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NEET-AIQ quota: Supreme Court defers hearing in reservation matter till November 16

Earlier, the petitioners had approached the Supreme Court challenging the notification of the Central Government dated July 29, 2021 which provided for 27% and 10% reservation for OBCs and EWS categories respectively from the All-India Quota in the medical and dental colleges.

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The Supreme Court has today deferred hearing in the NEET-All India Quota (NEET-AIQ) reservation matter till November 16.

Solicitor General Tushar Mehta appeared before the bench of Justice D.Y. Chandrachud, Justice Vikram Nath and Justice B.V. Nagarathna and submitted that the counselling date will be extended until the matter is decided by the bench. He also stated that the government is having a detailed discussion on this issue with senior officials against the impugned notification.

Earlier, the petitioners had approached the Supreme Court challenging the notification of the Central Government dated July 29, 2021 which provided for 27% and 10% reservation for OBCs and EWS categories respectively from the All-India Quota in the medical and dental colleges. 

The Center has submitted its affidavit as directed by the bench when it expressed dissatisfaction at its inaction in filing an affidavit pertaining to the exercise undertaken by the Centre to adopt the criteria of Rs 8 lakhs annual income of family for determining the eligibility for Economic Weaker Sections (EWS) reservation in NEET-AIQ.

Whether the Centre undertook any exercise before arriving at criteria to determine EWS and if yes, whether the report of Sinho Commission was considered?

The Centre in its affidavit has stated the criteria for the determination of the EWS category was derived after due consideration within the Ministry of Social Justice and Empowerment and all the concerned stakeholders.

“Even before the Office Memorandum dated 17.01.2019 was in existence in the context of identification of Economically Backward Classes (“EBC”), the Government had set up the Major General Sinho Commission in the year 2005. This Commission had by its report of July 2010, arrived at various conclusions including the criteria to identify “creamy layer” amongst OBC’s could well serve as a basis to decide the upper limit or as a criterion for identifying EBC families amongst the General Category as well. Alternatively, the Commission recommended that BPL families from the General Category whose annual family income from all sources is below the taxable limit (as may be revised from time to time) may be identified as EBCs.”

“It is submitted that as per the Government of India’s Office Memorandum dated September 8, 1993 based on which income tax limit of Rs 1 lakh was fixed, thereafter this has been raised from time to time on the basis of the cost of living and at present, the same stands at Rs 8 lakh per annum”

It is further submitted that in 2016 the upper-income limit for determination of Creamy Layer in respect of OBCs was Rs 6 lakh per annum. In order to maintain the same living standard in 2017, the same was adjusted to Rs 8 lakh on the basis of the Consumer Price Index. As the CPI had increased, to maintain the same standard of living, the income limit of Rs 6 lakh was multiplied to arrive at Rs 8.16 lakh which was rounded off to Rs 8 lakh.

THE DETERMINATION OF THE EWS CATEGORY DOES NOT SUFFER FROM OVER INCLUSIVENESS

 “The fixation of 8 lakh as income criteria is on the basis of the criteria detailed in the affidavit after taking into consideration the criteria for determining the creamy layer of OBCs. Further even the Major General Sinho Commission had recognised that the very same test can also be applied for determining EWS. To provide further checks so as to ensure that only the needy get the benefit of Article 15(6) and Article 16(6) reservations, the office memorandum dated January 17, 2019 provides further exclusions,”

WHETHER THE INCOME LIMIT FOR DETERMINING CREAMY LAYER IN OBC AND EWS IS THE SAME AS RS. 8 LAKHS? 

The centre has stated that the same is not arbitrary. It is submitted, 

“The exercise conducted to determine the Creamy Layer for the purpose of OBC reservation would be equally applicable for the determination of EWS category since the fundamental premise is that if a person/his family have a substantial economic standing, he/she may not require the benefits of reservation at the cost of others. It is reiterated that even the Major General Sinho Commission had suggested that, “extending the existing criteria to identify “creamy layer” among OBCs could well serve as to decide the upper limit or as a criterion for identifying EBC families among GC too.” Emphasising the exclusionary criteria for the purpose of determining EWS category provided in the Office Memorandum dated January 17, 2019 Centre has stated that, “Once the criteria exist and the decision is taken on the basis of some material including suggestions by Major General Sinho as to what cut off criteria is to be provided, the same is largely within the realm of government policy.”

Whether the difference in rural and urban purchasing power has been accounted for while deriving this limit?

It is submitted that no separate criteria has been fixed for rural and urban areas,

“While there is a difference in purchasing power between rural and urban areas, in the sections which are intended to be under EWS reservation-namely students in higher educational institutions and for employment, there is constant migration from rural to urban areas. This factor of migration, especially for studies, would obviate the need for separate income criteria for rural and urban areas.”

On what basis asset exception has been arrived at and has any exercise been undertaken pertaining to families having income less than Rs 8 lakh pa

The Centre has submitted that the asset exemption was initiated after a due discussion which was approved by the Cabinet initially on January 7, 2019 and finally on February 2, 2019. 

The absence of reservation as envisaged in the notice, EWS students are not getting the benefit of reservation and in spite of the increase in the number of seats

“The entire process of issuing the impugned notice is with a view to providing reservation to EWS in the society. In order to ensure that the provision of reservation in terms of the 103rd Constitutional Amendment would not prove the detriment of other General Category students, the total number of seats available has been drastically increased by 56% in the last 6 years in respect of MBBS seats and 80% in the last 6 years in respect of PG seats. In the absence of reservation as envisaged in the notice, EWS students are not getting the benefit of reservation and in spite of the increase in the number of seats.”

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