Gujarat High Court
Association Of Self Financed Ayurveda ... vs Union Of India on 3 October, 2019
Author: Bela M. Trivedi
Bench: Bela M. Trivedi
C/SCA/3535/2019 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 3535 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 3536 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS.JUSTICE BELA M. TRIVEDI Sd/-
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ? NO
2 To be referred to the Reporter or not ?
NO
3 Whether their Lordships wish to see the fair copy of the
judgment ? NO
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any NO
order made thereunder ?
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ASSOCIATION OF SELF FINANCED AYURVEDA COLLEGES OF
GUAJRAT
Versus
UNION OF INDIA
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Appearance:
MR DHAVAL C. DAVE, SR. ADVOCATE WITH MR. UDIT N VYAS(9255) for
the Petitioner(s) No. 1
MR SIDDHARTH DAVE FOR MR DEVANG VYAS(2794) for the
Respondent(s) No. 1
MS MANISHA L. SHAH WITH MR. KM ANTANI(6547) for the Respondent(s)
No. 2
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CORAM: HONOURABLE MS.JUSTICE BELA M. TRIVEDI
Date : 03/10/2019
CAV JUDGMENT
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C/SCA/3535/2019 CAV JUDGMENT
1. Both the petitions involve common issues on facts and law, and therefore, they were heard together with the consent of the learned Advocates for the parties, and therefore, this common judgement is being delivered.
2. Special Civil Application No.3535 of 2019 has been filed by the Association of Self-Financed Ayurveda Colleges of Gujarat and two others and Special Civil Application No.3536 of 2019 has been filed by Swanirbhar Homoeopathic Medical College Sanchalak Mahamandal, Society registered under the Societies Registration Act, 1860 as also Public Trust registered under the Bombay Public Trust Act, 1950. In Special Civil Application No.3535 of 2019 the petitioner has mainly prayed for the following prayers:-
"24(A) That this Hon'ble Court be pleased to issue a writ of mandamus and or any other appropriate writ, order or direction to quash and set aside the communication dated December 26, 2018 issued by Union of India, Respondent No.1 herein, and thereupon, be pleased to issue a writ of mandamus and or any other appropriate writ, order or direction directing Union of India, Respondent No.1 herein, to issue necessary clarification regarding acceptability of Page 2 of 30 Downloaded on : Fri Oct 04 01:49:36 IST 2019 C/SCA/3535/2019 CAV JUDGMENT admissions granted on vacant seats following minimum eligibility prescribed under Regulation 8(1) of the Indian Medicine Central Council (Post Graduate Ayurveda Education) Regulations, 2016."
3. Similar prayers have been sought in SCA No.3536 of 2019 by the petitioner Society on behalf of its Member colleges in respect of the admissions granted by them in the Post Graduate BHMS Courses.
4. For the sake of convenience the facts narrated in SCA No.3535 of 2019 are taken into consideration.
4.1 The petitioner No.1 is an Association of Self-Financed Ayurveda Colleges in the State of Gujarat imparting education in the discipline of Ayurveda at the level of Graduation and Post Graduation leading to the educational qualification of BAMS and MD (Ayu). The petitioner Nos.2 and 3 are the Members of the petitioner No.1 Association, and are engaged in imparting education in the discipline of Ayurveda at the level of Post Graduation leading to the educational qualification of Doctor of Medicine in Ayurveda (MD-Ayu) or Master of Page 3 of 30 Downloaded on : Fri Oct 04 01:49:36 IST 2019 C/SCA/3535/2019 CAV JUDGMENT Surgery in Ayurveda (MS-Ayu). The respondent No.1 Union of India through its Ministry Ayurveda, Yoga & Naturopathy, Unani, Siddha and Homeopathy (Ministry of AYUSH) is the competent authority for conducting the All India AYUSH Post Graduate Entrance Test (AIA-PGET), and All India Ranking Examination for various Post Graduate Courses in AYUSH Systems of Medicine. 4.2 The Admission Committee for Professional Medical Educational Courses i.e. Respondent No.2 (hereinafter referred to as "the Respondent No.2 Admission Committee") is the statutory committee set up under Section 4 of the Gujarat Professional Medical Educational Colleges or Institutions (Regulation on Admission and Fixation of Fees) Act, 2007 (hereinafter referred to as "the Act of 2007"). The role of the Admission Committee as Counseling Authority appointed by the Union of India is to guide or supervise or control the entire process of admission of students to the professional educational colleges and institutions. 4.3. The minimum eligibility criteria for the Page 4 of 30 Downloaded on : Fri Oct 04 01:49:36 IST 2019 C/SCA/3535/2019 CAV JUDGMENT grant of admission have been prescribed by the Central Council of India Medicine (CCIM) under the Indian Medicine Central Council (Post Graduate Ayurveda Education) Regulations, 2016 (hereinafter referred to as "the Ayurveda PG Regulations"). As per the Regulation 8(1) of the Ayurveda PG Regulations, any person possessing the degree of Ayurvedacharya (Bachelor of Ayurveda Medicine and Surgery) from a recognized University or Board or Medical Institution and enrolled in Central or State register of Indian Systems of Medicine is eligible for admission in the Post Graduate Degree Course. Additionally the modus of preparing the merit list of eligible candidates for admission to PG Courses is prescribed by Regulation 8(3) of the Ayurveda PG Regulations. Regulation 8(5) of the Ayurveda PG Regulations requires that the candidate must also obtain minimum 50% marks at the entrance examination.
4.4 Prior to the academic year 2017-18 entrance test for the purpose of admission to the Post Graduate Degree Courses in the discipline of Page 5 of 30 Downloaded on : Fri Oct 04 01:49:36 IST 2019 C/SCA/3535/2019 CAV JUDGMENT Ayurveda was conducted at the State level by the concerned Universities, however, with effect from the academic year 2017-18 an administrative decision was taken by the respondent No.1 to conduct All India AYUSH Post Graduate Entrance Test i.e. AIA-PGET, in order to maintain uniformity for admissions for the Post Graduation Courses in AYUSH System of Medicine, which would include discipline of Ayurveda. It was decided that admission to PG Courses in AYUSH System of Medicine shall be granted solely on the basis of marks obtained at AIA-PGET. 4.5 For the academic year 2018-19, AIA-PGET was conducted by the respondent No.1 on 24.6.2018 and results were declared on 19.7.2018. Thereafter, the respondent No.2 Committee published an advertisement for inviting application for participating in common counseling for PG Courses in the discipline of Ayurveda from October 22, 2018 to October 26, 2018. In the meanwhile, the respondent No.1 th issued communication dated 26 October, 2018 reducing the minimum marks from 50% for General Page 6 of 30 Downloaded on : Fri Oct 04 01:49:36 IST 2019 C/SCA/3535/2019 CAV JUDGMENT Candidate, 45% for other Backward Class and 40% th for Scheduled Caste and Scheduled Tribes, to 50 th percentile for General Candidate, 45 percentile th for other Backward Class and 40 percentile for Scheduled Caste and Scheduled Tribes. 4.6 A common counseling was conducted by the st respondent No.2 Committee from 31 October, 2018 rd to 3 November, 2018. On conclusion of the common counseling process, large number of seats remained vacant in the Member Colleges/Institutions of the petitioner and they were surrendered to the respective Institutions to be filled as per the minimum eligibility criteria prescribed under Ayurveda PG Regulations. Since the last date for granting admission in Post Graduate Courses was notified as November 15, 2018, the Member Colleges filled the vacant seats following minimum eligibility criteria prescribed under the Regulation 8(1) of the Ayurveda PG Regulations.
4.7 The petitioner thereafter vide communication dated 22.11.2018 informed all the authorities concerned regarding the modus operandi adopted Page 7 of 30 Downloaded on : Fri Oct 04 01:49:36 IST 2019 C/SCA/3535/2019 CAV JUDGMENT by the Member Colleges of the petitioner Association in filling up all the vacant seats requesting them to indicate the acceptability of the same. Since the petitioner did not hear anything from the respondents, the petitioner addressed a reminder upon the respondents on December 14, 2018. Subsequent that to, the respondent No.1 responded vide the communication dated 26.12.2018 that only those students, who had qualified in AIA-PGET-18 and included in the merit list following reduced qualifying marks shall be considered for admission to the Post Graduate Courses in AYUSH System of Medicine and validation of their consequent Post Graduation Degree. Feeling aggrieved and dissatisfied by the said communication, the present petition has been filed.
4.8 Special Civil Application No.3536 of 2019 has been filed by the petitioner Society raising similar contentions with regard to the BHMS PG Courses.
5. The respondents, challenging the very maintainability of the petitions, have filed Page 8 of 30 Downloaded on : Fri Oct 04 01:49:36 IST 2019 C/SCA/3535/2019 CAV JUDGMENT their respective replies contending inter alia that the petitions are thoroughly misconceived, misconstrued and not tenable at law. It has been contended that the Ministry of AYUSH had decided to conduct AIA-PGET for admission in All India AYUSH Post Graduate Courses for the academic year 2017-18 and all the State Authorities and the concerned Universities were informed accordingly vide Circular letter dated 15.2.2017. Accordingly all admissions in AYUSH Post Graduate Courses for the academic year 2017-18 were made on the basis of merit list prepared from National Level All India AYUSH Post Graduate Entrance Test. Thereafter, the Ministry of AYUSH vide letter dated 9.3.2018 had entrusted the All India Institution of Ayurveda, New Delhi to conduct the AIA-PGET-2018 for the admissions in all Post Graduate Courses for the academic year 2018-19 and accordingly, the said test was conducted and the students were admitted all throughout the country. However, some of the students had challenged the AIA-PGET examination before the High Court of Bombay in Writ Petition No.4189 of 2018 titled as Kishore Page 9 of 30 Downloaded on : Fri Oct 04 01:49:36 IST 2019 C/SCA/3535/2019 CAV JUDGMENT Vs. Union of India. The same having not been entertained, the said students had filed SLP before the Supreme Court, however, the SLP was also rejected. It is further contended that the respondent No.1 vide letter dated 21st September, 2018 had prescribed the qualifying marks as per Regulation 8 of the Regulations 2016, however, the Ministry considering the issue that various seats were lying vacant due to less number of AIA-PGET qualified students, converted the criteria of eligibility from percentage to percentile, making more number of students eligible for the admission as per the Notification dated 26.10.2018. According to the respondents, the Post Graduate Medical qualification is a higher qualification and by prescribing minimum percentile criteria for the admission to the Professional Medical Courses, the Central Government had tried to ensure availability of qualified medical professionals in the interest of public at large, and therefore, the present petition be not entertained.
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6. Learned Sr. Advocate Mr.Dhaval C. Dave for the petitioners in both the petitions vehemently submitted that CCIM has framed the Regulations under the Indian Medicine Central Council Act, 1970 (hereinafter referred to as "the IMCC Act") and the Regulation No.8(1) of the said Regulations prescribes the eligibility criteria and Regulations 8(2) to 8(5) prescribe modus of preparing merit list for the admission to the Post Graduate Courses for Ayurveda. Accordingly, the eligibility is Bachelor Degree in Ayurveda and the merit list is to be prepared on the basis of combined performance at the graduation course and the entrance test to be conducted either at State level or at the University level. Similarly CCH has framed Regulations under the Homeopathy Central Council Act, 1973 (hereinafter referred to as "the HCC Act) and Regulation 4(1) of the said Regulations prescribes the eligibility criteria for the admission to the Post Graduate Course in Homeopathy. He further submitted that the respondent No.1 Union of India took the executive decision that with effect from the Page 11 of 30 Downloaded on : Fri Oct 04 01:49:36 IST 2019 C/SCA/3535/2019 CAV JUDGMENT academic year 2017-18, there would be a common entrance test at All India level for the Post Graduate AYUSH course (Ayurveda, Unani, Siddha and Homeopathy) called AIA-PGET and that all admissions to the said course would be granted solely on the basis of AIA-PGET. Following the said instructions, even for the academic year 2018-19 AIA-PGET was conducted, for which information bulletin was published by the respondent No.1 Union of India, however, the said bulletin did not prescribe any minimum standard for passing AIA-PGET. He further submitted that subsequent to the AIA-PGET having been conducted on 24.6.2018 and declaration of the result on 19.7.2018, the respondent No.1 st vide its communication dated 21 September, 2018 prescribed minimum percentage for passing at AIA-PGET. The said minimum percentage was thereafter reduced to percentile as per the th communication dated 26 October, 2018.
7. Mr.Dave further submitted that the respondent No.2 Admission Committee, which conducts the admission process for admissions on regular Page 12 of 30 Downloaded on : Fri Oct 04 01:49:36 IST 2019 C/SCA/3535/2019 CAV JUDGMENT seats for AYUSH Post Graduate Courses thereafter st conducted the admission process from 31 October, 2018 to 3.11.2018 and granted admissions to the students, who had minimum percentile at AIA-PGET as prescribed by the respondent No.1. Since the said seats remained vacant in plenty, the petitioner colleges, on the basis of Rule 15 of the Gujarat Professional Post Grant Ayurveda and Homeopathy Medical Educational Courses (Regulation of Admission) Rules, 2018 (hereinafter referred to as "the Rules of 2018), filled up the vacant seats on the basis of the eligibility criteria prescribed by CCIM/CCH before 15.11.2018, which was the cut-off date for closure of admission process. The petitioner Association thereafter addressed a communications to the respondents seeking their concurrence to the admissions made by the petitioners on the vacant seats, however, the respondent No.1 objected to the same vide impugned communication dated 26.12.2018, which communication is arbitrary and illegal. According to him, once the regular rounds of admission process were concluded and the merit Page 13 of 30 Downloaded on : Fri Oct 04 01:49:36 IST 2019 C/SCA/3535/2019 CAV JUDGMENT list prepared solely on the basis of AIA-PGET 2018 was exhausted , the petitioner Colleges were entitled to fill up the vacant seats as per Rule 15 of the said Rules of 2018. He further submitted that the Regulation 8 of the Ayurveda PG Regulations or Regulation 4 of the Homeopathy PG Regulations, or the Information Bullentin AIA-PGET 2018 did not provide for a mechanism for filling up the vacant seats, and therefore, Rule 15 of the PG Rules of 2018 were required to be made applicable, for the seats which had remained vacant after the competition of the Centralized Admission process. Mr.Dave has relied upon the judgement of the Division Bench of this Court in case of Association of Self- Financed Colleges Vs. State of Gujarat, reported in 2013 SCC Online, Gujarat 5787 to buttress his submissions that in view of the excessive vacancies prevailing across the Member Colleges of the petitioners, the admissions granted on the basis of the minimum eligibility criteria must be validated. Lastly, he submitted that the impugned communication of the respondent No.1 is not backed by any statutory regulations and is Page 14 of 30 Downloaded on : Fri Oct 04 01:49:36 IST 2019 C/SCA/3535/2019 CAV JUDGMENT based on the executive fiat, as against this, the member colleges of the petitioner have followed the PG Regulations and PG Rules for filling up the vacancies. Mr.Dave has also relied upon the decision (interim order) of the Rajasthan High Court in case of Mangilal Nirp.. Homeopathy Medical Colleges and Others Vs. State of Rajasthan in SB (Civil Writ) No.17431 of 2018 in support of his submissions.
8. Learned ASG Mr.Devang Vyas appearing with Mr.Siddharth Dave for the respondent No.1 Union of India emphatically submitted that the petitioner colleges should not be permitted to perpetuate the illegality committed by them by admitting the students in Post Graduate Courses at BAMS and BHMS without following the due process of law, in the writ petition filed under Article 226 of the Constitution of India. He submitted that the respondent No.1 Ministry of AYUSH had prescribed the minimum qualifying marks for AIA-PGET 2018 in the communication st dated 21 September, 2018 according to which the minimum qualifying marks was 50% and the cut-off Page 15 of 30 Downloaded on : Fri Oct 04 01:49:36 IST 2019 C/SCA/3535/2019 CAV JUDGMENT st date was 31 October, 2018. Thereafter the Ministry of AYUSH had vide communication dated 26.10.2018 reduced the minimum qualifying th criteria from 50% to 50 percentile and extended the cut-off date to 15.11.2018. Accordingly, in the entire State of Gujarat as well as in other States the admissions were made on the basis of the merit list of AIA-PGET prepared in the year 2018-19. According to him, the petitioners had st not challenged the communications dated 21 th September, 2018 or 26 October, 2018, and therefore, could not have sought regularization of the admissions given by them contrary to the said communications. Even as per the Regulations relied upon by the petitioners, runs the submissions of Mr.Vyas, the Post Graduate Entrance Test was mandatory for securing admissions in degree courses for the academic year 2018-19, and even as per Rule 15 of the Gujarat PG Rules of 2018, the member colleges of the petitioner Association were not entitled to admit the students without following the merit list/criteria laid down by the Government of st India vide its communication dated 21 Page 16 of 30 Downloaded on : Fri Oct 04 01:49:36 IST 2019 C/SCA/3535/2019 CAV JUDGMENT th September, 2018 as well as 26 October, 2018. Lastly, Mr.Vyas submitted that the member colleges of the petitioner Associations had illegally admitted the students in October 2018 and have filed the petition seeking regularization of the said illegal admission in February 2019 only with a view to seek sympathy from the Court, which should not be permitted in the larger interest of the students pursuing professional medical courses at Post Graduation level.
9. Before adverting to the rival contentions raised by the learned Advocates for the parties, it would be beneficial to reproduce the relevant part of Regulation 8 of the PG Regulations of 2016:-
"8. Mode of admission. (1) A person possessing the degree of Ayurvedacharya (Bachelor of Ayurveda Medicine and Surgery) from a recognised University or Board or medical institution specified in the Second Schedule to the Act and enrolled in Central or State register of Indian Systems of Medicine shall be eligible for admission in the postgraduate degree course.Page 17 of 30 Downloaded on : Fri Oct 04 01:49:36 IST 2019 C/SCA/3535/2019 CAV JUDGMENT
(2) The State Government or University concerned shall conduct the admission process.
(3) The Selection of candidates shall be made on the basis of final merit index calculated out of total of hundred marks based on eighty per cent, weightage to the Post graduate entrance test (PGET) and twenty per cent weightage to the marks obtained in undergraduate course.
(4) The Postgraduate entrance test (PGET) of hundred marks shall consist of one common written test of multiple choice questions covering all the subjects of Ayurvedacharya (Bachelor of Ayurveda Medicine and Surgery) course.
(5) The minimum eligibility marks of the entrance test for admission in the case of general candidates shall be fifty per cent of the total marks, in the case of candidates belonging to the Schedule Castes, the Scheduled Tribes and regular Central or State Government service candidate shall be forty per cent and in the case of candidates belonging to the Other Backward classes shall be fortyfive per cent."
10. The relevant Regulation 4 of the Homeopathy (Post Graduate Degree Course) MD (HOM) Regulations, 1989 (as amended in 2016) reads as under:-
4. (1) No candidate shall be admitted to M. D. (Hom.) course unless the possesses the degree of:
(i) Bachelor of Homoeopathic Medicine and Surgery or equivalent qualification in Homoeopathy included in the Second Page 18 of 30 Downloaded on : Fri Oct 04 01:49:36 IST 2019 C/SCA/3535/2019 CAV JUDGMENT Schedule to the Act after undergoing a course of study of not less than five years and six months during including one year compulsory internship; or
(ii) Bachelor of Homoeopathic Medicine and Surgery (Graded Degree) or equivalent qualification in Homoeopathy included in the Second Schedule to the Act after undergoing a course of study of not less than two years duration.
(2) The University or the authority prescribed by the Central Government or the State Government as the case may be shall select candidates on merit for Post Graduate Course."
11. Since the petitioners have placed reliance upon the Rule 15 of the Gujarat Post Graduate Ayurveda and Homeopathy Medical Educational Course (Regulation of Admission) Rules of 2018, the same is reproduced as under:-
"15. Vacant Seats._ After the competition of the admission process and exhaustion of merit list of the eligible candidates as per Admission Rules, if government seats and management seats remain vacant or vacancy arises due to any circumstances, such vacant seats shall be filled up from candidates who applied to the Admission Committee and qualify as per AIAPGET criteria but not included in the merit list of the committee because of not fulfilling the other criteria of Admission Rules. After completion of that process, if any seats are still vacant, such vacant Page 19 of 30 Downloaded on : Fri Oct 04 01:49:36 IST 2019 C/SCA/3535/2019 CAV JUDGMENT seats displayed on the official website and on the notice board of the office of the admission committee and the same shall be intimated to the colleges or institutions wherein the seats are vacant and the institution shall fill up the seats as per the criteria laid down by the Government of India, CCIM, New Delhi and CCH, New Delhi."
12. From the afore-stated Rules and Regulations applicable to the member colleges of the petitioner Associations it is clear that neither the Ayurveda PG Regulations, nor Homeopathy PG Regulations provide for conducting of AIA-PGET for granting admissions in the Post Graduate Degree Courses in the discipline of Ayurveda and Homeopathy, and that it was for the first time vide executive instructions dated 15.2.2017 the Ministry of AYUSH had informed all the State Authorities and concerned Universities about their decision to conduct the All India level Common Entrance Test known as AIA-PGET for the admission in All India AYUSH Post Graduate Courses for academic year 2017-18. Accordingly, the said examination was conducted and admissions were granted at the national level on the basis of merit list of AIA-PGET 2017. The said instructions were also followed for the Page 20 of 30 Downloaded on : Fri Oct 04 01:49:36 IST 2019 C/SCA/3535/2019 CAV JUDGMENT academic year 2018-19 by the respondent No.1 for which information bulletin was published before conducting the said AIA-PGET. Accordingly, the AIA-PGET was conducted on 24.6.2018 and results were declared on 19.7.2018. The respondent No.1 st thereafter issued the communication dated 21 September, 2018 informing all State Authorities and Universities having affiliated AYUSH colleges that only those students who had qualified in the AIA-PGET 2018 can participate in the counseling for admission in PG Courses for academic year 2018-19 and that minimum qualifying eligibility marks shall be 50% of the total marks. It was also mentioned that the last date/cut-off date for admission for all PG - UG st Courses for AYUSH Colleges will be 31 October, 2018. The respondent No.1 thereafter in st continuation of the said communication dated 21 September, 2018 further clarified that in view of the various representation received by the Ministry, it was decided that the minimum eligibility marks in the entrance test for admission in case of General candidates shall be th 50 percentile, in case of candidates belonging Page 21 of 30 Downloaded on : Fri Oct 04 01:49:36 IST 2019 C/SCA/3535/2019 CAV JUDGMENT to Scheduled Caste and Scheduled Tribes and th regular Central or State candidates shall be 40 percentile and in case of candidates belonging th to OBC 45 percentile in the AIA-PGET 2018 and the last date for admission shall be 15.11.2018.
13. At this juncture, it would be relevant to mentioned that the State of Gujarat in exercise of the powers conferred by Sub-section (1) of Section 20 of the Act of 2007 has framed the Rules of 2018 to regulate the admission to the First Year Professional Post Graduate Ayurveda and Homeopathy Medical Educational Courses and accordingly, the respondent No.2 Admission Committee constituted under Section 2 of the Act of 2007 had conducted the admission process for the admission in the PG Ayurveda and Homeopathy st rd Medical Courses from 31 October, 2018 to 3 November, 2018 and granted admissions to the students on the basis of minimum percentile at AIA-PGET as prescribed by the respondent No.1 th Ministry of AYUSH vide communication dated 26 October, 2018. It is pertinent to note that the petitioners have neither challenged the Page 22 of 30 Downloaded on : Fri Oct 04 01:49:36 IST 2019 C/SCA/3535/2019 CAV JUDGMENT communication dated 21.9.2018 informing all the State Authorities and the Universities with regard to its decision to admit only those students who had qualified in the AIA-PGET 2018 with minimum eligibility marks prescribed in the said communication, nor have challenged the communication dated 26.10.2018 reducing the th minimum eligibility criteria from 50% to 50 percentile. It was only after the petitioners granted admissions dehors the said communications and only after the said admissions were not approved by the respondent No.1 vide impugned communication dated 26.12.2018, the present petitions came to be filed in February 2019, challenging only the said communication dated 26.12.2018. In absence of challenge to the said two communications dated 21.9.2018 and 26.10.2018, and in absence of any justification offered by the petitioners for granting the admissions in PG Courses illegally, it does not lie in the mouth of the petitioners to say that the respondent No.1 had issued the impugned communication dated 26.12.2018 not approving the admissions made by Page 23 of 30 Downloaded on : Fri Oct 04 01:49:36 IST 2019 C/SCA/3535/2019 CAV JUDGMENT the petitioners on the vacant seats illegally or arbitrarily.
14. Apart from the fact that the petitioner colleges being fully aware about the said communications issued in the month of September- October 2018 and were also communicated about the impugned decision of the respondent No.1 in December, 2018, the present petitions have been filed after the delay of two months in February, 2019, playing at the risk and cost of the students, who have been illegally admitted by them. As rightly submitted by the learned Advocate Mr.Siddharth Dave for the respondent No.1, such belated course of action taken by the petitioner Associations should not be entertained by the Court exercising extraordinary jurisdiction under Article 226 of the Constitution of India, more particularly when the petitioners have failed to point out any arbitrariness in the impugned decision taken by the respondent authorities.
15. It may further be noted that the learned Sr. Advocate Mr.Dave for the petitioners has placed Page 24 of 30 Downloaded on : Fri Oct 04 01:49:36 IST 2019 C/SCA/3535/2019 CAV JUDGMENT heavy reliance on the Rule 15 of the Gujarat PG Rules of 2018 for justifying the admissions given by the member colleges of the petitioner Associations in the seats which remained vacant after the regular process of admission was over, however, the said Rule also does not help the petitioners. From the bare reading of the said Rule 15 quoted earlier, it transpires that after the completion of the admission process and exhaustion of merit list of eligible candidates as per the Admission Rules, the vacant seats could be filled up from amongst the candidates who had applied to the Admission Committee and qualified as per the AIA-PGET criteria but not included in the merit list of the Committee because of not fulfilling the other criteria of admission rules, or after the completion of that process, if any seats remained vacant, such seats on being displayed on the official website and on the notice board of the office of the respondent No.2 Admission Committee for intimation to the colleges or the institutions, where the seats vacant, could be filled up by such colleges or the institutions as per the Page 25 of 30 Downloaded on : Fri Oct 04 01:49:36 IST 2019 C/SCA/3535/2019 CAV JUDGMENT criteria laid down by the Government of India, CCIM or CCH, New Delhi. Even if the said Rule 15 is deemed to be applicable to the petitioner colleges, then also no such procedure as stated in the said Rule was followed, and the petitioner colleges could not have admitted the students on vacant seats dehors the said Rule or dehors the instructions or criteria laid down by the respondent No.1 Union of India in the communication dated 21.9.2018 and 26.10.2018. Admittedly there is no provision contained for filling up the seats which remained vacant after the regular process of admission is concluded by the respondent No.2 Committee, either in the PG Regulations of Ayurveda PG Regulations of 2016 or PG Ayurveda and Homeopathy Regulations of 1989, and even if the Rule 15 of the Gujarat PG Rules of 2018 is made applicable, the admissions given by the member colleges of the petitioner Associations could not be said to be in consonance with the said Rule 15 of the Rules of 2018. From the list of students admitted by the member colleges of the petitioner Associations, produced on record, it appears that though they Page 26 of 30 Downloaded on : Fri Oct 04 01:49:36 IST 2019 C/SCA/3535/2019 CAV JUDGMENT had not qualified in AIA-PGET 2018, they were admitted in PG Courses in between the period November 4, 2018 to November 15, 2018. It is not the case of the petitioners that after the competition of the admission process, the vacant seats were displayed on the official website and on the notice board of the office of the respondent Admission Committee or that the same were informed to the colleges or institutions wherein the seats were vacant for filling up the same as per the criteria laid down by the respondent No.1, as required under Rule 15 of the said Rules. The admissions granted by the said member colleges of the petitioner Associations to the said students in PG Courses between 4.11.2018 to 15.11.2018 though they had not qualified AIA-PGET, were absolutely dehors the said Rule 15 as also dehors the instructions issued by the respondent No.1 in the communications dated 21.9.2018 and 26.10.2018, and therefore, illegal.
16. At this juncture a very pertinent observations made by the Supreme Court in case of Guru Nanak Page 27 of 30 Downloaded on : Fri Oct 04 01:49:36 IST 2019 C/SCA/3535/2019 CAV JUDGMENT Dev University Vs. Parminder Kr. Bansal and Ors., reported in (1993) 4 SCC 401 are required to be reproduced, in which case, the appellant University was aggrieved by the order passed by the High Court directing the concerned University to regularize the admission of the students, and it was observed by Supreme Court in paragraph 7 as under:-
"7. Shri Gambhir is right in his submission. 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, illconceived 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."
17. The Constitution Bench of the Supreme Court in Page 28 of 30 Downloaded on : Fri Oct 04 01:49:36 IST 2019 C/SCA/3535/2019 CAV JUDGMENT case of T.M.A. Pai Foundation and Ors. Vs. State of Karnataka and Ors., reported in (2002) 8 SCC 481 also had emphasized the need for excellence in professional education by observing as under:-
"58. For admission into any professional institution, merit must play an important role. While it may not be normally possible to judge the merit of the applicant who seeks admission into a school, while seeking admission to a professional institution and to become a competent professional, it is necessary that meritorious candidates are not unfairly treated or put at a disadvantage by preferences shown to less meritorious but more influential applicants. Excellence in professional education would require that greater emphasis be laid on the merit of a student seeking admission. Appropriate regulations for this purpose may be made keeping in view the other observations made in this judgment in the context of admissions to unaided institutions.
59. Merit is usually determined, for admission to professional and higher education colleges, by either the marks that the student obtains at the qualifying examination or school leaving certificate stage followed by the interview, or by a common entrance test conducted by the institution, or in the case of professional colleges, by government agencies."
18. In view of the above settled legal position, the submission of the learned Sr. Advocate Mr.Dhaval Dave for the petitioners that the Page 29 of 30 Downloaded on : Fri Oct 04 01:49:36 IST 2019 C/SCA/3535/2019 CAV JUDGMENT admissions made by the concerned Member Association/Society be regularized cannot be accepted, compromising the merits in the professional P.G .medical courses, and which admissions even otherwise are not in consonance with the Rule 15of the Rules of 2018 framed under the Act of 2007 or in consonance with the Instructions issued by the respondent No.1 vide communication dated 21.9.2018 and 26.10.2018. Any liberal interpretation of Rules or relaxation of Rules or the Instructions issued by the respondent No.1 would certainly deteriorate the standard of education in the professional courses.
19. In that view of the matter both the petitions deserve to be dismissed and are hereby dismissed.
(BELA M. TRIVEDI, J) V.V.P. PODUVAL Page 30 of 30 Downloaded on : Fri Oct 04 01:49:36 IST 2019