Gujarat High Court
Swanirbhar Homoeopathic Medical ... vs Union Of India on 10 October, 2023
Author: Sunita Agarwal
Bench: Sunita Agarwal
NEUTRAL CITATION
C/SCA/6456/2023 CAV JUDGMENT DATED: 10/10/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 6456 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL
sd/-
and
HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE sd/-
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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 ? Yes
3 Whether their Lordships wish to see the fair copy No
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 ?
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SWANIRBHAR HOMOEOPATHIC MEDICAL COLLEGE SANCHALAK
MAHAMANDAL, GUJARAT STATE
Versus
UNION OF INDIA
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Appearance:
MR. DHAVAL C DAVE, SENIOR COUNSEL WITH MR. UDIT N VYAS(9255)
for the Petitioner(s) No. 1
MR HARSHEEL D SHUKLA(6158) for the Respondent(s) No. 2
MS. MANISHA LAVKUMAR, LEARNED SENIOR COUNSEL WITH MR. KM
ANTANI(6547) for the Respondent(s) No. 3
MRS KRISHNA G RAWAL(1315) for the Respondent(s) No. 1
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CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE
SUNITA AGARWAL
and
HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
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NEUTRAL CITATION
C/SCA/6456/2023 CAV JUDGMENT DATED: 10/10/2023
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Date : 10/10/2023
CAV JUDGMENT
(PER : HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL)
1. Self-Financed Homeopathy Colleges in the State of Gujarat imparting education in the discipline of Homeopathy at the level of Graduation and Post-graduation leading to the degree of B.H.M.S. and M.D. (Hom.). The instant petition has been filed on 11.04.2023 with the original prayer in paragraph 25, which reads as under : -
"25. [a] That this Hon'ble Court may be pleased to declare that the member colleges of the Petitioner are entitled to admit students who possess the minimum eligibility at graduation as per Regulation 4(1) of the Homoeopathy (Post Graduate Degree Course) M.D.(Hom.) Regulations, 1989 on seats that have remained vacant after completion of admission process and exhaustion of merit list prepared on the basis of AIAPGET 2022.
[b] Alternatively, this Hon'ble Court may be pleased to issue a writ of mandamus and or any other appropriate writ, order, or direction, directing Respondent Nos. 1 and 2 to reduce the qualifying percentile for AIAPGET 2022 and thereupon be pleased to permit the member colleges of the Petitioner association to admit students who are eligible for being admitted as per such reduced qualifying percentile.
(c) That pending admission, hearing and final disposal of the present writ petition, this Hon'ble Court may be pleased to permit the member colleges Page 2 of 39 Downloaded on : Wed Oct 11 20:42:07 IST 2023 NEUTRAL CITATION C/SCA/6456/2023 CAV JUDGMENT DATED: 10/10/2023 undefined of the Petitioner association to admit such students on vacant seats who possess the minimum eligibility at graduation level Regulation 4(1) of the Homoeopathy (Post Graduate Degree Course) M.D. (Hom.) Regulations, 1989, on such terms and conditions as this Hon'ble Court may deem fit and proper in the facts and circumstances of the present case.
[d] That this Honourable Court be pleased to pass any such other order as may be deemed necessary on the facts and in the circumstances of the case."
2. By means of the amendment allowed vide order dated 19.04.2023 of this Court, the following prayer has been added : -
"(aa) This Hon'ble Court may be pleased to declare the Homeopathy (Post Graduate Degree Course) M.D. (Hom.) Amendment Regulations, 2018 as illegal, arbitrary, and unenforceable."
3. It seems that on the presentation of the writ petition, by the order dated 06.06.2023, taking note of the decision of the Division Bench of the Karnataka High Court dated 06.04.2023 in Writ Petition No. 100650/2021 with 100652/2021 (Karnataka Private Homoeopathic Medical Colleges Management Association & Others versus Union of India and Others), wherein it has been held that the mandatory provisions of sub-section (2) of Section 20 has not Page 3 of 39 Downloaded on : Wed Oct 11 20:42:07 IST 2023 NEUTRAL CITATION C/SCA/6456/2023 CAV JUDGMENT DATED: 10/10/2023 undefined been followed in the matter of framing of the regulations with regard to post-graduate courses and the same having been declared illegal, arbitrary and unenforceable, the following interim relief was granted to the writ petitioner : -
"11. Hence, we are of the opinion that the petitioner is entitled to interim relief as prayed for. The respondents are hereby directed to permit the colleges of the petitioner association to admit the students forthwith on vacant seats and may extend the course of post graduation keeping in mind the summer vacation in colleges. The admission shall be subject to the outcome of this petition. All the students who shall be admitted in the colleges pursuant to this order shall be informed about the pendency of the petition."
4. It may be noted that the interim relief granted to the petitioner to admit students against the vacant seats was made subject to outcome of this petition, so the admission if any is only provisional. On a query made by the Court, it is stated by the learned Senior Counsel for the petitioner that in the Academic session 2022-23, 29 students have been admitted in post-graduate courses, under the interim order dated 06.06.2023.
5. To deal with the controversy at hand, certain relevant facts of the instant case, are to be noted Page 4 of 39 Downloaded on : Wed Oct 11 20:42:07 IST 2023 NEUTRAL CITATION C/SCA/6456/2023 CAV JUDGMENT DATED: 10/10/2023 undefined hereinunder:
5.1 The Then Central Council of Homeopathy had been dissolved w.e.f. 05.07.2021 and the Central Council of Homeopathy Act, 1973 ('the HCC Act 1973' for short) has been repealed with effect from the said date. The National Commission for Homeopathy ('NCH' or 'Commission' for short) was constituted on 05.07.2021 by the Government of India, Ministry of AYUSH under the provisions of National Commission For Homoeopathy Act, 2020, (in short as 'the Act, 2020') with a view to maintain the standards of Homoeopathy Education, Medical Assessment and Rating of the Colleges and Institutions, and Ethics and Registration for Homeopath medicine practitioners and other matters connected with NCH.
5.2 As per Section 59(1) of the Act, 2020, the Commission has been constituted as a successor-in-interest of the Central Council of Homoeopathy including its subsidiaries or owned trusts and all the assets and liabilities Page 5 of 39 Downloaded on : Wed Oct 11 20:42:07 IST 2023 NEUTRAL CITATION C/SCA/6456/2023 CAV JUDGMENT DATED: 10/10/2023 undefined of the Central Council of Homoeopathy shall be deemed to have been transferred to the Commission. Sub-section (2) of the Section 59 provided that notwithstanding of the repeal of the Homeopathy Central Council Act, 1973, the educational and medical standards, requirements and other provisions of the Homoeopathy Central Council Act, 1973 and the rules and regulations made thereunder shall continue to be in force and operate till new standards or requirements are specified under the Act, 2020 or the rules and regulations made thereunder. Proviso to Sub-section (2) of Section 59 contains saving clause, saving anything done or any action taken prior to the repeal of the HCC Act, 1973. Under the provisions of Section 33 of the then HCC Act, 1973, the Central Council had been authorized to make Regulations with the previous sanction of the Central Government to carry out the purposes of said Act. Homoeopathy Central Council (Minimum Standards Requirement of Homeopathic Colleges & attached Hospitals), Regulations, 2013 (in short as 'the Regulations, 2013') had been notified with the previous sanction of Central Government as per provisions Page 6 of 39 Downloaded on : Wed Oct 11 20:42:07 IST 2023 NEUTRAL CITATION C/SCA/6456/2023 CAV JUDGMENT DATED: 10/10/2023 undefined of Clause (j) of Section 33 of the HCC Act, 1973 in the Official Gazette on 08.03.2013. The HCC Act, 1973 was a Parliamentary Act. Relevant Section 59 of the Homeopathic Act, 2020 be noted hereinunder : -
"59. (1) The Commission shall be the successor in interest to the Central Council of Homoeopathy including its subsidiaries or owned trusts and all the assets and liabilities of the Central Council of Homoeopathy shall be deemed to have been transferred to the Commission.
(2) Notwithstanding the repeal of the Homoeopathy Central Council Act 1973, the educational and medical standards, requirements and other provisions of the Homoeopathy Central Council Act, 1973 and the rules and regulations made thereunder shall continue to be in force and operate till new standards or requirements are specified under this Act or the rules and regulations made thereunder:
Provided that anything done or any action taken as regards the educational and medical standards and requirements under the enactment under repeal and the rules and regulations made thereunder shall be deemed to have been done or taken under the corresponding provision of this Act and shall continue in force accordingly unless and until superseded by anything or by any action taken under this Act.
(3) The Central Government may take such measures, as may be necessary, for the smooth transition of the dissolved Central Council of Homoeopathy to the corresponding to new Commission under this Act."
5.3 Homeopathy (Post Graduate Degree Course) M.D. Page 7 of 39 Downloaded on : Wed Oct 11 20:42:07 IST 2023 NEUTRAL CITATION C/SCA/6456/2023 CAV JUDGMENT DATED: 10/10/2023 undefined (Hom.) Regulations, 1989 ('the Regulations, 1989' for short), had also been framed under Section 33 read with sub-section (1) of Section 20 of the HCC Act, 1973. The Regulations, 1989 were amended from time to time and by the amendment Regulations, 2018 which came into force on 14.12.2018, Sub-Regulation (2) of Regulation 4 had been inserted to provide for a Uniform entrance examination to all medical students at the post-graduate level, named as "All India AYUSH Post Graduate Entrance Test" ('AIA-PGET' for short), in each academic year, to be conducted by Authority designated by the Central Council. Sub- Regulation (2) of Regulation 4 brought by the amendment dated 14.12.2018, is relevant to be extracted hereinunder : -
"1. xxxxxx
2. In the Homoeopathy (Post Graduate Degree Course) M.D. (Hom.) Regulations, 1989, in regulation
4. for sub-regulation (2), the following sub-regulation shall be substituted, namely:-
"(2) (i) There shall be a uniform entrance examination to all medical institutions at the postgraduate level namely, the All India AYUSH Post Graduate Entrance Test (AIA-PGET) in each academic year and shall be conducted by an authority designated by the Central Government:
Provided that the said All India AYUSH Post Graduate Entrance Test (AIA-PGET) shall not be Page 8 of 39 Downloaded on : Wed Oct 11 20:42:07 IST 2023 NEUTRAL CITATION C/SCA/6456/2023 CAV JUDGMENT DATED: 10/10/2023 undefined applicable for foreign national's candidates.
(ii) In order to be eligible for admission to postgraduate course for an academic year, it shall be necessary for a candidate to obtain minimum of marks at 50th percentile in the 'All India AYUSH Post Graduate Entrance Test (AIA-PGET)' held for the said academic year:
Provided that in respect of-
(a) candidates belonging to the Scheduled Castes, Scheduled Tribes and Other Backward Classes, the minimum marks shall be at 40th percentile:
(b) candidates with benchmark disabilities specified under the Rights of Persons with Disabilities Act.
2016 (49 of 2016), the minimum marks shall be at 45th percentile for General Category and 40th percentile for the Scheduled Castes. Scheduled Tribes and Other Backward Classes.
Explanation. The percentile shall be determined on the basis of highest marks secured in the all India common merit list in the All India AYUSH Post Graduate Entrance Test (AIA-PGET):
Provided further that when sufficient number of candidates in the respective categories fail to secure minimum marks in the All India AYUSH Post Graduate Entrance Test (AIA-PGET), as specified above, held for any academic year for admission to postgraduate courses, the Central Government in consultation with Central Council may at its discretion lower the minimum marks required for admission to postgraduate course for candidates belonging to respective categories and marks so lowered by the Central Government shall be applicable for that academic year only.
(iii) An all India common merit list as well as State-
wise merit list of the eligible candidates shall be prepared on the basis of the marks obtained in the All India AYUSH Post Graduate Entrance Test (AIA- PGET) and the candidates, within the respective categories, shall be admitted to post graduate course Page 9 of 39 Downloaded on : Wed Oct 11 20:42:07 IST 2023 NEUTRAL CITATION C/SCA/6456/2023 CAV JUDGMENT DATED: 10/10/2023 undefined from the said merit lists only.
(iv) The seat matrix for admission in the Government, Government-aided Institutions and Private Institutions shall be fifteen per cent. for the all India quota and eighty-five per cent. for the States and Union territories quota.
(v) The designated authority for counseling for all admissions to postgraduate course in all Homoeopathy educational institutions in the States and Union territories including institutions established by the States Government, University, Deemed University, Trust, Society, Minority Institution, Corporation or Company shall be the respective State or Union territory in accordance with the relevant rules and regulations of the concerned State or Union territory Government, as the case may be.
(vi) The counseling for all admissions to postgraduate course for seats under the all India quota as well as for all Homoeopathy educational institutions established by the Central Government shall be conducted by the authority designated by the Central Government.
(vii) No candidate who has failed to obtain the minimum eligibility marks as specified above shall be admitted to postgraduate course in the said academic year.
(viii) No authority or institution shall admit any candidate to the postgraduate course in contravention of the criteria or procedure as laid down by these regulations in respect of admissions and any candidate admitted in contravention of the said criteria or procedure shall be discharged by the Central Council forthwith.
(ix) The authority or institution which grants admission to any student in contravention of the aforesaid criteria or procedure shall be liable to face action in terms of the provisions of the Act." Page 10 of 39 Downloaded on : Wed Oct 11 20:42:07 IST 2023
NEUTRAL CITATION C/SCA/6456/2023 CAV JUDGMENT DATED: 10/10/2023 undefined 5.4 For the Academic session 2022-23, AIA-PGET was held on 15.10.2022. The result was declared on 09.11.2022; the counselling commenced on 21.01.2023 and the last date of counselling was 08.04.2023. The original petition was filed on 11.04.2023, after the last date of counselling which is undisputed. The stand of the petitioner was that once the merit list prepared on the basis of AIA-PGET (common entrance tests) had been exhausted and the seats were available, the management of the Homeopathy Medical Colleges (members of the petitioner association) are entitled to admit students, who fulfill the minimum eligibility criteria for being admitted to MD(Hom.) course, as prescribed in the regulations, without insisting their appearance at the entrance examination.
5.5 The Admission Committee for Professional Undergraduate Medical Educational Courses, constituted under Section 4 of Gujarat Professional Medical Educational Colleges or Institutions (Regulation of Page 11 of 39 Downloaded on : Wed Oct 11 20:42:07 IST 2023 NEUTRAL CITATION C/SCA/6456/2023 CAV JUDGMENT DATED: 10/10/2023 undefined Admission and Fixation of Fees) Act, 2007 namely the respondent No. 3 herein has been entrusted to guide, supervise and control the entire process of admission of students to the professional educational colleges or institutions in the State of Gujarat. Educational qualifications prescribed in the Regulation, 1989 for admission to MD(Hom.) course in the Academic year 2022- 23 was B.H.M.S. degree from a recognized institution with one year internship.
6. It is contended in the writ petition that AIA-PGET was conducted for the purpose of preparation of a common merit list, in accordance with the Regulation 4(2) of the P.G. Regulations, 1989. The said regulations require for obtaining minimum of marks at 50 percentile in the entrance test held for the concerned academic year in order to be eligible for admission to post-graduate course for the said academic year, for a candidate of open category and for other categories such as Scheduled Caste, Scheduled Tribes and Other Backward Class, the minimum mark is 40 percentile. Page 12 of 39 Downloaded on : Wed Oct 11 20:42:07 IST 2023
NEUTRAL CITATION C/SCA/6456/2023 CAV JUDGMENT DATED: 10/10/2023 undefined Similarly, for candidates with benchmark disabilities specified in Right of Persons with Disabilities, Act, 2015, the minimum marks for general category is 45 percentile and for Scheduled Caste and Scheduled Tribes and Other Backward Classes, is 40 percentile. The explanation of Sub-Regulation (2) of Regulation 4 provides that percentile shall be determined on the basis of highest marks secured in AIA- PGTE.
7. During the course of arguments, learned Senior Counsel appearing for the petitioner heavily relied upon the proviso to Sub-Regulation (2) of Regulation 4 to submit that when sufficient number of candidates in respective categories failed to secure minimum marks in the entrance tests, as specified above, held for any academic year for admission to post-graduate courses, the Central Government has discretion to lower the minimum marks required for admission to Post-graduate course for the candidates belonging to respective categories in consultation with the then Central Council (Now 'National Commission for Page 13 of 39 Downloaded on : Wed Oct 11 20:42:07 IST 2023 NEUTRAL CITATION C/SCA/6456/2023 CAV JUDGMENT DATED: 10/10/2023 undefined Homeopathy'). It was argued that in view of the language of the second proviso to Regulations 4(2) of the P.G. Regulations, the prescription of AIA-PGTE is not mandatory. The rationale for prescribing the entrance tests is simply that since there are more number of candidates are available as compared to less number of seats in M.D. (Hom.) courses, AIA-PGTE (common entrance tests) would be utilized for preparing the merit list and admitting students in the order of merit in a transparent and non-exploitative manner. However, in the situation, where the merit list prepared on the basis of AIA-PGTE is exhausted and vacant seats are still available for admission, AIA-PGTE percentile would loose its significance and students fulfilling the minimum eligibility as per Regulation 4(1) of the P.G. Regulation, could be admitted.
8. For the Academic year, 2022-23, as against total 204 seats available for admission in Post-graduate Homeopathy courses, only 188 candidates were found to be possessing the minimum qualifying percentile at AIA-PGTE, 2022 for their inclusion in the merit list. It is, thus, evident that sufficient Page 14 of 39 Downloaded on : Wed Oct 11 20:42:07 IST 2023 NEUTRAL CITATION C/SCA/6456/2023 CAV JUDGMENT DATED: 10/10/2023 undefined number of candidates have failed to secure minimum percentile at AIA-PGTE, 2022 for being included in the merit list. After fourth round of common counselling conducted by the Admission Committee, namely the respondent No. 3 on 23.03.2023, which was the stray vacancy round, 54 seats out of 204 seats remained vacant across various colleges of specialization in the State of Gujarat. It is, thus, contended that since large number of vacancies remained in the post- graduate courses in various medical colleges, in the State, the merit criteria of AIA-PGTE, 2022 has paled into insignificance for the academic year, 2022-23.
9. The petitioner wrote a letter dated 15.03.2023 to the Secretary, Ministry of AYUSH, Government of India and Chairman, National Commission for Homeopathy to bring to their notice about the availability of vacant seats after exhausting merit list prepared on the basis of AIA-PGTE, 2022 and requested the Commission to exercise its discretion and reduce the AIA-PGTE, 2022 qualifying percentile. The prayer in the said representation appended at page '38', Page 15 of 39 Downloaded on : Wed Oct 11 20:42:07 IST 2023 NEUTRAL CITATION C/SCA/6456/2023 CAV JUDGMENT DATED: 10/10/2023 undefined Annexure 'D' to the writ petition, is relevant to be extracted hereinunder : -
"6.(i) Permit the homeopathy medical colleges in the State of Gujarat to admit students who possess the minimum eligibility at graduation level as per Regulation 4(1) of the PG Regulations on seats that have remained vacant after completion of admission process and exhaustion of merit list prepared on the basis of AIA-PGET 2022.
(ii) Alternatively, the Commission in consultation with the Ministry of AYUSH must reduce the qualifying percentile for AIA-PGET, 2022 and thereupon, be pleased to permit the homeopathy medical colleges of the State of Gujarat to admit students who are eligible for being admitted as per such reduced qualifying percentile."
10. From the reading of the original writ petition filed on 11.04.2023, it is, thus, evident that the prayer made in the writ petition was to reduce the qualifying percentile for AIA- PGTE, 2022, to permit the Homeopathy medical college of the State of Gujarat to admit students, who are eligible for being admitted as per such reduced qualifying percentile. However, by means of the amendment moved on 19.04.2023, the validity of the Amendment Regulation, 2018, which provided for the requirement of Common entrance tests - AIA-PGTE for grant of admission to post-graduate homeopathy courses, itself was sought to be challenged, mainly on the ground that Page 16 of 39 Downloaded on : Wed Oct 11 20:42:07 IST 2023 NEUTRAL CITATION C/SCA/6456/2023 CAV JUDGMENT DATED: 10/10/2023 undefined the validity of the said Amendment Regulation, 2018, was challenged before the High Court of Karnataka in the aforesaid writ petition and vide the judgment and order dated 31.08.2021, the Karnataka High Court has declared the said Amendment Regulation, 2018 being illegal, arbitrary and unenforceable.
11. It is contended by the learned Senior Counsel for the petitioner that in the said decision, Karnataka High Court has held that admission to post-graduate homeopathy courses are required to be granted without insisting for AIA-PGTE. Reliance is further placed on the decision of the Apex Court in Kusum Ingots & Alloys Ltd. versus Union of India and Another reported in (2004) 6 SCC 254, to submit that if passing of parliamentary legislation gives rise to the cause of action, the writ petition challenging the constitutionality thereof, can be filed in any High Court of the Country. The judgment of the High Court of Madras in the case of Dr. T. Rajakumari and Others versus Government of Tamil Nadu, Chennai and Others reported in 2016 SCC Page 17 of 39 Downloaded on : Wed Oct 11 20:42:07 IST 2023 NEUTRAL CITATION C/SCA/6456/2023 CAV JUDGMENT DATED: 10/10/2023 undefined OnLine Mad 8992, has been placed before us to submit that once one State's High Court has struck down on the provisions of the Central Act, it cannot be selectively applied in other states. There is no question of applicability of the provisions struck down by the High Court of Karnataka until and unless the Apex Court upsets the judgment or stays the operation of the judgment. It is argued that the Special Leave to Petition filed before the Apex Court against the judgment of the Karnataka High Court holding the regulations framed by the Central Government as illegal and arbitrary, is pending consideration and there is no stay.
12. Reliance is also placed on the decision of Karnataka High Court in the case of Mr.Shiv Kumar vs. Union of India, represented by Secretary, Ministry of Law and Justice & Others reported in ILR 2014 KAR 2474, to submit that a judgment reading down the provisions of parliamentary legislation is applicable throughout India.
13. In the said scenario, it was not open for the State of Page 18 of 39 Downloaded on : Wed Oct 11 20:42:07 IST 2023 NEUTRAL CITATION C/SCA/6456/2023 CAV JUDGMENT DATED: 10/10/2023 undefined Gujarat to invoke the provisions of Regulations, 2018 to hold the entrance examination (AIA-PGTE) for admission to in post-graduate courses to the Homeopathy Medical College in the State of Gujarat, in the Academic Sessions 2022-23.
14. The submission is, thus, that the Self-Financed Homeopathy Colleges established in the State of Gujarat, are entitled to grant admission to the candidates in Post-graduate (Hom.) courses, who fulfilled the eligibility requirement of having Bachelors degree of Homeopathy, Medicine and Surgery as per Regulations 4(1) of the Regulations, 1989.
15. At this juncture, we may reiterate that by the notification dated 09.03.2023 issued by the Secretary, National Commission for Homeopathy, cut-off date for admission to post-graduate Homeopathy courses in the Academic year 2022-23, had been notified. The copy of the notification provided by the Counsel for the respondent during the course of arguments shows that the counselling schedule for admission in Post-graduate courses in Page 19 of 39 Downloaded on : Wed Oct 11 20:42:07 IST 2023 NEUTRAL CITATION C/SCA/6456/2023 CAV JUDGMENT DATED: 10/10/2023 undefined Homeopathy medical colleges had been notified by the Ministry of AYUSH vide letter dated 12.10.2022, according to which, cut-off date for admission in Post-graduate courses in homeopathy for the Academic session 2022-23, was 08.04.2023. As per the tentative academic calendar for the post-graduate batch 2022-23, the commencement of the post- graduate Part-I was notified as 10.04.2023. There is no dispute about the abovenoted cut-off date notified for admission in post-graduate course in homeopathy for academic session 2022-23.
16. It may also be relevant to record that the petitioner association has initiated action after the cut-off date i.e. on 11.04.2023, seeking for relaxation of the minimum percentile for inclusion of candidates in the merit list prepared on the basis of AIA-PGTE - common entrance tests conducted on 15.10.2022. It is, thus, clear that the petitioner did not raise any challenge with respect to the holding of AIA-PGTE examination for admission to the course in the Academic session 202-23, nor any challenge was made initially to the Page 20 of 39 Downloaded on : Wed Oct 11 20:42:07 IST 2023 NEUTRAL CITATION C/SCA/6456/2023 CAV JUDGMENT DATED: 10/10/2023 undefined validity of the Regulation, 2018 prescribing for the entrance examination and the minimum percentile for inclusion of the candidates in the merit-list, prepared on the basis of the said entrance examination. The challenge to the validity of the Regulation, 2018 based on the above noted decision of the Karnataka High Court terming it as illegal, arbitrary and unenforceable is an afterthought, on the part of the petitioner herein.
17. So far as the reliance is placed on the decision of the Karnataka High Court dated 31.08.2021, mentioned hereinabove, we are only require to note that the issue therein was pertaining to admission in the Academic year, 2021 and the Karnataka High Court while concluding on the validity of the impugned Amendment Regulation, 2018 has observed, thus : -
"15. CONCLUSION ON THE VALIDITY OF THE IMPUGNED AMENDMENT REGULATIONS:
(a) In the light of the above settled legal principles, particularly with regard to the non compliance of statute even as admitted by the respondent No.2 in paragraph No.12 of the counter affidavit in W.P. No.100650/2021 and in paragraph No.21 of the counter affidavit in W.P. Page 21 of 39 Downloaded on : Wed Oct 11 20:42:07 IST 2023 NEUTRAL CITATION C/SCA/6456/2023 CAV JUDGMENT DATED: 10/10/2023 undefined No.100652/2021, which is extracted herein above, we are of the considered view that there has been no compliance of the mandatory requirement of sub-section (2) of Section 20 of the Act, 1973 (since repealed). This is an infraction of the mandatory provision of the Act, 1973.
(b) In the absence of the statute providing for imposition of qualification regarding eligibility for admission to the UG & PG Courses, it was all the more necessary for the respondent No.2 to have complied strictly with the mandatory provisions of sub-section (2) of Section 20 of the Act, 1973 to have circulated draft regulations and the amendment thereof with all stake holders. This admittedly not having been done, needs to be set aside as illegal, arbitrary and unenforceable.
(c) It is also a settled law that failure to confirm to the statute under which subordinate legislature is made or exceeding the limits of authority conferred by the enabling Act, would result in the same being rendered illegal and unenforceable. Hence, the first question is answered in the affirmative.
18. However, in the operative portion of the judgment, it was ordered that :
"16. Accordingly, the questions raised for consideration in these writ petitions are answered in affirmative. For the aforesaid analysis, we pass the following:
ORDER
(i) The Writ Petition Nos.100650/2021 and 100652/2021 are allowed.
(ii) The amendment regulations gazetted on 14.12.2018 and 19.06.2019 produced at Annexure-D and D! In Writ Petition No.100650/2021 regulations and gazetted the on amendment 14.12.2018 and 19.06.2019 produced at Annexures-C and C1 in Writ Petition Page 22 of 39 Downloaded on : Wed Oct 11 20:42:07 IST 2023 NEUTRAL CITATION C/SCA/6456/2023 CAV JUDGMENT DATED: 10/10/2023 undefined No.100652/2021, only insofar as the petitioners are concerned, are hereby set aside as illegal and arbitrary;
making it clear that this order which is passed in the peculiar facts of the present cases shall not be treated as precedent by those who are not parties to these writ petitions.
(iii) Consequently, the respondents are directed to approve the admission of the students made pursuant to the interim order dated 26.02.2021 passed in these writ petitions and modified by the Hon'ble Supreme Court by its order dated 12.04.2021, passed in SLP No.5288/2021.
19. It can, thus, be seen that the Amendment Regulations dated 14.12.2018, therein had been termed as illegal and arbitrary and has been held to be inapplicable insofar as, the petitioner therein are concerned. It is clarified by the Karnataka High Court that the said order had been passed in the peculiar facts of the present case and it shall not be treated as precedent by those who were not party to the writ petition therein.
20. On the above observations of the Karnataka High Court in holding the amending Regulations 2018 as arbitrary and illegal confining to the petitioners therein, who were seeking admission for the academic year, 2020-21, it is vehemently argued by the learned Senior Counsel for the Page 23 of 39 Downloaded on : Wed Oct 11 20:42:07 IST 2023 NEUTRAL CITATION C/SCA/6456/2023 CAV JUDGMENT DATED: 10/10/2023 undefined petitioner that once it is held by the Karnataka High Court that there has been no compliance of the mandatory requirement of sub-section (2) of Section 20 of the Act, 1973 (since repealed), the draft regulation and the amendment thereof having not been circulated with all the stakeholders, they need to be set aside as illegal, arbitrary and unenforceable. The contention is that once it is held by the Karnataka High Court that subordinate legislation was made by the authority exceeding its limit conferred by the enabling Act, it would result in the same being rendered as illegal, unenforceable. The result is that the Regulation, 2018 cannot be insisted for pressing the requirement of obtaining minimum percentile provided in Regulation 4(2) of the Regulation, 2018 for admission to post-graduate courses in Homeopathy, in the State of Gujarat. The insistence of respondent - Admission Committee to the requirement of adhering to the merit list prepared by it to Homeopathy Post- graduate course for the academic session 2022-23, is wholly uncalled for.
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21. It is further argued that the decision of the Karnataka High Court in holding the Regulations as illegal, arbitrary and unenforceable, has been followed in further decision of the Karnataka High Court dated 06.04.2023 for admission in Homeopathy Post-graduate for the Academic year 2022-23, wherein it was directed that the authority shall permit the institutions to make admission to the post- graduate course against the unfilled seats after all AIA-PGTE candidates have made their choices, by any other candidate subject to the result of the writ petition. It is, thus, argued that the decision of the Karnataka High Court in holding the Regulations as illegal, arbitrary and unenforceable is being followed consistently.
22. In the result, the action of the petitioner in taking admission of the candidates, who possess minimum eligibility qualification prescribed in Regulation 4(1) of the Regulation, 2018, cannot be said to suffer from any error of law. Reliance is lastly being placed to the decision of the Apex Court in the case of Harshit Agarwal and Others versus Page 25 of 39 Downloaded on : Wed Oct 11 20:42:07 IST 2023 NEUTRAL CITATION C/SCA/6456/2023 CAV JUDGMENT DATED: 10/10/2023 undefined Union of India reported in (2021) 2 SCC 710, to submit that even the Apex Court had permitted admission holding the recommendation of the Dental Council for India for lowering the minimum marks for admission to BDS Courses being correct and set aside the contrary decision of the Central Government, terming it as suffering from vices of illegality and irrationality.
23. Learned counsel for the respondent No. 2 namely the National Commission for Homeopathy, however, relied upon the decision of the Division Bench of the Calcutta High Court in the case of Board of Governors in Supersession of Medical Council of India versus Priyambada Sharma and Others reported in 2022 (0) AIJEL-SC 69987, to submit that last date for admission to the post-graduate medical course shall have to be strictly followed. The Apex Court from time to time in the decisions relied therein, has reiterated that the schedule for admission to the post- graduate medical course must be followed strictly and no authority has discretion to permit admission over the cut off Page 26 of 39 Downloaded on : Wed Oct 11 20:42:07 IST 2023 NEUTRAL CITATION C/SCA/6456/2023 CAV JUDGMENT DATED: 10/10/2023 undefined date as per the schedule. The plea that large number of seats were lying vacant, prayer seeking admission against those unfilled undergraduate, post-graduate seats for medical course, has been turned down by the Apex Court repeatedly after the cut-off date. The reference has been made to the decision in the Education Promotion Society for India and Another versus Union of India and others reported in 2019 7 SCC 38, Medical Council of India vs. Ritwik & Others reported in 2021 SCC OnLine SC 3280, Dr. Astha Goel and Others vs. Medical Counselling Committee and Others reported in 2022 SCC OnLine SC 734, referred therein.
24. Learned counsel for the respondent has also referred to the decision of the Division Bench of the Allahabad High Court, wherein relying upon the decision of the Apex Court in Harshit Agarwal (supra), plea was made for lowering of the minimum percentile for admission to undergraduate B.U.M.S. and B.A.M.S. courses based on NEET, 2022 and the request was made for extending the date for counselling for the Page 27 of 39 Downloaded on : Wed Oct 11 20:42:07 IST 2023 NEUTRAL CITATION C/SCA/6456/2023 CAV JUDGMENT DATED: 10/10/2023 undefined purposes of admission. It was held therein that decision in respect of the fixing or reducing or enhancing minimum percentile is a matter of policy decision, as per the intention of the statutory body created under the Act. The submission therein was that there existed non-availability of the candidates and because of their non-availability, seats and institutions of the petitioners therein remained unfilled. Noticing for the possibility of available candidates, who are credited with more percentile than the cut of percentile having not opted the institution run by the petitioner therein, the prayer was denied. The request of the petitioner - institution therein for quashing of the order passed by the National Commission for Indian System of Medicine rejecting the prayer for reducing the percentile criteria for admission to undergraduate B.U.M.S. and B.A.M.S. based on NEET, 2022, has been turned down.
25. Lastly, in rejoinder it is sought to be submitted by the learned counsel for the petitioner that the cut-off date as 08.04.2023, had never been brought in the public domain. Page 28 of 39 Downloaded on : Wed Oct 11 20:42:07 IST 2023
NEUTRAL CITATION C/SCA/6456/2023 CAV JUDGMENT DATED: 10/10/2023 undefined The interim order dated 06.06.2023 was passed by this Court noticing the cut-off date as 08.04.2023, giving due consideration to the decision of the Karnataka High Court in holding the Regulation, 2018, as illegal and unenforceable for non-compliance of the provisions of the sub-section (2) of Section 20 of the HCC Act, 1973. The law laid down by the Karnataka High Court in the aforesaid decision is applicable to all concerned across the entire Nation and the respondent
- Admission Committee cannot insist of the percentile or the merit list prepared on the basis of AIA-PGTE examination.
26. Having noticed the above, we are required to reiterate that the petitioner herein has approached this Court seeking for relaxation of the minimum marks prescribed in 2018 Regulation, to take admission in Homeopathy post- graduate against unfilled seats. There has been no dispute about holding of the entrance examination AIA-PGTE and admission to the Post-graduate course based on the same in the Academic Session 2022-23. AIA-PGTE is made compulsory from the academic year 2017-18 for AYUSH to Page 29 of 39 Downloaded on : Wed Oct 11 20:42:07 IST 2023 NEUTRAL CITATION C/SCA/6456/2023 CAV JUDGMENT DATED: 10/10/2023 undefined bring uniformity and meritorious students to the AYUSH post- graduate course. The issue with regard to the validity of the notifications issued by the Central Council of India Medicine and Central Council of Homeopathy prescribed for NEET for admission to undergraduate courses (B.A.M.S., B.U.M.S., B.S.M.S. and B.H.M.S.) and minimum qualifying marks in the said examination came up for consideration before the Apex Court in Civil Appeal No. 603 of 2020 in the case of Union of India versus Federation of Self-Financed Ayurvedic Colleges Punjab and Others. The Apex Court has observed in para 12 as under : -
"12. Prescribing a minimum percentile for admission to the Under Graduate courses for the year 2019-2020 was vehemently defended by the Central Council and the Union of India by submitting that the minimum standards cannot be lowered even for 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 a reason to lower the standards prescribed by the Central Council for admission. However, in view of admission of a large number of students to the AYUSH Under Graduate courses for the year 2019-2020 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. 15 th October, 2019. The said direction is also applicable to students admitted to Post Graduate courses before 31 Page 30 of 39 Downloaded on : Wed Oct 11 20:42:07 IST 2023 NEUTRAL CITATION C/SCA/6456/2023 CAV JUDGMENT DATED: 10/10/2023 undefined st October, 2019. This is a one-time exercise which is permitted in view of the peculiar circumstances. Therefore, this order shall not be treated as a precedent.
However, with regard to the notification dated 14.12.2018 pertaining to the Homeopathy courses, the challenge to the same is on the plea that the procedure prescribed in Section 20(2) of the HCC Act, 1973 was not followed before the amendment was carried out to the Regulations, was not examined therein by the Apex Court, leaving it open for the petitioners to raise those issues before the High Court.
27. It can, thus, be seen that the Apex Court has approved the prescription of minimum percentile for taking admission to Undergraduate courses noticing that non- availability of eligible candidates for admission to AYUSH undergraduate course cannot be a reason for prescribing lower percentile by the Central Government for admission. The Karnataka High Court in the decision dated 31.08.2021, heavily relied on by the learned Senior Counsel for the petitioner, has examined the issue pertaining to the non- Page 31 of 39 Downloaded on : Wed Oct 11 20:42:07 IST 2023
NEUTRAL CITATION C/SCA/6456/2023 CAV JUDGMENT DATED: 10/10/2023 undefined compliance of sub-section (2) of Section 20 of the Act, 1973 in making Regulations, 2018. By noticing the averments in the counter affidavit filed in the writ petition before it, the Karnataka High Court has observed that there is an admission on the part of the Central Government of Homeopathy with regard to non-circulation of the amendment to the regulations, duly evidenced by the letters exchanged between the CCH and Ministry of AYUSH, making it clear that there has been no compliance with the mandatory requirement of sub-section (2) of Section 20 of the Act, 1973, which mandates the circulation of draft regulation and amendment, if any. The observation, has thus, been made in the concluding paragraph '15' noted hereinabove, that the failure to confirm the procedure under which the legislation is made, would result in the same being rendered illegal and unenforceable. However, in the operative portion of the order, challenge to the validity of the Amended Regulations inserted on 14.12.2018 was confined to the challenge raised by the petitioner therein, clarifying in the order that it was applicable in the said case only and shall not Page 32 of 39 Downloaded on : Wed Oct 11 20:42:07 IST 2023 NEUTRAL CITATION C/SCA/6456/2023 CAV JUDGMENT DATED: 10/10/2023 undefined be treated as precedent, even by those who were not party to the writ petition.
28. Noticing the above, we may note that the said observation of the Karnataka High Court in the operative portion of the order makes it clear that the observations made therein was confined to the challenge before it, and the validity of the Regulation, 2018 was examined in light of the facts stated in the counter affidavit filed before the Karnataka High Court. The admission to the Post-graduate course in the subsequent academic year 2022-23, had been conducted on the basis of the common entrance examination AIA-PGTE, 2022, across the Nation. The merit-list prepared by the Admission Committee in the counselling commenced on 21.01.2023 and concluded on 08.04.2023, has been adhered to for admission in the homeopathy medical colleges across the State of Gujarat, in the Academic year 2022-23.
The last date of admission has been notified on 08.04.2023. Against the vacant seats, after fourth round of Page 33 of 39 Downloaded on : Wed Oct 11 20:42:07 IST 2023 NEUTRAL CITATION C/SCA/6456/2023 CAV JUDGMENT DATED: 10/10/2023 undefined counselling, held on 23.03.2023, stray vacancies were filled in the last round of counselling uptill 08.04.2023.
29. At the most, before the last date of admission, the Homeopathy medical colleges, seats of which remained unfilled, could have made a request for lowering of the minimum marks required for admission to post-graduate course, which was to be notified and applied uniformly across the State, as per the decision of the Central Government, taken if any in consultation with the Commission, the regulatory body.
30. Meaning thereby, in that eventuality, a fresh merit list could have prepared from amongst all those candidates, who had participated in the entrance examination by lowering the minimum marks percentile for different categories of candidate, so as to complete the admission process for the academic year 2022-23, on the basis of such merit list, so prepared.
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31. This has not happened in the instant case. The petitioner - association approached this Court after completion of the admission process, initially with the request to lower down the merit-list to fill up the existing vacancies and later seeking a direction to give a go-by to the entire admission process i.e. the merit list prepared pursuant to AIA-PGTE examination, 2022 for the academic session, 2022-
23.
32. With due regards to the learned members of the Bench, who have passed the interim order dated 06.06.2023 permitting the petitioner to admit the students against the vacant seats in view of the decision of the Karnataka High Court, we may record that the said Bench while passing the interim order has completely ignored the above aspects in the matter. However, the fact remains that the petitioner had taken the risk of granting admission to the students, who did not even participate in the entrance examination AIA-PGTE, 2022, thereby giving a complete go-by to the admission process which was conducted uniformly across the Nation. Page 35 of 39 Downloaded on : Wed Oct 11 20:42:07 IST 2023
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33. Be that as it may, the admission granted by the petitioner under the interim order, has been made subject to the final result of the writ petition. We are, therefore, of the view that the challenge to the Regulations, 2018 by the petitioner - association by way of the amendment brought on 19.04.2023 was a novel device to take admission of the candidates of their choice de-hors the statutory provisions. The admission of those candidates who have not even participated in the entrance examination that has after completion of the process of admission based on the entrance examination, is wholly contrary to the opinion drawn by the Apex Court in the Union of India (supra), in paragraph 12, as extracted hereinabove.
34. The practice of granting admission by way of interim order has been deprecated by the Apex Court from time and again. No sympathy as such can be shown to such students who have been admitted after the last date of admission, i.e. 08.04.2023 as their admissions are wholly contrary to the Page 36 of 39 Downloaded on : Wed Oct 11 20:42:07 IST 2023 NEUTRAL CITATION C/SCA/6456/2023 CAV JUDGMENT DATED: 10/10/2023 undefined regulations, under which the process of admission to Homeopathy post-graduate courses was undertaken in the Academic year 2022-23, where admissions were made strictly in the order of merit-cum-preference. Such act of the petitioner - institution cannot be approved by this Court. The admission procedure adopted in the academic session 2022- 23 cannot be given go-by after completion of the admission process.
35. We may further record that the question of validity of Regulations, 2018, in the facts of the instant case, has become academic, inasmuch, as, the admission process in accordance with the said regulations had already been completed, much before the challenge was raised by way of the amendment brought on 19.04.2023, in the instant petition, which was initially filed after the cut-off date for admission.
36. It is settled that a Writ Court cannot determine the constitutional question in a vacuum. As no cause of action Page 37 of 39 Downloaded on : Wed Oct 11 20:42:07 IST 2023 NEUTRAL CITATION C/SCA/6456/2023 CAV JUDGMENT DATED: 10/10/2023 undefined was available with the petitioner on the date of filing of the writ petition, i.e. on 11.04.2023, and further when amendment was brought on 19.04.2023, the challenge to the validity of the Regulations, 2018, cannot be examined by us.
37. For the above discussion, we do not find any merit in the writ petition. The same is, accordingly, DISMISSED. The admission made by the petitioner homeopathy colleges under the interim order dated 06.06.2023 are held illegal being de- hors the Regulations, 2018. The candidates who have taken admission under the interim order passed by this Court without participating in the entrance examination, cannot be allowed to continue the course. They are, however, entitled to seek refund of the advance fee, if any, deposited by them from the date of this order. No order as to costs.
sd/-
(SUNITA AGARWAL, CJ ) sd/-
(ANIRUDDHA P. MAYEE, J.) FURTHER ORDER : -
The oral prayer made by learned counsel for the petitioner Page 38 of 39 Downloaded on : Wed Oct 11 20:42:07 IST 2023 NEUTRAL CITATION C/SCA/6456/2023 CAV JUDGMENT DATED: 10/10/2023 undefined to stay the operation of this judgment, is hereby rejected.
sd/-
(SUNITA AGARWAL, CJ ) sd/-
(ANIRUDDHA P. MAYEE, J.) AMAR SINGH Page 39 of 39 Downloaded on : Wed Oct 11 20:42:07 IST 2023