The Centre told the Supreme Court on Thursday that the introduction of OBC and EWS reservations after the issuance of NEET-PG exam notification does not amount to "changing the rules of the game" midway.
Solicitor General Tushar Mehta, appearing for the Centre, told a bench of justices DY Chandrachud and AS Bopanna that the submission that OBC reservation is unconstitutional is legally unsustainable.
"First, I would like to dispel the confusion that there is a change in rules of the game midway. We are not changing the goalpost. There is no change in the rules of the game. The regime which is the subject matter of this challenge is already implemented since 2019," Mehta submitted.
Justifying the application of Rs 8 lakh income criteria for the EWS category, Mehta said the decision was arrived at after due deliberation by the Ministry of Social Justice and Empowerment.
He contended that performance of a candidate in an examination doesn't depend on the reservation and a student has to perform his best.
"I (candidate) can't say since there is 10 per cent reservation, I can perform slightly less," he said adding that in February, 2021 when the examination brochure was issued it was clarified that reservation would be declared subsequently.
Appearing for some of the candidates, senior advocate Arvind Datar said that if the apex court intends to allow EWS reservation in NEET-AIQ this year, it should be based on Rs 2.5 lakh annual income criteria as recommended by Major Gen (retd) SR Sinho commission and not the Rs 8 lakh gross annual income limit fixed by the Centre.
The top court reserved its verdict in the matter and is scheduled to pronounce its verdict on Friday.
"We have been hearing this for two days, we must start counselling in national interest," the bench said.
Mehta said that it was not for the first time that the Centre has introduced such reservations (OBC, EWS).
Referring to the Central Educational Institutions (Reservation in Admission) Act, 2006, he said all central universities implemented 27 per cent OBC and 10 per cent EWS quotas because that was the decision taken as back as in January, 2019.
Referring to the 103rd amendment, Mehta said the government increased seats across educational institutions by 25 per cent to ensure that 10 per cent reservation is given to the Economically Backward Section (EWS). EWS students will be accommodated would not harm the other candidates as the 25 per cent increase was made for them, he said.
The solicitor general said that the reservations for EWS and OBC categories can be challenged at a particular level and merely by challenging the government's July 29, 2021 decision, they cannot argue that there can't be any reservation.
He said the criterion for the EWS category has been arrived at after a proper study, application of mind and due consultation.
"The determination of EWS doesn't suffer from over inclusiveness. Now come to the Pandey committee report. There is no single indicator which can capture poverty. Any straitjacket rule is never useful and would never give the intended constitutional objective result," he said.
Datar said adoption of Rs 8 lakh as income criteria for EWS category is a top down approach and not a bottom approach.
"Neither Ajay Bhushan Pandey committee nor the counter filed by the government has given even one sentence as to what is the reason for rejecting the Major Gen (retd) SR Sinho commission (recommendations)," Datar said.
He said that after spending so much time, money and consulting so many people, the government cannot simply say that it is adopting the creamy layer criteria.
Senior advocate Anand Grover said apart from income, other indicators have not been identified by the government.
"Other economically weaker sections criteria have been completely ignored. In their own report, it says that they will apply the criteria prospectively meaning thereby that it is to be applied from next year but that is also not clear. Rs 5 lakhs is the basic criteria which should be there and there is no reason as to why Rs 8 lakh criteria has been adopted," Grover said.
The counsel for the Federation of Resident Doctors' Association said every year there are 45,000 doctors who are inducted as PG doctors into the medical workforce.
"This year because of the pandemic, examination got delayed, only 2nd and 3rd year residents are there because 1st years have not joined and this has led to a situation where the doctors are working for more than 80 hours per week ," the counsel said while seeking commencement of NEET-PG counselling.