Madras High Court
M.Pemila vs The Central Council Of Homeopathy on 30 July, 2010
Author: S.Manikumar
Bench: S.Manikumar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 30/07/2010 CORAM THE HON'BLE MR.JUSTICE S.MANIKUMAR W.P.(MD)No.6385 of 2007 and M.P.(MD)No.2 of 2010 M.Pemila .. Petitioner vs 1.The Central Council of Homeopathy, Institutional Area, Janakpuri, New Delhi - 110 058, Rep. By its Secretary 2.The Tamil Nadu Dr.M.G.R.Medical University, Rep. By its Registrar, No.69/40, Anna Salai, Guindy, Chennai - 600 032. 3.The Controller of Examinations, The Tamil Nadu Dr.M.G.R. Medical University, No.69/40, Anna Salai, Guindy, Chennai - 600 032. 4.The Deputy Controller of Examinations The Tamil Nadu Dr.M.G.R. Medical University, No.69/40, Anna Salai, Guindy, Chennai - 600 032. 5.The Principal, While Memorial Homeopathy Medical College, Attoor, Veeyanoor - 629 177, Kanyakumari District. .. Respondents (*Cause title of the 1st respondent amended as per order, dated 19.11.2009) PRAYER Writ Petition filed under Article 226 of the Constitution of India, praying for the issuance of Writ of Certiorarified Mandamus, calling for the records relating to the impugned letter issued by the 4th respondent Deputy Controller of Examinations in Letter No.Ex.IV(2)/35698/2007 dated 04.07.2007 refusing to permit the petitioner to take the University Examination in August 2007, quash the same and further direct the respondents to register the petitioner's candidature and permit her to pursue the BHMS Degree course (Bachelor of Homeopathic Medicine & Surgery) 2005-2006 in the 5th respondent College by taking the periodical University examinations. !For Petitioner ... Mr.Issac Mohanlal ^For Respondents ... Mr.C.Karthick :ORDER
By impugned order dated 04.07.2007, the Deputy Controller of Examinations, Tamil Nadu Dr.M.G.R. Medical University, Chennai, the fourth respondent herein, noticing that the candidature of the petitioner has not been registered with the University for the academic year 2005-06 held that she is not eligible to take up BHMS Degree course and accordingly, returned the application form submitted by her to take up the examination. Being aggrieved by the same, the petitioner has filed the present writ petition, seeking for a Writ of Certiorarified Mandamus, to quash the letter dated 04.07.2007 and consequently prayed for a direction to register her to pursue BHMS degree course in the 5th respondent college by taking periodical university examinations.
2.White Memorial Homeopathy Medical College, Kanyakumari District, offered 5-1/2 years degree course in Homeopathic Medicine & Surgery (BHMS). After passing Higher Secondary Examination by the petitioner was admitted to the 5. years BHMS degree course on 23.11.2005, in the 5th respondent College, for the academic year 2005-06. As per the cut-off date fixed by the University, the last date for admission was 30.09.2005 and admission of 22 candidates was over before the said date. As per the circular, dated 13.12.2005, issued by the Central Council of Homeopathy, New Delhi, the last date for admission was fixed as 31.12.2005. The petitioner was admitted on 23.11.2005. Therefore, it was well within the cut-off date for admission to Homeopathy and other Indian Medicine courses for the academic year 2005-06.
3.On 24.03.2006, the 5th respondent College submitted a list of candidates to the University for enrollment and registration of their names along with examination fee. Except the petitioner, 22 students were permitted to enroll themselves and to take up the University examinations, scheduled on 04.08.2005. According to the petitioner, no order refusing to register her candidature, was passed by the University. Coming to know that her candidature was not registered, the 5th respondent College sent a representation dated 29.03.2007, to the University stating that as the Central Council of Homeopathy, New Delhi, has fixed the cut-off date for admission to BHMS Course as 30.12.2005, admission of the writ petitioner cannot be said to have been made belatedly by the College and therefore, requested the University that the petitioner be permitted to take up the University examinations. When the 5th respondent College informed the petitioner that by impugned communication, dated 04.07.2007, the Deputy Controller of Examinations of the Tamil Nadu Dr.M.G.R. Medical University, Chennai, has denied permission to her to take up the examinations, scheduled in August 2007, she has come forward with the present writ petition.
4.Inviting the attention of this Court to the reduction of the minimum marks, prescribed as the eligibility criteria, from 60% to 50% marks for Biology or Botany and Zoology, taken together and a minimum of 50% marks in each of the subjects Physics and Chemistry, with an aggregate percentage of marks (a) and
(b) should not be less than 130 out of 200, for the admission to BSMJ/BUMS/BAMS/BHMS courses, for the academic year 2006-07, as per G.O.(D)880, Health and Family Welfare (IMI-2) Department, dated 02.9.06 and the further reduction of minimum marks to 45% marks, in aggregate in the core subjects namely, Physics, Chemistry, Biology or Botany and Zoology and for admission to the above said degree course, for the academic year 2007-2008, as prescribed by the Government in G.O.(D) 713 (Health and Family Welfare Department), dated 15.06.2007, the petitioner has submitted that inasmuch as the petitioner has secured marks more than the cutoff marks prescribed for the subsequent years, the candidature of the petitioner for enrollment with the University may be directed to be made and that she may be permitted to take up the examinations scheduled to be held on 04.08.2010 and for subsequent dates.
5.The Registrar in charge of the Tamil Nadu Dr.M.G.R. Medical University, Chennai, in his counter affidavit, has submitted that the University has established rules framed and approval by the Standing Academic Board. As per the regulations of the University, the cut-off date for closure of admission is 30th September of the academic year. He has further submitted that as the admission of the petitioner has been made after the cut-off date i.e., 30.09.2005, as prescribed by the Standing Academic Board of the University, the same cannot be registered with the University. He has further submitted that as per the certificate produced by the petitioner, she has not secured the minimum eligibility marks for admission to the first year BHMS degree course, for the academic year 2005-06, as per G.O.(Ms)No.140, Health and Family Welfare IM.I(2) Department, dated 19.06.2003. As per the guidelines contained in the abovesaid Government Order, the minimum eligibility marks prescribed for admission of a candidate belonging to Backward Class is that the said candidate should have secured 60% marks in Biology or Botany and Zoology taken together, 60% marks in each of the subjects Physics and Chemistry and the aggregate should not be less than 130 out of 200. According to the Registrar of the University, the petitioner has passed the Higher Secondary Examination and obtained the following marks:-
Regn.No Month & year Physics Chemistry Biology Aggregate 1332058 3/2005 93/200 90/200 89/200 90.00% 45.57 44.05 1832868 6/2005 1226901 9/2005
6.As the petitioner had not secured the minimum eligibility marks prescribed by the Government, and since the admission was beyond the cutoff date prescribed by the University, she is not eligible to enroll her candidature with the University and write the examinations. It is further submitted that when G.O.(Ms)No.140, Health and Family Welfare IM.I(2) Department, dated 19.06.2003, was challenged in a batch of Writ Petitions, this Court, by order dated 29.07.2005, directed the University to permit the students admitted in the academic year 2003-04, as against the lapsed seats but, who satisfy the eligible criteria as per G.O.(Ms)No.140, Health and Family Welfare IM.I(2) Department, dated 19.06.2003, and those who do not meet the criteria alone to continue the studies till completing their course and once they complete their course, necessary certificate can be issued by the Council.
7.Being aggrieved by the orders made in the batch of Writ Petitions, the Tamil Nadu System of Medicine and Homeopathy Financing Medical Colleges Association filed Special Leave Appeal (Civil) No.21341/2005 before the Hon'ble Apex Court with the following prayer :-
(a) to grant interim ex-parte stay of the operation of G.O.Ms.No.140 Health and Family Welfare Department, State of Tamil Nadu dated 19.06.2003 and consequent order by the respondent No.4 University; and
(b) grant interim ex-parte order stay of the impugned final judgment and orders dated 29.07.2005 in W.P.No.29523 of 2004 passed by the High Court of Judicature at Madras;
(c)Permit the students of 2004-2005 batch who are already admitted in the institutions to continue their studies and appear in the examination for their Degree Courses;
(d) Permit the petitioner Institutions to admit students to fill up vacant seats for the academic year 2005-06 as per the minimum qualifying marks fixed by the Central Council.
8.By interim order, dated 07.11.2005, the Hon'ble Supreme Court directed status-quo to be maintained and in such circumstances, the students of the academic years 2003-04, 2004-05 and 2005-06 admitted upto the cut-off date i.e., 30th September of the year were not permitted to appear in the respective examination conducted by the Tamil Nadu Dr.M.G.R. Medical University, Chennai. The Registrar of the University has further submitted that all the students being aggrieved over the prescription of higher marks of the State Government Order in G.O.(Ms)No.140, Health and Family Welfare IM.I(2) Department, dated 19.06.2003 filed writ petitions before the High Court, Madras. A Division Bench of this Court, by its order dated 29.07.2005 has confirmed the said Government Order. On appeal, the Hon'ble Supreme Court, while upholding the power of the State Government to prescribe higher percentage of marks for admission to various courses of Indian System of Medicine, Homeopathic etc., and having regard to the prescription of 50% of marks as stipulated in the Central Council of Indian Medicine (Minimum Standard of Education) in Indian Medicine Regulation, as against 60% notified by the Health and Family Welfare Department of State Government and of the fact of completion of the course, observed that 25 students, who got admission during the academic year 2005-06, though not qualified as per the notification, need not be disqualified and further held that the above students should also be declared to have qualified to join the courses, they had opt.
9.He has further submitted that as the petitioner had joined the course after the cut off date i.e., 30.09.2005 and she being not a party to the order passed by the Supreme Court, is not eligible to be admitted to the course, for the reason that she has not scored the minimum marks, as prescribed in G.O.(Ms)No.140, Health and Family Welfare IM.I(2) Department, dated 19.06.2003.
10.He has further stated that as per the orders of this Court, dated 27.07.2007 in M.P.No.2 of 2007, the petitioner was permitted to appear for the first year BHMS degree examination earlier in August 2007 and that the result were withheld. Subsequently, a direction was given to the University to publish the first year results and as the petitioner had failed in Anatomy, she was again permitted to write the examination without prejudice to the rights of the parties in the main writ petition and that the results are withheld. It is the further contention of the University that as per the regulations of BHMS degree course, no candidate shall be admitted to the Second year BHMS examination unless (a) the candidate has passed the first year BHMS examination, at least one year previously. As the admission of the petitioner is not in accordance with the minimum standards prescribed by the State Government and made after the cutoff date, as prescribed by the University, for admission to BHMS degree course, there is no manifest illegality in the impugned order.
11.Placing reliance on the proceedings of the Central Council of Homeopathy dated 13.12.2005, Mr.Issac Mohanlal, learned counsel for the petitioner submitted that the Executive Committee of the Central Council of Homeopathy in its meeting dated 07.12.2005 had resolved to extend the cut-off date for admission to the first year BHMS degree course for the session 2005-06 till 31.12.2005, provided that the students admitted after the extension of admission date shall appear in first year BHMS degree course examination, at the end of 18th month of admission. He further submitted that the circular letter of the Central Council of Homeopathy, New Delhi is binding on all the Universities including deemed University and Homeopathy Medicine Colleges in India and Tamil Nadu Dr.M.G.R. Medical University, Chennai, is bound by the directions of the Central Council of Homeopathy and therefore, the refusal of the failure on the part of the second respondent University to register the petitioner's candidature for admission is arbitrary, and wholly unjustifiable. Though the impugned order pertains only to denial of registration of the petitioner candidature on the ground that her admission was made after the cutoff date i.e., on 30.09.2005, as prescribed by the University, having regard to the second objection of the University that the petitioner has not secured the minimum marks in the Higher Secondary Examination, for admission to the first year BHMS degree course, learned counsel for the petitioner submitted that the said issue may also permitted to be addressed, though the prayer in the writ petition pertains only to non registration of the petitioner's candidature on the ground that it was made after 30.09.2005 prescribed for admission. Considering the rival contentions made by the parties regarding the validity of the admission and the pendency of this petition for nearly five years, this Court is inclined to expand the scope of the writ petition and address the issue as to whether the petitioner has secured the minimum eligible marks required for admission to the above said course.
12.Inviting the attention of this Court to the constitution of a separate Central Councils for Homeopathy under Section 3 of the Homeopathy Central Council Act, 1973 and the powers of such Council to prescribe the minimum standards of education in "Homeopathy" including the powers to frame regulations for the matters provided for under Section 33 of the Homeopathy Central Council Act, 1973 and constitution of a different Central Council and its powers to frame regulations as provided for under Section 36 of the Indian Medicine Central Council Act, 1970, he further submitted that Indian Medicine Central Council Act, 1970 and the Regulation framed thereunder deal with 'Indian Medicine', only and as per definition 2(e) of the Act, 1970 "Indian Medicine"
means, the system of Indian Medicine commonly known as Ashtang Ayurveda, Siddha or Unani Tibb whether supplemented or not by such modern advances as the Central council may declare by notification from time to time. He further submitted that regulations framed under Section 33 of the Indian Medicine Central Council Act, 1970, can be made applicable only to the abovesaid three systems of medicines and not to Homeopathy" which system of medicine is governed by the provisions of Homeopathic Central Council Act, 1973.
13.Taking this Court through the Homeopathy regulations framed under Section 33 r/w Section 20 of the Homeopathy Central Council Act, 1973, leaned counsel for the petitioner further submitted that as per the regulations framed for admission to BHMS degree course, the minimum qualifications prescribed for admission to the said course, are that no candidate shall be admitted to BHMS (degree course) if (a) she has not passed the intermediate Science or its equivalent examination with Physics, Chemistry and Biology as his subjects, (b) attained the age of 17 years on or before 31st December of the year of his admission to the first year of the Course. He further submitted that though the Central Council of Homeopathy, New Delhi has made certain amendments to the regulations with effect from 29.06.2004, there is no change in the prescription of minimum qualifications for admission to BHMS (degree course) and that mere pass in Intermediate Science or its equivalent examinations with Physics, Chemistry and Biology is sufficient for admission to degree course.
14.Inviting the attention of this Court to the order made in the Civil Appeal No.4203/09 dated 09.07.2009, learned counsel for the petitioner submitted that though the Hon'ble Supreme Court has taken note of the Central Council of Indian Medicine (Minimum standards of Education in Indian Medicine) Regulations 1986, which has prescribed 50%, as minimum marks for admission to BHMS, as against 60% marks notified by the Government of Tamil Nadu in G.O.(Ms)No.140, Health and Family Welfare IM.I(2) Department, dated 19.06.2003, the said regulation, is not applicable to Homeopathy course, but still the Hon'ble Supreme Court having regard to the completion of the course by the students for the academic year 2005-06, observed that 25 students, who were before the Supreme Court though not strictly qualified as per the State Government's notification, need not be disqualified, and further held that the above said 25 students should also be declared to be qualified the courses, they had opted. He submitted that the said judgment has to be made applicable to the case of the petitioner, who had satisfied the minimum eligible criteria of a pass in Higher Secondary Examination in the core subjects, as per the regulations of the Homeopathy Council. He therefore, submitted that the petitioner who was admitted within the cutoff date, as per the circular of the Homeopathy Council, New Delhi with the minimum eligibility criteria, fixed by the regulations framed by the Central Council Homeopathy Act, 1983 and 2004 should be permitted to undergo the degree course.
15.Inviting the attention of this Court to the marks secured by the petitioner in the improvement examinations, learned counsel for the petitioner further submitted that though the petitioner was admitted to the first year degree course on 23.11.2005, the respondents have failed to take into consideration the marks scored in the improvement examinations while computing the eligibility marks, which is more than the minimum marks required under the regulation framed by the Homeopathy Central Council. For the above said reasons, he submitted that the petitioner be permitted to be enrolled with the University and take up the examinations.
16.Per contra, placing reliance on the University Regulations, which prescribe a cutoff date i.e., 30.09.2005 for admission to first year BHMS degree course, Mr.C.Karthick, learned counsel for the University submitted that as the petitioner was admitted on 23.11.2005 much after the cutoff date, the admission cannot approved and therefore, refusal to register her name with the University cannot be said to be without any valid reasons and therefore, there is no manifest illegal warranting any interference. He further submitted that as per guidelines framed for admission to first year BHMS for the academic year 2005-06 in G.O.(Ms)No.140, Health and Family Welfare IM.I(2) Department, dated 19.06.2003, the petitioner has to secure 60% marks in each of the subjects Physics and Chemistry and that the aggregate should not be less than 130/200. But, the petitioner has secured only 45.57 marks in Physics and Chemistry put together and 44.05% marks in Biology, put together the aggregate was only 90 out of 200 marks. He further submitted that when prescription of higher percentage of marks in the core subjects by the Government was upheld by the Division Bench, in its order dated 29.07.2005, the admission of the writ petitioner made on 23.11.2005, after the decision of the Division Bench, is per se not in conformity with the eligibility criteria and in such circumstances, the petitioner has no legal or statutory right to insist that her admission should be registered with the University. In support of his contention that the University can prescribe higher marks for admission to Medical courses than the marks fixed by the respective Council, learned counsel for the University relied on a decision of this Court in The Controller of Examinations, Pondicherry University, Pondicherry Vs. K.Sudhakar reported in (2005 (3) CTC 2).
17.As regards the contention that the petitioner ought to have been given a similar concession as extended to 25 students, who had completed the first year BHMS degree course for the academic year 2005-06 under the orders of the Hon'ble Supreme Court in Civil Appeal No.4250 of 2009 dated 09.07.2009, learned counsel for the university submitted that the said order can be made applicable only to the parties to the proceedings before the Hon'ble Supreme Court and inasmuch as the petitioner has not completed the first year Degree course, and not secured the minimum marks prescribed by the Government for admission, she is not entitled to the benefit of the abovesaid order.
18.Placing reliance on the decisions of the Supreme Court made in Guru nanak Dev University v. Dhanalakshmi Srinivasan Educatiional and Charitable Trust reported in (1993 (4) SCC 401) and in Regional Officer C.B.S.E. Vs. Sheena Peethambaran reported in (AIR 2003 SC 3720) and in Mahatma Gandhi University Vs. Gis Jose reported in (2008 (4) CTC 741) learned counsel for the University submitted that an ineligible candidate, is not eligible to be registered with the University and permitted to take up the examination. He also submitted that any subsequent reduction in the eligibility marks cannot validate the admission made in the year 2005, when the minimum marks was 60% as the Government's notification. He further submitted that the college was already intimated that she had secured less marks than the one prescribed by the Government and hence ineligible for admission and therefore, the petitioner cannot contend that she was not aware of the same. He also submitted that the contention regarding non- consideration of improvement marks was not never passed at the time of filing of the writ petition and therefore, it is not open to the petitioner to advance any arguments on the said aspect. For the said abovesaid reasons, the learned counsel for the University submitted that there is no illegality in the impugned order.
19.Heard the learned counsel appearing for the parties and perused the materials available on record.
20.Before adverting to the facts of this case, it is necessary to have a cursory look at the provisions relating to the Constitution and powers of Homoeopathy Central Council Act, 1973 vis-a-vis the Indian Medicine Central Council Act, 1970. The statement of objects and reasons of Indian Medicine Central Council Act, 1970 are as follows:
"The Indian Medicine and Homoeopathy Central Council Bill, 1968 was introduced in the Rajya Sabha on the 27th December, 1968 for the setting up of a composite Central Council for Indian Systems of Medicine and Homoeopathy. The Joint Committee of Parliament considered the Bill. The exponents, not only of Homoeopathy but also of the three systems of Indian Medicine viz., Ayurved, Siddh and Unani asserted before the Committee that the basic concepts of Indian System of Medicine were different from the fundamentals of Homoeopathy and as such a separate Council for Homoeopathy should be provided. For the proper growth and development of all the four systems, the committee recommended two separate Central Councils; one for all the three Indian Systems of Medicine and the other for Homoeopathy".
21.As per Section 2(d) of Homoeopathy Central Council Act, 1973 "Homoeopathy" means the Homoeopathic system of medicine and includes the use of Biochemic remedies.
22.The Indian Medicine Central Council Act, 1970 was enacted to provide for the constitution of a Central Council of Indian Medicine and the maintenance of a Central Register of Indian Medicine for matters connected therewith. As per the objects and reasons of this Act, the main functions of the Central Council is to evolve uniform standards of education in and registration of the practitioners of these systems of Indian Medicine and Homoeopathy.
23.As per Section 2(e) of Indian Medicine Central Council Act, 1970 "Indian Medicine" means, the system of Indian medicine commonly known as Ashtang Ayurveda, Siddha or Unani Tibb whether supplemented or not by such modern advances as the Central Council may declare by notification from time to time.
24.The constitution of Central Council for Homoeopathy is done as per Section 3 of Act, 1973 and it consists of members not exceeding five, exclusively from Homoeopathy system of medicine. Whereas, the constitution of the Central Council of Indian Medicine as per Section 3 of the Act, 1970, consists such number of members not exceeding five as may be determined by the Central Government in accordance with the provisions of the First Schedule, for each of the Ayurveda, Siddha and Unani systems of medicine from each State in which a State Register of Indian medicine is maintained, to be elected from amongst themselves, by persons enrolled in that Register as practitioners of Ayurveda, Siddha or Unani, as the case may be.
25.Under the Indian Medicine Central Council Act, the Regulations are framed under Section 36 of the Act, 1970, whereas under the Homoeopathy Central Council Act, 1973 regulations are framed under Section 33 of the Act. The Councils constituted under the respective enactments are empowered to fix the minimum standards of education depending upon the system of medicine. As rightly contended by the learned counsel for the petitioner that the regulations issued under Indian Medicine Central Council Act, 1970 cannot be made applicable to Homeopathy course.
26.To address the first issue as to whether the admission of the petitioner made to the first year of 5. years B.H.M.S degree course for 2005- 2006 can be said to be belated and whether the university is right in refusing to register her name with the University, it is necessary to extract the circular, dated 13.12.2005 of the Central Council of Homoeopathy, New Delhi.
"Central Council of Homoeopathy Jawaharlal Nehru Bhartiya Chikitsa Avum Homoeopathy Anusandhan Bhavan No.61-65, Institutional Area, Opp. 'D' Block, Janakpuri, New Delhi -110 058 14-4/2005/CCh/13881-14180 Date:13Dec.2005 To,
1.The Secretaries to all the States/U.T. Govts. Department of Health and Family Welfare/Medical Examination/I.S.M & Homoeopathy/Homoeopathy.
2.The Directors/Deputy Directors/Assit.Directors to all States/U.T.governments, Department of Health/Medical Education/I.S.M & Homoeopath/Homoeopathy.
3.The Registrars of all the Universities (including Deemed Universities) having affliated/attached Homoeopathic Medical Colleges.
4.The Principles of all the Homoeopathic Medical Colleges (including N.I.H.Kolkata) Sub: Request to revise the cut off date for admission to BHMS course in academic session 2005-2006.
Sir, I am directed to say that the Executive committee of this Council in its meeting hold on 07.12.2005 has considered the various requests on the above mentioned matter, and it resolved that since Central Council of Indian Medicine has extended the cut off date for admission in Ayurveda/Unani Colleges for admission in 2005-2006 as such looking into a number of requests from State Governments and Colleges, the Executive Committee of Central Council of Homoeopathy resolved to extend the cut off date for admission in I-BHMS Degree Course for session 2005-2006, till 31.12.2005 provided that students, admitted after extension of admissions date shall appear in I-BHMS Degree Course examinations at the end of 18th month of admission".
27.The contention of the university is that as per their regulations, the cut off date for admission was 30.09.2005 and that the petitioner was admitted to the course on 23.11.2005 is not eligible for registration. Perusal of the circular dated 30.11.2005 shows that the Executive Committee of the Central Council of Homoeopathy, New Delhi had resolved to extend the cut off date for admission to five years First BHMS degree course for session 2005-2006 till 31.12.2005, provided that the students admitted after extension of admissions date shall appear in the I BHMS Degree course at the end of 18th month of admission. The said circular has been addressed to the Secretaries of the States, Union Territories, the Department of Health and Family Welfare, Medical Education, I.S.M and Homoeopathy and to all the Universities, including deemed universities. The directions of the Central Council of Homoeopathy, New Delhi is applicable to all the universities, including the Tamil Nadu Dr.M.G.R.Medical University. All that is required, is that students admitted after the extension of date i.e., admission date shall appear in I Year BHMS Degree course examinations at the end of 18th month of admission. When the circular dated 13.12.2005 is addressed to the Registrars of all the Universities, the contention of the University that admission made on 23.11.2005 is contrary to the University regulations cannot be countenanced and therefore, it is rejected. Therefore, this Court is of the considered view that the admission of the petitioner made on 23.11.2005 is in accordance with law.
28.The next issue to be considered is whether the petitioner has satisfied the minimum eligibility marks prescribed for admission to the course. As per G.O.Ms.No.140 (Health and Family Welfare Department) dated 19.06.2003, a candidate belonging to Backward class should secure a minimum of 60% marks in Biology or Botany and Zoology taken together, 60% marks in each of physics and Chemistry. Aggregate should not be less than 130 out of 200 marks. However, the petitioner has passed the higher secondary examination and obtained following marks:
Regn.No Month & year Physics Chemistry Biology Aggregate 1332058 3/2005 93/200 90/200 89/200 90 45.57 44.05 1832868 6/2005 1226901
29.As per Homoeopathy Regulations, 1983, dated 11.05.1983 and further amendment issued to such regulations on 29.06.2004, the minimum qualifications for admission to BHMS degree course is that no candidate shall be admitted to B.H.M.S degree course unless he has:-
(a)passed the Intermediate Science or its equivalent examination with Physics, Chemistry and Biology as his subjects
(b)attained the age of 17 years on or before 31st December of the year of his admission to the first year of the Course.
30.The Indian Medicine Central Council Regulations of the year 1986 pertaining to Ayurveda, Siddha, Unani courses framed under Section 36 of the Indian Medicine Central Council Act, 1970, called as the Indian Medicine Central Council Act (Minimum Standards of Education in Indian Medicine) Regulations, 1986 deals only with the three kinds of systems of Indian Medicine and that the student has to secure 50% of the marks in the higher secondary examination with Physics, Chemistry and Biology or any other equivalent qualification recognised by the State Governments and State Education Boards.
31.Though the Central Council of Homoeopathy Regulations issued under Section 33 of the Homoeopathy Central Council Act, 1973 states that the minimum qualification for admission to the first year BHMS degree course is a pass in higher secondary examination or its equivalent examination with Physics, Chemistry and Biology subjects, the higher qualifications prescribed by the University than the one was fixed by Homeopathy Central Council has been upheld by this Court in W.A.No.4170 of 2003 dated 29.04.2005 for the academic year 2005-2006 and therefore, the said issue is no more res integra. It is also supported the decisions of this Court in The Controller of Examinations, Pondicherry University Vs. K.Sudhakar reported in 2005 (3) CTC 2, and State of Tamil Nadu Vs. S.V.Bratheep reported in 2004(2) CTC 227 where this Court a Division Bench of this court in W.A.Nos.220 to 224 of 2004 (The Controller of Examinations, Pondicherry University Vs. T.Jayaprakash) has held that the University can prescribe higher qualifications than what is fixed by the Medical council of India. In light of the decisions stated supra, the admission of the petitioner who did not secure the minimum marks prescribed by the University for admission to the first year BHMS course, for the academic year 2005-2006 cannot be said to be in accordance with Government guidelines issued in G.O.Ms.No.140 (Health and Family Welfare Department) dated 19.06.2003.
32.When the correctness of the decision of the Division Bench upholding the Government notification, in G.O.Ms.No.140 (Health and Family Welfare Department) dated 19.06.2003 prescribing higher qualification was tested, the Hon'ble Supreme Court in C.A.No.4203 of 2009, observed as follows:
"As regards 2005-2006, about 75 students have been admitted, who are told that these students have also now completed their admission. Learned counsel appearing for the petitioners has submitted that as per the Central Council of Indian Medicine (Minimum Standards of Education in Indian Medicine) Regulations, 1986, minimum marks prescribed is 50% as against 605 marks notified by the Health and Family Welfare Department of the State Government. Of course, the State can prescribe high percentage of marks for admission to the courses for various colleges in the State.
.....
For the students of 2005-2006, only 25 students were not strictly qualified as per notification. But they have also secured more than 50% of marks as stipulated in the Central Government notification and we are told that they have already completed their courses. We do not think that they should be disqualified at this stage. Accordingly, we hold that these students should also declared to be qualified to join the courses they had opted".
However, it has to be seen whether the admission of the petitioner who has secured less marks than the marks fixed by the Government and followed by the University is ineligible admission or not.
33.In Guru Nanak Dev University Vs. Parminder Kr.Bansal and others reported in 1993 (4) SCC 401, the validity of Regulation 27 of the Guru Nanak Dev University fixing eligibility for admission to the internship Course for M.B.B.S degree was challenged. The Gujarat High Court, by its interim orders, directed the admission of the two respondents to the Internship course with effect from April 1, 1992 on which date, admittedly, they did not possess the requisite eligibility. They had not passed the MBBS examination. Thereafter, by final order, the High Court directed that their internship be regularised. Accepting the contention of the learned counsel for the University that the very implication of the idea of regularisation contained within it the premise that the initial admission itself was irregular, the Hon'ble Supreme Court at paragraph 7 of the judgment held as follows:
"We are afraid that this kind of administration of interlocutory remedies, more guided by sympathy quite often wholly misplaced, does no service to anyone. From the series of orders that keep coming before us in academic matters, we find that loose, ill-conceived sympathy masquerades as interlocutory justice exposing judicial discretion to the criticism of degenerating into private benevolence. This is subversive of academic discipline, or whatever is left of it, leading to serious impasse in academic life. Admissions cannot be ordered without regard to the eligibility of the candidates. Decisions on matters relevant to be taken into account at the interlocutory stage cannot be deferred or decided later when serious complications might ensue from the interim order itself. In the present case, the High Court was apparently moved by sympathy for the candidates than by an accurate assessment of even the prima facie legal position. Such orders cannot be allowed to stand. The courts should not embarrass academic authorities by themselves taking over their functions".
34.In Regional Officer, C.B.S.E, Vs. Ku.Sheena Peethambaran and others reported in AIR 2003 SC 3720, the first respondent therein was a student of St Paul's School, Morar, Gwalior, affiliated to the Central Board of Secondary Education, New Delhi. She submitted a form for high school examination, but the same was withheld by the school authorities on the ground that she had not cleared her class IX examination. Challenging the same, a writ petition was filed and the High Court directed the appellant to permit her to appear in the examination, subject to the result of the writ petition. Finally, the writ petition was disposed of as infructuous as the admission form for appearing in the examination of the student had since been sent to the Central Board of Secondary Education, Delhi and that the student was permitted to take part in the examination and no further direction was required. Further, another writ petition was filed by the student with a prayer that a telegram sent by the Regional Officer of the Board, Ajmer, Rajasthan not permitting her to appear in the examination may be quashed and that she may be allowed to appear in the examination of the Board. In the latter writ petition, interim direction was granted permitting the petitioner to take up the examination with a condition that the results would be subject to the decision of the petition. Subsequently, results were directed to be declared.
35.On the facts of this reported case and after considering the requisite qualification prescribed by the Central Board of Secondary Education, New Delhi, after referring to the decision made in C.B.S.E and another Vs.P.Sunil Kumar and others reported in 1998(5) SCC 377, Guru Nanak Dev University Vs. Parminder Kr.Bansal reported in 1993 (4) SCC 401 and in Christians Medical Educational Society Vs.Government of Andhra Pradesh and another etc., reported in AIR 1986 SC 1490, the Supreme Court at paragraph 7 of the judgment in Regional Officer's case has held as follows:
"7.In the background of the law as laid down by this Court, we find that in the case in hand the fact situation was even worse as compared to the decision cited above. The student, namely, respondent No.1 had failed to clear her class IX examination which was a necessary requirement as provided under the bye laws of the Board so as to be entitled to appear in the class X examination conducted by the Board. Despite notice, no one has put in appearance on behalf of the respondents Nos.1 and 2 to indicate any fact or circumstance so as to take any different view. Condoning the lapses or overlooking the legal requirements in consideration of mere sympathy factor does not solve the problem rather breeds more violations in the hope of being condoned. It disturbs the discipline of the system and ultimately adversely affects the academic standards".
36.In Mahatma Gandhi University and another Vs. Gis Jose and others reported in 2008 (4) CTC 741, the respondent therein was admitted to M.Sc. Computer science course, she had secured only 53.3% marks in her qualifying examination against the minimum requirement of cut off marks, which was 55%. In total derogation of this fact, the student was admitted. The University through the Controller of Examination wrote a letter to Principal of the College, pointing out the irregular admission to M.Sc. Computer Science course. The application of the student in first and second semester examinations were rejected on the ground that the student had scored only 53% marks and her admission was in violation of the admission rules framed by the University and still Principal had allowed the student to continue in M.Sc.Computer Science and to complete course and to write the examination. It was pointed out that the university was viewing the matter seriously. A memo was ultimately sent on 25.02.2005 and the student was informed that University had rejected her request for continuing studies in M.Sc computer science in the college. In these circumstances, the student approached the Kerala High court by way of a writ petition, which was dismissed by a learned Single Judge, as the student did not have the basic qualification for admission to the said course in accordance with the regulations. The same was taken on appeal, the Division Bench took the view that since the student had completed the course and had taken the examination, the results would have to be declared. While doing so, the Division Bench observed that it was too late for anybody to contend that by treating her admission as nullity, somebody would have gained anything. It was also the view of the Division Bench that the student had not misrepresented regarding her marks and yet she was given the admission as a normal student.
37.On the facts of this reported case, the Hon'ble Supreme Court, following the decision in Regional Officer, C.B.S.E, Vs. Ku.Sheena Peethambaran and others reported in AIR 2003 SC 3720, observed that the college where the student was admitted, in breach of all possible rules allowed her not only to complete the course but also to write the examination and the same was totally illegal and in such circumstances, allowed the appeal filed by the University and by setting aside the judgment of the Division Bench restored the judgment of the learned Single Judge and dismissed the writ petition.
38.In the case on hand, though the petitioner has contended that in Civil Appeal No.4203 of 2009, the Hon'ble Supreme Court has observed that 25 students who did not strictly qualify themselves for admission as per the State Government notification for the academic year 2005-2006 and since they had secured more than 50% of marks as stipulated in the Central Government notification as per Indian Medicine Central Council Act (Minimum Standards of Education in Indian Medicine) Regulations, 1986, a direction was issued that they should not be disqualified, for admission, the learned counsel for Dr.M.G.R. University submitted that the above said 25 students had already completed their course but the petitioner herein has not completed the course in the first year 2005-2006.
39.Record of proceedings that though this Court has permitted the student to take part in the examination, for the first session of the course, she has not cleared one paper. As per the University regulations, she cannot be admitted to the 2nd year of the 5. years BHMS Course. The judgment in C.A.No.4203 of 2009 has been rendered by a Two Judges Bench and as rightly contended by the learned counsel for the university, the decision rendered therein, cannot be said to be a precedent on the point of law as to whether ineligible candidates admitted to a course can be regularised and that they can be permitted to continue the course. Whereas, Christians Medical Educational Society Vs. Government of Andhra Pradesh and another etc., reported in AIR 1986 SC 1490 and Guru Nanak Dev University Vs. Parminder Kr.Bansal and others reported in 1993 (4) SCC 401 and the other decisions stated supra, are rendered by a Three Judges Bench. In such view of the matter, the law laid down by the Hon'ble Supreme Court presided over by a Larger Bench has to be followed, so as to maintain the standards of education, as held by the Hon'ble Supreme Court in the Constitutional Bench Judgment in T.M.A.Pai Foundation Vs. State of Karnataka reported in 2002 (8) SCC 481.
40.Time and again, while laying down the law on precedents, the Hon'ble Supreme Court in Official Liquidator Vs.Dayanand and others reported in 2008 (10) SCC 1 has held that the decision of a Larger Bench will prevail over the Smaller Bench and the judgment could be said to be a precedent only when specific issues are addressed and answered. In such view of the matter, this Court is of the considered view that the decision made in C.A.No.4203 of 2009 (B.Mayri & others Vs. Government of India rep.by its Secretary to Government and others) cannot be made as a precedent to this case.
41.In Central Board of Secondary Education Vs.Nikhil Gulati reported in 1998 3 SCC 5, the Hon'ble Supreme Court considered the case where an ineligible student was permitted to under the Board and University examination. The Hon'ble Supreme Court has held as follows:
"1.Occasional aberrations such as these, whereby ineligible students are permitted, under court orders, to undertake Board and/or University examinations, have caught the attention of this Court many a time. To add to it further, the courts have almost always observed that the instance of such aberrations should not be treated as a precedent in future. Such casual discretions by the Court is nothing but an abuse of process; more so when the High Court at its level itself becomes conscious that the decision was wrong and was not worth repeating as a precedent. And yet it is repeated time and again. Having said this much, we hope and trust that unless the High Court can justify its decision on principle and precept, it should better desist from passing such orders, for it puts the "Rule of Law" to a mockery, and promotes rather the "Rule of Man".
42.The next question to be considered is whether the subsequent reduction in the minimum percentage of marks required for admission to the 1st year BHMS/BAMS/BSMS/BUMS degree courses for the year 2006-2007 issued by the Government of Tamil Nadu in G.O.Ms.No.880, Health and Family Welfare Department, dated 02.09.2006 to 50% of the marks and the further reduction of minimum marks to 45% in the core subjects by G.O.Ms.No.73, Health and Family Welfare Department, dated 05.06.2007 would give a right to the petitioner for regularising the admission of the petitioner made in the year 2005-2006. Though in the prescription of higher marks for admission to the above said course in the year 2005-2006 has been confirmed by the Hon'ble Supreme Court, for the year academic year 2006-2007, the Government in G.O.Ms.No.880, Health and Family Welfare Department, dated 02.09.2006 has prescribed the following qualifications for admission to the first BHMS degree course.
Backward Class
a)A minimum of 60% marks in Biology or Botany and Zoology taken together
b)A minimum of 60% marks in each of the subjects of Physics and Chemistry
c)Aggregate of the percentage of marks in (a) and the percentage of marks in (b) should not be less than 130 out of 200 marks.
a)A minimum of 50% marks in Biology or Botany and Zoology taken together
b)A minimum of 50% marks in each of the subjects of Physics and Chemistry
c)Aggregate of the percentage of marks in (a) and the percentage of marks in (b) should not be less than 110 out of 200 marks.
43.In the year 2007-2008, the following qualification prescribed for admission to the above said course is as follows:
Backward Class
a)A minimum of 50% marks in Biology or Botany and Zoology taken together
b)A minimum of 50% marks in each of the subjects of Physics and Chemistry
c)Aggregate of the percentage of marks in (a) and the percentage of marks in (b) should not be less than 110 out of 200 marks.
A minimum of 45% marks in aggregate in the Science subjects namely Physics, Chemistry, Biology or Botany and Zoology
44.As rightly contended by the learned counsel for the University, the qualification prescribed for admission with reference to any particular date of admission, alone can be considered for the purpose of registration with the University and this Court cannot take into account, the reduction of marks in the core subjects, for the subsequent years, and issue any positive direction to the University to regularise the admission made in the year, 2005-2006.
45.Having regard to the fact that the petitioner was admitted in the year 23.11.2005 and undergone the course, but not completed the same, in the interest of the student, this Court can only give a direction to the University to consider the case of the petitioner sympathetically for regularising her admission in the subsequent years.
46.Another contention raised by the learned counsel for the petitioner is that the improvement marks have not been taken into consideration for computing her eligibility. Even assuming that the petitioner has secured 55.5% in Biology in her improvement examinations, she has not secured the requisite percentage of marks in other subjects Physics and Chemistry. Thus it could be seen that an ineligible student has been admitted to the first year BHMS course and therefore, following the decisions of the Hon'ble Supreme Court stated supra, the action of the University in denying registration, cannot be said to be arbitrary or contrary to the University regulations. On the contra, it is in accordance with the decisions of the Hon'ble Supreme Court. Obtaining 60% qualifying marks was a condition precedent, and mere permission granted by the college authorities to prosecute studies, cannot be contrary to the Government guidelines. Even principle of estoppel cannot be applied.
47.In the light of the above discussion, the admission of the petitioner to the first year BHMS course in the year 2005-2006 is well within the period framed by the Central Council of Indian Medicine and it cannot be said to be beyond the cut off date. However, as the petitioner has not secured the eligibility marks, she is not entitled to seek for a Mandamus, directing the respondents to regularise the admission made in contravention of the State notification. A Mandamus can be issued only if the admission is in accordance with the statutory rules, regulations of the University. The principle laid down by the Supreme Court in Uma Devi's case reported in 2006 (4) SCC 1 and the subsequent decisions, can also be pressed into service.
48.In the result, the writ petition is dismissed. However, taking into consideration the admission of the petitioner in the year 2005-2006 and her repeated attempts to clear all the subjects, there shall be a direction to the University to consider as to whether there is any possibility of regularising the admission of the writ petitioner for the subsequent years 2006-2007 and 2007-2008, in which years, the State Government have reduced the qualifying marks, as 45% in the Higher Secondary Examination and if so, the petitioner shall be informed of the decision, within a period of three days, so as to enable the petitioner to pay her examination fees. No costs. Consequently, connected miscellaneous petitions are closed.
mpk/sms To
1.The Central Council of Homeopathy, Institutional Area, Janakpuri, New Delhi - 110 058, Rep. By its Secretary
2.The Tamil Nadu Dr.M.G.R.Medical University, Rep. By its Registrar, No.69/40, Anna Salai, Guindy, Chennai - 600 032.
3.The Controller of Examinations, The Tamil Nadu Dr.M.G.R. Medical University, No.69/40, Anna Salai, Guindy, Chennai - 600 032.
4.The Deputy Controller of Examinations The Tamil Nadu Dr.M.G.R. Medical University, No.69/40, Anna Salai, Guindy, Chennai - 600 032.