Harshit Agarwal vs Union Of India

1 | Page 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

2 | Page 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

3 | Page 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

4 | Page 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

5 | Page 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

6 | Page 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

7 | Page

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.

8 | Page

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

9 | Page 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

10 | P a g e 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

11 | P a g e 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

12 | P a g e 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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