Uttarakhand High Court
Petitioners vs State Of Uttarakhand And Others on 19 October, 2022
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
THE CHIEF JUSTICE SHRI VIPIN SANGHI
AND
JUSTICE SHRI RAMESH CHANDRA KHULBE
19th October, 2022
Writ Petition (MS) No.1005 of 2022
Surajmal Medical College of Ayurved & Hospital and Another.
......Petitioners
Vs.
State of Uttarakhand and others. ... Respondents
Presence:-
Mr. Arvind Vashistha, learned Senior Counsel assisted by Mr. Ajay Joshi and Mr.
Hemant Mehra, learned counsel for the petitioners.
Mrs. Mamta Bisht, learned Deputy Advocate General for the State.
Mr. V.K. Kapurwan, learned Standing Counsel for Union of India.
Mr. Suyash Pant, learned counsel for respondent nos. 2 & 3.
Mr. Ramji Srivastava, learned counsel for respondent no. 5.
JUDGMENT:(Per Shri Vipin Sanghi, Chief Justice) The petitioners have preferred the present writ petition to seek the following reliefs:-
i. Issue a writ order or direction in the nature of mandamus directing the respondents to permit the petitioner no. 1 to complete/fill the 60 seats in B.A.M.S. Course (Ayurveda) for the academic year 2021-22 on the basis of minimum qualification as prescribed under National Commission for Indian System of Medicine Act, 2020.
ii. Issue a writ, order or direction in the nature of certiorari for quashing the Regulation 5(2) of National Commission for Indian System of Medicine (Minimum Standards of Undergraduate Ayurveda Education) Regulations-2022 (Annexure No. 8) which imposes a restriction that it shall be necessary for a candidate to obtain a minimum of 50th percentile in NEET in order to be eligible for admission to under-graduate course for an academic year, which is beyond jurisdiction and is illegal and arbitrary.
2. The case of the petitioners is that petitioners are academic institutions established to provide medical treatment under Ayurveda.
3. The submission of Mr. Vashishtha, learned Senior Counsel for the petitioner is that the aforesaid reliefs are being sought, since the National Commission for Indian System of Medicine, constituted under Section 3 of the National Commission for Indian System of Medicine Act, 2020 has failed to conduct the National Eligibility cum Entrance Test in terms of Section 14 of the said Act on its own.
4. Mr. Vashishtha submits that under Section 14 (1) of the said Act, a uniform National Eligibility-cum-Entrance Test for admission to the undergraduate courses in each of the disciplines of the Indian System of Medicine, in all medical institutions governed by the said Act, is required to be conducted.
5. Section 14 (2) provides that "the Commission shall conduct the National Eligibility-cum-Entrance Test in English and in such other languages, through such designated authority and in such manner, as may be specified by regulations".
6. Mr. Vashishtha submits that rather than conducting the uniform National Eligibility-cum-Entrance Test, in terms of Section 14 (1) on its own, the Commission has decided to rely upon the National Eligibility-cum-Entrance Test, conducted by the National Medical Council constituted under the National Medical Commission Act, 2019, which is similarly required to conduct a uniform test for grant of admission to the MBBS Courses under the Allopathic System of Medicine.
7. Mr. Vashishtha further submits that the said Test conducted by the National Medical Commission cannot be considered to be the uniform National Eligibility-cum-Entrance Test conducted by the National Commission for Indian System of Medicine. There is no power of delegation conferred on the National Commission for Indian System of Medicine, so as to delegate its function of conducting the uniform National Eligibility-cum-Entrance Test on the National Medical Commission constituted under the National Medical Commission Act, 2019.
8. On the aforesaid premise, the submission of Mr. Vashistha is that since the National Eligibility-cum-Entrance Test conducted by the National Medical Commission cannot be considered 2 to be the uniform National Eligibility-cum-Entrance Test for admission to undergraduate courses in each of the disciplines of the Indian System of Medicine in medical institutions governed by the National Commission for Indian System of Medicine Act, 2020, the petitioner no.1 should be permitted to fill up the 60 seats in B.A.M.S. Course (Ayurveda) for the academic year 2021-22, on the basis of minimum qualifications prescribed under the aforesaid Act, and the restriction that the candidate should have obtained minimum 50th percentile in the NEET examination conducted by the National Medical Commission in order to be eligible for admission to undergraduate course, should be quashed.
9. On the other hand, the respondent has sought to place reliance on the order dated 12.04.2022, passed by the Division Bench of the Delhi High Court in W.P. (C) 5963/2022, Ravi Kumar & Anr. Vs. Union of India & Ors. Learned counsel submits that the Division of the Delhi High Court (to which one of us-Mr. Vipin Sanghi, the Chief Justice was a Party), has rejected the submission that the NEET examination conducted by the National Medical Commission constituted under the National Medical Commission Act, 2019 cannot be treated as the NEET examination required to be conducted under the National Commission for Indian System of Medicine Act, 2020. Reliance is also placed by the respondent on the proviso to Section 14 (1) of the National Medical Commission Act, 2019 to submit that the NEET examination conducted by the National Medical Commission would be applicable for grant of admission even in respect of medical institutions covered by the National Commission for Indian System of Medicine Act, 2020.
10. Having heard learned Senior Counsel for the petitioner and learned counsels for the respondents, and perused the aforesaid order passed by the Delhi High Court and examined the submission of Mr. Vashishtha, premised on language used in Section 14 (2) of the National Commission for Indian System of Medicine Act, 2020, we find no merit in the aforesaid submission of Mr. Vashishtha.
311. We may, first deal with the submission of learned counsel for the respondents premised on the language of proviso to Section 14(1) of the National Medical Commission Act, 2019. Section 14 of the National Medical Commission Act, 2019, reads as follows:-
"14. National Eligibility-cum-Entrance Test. - (1) There shall be a uniform National Eligibility-cum Entrance Test for admission to the undergraduate and postgraduate super-speciality medical education in all medical institutions which are governed by the provisions of this Act:
Provided that the uniform National Eligibility-cum-Entrance Test for admission to the undergraduate medical education shall also be applicable to all medical institutions governed under any other law for the time being in force.
(2) The Commission shall conduct the National Eligibility-cum-
Entrance Test in English and in such other languages, through such designated authority and in such manner, as may be specified by regulations.
(3) The Commission shall specify by regulations the manner of conducting common counselling by the designated authority for admission to undergraduate and postgraduate super-speciality seats in all the medical institutions which are governed by the provisions of this Act:
Provided that the designated authority of the Central Government shall conduct the common counselling for all India seats and the designated authority of the State Government shall conduct the common counselling for the seats at the State level."
12. The submission of learned counsel for the respondents premised on the proviso to Sub-section (1) of Section 14 of the National Medical Commission Act, 2019 is that the uniform National Eligibility-cum-Entrance Test for admission to the undergraduate medical education is also applicable to all medical institutions governed under any other law for the time being in force. Therefore, according to the respondents, the said NEET examination conducted by the National Medical Commission would be applicable for the purpose of granting admission to the undergraduate courses in the disciplines of the Indian System of Medicine.
13. We do no find any merit in the submission of the respondents.
14. The proviso enables the uniform NEET examination conducted for admission to undergraduate medical education, "to all 4 medical institutions governed under any other law for the time being in force". "Medical institution" is defined in Section 2 (i) of the National Medical Commission Act, 2019 to mean "any institutions within or outside India which grants degrees, diplomas or licences in medicine and include affiliated colleges and deemed to be Universities;". The expression "medicine" itself is defined in Section 2 (j) to mean "modern scientific medicine in all its branches and includes surgery and obstetrics, but does not include veterinary medicine and surgery;".
15. On a reading of the aforesaid definitions of the expression "medicine" and "medical institution", it is clear that the medical institutions covered under the Indian System of Medicine are outside the scope of the proviso to Section 14 (1) of the National Medical Commission Act, 2019, as the medical institutions imparting undergraduate courses in disciplines of Indian System of Medicine cannot be considered as imparting "modern scientific medicine"
education.
16. If the proviso to Section 14 (1) of the National Medical Commission Act were to cover even medical institutions imparting undergraduate courses in disciplines of Indian System of Medicine, there was no need for the Parliament to provide in Section 14 (1) and 14 (2) of the National Commission for Indian System of Medicine Act, 2020, that there shall be the uniform National Eligibility-cum-Entrance Test for admission to the undergraduate courses in each of the disciplines of the Indian System of Medicine in medical institutions governed by the said Act, and the Commission shall conduct the National Eligibility-cum-Entrance Test.
17. Pertinently, the Indian System of Medicine itself is defined in the National Commission for Indian System of Medicine Act, 2020 to mean "Ashtang Ayurveda, Unani, Siddha and Sowa- Rigpasystems of medicine supplemented by such modern advances, scientific and technological development as the Commission may, in consultation with the Central Government, declare by notification 5 from time to time".
18. Thus, ipso facto, the NEET examination conducted by the National Medical Commission under the National Medical Commission Act, 2019 cannot be considered to be in the NEET examination, for the purpose of Section14 (1) & 14 (2) of the National Commission for Indian System of Medicine Act, 2020.
19. The aforesaid, however, does not mean that the National Commission for Indian System of Medicine cannot decide to adopt the NEET examination conducted by the National Medical Commission under the National Medical Commission Act, 2019, as the NEET examination for the purpose of Section 14 (1) & 14 (2) of the National Commission for Indian System of Medicine Act, 2020. Section 14 (1) and 14 (2) of the National Commission for Indian System of Medicine Act, 2020 read as follows:
"14. National Eligibility-cum-Entrance Test- (1) There shall be a uniform National Eligibility-cum-Entrance Test for admission to the undergraduate courses in each of the disciplines of the Indian System of Medicine in all medical institutions governed under this Act:
Provided that National Eligibility-cum-Entrance Test shall be exempted for students who have taken admission in--
(i) Pre-tib for Bachelor of Unani Medicine and Surgery; and
(ii) Pre-Ayurveda for Bachelor of Ayurvedic Medicine and Surgery.
(2) The Commission shall conduct the National Eligibility-
cum-Entrance Test in English and in such other languages, through such designated authority and in such manner, as may be specified by regulations."
20. The words "Commission shall conduct the National Eligibility-cum-Entrance Test......................" used in Section 14 (2) of the National Commission for Indian System of Medicine Act, 2020 are wide enough to mean that the said Commission shall either itself conduct, or get the said NEET examination conducted through another specialized agency. It appears that the National Commission for Indian System of Medicine found the NEET examination conducted by the National Medical Commission as being a good enough NEET examination for grant of admission to medical institutions covered by 6 the National Commission for Indian System of Medicine Act, 2020 to the undergraduate courses in each of the disciplines of the Indian System of Medicine.
21. Pertinently, the eligibility conditions for the candidates who can appear in either of theses examinations are the same, they have to study the same subjects i.e. Biology, Physics, Chemistry before becoming eligible to participate in either of these examinations. Thus, the syllabus for the NEET examination - whether it is conducted under the National Medical Commission Act, 2019, or under the National Commission for Indian System of Medicine Act, 2020 is the same. In this background, it only made sense for the National Commission for Indian System of Medicine, to treat the NEET examination conducted by the National Medical Commission, as the NEET examination for the purpose of Section 14 (1) and 14 (2) of the National Commission for Indian System of Medicine Act, 2020, as that saves replication of the same exercise and saves wasteful expenditure of money, time and human resource.
22. For the aforesaid reasons, we reject the submission of Mr. Vashishtha. As the aforesaid submission is the only basis for claiming the reliefs sought in the writ petition, we dismiss this petition.
23. Parties to bear their respective costs.
________________ VIPIN SANGHI, C.J.
________________________ RAMESH CHANDRA KHULBE, J.
Dated: 19th October, 2022 AK/BS 7