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Supreme Court of India
Harshit Agarwal vs Union Of India on 8 February, 2021Author: L. Nageswara Rao
Bench: L. Nageswara Rao, S. Ravindra Bhat
Non-Reportable
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
Writ Petition (C) No.54 of 2021
Harshit Agarwal & Ors.
…. Petitioners (s)
Versus
Union of India & Ors.
…. Respondent (s)
With
Writ Petition (C) No.95 of 2021
JUDGMENT
L. NAGESWARA RAO, J.
1. The Petitioners in Writ Petition No. 54 of 2021 are
students who appeared in the National Eligibility-cum-
Entrance Test (NEET) examination 2020 for admission to the
first year of Bachelor of Dental Surgery (BDS) conducted on
13-09-2020. They did not obtain the minimum marks
prescribed by Sub-Regulation (ii) of Regulation II of the
Dental Council of India, Revised BDS Course Regulations,
2007 (hereinafter, ‘the Regulations’). Therefore, they were
not eligible for admission to BDS course. The second
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Respondent Dental Council of India, recommended the
lowering of qualifying cut off percentile for admission to BDS
course for the academic year 2020-2021.
2. The Petitioners submitted a representation to
Respondent No.1 seeking to lower the qualifying cut off
percentile on the recommendation of the Executive
Committee of Respondent No.2. The recommendation of the
Executive Committee was not accepted by the first
Respondent. Having no other alternative, the Petitioners
have filed these Writ Petitions under Article 32 of the
Constitution of India.
3. The Petitioners in Writ Petition No. 95 of 2021 are
Dental Colleges from the State of Andhra Pradesh seeking a
similar direction to lower the minimum marks for NEET
examination, 2020 for admission to BDS course by 20
percentile in each category based on the recommendation of
Respondent No.2.
4. We have heard Mr. Maninder Singh, learned Senior
Counsel for the Petitioners in Writ Petition No.95 of 2021 and
Mr. Krishna Dev Jagarlamudi, learned counsel appearing for
the Petitioners in Writ Petition No. 54 of 2021. Mr. Maninder
Singh, learned Senior Counsel submitted that the proviso to
Regulation II (5) (ii) of the Regulations empowers the Central
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Government to lower the minimum marks required for
admission to BDS course in consultation with the Dental
Council of India. In spite of the recommendation made by
the Dental Council of India for lowering the qualifying cut off
percentile, the first Respondent has arbitrarily and
unreasonably not acted upon the recommendation. He
stated that the first respondent accepted the proposal of the
second Respondent and lowered the cut off percentile for the
year 2019-2020. He also relied upon the proceedings
relating to the lowering of the minimum marks for the Super
speciality courses for the year 2019-2020 and for admission
in Ayurveda, Yoga and Naturopathy, Unani, Siddha and
Homeopathy (AYUSH) – UG courses for the year 2020-2021.
He contended that percentile is different from percentage
and by lowering the percentile there would be no
compromise of standards. He argued that 7,000 seats in the
first year BDS course are vacant and the available
infrastructure would be wasted. Mr. Krishna Dev, learned
counsel argued that there is no basis for the assumption that
lowering of the percentile would affect standards of
education. There is no basis for the allegation that the
private colleges have been charging exorbitant fees for which
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reason seats in the BDS first year are not being filled up,
according to him.
5. Ms. Aishwarya Bhati, learned Additional Solicitor
General submitted that the first Respondent has taken an
informed decision on 30.12.2020 not to lower the minimum
marks for admission to dental surgery course for the year
2020-2021 as sufficient number of candidates are available.
She submitted that 7.71 lakhs candidates were found to be
eligible for filling up 82,000 MBBS and 28,000 BDS course
seats. For each vacant seat seven candidates are available.
She further highlighted the point that there are 2.77 lakh
Dentists registered with the Dental Council of India. Taking
into consideration the availability of 80% of Dentists, there is
one Dentist for every 6080 persons which is better than the
WHO norms of 1 : 7500. It was further contended by her
that the seats in BDS course falling vacant is due to the
candidates giving preference to other streams or their
disability to pay exorbitant fee charged by the private
colleges. Responding to the submissions made by the
learned Additional Solicitor General, Mr. Singh, learned Senior
Counsel for the Petitioners brought to the notice of this Court
that admissions to AYUSH courses are also made from
students who qualify in the NEET examination 2021. The
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addition of 52780 seats in AYUSH would reduce the ratio of
eligible candidates to the seats available in BDS to 1 : 4.5.
6. Sub-Regulation (ii) of Regulation II of the Regulations is
as follows:
“In order to be eligible for admission to BDS Course for
a particular academic year, it shall be necessary for a
candidate to obtain minimum of marks of 50th
percentile in ‘National Eligibility cum-Entrance Test to
BDS course’ held for the said academic year. However,
in respect of candidates belonging to Scheduled Castes,
Scheduled Tribes, Other Backward Classes, the
minimum marks shall be at 40th percentile. In respect
of candidates with locomotory disability of lower
amendments, the minimum marks shall be at 45th
percentile. 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
admission to BDS course.
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 BDS
Course, the Central Government in consultation with
Dental Council of India may at its discretion lower the
minimum marks required for admission to BDS Course
for candidates belonging to respective categories and
marks so lowered by the Central Government shall be
applicable for the said academic year only”.
7. It is clear from the proviso that the Central Government
has the discretion to lower the minimum marks required for
admission to BDS course in consultation with the Dental
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Council of India when sufficient number of candidates in the
respective categories fail to secure minimum marks in the
NEET entrance test.
8. There is no dispute that on 06-09-2019 the first
Respondent lowered the qualifying cut off percentile for NEET
(UG) 2019 for admission to BDS course by 10.00 percentile
for each category i.e. General, SC/ST/OBC and persons with
locomotor disability of lower limbs. The Dental Council of
India by a letter dated 28.12.2020 proposed that the
percentile for admission to BDS course in Dental colleges
should be lowered by 20 percentile for each category. It was
stated in the said letter that only 7,71,500 students qualified
for admission to MBBS/BDS, (UG) AYUSH and other UG
medical courses for the year 2020-2021. It was made clear
by the second Respondent that the students qualified are not
commensurate with the sanctioned admission capacity in
different courses like MBBS, BDS, (UG) AYUSH and other UG
medical courses. The second Respondent informed the first
Respondent that there is shortage of the students for
admission to BDS course and underlined the fact that vacant
seats in professional courses would amount to national
waste. However, the first Respondent decided not to lower
the minimum marks required for admission to BDS course. In
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this background, the correctness of the decision of the first
Respondent not to reduce the minimum marks for first year
BDS course has to be examined.
9. Judicial review of administrative action is permissible on
grounds of illegality, irrationality and procedural impropriety.
An administrative decision is flawed if it is illegal. A decision
is illegal if it pursues an objective other than that for which
the power to make the decision was conferred 1. There is
no unfettered discretion in public law2. Discretion conferred
on an authority has to be necessarily exercised only for the
purpose provided in a Statute. The discretion exercised by
the decision maker is subject to judicial scrutiny if a purpose
other than a specified purpose is pursued. If the authority
pursues unauthorized purposes his decision is rendered
illegal. If irrelevant considerations are taken into account for
reaching the decision or relevant considerations have been
ignored, the decision stands vitiated as the decision maker
has misdirected himself in law. It is useful to refer to R. vs.
St. Pancras Vestry3 in which it was held: –
“If people who have to exercise a public duty by
exercising their discretion take into account maters
which the Courts consider not to be proper for the
exercise of their discretion, then in the eye of law they
have not exercised their discretion”.
1 De Smith’s Judicial Review (Sixth Edition pg. 225)
2 Food Corporation of India v. M/S Kamdhenu Cattle Feed Industries, (1993) 1 SCC 71
3 (1890) 24 QBD 37/ at p. 375
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10. The question that arises for our consideration is
whether the exercise of the discretion by the first Respondent
is for the purpose specified in the Regulations and whether
irrelevant considerations have been taken into account
making the decision irrational. The proviso to Sub-
Regulation (ii) of Regulation II is clear in its terms
empowering the Central Government to exercise its
discretion to lower minimum marks only when sufficient
number of candidates fail to secure minimum marks. The
Central Government cannot pursue any purpose other than
the one specified in the proviso to Regulation II (5) (ii).
There are three reasons given for the decision not to lower
minimum marks. The first is that the ratio of available seats
vis-à-vis eligible candidates is 1:7 and therefore there is no
dearth of eligible candidates. The other factor which
propelled the Central Government to decide that there is no
need to reduce the minimum mark is that there are sufficient
number of Dentists in India. Lack of keenness of students
to join BDS, especially in private colleges which charge
exorbitant fee, as they are interested in MBBS course is yet
another ground which impelled the decision of the first
Respondent.
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11. The stand of the Central Government is that there are
seven candidates available for each seat and, therefore,
there is no need to lower the minimum marks. This
calculation of the first Respondent is without taking into
account the fact that NEET (UG) 2020 is conducted for
admission into different courses like MBBS, BDS, UG AYUSH
and other medical courses. Admissions for UG AYUSH and
other UG medical courses are included in the NEET for the
first time from this year. That apart, it is clear from the letter
of the Dental Council of India that NEET has been made
mandatory for admission to AIIMS and AIIMS like institutions
and ZIPMER. Hitherto, AIIMS and AIIMS like institutions and
other institutions like ZIPMER were conducting their own
separate entrance test. The total number of seats available
for the academic year 2020-2021 for MBBS are 91,367, BDS
are 26,949 and AYUSH are 52,720 making it a total of
1,71,036 seats. Whereas, the NEET qualified candidates are
7,71,500. The ratio of seats available vis-à-vis eligible
students is 1 : 4.5 and not 7. The basis for the decision
to not reduce minimum marks that there are sufficient
eligible candidates is without considering the above vital
facts. The decision which materially suffers from the blemish
of overlooking or ignoring, wilfully or otherwise, vital facts
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bearing on the decision is bad in law 4. The decision of the
first respondent was propelled by extraneous considerations
like sufficient number of Dentists being available in the
country and the reasons for which students were not inclined
to get admitted to BDS course which remits in the decision
being unreasonable. Consideration of factors other than
availability of eligible students would be the result of being
influenced by irrelevant or extraneous matters. There is an
implicit obligation on the decision maker to apply his mind to
pertinent and proximate matters only, eschewing the
irrelevant and the remote5.
12. The first Respondent reduced the minimum marks for
admission into first-year BDS course for the year 2019-2020
in consultation with the second Respondent. In spite of the
recommendation made by the second Respondent to reduce
the minimum marks for the year 2020-2021, the first
Respondent deemed it fit not to lower the minimum marks
for the current year. While arriving at a decision on
30.12.2020 not to lower the minimum marks it does not
appear that the first Respondent has consulted the second
Respondent in accordance with the proviso to Sub-Regulation
(ii) of the Regulation II. There is no dispute that the
4 Baldev Raj vs. Union of India (1980) 4 SCC 321
5 Commissioner of Income Tax vs. Mahindra & Mahindra, (1983) 4 SCC 392
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minimum marks have been reduced by the first Respondent
for the super speciality courses for the last year and AYUSH
courses for the current year. If reducing minimum
marks amounts to lowering the standards, the first
Respondent would not do so for super speciality courses. We
are in agreement with Mr. Maninder Singh, learned Senior
Counsel for the Petitioners that lowering the minimum marks
and reducing percentile for admission to the first-year BDS
course would not amount to lowering the standards of
education.
13. There are about 7,000 seats available for admission to
the first-year BDS course during the year 2020-2021. We are
not impressed by the argument of the learned Additional
Solicitor General that there are sufficient number of Dentists
in the country and, therefore, there is no harm in the seats
being unfilled. However, we find force in the submission
made by the learned Additional Solicitor General that the fee
charged by the private dental colleges is a deterrent for the
seats not being filled up. Only 265 out of 7,000 seats are
vacant in government colleges. All the other unfilled seats
are in private Dental colleges. The Managements of private
Dental Colleges shall consider reducing the fee charged by
them to encourage students to join the Colleges. Reliance
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was placed by the first Respondent in an order passed by this
Court in Union of India v. Federation of Self-Financed
Ayurvedic Colleges, Punjab, (2020) SCC 115 to submit
that non-availability of eligible candidates for admission to
AYUSH (UG) courses cannot be a reason to lower the
standards prescribed by the Central Council for admission.
The facts of this case are entirely different as the Dental
Council of India itself recommended for lowering the
minimum marks and the Regulations provide for lowering the
minimum marks. That apart, the first Respondent has
exercised its discretion and lowered the minimum marks for
admission to first-year BDS course for the year 2019-2020.
14. For the aforementioned reasons, we set aside the
decision of the first Respondent dated 30.12.2020 to not
reduce the minimum marks for admission to BDS course as it
suffers from the vices of illegality and irrationality. We
direct that the vacant seats in first year BDS course for the
year 2020-2021 shall be filled up from the candidates who
have participated in the NEET (UG) courses for the year
2020-2021 after lowering the percentile mark by 10
percentile. The candidates belonging to the general category
who have secured 40 percentile shall be eligible to be
considered for admission in the first year BDS course for the
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year 2020-2021. Likewise, students belonging to the
SC/ST/OBC categories shall be qualified if they have secured
30 percentile. In so far as General candidates with bench
mark disabilities specified under the Rights of Persons with
Disabilities Act, 2016, they would be eligible if they have
secured 35 percentile. The admissions shall be made strictly
in accordance with merit and the admission process shall be
completed by 18.02.2021. Any other student who has
qualified in NEET (UG) – 2020 even without lowering the
minimum marks and is willing to participate in the admission
process shall also be considered for admission to BDS course.
15. The Writ Petitions are allowed.
……………………………J.
[L. NAGESWARA RAO]
…………………………J.
[KRISHNA MURARI]
New Delhi,
February 08, 2021.
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