15 (1), which was introduced “because the interests of the society at large would be served by promoting advancements of the weaker elements in the society”. However, since Article 15 (4) (or reservation) was considered at odds with the notion of formal equality under Article 15 (1), which is broadly understood as complying with the principle of merit, this court observed that there should be a cap on reservations, which it specified generally should be 50%. This view was followed by this court in subsequent judgments where a special provision made for the benefit of a class was seen as a deviation from the principle of formal equality. However, the dominant view of this Court was challenged by Justice R. Subba Rao in his dissent in T. Devadasan vs Union of India, where the learned judge stated that Article 16 (4) is not an exception but rather a facet of Article 16 (1), which seeks to redress the historical disadvantage suffered by certain communities. The view expressed by Justice Subba Rao was adopted by this court in State of Kerala vs NM Thomas, which transformed the equality jurisprudence in India from that of formal equality to substantive equality; thus, also changing our understanding of reservations.
Merit is not solely of one’s own making:
An open competitive exam ensures formal equality where every individual is given an equal opportunity to participate but social justice cannot be achieved by negating the injustices stemming from widespread discrimination, inequality, unequal access to educational facilities, and other resources resulting in deprivation of their rights. Privileges to forward classes like good quality education, access to tutorials and coaching to prepare for competitive exams, social network, cultural capital which they inherit from their family. Performance in competitive examinations in higher educational institutes requires a great degree of hard work but merit is not solely of one’s own making, involves family, upbringing, schooling, fortune, gift of talent in one’s advancement. These examinations can only reflect the current competence of an individual but not the gamut of their potential, capabilities or excellence which are also shaped by lived experiences, subsequent training, and individual character .
2. NO PROHIBITION IN INTRODUCING RESERVATION FOR SOCIALLY AND EDUCATIONALLY BACKWARD CLASSES (OR THE OBCS) IN PG COURSES
Article 15(5) is a special provision for providing reservation in admission in educational institutes for the advancement of socially and educationally backward classes. It incorporates reservation in admission in UG courses as well as PG courses. Reservation in PG courses to a reasonable extent is not violative of the equality clause (as held in Saurabh Chaudhary v. UOI. Backwardness does not simply disappear because a candidate has a graduation degree. A graduation degree cannot create parity between forwarding class and backward class even if it makes the graduate with economic mobility.
3. RESERVATION OF 27% TO OBC UNDER AIQ SCHEME
AIQ scheme enables the State-run medical and dental institutions to allocate seats to students across the country to compete on merits through an open examination. Scheme of AIQ seats was devised in Pradeep Jain v. Union Of India9 case, where it was held that reservation based on domicile/residence is constitutionally valid but did not hold that reservation in AIQ seats, is impermissible and held that domicile free seats shall be provided in state-run medical and dental institutions. Regarding quantum of residence-based reservation, it was held that there cannot be a wholesale i.e. 100 % residence-based reservation, and a certain percentage of seats shall be filled by open merit by an all India Open examination without reservation based upon residence (Jagdish Saran v. Union Of India)10. Providing reservation In AIQ is a policy decision of the Government subject to judicial review so the permission of the SC before providing reservation in AIQ seats is not required.
ANALYSIS OF THE CASE
Analysis with reference to super speciality courses:
To devalue merit at the summit is to temporise with the country's development in the Vital areas of professional expertise. In science and technology and other specialised fields of developmental significance, to relax lazily or easily in regard to exacting standards of performance may be running a grave national risk because advanced medicine and other critical departments of higher knowledge, crucial to material progress, the people of India should not be denied the best the nation's talent lying latent can produce. If the best potential in these fields is cold-shouldered for populist considerations garbed as reservations, the victims, in the long run, may be the people themselves.11 It is difficult to denounce or renounce the merit criterion when the selection is for post-graduate or post-doctoral courses in specialised subjects. There is no substitute for sheet flair, for creative talent, for fine-turned performance at the difficult heights of some disciplines where the best alone is likely to blossom at the best. To sympathise mawkishly with the weaker sections by selecting sub-standard candidates, is to punish society as a whole by denying the prospect of excellence say in hospital service.
Furthermore ,Firstly, in the highest levels of education, to make selections, otherwise than by merit, is detrimental to the national and public interest. Secondly the need for making a special provision, itself disappears in the case of students aspiring for the highest level in education as persons who can apply for super speciality and postdoctoral courses are already post-graduates in the Medicine.12 There are some verified fields where merit and knowledge can be and should be the only criteria and regional, institution, social, economical and political reservations and considerations should take a back seat. Reservations are exceptions to the rule of bar on discrimination; and super speciality courses are exceptions to the rule of reservations
.Analysis with reference to principle of Stare decisis:
As per Black's law dictionary stare decisis refers to stand by decided cases, upholding precedents or maintaining former adjudications on issues that are similar in nature. Justice Marshal, US Supreme Court, Stare decisis: Promotes the even handed, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.
The Principle of stare decisis and rule of comity is not followed in the NEET PG Case, the top court did not pay heed to the principle and gave decision against the ratio decidendi in Ashok Kumar Thakur vs. union of India13 The apex court, upheld the validity of 27% OBC reservation for admission in educational institutions but categorically with two caveats, Firstly the persons from creamy layer of OBC's would be excluded from reservations (unanimous decision) Secondly, OBC's will not be eligible for reservation in Post graduate (PG) courses. (Decision by 3:2 majority). In Ashok Kumar Thakur four different judgements were penned down by Hon'ble judges, Justice KG Balakrishnan (then Chief Justice), Justice Dalbir Bhandari, Justice R.V. Raveendran and one was joint judgement of Justice Arijit Pasayat & Justice CK Thakker. Hon'ble Justice Dalbir Bhandari, in his separate opinion, categorically held that: "Once a candidate graduates from a university, the said candidate is educationally forward and is ineligible for special benefits under Article 15(5) of the Constitution for post graduate and any further studies thereafter" Hence, the apex court in 2008 categorically held that there cannot be any reservation in post graduate courses but the governments, since 2008, for the sake of pleasing a certain class of citizens, never implemented the judgement of Supreme Court. The recent notification which is challenged in NEET reservation case is blatantly in the violation of 5-judge bench judgement in Ashok Kumar Thakur case. After Ashok Kumar Thakur case, State cannot grant OBC reservation in Post-Graduation [PG] courses. But to the utter surprise, Hon'ble Supreme Court (Division bench) ignored the Ashok Kumar Thakur case and upheld the validity of 27% OBCs reservation in NEET-PG courses. It is to be noted that even if the petitioners had failed to argue the ratio decidendi of Ashok Kumar Thakur case, then also, Hon'ble Supreme Court should have considered the judgement of 5-Judge bench in Ashok Kumar Thakur case.
It is detrimental to national and public interest if the selection are based otherwise on merits in higher education. The very idea of reservation implies selection of a less meritorious persons. There are some verified fields where merit and knowledge can be and should be the only criteria and regional, institution, social, economic, and political reservations and considerations should take a back seat. Reservations are exceptions to the rule of bar on discrimination; and super speciality courses are exceptions to the rule of reservations. It is true that reservations are not 'antimeritarian' in a sense, as observed by the Supreme Court in Indra Sawhney v. Union of India, 14 The above observations in Jagdish Saran and Pradeep Jain were as observed above held that general sweep and context make it clear that whatever be the position in regard to post-graduate courses, in so far as Super Speciality courses, there can be no reservations at all. Furthermore, Judicial wisdom and propriety demand that the 2-Judge bench in NEET-PG case must have aligned with the ratio decidendi of the Ashok Kumar Thakur case.
1 Dr. Pradeep Jain Etc vs Union Of India And Ors. 1984 AIR 1420
2 2004 (2)BLJR964
3 OBC & EWS Reservation in Postgraduate Medical Admissions, https://www.scobserver.in/cases/neil-aurelionunes-union-of-India-aiq-medical-reservation