C/M Alpsankhyak Shiksha Vikas ... vs State Of U.P. Thru. Addl. Chief ...
2023 Latest Caselaw 6981 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 22
 
Case :- WRIT - C No. - 1747 of 2023
 
Petitioner :- C/M Alpsankhyak Shiksha Vikas Samiti, Knp. Thru.Dr.Zamir Ahmed,Principal,G.U.Medical College And Anr
 
Respondent :- State Of U.P. Thru. Addl. Chief Secy. Deptt. Of Ayush,U.P. Lko. And 4 Others
 
Counsel for Petitioner :- Adarsh Saxena,Rajat Rajan Singh,Vidhu Bhushan Kalia
 
Counsel for Respondent :- C.S.C.,A.S.G.I., Devak Vardhan
 

 
connected with
 
Case :- WRIT - C No. - 1894 of 2023
 
Petitioner :- C/M Shivalik Ayurvdic Medical College And Hospital,Azamgarh Thru. Secy. Dr. Ramji Singh And Ors
 
Respondent :- State Of U.P. Thru. Addl. Chief Secy. Deptt. Of Ayush, Lko. And Others
 
Counsel for Petitioner :- Vidhu Bhushan Kalia,Adarsh Saxena,Rajat Rajan Singh
 
Counsel for Respondent :- C.S.C.,A.S.G.I.,Devak Vardhan
 
					
 
					AND
 
Case :- WRIT - C No. - 1870 of 2023
 
Petitioner :- C/M Aligarh Ayurveda And Unani Medical College And Acn Hospital Thru.Dr.Jarrar Husain Rizvi And Ors
 
Respondent :- State Of U.P. Thru. Addl. Chief Secy. Deptt. Of Ayush, Lko. And Others
 
Counsel for Petitioner :- Adarsh Saxena,Rajat Rajan Singh,Vidhu Bhushan Kalia
 
Counsel for Respondent :- C.S.C.,A.S.G.I.,Devak Vardhan
 
AND
 
Case :- WRIT - C No. - 1781 of 2023
 
Petitioner :- C/M Brijbasi Education And Welfare Society,Mathura Thru.Kanhaiya Lal,Admin S.K.S.A. Medical College
 
Respondent :- State Of U.P. Thru. Addl. Chief Secy. Deptt Of Ayush, Lko. And Others
 
Counsel for Petitioner :- Adarsh Saxena,Rajat Rajan Singh,Vidhu Bhushan Kalia
 
Counsel for Respondent :- C.S.C.,A.S.G.I.,Devak Vardhan
 

 
Hon'ble Brij Raj Singh,J.

1. Heard Shri Rajat Rajan Singh, learned counsel for the Petitioners, Shri S.B. Pandey, Senior Advocate and Deputy Solicitor General of India assisted by Shri Anand Dwivedi, for respondent no.2 Union of India and Shri Devak Vardhan, learned counsel for respondent no.3 and Shri Vinod Kumar Singh, learned Standing Counsel for respondent nos.1, 4 and 5.

2. All the above writ petitions have common questions of fact of law which are collectively being filed, therefore, they are decided by one common judgment.

3. On oral prayer, learned counsel for the petitioners is permitted to make amendment in Para 40 as well as in grounds and prayer of the writ petition during the course of the day.

4. The brief facts of the case are that the Petitioners are registered Society and running Medical Colleges. Petitioners had prayed that the last date for admission in Ayush Under Graduate Courses notified up to 31.03.2023 may be extended by lowering the minimum percentile of National Eligibility Entrance Test (hereinafter referred to as ''NEET') Under Graduate 2022-23 towards admission in Ayush Under Graduate Courses by 10% for filling up the vacant seats in Petitioner's Institutions. It has further been prayed that respondent no.1 may be directed to conduct stray round of counselling for filling up vacant seats of the Petitioners' Institutions in BUMS and BAMS Courses by giving relaxation in minimum percentile of NEET to the students. In Writ Petition (C) No.6763 of 2023, the Petitioner has prayed for writ of certiorari to quash the order dated 17.02.2023 by which the representation preferred by the petitioner has been rejected.

5. Learned counsel for the petitioner has placed the judgment of Hon'ble Supreme Court reported in (2020) 12 SCC Cases 115 (Union of India vs. Federation of Self Financed Ayurvedic Colleges, Punjab and others) and in para 15 of the said case, it has been held that the minimum criteria may be lowered down and petitioner may be allowed to admit the students.

6. On the other hand, Shri Devak Vardhan, learned counsel for respondent no.3 has submitted that minimum eligibility criteria as provided in the Regulation cannot be lowered down because the expert body has fixed the minimum standard and in case, minimum standard is lowered, it would lead to a situation which would impinge upon the right of the quality of the students, who aspires to take admission in the said Institutions. The seats, candidates and meritorious candidate can be identified by the allotment to different institutions depending on the course of students, number of seats and other eligible factors. Learned counsel further submitted that Regulation 5 (2) of the National Commission for Indian System of Medicine Regulations, 2022 (hereinafter referred to as NCISM Regulations, 2022) dated 16.02.2022 deals with conducting of NEET for all medical institutions. He further submitted that Section 14 of NCISM Act provides that there shall be a uniform National Eligibility-cum-Entrance Test for admission to the Under Graduate Courses in each of the disciplines of the Indian System of Medicine in all medical institutions governed under the Act.

7. He has also placed reliance upon catena of judgments passed by Hon'ble Supreme Court in Civil Appeal No.603 of 2020 and Review Petition (Civil) No.1988-1989 of 2020 as well as judgment passed by this Court in Writ Petition 760 (C) 2023 (Paras 14 to 20). He has also relied upon the judgment of Dr. Astha Goel and others vs. The Medical Counselling Committee and others in Writ Petition (C) No.409 of 2022 decided on 10.06.2022 by the Supreme Court.

8. Heard the rival contentions advanced by learned counsel for the parties and perused the record.

9. The present controversy has been decided by this Court in many cases viz., U.P. Private Nursing and Paramedical Colleges Association through General Secretary, Dharmendra Gupta and another vs. State of U.P. through Principal Secretary, Medical Education Lucknow and others (Writ C No.760 of 2023) on 06.02.2023 by a detailed judgment. The relevant paras 14 to 21 are quoted below:-

"14. Regulations, 2020 and amended Regulations, 2022 provide the eligibility criteria for admission of B.Sc. (Nursing). It is admitted on record that the answering respondents have extended time to complete the counselling of first found, second round and then mop up round and the candidates who were successful, were afforded opportunity to take admission. It is also on record that the cut off date for Session 2022-23, is 31.12.2022 and the State Government or the O.P. No.5 has not extended the cut off date of session 2022-23. The terms and conditions are envisaged in Regulations, 2020 and minimum qualifying marks for entrance test has been fixed for 50% marks. Nothing has come on record that the State and O.P. No.5 have violated the criteria provided in the Regulations while taking admission. The arguments advanced by Sri Parihar that discrimination has been done by the respondents is not sustainable because for B. Sc. (Nursing) course, there is Regulations, 2020 and revised Regulations, 2022. The criteria has been fixed. The minimum 50 % marks has been fixed and percentile of five subjects for entrance examination has been fixed and the total marks of qualifying test is 50%.

15. Admittedly, those candidates who are found eligible under the criteria of Regulations, 2020 and 2022, have been admitted and there is no discrimination. The criteria has been further relaxed in view of Regulations, 2022. For General it is 50%, for SC/ST/OBC 40%, General-PWD 45%, and for SC/ST/OBC-PWD, the minimum qualification is 40%. Thus, the Court cannot go beyond the eligibility criteria fixed by the O.P. No.5. The O.P. No.5 is the Apex Body and is expert to prescribe the qualification/eligibility criteria. It is further clarified that the cut off date for admission was upto 31.12.2022 and the period is over and it is settled law that the cut off date cannot be extended by the Court because the admissions have already taken place and in the first week of February, 2023, the notification was issued on 21.10.2022 by the O.P. No.5 after clarification. The last date for academic session 2022-23 has been stipulated by the said notification dated 31.10.2022 starting from 310.10.2022 to 31.12.2022. The Supreme Court has taken note of the cut off date fixed by the authority in the case of St. Stephens Hospital College of Nursing (supra) and has observed that the process of admission in the educational institutions cannot be endless. It must come to an end at a particular point of time. If there is any extension and/or deviation from the time schedule, that will ultimately affect the education. In the present case, the time has been fixed upto 31.12.2022. On that score also, it would not be possible to relax the criteria as required by the petitioners.

16. The judgment of Maharashtra Government is also worthwhile to be discussed here. It is observed in the case of Private Nursing Schools and Colleges Management (supra) that the State Government of Maharashtra has lost sight of the fact that the Nursing Council has introduced notification dated 16.6.2022 and as per notification, it is clarified that the course of B. Sc. (Nursing) for academic year 2022-23 can be completed either by merit list or aggregate percentage of marks obtained in the three core subjects i.e., Physics, Chemistry, Biology of the qualifying examination (10+2) and having passed in English individually or by conducting an entrance examination. It has further been observed in the aforesaid case that on the basis of merit of score of NEET-UG, the admission was not correct course because the State of Maharashtra should have either adopted the mode of admission by entrance or by aggregate percentile of marks. It was thus, deviation in the case of Private Nursing Schools and Colleges Management (supra). That is why, the Court has passed the order directing the State of Maharashtra to admit the student of B. Sc. (Nursing) on the basis of HSC (10+2) score as per admission guidelines.

17. The case of the Private Nursing Schools and Colleges Management (supra) is not applicable to the present case because it is settled law that the things should be done in the manner it is provided. Once, the entrance examination has been done by the State Government and the criteria is fixed under the Regulations, therefore, the State Government is under obligation to follow the eligibility criteria and no relaxation can be provided to the petitioner.

18. In the present case, the State Government has adopted one mode out of two which is open for the State Government. Once they have adopted the one mode, then certainly, the procedure of criteria of selection will be followed as per the Regulations. The criteria has been followed and the admission has been done on the basis of Regulations, 2020 and the amended Regulations, 2022 without any deviation. The argument advanced by the learned counsel for the petitioner in respect of the State of Maharashtra is also not applicable in the present case.

19. Paragraph-15 of the case of Harshit Agarwal and others. Vs. Union of India and others, (2021) 2 SCC 710, is also liable to be seen in the present perspective of the case. In the said case, the Dental Council of India recommended for lowering the minimum marks and registration provided by lowering the marks. The exercise was done and the marks were lowered in accordance with Regulations but in the present case, the O.P. No.5 have followed the eligibility criteria fixed under the Regulations and there appears to be no justification to interfere in the action of the opposite parties. The judgment in the case of Harshit Agarwal (supra), is not applicable in the facts of the present case as discussed hereinabove.

20. Paragraph-15 of the case of Union of India. Vs. Federation of Self-Financed Ayurvedic Colleges, Punjab and others, (2020) 12 SCC 115, is also worth to be quoted hereinabove:-

"15. Prescribing a minimum percentile for admission to the Under Graduate courses for the year 2019-2020 was vehemently defended by the Central Council and the Union of India by submitting that the minimum standards cannot be lowered even for AYUSH courses. We agree. Doctors who are qualified in Ayurvedic, Unani and Homeopathy streams also treat patients and the lack of minimum standards of education would result in half-baked doctors being turned out of professional colleges. Non-availability of eligible candidates for admission to AYUSH Under Graduate courses cannot be a reason to lower the standards prescribed by the Central Council for admission. However, in view of admission of a large number of students to the AYUSH Under Graduate courses for the year 2019-2020 on the strength of interim orders passed by the High Courts, we direct that the students may be permitted to continue provided that they were admitted prior to the last date of admission i.e. 15-10-2019. The said direction is also applicable to students admitted to Post Graduate courses before 31-10-2019. 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."

21. Supreme Court has observed that non-availability of candidates for admission to AYUSH Under Graduate Courses cannot be a reason to lower the standard prescribed by the Council for admission. However, in the said case, some relaxation was provided prior to last date of admission i.e., 15.10.2019, therefore, the Supreme Court has observed that since they were given admission prior to the end of last date of academic sessions, therefore, the candidates who were given relaxation, were protected but in the present case, the last date has already expired i.e., 31.12.2022 and this Court cannot lower the eligibility criteria."

10. Identical issue of the present case has engaged attention in Writ Petition No.(C) 1793 of 2023 and by detailed order dated 03.03.2023, interim relief application has been rejected by this Court. The relevant extract is quoted below :

"18. The argument advanced by the learned counsel for the petitioner will not be sustained because the minimum standard criteria provided by the Regulations cannot be relaxed by this Court. The result of the NEET is to be adhered for admission and if the private unaided institutions are given unfettered right to give admission by adopting their own procedure, it would lead to a situation which would impinge upon the right of equality to students who aspire to take education in the said institution. The seats, candidates and meritorious candidate can be identified by the allotment to different institutions depending on the course of students, number of seats and other eligible factors.

19. Looking into the entire facts and circumstances of the case, I am of the opinion that prima facie no case for interim relief is made out, therefore, the application for interim relief is rejected."

11. Learned counsel for the petitioners has also relied upon a judgment of Supreme Court in Harshit Agarwal and others vs. Union of India and others in Writ Petition No. (C) 54 of 2021 and various other judgments as mentioned above. It is well settled without hesitation that minimum standard criteria provided by the Regulations cannot be relaxed by this Court. The result of the NEET is to be adhered for admission and if the private unaided institutions are given unfettered right to give admission by adopting their own procedure, it would lead to a situation which would impinge upon the right of quality to students who aspire to take education in the said Institutions. The seat, candidates and meritorious candidate can be identified by the allotment to different institutions depending on the course of students, number of seats and other factors which have been considered and the criteria has been fixed as per Regulation as such it cannot be lowered down by this Court. Regulation 5 (2) of the Regulations, 2022 is also important to note as it provides that there shall be a uniform National Eligibility-cum-Entrance Test (NEET) for admission to Under Graduate programme in each Academic Year and shall be conducted by the authority designated by NCISM and it shall be necessary for a candidate to obtain minimum marks at 50th percentile in the NEET for Under Graduate Programme held for the said Academic Year. It is, thus, clear that it is the domain of the authority to fix the criteria and minimum criteria is fixed by an expert body to get suitable candidates and this Court is not an expert body, therefore, minimum criteria cannot be reduced by this Court.

12. In view of the aforesaid discussions, the writ petition fail and is, accordingly, dismissed. No order as to costs.

Order Date :- 3.3.2023

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