Gujarat High Court
Prayagi Mukundrai Pathak vs Union Of India on 29 September, 2023
Author: Ashutosh Shastri
Bench: Ashutosh Shastri
NEUTRAL CITATION
C/LPA/743/2021 CAV JUDGMENT DATED: 29/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 743 of 2021
In
R/SPECIAL CIVIL APPLICATION NO. 23196 of 2019
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
In
R/LETTERS PATENT APPEAL NO. 743 of 2021
With
R/LETTERS PATENT APPEAL NO. 234 of 2021
In
SPECIAL CIVIL APPLICATION NO. 20841 of 2019
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
In
R/LETTERS PATENT APPEAL NO. 234 of 2021
In
SPECIAL CIVIL APPLICATION NO. 20841 of 2019
With
R/LETTERS PATENT APPEAL NO. 222 of 2021
In
SPECIAL CIVIL APPLICATION NO. 21105 of 2019
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
In
R/LETTERS PATENT APPEAL NO. 222 of 2021
In
SPECIAL CIVIL APPLICATION NO. 21105 of 2019
With
R/LETTERS PATENT APPEAL NO. 228 of 2021
In
SPECIAL CIVIL APPLICATION NO. 20824 of 2019
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
In
R/LETTERS PATENT APPEAL NO. 228 of 2021
In
SPECIAL CIVIL APPLICATION NO. 20824 of 2019
With
R/LETTERS PATENT APPEAL NO. 233 of 2021
In
SPECIAL CIVIL APPLICATION NO. 23241 of 2019
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
In
R/LETTERS PATENT APPEAL NO. 233 of 2021
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In
SPECIAL CIVIL APPLICATION NO. 23241 of 2019
With
R/LETTERS PATENT APPEAL NO. 221 of 2021
In
SPECIAL CIVIL APPLICATION NO. 21102 of 2019
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
In
R/LETTERS PATENT APPEAL NO. 221 of 2021
In
SPECIAL CIVIL APPLICATION NO. 21102 of 2019
With
R/LETTERS PATENT APPEAL NO. 235 of 2021
In
SPECIAL CIVIL APPLICATION NO. 431 of 2021
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
In
R/LETTERS PATENT APPEAL NO. 235 of 2021
In
SPECIAL CIVIL APPLICATION NO. 431 of 2021
With
R/LETTERS PATENT APPEAL NO. 230 of 2021
In
SPECIAL CIVIL APPLICATION NO. 11779 of 2020
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
In
R/LETTERS PATENT APPEAL NO. 230 of 2021
In
SPECIAL CIVIL APPLICATION NO. 11779 of 2020
With
R/LETTERS PATENT APPEAL NO. 231 of 2021
In
SPECIAL CIVIL APPLICATION NO. 23189 of 2019
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
In
R/LETTERS PATENT APPEAL NO. 231 of 2021
In
SPECIAL CIVIL APPLICATION NO. 23189 of 2019
With
R/LETTERS PATENT APPEAL NO. 232 of 2021
In
SPECIAL CIVIL APPLICATION NO. 23196 of 2019
With
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CIVIL APPLICATION (FOR STAY) NO. 1 of 2022
In R/FIRST APPEAL NO. 232 of 2023
With
R/LETTERS PATENT APPEAL NO. 229 of 2021
In
SPECIAL CIVIL APPLICATION NO. 9994 of 2020
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
In
R/LETTERS PATENT APPEAL NO. 229 of 2021
In
SPECIAL CIVIL APPLICATION NO. 9994 of 2020
With
R/LETTERS PATENT APPEAL NO. 298 of 2021
In
SPECIAL CIVIL APPLICATION NO. 23241 of 2019
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
In
R/LETTERS PATENT APPEAL NO. 298 of 2021
In
SPECIAL CIVIL APPLICATION NO. 23241 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI Sd/-
and
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI Sd/-
==========================================================
1 Whether Reporters of Local Papers may be allowed YES
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 ?
==========================================================
PRAYAGI MUKUNDRAI PATHAK
Versus
UNION OF INDIA
==========================================================
Appearance:
MR MR SHALIN MEHTA, SENIOR ADVOCATE with MR HEMANG M
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SHAH(5399) for the Appellant(s) No. 1
MR SIDDHARTH DAVE, for RESPONDENT NO.1
MR JIGAR M PATEL(3841) for the Respondent(s) No. 5
MR PREMAL R JOSHI(1327) for the Respondent(s) No. 8
MR. KM ANTANI(6547) for the Respondent(s) No. 3
NOTICE SERVED for the Respondent(s) No.
1,10,11,12,13,16,17,18,19,2,20,21,22,23,24,25,27,28,30,31,32,34,35,4,6,7,9
NOTICE UNSERVED for the Respondent(s) No. 14,15,26,29,33
MR DHAVAL C DAVE, SENIOR ADVOCATE with MR UDIT N VYAS(9255)
for the Respondent(s) No. 5
MS ROSHNI PATEL & MR HK PATEL, AGP for Respondent-STATE
MR AR THACKER with MR SHIVANG A THACKER for Respondent No.5 in
LPA No.222 of 2021
==========================================================
CORAM:HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI
and
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 29/09/2023
COMMON CAV JUDGMENT
(PER : HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI)
1. This group of appeals has arisen out of common CAV
judgment delivered in a group of Special Civil Applications and
as such these Letters Patent Appeals are requested to be heard
and decided conjointly by common order since substantially
main controversy involved is almost identical and as such with
request of learned advocates appearing in the present
proceedings, we deal with present Letters Patent Appeals
conjointly and further for sake of convenience, we treat Letters
Patent Appeal No.743 of 2021 as a lead matter.
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2. Lead matter, i.e. Letters Patent Appeal No.743 of 2021, is
arising out of Special Civil Application No.23196 of 2019,
wherein case of original petitioners was that original
respondent No.4 issued an advertisement on 13.10.2019 in
newspaper stating that admission rounds held by respondent
No.3 had been completed and it had permitted respondent No.4
to fill up vacant seats as existing in respective colleges.
Petitioners of said petition are students of various colleges as
indicated in paragraph-5 who had cleared HSC examination, are
inclined to pursue the course of Bachelor of Ayurveda Medicine
& Surgery, which is a 5.5. years course. According to original
petitioners, they appeared in NEET-UG-2019 in competitive
examination and have submitted that since sufficient number of
students were not available in Dental course (BDS course),
Ministry of Health & Family Welfare (Dental Education Center)
on 6.9.2019 issued a communication to the National Testing
Agency informing that percentile for admission to BDS course
for NEET-UG-2019, result had been lowered and therefore
revised result with lower percentile be declared immediately
and accordingly, in respect of BDS course, qualifying
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percentage were prescribed as indicated in paragraph-8. Then,
by narrating few decisions, it has been mentioned that on
13.10.2019, pursuant to advertisement which was issued by
respondent No.4, admission rounds which were held by
respondent No.3 were completed and stated that it be permitted
to respondent No.4 to fill up vacant seats as existing in the
college as mentioned in paragraph-11. In view of the said
advertisement, petitioners of this petition have been granted
conditional admission and according to petitioners, while
issuing conditional admission order, it was stated therein that
admission is granted on condition that if department of Ayush
reduces the cut-off marks for academic year 2019-2020 as was
done in the preceding year, same would carry further and
thereafter again by narrating development which took place in
Karnataka High Court as well as in Mumbai High Court in
respect of Homeopathy Medical College and proceedings filed
by Central Council of Indian Medicine as a Special Leave
Petition in Hon'ble Supreme Court, it has been asserted in
paragraph-15 that last date for admission of BAMS was
30.11.2019 for the academic year 2019-20. It has further been
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asserted in the petition that upon coming to know of the
development which took place in the Hon'ble Apex Court,
petitioners of this petition have approached respondent Nos.4 to
7 respective colleges to seek clarification of status of their
admission and petitioners were apprised of the facts and were
informed that Association of Self-Finance Colleges would be
taking step to request respondent Nos.1 and 2 to reduce the
qualifying percentile in NEET-2019 BAMS course.
3. It is the case of the original petitioners that on 7.11.2019,
Association of Self-finance Ayurved Colleges of Gujarat State
addressed a representation to respondent No.1 apprising about
the order dated 5.11.2019 and simultaneously made a request
to lower down the qualifying marks in NEET-2019 for admission
to BAMS degree course program and also in AIAPGET-2019 for
admission to MS/MD (Ayu) in view of the vacancies existing in
Government and Management quota. It was also brought to the
notice of respondent No.1 that similar steps were taken by
Medical Council of India to lower down the qualifying marks in
NEET-2019 and NEET-PG-2019 to admission in BDS and MDS
courses respectively.
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4. In the main petition, it has been further asserted that on
14.11.2019, respondent No.1 addressed a communication to the
Principal, Atal Bihari Vajpayee Homeopathic Medical College
and Hospital, wherein it had been held by respondent No.1 in
substance that request for reducing percentile and extension of
cut-off date for admission cannot be agreed to. Said
communication dated 14.11.2019 is attached to the petition
compilation at Annexure-K. It is further the case of original
petitioners that on 15.11.2019, respondent No.1 addressed a
communication to All State authorities in reference to admission
to Post Graduate Degree in Ayurvedic and Homeopathy colleges
and stated that Ministry has received various representations
stating that many seats are lying vacant due to less number of
qualifying students to the academic year 2019-20 and after due
deliberation, last cut-off date ultimately was extended to
30.11.2019. Said communication is reflecting in paragraph-19
attached to the petition compilation at Annexure-L. In view of
said communication issued by respondent No.1, State
Government of Maharashtra had issued a notification by virtue
of which Maharashtra Government had reduced minimum
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percentile in respect of Post Graduate Ayurved/ Unani/
Homeopathic courses, but so far as State of Gujarat is
concerned, according to petitioners, nothing has taken place. It
is stated that perusal of website of respondent No.3 indicates
that there are as many as 995 vacant seats available out of total
2202 seats in BAMS course. A statement is attached at
Annexure-N to the petition compilation and it has further been
stated that in past also, for academic year 2018-19, respondent
No.1 had reduced qualifying percentile in Under-graduate
Degree course in ASU & H course. Said communication is also
attached at Annexure-O dated 1.11.2018 and as such by
asserting this in the petition, basically by raising grievance
against respondent Nos.1 and 2 for not lowering down the
percentile in degree course in Ayurvedic courses for academic
year 2019-20, which has deprived the petitioners from securing
regular admission upon vacant seats, extraordinary jurisdiction
of this Court is invoked by bringing the petition under Article
226 of the Constitution of India for the reliefs which are stated
in paragraph-27.
5. This petition upon completion of pleadings appears to have
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been argued at great length before learned Single Judge and
after considering submissions of both the sides, learned Single
Judge while passing impugned order has dismissed all the
petitions and interim reliefs which were granted protecting the
admissions came to be vacated and upon request made by
learned counsel appearing for petitioners, a further order was
passed to extend the interim relief for two weeks. With this
background, lead matter, being Letters Patent Appeal No.743 of
2021, was placed along with other group of appeals raising
identical issue and were taken up for hearing.
6. So far as cognate matters are concerned, all such appeals
are arising out of common judgment and order and as such
minute details of such matters are not being mentioned in the
present order but the Court has taken into consideration the
background of facts.
7. Letters Patent Appeal Nos.221 of 2021, 222 of 2021, 230
of 2021, 231 of 2021, 233 of 2021 and 234 of 2021 are filed by
students prosecuting their studies on the basis of conditional
admissions in the course of Bachelor of Homeopathy Medicine
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and Surgery Course (BHMS), whereas students who have filed
Letters Patent Appeal Nos.228 of 2021, 229 of 2021, 232 of
2021 and 235 of 2021 are relating to the course of Bachelor of
Ayurveda Medicine and Surgery Course (BAMS) and since said
students are on the basis of conditional admissions, learned
Single Judge has dealt with the main issue pertaining to all such
students who are on the conditional admissions and as such
learned advocates have also canvassed their submissions in the
lead matter. As a result of this, present set of appeals is also
being governed by present order.
8. Learned Senior counsel Mr. Shalin Mehta, appearing on
behalf of appellant in a lead matter has vehemently contended
that order passed by learned Single Judge is not sustainable in
the eye of law and learned Single Judge has erroneously held
that regulations were not under challenge. In fact, there was no
occasion for the appellants to challenge the regulation since it is
the duty of respondent Nos.1 and 2 to decide whether NEET
percentile could be reduced or not and regulation mandated the
respondent Nos.1 and 2 authority to take positive action in view
of the fact that several seats are vacant and according to Mr.
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Mehta, respondent authorities have failed to discharge their
statutory obligation. Further, it has been submitted that learned
Single Judge has not appreciated crux of the matter in its true
perspective and ought to have considered the judgment
reported in (2020) 8 SCC 177 in its proper perspective. Punjab
& Haryana High Court had permitted the colleges to fill up
vacant seats where students had not appeared in NEET
competitive examination or where students had not secured
required NEET minimum percentile for securing admission and
in that scenario, Hon'ble the Apex Court had delivered the
judgment and as such, had the proper facts been analyzed,
probably impugned judgment and order would not have been
passed. It has further been contended that reliance of the
judgment delivered by the High Court in Special Civil
Application No.7216 of 2020 was misplaced since background of
facts are altogether different and therefore said decision ought
not to have been given undue weightage.
9. Learned senior advocate Mr. Mehta has further contended
that said petition, i.e. Special Civil Application No.7216 of 2020,
was filed by one Mr. Utsav Dineshbhai Patel and not by other
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students and that too with no supportive document and based
upon incorrect contentions and therefore reliance which has
been placed is not just and proper and as such error committed
by learned Single Judge deserves to be corrected. In addition to
this, it has further been contended that learned Single Judge
has erred in solely relying upon paragraphs 9 and 12 of the
judgment rendered by the Hon'ble Apex Court, as indicated
above, but failed to peruse paragraphs 10 and 11 of the
judgment rendered in the case of Union of India v. Federation of
Self-financed Ayurvedic Colleges, Punjab and others. So, taking
into consideration the situation that existed, the Hon'ble Apex
Court in that case as one time measure for academic year 2019-
20 permitted the admission to be continued and appellants are
forming part of the very same academic year 2019-20 and as
such if the judgment of learned Single Judge is allowed to
operate, then it would amount to creating a class within a class
which is impermissible. Mr. Mehta has further submitted that
vide notification dated 7.12.2018, Central Council of India
(Medicine) constituted Regulation (2) which is dealing with
eligibility for admission and proviso contained therein invests
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power in the Central Government in consultation with Central
Council to reduce minimum marks required for admission to
Undergraduate courses for the academic year when sufficient
number of candidates in the respective categories failed to
secure minimum marks. If this exercise could have been
undertaken, learned Single Judge had an occasion to observe
that for the academic year 2019-20, sufficient number of
candidates in the respective categories have failed to secure
minimum marks, as a result of which approximately about 25%
seats in Undergraduate courses had remained vacant across
Gujarat and there were about 995 vacant seats out of 2202 seats
which were to be filled up and as such, pragmatic approach
ought to have been adopted by learned Single Judge. Having not
done so, error crept in deserves to be corrected.
10. Learned Single Judge according to learned senior
advocate Mr. Shalin Mehta, ought to have further considered
that regular trend of respondent No.1 in consultation with
respondent No.2 is to reduce qualifying percentile upon
availability of vacant seats during the year 2018-19 as well as
for the academic year 2020-21, NEET percentile had been
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reduced as vacant seats were available and there was no logic
behind not to reduce percentile for the academic year 2019-20
and as such this inaction on the part of respondent authorities
ought to have been viewed from the principle of arbitrariness
and even in one of the decisions, as indicated, the Hon'ble
Supreme Court directed that even conditional admission during
the academic year 2019-20 should not be disturbed. So, when
this is the scenario, the order passed by learned Single Judge
deserves to be corrected.
11. Learned senior advocate Mr. Mehta has further submitted
that very learned Single Judge has passed an ex-parte ad-
interim order which was confirmed in presence of respondent
Nos.1 and 2 and this grant of ad-interim relief was never
challenged by respondents in the higher forum nor any
application for vacating stay was filed. So, instead of taking too
technical view, in the larger interest and in the interest of
career of students, conditional admissions which have already
been granted deserve to be regularized and confirmed keeping
in view the proposition of law laid down in the case of
Federation of Self-finance Ayurvedic Colleges (supra). Learned
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Single Judge according to Mr. Mehta has further erred in
coming to the conclusion that order of the Hon'ble Supreme
Court was one time measure and not to be treated as a
precedent by the High Court since Punjab & Haryana High
Court granted interim orders permitting the college to admit.
This was in a given situation but same ought not to have been
relied as a straitjacket formula and Mr. Mehta has further
submitted that based upon the judgment rendered by the
Hon'ble Apex Court in the matter of MCI v. Kalinga Institute of
Medical Sciences reported in (2016) 11 SCC 530 as well as
another decision in the case of MCI v. M.G.R. Education
reported in (2015) 4 SCC 580, learned Single Judge has erred in
disturbing the conditional admissions which have been granted.
Basically when percentile has been reduced for the previous
academic year and even subsequent academic year, there was
no reason not to regularize conditional admissions which were
granted for the academic year 2019-20 and if authorities have
adopted erroneous and arbitrary approach, learned Single Judge
ought to have granted the relief in favour of the students.
12. By referring to the decision delivered by the Hon'ble Apex
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Court reported in 2020 (8) SCALE 177, which is applied with
with full force insofar as State of Gujarat is concerned, precisely
for the academic year 2019-20, simply because the Hon'ble
Apex Court has added one line not to treat as a precedent would
not mean that issue cannot be examined in the subsequent year
as well. There, learned Single Judge has committed serious
error in not appreciating the judgment in right perspective and
since several States have granted reliefs in favour of students,
there was no earthly reason not to exercise discretion in favour
of students of Gujarat for the academic year in question. Based
upon the decision of the Hon'ble Apex Court, as indicated
above, High Court of Uttarakhand, High Court of Punjab &
Haryana and High Court of Karnataka have considered the
cases and granted reliefs in favour of students. Whereas, here in
the case on hand, there are as many as 995 seats vacant and
there is power of relaxation with respondent authorities to
reduce the percentile, learned Single Judge ought to have
examined the issue keeping in view the interest of students at
large particularly when majority of students are girl students
and looking to the object of the Government to uplift girls'
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education, learned Single Judge ought to have considered the
case from this angle as well. Here, almost appellants have
completed about 3 years in the study and there is no logic
behind depriving the students for the academic year 2019-20
and as such by setting aside the order of learned Single Judge,
relief as prayed for be granted in favour of the students for
regularizing their admissions which were conditionally granted.
At this stage, one another decision delivered by Rajasthan High
Court in Civil Appeal No.5564 of 2022 decided on 2.3.2023 is
also referred to and it has been submitted that the case
deserves to be considered for grant of the relief in favour of the
appellants.
13. Following judgments are pressed into service by learned
senior counsel Mr. Shalin Mehta to support his submissions:
(1) In the case of Union of India v. Federation of Self-
Financed Ayurvedic Colleges of Punjab and reported
reported in 2020 (8) SCALE 177;
(2) In the case of Pharmacy Council of India v. Dr. S.K.
Toshnival Educational Trusts Vidarbha Institute of
Pharmacy and others reported in 2020 (5) SCALE 439;
(3) Order dated 8.2.2021 passed by the Hon'ble Supreme
Court in the case of Harshit Agarwal and others v. Union
of India in Writ Petition (C) 54 of 2021;
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(4) Order dated 1.2.2019 passed by Hon'ble Supreme Court
of India in the case of Association of Managements of
Homeopathic Medical Colleges of Maharasthra v. Union
of India and others in Civil Appeal No.1393 of 2019;
14. In support of submission of learned senior advocate Mr.
Shalin Mehta, learned senior advocate Mr. Dhaval C. Dave, who
is no-doubt appearing in cognate Letters Patent Appeal No.222
of 2021 with regard to discipline of Homeopathy, has also
submitted that in a situation like this where students are
already prosecuting their studies, view taken by learned Single
Judge would be seriously prejudicial. It has been submitted that
after closure of the process of admission by Admission
Committee, when NEET qualified candidates exhausted,
students, i.e. appellants approached the colleges requesting to
be admitted them in the courses and at that time, colleges
already conveyed that issue with regard to reduction of
eligibility criteria is pending and as such with open eyes,
conditional admissions have been accepted by appellant-
students and therefore, colleges have granted admissions with
specific conditions. It has been submitted that prior to extended
date of 15.10.2019, other States have already granted
admissions and in majority States, like Punjab and Haryana,
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Karnataka, Allahabad where various orders were passed
granting interim protection to the students and matter from
Punjab & Haryana High Court, which granted interim relief on
6.9.2019, was carried before the Hon'ble Apex Court and as
such these aspects ought to have been noticed by learned Single
Judge before concluding. At this stage, learned senior advocate
Mr. Dave has also placed reliance upon the decision delivered
by the Hon'ble Apex Court in the case Union of India v.
Federation of Self-Financed Ayurvedic Colleges, Punjab
reported in (2020) 12 SCC 115 and thereby supported the stand
taken by the appellants.
15. Learned senior advocate Mr. Dhaval Dave by drawing
attention of the Court to the relevant pages from the
compilation, has vehemently contended that case of Parul
University is altogether on different footing and there is no
similarity which can attach to the present case on hand and
here, the colleges have not sacrificed the merit and as such,
when such bona-fide admissions have taken place on conditional
basis, question is only with respect to academic year 2019-20,
admission deserves regularization. It has been submitted that
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large number of seats, as rightly indicated by learned senior
counsel Mr. Shalin Mehta, are lying vacant and as such, no
serious prejudice will be caused to any side if these conditional
admissions to be regularized and as such the relief prayed for
deserves to be granted.
16. At this stage, learned senior advocate Mr. Dhaval Dave
has reiterated that colleges have not violated any norms nor
have prejudicially acted with students in any form and whatever
has been granted is on the basis of request of students and with
open eyes, conditional admissions have been accepted by the
appellant students and therefore no fault can be found of the
colleges in grant of admission.
17. Learned senior advocate Mr. Dhaval Dave has reiterated
that for the academic year 2019-20, NEET examinations were
held, results were declared, counseling rounds got over and
then, when vacant seats were available, upon request of
students, colleges have granted admissions and that too
conditionally and it has been submitted that it was already
projected by colleges that pendency of representation dated
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7.11.2019 was also very much a circumstance for the colleges to
take care of the interest of students and appellants as well as
the colleges were under impression that when eligibility criteria
with regard to Post-Graduation courses was reduced, most
probably, representation which was made on 7.11.2019 would
also be considered and as such specific conditions were imposed
while granting admissions.
18. Learned senior advocate Mr. Dhaval Dave has also relied
upon series of decisions and tried to substantiate his case and
ultimately has submitted that powers of High Court are not that
much limited which cannot take care of students' interest who
are prosecuting their studies and as such, placing reliance upon
some of the decisions of the Hon'ble Apex Court, as indicated
hereinafter, Mr. Dhaval Dave has requested that order passed
by learned Single Judge deserves to be quashed and set aside
and consequently, the relief prayed for deserves to be granted
which would meet the ends of justice. Learned senior advocate
Mr. Dhaval Dave in support of his submissions has placed
reliance on following decisions:-
(1) In the case of Union of India v. Federation of Self-
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Financed Ayurvedic Colleges, Punjab reported in (2020)
12 SCC 115;
(2) In the case of Saraswati Educational Charitable Trust v.
Union of India reported in 2021 SCC OnLine 137;
(3) Judgment dated 27.11.2019 passed in Letters Patent
Appeal No.1817 of 2019 in the case of Parul University
and Another v. The Admission Committee for
Progressional Undergraduate Medical Education Courses
and Another;
(4) In the case of Swanirbhar Homeopathic Medical College
Sanchalak Mahamandal v. State of Gujarat reported in
2019 (0) AIJEL-HC 241706;
(5) Judgment of Karnataka High Court dated 31.8.2021 in
the case of Karnataka Private Homeopathic Medical
Colleges Management Association and others v. Union of
India in Writ Petition No.100650 of 2021 (Edn-Med) with
Writ Petition No.100652 of 2021 (Edn-Med)
(6) Judgment of Madras High Court dated 3.8.2016 in the
case of Dr. T. Rajakumari & Ors. v. The Government of
Tamil Nadu and others in W.P. No.39022 and 36735 of
2015;
(7) In the case of State of H.P. and others v. Himachal
Institute of Engg. And others reported in (1998) 8 SCC
501;
(8) In the case of State of H.P. and others v. Himachal
Institute of Engg. And Technology, Kasumpti, Shimla
reported in (1998) 8 SCC 504;
(9) In the case of Parul Arogya Seva Mandal v. State of
Gujarat reported in 2013 SCC OnLine Guj 5789;
19. As against this, learned advocate Mr. Siddharth Dave
appearing on behalf of Union of India has vehemently opposed
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the stand of the appellants and has submitted that learned
Single Judge has rightly passed the judgment well supported by
cogent reasons and after extending more than adequate
opportunity to all the parties concerned and as such, such a
detailed judgment and order passed by learned Single Judge
may not be interfered with, more particularly when there
appears to be no material irregularity or perversity. It has been
contended by learned advocate Mr. Siddharth Dave that
judgments which have been relied upon by both learned senior
counsel Mr. Shalin Mehta as well as Mr. Dhaval Dave, are in
different set of circumstance, peculiar in nature and same
cannot be applied as a straitjacket formula and these judgments
were prior in point of time when Rule applied mandatorily. It
has been contended that original petitioners, i.e. appellants
herein, have never challenged the amended Rule or assailed any
stipulations prescribing minimum specific qualification, and
when that be so, now it is not open for the appellants at the
appellate stage to contend and agitate against the said
amendment. Mr. Dave has submitted that when a particular
thing to be done in a particular manner and when a specific
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procedure is stipulated, same cannot be bypassed as has been
done by the colleges in present group while dealing with the
students. Specific Regulations which have force of law if to be
looked into, same would not permit any of the appellants to be
introduced in the courses and as such no equity be shown
simply because the appellants have prosecuted their studies for
some time. It has been submitted that a close perusal of events
which took place indicates that a case was tried to be put up as
if representation dated 7.11.2019 was not decided and as such
conditional admissions were given. But, in fact, all stakeholders
were aware about the fact that decision to reject such request of
reduction of minimum qualifying eligibility is turned down on
14.10.2019 and petition has been filed only after that, i.e. on
25.11.2019. It has been submitted that on very next day,
amendment was sought on 26.11.2019 and on very same day,
ad-interim relief was passed on the basis of such amendment.
But, in fact, had the proper facts been brought to the notice of
learned Single Judge, even such ad-interim relief would not have
been granted. However, be that as it may, a fact that eligibility
criteria has not been reduced was known to everybody and
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when that be so, such cannot be given a go-bye either by
colleges or by students. A very fact that amendment has been
brought on record would indicate that students were aware
about such amendment and as such there is hardly any reason
to raise any grievance. It has been pointed out that an attempt
has also been made to show that almost in a similar situation,
eligibility criteria was reduced, but that was reduced by an
expert body in different set of circumstance and that too at Post-
graduate stage, where yardstick would be different for
consideration. Perusal of the relevant decisions if to be made, it
appears that none of the decisions would come to the rescue of
the appellants. Learned advocate Mr. Siddharth Dave has also
placed reliance upon few decisions which are quoted
hereunder:-
(1) Judgment dated 24.2.2021 delivered by Hon'ble the
Apex Court in the case of Saraswati Educational
Charitable Trust and Another v. Union of India and
others in Writ Petition (C) No.40 of 2018;
(2) Judgment dated 27.11.2019 delivered by this Hon'ble
High Court in Letters Patent Appeal No.1817 of 2019
and other connected matters;
(3) In the case of Sneha Saha v. State of West Bengal
and others reported in 2019 SCC OnLine CAL 12119;
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(4) In the case of Federation of Self-Financed Ayurvedic
Colleges of Punjab & Others v. Union of India,
reported in 2019 SCC OnLine (P&H) 2881;
(5) In the case of Karnataka State Ayush Medical
Colleges Federation v. Union of India reported in
2019 SCC OnLine Kar 2906;
(6) In the case of Asimusshan Khan v. Union of India
reported in 2019 SCC OnLine All 5768;
(7) In the case of Association of Muslim Minorities
Medical Educational Institution v. Union of India
reported in 2019 SCC OnLine Bom 8201;
(8) Federation of Self-Financed Ayurvedic Colleges of
Punjab & others v. Union of India reported in 2019
SCC OnLine P &H 2876;
(9) Order dated 17.8.2021 passed by the Hon'ble
Supreme Court in the case of Abdul Ahad and others
v. Union of India and Others in Review Petition
(Civil) No.1835-1836 of 2020;
(10) Order dated 3.3.2021 passed by this Court in Letters
Patent Appeal No.190 of 2021 in the case of Patel
Utsav Dineshbhai V. The Gujarat Ayurved University;
(11) Order dated 13.10.2020 passed in Special Civil
Application No.10913 of 2020;
(12) Order dated 19.1.2021 passed by learned Single
Judge of this Court in Special Civil Application
No.7216 of 2020 in the case of Patel Utsav
Dineshbhai V. The Gujarat Ayurved University;
(13) In the case of Mahatma Gandhi University and
Another v. GIS Jose and others reported in (2018) 17
SCC 611;
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20. By reiterating the submissions that fixation of eligibility
criteria is an domain of the expert body, which is also
monitoring to maintain level of education and when a specific
eligibility criteria is prescribed, there is hardly any reason to
deviate from the same and as such even conditional admissions
ought not to have been granted by colleges when colleges were
not having on hand the decision of reduction of eligibility
criteria, they could have clearly mentioned before the students
and ought not to have granted admissions de-hors the
regulations and as such when such a scenario has already been
examined by learned Single Judge at great length, on the basis
of the very same circumstance, view taken by learned Single
Judge which is a possible view may not be substituted.
21. In chorus, learned advocate Mr. Premal Joshi appearing on
behalf of the relevant University has submitted that fixation of
eligibility criteria in the matter of admission is being monitored
and observed by AYUSH and it is only the authority for Central
Government which has already projected the request. Learned
advocate Mr. Joshi in addition to what has been submitted
before us has also pointed out that even Ordinance 57(2) has
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also not been observed here in the present case. Learned
advocate Mr. Joshi has also strenuously relied upon the dates
that last cut-off date was 15.10.2019, representation was made
on 7.11.2019 and on 14.11.2019, Government of India already
took decision and despite such situation, conditional admissions
were already given. During the extended period, even no
representation was submitted by the colleges in any form which
fact is not in dispute and as such when large scale irregularity
has taken place in respect of admission, no equity be shown
simply because some of the appellants are students. By
referring to page 30 onwards from compilation of Letters Patent
Appeal No.743 of 2021, it has been submitted that these
students who have been granted conditional admissions are not
meritorious in any form, on the contrary by granting such
conditional admissions, several meritorious students have been
deprived of, hence no lenient view may be taken more
particularly when learned Single Judge has considered after
hearing all the parties and after examining every details. Mr.
Joshi, in support of his submissions, has relied upon the
following decisions:
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(1) Decision dated 20.2.2020 passed by the Hon'ble Supreme
Court in the case of Union of India v. Federation of Self-
Financed Ayurvedic Colleges Punjab and others in Civil
Appeal No.603 of 2020;
(2) In the case of Abdul Ahad and others v. Union of India
reported in 2021 SCC OnLine 627;
22. In rejoinder to this, learned senior advocates Mr. Shalin
Mehta and Mr. Dhaval Dave have pointed out that here is a case
where the authority has taken a too technical view for the
academic year 2019-20 and learned Single Judge ought to have
considered sympathetically more particularly when law permits
to exercise discretion by virtue of proposition of law as laid
down by catena of decisions and further more when in other
States, views have been taken in favour of students and as such
requested to grant the reliefs as prayed for.
23. Having heard learned advocates appearing for the parties
and having gone through the material on record, for considering
the submissions of learned advocates appearing on behalf of
respective sides, first of all brief proposition of law laid down by
the Hon'ble Apex Court in series of decision deserves
consideration before coming to an ultimate conclusion. It has
been propounded by several decisions that as far as policy
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matters are concerned, normally the Courts should loath in
interfering and scope of judicial review would be very much
limited. Relevant observations contained in following decisions,
Court would deem it proper to quote hereunder:-
(1) Para 60.2 and 63 of the decision in the case of Small Scale
Industrial Manufactures Association (Registered) v.
Union of India and others reported in (2021) 8 SCC 511
read as under:
"60.2. It is neither within the domain of the courts nor the
scope of judicial review to embark upon an enquiry as to
whether a particular public policy is wise or whether better
public policy can be evolved. Nor are the courts inclined to
strike down a policy at the behest of a petitioner merely
because it has been urged that a different policy would have
been fairer or wiser or more scientific or more logical.
Wisdom and advisability of economic policy are ordinarily not
amenable to judicial review.
63. In the case of BALCO Employees' Union (Regd.)
(supra), this Court has observed that Wisdom and advisability
of economic policies are ordinarily not amenable to judicial
review unless it can be demonstrated that the policy is
contrary to any statutory provision or the Constitution. In
other words, it is not for the courts to consider relative merits
of different economic policies and consider whether a wiser or
better one can be evolved. It is further observed that in the
case of a policy decision on economic matters, the courts
should be very circumspect in conducting an enquiry or
investigation and must be more reluctant to impugn the
judgment of the experts who may have arrived at a conclusion
unless the court is satisfied that there is illegality in the
decision itself."
(2) Paragraphs 19 and 20 of the decision in the case of
Federation Haj PTOs of India v. Union of India reported
in (2020) 18 SCC 527 read as under:-
"19. The scope of judicial review is very limited in such matters.
It is only when a particular policy decision is found to be
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against a statute or it offends any of the provisions of the
Constitution or it is manifestly arbitrary, capricious or mala
fide, the On the contrary, views of the petitioners have not
only been considered but accommodated to the extent
possible and permissible. We may, at this junction, recall
the following observations from the judgment in
Maharashtra State Board of Secondary & Higher
Secondary Education v. Paritosh Bhupeshkumar Sheth4:
"16... The Court cannot sit in judgment over the wisdom of
the policy evolved by the Legislature and the subordinate
regulation-making body. It may be a wise policy which will
fully effectuate the purpose of the enactment or it may be
lacking in effectiveness and hence calling for revision and
improvement. But any drawbacks in the policy incorporated
in a rule or regulation will not render it ultra vires and the
Court cannot strike it down on the ground that in its
opinion, it is not a wise or prudent policy, but is even a
foolish one, and that it will not really serve to effectuate the
purposes of the Act. The Legislature and its delegate are
the sole repositories of the power to decide what policy
should be pursued in relation to matters covered by the Act
and there is no scope for interference by the Court unless
the particular provision impugned before it can be said to
suffer from any legal infirmity, in the sense of its being
wholly beyond the scope of the regulation-making power or
its being inconsistent with any of the provisions of the
parent enactment or in violation of any of the limitation
imposed by the Constitution."
20. We may also usefully refer to the judgment in State of
Madhya Pradesh v. Nandlan Jaiswal5. In this judgment,
licence to run a liquor shop granted in favour of A was
challenged as arbitrary and unreasonable. The Supreme
Court held that there was no fundamental right in a citizen
to carry on trade or business in liquor. However, the State
was bound to act in accordance with law and not according
to its sweet will or in an arbitrary manner and it could not
escape the rigour of Article 14. Therefore, the contention
that Article 14 would have no application in a case 4 (1984)
4 SCC 27 5 (1986) 4 SCC 566 where the licence to
manufacture or sell liquor was to be granted by the State
Government was negatived by the Supreme Court. The
Court, however, observed:
"34. "But, while considering the applicability of Article 14
in such a case, we must bear in mind that, having regard to
the nature of the trade or business, the Court would be
slow to interfere with the policy laid down by the State
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Government for grant of licences for manufacture and sale
of liquor. The Court would, in view of the inherently
pernicious nature of the commodity allow a large measure
of latitude to the State Government in determining its
policy of regulating, manufacture and trade in liquor.
Moreover, the grant of licences for manufacture and sale of
liquor would essentially be a matter of economic policy
where the Court would hesitate to intervene and strike
down what the State Government had done, unless it
appears to be plainly arbitrary, irrational or mala fide."
(3) Paragraph-18 of the decision in the case of State of Uttar
Pradesh State of Uttar Pradesh and others v. Subhash
Chandra Jaiswal and others reads as under:
"18. In this regard, another aspect needs to be noted. We have
already stated that some of the directions are in the nature
of legislation or policy. In Union of India and another v.
Deoki Nandan Aggarwal a three-Judge Bench has observed
that the power to legislate has not been conferred on the
courts and, therefore, the court cannot add words to a
statute or read words into it which are not there."
(4) Paragraphs 16 and 18 of the decision in the case of Satya
Dev Bhagaur and others v. The State of Rajasthan and
others reported in 2022 LiveLaw (SC) 177 read as under:-
16. It is trite that the Courts would be slow in interfering in the
policy matters, unless the policy is found to be palpably
discriminatory and arbitrary. This court would not interfere
with the policy decision when a State is in a position to
point out that there is intelligible differentia in application
of policy and that such intelligible differentia has a nexus
with the object sought to be achieved.
18. A three Judge bench of this Court in Sher Singh and Others
vs. Union of India and Others has observed thus:
"As a matter of fact the courts would be slow in interfering
with matters of government policy except where it is shown
that the decision is unfair, mala fide or contrary to any
statutory directions."
24. It has further been propounded that normally Court should
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not sit over the decision of experts and Court also cannot relax
the eligibility criteria already prescribed. Relevant observations
contained in paragraph-8 of the decision in the case of Vidhi
Himmat Katariya and others v. State of Gujarat and others
reported in (2019) 10 SCC 20, the Court would deem it proper
to quote hereunder:-
"8. Now so far as the submission on behalf of the petitioners
that while denying admission to the petitioners the State
Government and/or authorities have not considered the
relevant parameters and have not considered that the
respective petitioners are able to perform well is concerned,
it is required to be noted that in the present case all the
expert bodies including the Medical Board, Medical
Appellate Board and even the Medical Board of AIIMS, New
Delhi consisting of the experts have opined against the
petitioners and their cases are considered in light of the
relevant essential eligibility criteria as mentioned in
Appendix 'H' - 'Both hands intact, with intact sensation,
sufficient strength and range of motion'. Therefore, when
the experts in the field have opined against the petitioners,
the Court would not be justified in sitting over as an
appellate authority against the opinion formed by the
experts - in the present case, the Medical Board, Medical
Appellate Board and the Medical Board of AIIMS, New Delhi,
more particularly when there are no allegations of mala
fides."
25. In addition to it, whenever there is a public interest vis-a-
vis private interest conflict, what should be the approach of the
Court is already propounded by the Hon'ble Apex Court in the
case of Sayyed Ratanbhai Sayeed (Dead) Through Legal
representatives and others v. Shirdi Nagar Panchayat and
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Another reported in (2016) 4 SCC 631, paragraphs 58 and 59 of
which the Court deem it proper to quote hereunder:
"58. The emerging situation is one where private interest is pitted
against public interest. The notion of public interest
synonymises collective welfare of the people and public
institutions and is generally informed with the dictates of
public trust doctrine - res communious i.e. by everyone in
common. Perceptionally health, law and order, peace, security
and a clean environment are some of the areas of public and
collective good where private rights being in conflict
therewith has to take a back seat. In the words of Cicero "the
good of the people in the chief law".
59. The latin maxim "Salus Populi Est Suprema Lex" connotes
that health, safety and welfare of the public is the supreme in
law. Herbert Broom, in his celebrated publication, "A
Selection of Legal Maxims" has elaborated the essence
thereof as hereunder:
"This phrase is based on the implied agreement of every
member of the society that his own individual welfare shall, in
cases of necessity, yield to that of the community; and that his
property, liberty and life shall, under certain circumstances, be
placed in jeopardy or even sacrificed for the public good."
The demand of public interest, in the facts of the instant case,
thus deserve precedence."
26. In the light of the aforesaid proposition, a perusal of the
conclusion which has been arrived at by learned Single Judge
whether it conflicts with aforesaid proposition and background
of facts will have to be examined and for that purpose, we deem
it proper to first of all quote the conclusion arrived at by learned
Single Judge in paragraphs 7 to 9, which reads as under:-
"7 Considering the submissions made by the learned counsels
appearing for the petitioners, it will be necessary to appreciate
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the following contours of the controversy to come to a particular
decision.
(A) The relevant regulations which have been amended in the year
2018 categorically provide that in order to secure admission to
the BAMS / BHMS courses, a minimum cut off percentile in the
case of unreserved category concerned i.e. 50 th percentile would
be necessary to secure admission to the colleges.
(B) The present petitioners have not challenged the amendment to
the rules or assailed the stipulation prescribing a minimum
qualification.
(C) Letters of Admission by the respective colleges are on record.
For the purposes of brevity, one of the sample letters of
admission would need to be referred to. Reading the letter of
admission would indicate that the admission is provisional for
the year 2019-20 and this is a conditional admission on the last
date of the cut off dates and it is clearly informed that this is
subject to the Ministry of AYUSH's approval of reduction in cut
off marks. This is in the case of homeopathy colleges. Same is
the position in the case of admission letters of ayurvedic
colleges, where the admission letters clearly state that the
admission to the college is based on a presumption that since in
the last three years the Department of AYUSH has brought down
the cut off marks for NEET, we assume that the same shall be
adopted this year also. The college further goes on to write in
the admission letter that the college is therefore conditionally
admitting the students. The letter further stipulates that in case
the cut off marks did not come down, then the admission shall be
cancelled.
(D) Perusal of the records of the petitions would indicate that
though the proviso to the rule does stipulate a discretion with
the Council in consultation with the Central Government to
reduce the cut off percentile in case the seats are remaining
vacant, the discretion would automatically not give the students
seeking admission as a matter of right to command such
lowering of the percentile of marks.
(E) Since both the learned counsels for the respective parties have
relied on the decision in the case of Federation of Self
Financed Ayurved Colleges (supra), inasmuch as, Mr.Shalin
Mehta, learned Senior Advocate, would submit that the case
would squarely govern the petitioners and the petitions be
allowed, whereas the respondents have in fact, sought support
from the decision, it will be necessary to extensively refer to the
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decision therein. Before the Supreme Court, the validity of the
notifications issued by the Central Council of Indian Medicine
and Central Council of Homeopathy and minimum qualifying
marks was a subject matter of challenge. Amended regulations
then came into force in the year 2018 prescribing a uniform
entrance examination for all medical institutions. It appears that
one Guru Ravidas University issued a prospectus to admissions
for BAMS and BHMS course and the criteria for admission to
under graduates courses. When a petition was filed by the
management of the colleges, the High Court of Punjab &
Haryana passed an interim order on 06.09.2019, permitting
admissions of students to under graduate courses without
insisting on the students on getting minimum requisite
percentile in NEET. The High Court of Punjab then finally
dismissed the petitions by judgment and order dated 18.12.2019.
Special Leave Petitions were filed by the students as well as the
colleges against the said judgment. Admissions were granted to
the students on the basis of interim order of the High Court. The
question that arose before the Supreme Court for its
consideration was whether the students seeking admissions to
under graduate courses can be denied admission on the ground
that they did not take NEET or that they did not get the
minimum percentile prescribed under the regulations. Perusal of
the judgment of the Supreme Court would indicate that in the
petitions, the 2018 regulations were under challenge and the
prayer was to declare them as ultra vires the provisions of
Section 36 of the Central Council Act. It was in this context that
we need to read the judgment of the Supreme Court. Para 9 of
the judgment when read would indicate that the Supreme Court
opined that there was an authority for the respondent Ministry
to frame regulations. What was found before the Supreme Court
that a large number of seats in the institutions in Punjab were
vacant and it was under these circumstances on the basis of
interim orders, the institutions granted admissions. These
interim orders continued and it was under these circumstances
that the Supreme Court as a one time measure permitted the
institution under peculiar circumstance not to disturb the
admissions so granted. When para 12 is read, it is therefore
clear that the order was so passed as a one time exercise in
peculiar circumstances and not to be treated as precedent. The
Supreme Court observed that prescribing a minimum percentile
for admission to under graduate courses for the year 2019-2020
was appropriate. It observed that doctors who are qualified in
Ayurveda, Unani and Homeopathy streams also treat patients
and the lack of minimum standards of education would result in
half baked doctors being turned out of professional colleges. It
was clearly observed in para 12 of the decision that non
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availability of eligible candidates for admissions to AYUSH under
graduate courses cannot be a reason to lower the standards
prescribed by the Central Council for Admission.
(F) The similarity drawn by Mr. Shalin Mehta, learned Senior
Advocate, by submitting that since interim orders have been
passed in these petitions protecting the petitioners, the decision
of the Supreme Court would squarely govern, cannot be taken
into consideration. In context of the prayers made in the petition
what was protected by this Court pending hearing of the
petitions was that the conditional admission granted to the
petitioners would not be disturbed. The orders categorically said
so.
(G) Merely because interim orders have been passed which were ad-
interim ex-parte orders without the benefit of the arguments of
the other side on the basis of the replies filed and the pleadings,
such interim ex-parte orders cannot be said to be binding when
the court takes up the matter for final hearing. This is
particularly so when it is taken and appreciated in the facts of
the case.
(H) The colleges in which the petitioners secured admission had
issued letters unequivocally stating that the admissions were
conditional and on an assumption that the Ministry would lower
the percentile for the academic year 2019-20. The letters
further went on to state that in case the lowering of percentile is
not done, the admission of the students will stand cancelled. The
students accepted their admission with open eyes on the basis of
these conditional letters. Interim application granting them the
protection of not disturbing their admission subject to further
hearing would not give them a vested right in terms of the order
of the Supreme Court in the case of Federation of Self
Financed Ayurved Colleges (supra).
(I) The other distinction that needs to be drawn between the
petitioners and the case on hand before the Supreme Court is
that the notification of the regulations were challenged, which is
not the case on hand in the present petitions. The petitioners,
therefore, knowing fully well and having accepted the minimum
stipulation of qualifications cannot now turn around and say that
let these minimum qualifications not bind them in light of the
order of the Supreme Court. The order of the Supreme Court
was a one time measure not to be treated as a precedent as the
High Court of Punjab & Haryana had granted interim orders
permitting the colleges to admit. A thin line of distinction
therefore needs to be drawn here. The conditional admissions
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already granted by the colleges were protected. These
admissions were granted when the colleges and the
students/petitioners were fully aware of the potholes that could
follow in case the Ministry did not lower the standards of
qualifications. It is in light of these circumstances that the
relevant paragraph of the decision in the case of M.C.I vs.
Kalinga Institute of Medical Sciences (supra), which have
been quoted by this Court in Special Civil Application No. 7216
of 2020 needs to be considered. For the purposes of benefit of
this Court, para 12 of the decision in the case of Union of India
vs. Self Financed College (supra), is relied upon by this Court
in para 14 of the decision in SCA No. 7216 of 2020 which reads
as under:
"14 XXX XXX XXX XXX ......
12. Prescribing a minimum percentile for admission
to the Under Graduate Courses for the year 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 the AYUSH
Courses. We agree. Doctors who are qualified in
Ayurvedic, Unani and Homeopathy streams also treat
patients and the lack of minimum standards of
education would result in half baked doctors being
turned out of professional colleges. Non availability of
eligible candidates for admission to AYUSH Under
Graduate Courses cannot be reason to lower the
standards prescribed by the Central Council for
admission. However, in view of the admission of a large
number of students to the AYUSH under graduate
courses for the year 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. 15th October, 2019. The said direction
is also applicable to students admitted to Post-
Graduate Courses before 31 st October, 2019. This is
one-time exercise which is permitted in view of the
peculiar circumstances. Therefore, this order shall not
be treated as a precedent."
(J) Even in the case of M.C.I vs. Kalinga Institute of Medical
Sciences (supra), and the relevant paras 30, 31,31.1 and 31.2
read as under:
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30. Learned counsel for KIMS and the students contended
that unless this appeal is dismissed it will result in the
students suffering a loss of two years of their studies. This
may be so - but if such a situation has come to pass, KIMS is
entirely to be blamed. KIMS was specifically told not to admit
students by the Central Government in its letter dated 15th
June, 2015. Despite this KIMS persisted in litigation to
somehow or the other accommodate 50 additional students.
This was certainly not with a charitable motive. As an
institution that should have some responsibility towards the
welfare of the students, it would have been far more
appropriate for KIMS to have refrained from giving admission
to 50 additional students rather than being instrumental in
jeopardizing their career.
31. However, for the fault of KIMS, the students should not
suffer nor should KIMS get away scot free. KIMS must pay for
its inability to introspect and venture into adventurist
litigation. Accordingly, we direct as follows:
31.1 The admission granted to the 50 students pursuant to
the order of the High Court dated 25th September, 2015 and
the provisional permission granted by the Central
Government only on 28th September, 2015 shall not be
disturbed. How the students will complete their course of
studies without putting undue pressure on them is entirely for
the MCI and KIMS and other concerned authorities to decide.
31.2 Costs of Rs. 5 crores are imposed on KIMS for playing
with the future of its students and the mess that it has created
for them. The amount will be deposited by KIMS in the
Registry of this Court within six weeks from today. The
amount of Rs. 5 crores so deposited towards costs shall not be
recovered in any manner from any student or adjusted against
the fees or provision of facilities for students of any present or
subsequent batches."
(K) In the decision of Self Financed Colleges (supra), the
Supreme Court was also conscious of the fact that there should
not be half baked doctors.
8. All these parameters lead one to believe that merely
because interim orders were passed by this Court in these
petitions would not itself give a right to the petitioners to
continue to pursue their studies in the respective BAMS &
BHMS courses in light of a specific conditional admission
granted to them making them aware that in case the percentile
is not lowered their admission shall stand cancelled. In
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absence of a challenge to the regulations stipulating a
minimum qualification, no writ in the nature as prayed for, for
commanding the respondents to lower the qualifying percentile
in NEET 2019 - 2020 examinations can be granted.
8.1 There is a fine distinction between the petitioners before the
Supreme Court. Perusalof the facts of the case before the
Supreme Court wouldindicate that admissions were granted by
institutions. This has been extensively discussed in the earlier
part of the decision. In the facts of the present case, what is
evident is that the institutions have taken the liberty to admit the
students with a specific condition that "they assume that the
Ministry shall lower the percentile as was done in the past". On
the basis of such assumptions not only were the institution and
the students not entitled to claim equity on the ground of
warranting a discretion being exercised in their favour. Merely
because such an exemption was given in the preceding year i.e.
2018-19 and is so given in 2020-21 would not give the
institutions and the students a licence to claim benefit of an
assumption on the part of the institutions contrary to the rule
position sacrificing merit. Therefore, even if the benefit was to
be extended in terms of the interim orders and permit the
students to pursue the course as they have already undertaken a
year of study would tantamount to giving premium to an
admission secured contrary to the rule position. Thus, the
discretion so exercised by the Supreme Court as a one time
measure cannot be permitted to be perpetrated in case such
institutions continue to assume and usurp the powers of the
admission committee in securing admissions to courses such as
medical courses in light of the primacy of merit that is required.
The admissions therefore granted to the students needs to be
cancelled as the same is contrary to the eligibility criteria
prescribed for the concerned year. Granting indulgence only on
the pretext of a one time measure or not treating the present
case as a precedent would prompt and embolden educational
institutions to forego merit in admissions to such courses as
medical stream. The respective respondent colleges have not
appeared to contest the petitions, except in one petition
represented by Mr. B.T. Rao, learned advocate and least it be
said that the apprehension expressed by the University that
these are collusive petitions at the hands of colleges with the
students, may not be a submission which can entirely be
discounted.
9. Article 14 of the Constitution of India cannot be pleaded as is so
pleaded by the petitioners as compared to the students of the
dental colleges as it has been specifically pointed out in the
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affidavit-in-reply that the vacancies in the dental colleges are far
higher than those in the ayurveda and the homeopathy stream.
Even otherwise, if the authorities have sought to exercise
discretion to lower the percentile for the year 2018-19 and for
the years 2020-21 and not for the academic year 2019-20, the
fact that the petitioners ventured to secure conditional
admission in the colleges and the action of the colleges in
granting such admission on the face of they knowing that the
students were ineligible would not give the petitioners a vested
right to continue their studies and pursue their course when
admittedly in accordance with the rules stipulating a minimum
qualification the petitioners were not eligible to have secured
admission to such colleges."
27. From the aforesaid conclusion, learned Single Judge has in
categorical terms observed that relevant Regulations which
have been amended in the year 2018 providing minimum cut-off
percentile in case of unreserved category concerned, would be
necessary to secure admission to the colleges and at the same
time, this amendment has not been challenged by any of the
petitioners nor stipulation contained in the regulation is
agitated at any point of time which is prescribing minimum
qualification.
28. In addition to, learned Single Judge has also clearly
observed that though proviso to Rule does stipulate a discretion
with counseling in consultation with Central Government to
reduce cut-off percentile in case of seats which remained
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vacant, such discretion would not automatically give right to the
students to seek admission as a matter of right as if giving
directly effect of lowering percentile of marks and here, as we
have stated above, representation for reduction dated 7.11.2019
would indicate that till grant of admission, said minimum
qualifying marks were not lowered down by an authority. On the
contrary, the record indicates that similar such request was
turned down on 14.11.2019, i.e. prior to filing of petition.
29. Further, while coming to the conclusion, learned Single
Judge has also extensively examined the relevant decisions
which have been brought to the notice and has come to a
conclusion that Article 14 of the Constitution of India cannot be
pleaded as is tried to be pleaded by comparing the students of
Dental Colleges and ultimately, lowering down of percentile is
an domain of the authority and college cannot assume that
authority will reduce the minimum eligibility and thereby
granting conditional admission and as such on consideration of
overall material, learned Single Judge has specifically come to
the conclusion and thereby dismissed all the petitions.
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30. At this stage, we may remind ourselves to one of the
propositions laid down by the Hon'ble Apex Court, wherein it
has been observed that if after considering overall material on
record, a particular possible view is taken by learned Single
Judge, then in absence of any distinguishable material, such
view taken in exercise of discretion may not be substituted. We
deem it proper to quote relevant observation at this state to
further examine the contents of appellants, i.e. paragraph 5 of
the decision in the case of Management of Narendra &
Company Private Limited v. Workmen of Narendra & Company
reported in (2016) 3 SCC 340:-
"5. Once the learned Single Judge having seen the records had
come to the conclusion that the industry was not functioning
after January 1995, there is no justification in entering a
different finding without any further material before the
Division Bench. The Appellate Bench ought to have noticed
that the statement of MW 3 is itself part of the evidence
before the Labour Court. Be that as it may, in an intra-court
appeal, on a finding of fact, unless the Appellate Bench
reaches a conclusion that the finding of the Single Bench is
perverse, it shall not disturb the same. Merely because
another view or a better view is possible, there should be no
interference with or disturbance of the order passed by the
Single Judge, unless both sides agree for a fairer approach on
relief."
31. In the light of the aforesaid discussion and background of
facts, in substance what has been emerged from the record is
that conditional admissions have been granted by colleges
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without keeping in mind the minimum eligibility criteria as
prescribed in the regulations which are mandatorily applicable
and to be scrupulously observed, especially when same were not
challenged by petitioners as narrated by learned Single Judge. It
has further emerged from the record that similar request of
reduction was turned down by Government of India on
14.11.2019, i.e. prior to filing of the petitions, and very fact that
amendment was brought on the very next date of filing of
petitions would indicate a little awareness either of students or
of colleges about such rejection, still made persuasion to grant
ad-interim relief. It is a settled position of law that illegality
cannot be perpetuated, moment it is detected and as such
learned Single Judge has rightly rejected the petitions by
assigning proper reasons.
32. Further, as indicated above, the eligibility criteria whether
to be reduced or enhanced is the domain of experts which are
prescribed after detailed studies before bringing it and as such
in our considered opinion, it is not open for us to ignore such
eligibility criteria prescribed by the authority.
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33. In consideration of aforesaid material, it has further been
brought to our notice that majority students were not having
basic eligibility qualifications but we would not like to dwell
much into it since same would be in the realm of examining the
disputed questions of facts. So, in substance, what has been
emerged is that all these admissions have been granted by
colleges even on conditional basis which is de hors the eligibility
criteria which is mandatorily to be observed while granting
admission. Hence, since such admissions are granted de hors
the applicable criteria, no equitable consideration leans in
favour of the appellants.
34. Now, in the context of aforesaid discussion, perusal of the
decisions large in number pressed into service by learned
counsel appearing on behalf of appellants as well as learned
counsel appearing on behalf of colleges, but majority judgments
are in different factual backgrounds and in exercise of
jurisdiction of special power vested in the Hon'ble Apex Court.
The Hon'ble Supreme Court has taken a view which in our
considered opinion is not available to the High Courts and in
one of the decisions delivered by the Hon'ble Apex Court, view
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is taken by clearly observing that not to be treated as
precedent. So, perusal of each of the decisions would indicate
that when facts on hand are clearly emerging a situation where
in grant of admissions, regulations are not observed, i.e. in the
form of eligibility criteria, we are not inclined to extend undue
sympathy. Simply because under protection of the Court, for
some period, students have prosecuted their studies, that would
not be a ground to perpetuate illegality which has been crept in.
On the contrary, if this be allowed, several eligible and more
meritorious students would be at peril if this kind of action to be
condoned and ignored. Hence, we are not inclined to exercise
our equitable appellate jurisdiction.
35. Before adverting to the decisions cited by learned counsel
for the appellants and the colleges, a perusal of notification
dated 4.5.2018 which has amended the regulation of admissions
in Under-graduate courses Rules, 2017, relevant Rule pointed
out by learned counsel for the colleges is the substituted Rule
16, which reads as under:-
"16. Vacant Seats. If any government and management seat
remain vacant in the MBBS, BDS. BAMS, BHMS and BNAT
courses after completion of admission process and exhaustion
of merit list, such vacant seats shall be displayed on the official
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website and on the notice board of the office of the admission
committee and same shall be intimated to the colleges or
institutions wherein the seats are vacant. Such seats shall be
filled up by the respective institute as per the criteria laid
down by the respective Council/ Central Government for
respective year."
A perusal of this substituted Rule which is undisputably,
applicable and to be observed indicates that if any Government
or management seat remains vacant after completion of
admission process and exhaustion of merit list, such vacant
seats shall be displayed on the official website and on the notice
board of the office of the Admission Committee and same shall
be intimated to the colleges or institutions wherein the seats are
vacant and then such seats shall be filled up by the respective
institute as per the criteria laid down by the respective Council/
Central Government for respective year. This would not permit
the colleges to give a go-bye to the criteria which has been
prescribed by the Council or Central Government for the
respective year and that too even conditional admissions are
also to be given after full compliance of this substituted Rule-16
and as indicated by learned Single Judge, this has not been
challenged by the appellants in the original petitions and hence
so long as when this is in existence, it is obligatory on the part
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of colleges as well as the students to be abided by. Hence, when
this has been given a go-bye, there is hardly any circumstance
available in favour of the appellants to extend equitable
considerations, more particularly when students themselves
have taken conditional admissions.
36. Much more emphasis has been placed by learned senior
counsel Mr. Shalin Mehta on a decision in the case of Union of
India v. Federation of Self-financed Ayurvedic Colleges, Punjab
and others reported in 2020 (8) SCALE 177. A perusal of the
facts if to be looked into wherein High Court of Punjab &
Haryana passed an interim order on 6.9.2019 permitting the
admission of student to Under-graduate courses (BAMS, BHMS,
BUMS) without insisting on students getting minimum requisite
percentile in NEET and while examining the said issue, after
examining, the Hon'ble Apex Court on the contrary has in clear
terms indicated in paragraph 12 that this order shall not be
treated as a precedent and it is one time exercise which is
permitted in view of the peculiar circumstances and as such
when that be so, it is not open for the appellants to press the
said judgment as of right. On the contrary, in paragraph 12, it
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has been stated that prescribing minimum percentile for
admission to under-graduate courses for the year 2019-20 was
vehemently defended and the said stand of the Central
Government was accepted and observed on the contrary that
doctors who are qualified in Ayurvedic, Unani and Homeopathy
streams also treat patients and the back of minimum standards
of education would result in half-backed doctors being turned
out of professional colleges and 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 and keeping this observation as
one time measure in exercise of jurisdiction, the Hon'ble Apex
Court in such peculiar background has exercised the powers
and as such same cannot be applied as a straitjacket formula.
Said observations, as it appears, have been taken care of by
learned Single Judge as well. Para 12 of the said judgment reads
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
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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 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."
37. Yet, another decision which is tried to be pressed into
service is the decision in the case of The Pharmacy Council of
India v. Dr. S.K. Toshniwal Educational Trusts Vidarbha
Institute of Pharmacy and others reported in 2020 (5) SCALE
439. But, again a perusal of the same would indicate that
students were already admitted pursuant to order passed by the
concerned High Courts and interim orders were already made
final. Whereas here in the case on hand, admissions were from
beginning conditional, clearly indicated to the students right
from beginning and as such, the situation which was prevailing
in the aforesaid decision of Pharmacy of Council of India is not
possible to be applied here on the basis of the undisputed
position prevailing in the case on hand. If this be allowed, as per
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the wish of the appellants, same would not only perpetuate
illegality but would encourage the colleges and students to go
ahead with ineligible admissions and as such we would not like
to extend our equitable jurisdiction in favour of the appellants.
38. Even in one of the decisions delivered by the Hon'ble Apex
Court in the case of Association of Managements of
Homeopathic Medical Colleges of Maharashtra v. Union of India
and others in Civil Appeal No.1393 of 2019 dated 1.2.2019 for
the relevant academic year 2018-19, the Hon'ble Apex Court
while salvaging the situation since same was relating to afore-
mentioned academic year has clearly clarified in paragraph-7
that this order which is passed in peculiar background of facts
shall not be treated as precedent and no opinion is expressed on
introduction of minimum percentile eligibility. Paragraphs 6 and
7 we deem it proper to quote hereunder:-
"6. Though the last date for admission to the BHMS course was
15 th November, 2018, we are informed that the last date was
extended till 20th December, 2018 by the Allahabad High
Court. Though there is no agreement on the exact number of
vacant seats, it is common ground that there are vacant seats
for admission to the 1 st year BHMS course in the State of
Maharashtra. As there is no uniformity in the matter of
admission to the 1st year BHMS course for the year 2018-19,
as securing minimum marks in NEET is not required in some
States pursuant to orders of the High Courts, we are of the
opinion that the Appellants are entitled to the relief of
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admissions being made without reference to the letter dated
11th June, 2018 of Respondent No.1 and the consequential
notice of Respondent No.3. In other words, the Appellant-
Association should be permitted to make admissions to the 1st
year BHMS course for the academic session 2018-19 on the
basis of the eligibility criteria mentioned in the information
brochure dated 5 th February, 2018. A candidate who has
secured minimum marks in the NEET UG-2018 shall be
eligible for admission to the 1 st year BHMS course for the
academic year 2018-19.
7. As two months have passed after the last date of admission to
the 1st year BHMS course i.e. 15th November, 2018, we
direct the Appellants to complete the process of admissions
strictly on the basis of the merit by 15th February, 2019. The
Managements of the colleges are directed to hold extra
classes for students who will be admitted pursuant to this
order to comply with the requirements of minimum working
days. This order which is passed in the peculiar facts of the
case shall not be treated as a precedent. No opinion is
expressed by us regarding the introduction of the minimum
percentile as an eligibility criteria in the NEET examination."
39. There are several other judgments pressed into service,
but as stated above, background is altogether different than
what is on hand and therefore, on the basis of undisputed facts,
we are unable to apply the ratio laid down by all those decisions
which are pressed into service. We have perused all the
judgments and upon consideration of relevant facts and the
ratio, we are not in a position to apply the same here in the case
on hand and as such we find no lending support to the
appellants.
40. In furtherance of this discussion, learned senior counsel
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Mr. Dhaval C. Dave appearing on behalf of the colleges who
granted conditional admissions has also placed reliance upon
some of the decisions. First decision which has been pointed out
is in the case of Union of India v. Federation of Self-financed
Ayurvedic Colleges, Punjab and others reported in (2020) 12
SCC 115, wherein it has been observed that non-availability of
eligible candidates for admission to AYUSH courses cannot be a
reason to lower the standards prescribed by the Central Council
for admission. But, view taken was since by interim order, High
Court directed the students to continue was the circumstance
taken into consideration by the Hon'ble Apex Court as one time
measure in peculiar circumstance. As discussed above and
pointed out earlier, this is the case cited by learned senior
counsel Mr. Shalin Mehta. But, we refrain ourselves from
extending any equitable consideration since background of facts
is altogether different than the facts of the present case on
hand. A perusal of the letter of conditional admission would
clearly suggest the manner in which admissions are secured by
students and when with open eyes, students have availed
admissions, no undue sympathy deserves.
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41. There are other few decisions pointed out but as we have
clearly suggested above that we are in appellate jurisdiction and
found that view taken by learned Single Judge is a possible
view, when facts are different of both the cases, the cases cited
before us by learned senior counsel are of no assistance to
maintain and regularize the process of admission. After perusal
of all those decisions which are rather placed on record in large
numbers, but perusal of those decisions would be of no
assistance to assail the order in our considered opinion. Hence,
with a view to overburdening the present order, each and every
judgment is not being narrated in detail. Hence, none of the
decisions cited by learned counsel for the colleges are of any
assistance.
42. At this stage, we have perused the decisions cited by
learned counsel Mr. Siddharth Dave. We are of the view that
same are also not to be discussed at great length to avoid
overburdening of the present order, but we found that stand
taken by him is to some extent gets support. In the case which
has been decided by the Hon'ble Apex Court on 17.8.2021 in the
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case of Abdul Ahad and others vs. Union of India and others,
review petitions were filed in SLPs filed by Glocal University,
Glocal Medical College Super Specialty Hospital and Research
Center which were dismissed, wherein while dismissing the
review petitions, it was observed that students cannot be said to
be ignorant about notification issued by the State, no sympathy
can be shown to such students who have entered through
backdoor and here also, these students have secured their
admissions with open eyes on a conditional basis with full
knowledge and as such, they do not deserve any sympathy at
the hands of the Court. Mr. Siddharth Dave has also cited
several decisions delivered by this Court and list of judgments
has been placed on record, but has emphasized much on the
case of Sneha Saha and others v. The State of West Bengal and
others reported in 2014 SCC OnLine (Calcutta) 12119. Said
decision taken by Calcutta High Court is also after considering
series of decisions delivered by the Hon'ble Apex Court and
then has observed which we deem it proper to quote
hereunder:-
37. In MANU/SC/0287/2003 (2003) 5 SCC 413 it has been
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categorically stated that in case of conflict between law and
equity, the former shall prevail.
38. Courts are bound to apply the cardinal principles of justice,
equity and good conscience but without violating the law. In
the instant case any application of equity will be in violation
of law laid down by statute.
40. Through MANU/SC/0364/1993: 1993 (4) SCC 401 (Guru
Nanak Dev University v Parminder Kr. Bansal) and
MANU/SC/1047/1998: 1998 (5) SCC 377 (C.B.S.E. & Anr. v.
P. Sunil Kumar & Ors.) and as rightly observed in MANU/SC/
0658/2003: 2003 (7) SCC 719 (Regional Officer CBSE v. Ku.
Sheena Peethambaran & Ors.)
"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."
41. Plea of sympathy and concessions in the light of Rules staring
us in the face and against legal provisions has been
deprecated and any direction to the council to issue the
Provisional Registration Certificate will be in transgression of
the Act and the 1983 Regulations and the Court cannot be a
party to direct the Council to disobey the statute as that
would be destructive of the Rule of law.
43. (2010) 10 SCC 233 and MANU/SC/0088/2012: (2012) 3 SCC
430 is of no assistance to the appellants as equity was
exercised as a special case under Article 142 of the
Constitution of India by the Supreme Court of India in order
to do complete Justice. No such power is vested in the High
Court.
45. MANU/SC/0061/1975: AIR (1976) SC 376 is also
distinguishable as it was the university who had acquiesced
in the infirmities by grant of admission. In the instant case
the colleges were to give admission on basis of criteria. The
Homeopathic Council is to issue the Registration Certificate
while the admission is given by the colleges affiliated to the
West Bengal University of Health Science under the 1963 Act
and Regulations framed thereunder. Therefore the
regulations were to be followed by the colleges at the time of
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C/LPA/743/2021 CAV JUDGMENT DATED: 29/09/2023
undefined
grant of admission. In not doing so the colleges have acted
contrary to Statute and the Regulations.
43. In view of the aforesaid observations and discussion, we
are of the clear opinion that no undue sympathy is possible to be
extended to the appellants as the same would result in
frustrating the very purpose of prescription of minimum
eligibility criteria. Further, prescription of minimum eligibility
criteria is in the overall public interest and as such we are of the
opinion that if there is a conflict between private interest vis-a-
vis public interest, we deem it proper to give way to the public
interest, which is in favour of maintaining the standard of
education in the field of medical and paramedical stream with
regard to its process of admission.
44. Hence, no case is made out by the appellants to call for
any interference and as such since we found no error,
irregularity or perversity in any manner in an order passed by
learned Single Judge, we are inclined to affirm the view adopted
by learned Single Judge. Hence, we pass following order:
ORDER
(1) Present Letters Patent Appeals stand DISMISSED and as a consequent thereof, CAV judgment delivered Page 58 of 59 Downloaded on : Fri Sep 29 20:44:56 IST 2023 NEUTRAL CITATION C/LPA/743/2021 CAV JUDGMENT DATED: 29/09/2023 undefined by learned Single Judge dated 4.2.2021 in Special Civil Application No.20824 of 2019 and other cognate matters stands CONFIRMED. Notice discharged.
(2) No Order as to costs.
(3) Since main Letters Patent Appeals are dismissed, respective pending Civil Applications also do not survive and they stand disposed of. Interim relief, if any, stands vacated forthwith.
Sd/-
(ASHUTOSH SHASTRI, J) Sd/-
(DIVYESH A. JOSHI,J) FURTHER ORDER After pronouncement of the judgment, learned senior advocate Mr. Shalin Mehta appearing for appellants has made a request that operation and implementation of the present order be suspended for some reasonable period of time, so as to enable the appellants to approach higher Forum. Considering this request and same has not been stoutly opposed by the counsel appearing for the authorities, we deem it proper to suspend the operation and implementation of the present order for a period of SIX WEEKS from today.
Sd/-
(ASHUTOSH SHASTRI, J) Sd/-
(DIVYESH A. JOSHI,J) OMKAR Page 59 of 59 Downloaded on : Fri Sep 29 20:44:56 IST 2023