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THE FATE OF THE MDS COUNSELLING STILL HANGING; SUPREME COURT SHOULD DECIDE UPON THE VALIDITY OF 10% EWS RESERVATION AS SOON AS POSSIBLE

The blog is authored by, Rituraj Singh Parmar, a second-year law student, pursuing his B.A LL.B (Hons.) at National Law Institute University, Bhopal.

Header Image Credits: Pexels Free Photo


Introduction

The MDS counselling which generally takes place in the month of March got delayed till September and still, its fate is loitering in the apex court of India. The result of NEET MDS PG was declared in the month of December last year but the admission for PG courses have still not begun in all the government dental colleges across the country. At the onset, the central government dilly-dallied the counseling process for six months without providing any concrete reason and when the counselling eventually started in the month of July, after a much-needed intervention of the apex court, it ran into another snag. This time the problem is not procedural but rather constitutional as it concerns 10% reservation for EWS in All India quotas. The counseling has not commenced yet because the medical council of India is seeking advice from the apex court on a 10% reservation for EWS in the All India quota as per the direction of the Madras High court.

The following is the chronological analysis of the delay in the counseling process owing to the intervention of the government, madras high court and the apex court in deciding the validity of reservation in all India quotas in medical courses.

THE GENESIS OF ALL INDIA QUOTAS

In layman’s term, it is a practice of surrendering government medical seats by states to an all India level. This scheme was adopted to get away from the old practice of different states granting seats by making wholesome reservations on the basis of domicile or residence requirement or the qualifying exam of that particular state. This practice violates the right to equality mentioned under article 14 as it precluded students to study in a good medical college situated outside of their state and owing to the same reason Supreme Court in Pradeep Jain v, Union of India declared such scheme void and unconstitutional. However, it allowed the state to enjoy the prerogative of reserving a particular percentage of seats on the basis of residence as it was not considered irrational and arbitrary. This judgement ran into some intricacies on account of its implementation which got resolved in 1986 in the case of Dinesh Kumar v Motilal Nehru medical college case, where the apex court itself delegated the authority to a medical council of India to come up with a positive scheme, the MCI envisaged a scheme under which the states need to surrender 15% per cent of MBBS/BDS seats and 30% of PG MD/MDS/BDS seats at all India level. The scheme was duly approved by the apex court which led to the much-needed commencement of all India quotas in the medical courses in India by virtue of which state fringes stopped acting as barriers for students aspiring to study in medical colleges situated in another state.

RESERVATION IN ALL INDIA QUOTAS

Until 2007 no reservation was provided in all India quota of medical admission but for the first time, the supreme court provided reservation of 15% to schedule caste and 7.5% to schedule tribe.

Further, in the same year, the union government passed Central Educational Institutions (Reservation in Admission) Act, 2007 which provides 27% reservation to OBC in central government institutions. The act was extended to cover all state government medical and dental colleges but its ambit was not elongated to the all India quota in medical admission. This engendered controversies and led to several protests by the medical fraternity in different parts of the country for the demand of 27% reservation in AIQ. This overdue demand was finally carried off by the judiciary. After filing 13 writ petitions carrying allegiance to different Political parties of the state in Madras high court, the madras high court in its order dated 27 July 2020 in Dravida Munnetra kazhagam v. Union of India ruled that OBC students can also avail reservation in AIQ by providing rider that for want of time such reservation could not be implemented from this academic year, it can only be implemented from 2021-2022.

THE CONTEMPT PETITION 

Despite direction from the madras high court to give 27% reservation to OBCs in AIQ, the notification of NEET-2021 released on 21 July did not contain any provision containing OBC reservation in AIQ. So on 19th of July of this year, DMK again moved to the high court of madras by filing a contempt petition in Dravida Munnetra kazhikam v Rajesh Bhushan,   alleging willful Disobedience of state to the order dated 27 july 2020 of the honourable high court mandating 27% reservation to OBC in AIQ. The Madras high on the 19th of July in response to the contempt petition stated that

“The Union’s attempt to not implement the OBC reservation quota in respect of the all-India quota seats… in the academic year 2021-22 appears to be contumacious, in derogation of the order dated July 27, 2020, passed by this Court.”

THE GOVERNMENT NOTIFICATION  

Pursuant to the dressing down received by the centre on its obduration to implement 10% OBC reservation in EWS, the union government on 29 July announced 27% reservation to OBC and 10% reservation to the economically weaker section in all India quota scheme for undergraduate and postgraduate medical courses. This move was widely celebrated across the nation as the honourable prime minister himself made such an announcement to fulfil the long overdue demand of OBC community. But in spite of the green signal received from the central to implement 27% reservation in the current academic year the MDS counseling for the current academic session did not commence as it struck into another roadblock. 

10% RESERVATION FOR EWS 

The Madras high court in its order dated 25th of august showed its inhibition on 10% reservation provided for EWS category. Chief Justice Sanjib Banerjee and Justice P.D. Audikesavalu gave approval for 5% reservation for Scheduled Castes, 7.5% for Scheduled Tribes and 27% reservation for Other Backward Classes (OBCs) but in pursuant to the reservation of  10%, they held that 

“The inclusion of an additional 10 per cent vertical reservation for EWS would require approval of Supreme Court and to such extent, the reservation for EWS in Centre’s July 29 notification has to be recognized as impermissible till such approval is obtained”

They also said the grant of 10% per cent reservation is in contravention with the reservation cap of 50% devised in Indira Sawhney and therefore the centre has to obtain the sanction of the apex court for 10% reservation to EWS category.

Thus the medical counsel of India on a notification dated 27.08.2021 put an embargo on round 1 of medical counsel 2021 as it sought the legal opinion of the Supreme Court in the matter related to 10% reservation for EWS and stipulated that the  counseling process should only commence after the apex court gives its opinion in the subject matter.

CONCLUSION 

The fate of 30,000 qualified BDS aspirants is at stake as the academic session got very much delayed and Supreme Court instead of expediting the matter is adding fuel to it by holding up the affair for a future date, such delay will entail severe repercussions not only for the qualified BDS students but also for the entire medical fraternity at large and therefore to get the ball rolling of MDS counseling 2021 it is indispensable for the supreme court to adjudicate on the validity of 10% reservation in All India quota as soon as possible.

Views expressed are personal.

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