1. These appeals were heard with the consent of learned counsel for the parties.

2. 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 (NRI) 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 petitioners (who had succeeded before the single judge and were consequently given admission as NRI candidates) and 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.

10. Feeling aggrieved, the two appellants, i.e. Dr. Nilay Gupta and Dr. (Ms) Surmi Sharma (both of who had concededly applied as NEET qualified candidates for the admission in the NRI seats) approached 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. 9 The board and the MGMC resisted the writ petition, especially the appellants’ reliefs claimed (that the respondents be directed to give them admission to seats as NRI candidates). 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. It was further stated that NRI candidates could and were considered for admission to seats in the management quota.

11. By the judgment and order dated 10.07.2020, the learned Single Judge of the High Court, relying upon the seven judges’ ruling of this Court in P.A. Inamdar & Ors. v. State of Maharashtra (2005) 6 SCC 537, as well as other rulings [Modern Dental College and Research Centre v. State of M.P & Ors.. 2012 (7) SC 433 and Manipal University v. Union of India (2017) 15 SCC 664] held that after having appeared in the NEET PG examination and qualifying it, and after having approached the colleges (including MGMC) for 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 admission (in which NRI students were to be first counselled for the purpose of their document verification, after which management seats could be filled), it 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 forthwith.

12. 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 quota (NRI quota in this case). It also held that the judgments of this court in P.A. Inamdar3 and the other decisions nowhere indicate that an obligatory NRI quota should be earmarked by all private colleges, which have a choice of either doing it, or filling the seats, which otherwise fall within the management quota, as part of the management quota seats. In other words, according to the Division Bench, the private institution has the choice of earmarking an NRI quota or not doing so, and proceeding to fill the management quota by considering NRI students as part of the general management seats quota. The impugned judgment also held that the respondents could not be blamed for not providing an NRI quota, or for changing the seat matrix; it further noted that the object of carving out a quota was to enable the private institution to charge a higher fee; in the present case, it held that the fee prescribed for NRI candidates and management quota candidates was the same; therefore, the private colleges could well exercise their discretion not to earmark an NRI quota.

20. 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.” 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, (“NEET”) 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 provides for the procedure to be adopted for admissions, as well as for reservations. Per proviso to Section 32(2), admission in 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 test (NEET).

21. The rival contentions of the parties may be summarized as follows. The original writ petitioners, (all of whom are before this court) argue 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 quota; secondly with the publication of the board’s notification of 10.04.2020, some of them (if not all of them) had 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. Inamdar 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 posts, 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.

22. The arguments of the state, the colleges and candidates (who were admitted to the seats after the impugned judgment), on the other hand, is that P.A. Inamdar 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 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.

23. 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 Inamdar 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 Indians (‘NRI’, for short) or 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 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.” (emphasis supplied)

Clearly, this court had the benefit of past experience with the concept of NRI quota: witness its skepticism about filling of such seats (in the past) by 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, (which they would be spending elsewhere on education of their children) 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.

25. The four crucial elements in the NRI quota, per Inamdar are: one, the discretion of the management (whether to have the quota or not); 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.

28. Given that the decision in TMA Pai Foundation was by a larger bench of 11 judges, and PA Inamdar 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 apart (or quota, so to say) for NRIs should be about 15% of the overall intake. Other decisions of this court 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 admissions (which have been progressively amended in respect of eligibility for admission to courses, procedure for admission, etc.) and 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 management (of MGMC) possessed the discretion to indicate whether, and to what extent, NRI reservations could be provided. As is evident, there is nothing in PA Inamdar 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 discretionary authority of the management of private medical colleges, within their internal policy making domain.

29. 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 given (“it must be shown that there is a statute which imposes a legal duty and the aggrieved party has a legal right under the statute to enforce its performance.”). The NRI candidates could not assert a right to be admitted; furthermore, while granting relief, the single judge could at best have directed consideration of the cases of the writ petitioners before him. However, the broad nature of the relief granted resulted in creation of rights which, implicated parties had not in the first instance, approached the High Court (unlike Dr. Nilay Gupta or Dr. Surmil Sharma), at 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.

30. 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 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.

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.

34. 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 students (in the other disciplines) shall then be offered to the beneficiaries of the single judge’s orders. If for any reason, such students (i.e. lower down in NRI merit, who are offered seats in other disciplines) do 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.

35. 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.