Gujarat High Court
Surela Zarna Nareshbhai vs Union Of India on 4 February, 2021
Author: Biren Vaishnav
Bench: Biren Vaishnav
C/SCA/20824/2019 CAVJUDGMENT
IN THEHIGHCOURTOF GUJARATAT AHMEDABAD
R/SPECIALCIVILAPPLICATIONNO. 20824of 2019
With
R/SPECIALCIVILAPPLICATIONNO. 9994of 2020
With
R/SPECIALCIVILAPPLICATIONNO. 11779of 2020
With
R/SPECIALCIVILAPPLICATIONNO. 431 of 2021
With
R/SPECIALCIVILAPPLICATIONNO. 20841of 2019
With
R/SPECIALCIVILAPPLICATIONNO. 21105of 2019
With
R/SPECIALCIVILAPPLICATIONNO. 21102of 2019
With
R/SPECIALCIVILAPPLICATIONNO. 23189of 2019
With
R/SPECIALCIVILAPPLICATIONNO. 23196of 2019
With
R/SPECIALCIVILAPPLICATIONNO. 23241of 2019
With
R/SPECIALCIVILAPPLICATIONNO. 14251of 2020
FORAPPROVALANDSIGNATURE:
HONOURABLEMR. JUSTICEBIRENVAISHNAV
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1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copyNO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
==========================================================
SURELAZARNANARESHBHAI
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C/SCA/20824/2019 CAVJUDGMENT
Versus
UNIONOF INDIA
==========================================================
Appearance:
APPEARANCEIN SCANO. 20824of 2019, 9994of 2020, 431 of 2021, 20841of 2019,
21102of 2019, 23189of 2019, 23196of 2019
MR. SHALINMEHTA,SENIORCOUNSELWITHMRHEMANGM SHAH(5399)for the
Petitioner(s)No. 1,2,3,4,5,6
MR. SIDDHARTHDAVE,ADVOCATEFORMRDEVANGVYAS(2794)for the Respondent(s)
No. 1
MRPREMALR JOSHI(1327)for the Respondent(s)No. 5
MR. KMANTANI(6547)for the Respondent(s)No. 3
NOTICESERVEDBY DS(5)for the Respondent(s)No. 2,4,6
APPEARANCEIN SCANO. 11779of 2020, 21105of 2019, 23241of 2019& 14251of 2020
MR. SHALINMEHTA,SENIORCOUNSELWITHMRHEMANGM SHAH(5399)for the
Petitioner(s)No.
MR. SIDDHARTHDAVE,ADVOCATEFORMRDEVANGVYAS(2794)for the Respondent(s)
No. 1
MRAVINASHTHACKERWITHMR. SHIVANGTHACKER,for the Respondent(s)No. 7
MR. KMANTANI(6547)for the Respondent(s)No. 3
APPEARANCEIN SCANO. 14251of 2020
MR. BHARATT RAO,for the Petitioner(s)
MR. SIDDHARTHDAVE,ADVOCATEFORMR. DEVANGVYASfor the Respondent(s)No 1
and 2
MR. AVINASHTHACKEER,ADVOCATEWITHMR. SHIVANGTHACKER,for the
Respondent(s)No.5
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CORAM: HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date: 04/02/2021
CAVJUDGMENT
1. Conscious of the settled legal position that if the rule of merit is defeated by inefficiency, inaccuracy or improper method of admission, then it can be interfered and that if the merit alone is criteria for admissions, circumvention of merit is not only impermissible but is also abuse of process of law, this court has taken up these petitions for hearing.
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C/SCA/20824/2019 CAVJUDGMENT 1.1 The petitioners, in these petitions, are students who have been granted conditional admission by their respective colleges affiliated to the respective Universities to pursue the course in the Bachelor of Homeopathic Medicine and Surgery (B.H.M.S) and Bachelor of Ayurvedic Medicine and Surgery (B.A.M.S) respectively. The petitioners have been granted conditional admission by the colleges to pursue the respective B.H.M.S and B.A.M.S courses for the year 201920 subject to the lowering of percentile in NEET 20192020 examinations. In this context, the prayers of the petitioners is for issuance of a writ of mandamus commanding the respective respondents to hold discussion and thereby lower the qualifying percentile in NEET 201920 examination, so as to enable the petitioners to secure admission to the BAMS / BHMS courses.
2 The facts in brief are as under:
2.1 The case of the petitioners is that they have cleared their HSC examination. They were inclined to pursue the Bachelor of Ayurvedic Medicine and Surgery course and / or Bachelor of Homeopathic Medicine & Surgery course. They appeared for NEET Page 3 of 27 Downloaded on : Wed Jan 12 06:41:48 IST 2022 C/SCA/20824/2019 CAVJUDGMENT
- UG 2019 examination and cleared the same. The cut off for the admissions to the respective courses was 50% percentile for the general category candidates. The petitioners have secured a much lower percentile than the required for being eligible to secure admission to the courses.
2.2 Since many seats across the Gujarat State could not be filled in, the concerned colleges on their own filled up the seats on the basis of the NEET score, knowing fully well that the students concerned had not secured the cut off marks. Under these circumstances, conditional letters of admission were issued to the petitioners making it clear that the admission is granted on a condition that if the Department of AYUSH reduces the cut off marks for the academic year 201920, their admissions shall be secured. In the event the department refuses such reduction, their admissions shall stand cancelled.
2.3 The case of the petitioners is that the relevant regulations concerning BAMS / BHMS have a proviso which gives the competent authority discretion that when sufficient number of candidates in the respective categories fail to secure minimum Page 4 of 27 Downloaded on : Wed Jan 12 06:41:48 IST 2022 C/SCA/20824/2019 CAVJUDGMENT marks in the NEET, the Central Government in consultation with the Council may at its discretion lower the minimum marks required for admission to undergraduate course for candidates belonging to the respective categories and the marks so lowered by the Central Government shall be applicable for that academic year only. It is in this context that the petitioners have prayed that discussions be held between the Central Government and the respective councils to lower the percentile for the academic year 201920 as was done for the year 201819.
2.4 It is the case of the petitioners that the National Testing Agency when it came to securing admissions to the Bachelor of Dental Surgery Course (BDS), revised and lowered the percentile for various categories for securing admission to BDS course for the academic year 201920. Reliance is placed on the decision of the High Court of Karnataka at Bengalaru in Writ Petition No. 41486 of 2018, where an order dated 20.09.2019 was passed by the Karnataka High Court and by virtue of such order, the colleges had issued conditional admission letters. The case of the petitioners is that even in a case before the Bombay High Court, the court on 04.10.2019 passed orders wherein interim relief was refused.Page 5 of 27 Downloaded on : Wed Jan 12 06:41:48 IST 2022
C/SCA/20824/2019 CAVJUDGMENT 2.5 Aggrieved by these orders, Special Leave Petitions were filed before the Hon'ble Supreme Court. As far as the Bengalaru judgment is concerned of the Karnataka High Court, the order granting conditional admissions was stayed by the Supreme Court.
As far as the decision of the Bombay High Court is concerned, where interim relief was refused to the petitioners, the Supreme Court on 05.11.2019 passed an order wherein it refused to interfere with the refusal of interim relief granted by the Bombay High Court. However, the Supreme Court observed that the petitioners were at a liberty to make a representation to the Union of India to reduce the qualifying marks for admission to Homeopathy, Ayurveda and Unani courses in NEET2019. The Supreme Court observed that in case such a representation is made, the Union of India shall consider it expeditiously. 2.6 Having come to know of these developments, the case of the petitioners is that they approached their colleges and the association of colleges took steps to request the competent authorities to reduce the qualifying percentile in NEET2019 for the respective courses. It is the case of the petitioners that as far as the Page 6 of 27 Downloaded on : Wed Jan 12 06:41:48 IST 2022 C/SCA/20824/2019 CAVJUDGMENT State of Maharashtra is concerned, the Ministry of AYUSH rejected the representations on the ground that lowering of qualifying marks may compromise the standard of qualified medical practitioners.
2.7 The case of the petitioners is that by a communication dated 15.11.2019, the State authorities in reference to admission to the post graduate degree in Ayurveda and Homeopathy reduced the qualifying percentile restricting it to the year 20192020. The case of the petitioners is that in the undergraduate course, as on 19.10.2019, 995 seats are vacant out of 2200 seats in Ayurveda colleges and 1546 seats out of 3630 seats are vacant in the Homeopathy colleges. The case of the petitioners is that for the year 2018, the Ministry had lowered the qualifying percentile for NEET candidates and even for the year 20202021, the NEET percentile had been lowered from 40th percentile to 35th percentile for unreserved category candidates. Therefore, the case of the petitioners is that similar treatment should be meted out to the petitioners who are in the academic year 20192020 who have been singled out, whereas benefits have been given to the students of academic year 20182019 and 20202021.
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3. Mr. Shalin Mehta, learned Senior Advocate appearing for the petitioners would read the proviso to the relevant regulations and submit that the proviso obliges the respondents to hold consultation for lowering the percentile upon availability of vacant seats. Such power, according to Mr. Mehta, learned Senior Advocate, is coupled with duty. He would submit that when circumstances exist i.e. when seats are going vacant, discretion ought to be exercised and a decision to lower the qualifying percentile must be taken so as to benefit the students which would not compromise the quality of medical doctors. 3.1 Mr. Shalin Mehta, learned Senior Advocate, would further submit that if the Dental Council of India as well as the Medical Council of India could lower the qualifying marks for their respective courses for the academic year 20192020, there was no reason or logic to deny such benefit of lowering of percentile in respect of BAMS and BHMS courses. Denial of such a benefit would fall foul of Article 14 of the Constitution of India. 3.2 Mr.Shalin Mehta, learned Senior Advocate, would further Page 8 of 27 Downloaded on : Wed Jan 12 06:41:48 IST 2022 C/SCA/20824/2019 CAVJUDGMENT submit that if the benefit can be given of lowering such percentile in the higher pursuit of studies i.e. in the post graduate courses of BAMS and BHMS, there is no reason why the under graduates be not given such benefits as was given to the post graduate students. 3.3 Mr. Shalin Mehta, learned Senior Advocate, would rely on the decision of the Supreme Court in the case of Union of India vs. Federation of Self Financed Ayurvedic Colleges & Ors., reported in 2020 8 Scale 177 and submitted by relying on paras 10 to 13 of the judgment that in the facts of the case where interim orders were granted by the High Court of Punjab at Haryana and admissions were granted to students who had not even undertaken NEET or had undertaken NEET with lower qualifying percentile, the Supreme Court had, as a matter of one time measure, knowing that the admissions were within the cut off date of 15.10.2019, permitted the students to continue with such studies as a one time exercise. He would submit that even in the present circumstance, interim orders protecting conditional admissions have been granted, and therefore, order of the Supreme Court would squarely govern their case.
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C/SCA/20824/2019 CAVJUDGMENT 3.4 Mr.Shalin Mehta, learned Senior Advocate, would submit that the interim order passed by this Court were never challenged by the competent respondents, and therefore, if the admissions are sought to be cancelled now, the career of the students would be ruined. He would submit that the interpretation made by the respondents on the Supreme Court judgment was misconceived. 3.5 Mr.Shalin Mehta, learned Senor Advocate, also relied on the decision of the Supreme Court in the case of Pharmacy Council of India vs. Dr.S.K.Toshniwal Education Trust, reported in 2020 (5) scale pg 439. He would rely on paragraph 22 of the judgment. 4 Mr. Siddharth Dave, learned advocate has appeared for the learned Additional Solicitor General Shri Devang Vyas for the Ministry of AYUSH. Shri Dave, learned advocate would invite the attention of the Court to the prayers made in the petition, namely, Special Civil Application No. 20824 of 2019 and he would submit that the petitioners of the BAMS and the BHMS course are not entitled to the reliefs that they have prayed for. Inviting the attention of the Court to the reliefs of SCA No. 20824 of 2019, Mr.Dave, learned advocate, would submit that their cannot be a Page 10 of 27 Downloaded on : Wed Jan 12 06:41:48 IST 2022 C/SCA/20824/2019 CAVJUDGMENT writ sought under Article 226 of the Constitution of India for a direction that the respondents should lower the percentile of the NEET score contrary to the regulations. Mr. Dave, learned advocate, would submit that by virtue of the amendment to the respective regulations in the branches of Homeopathy and Ayurveda, the candidates who passed the NEET examination are eligible to be admitted to the respective colleges only if they secure a minimum percentile. In absence of challenge to the rules, it is not open for the petitioners to claim the relief that they have sought for in these petitions.
4.1 Mr.Siddharth Dave, learned advocate, would further submit that it is not open for the petitioners to compare their status with the dental college students because the cut off percentile in the dental courses were reduced by the Dental Council of India because of 44% seats in government colleges and 42% seats in the private dental colleges lying vacant. Perusal of the letter of the Department to the State of Maharashtra would indicate that a lesser number of seats had remained vacant and therefore their status cannot be compared to those of dental students.
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C/SCA/20824/2019 CAVJUDGMENT 4.2 Mr. Siddharth Dave, learned advocate, would further submit
that discrimination under Article 14 cannot be invoked by the petitioners, inasmuch as, a NEET score prescribing a minimum eligibility criteria for admission, and therefore, a classification to secure admission for better qualified candidates is based on an intelligible differentia. Mr. Dave, learned advocate, would also rely on the decision in the case of Federation of Self Financed Ayurvedic Colleges (supra), and submit that the decision would support the respondents inasmuch as not only were the regulations not under challenge whereas it was so in that case. He would also emphasize on the observations of the Supreme Court, wherein, it held that the non availability of eligible candidates cannot be a reason to lower the standard prescribed by the Central council. The order categorically stated that it was only a one time measure and not to be treated as a precedent, and therefore not a statement of law.
4.3 In support of his submissions, Mr.Dave, learned advocate, would also rely on the decision of the Supreme Court in the case of M.C.I vs. Kalinga Institute of Medical Sciences, reported in (2016) 11 SCC 530 and the decision in the case of M.C.I vs. Page 12 of 27 Downloaded on : Wed Jan 12 06:41:48 IST 2022 C/SCA/20824/2019 CAVJUDGMENT M.G.R Education, reported in (2015) 4 SCC 580, where the Court took a serious view where the students were admitted contrary to the instructions given by the department. Mr.Dave, learned advocate, would rely on the decision of this Court rendered in Special Civil Application No. 7216 of 2020, wherein, the same regulations were considered. Shri Dave, learned advocate, would rely on a decision of the Kerala High Court in the case of Kerala State Indian System of Medicine Self Financing Management College Association dated 12.12.2019.
5. For the Guru Govind University and the Saurashtra University in Special Civil Application Nos. 21105 and 23241 of 2019, 11779 of 2020 and 14251 of 2020, Mr.Avinash Thacker, learned advocate with Mr.Shivang Thacker, learned advocate, have appeared for the Saurashtra University and Shri Guru Govind University. 5.1 Shri Thacker, learned advocate, would also take support of the decision in the case of All India Federation of Self Financed Ayurved Colleges (supra) judgment of the Supreme Court. He would submit that if para 3 of the decision is read, it was a case where the High Court of Punjab had passed an interim order Page 13 of 27 Downloaded on : Wed Jan 12 06:41:48 IST 2022 C/SCA/20824/2019 CAVJUDGMENT permitting the colleges to admit students. In the present case, the colleges on their own had given conditional letters of admission and the fact that the colleges had chosen not to contest the petitions would suggest the collusion between the students and the college. He would submit that in some of the petitions, no interim relief has been granted, and therefore, the students have no right to continue to prosecute their courses in the respective fields. 6 Mr. Premal Joshi, learned advocate, has appeared for the Gujarat Ayurveda University in Special Civil Application Nos. 20824 and 23196 of 2019. He would submit that if the petitioners' names are compared to the list annexed to the petitioners of Special Civil Application No. 7216 of 2020, which petition was dismissed by this Court on 19.01.2021, the Ayurveda University in that petition had annexed a list of 25 students whose admissions were cancelled. The petitioners herein are the same 25 candidates. He would rely strongly on the decision in Special Civil Application No. 7216 of 2020. Inviting the attention of the Court to the relevant paras of the decision, wherein, the Court had relying on this very list had approved the cancellation of admission of the petitioners therein. Page 14 of 27 Downloaded on : Wed Jan 12 06:41:48 IST 2022
C/SCA/20824/2019 CAVJUDGMENT 6.1 Mr.Premal Joshi, learned advocate, would further submit that the letters of admission categorically stated that the admission was conditional. The judgment in Federation of Self Financed Ayurved Colleges (supra), was not applicable. Here it was the college which was assuming that the competent authority would lower the percentile. The interim relief that was granted to the petitioners was not to disturb their conditional admission and such an interim relief would not give a right to the petitioners. 7 Considering the submissions made by the learned counsels appearing for the petitioners, it will be necessary to appreciate the following contours of the controversy to come to a particular decision.
(A) The relevant regulations which have been amended in the year 2018 categorically provide that in order to secure admission to the BAMS / BHMS courses, a minimum cut off percentile in the case of unreserved category concerned i.e. 50 th percentile would be necessary to secure admission to the colleges. (B) The present petitioners have not challenged the amendment Page 15 of 27 Downloaded on : Wed Jan 12 06:41:48 IST 2022 C/SCA/20824/2019 CAVJUDGMENT to the rules or assailed the stipulation prescribing a minimum qualification.
(C) Letters of Admission by the respective colleges are on record. For the purposes of brevity, one of the sample letters of admission would need to be referred to. Reading the letter of admission would indicate that the admission is provisional for the year 2019 20 and this is a conditional admission on the last date of the cut off dates and it is clearly informed that this is subject to the Ministry of AYUSH's approval of reduction in cut off marks. This is in the case of homeopathy colleges. Same is the position in the case of admission letters of ayurvedic colleges, where the admission letters clearly state that the admission to the college is based on a presumption that since in the last three years the Department of AYUSH has brought down the cut off marks for NEET, we assume that the same shall be adopted this year also. The college further goes on to write in the admission letter that the college is therefore conditionally admitting the students. The letter further stipulates that in case the cut off marks did not come down, then the admission shall be cancelled.
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C/SCA/20824/2019 CAVJUDGMENT (D) Perusal of the records of the petitions would indicate that though the proviso to the rule does stipulate a discretion with the Council in consultation with the Central Government to reduce the cut off percentile in case the seats are remaining vacant, the discretion would automatically not give the students seeking admission as a matter of right to command such lowering of the percentile of marks.
(E) Since both the learned counsels for the respective parties have relied on the decision in the case of Federation of Self Financed Ayurved Colleges (supra), inasmuch as, Mr.Shalin Mehta, learned Senior Advocate, would submit that the case would squarely govern the petitioners and the petitions be allowed, whereas the respondents have in fact, sought support from the decision, it will be necessary to extensively refer to the decision therein. Before the Supreme Court, the validity of the notifications issued by the Central Council of Indian Medicine and Central Council of Homeopathy and minimum qualifying marks was a subject matter of challenge. Amended regulations then came into force in the year 2018 prescribing a uniform entrance examination for all medical institutions. It appears that one Guru Ravidas Page 17 of 27 Downloaded on : Wed Jan 12 06:41:48 IST 2022 C/SCA/20824/2019 CAVJUDGMENT University issued a prospectus to admissions for BAMS and BHMS course and the criteria for admission to under graduates courses. When a petition was filed by the management of the colleges, the High Court of Punjab & Haryana passed an interim order on 06.09.2019, permitting admissions of students to under graduate courses without insisting on the students on getting minimum requisite percentile in NEET. The High Court of Punjab then finally dismissed the petitions by judgment and order dated 18.12.2019. Special Leave Petitions were filed by the students as well as the colleges against the said judgment. Admissions were granted to the students on the basis of interim order of the High Court. The question that arose before the Supreme Court for its consideration was whether the students seeking admissions to under graduate courses can be denied admission on the ground that they did not take NEET or that they did not get the minimum percentile prescribed under the regulations. Perusal of the judgment of the Supreme Court would indicate that in the petitions, the 2018 regulations were under challenge and the prayer was to declare them as ultra vires the provisions of Section 36 of the Central Council Act. It was in this context that we need to read the judgment of the Supreme Court. Para 9 of the judgment when read Page 18 of 27 Downloaded on : Wed Jan 12 06:41:48 IST 2022 C/SCA/20824/2019 CAVJUDGMENT would indicate that the Supreme Court opined that there was an authority for the respondent Ministry to frame regulations. What was found before the Supreme Court that a large number of seats in the institutions in Punjab were vacant and it was under these circumstances on the basis of interim orders, the institutions granted admissions. These interim orders continued and it was under these circumstances that the Supreme Court as a one time measure permitted the institution under peculiar circumstance not to disturb the admissions so granted. When para 12 is read, it is therefore clear that the order was so passed as a one time exercise in peculiar circumstances and not to be treated as precedent. The Supreme Court observed that prescribing a minimum percentile for admission to under graduate courses for the year 20192020 was appropriate. It observed that doctors who are qualified in Ayurveda, Unani and Homeopathy streams also treat patients and the lack of minimum standards of education would result in half baked doctors being turned out of professional colleges. It was clearly observed in para 12 of the decision that non availability of eligible candidates for admissions to AYUSH under graduate courses cannot be a reason to lower the standards prescribed by the Central Council for Admission.
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C/SCA/20824/2019 CAVJUDGMENT (F) The similarity drawn by Mr. Shalin Mehta, learned Senior Advocate, by submitting that since interim orders have been passed in these petitions protecting the petitioners, the decision of the Supreme Court would squarely govern, cannot be taken into consideration. In context of the prayers made in the petition what was protected by this Court pending hearing of the petitions was that the conditional admission granted to the petitioners would not be disturbed. The orders categorically said so. (G) Merely because interim orders have been passed which were adinterim exparte orders without the benefit of the arguments of the other side on the basis of the replies filed and the pleadings, such interim exparte orders cannot be said to be binding when the court takes up the matter for final hearing. This is particularly so when it is taken and appreciated in the facts of the case. (H) The colleges in which the petitioners secured admission had issued letters unequivocally stating that the admissions were conditional and on an assumption that the Ministry would lower the percentile for the academic year 201920. The letters further Page 20 of 27 Downloaded on : Wed Jan 12 06:41:48 IST 2022 C/SCA/20824/2019 CAVJUDGMENT went on to state that in case the lowering of percentile is not done, the admission of the students will stand cancelled. The students accepted their admission with open eyes on the basis of these conditional letters. Interim application granting them the protection of not disturbing their admission subject to further hearing would not give them a vested right in terms of the order of the Supreme Court in the case of Federation of Self Financed Ayurved Colleges (supra).
(I) The other distinction that needs to be drawn between the petitioners and the case on hand before the Supreme Court is that the notification of the regulations were challenged, which is not the case on hand in the present petitions. The petitioners, therefore, knowing fully well and having accepted the minimum stipulation of qualifications cannot now turn around and say that let these minimum qualifications not bind them in light of the order of the Supreme Court. The order of the Supreme Court was a one time measure not to be treated as a precedent as the High Court of Punjab & Haryana had granted interim orders permitting the colleges to admit. A thin line of distinction therefore needs to be drawn here. The conditional admissions already granted by the colleges were protected. These admissions were granted when the Page 21 of 27 Downloaded on : Wed Jan 12 06:41:48 IST 2022 C/SCA/20824/2019 CAVJUDGMENT colleges and the students/petitioners were fully aware of the potholes that could follow in case the Ministry did not lower the standards of qualifications. It is in light of these circumstances that the relevant paragraph of the decision in the case of M.C.I vs. Kalinga Institute of Medical Sciences (supra), which have been quoted by this Court in Special Civil Application No. 7216 of 2020 needs to be considered. For the purposes of benefit of this Court, para 12 of the decision in the case of Union of India vs. Self Financed College (supra), is relied upon by this Court in para 14 of the decision in SCA No. 7216 of 2020 which reads as under:
"14 XXX XXX XXX XXX ......
12. Prescribing a minimum percentile for admission to the Under Graduate Courses for the year 20192020 was vehemently defended by the Central Council and the Union of India by submitting that the minimum standards cannot be lowered even for the AYUSH Courses. We agree. Doctors who are qualified in Ayurvedic, Unani and Homeopathy streams also treat patients and the lack of minimum standards of education would result in half baked doctors being turned out of professional colleges. Non availability of eligible candidates for admission to AYUSH Under Graduate Courses cannot be reason to lower the standards prescribed by the Central Council for admission. However, in view of the admission of a large number of students to the AYUSH under graduate courses for the year 20192020 on the strength of interim orders passed by the High Courts, we direct that the students may be permitted to continue provided that they were admitted prior to the last date of admission i.e. 15th October, 2019.
The said direction is also applicable to students admitted
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to PostGraduate Courses before 31st October, 2019. This is onetime exercise which is permitted in view of the peculiar circumstances. Therefore, this order shall not be treated as a precedent."
(J) Even in the case of M.C.I vs. Kalinga Institute of Medical Sciences (supra), and the relevant paras 30, 31,31.1 and 31.2 read as under:
30. Learned counsel for KIMS and the students contended that unless this appeal is dismissed it will result in the students suffering a loss of two years of their studies. This may be so - but if such a situation has come to pass, KIMS is entirely to be blamed. KIMS was specifically told not to admit students by the Central Government in its letter dated 15th June, 2015.
Despite this KIMS persisted in litigation to somehow or the other accommodate 50 additional students. This was certainly not with a charitable motive. As an institution that should have some responsibility towards the welfare of the students, it would have been far more appropriate for KIMS to have refrained from giving admission to 50 additional students rather than being instrumental in jeopardizing their career.
31. However, for the fault of KIMS, the students should not suffer nor should KIMS get away scot free. KIMS must pay for its inability to introspect and venture into adventurist litigation. Accordingly, we direct as follows:
31.1 The admission granted to the 50 students pursuant to the order of the High Court dated 25th September, 2015 and the provisional permission granted by the Central Government only on 28th September, 2015 shall not be disturbed. How the students will complete their course of studies without putting undue pressure on them is entirely for the MCI and KIMS and other concerned authorities to decide. 31.2 Costs of Rs. 5 crores are imposed on KIMS for Page 23 of 27 Downloaded on : Wed Jan 12 06:41:48 IST 2022 C/SCA/20824/2019 CAVJUDGMENT playing with the future of its students and the mess that it has created for them. The amount will be deposited by KIMS in the Registry of this Court within six weeks from today. The amount of Rs. 5 crores so deposited towards costs shall not be recovered in any manner from any student or adjusted against the fees or provision of facilities for students of any present or subsequent batches."
(K) In the decision of Self Financed Colleges (supra), the Supreme Court was also conscious of the fact that there should not be half baked doctors.
8. All these parameters lead one to believe that merely because interim orders were passed by this Court in these petitions would not itself give a right to the petitioners to continue to pursue their studies in the respective BAMS & BHMS courses in light of a specific conditional admission granted to them making them aware that in case the percentile is not lowered their admission shall stand cancelled. In absence of a challenge to the regulations stipulating a minimum qualification, no writ in the nature as prayed for, for commanding the respondents to lower the qualifying percentile in NEET 2019 - 2020 examinations can be granted.
8.1 There is a fine distinction between the petitioners before the Page 24 of 27 Downloaded on : Wed Jan 12 06:41:48 IST 2022 C/SCA/20824/2019 CAVJUDGMENT Supreme Court. Perusalof the facts of the case before the Supreme Court wouldindicate that admissions were granted by institutions. This has been extensively discussed in the earlier part of the decision. In the facts of the present case, what is evident is that the institutions have taken the liberty to admit the students with a specific condition that "they assume that the Ministry shall lower the percentile as was done in the past". On the basis of such assumptions not only were the institution and the students not entitled to claim equity on the ground of warranting a discretion being exercised in their favour. Merely because such an exemption was given in the preceding year i.e. 201819 and is so given in 202021 would not give the institutions and the students a licence to claim benefit of an assumption on the part of the institutions contrary to the rule position sacrificing merit. Therefore, even if the benefit was to be extended in terms of the interim orders and permit the students to pursue the course as they have already undertaken a year of study would tantamount to giving premium to an admission secured contrary to the rule position. Thus, the discretion so exercised by the Supreme Court as a one time measure cannot be permitted to be perpetrated in case such institutions continue to assume and usurp the powers of the Page 25 of 27 Downloaded on : Wed Jan 12 06:41:48 IST 2022 C/SCA/20824/2019 CAVJUDGMENT admission committee in securing admissions to courses such as medical courses in light of the primacy of merit that is required. The admissions therefore granted to the students needs to be cancelled as the same is contrary to the eligibility criteria prescribed for the concerned year. Granting indulgence only on the pretext of a one time measure or not treating the present case as a precedent would prompt and embolden educational institutions to forego merit in admissions to such courses as medical stream. The respective respondent colleges have not appeared to contest the petitions, except in one petition represented by Mr. B.T. Rao, learned advocate and least it be said that the apprehension expressed by the University that these are collusive petitions at the hands of colleges with the students, may not be a submission which can entirely be discounted.
9. Article 14 of the Constitution of India cannot be pleaded as is so pleaded by the petitioners as compared to the students of the dental colleges as it has been specifically pointed out in the affidavitinreply that the vacancies in the dental colleges are far higher than those in the ayurveda and the homeopathy stream. Even otherwise, if the authorities have sought to exercise discretion Page 26 of 27 Downloaded on : Wed Jan 12 06:41:48 IST 2022 C/SCA/20824/2019 CAVJUDGMENT to lower the percentile for the year 201819 and for the years 2020 21 and not for the academic year 201920, the fact that the petitioners ventured to secure conditional admission in the colleges and the action of the colleges in granting such admission on the face of they knowing that the students were ineligible would not give the petitioners a vested right to continue their studies and pursue their course when admittedly in accordance with the rules stipulating a minimum qualification the petitioners were not eligible to have secured admission to such colleges.
10. Accordingly, all the petitions are dismissed. Interim reliefs granted earlier protecting the secured admissions stand vacated.
(BIRENVAISHNAV,J) BIMAL FURTHER ORDER Mr. Shalin Mehta, learned Senior Counsel, requests that the interim relief that was operating in some of the petitions, be continued for a period of two weeks. Request is accepted. Interim relief wherever granted to continue for a further period of two weeks from today.
(BIRENVAISHNAV,J) BIMAL Page 27 of 27 Downloaded on : Wed Jan 12 06:41:48 IST 2022