Gujarat High Court
Association Of Self Financed Ayurveda ... vs State Of Gujarat on 25 September, 2019
Equivalent citations: AIRONLINE 2019 GUJ 718
Author: Bela M. Trivedi
Bench: Bela M. Trivedi
C/SCA/3531/2019 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 3531 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 3532 of 2019
With
R/SPECIAL CIVIL APPLICATION NO. 2411 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS.JUSTICE BELA M. TRIVEDI Sd/-
==========================================================
1 Whether Reporters of Local Papers may be allowed to
see the judgment ? YES
2 To be referred to the Reporter or not ?
YES
3 Whether their Lordships wish to see the fair copy of the
judgment ? YES
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any NO
order made thereunder ?
==========================================================
ASSOCIATION OF SELF FINANCED AYURVEDA COLLEGES OF
GUJARAT
Versus
STATE OF GUJARAT & 1 other(s)
==========================================================Appear
ance:
In SCA No.3531 and 3532 of 2019
MR DHAVAL C. DAVE, SR. ADVOCATE with MR UDIT N VYAS(9255) for the
Petitioner(s) No. 1
MS MANISHA L. SHAH, GOVERNMENT PLEADER(1) for the Respondent(s)
No. 1
MR SIDDHARTH DAVE with MR DEVANG VYAS(2794) for the
Respondent(s) No. 3
MS MANISHA L. SHAH, SR. ADVOCATE with MR. KM ANTANI(6547) for the
Respondent(s) No. 2
Page 1 of 39
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C/SCA/3531/2019 CAV JUDGMENT
In SCA No.2411 of 2019
MR BT RAO for the Petitioner(s) No. 1
MS MANISHA L. SHAH, GOVERNMENT PLEADER(1) for the Respondent(s)
No. 1
MR AR THACKER for the Respondent No.4
MR YASH NANAVATY for Respondent No.6
MR SIDDHARTH DAVE with MR DEVANG VYAS(2794) for the
Respondent(s) No. 3
MS MANISHA L. SHAH, SR. ADVOCATE for the Respondent(s) No. 3
==========================================================
CORAM: HONOURABLE MS.JUSTICE BELA M. TRIVEDI
Date : 25/09/2019
CAV JUDGMENT
1. There being commonality of facts and of legal issues involved in all the three petitions, they were heard together with the consent of the learned Advocates for the parties, and therefore, this common judgement is being delivered.
2. Special Civil Application No.3531 of 2019 has been filed by the Association of Self-Financed Ayurveda Colleges of Gujarat and other three Ayurveda Colleges, and Special Civil Application No.3532 of 2019 has been filed by the Swanirbhar Homoeopathic Medical College Sanchalak Mahamandal, a Society registered under the Societies Registration Act, 1860, as also a Page 2 of 39 Downloaded on : Sat Sep 28 00:18:19 IST 2019 C/SCA/3531/2019 CAV JUDGMENT Public Trust registered under the provisions contained in Bombay Public Trust Act, 1950. In SCA No.3531 of 2019 mainly following prayers are sought:-
"19 (a) That this Hon'ble Court may be pleased to issue a writ of mandamus or any other appropriate writ, order of direction, quashing and setting aside the communication dated December 18, 2018 (Annexure-L) issued by Respondent No.2 Committee, as being violative of Rule 16 of the Gujarat Professional Medical Educational Courses (Regulation of Admission in Undergraduate Courses) Rules, 2017 (as amended) and thereupon, be pleased to issue a writ of mandamus or any other appropriate writ, order of direction, directing Respondent No.2 Committee to issue necessary clarification to its communication dated December 18, 2018 (Annexure-L) permitting students who have been granted admission to B.A.M.S., course for the academic year 2018- 19 following the minimum eligibility criteria prescribed by CCIM under applicable regulations to continue with their studies."
3. Similar prayers have been sought in SCA No.3532 of 2019 by the petitioner Society on behalf of its member Colleges in respect of the admissions granted by them in the BHMS Course.
4. Special Civil Application No.2411 of 2019 has been filed by the petitioner students, who had passed 12th Standard Examinations with the subject of Chemistry, Physics and Biology from Page 3 of 39 Downloaded on : Sat Sep 28 00:18:19 IST 2019 C/SCA/3531/2019 CAV JUDGMENT the Gujarat Board in the academic year 2017-18, however had not qualified the NEET. They have mainly prayed for the following reliefs:-
"32. (B) To issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction by quashing and setting aside the letters dated 11.6.2018, 26.10.2018 and 1.11.2018 issued by the Government of India - Department of AYUSH - respondent No.2 and consequentially advertisement published by the ACPC - respondent No.3 on its website, in view of the judgements of the Hon'ble Gujarat High Court, Hon'ble Rajasthan High Court and Hon'ble Patana High Court and further be pleased to direct the respondent No.4 - Saurashtra University to accept the enrollment form of the present petitioners, for the reasons stated in the memo of the petition and in the interest of justice;"
5. For the sake of convenience the facts as narrated in Special Civil Application No.3531 of 2019 are taken into consideration. 5.1 The petitioner No.1 is an Association of Self-Financed Ayurveda Colleges in the State of Gujarat imparting education in the discipline of Ayurveda at the level of Graduation and Post Graduation and the petitioner Nos.2 to 4 are the Member Colleges of the petitioner No.1 and are engaged in imparting education in the discipline of Ayurveda inter alia at the level of Page 4 of 39 Downloaded on : Sat Sep 28 00:18:19 IST 2019 C/SCA/3531/2019 CAV JUDGMENT Graduation, leading to the educational qualification of BAMS and MD (Ayu). The respondent No.1 - the State of Gujarat, through its Health and Family Welfare Department looks after the field of education in the discipline of Ayurveda at various levels in the State of Gujarat. The respondent No.2 Admission Committee for Professional Under-Graduate Medical Education Courses is the body constituted under Section 4 of the Gujarat Professional Medical Educational Colleges or Institutions (Regulation of Admissions and Fixation of Fees) Act, 2007 (hereinafter referred to as "the Act of 2007"). The respondent No.2 Committee regulates the process of admission inter alia in respect of Self-Financed Colleges in the State of Gujarat. 5.2 The Gujarat Professional Medical Educational Courses (Regulation of Admissions in Under- Graduate Courses) Rules of 2017 (hereinafter referred to as "the Admission Rules") have been framed by the State of Gujarat in exercise of the powers conferred under Section 20(1) read with Section 4 of the Act of 2007, to regulate Page 5 of 39 Downloaded on : Sat Sep 28 00:18:19 IST 2019 C/SCA/3531/2019 CAV JUDGMENT admission to the First Year of the professional medical education, including BAMS. 5.3 For the purpose of admission in BAMS Course in the State of Gujarat for the academic year 2018-19, following eligibility criteria was prescribed under Rule 4(5) of the Admission Rules for the Centralized Admission Process:-
"4(5) Minimum qualifying standard for admission:-
No candidate shall be admitted in MBBS, BDS, BAMS, BHMS and BNAT courses in Government Seats, Management Seats, and NRI seats unless he/she possesses minimum qualifying standard in HSC examination and NEET of the current academic year, as may be decided by the respective Council/Central Government and fulfills eligibility criteria under these rules."
5.4 The Schedule-I of the Indian Central Council (Minimum Standard of Education of Indian Medicines) Regulations 1986 (hereinafter referred to as "the said Regulations of 1986), prior to the Amendment of 2018 provided for minimum eligibility criteria for the purpose of admission to BAMS course for the academic year 2018-19, according to which the minimum Page 6 of 39 Downloaded on : Sat Sep 28 00:18:19 IST 2019 C/SCA/3531/2019 CAV JUDGMENT th eligibility criteria was 12 Standard i.e. HSC or equivalent in the Science Stream with minimum marks in Physics, Chemistry and Biology. 5.5 Thus, in the State of Gujarat for the purpose of securing admission in BAMS course for the academic year 2018-19, a higher eligibility criteria was prescribed by way of introducing NEET as an additional eligibility criteria over and above the minimum eligibility criteria prescribed by the Central Council of Indian Medicine (CCIM).
5.6 Rule 16 pertaining to the vacant seats of the Admission Rules, prior to amendment and after the amendment, read as under:-
"Prior to Amendment:
Vacant Seats:- (1) 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 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 the State Government may seek a new list of candidates from the Ministry of Health & Family Welfare. Government of India for relaxation Page 7 of 39 Downloaded on : Sat Sep 28 00:18:19 IST 2019 C/SCA/3531/2019 CAV JUDGMENT of the eligibility criteria.
(2) For other courses, Colleges or Institutions shall admit the candidates on the basis of inter-se merit of the applicants; subject to the eligibility criteria, in respect of the course the candidate is granted admission, as laid down by the respective Council or as the case may be, the respective University. The vacant seats shall be filled by giving priority to the candidates belonging to Gujarat State.
Amended Provision:
16. Vacant seats:- If any government and management seat remain 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. Such seats shall be filled up by the respective institute as per the criteria laid down by the respective council/Central Government."
5.7 As per the further case of the petitioners, the common counseling for BAMS course was commenced on August 22, 2018 and thereafter two additional rounds of common counseling were conducted from September 19, 2018 to September 28, 2018 and from October 21, 2018 to October 26, 2018. Since at the relevant point of time, the last date for granting admission was notified to be October 30, 2018, on October 27, 2018, the seats that were not filled during the Page 8 of 39 Downloaded on : Sat Sep 28 00:18:19 IST 2019 C/SCA/3531/2019 CAV JUDGMENT said three rounds of common counseling were declared as vacant seats as per the Notice published in the newspaper (Annexure-E).
According to the petitioners, as per the said Notice/Notification all the Institutions were permitted to fill up the vacant seats as per the eligibility criteria prescribed by CCIM. Therefore, the Member Colleges of the petitioner No.1 had filled up vacant seats between the period from October 27, 2018 to October 30, 2018. In the meantime, on October 29, 2018, the initial deadline for grant of admission to the BAMS course was extended by the Ministry of Ayush till November 15, 2018 (Annexure-F). The cut-off marks for admission to the BAMS course through NEET-UG-2018 for being included in the merit list was reduced by the Ministry of Ayush th th from 50 percentile to 35 percentile vide communication dated November 1, 2018 (Annexure- G).
5.8 Upon receipt of the revised cut-off criteria, another round of common counseling was conducted by the respondent No.2 Admission Page 9 of 39 Downloaded on : Sat Sep 28 00:18:19 IST 2019 C/SCA/3531/2019 CAV JUDGMENT Committee for the vacant seats, however, the Self-Financed Colleges of the State of Gujarat were not included by the respondent No.2 Admission Committee in the said round of common counseling. Thus, by conducting an additional common counseling round, only for the Government Ayurveda Colleges, the respondent No.2 Committee provided the Government Colleges with an undue advantage by enabling them to fill up all their vacant seats through Centralized Admission Process.
5.9 Thereafter on November 3, 2018 the respondent No.2 Committee issued a communication to the Member Colleges of the petitioner No.1 along with a merit list of students directing the colleges and the institutions to fill up the vacant seats as per the merit list of students enclosed. The said merit list was based on the reduced cut-off marks for NEET 2018 notified by the Ministry of Ayush. According to the petitioners, the said directive of the respondent No.2 was in contradiction with the mandate of Rule 16 of the Admission Rules. The Page 10 of 39 Downloaded on : Sat Sep 28 00:18:19 IST 2019 C/SCA/3531/2019 CAV JUDGMENT petitioner, therefore, addressed a communication dated November 22, 2018 upon the Principal Secretary of the respondent No.2 lodging its objections against the directive issued on November 3, 2018 and urging the respondent No.2 Committee to approve the admissions granted following the mandate of Rule 16 of the Admission Rules as also by following eligibility criteria prescribed under the Regulations 1986. The Member Colleges of the petitioner No.1 thereafter were communicated vide the general communication on December 18, 2018 by the respondent No.2 Committee that all the admissions for the academic year 2018-19 must be granted in accordance with the eligibility criteria notified by the Ministry of Ayush under NEET-UG-2018. Being aggrieved by the same, the petition has been filed seeking afore-stated reliefs.
6. The Special Civil Application No.3532 of 2019 has been filed raising similar contentions, however, with regard to the BHMS course.
7. The respondents, challenging the very Page 11 of 39 Downloaded on : Sat Sep 28 00:18:19 IST 2019 C/SCA/3531/2019 CAV JUDGMENT maintainability of the petitions, have filed their respective replies contending inter alia that the petitions are thoroughly misconceived, misconstrued and not tenable at law. The petitioner Institutions have without following the admission procedure had admitted the students illegally which show that they have scant regards for law. It is further contended inter alia that the last date of admission was 30.10.2018, however, before the said date on 26.10.2018, the said cut-off was extended to 15.11.2018 and the same was informed to all the State authorities as well as to all the Institutions by uploading the same on the website of Ministry of Ayush. Thereafter on 1.11.2018 the Ministry of Ayush had reduced the minimum qualifying mark for NEET-UG 2018 from th th 50 percentile to 35 percentile and accordingly the respondent No.2 had conducted another round of counseling for the admission at the reduced percentile. All the institutions were required to follow the said procedure and if the institutions had admitted the students on their own without following the prescribed procedure, Page 12 of 39 Downloaded on : Sat Sep 28 00:18:19 IST 2019 C/SCA/3531/2019 CAV JUDGMENT the same could not be termed as valid admissions. When the cut-off date was extended up to 15.11.2018 and the same was uploaded on website on 26.10.2018, there was no reason for the petitioner institutions to fill the vacant th th seats on their own on 27 or 28 October, 2018. The respondents have also relied upon the decision of the Supreme Court to contend that for the admissions to any professional institutions, merit must play an important role and that the High Court should not regularize the admissions without regard to the eligibility of the candidates.
8. So far as SCA No.2411 of 2019 is concerned, the same has been filed by the students, who had not qualified NEET. Apart from the fact that none of the said petitioners had qualified NEET Examination, they were duly intimated by the respondent No.5 college on 27.12.2018 about the circular dated 24.12.2018 issued by the respondent Saurashtra University that their admissions were liable to be cancelled in view of the said circular. Despite the said position, Page 13 of 39 Downloaded on : Sat Sep 28 00:18:19 IST 2019 C/SCA/3531/2019 CAV JUDGMENT the respondent No.5 college in the said petition permitted the said petitioners to attend the classes and filed the petition in February 2019 after the prescribed last date i.e. 22.1.2019 for enrollment with the University had expired.
9. Learned Sr. Advocate Mr. D . C. Dave for the petitioners in Special Civil Application No.3531 of 2019 and Special Civil Application No.3532 of 2019 submitted that Rule 4 of the Rules of 2017 prescribed eligibility criteria for admission to various medical courses, including BAMS and BHMS Courses, qualifying percentile at the NEET as an additional eligibility over and above the th minimum eligibility of passing 12 Standard with minimum 50% marks in the concerned subjects prescribed by the CCIM for BAMS Course and th simple passing at 12 Standard prescribed by CCH for BHMS course. He further submitted that Rule 16 of the Rules of 2017 prescribed the modality for filling up vacant seats, which provided inter alia that the seats remaining vacant after the competition of admission process and exhaustion of merit list by the respondent No.2 Page 14 of 39 Downloaded on : Sat Sep 28 00:18:19 IST 2019 C/SCA/3531/2019 CAV JUDGMENT Committee shall be permitted to be filled in by the concerned colleges directly and for the same, the respondent No.1 - State would seek for relaxation of eligibility criteria from the respondent No.3 - Union of India, however, for the academic year 2018-19, the said Rule 16 was amended, and as per the amended version, the seats remaining vacant after completion of the admission process and the exhaustion of the merit list by the respondent No.2 Admission Committee, were to be filled in directly by the concerned colleges by following the eligibility prescribed by the concerned Council or the Central Government.
10. Mr.Dave further submitted that so far as the facts of the present cases are concerned, the admission process undertaken by the respondent No.2 Committee on the basis of the merit list prepared by following the said Rule 4 was concluded on October 26, 2018 with the display of allotment of seats based on the choice filling of seats done by the concerned students. The last date for reporting by the students for Page 15 of 39 Downloaded on : Sat Sep 28 00:18:19 IST 2019 C/SCA/3531/2019 CAV JUDGMENT admission based upon such allotment was October 26, 2018. On October 25, 2018 the respondent No.2 Committee published a notice on the website inter alia declaring that the seats remaining vacant upon the conclusion of the admission process will be filled in by the concerned college directly after October 27, 2018 by following the eligibility criteria prescribed by the concerned Councils. Hence, the concerned petitioner colleges filled up vacant seats by following the minimum eligibility criteria th prescribed by the concerned Councils between 27 th October, 2018 to 30 October, 2018, as the cut- off date for the admissions as prescribed by the th respondent No.3 - Union of India was 30 October, 2018. The respondent No.3 Union of India thereafter extended the date for admission th to 15 November, 2018, which was followed by reduction in qualifying percentile at NEET. He further submitted that the respondent No.2 Committee thereafter conducted an additional round of counseling based on reduced qualifying percentile at NEET, however, it was confined only to Government colleges, because prior Page 16 of 39 Downloaded on : Sat Sep 28 00:18:19 IST 2019 C/SCA/3531/2019 CAV JUDGMENT thereto, the self-financed colleges were permitted to fill up vacant seats under the said Rule 16. It was only after the competition of the said additional round, the respondent No.2 Committee issued communication dated 3.11.2018, directing the self-financed colleges to fill up vacant seats by following reduced qualifying percentile for NEET as prescribed by the respondent No.3. According to Mr.Dave, the said communication was in contradiction to the Rule 16, and therefore, liable to be set aside. He relied upon the unreported decision of the Division Bench in case of Association of Self financed Ayurveda Colleges of Gujarat Versus State of Gujarat in Special Civil Application No.22606 of 2017 and others decided on 9.5.2018 to submit that when it comes to filling up vacant seats under the said Rule 16, only minimum eligibility prescribed by the concerned Council is required to be followed. He also relied upon the order passed by the Supreme Court in Civil Appeal No.1393 of 2019 to submit that the Supreme Court permitted even the admission on regular seats in regular round of Page 17 of 39 Downloaded on : Sat Sep 28 00:18:19 IST 2019 C/SCA/3531/2019 CAV JUDGMENT counseling to the students, who did not qualify NEET, and that other High Courts had also followed such a course. Mr. Dave has provided the list of non-NEET qualified students admitted on vacant seats for BHMS and BAMS courses.
11. Learned ASG Mr.Devang Vyas appearing with Mr.Siddharth Dave for the respondent No.3 Union of India, however, vehemently submitted that none of the petitioner Institutions was permitted by the Admission Committee or by the Ministry of Ayush to admit the students without following NEET criteria. It was only after the completion of six rounds of admission, the vacant seats were surrendered to the concerned Institutions for filling up the same as per the Regulations and as per the criteria laid down by the Ministry of Ayush. The actual date of completion of admission process was 2.11.2018 and thereafter on 3.11.2018 the respondent Committee had published a letter informing the Ayurveda as well as Homeopathy Colleges to fill up vacant seats as per the merit list and as per the guidelines issued by the Ministry of Ayush, Page 18 of 39 Downloaded on : Sat Sep 28 00:18:19 IST 2019 C/SCA/3531/2019 CAV JUDGMENT and therefore, the contention of the petitioners that the admission process got over on 27.10.2018 was contrary to the record. The petitioners have admitted the students illegally and without following any due process of admission, and therefore, such admissions cannot be ratified. According to him, Rule 4 of the said Rules of 2017 had made the passing of NEET compulsory for the purpose of admission in BAMS and BHMS courses and in view of the said Rules, the directions were issued by the Ministry of Ayush, which have remained unchallenged by the petitioners. Rule 16 of the said Rules also provided that if any seats remained vacant after the competition of admission process and exhaustion of merit list, which in the present case was after 3.11.2018, such seats could be filled up by the respective Institutions as per the criteria laid down by the respective Councils/Central Government as per the merit list. Hence, the petitioner Institutions could not have admitted the students before the admission process was over and merit list was exhausted.
Page 19 of 39 Downloaded on : Sat Sep 28 00:18:19 IST 2019 C/SCA/3531/2019 CAV JUDGMENT
12. Learned Sr. Advocate Ms.Manisha L. Shah for the respondent No.2 Committee placing heavy reliance on the provisions contained in the Act of 2007 and in Rules 2017 submitted that the said provisions eliminated the presumption for permitting admissions dehors the minimum eligibility criteria prescribed in Rule 4 and/or by the Central Government. According to her, vacant seats as referred in Rule 16 of the Rules of 2017 were neither a separate class of seats recognized in law, nor were they a separate class within the class identified in law, which exempted from the applicability of Section 7 of the Act of 2007 and Rules of 2017. The vacant seats are practically the left over seats remaining vacant, post the competition of admission process and are handed over to the Institutions for being filled up in accordance with the merit list and minimum eligibility provided to them as per Rule 16 of the said Rules. She further submitted that the admission process was declared to be completed on 2.11.2018 and any admissions made prior that to being contrary to the Rules were illegal. In the Page 20 of 39 Downloaded on : Sat Sep 28 00:18:19 IST 2019 C/SCA/3531/2019 CAV JUDGMENT instant case, on the completion of admission process on 2.11.2018, the respondent No.2 Committee had intimated all the professional medical Institutions on 3.11.2018 to initiate the admission process as per the Rule 16 of the Rules of 2017. The Institutions were also provided with the merit list during the said communication. From the list supplied by the petitioner Colleges it clearly transpires that the petitioner colleges had admitted the students, though they had not qualified the th NEET, between the period from 28 October, 2018 th to 29 October, 2018 i.e. before the admission process was over and the merit list was declared as stated by the respondent Committee, which was absolutely illegal. Such admissions being dehors the Act and the provisions contained in the Rules, the petition deserves to be dismissed.
13. Learned Advocate Mr.B. T. Rao appearing for the petitioners in Special Civil Application No.2411 of 2019, in addition to the submissions made by the learned Sr. Advocate Mr.Dave, submitted that the petitioners are the students, Page 21 of 39 Downloaded on : Sat Sep 28 00:18:19 IST 2019 C/SCA/3531/2019 CAV JUDGMENT who had appeared in the NEET Examination, however, could not qualify the NEET. According to him, when the Government of Gujarat had amended Rule 16 of the said Rules of 2017, which specifically deals with the vacant seats, any circular contrary to Rule 16 cannot be made applicable to the petitioners' case.
14. Learned Advocate Mr.A. R. Thacker appearing for the respondent No.4 Saurashtra University in SCA No.2411 of 2019 submitted that after the receipt of the letter dated 18.12.2018 of the Admission Committee for professional courses by the University, the respondent University by the letter/circular dated 24.12.2018 had informed all the colleges affiliated with the University regarding cut-off marks in the NEET Examination for admission in Homeopathy courses, giving reference to the letters dated 1.11.2018 and 26.10.2018, and accordingly, the respondent No.5 college on 27.12.2018 had intimated all the petitioners that considering the circular of the University, their admissions were liable to be cancelled. He further submitted that if the Page 22 of 39 Downloaded on : Sat Sep 28 00:18:19 IST 2019 C/SCA/3531/2019 CAV JUDGMENT respondent No.5 college had permitted the students to attend the classes in spite of the said specific letter issued by the University, no sympathy should be shown to the students or the respondent college. He also submitted that on 5.12.2018, the University had prescribed the last date for enrollment with late fees as 22.1.2019, and the present petition has been filed in the month of February 2019. Thus, according to Mr.Thacker the petition filed at a belated stage knowing fully well that they are not eligible for the admission may not be entertained.
15. Having regard to the submissions made by the learned Advocates for the parties in the light of the relevant provisions of the Act and the Rules, the pivotal question that falls for consideration before the Court is, whether the Court while entertaining the petition under Article 226 of the Constitution should regularize the admissions given by the self- financed medical colleges illegally and dehors the statutory Rules, compromising the standard Page 23 of 39 Downloaded on : Sat Sep 28 00:18:19 IST 2019 C/SCA/3531/2019 CAV JUDGMENT of professional education ?
16. Before adverting to the rival contentions raised by the learned Advocates for the parties, at the outset, it may be stated that there are certain undisputed facts in all the petitions. Apart from the relevant provisions contained in the Act, and the Rules, it is not disputed by the petitioners that the Member Institutions of the petitioner Association/Society in SCA No.3531 of 2019 and SCA No.3532 of 2019 had admitted the th th students between the dates 28 and 29 October, 2018 in their respective colleges running BAMS courses or BHMS courses. It is also not disputed that none of the students admitted by the said Colleges had secured the requisite score at NEET-UG 2018, and therefore, were not qualified or eligible for getting the admissions in the respective courses as per the eligibility criteria laid down in Rule 4 of the said Rules of 2017. The said Rule mandated that the candidate, who desired admission in the first year of the degree in professional medical educational course, has to qualify the NEET Page 24 of 39 Downloaded on : Sat Sep 28 00:18:19 IST 2019 C/SCA/3531/2019 CAV JUDGMENT conducted in the relevant academic year. It is also not disputed that some of such students had not even appeared in the said NEET-UG 2018. It is also not disputed by the petitioners in all the three petitions that the last date for th admission was 30 October 2018 and before the said date, on 26.10.2018, the said cut-off date th of 30 October, 2018 was extended up to 15.11.2018 by the Ministry of Ayush, and that on 1.11.2018 the minimum qualifying marks for NEET-
th th UG 2018 were reduced from 50 percentile to 35
percentile by the Ministry of Ayush. It is also th not disputed that the 5 round of admission for the BAMS/BHMS courses through the Central Admission Process was conducted by the respondent Admission Committee on 27.10.2018 and that on the extension of the last cut-off date th th from 30 October, 2018 to 15.11.2018, the 6 round of Common Counseling was also conducted by the respondent Admission Committee. It is also not disputed that vide the communication dated 18.12.2018, the respondent Admission Committee had intimated all the institutions that all the admissions for the academic year 2018-19 must be Page 25 of 39 Downloaded on : Sat Sep 28 00:18:19 IST 2019 C/SCA/3531/2019 CAV JUDGMENT granted in accordance with the eligibility criteria notified by the Ministry of Ayush under NEET-UG 2018. Of course, the said communication has been challenged by the petitioners in the present petitions filed in February 2019 i.e. two months after the receipt of the said communication.
17. The bone of contention raised by the learned Sr. Advocate Mr.Dave for the petitioners is that the admission process undertaken by the respondent Admission Committee on the basis of merit list prepared following the Rule 4 of the Rules of th 2017 had stood concluded on 26 October, 2018 in view of th notice published by the respondent th Committee on the website on 25 October, 2018 inter alia declaring that if any seats remained th vacant after 27 October, 2018, those seats would be surrendered to the respective institutions and the institutions could fill those seats as per the Council Rules. Hence, according to Mr.Dave the concerned Member Institutions of the petitioners had filled up th th the vacant seats between 27 to 30 October, Page 26 of 39 Downloaded on : Sat Sep 28 00:18:19 IST 2019 C/SCA/3531/2019 CAV JUDGMENT 2018 by following the minimum criteria prescribed by the concerned Councils. In the opinion of the Court, there is a basic fallacy in the said submission made by the learned Sr. Advocate Mr.Dave. If the documents/ communications produced on record are appreciated in the light of the relevant Rules and Regulations framed for the admission to the first year of the degree in professional medical educational courses, there remains no shadow of doubt that the concerned candidate had to fulfill the eligibility criteria for admission laid down in Rule 4 of the Rules of 2017. Sub- rule (4) of the said Rule 4 specifically requires the candidate to qualify the NEET conducted in the relevant academic year for the BAMS/BHMS courses. Sub-rule (5) of Rule 4 also prescribes the minimum qualifying standard for admission in the said course for Government seats, Management seats, and NRI seats. The respondent Admission Committee constituted under Section 4 of the Act of 2007 for the purpose of admission of students to the professional educational colleges and institutions had to Page 27 of 39 Downloaded on : Sat Sep 28 00:18:19 IST 2019 C/SCA/3531/2019 CAV JUDGMENT prepare the merit list of students based on the eligibility criteria as prescribed.
18. It may be noted that the validity of Rule 4(4) and Rule 4(5) amongst other Rules of Rules 2017, in so far as they made National Eligibility Entrance Test mandatory for the students aspiring for getting admission to BAMS/BHMS courses were challenged in case of Dhrutikumari Bhagubhai Patel & Ors. Versus State of Gujarat & Anr., in SCA No.12827 of 2017, and the Division Bench vide the order dated 2.8.2017 had dismissed the said petition upholding the vires of the said Rules. Under the circumstances all the students desirous of getting admission to the first year of the professional medical educational courses are required to qualify NEET so far as regular admissions through respondent Admission Committee are concerned.
19. The question, however, that falls for consideration before the Court is, whether the said eligibility criteria, more particularly qualifying NEET, are required to be fulfilled by the students, for the seats which remain vacant Page 28 of 39 Downloaded on : Sat Sep 28 00:18:19 IST 2019 C/SCA/3531/2019 CAV JUDGMENT in BAMS and BHMS courses after the completion of admission process in view of Rule 16 of the Rules of 2018 as amended vide the Notification dated 4.5.2018. As per the said amended Rule 16, if any Government or Management seat remains vacant in MBBS, BAMS and BNAT courses after the completion of admission process and exhaustion of merit list, such seats shall be displayed in the official website and on the notice board of the office of the Admission Committee and the same shall be intimated to the colleges or institutions, wherein the seats are vacant and such seats shall be filled up by the respective institutions as per the criteria laid down by the respective Councils/Central Government for the respective year. Hence, on the close reading of the said Rule 16 it clearly transpires that the seats which remain vacant after the completion of admission process and exhaustion of merit list, are required to be displayed on the official website and on the notice board of the office of the Admission Committee, and the same is also required to be intimated to the colleges and institutions, who could thereafter Page 29 of 39 Downloaded on : Sat Sep 28 00:18:19 IST 2019 C/SCA/3531/2019 CAV JUDGMENT fill up the said vacant seats as per the criteria laid down by the respective council/central government.
20. So far as the facts of the present case are concerned, the last date for regular admission th declared by the Ministry of Ayush was 30 October 2018, and the said date was extended to 15.11.2018 as per the notice uploaded on the website of the Ministry on 26.10.2018. Thereafter on 1.11.2018 the minimum qualifying marks for NEET-UG 2018 were also reduced from th th 50 percentile to 35 percentile. Now, even if the date of communication of the extension of th the cut-off date from 30 October 2018 to th 15.11.2018 is taken to be 29 October 2018 as sought to be submitted by Mr.Dave, then also the same was duly communicated by the Ministry th of Ayush before the cut-off date of 30 October 2018 and the question of resorting to Rule 16 for filling vacant seats did not arise. Neither the admission process could be said to have been completed before 30.10.2018 nor the Admission Committee could be said to have intimated to the Page 30 of 39 Downloaded on : Sat Sep 28 00:18:19 IST 2019 C/SCA/3531/2019 CAV JUDGMENT Colleges or the Institutions to fill up the vacant seats as per Rule 16 of the said Rules. Though much reliance has been placed on the notice put on the website by the respondent Committee, which does not bear any date, produced by the petitioners along with the annexures at Annexure-D colly, the said notice is not helpful to the petitioners as it does not indicate about the vacant seats to be filled up by the colleges and institutions on their own. Though the said notice does not bear any date, even if the said notice is believed to have been put up on the website by the respondent th Committee on 25 October, 2018 as sought to be submitted by the learned Sr. Advocate Mr.Dave, then also it could not be said that by the said notice, the self-financed Colleges or the Institutions were permitted to fill up the vacant seats as per the Rule 16 of Rules 2017. What has been stated in the said notice is that if any seats remained vacant after 27.10.2018, those seats would be surrendered to the respective Institutions for filling up the same as per the Council Rules. Hence, the Colleges Page 31 of 39 Downloaded on : Sat Sep 28 00:18:19 IST 2019 C/SCA/3531/2019 CAV JUDGMENT and Institutions were required to wait till the respondent Committee completed the admission process on 30.10.2018 and declared vacant seats for being surrendered to the colleges. It is also pertinent to note that the advertisement th for the 5 round of online choice filling and allotment, for the admission of BHMS and BAMS for undergraduate courses, also stated that the last date for reporting at the help centre was 26.10.2018 and that the said notice (un-dated) put up by the respondent Committee on the website, also stated that the last date for payment of fees at the designated bank for the th 5 round of online choice filling and allotment th was 26 October, 2018, and last date for th reporting at the help centre was 27 October 2018. There is nothing on record to suggest that the respondent Admission Committee had displayed th vacant seats on its official website on 27 or th 28 October 2018 intimating the petitioner Institutions to fill up such vacant seats as per the criteria laid down by the respective Councils or Central Government as contemplated in Rule 16 of the said Rules. On the contrary as Page 32 of 39 Downloaded on : Sat Sep 28 00:18:19 IST 2019 C/SCA/3531/2019 CAV JUDGMENT th stated herein above, the said last date of 30 October 2018 was extended to 15.11.2018 and accordingly the respondent Committee had th conducted 6 round of online choice filling and th allotment for the said courses on 30 October 2018 on the basis of the reduced qualifying marks in the NEET 2018 (as per Annexures-G &H).
rd It was only vide the communication dated 3 November, 2018 (Annexure-I), the respondent Admission Committee had intimated the concerned grant-in-aid/self-financed Ayurveda, Homeopathy and Naturopathy colleges that the admission process for undergraduate courses of BAMS and BHMS was declared completed on 2.11.2018 and that such institutions could fill up the vacant seats as per the eligibility criteria laid down by the Ministry of Ayush, enclosing therewith the merit list. Under the circumstances, even if the recourse of Rule 16 of the said Rules of 2017 is taken by the petitioners, the concerned institutions could not have filled up the vacant seats and could not have admitted the students on their own dehors the Rule 16 of Rules of 2017 th th th on 27 or 28 or 29 of October 2018 as sought Page 33 of 39 Downloaded on : Sat Sep 28 00:18:19 IST 2019 C/SCA/3531/2019 CAV JUDGMENT to be done by them, so far as SCA No.3531 and No.3532 of 2019 are concerned.
21. So far as as SCA No.2411 of 2019 is concerned, the Admission Committee vide letter dated 18.12.2018 had communicated to the respondent University, and the respondent University in turn vide communication dated 24.12.2018 had informed all the Colleges affiliated with the University, with regard to the cut-off marks in the NEET examination for admission in Homeopathy courses. Accordingly, petitioners who were the students were also duly intimated by the respondent No.5 College about the said circular dated 24.12.2018 issued by the respondent Saurashtra University that their admissions were liable to be cancelled in view of the said circular. If the said petitioners in spite of such communications had continued to attend the classes in respondent No.5 college, and if the respondent No.5 college had permitted them to attend the classes, the only inference that is required to be drown is that they all had acted at their own peril and could not seek Page 34 of 39 Downloaded on : Sat Sep 28 00:18:19 IST 2019 C/SCA/3531/2019 CAV JUDGMENT any sympathy from the Court.
22. At this juncture a very pertinent observation made by the Supreme Court in case of Guru Nanak Dev University Vs. Parminder Kr. Bansal and Ors., reported in (1993) 4 SCC 401 are required to be reproduced, in which case, the appellant University was aggrieved by the order passed by the High Court directing the concerned University to regularize the admission of the students, and it was observed by Supreme Court in paragraph 7 as under:-
"7. Shri Gambhir is right in his submission. We are afraid that this kind of administration of interlocutory remedies, more guided by sympathy quite often wholly misplaced, does no service to anyone. From the series of orders that keep coming before us in academic matters, we find that loose, illconceived sympathy masquerades as interlocutory justice exposing judicial discretion to the criticism of degenerating into private benevolence. This is subversive of academic discipline, or whatever is left of it, leading to serious impasse in academic life. Admissions cannot be ordered without regard to the eligibility of the candidates. Decisions on matters relevant to be taken into account at the interlocutory stage cannot be deferred or decided later when serious complications might ensue from the interim order itself. In the present case, the High Court was apparently moved by sympathy for Page 35 of 39 Downloaded on : Sat Sep 28 00:18:19 IST 2019 C/SCA/3531/2019 CAV JUDGMENT the candidates than by an accurate assessment of even the prima facie legal position. Such orders cannot be allowed to stand. The courts should not embarrass academic authorities by themselves taking over their functions."
23. The Constitution Bench of the Supreme Court in case of T.M.A. Pai Foundation and Ors. Vs. State of Karnataka and Ors., reported in (2002) 8 SCC 481 also had emphasized the need for excellence in professional education by observing as under:-
"58. For admission into any professional institution, merit must play an important role. While it may not be normally possible to judge the merit of the applicant who seeks admission into a school, while seeking admission to a professional institution and to become a competent professional, it is necessary that meritorious candidates are not unfairly treated or put at a disadvantage by preferences shown to less meritorious but more influential applicants. Excellence in professional education would require that greater emphasis be laid on the merit of a student seeking admission. Appropriate regulations for this purpose may be made keeping in view the other observations made in this judgment in the context of admissions to unaided institutions.
59. Merit is usually determined, for admission to professional and higher education colleges, by either the marks that the student obtains at the qualifying examination or school leaving certificate stage followed by the interview, or by a Page 36 of 39 Downloaded on : Sat Sep 28 00:18:19 IST 2019 C/SCA/3531/2019 CAV JUDGMENT common entrance test conducted by the institution, or in the case of professional colleges, by government agencies."
24. In view of the above settled legal position, the submission of the learned Sr. Advocate Mr.Dave for the petitioners that the admissions made by the concerned Member Association/Society be regularized cannot be accepted, compromising the merits in the professional medical courses and which admissions even otherwise are not in consonance with the statutory Rules of 2017 framed under the Act of 2007.
25. The reliance placed by the learned Sr. Advocate Mr.Dave on the decision of the Supreme Court in case of Association of Managements of Homeopathic Medical Colleges of Maharashtra Vs. Union of India & Ors. (Civil Appeal No.1393 of 2019) has no application to the facts of the present case. In the said case, the Supreme Court taking note of the fact that the other High Courts like Patna High Court, Karnataka High Court, Rajasthan High Court, etc., had passed the orders permitting admission on the basis of marks in the qualifying examination, Page 37 of 39 Downloaded on : Sat Sep 28 00:18:19 IST 2019 C/SCA/3531/2019 CAV JUDGMENT without reference to the marks secured by them in the NEET-UG 2018 examination, had further observed that there was no uniformity in the admission to the first year BHMS courses for the year 2018-19 as securing minimum marks in NEET was not required in some States pursuant to the order of the High Courts. The Supreme Court, therefore, had observed that the concerned appellant Association should be permitted to make admissions to the first year BHMS for the academic session 2018-19 on the basis of the eligibility criteria mentioned in the information brochure and that a candidate who had secured minimum marks in the NEET-UG 2018 shall be eligible for admission to the first year BHMS course for the academic year 2018-19. The Supreme Court had also observed that the said order was passed in peculiar facts of the case and shall not be treated as precedent. So far as the facts of the present case are concerned, qualifying NEET examination was one of the mandatory eligibility criteria for getting admission in the professional medical courses as per Rule 4 of the said Rules of 2017, Page 38 of 39 Downloaded on : Sat Sep 28 00:18:19 IST 2019 C/SCA/3531/2019 CAV JUDGMENT and therefore, the concerned Institutions of the petitioner's Association/Society could not have admitted the students, even on vacant seats without complying with the requirements of Rule 16 of the said Rules of 2017. Statutory Rules framed for regulating the admission in the first year of the Professional medical education have to be strictly followed by all the Colleges and Institutions. Any liberal interpretation of Rules or relaxation of Rules would certainly deteriorate the standard of education in the professional courses.
26. In that view of the matter, all the three petitions deserve to be dismissed and are hereby dismissed.
(BELA M. TRIVEDI, J) V.V.P. PODUVAL Page 39 of 39 Downloaded on : Sat Sep 28 00:18:19 IST 2019