All India Federation of OBC Employees’ Welfare Associations
The National Commission for Backward Classes(NCBC) conducted a hearing on 7th January 2021 based on the complaint filed by the All India Federation of OBC Employees’ Welfare Associations relating to denial of reservation to OBC candidates in medical admission under All India Quota(AIQ) seats contributed by the States.
NCBC issued notice to the Secretary, Ministry of Health and Family Welfare and the DDG, Medical of Directorate General of Medical Services (DGHS) to be present in person at NCBC office, New Delhi with full facts and documents pertaining to the complaint.
Accordingly, the copy of the report of the 5-member Committee headed by Dr.B.D.Athani, Principal Consultant, DGHS as well as the Action Taken Report on the complaint filed by the AIOBC Federation were placed before the NCBC.
The Committee’s report dated 21.10.2020 can be summarised as under:
If state specific reservation is applied as demanded by the parties in Tamil Nadu, then it is bound to be deviation from the accepted proportion of reservation provided to SC and ST categories from the currently applicable 15 per cent for SC and 7.5 per cent for ST and substitute it with 18 per cent and 1 per cent respectively which will necessitate the seeking permission and directions from the Hon’ble Supreme Court by filing I.A.
If similar State specific reservations are to be replicated in other States, then deviation in quantum of reservations for SC and ST category is bound to occur in other States.
Although Tamil Nadu Government has contended that its State Act being in Schedule IX of our Constitution deemed out of judicial review, it needs to be verified if the exceeding of ceiling of 50 per cent in overall reservations, as mandated through the judgment of the Apex Court in the Indra Sawhney case, is feasible legally or not.
The Central Government would also have to deviate from its uniform policy of providing 27 per cent reservation to OBCs and in the instance of Tamil Nadu would have to enhance it to 50 per cent.
The State Government would have to surrender the seats to MCC of DGHS/MoHFW with Roster Points duly certified by competent authority.
Having said this, the Committee gives another option of extending OBC reservation as per the provisions of CEI Act of 2006 for AIQ seats in Tamil Nadu. The Committee opines that this option seems plausible and implementable.
The Committee finally suggests that if option 2 requires time for framing laws then option 1 can be considered only for Tamil Nadu.
Regarding the Action Taken Report, it can be summarised as under:
Since the complete scheme of the NEET counselling has been devised and modified by the Hon’ble Supreme Court, and the options suggested by Dr.B.D.Athani Committee have multi-dimensional legal implications, the matter was referred to Ministry of Law and Justice to seek guidance / clarifications.
Ministry of Law and Justice opined that view of Ld.Additional Solicitor General (ASG) may be taken.
Ld.ASGI Mr.Sanjay Jain vide his letter dated 4.12.2020 has suggested that “since the matter is pending before the Hon’ble Supreme Court in Dr.Saloni Kumari case, it would be expedient that an additional affidavit apprising the Hon’ble Court of the change in circumstances, including the recommendations of Dr.Athani Committee constituted pursuant to the order of the Hon’ble Madras High Court be filed.
From the two reports, it is very much clear that the intention of the Health Ministry is to drag the matter further with the Courts and to delay and thereby deny the reservation to OBCs.
Committee’s recommendations are contrary to its own provisions /decisions:
State specific reservation
It has to be remembered that it is the Medical Council of India under the Health Ministry that amended the Regulations both for PG and UG admissions relating to AIQ seats suggesting State specific reservations.
Medical Council of India amended the regulation prescribing the procedure for selection of candidate for PG Courses [Para 9(IV)] and UG Courses [Para 5 (5-III0] vide amendment dated 21.12.2010 as under:
“The reservation of seats in Medical Colleges/institutions for respective categories shall be as per applicable laws prevailing in States/Union Territories.”
Subsequently, in the case of Saloni Kumari (596/2015), the DGHS filed an affidavit before the Supreme Court of India in February 2016, wherein under para 8, it has been mentioned as under:
“Ministry of Health and Family Welfare in its affidavit is proposing to apply state specific reservation for OBC (and also for SC and ST) on all available All India Quota Under Graduate and Post Graduate seats, with a condition that over all reservation will not exceed 50 per cent of total available seats, by involving all participating States and Medical Council of India as respondent in the matter. On implementation of State specific Reservation policy for SC, ST and OBC, the State Governments will have to contribute All India Quota seats category-wise including seats reserved for Physically handicapped candidate by maintaining reservation roster at College / State level”.
In response to the case filed by Tamil Nadu political parties, DGHS of MoH&FW in its affidavit filed on 17.6.2020 in Madras High Court, mentioned under para (11) as under:
“That the answering respondent i.e. Ministry of Health and Family Welfare has proposed to apply state specific reservation for OBC on all available All India Quota Under Graduate and Post Graduate seats, with condition that over all reservation will not exceed 50 per cent of total available seatsand the existing reservation of the UR, ST and SC will not be disturbed by proportionately increasing the number of seats,with the co-operation of all participating States and MCI. On implementation of State specific Reservation policy for SC, ST and OBC, the State Governments will have to contribute All India Quota seats category-wise including seats reserved for Physically handicapped candidate by maintaining reservation roster at College / State level”.
In response to the question raised by Thiru.T.R.Baalu, M.P. and Leader of DMK Party in Parliament, Hon’ble Minister of State for Health and Family WelfareThiru. Ashwini Kumar Choubhey replied (Unstarred Question 2295 dated 23.9.2020) as under:
“With regard to providing reservation to OBC category in All India Quota UG/PG medical seats, the Government had taken a proactive stand in the Hon’ble Supreme Court in the year 2016, suggesting to apply State specific reservation for OBCs in the All India Quota”
Thus, the Ministry of Health and Family Welfare and DGHS have consistently voiced for the state specific reservation for OBCs in All India Quota.
Now the Committee having the members from the same Ministry, DGHS and MCI are giving contradictory opinion about state specific reservation to OBCs.
Deviation in the percentage of reservations for SC/ST:
Dr.Umanath, Member in the Committee representing Tamil Nadu has clearly provided the proposal for implementing OBC reservation for AIQ seats with the roster points for OBC, SC and ST and further has clarified that the process of applying the rules of reservation and running the communal roster for seats will be fully undertaken by the Government of Tamil Nadu and the list of seats, earmarked college-wise, community-wise and speciality-wise will be communicated to Director of Medical Education / Selection Committee to the DGHS after due self-certification of the processes followed.
Based on this information which can be displayed during the All India counselling by DGHS, all the eligible applicants, as per the community, will be allowed to exercise their choice on selection of seats reserved for their respective individual categories.
Dr.Umanath further contended that since the methodology under evaluation is on the process to implement the reservation for AIQ seats from Tamil Nadu as mandated under the State’s reservation policy, this exercise can be carried out even without increasing the seats for ensuring that the open category reservation is not affected.
The same methodology as suggested by Dr.Umanath has to be adopted in all the States which will address the concerns of the Committee as regards ‘deviation in quantum of reservations for SC and ST category’.
Exceeding of ceiling of 50 per cent in overall reservations, is feasible legally or not needs to be verified:
By implementing 10 per cent reservation to upper caste EWS in Medical Colleges run by Central Government, Health Ministry and DGHS have already exceeded the 50 per cent ceiling on reservation. When it is legally permissible, then implementing State specific reservation as per Tamil Nadu Reservation Act is also legally permissible and feasible.
The Committee headed by Dr.B.D.Athani has, thus, totally ignored the contention of the Member representing Tamil Nadu as well as gone against the assurance of the Hon’ble Minister of State for Health & Family Welfare in the Parliament.
The case filed by Dr.Saloni Kumari in Supreme Court of India relates to implementation of 27 per cent reservation in Medical Admission under AIQ seats in 2015. Even after years, still the matter is pending and no efforts has been taken by the Health Ministry / DGHS to settle the matter.
Hon’ble Judges of Madras High Court in their order dated 27.7.2020 have categorically stated that:
Central Government has powers to legislate reservation policy for OBCs and government is not debarred from exercising its legislative powers. (para 87)
There is no legal or constitutional impediment to extend reservation to OBCs in AIQ seats contributed by the States both in UG/PG medical courses. (para 90)
The Central Government has a constitutional obligation to take a decision on this matter which is a necessity now. (para 104)
Further the judgment of the Madras High Court of 27th July 2020 has also stated that “OBC reservation are to be provided for against All India Quota seats in the UG/PG courses with effect from the next academic year as already proposed by the Central Government and discussed herein above”.
Ignoring and defying these orders, the Health Ministry has proceeded with NEET-MDS-2021 admission process without OBC reservation and the results of NEET-MDS-2021 has been published by National Board of Examinations on 31.12.2020 without OBC reservation in AIQ seats contributed by the States.
The Health Ministry has thus gone against the spirit of the judgment of Madras High Court and the Committee headed by Dr.B.D.Athani has totally ignored the clarifications and proposals given by Dr.Umanath, Member in the Committee representing Tamil Nadu.
The report of the Committee headed by Dr.Athani shows that the Ministry is not in favour of implementing reservation to OBCs in All India Quota seats contributed by the States and further pushes the matter to the Court’s decision by proposing options contrary to its own provisions and affidavits.
It does not augur well for the Government of India to ignore the aspirations of the OBCs and deprived sections to get their legitimate rights. Social Justice forces across the country have to unitedly fight against this injustice meted out to the historically discriminated people of this country.