Kerala High Court
Dr.Divya C.Nair vs Union Of India on 13 September, 2021
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
MONDAY, THE 13TH DAY OF SEPTEMBER 2021 / 22ND BHADRA, 1943
WP(C) NO. 24911 OF 2020
PETITIONER:
DR.DIVYA C.NAIR
AGED 35 YEARS
D/O.CHANDRASEKHARAN NAIR, PALAMATTATHIL HOUSE,
AVARMA, P.O. PERUMPADAVAM,
KOTTAYAM DISTRICT - 686 665.
BY ADVS.
P.M.PAREETH
SRI.MOHAMMED SHAMEEL
SRI.AASHIQUE AKTHAR HAJJIGOTHI
RESPONDENTS:
1 UNION OF INDIA
REP. BY THE SECRETARY, MINISTRY OF AYUSH,
GOVERNMENT OF INDIA, NEW DELHI - 110 001.
2 CENTRAL COUNCIL OF INDIAN MEDICINE
JAWAHARLAL NEHRU BHARATHIYA CHIKITSA AVAM, 61-65,
INSTITUTIONAL AREA, JANAKPURI, "D" BLOCK,
NEW DELHI - 110 058.
3 ALL INDIA INSTITUTE OF AYURVEDA
MATHURA ROAD, GAUTAMPURI AWAS, SARITHA VIHAR,
NEW DELHI - 110 076.
4 AYUSH ADMISSIONS CENTRAL COUNSELLING COMMITTEE (AACCC)
MINISTRY OF AYUSH, GOVERNMENT OF INDIA,
NEW DELHI - 110 001.
5 STATE OF KERALA
REP. BY ADDITIONAL CHIEF SECRETARY,
HEALTH AND FAMILY WELFARE, GOVERNMENT OF SECRETARIAT,
THIRUVANANTHAPURAM - 695001.
6 DIRECTOR, AYURVEDA MEDICAL EDUCATION
AROGYA BHAVAN, M.G.ROAD, THIRUVANANTHAPURAM - 695 001.
WP(C) NO. 24911 OF 2020
2
7 COMMISSIONER FOR ENTRANCE EXAMINATIONS
5TH FLOOR, HOUSING BOARD BUILDING, SANTHI NAGAR,
THIRUVANANTHAPURAM - 695001.
BY ADV
SHRI.P.VIJAYAKUMAR, ASG OF INDIA
T.B.HOOD, SPL.G.P.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 13.09.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C) NO. 24911 OF 2020
3
P.V.KUNHIKRISHNAN, J.
========================
WP(C) NO. 24911 OF 2020
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Dated this the 13th day of September, 2021
JUDGMENT
The above writ petition is filed with the following prayers:
"1) A writ of certiorari or other appropriate writ, direction or order calling for the records leading to Ext.P3 regulations and quash the same to the extent it mandates at proviso (b) to sub Regulation 2 ii of Regulation 8 of the Indian Medicine Central Council (post Graduate Ayurveda Education) Amendment Regulations 2018 that candidates with bench mark disabilities specified under Rights of persons with Disabilities Act 2016 the minimum marks should be at 45 percentile for the general category rather than 40 percentile applicable to scheduled castes and scheduled tribe candidates as discriminatory and violative of the mandatory provisions of Rights of Persons With Disabilities Act 2016 and the law declared by the Hon'ble Supreme Court of India.
2) A writ of certiorari or other appropriate writ, direction or order calling for the records leading to Ext.P3(a) regulations and quash the same to the extent it mandates at the second limb of the proviso (C) to sub-Regulation 2, clause (iv) of Regulation 8 of the Indian Medicine Central Council(Post Graduate Ayurveda Education) Amendment Regulations WP(C) NO. 24911 OF 2020 4 2019 that candidates with bench mark disabilities specified under Rights of Persons with Disabilities Act 2016 the minimum marks should be at 45 percentile for the general category rather than 40 percentile applicable to scheduled castes and scheduled tribe candidates as discriminatory and violative of the mandatory provisions of Rights of Persons With disabilities Act 2016 and the law declared by the Hon'ble Supreme Court India.
3) A declaration to the effect that the disabled persons defined under Rights of Persons With Disabilities Act 2016 are entitled to the same concessions and benefits in the matter of minimum marks for admission to PG courses in Ayurveda for the academic year 2020-21 as extended to SC and ST candidates and stipulation to the contrary in Exhibit P3 and P3(a) regulations are abinitio void.
4) To grant cost
5) To grant such other reliefs this Hon'ble Court deem fit and proper in the facts and circumstances of the case."
2. The petitioner is a physically handicapped person with 40% loco motor disability. She is a Bachelor in Ayurveda Medicine and Surgery (BAMS) who participated in the All India Ayush Post Graduate Entrance Test (AIAPGET) 2020-21 conducted by the National Testing Agency for admission to PG Ayurveda.
The results were published on 04.11.2020. The WP(C) NO. 24911 OF 2020 5 petitioner claimed reservation as differently abled candidate with loco motor disability. Ext.P1 is the confirmation page to show that the petitioner submitted her application. According to the petitioner, she secured 141 marks out of 480 and was ranked at 8624 in the all India rank and at 30 among PWD. Her percentile score is 44.3499549. Ext.P2 is the details of the marks. The grievance of the petitioner is that even though she secured 44.34 percentile she stands the risk of excluding her from reservation for admission to Ayurveda PG Course on the ground that 45 percentile should be acquired for being considered for reservation. The specific case of the petitioner is that as per Section 32 of the Rights of Persons with Disabilities Act, 2016, all Government Institutions of higher education and other higher education institutions receiving aid from the Government shall reserve not less than 5% seats for persons with benchmark disabilities. The counsel submitted that consequent on coming into effect of WP(C) NO. 24911 OF 2020 6 Rights of Persons with Disabilities Act, 2016, 5% of the PG seats in Ayurveda disciplines have to be filled up by persons with bench mark disabilities. Therefore, the 2 nd respondent Central Council of Indian Medicine has amended the Regulations 2016 by amendment dated 07.12.2018. Ext.P3 is the English version of the Indian Medicine Central Council (Post Graduate Ayurveda Education) Amendment Regulations 2019 notified on 07.12.2018.
3. As per Ext.P3 amendment Regulation, Regulation 8 of the 2016 Regulation was substituted by a new Regulation 8. Regulation 8(2)(ii) is extracted hereunder:
"(ii)) In order to be eligible for admission to post-
graduate courses for an academic year, it shall be necessary for a candidate to obtain minimum of marks at 50th percentile in the 'All India AYUSH Post Graduate Entrance Test (AIA-PGET)' held for the said academic year:
Provided that in respect of-
(a) candidates belonging to the Scheduled Castes, Scheduled Tribes and other Backward Classes, the WP(C) NO. 24911 OF 2020 7 minimum marks shall be at 40th percentile;
(b) candidates with benchmark disabilities specified under the Rights of Person with Disabilities Act, 2016 (49 of 2016), the minimum marks shall be at 45th percentile for the General Category and 40 th percentile for the Scheduled Castes, Scheduled Tribes and Other Backward Classes."
From the above cited provision, it is seen that for being eligible for admission the Scheduled Casts, Scheduled Tribes and Other Backward Classes, the minimum marks shall be 40th percentile whereas in the case of candidate with benchmark disability the minimum marks shall be at 45th percentile for the General Category and 40 th percentile for Scheduled Castes and Scheduled Tribes and Other Backward Classes. The same provisions are contained in the amendment Regulation issued on 24.07.2019 making it applicable for students admitted to Post Graduate Course from the commencement of academic year 2019-20. Ext.P3(a) is the notification dated 24.07.2019. The counsel submitted that there is discrimination as far as the persons with disability and the candidates from Scheduled Castes and Scheduled WP(C) NO. 24911 OF 2020 8 Tribes. Hence this writ petition is filed.
4. Heard the learned counsel for the petitioner and the learned Central Government Standing Counsel.
5. The counsel for the petitioner reiterated his contentions in the writ petition. But it is conceded that the admission for 2020-21 is now over. But the counsel submitted that this Court may decide the issue in the light of the decision of the apex court in Ext.P4, decision of the Delhi High Court as evident by Ext.P5 and decision of this Court in Ext.P6. The Central Government Standing Counsel submitted that the admission of the students for the year 2020-21 is already over.
6. When this writ petition came up for consideration on 09.12.2020, this Court rejected the interim prayer by a detailed order. The same is extracted hereunder:
"Admit. Learned ASGI takes notice for the 1st respondent. Sri S.Manu takes notice for the 2 nd WP(C) NO. 24911 OF 2020 9 respondent. Learned Government Pleader takes notice for respondents 5 to 7. Issue notice to respondents 3 and 4.
2. The petitioner who is a person with 40% loco motor disability, participated in the All India Ayush Post Graduate Entrance Test (AIAPGET)2020-
21. She got 141 marks out of 480 and was ranked at 8624 in the all India rank and 30 among Persons With Disability. Her percentile score is 44.3499549. Hence, the petitioner claims that in the light of the order of the Apex court in Ext.P4 as well as the judgment of this Court in Ext.P4(a), the differently abled persons need only 40 percentile marks as in the case of SC/ST/OBC candidates. The marks required for them is only 40 percentile. But Ext.P3- Indian Medicine Central Council (Post Graduate Ayurveda Education) Amendment Regulations 2019 notified on 07.12.2018 provides that the candidates having disability should have 45 percentile marks. Relying on the order passed by the Apex Court in IA No.4/1998 in W.P.(C)No.115/1998(Ext.P4), petitioner seeks a direction to permit her to participate in the counseling process for admission to PG Ayurveda course for the academic year 2020-21. The counseling has already started on 08.12.2020.
3. The learned CGC, Sri.Suvin R.Menon as well as Sri.S.Manu, learned counsel for the 2 nd respondent and Sri V.Manu, the learned Senior Government Pleader points out that the petitioner has submitted application when Ext.P3(a) regulations are in force and after the examination was conducted and the results are published and the counseling for allotment process is going on in tune with the regulations, the petitioner who appeared in the examination with full knowledge about the provisions in Ext.P3(a) regulations can not be heard to raise any such contentions at this stage when the counseling is going on. It is also pointed out that the similarly situated candidates who are having marks between 40 percentile and 45 percentile would also be eligible in case such a contention as raised by the petitioner is accepted. The learned counsel for the petitioner also pointed out that there is 5% WP(C) NO. 24911 OF 2020 10 reservation for candidates with disability and in the absence of any candidate in the said quota with 45 percentile marks, this restriction would be defeating the purpose of reservation and those seats will be reverted to general category; the PWD category will be loosing those seats. However, when the regulations stipulate the minimum marks as 45 percentile, I am of the view that as at present nothing can be done for this year.
Interim order is declined accordingly."
Now the counsel for the petitioner submitted that the admission proceedings for the academic year 2021-22 is not started and there may be a direction to the authorities to consider the matter in the light of Exts.P4 to P6. The Central Government Standing Counsel also submitted that the Government will consider Exts.P4 to P6 while issuing fresh notification for admission for the year 2021-22 and will take appropriate decision in accordance to law. Therefore, this writ petition can be disposed directing the 1st respondent to consider the grievance of the petitioner in the light of the Exts.P5 to P6. Accordingly, the writ petition is disposed in the following manner:
WP(C) NO. 24911 OF 2020 11
(a) The 1st respondent is directed to consider the grievance raised by the petitioner in this writ petition in the light of Exts.P4 to P6 before issuing notification for admission for the academic year 2021-22 for All India Ayush Post Graduate Entrance Test 2021-22.
(b) All the contentions of the petitioner in this writ petition are left open.
(c) The petitioner will produce a copy of this judgment along with a copy of this writ petition before the 1st respondent for compliance.
Sd/-
P.V.KUNHIKRISHNAN JUDGE scs WP(C) NO. 24911 OF 2020 12 APPENDIX OF WP(C) 24911/2020 PETITIONER EXHIBITS EXHIBIT P1 A TRUE PHOTO COPY OF THE CONFIRMATION PAGE PRINTED ON 15/07/2020.
EXHIBIT P2 A TRUE PHOTOCOPY OF THE DETAILS OF THE MARKS AND THE RANK OBTAINED BY THE PETITIONER IN RELATION TO OTHER CANDIDATES.
EXHIBIT P3 A TRUE PHOTOCOPY OF THE ENGLISH VERSION OF THE INDIAN MEDICINE CENTRAL COUNCIL (POST GRADUATE AYURVEDA EDUCATION) AMENDMENT REGULATIONS 2019 NOTIFIED ON 07/12/2018.
EXHIBIT P3(A) A TRUE PHOTOCOPY OF THE NOTIFICATION DATED 24/07/2019.
EXHIBIT P4 A TRUE PHOTOCOPY OF THE ORDER DATED 19/03/2002 IN IA NO.4 OF W.P.(C) NO.115/98 OF THE HON'BLE SUPREME COURT. EXHIBIT P4(A) A TRUE PHOTOCOPY OF THE FINAL JUDGMENT IN WPC NO.116/98 DATED 26/3/2014 OF THE APEX COURT.
EXHIBIT P5 A TRUE PHOTOCOPY OF THE JUDGMENT IN WPC NO.4853/2012 DATED 12/09/2012 ISSUED BY THE HON'BLE DELHI HIGH COURT.
EXHIBIT P5(A) A TRUE PHOTO COPY OF THE ORDER DATED 08/07/2020 IN CIVIL APPEAL NO.2718/2020. EXHIBIT P6 A TRUE PHOTOCOPY OF THE JUDGMENT DATED 12/11/2018 IN W.P.(C) NO.35190/2018 OF THIS HON'BLE COURT.
EXHIBIT P7 A TRUE PHOTOCOPY OF THE ORDER F.NO.L.11011/1/2020-EP-I(PART-I) DATED 19.03.2021 ISSUED BY THE FIRST RESPONDENT.