Allahabad High Court

C/M, Alpsankhyak Shiksha Vikas ... vs State Of U.P. Thru. Addl. Chief ... on 6 March, 2023

Bench: Devendra Kumar Upadhyaya, Subhash Vidyarthi




HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

AFR
 
Court No. - 2
 

 
Case :- SPECIAL APPEAL No. - 91 of 2023
 

 
Appellant :- C/M, Alpsankhyak Shiksha Vikas Samiti, Kanpur Thru. Dr. Zamir Ahmed And Another
 
Respondent :- State Of U.P. Thru. Addl. Chief Secy. Deptt. Of Ayush Govt. Of U.P. Civil Secrt. Lko. And Others

Counsel for Appellant :- Rajat Rajan Singh,Vidhu Bhushan Kalia

Counsel for Respondent :- C.S.C.,A.S.G.I.,Devak Vardhan

Hon'ble Devendra Kumar Upadhyaya J.

Hon'ble Subhash Vidyarthi J.

1. Our jurisdiction under Chapter VIII Rule 5 of the Allahabad High Court Rules has been invoked to question the legality and validity of the order dated 03.03.2023 passed by learned Single Judge in Writ C No. 1747 of 2023. By the said order learned Single Judge has dismissed the writ petition which was filed with a prayer for quashing the order passed by the National Commission for Indian System of Medicine (hereinafter referred to as the ''Commission'), dated 02.03.2023 whereby the prayer of the appellants-petitioners for reducing the percentile criteria for admission to undergraduate B.U.M.S. and B.A.M.S. courses based on NEET 2022 has been refused and further, the request for extending the date of counseling for the purposes of said admission has also not been acceded to.

2. Heard Sri Rajat Rajan Singh, Sri Vidhu Bhushan Kalia and Sri. Adarsh Saxena Advocates, the learned counsel representing the appellants-petitioners and Sri Asit Chaturvedi, learned Senior Advocate assisted by Sri Devak Vardhan Advocate for the Commission, Sri Shailendra Kumar Singh, learned Chief Standing Counsel assisted by Sri Nishant Shukla, learned Standing Counsel representing the State of UP, Sri Anand Dwivedi, learned counsel representing the Union of India.

3. In deference to our order passed on 04.03.2023 Dr. S. Sreenivasa Prasad Beduru, President, Board of Ayurveda, National Commission for Indian System of Medicines is present in person in the Court. He has also been heard in support of the case put forth before us by the Commission.

4. We have also perused the records available before us on this special appeal.

5. The appellant no. 1 is a society which runs a medical college offering undergraduate/bachelor's degree courses in Unani system of medicine, whereas the appellant no. 2 is also a society which runs a medical college offering undergraduate course in Ayurvedic system of medicine.

6. The central legislature enacted the Natioinal Commission for Indian System of Medicine Act, 2020 (Act No. 14 of 2020) for providing an appropriate medical education system that improves access to quality and affordable medical education and further ensures availability of adequate and high quality medical professionals of Indian system of medicine in all parts of the country. The functions of the said Commission, as described in Section 10 of the Act, 2020, are inter alia to lay down policies for maintaining high quality and high standards in education in Indian system of medicine and to make necessary regulations therefor. Section 55(1) of the 2020 Act empowers the Commission to make regulations to carry out the provisions of the said Act. In exercise of its powers vested in it under sub section (2) of Section 55 of 2020 Act, two separate sets of Regulations have been framed by the Commission which are known as (i) National Commission for Indian System of Medicines (Minimum Standards of Undergraduate Ayurvedic Education) Regulations, 2022 and National Commission for Indian System of Medicines (Minimum Standards of Undergraduate Unani Education) Regulations, 2022, notified respectively on 16.02.2022 and 28.02.2022. As per the scheme for making admissions available in these two regulations, admissions to undergraduate courses in Ayurvedic and Unani systems of medicine are made through National Eligibility-cum-Entrance Test (NEET) which is to be conducted by an authority to be designated for the said purpose by the Commission. The authority designated for conducting the NEET by the Commission is National Board of Examination in Medical Science, New Delhi.

7. National Eligibility-cum-Entrance Test, Undergraduate (NEET UG) was held in the month of April, 2022 for making admissions in the academic session 2022-23. On the basis of the result of NEET UG 2022, online counseling was to be held in five rounds, namely the first round, the second round, mop-up/3rd round, special mop-up round and stray vacancy round. Last date of counseling as determined by the Commission was 18.02.2023 which was extended till 04.03.2023.

8. The appellants-petitioners instituted the proceedings of Writ C No. 1313 of 2023 before this Court with the prayer that the minimum marks required for admission to the undergraduate courses in question be ordered to be reduced for the reason that sufficient number of candidates with minimum marks determined by the Commission, were not available. In terms of the provisions contained in Regulation 5(2) of the Regulations it is the Commission in consultation with the Central Government which is empowered in its discretion to lower the minimum marks required for admission to undergraduate courses where sufficient number of candidates in the respective category failed to secure the minimum marks in NEET.

9. This Court disposed of Writ C No. 1313 of 2023 by means of the order dated 17.02.2023 directing the Commission to take a decision on the representation which was preferred by the appellants. The said direction appears to have been given by the learned Single Judge keeping in view the provisions contained in Regulation 5(2) of the Regulations.

10. In compliance of the order dated 17.02.2023 the Commission took the decision which is embodied in the letter / order / circular dated 02.03.2023 whereby the prayer of the appellants-petitioners was refused.

11. Writ C No. 1747 of 2023 was filed by the appellants-petitioners on 28.04.2023 with the prayers to direct the Union of India to further extend the last date of admission up to 31.03.2023 and further, to lower the minimum percentile in NEET UG 2023 for making admissions to the courses in question. Another prayer made in the writ petition was that the respondents be directed to conduct stray round of counseling for filling up the vacant seats in the institutions run by the appellants-petitioners and for the said purpose, to conduct counseling of All India Quota seats. The writ petition has however been dismissed by the order dated 03.03.2023 passed by learned Single, Judge which is under challenge before us in this special appeal. During pendency of the writ petition, the order dated 02.03.2023 passed by the Commission was communicated to the appellants-petitioners. Accordingly, the writ petition was amended and a challenge to the said order dated 02.03.2023 with the prayer to quash the same was also made by way of amending the writ petition.

12. Sri Rajat Rajan Singh making submissions on behalf of the appellants-petitioners, has submitted that the reasons indicate by the Commission in its order dated 02.03.2023 refusing the prayer of the appellants-petitioners are not germane in as much as the reasons indicated therein are not available to the Commission to deny their prayer. He has also submitted that reliance placed by the Commission on the judgment rendered by Hon'ble Supreme Court on 20.02.2020 in the case of Union of India v. Federation of Self-Financed Ayurvedic Colleges Punjab & Ors. (Civil Appeal No. 603 of 2020) is misplaced in as much as considering the dictum of the said judgment, the Hon'ble Supreme Court in a later judgment rendered on 08.02.2021 in the case of Harshit Agarwal & Ors. v. Union of India & Ors (Writ Petition (C) No. 54 of 2021) has held that the only relevant factor to be considered by the Commission while exercising its discretion under the Proviso appended to Regulation 5(2) of the Regulations is the non-availability of eligible students and further that consideration of factors other than the said factor would be the result of influence by irrelevant or extraneous matters. Sri Rajat Rajan Singh has drawn our attention to another judgment dated 29.04.2022 of the Hon'ble Supreme Court in the case of Kunal & Ors. v. Union of India & Ors. (Writ Petition (Civil) No. 290 of 2022 decided on 29.04.2022) and has submitted that noticing the judgment in the case of Harshit Agarwal (supra) the Supreme Court in Kunal & Ors. (supra) has agreed with the dictum of Harshit Agarwal (supra).

13. Several other arguments have also been made by the learned counsel appearing for the appellants-petitioners by submitting that the State Government did not conduct the counseling so far as the privately run unaided institutions in the State of U.P. are concerned for all India quota seats to the extent of 15% as is permissible under the relevant Regulations. On the aforesaid count, submission of the learned counsel for the appellants is that learned Single Judge has completely ignored the aforesaid relevant aspects of the matter and has thus erred in dismissing the writ petition filed by the appellants-petitioner. He thus prays that the special appeal may be allowed with the direction to the Commission to lower down the minimum percentile for making admission in the institutions run by the appellants-petitioners.

14. On the other hand, the learned Senior Advocate representing the Commission and the learned counsel appearing on behalf of the Union of India have submitted that relevant factors were considered by the Commission while rejecting the prayer of the appellants-petitioners and as a matter of fact in case the minimum percentile is reduced, the same may result in producing half-baked doctors and that in the facts of the present case alleged non availability of the eligible candidates for admission to the courses in question cannot be a reason to lower down the standards prescribed by the Commission. On behalf of the respondent-Commission it has been argued that the judgment in the case of Harshit Agarwal and Kunal were rendered in the facts of the case and in fact these judgments do not lay down any ratio as a binding precedence. Reliance has been placed by the learned Senior Advocate representing the Commission on the judgment of the Hon'ble Supreme Court rendered on 09.05.2022 in the case of NIMS University v. Union of India & Ors, reported in 2022 SCC OnLine 644 for submitting that the issue as to whether percentile should be reduced, is a matter of academic policy and the reasons which might have weighed with the Commission for declining to reduced percentile, cannot be said to be arbitrary or extraneous.

15. Our attention on behalf of the Commission and the Union of India has also been drawn to two letters- (i) the letter dated 17.02.2023 written by the Special Secretary in the Ministry of Ayush, Government of India to the Additional Chief Secretary (Health and Family Welfare Department, Government of Gujarat) and (ii) the letter dated 24.02.2023 written by the Director, Ministry of Ayush, Government of India to the Central Government Standing Counsel representing the Government of India before the Hon'ble High Court of Madras in a related matter. Sri Chaturvedi has submitted that in fact the Government of India in the aforesaid two letters gave adequate reasons which weighed with the Commission while passing the order dated 02.03.2023 refusing the prayer of the appellants-petitioners to lower the percentile for the purposes of making admission to the courses in question. According to him, one reason indicated in the said letters is that since the Central Counseling Committee had already conducted 5 rounds of counseling till 15.02.2023, as such even if the cut-off percentile is reduced, additional eligible candidates on account of reduced cut-off percentile will not get a chance to participate in the counseling. It has also been argued that the Government of India is of the opinion that the conversion algorithm has already been applied on the all India quota seats which were not opted by any candidate and hence even on account of the reduced percentile cut-off, additionally eligible candidates will not get the reserved seats as the said seats have already been occupied on the basis of such conversion algorithm. The third reason, as argued by Mr. Chaturvedi on the basis of the aforesaid two letters, is that approximately 52,274 Ayush seats were available for the current academic year as against which 9,93,069 candidates have qualified and hence there does not appear to be any shortage of qualified candidates. Sri Chaturvedi has further argued that NEET-UG is conducted not only for making admissions to the undergraduate courses in Indian systems of medicines but also to undergraduate courses in Allopathic system of medicine (M.B.B.S.) and also to the undergraduate courses in Dental Science (B.D.S.). He has further stated that as against the total seats of about 2 lakh in these courses, the candidates who were declared to have obtained the minimum cut-off percentile in NEET-2023 are 9,93,069. His further submission is that out of these 9,93,069 candidates, only two lakh seats are to be filled in. Thus about 8 lakh candidates declared successful on the basis of cut-off percentile have not taken admission anywhere and accordingly it is not a case where the candidates are not available rather it is a case where the available candidates have exercised their option not to seek admission in the institutions being run by the appellants-petitioners.

16. Further submission on behalf of the Commission is that NEET 2022 carried 715 marks and the cut-off marks for the general category candidates to qualify is 117 whereas for reserved category of Scheduled Casts, Scheduled Tribes and Other Backward Classes it is 93. The submission is that the minimum cut-off marks for admission to undergraduate courses as prescribed by the Commission itself are considerably low for the different categories of candidates and further lowering of such marks will ultimately result in compromising with the merit, which will not be in public interest also.

17. On the aforesaid counts, the submission on behalf of the Union of India and the Commission, is that the order passed by the learned Single Judge in this case need not be interfered with.

18. So far as the State of UP is concerned, our attention has been drawn to the Government Order dated 19.12.2022 according to which the State Government conducted counseling for 85% state quota seats in the Government Ayurvedic/ Unani and Homeopathic colleges and it also conducted counseling for 100% seats, which included 85% State Quota seats and 15% all India quota seats, in private colleges. It has thus been argued by the learned Chief Standing Counsel Sri Shailendra Singh that the submission of the learned counsel for the appellants-petitioners that no counseling by the State was conducted against 15% all India quota seats, is factually incorrect. Apart from the aforesaid, learned counsel representing the State has submitted that rest of the issues do not concern the State Government.

19. We have given our thoughtful consideration to the rival submissions made by the learned counsel representing respective parties. The sheet anchor of the arguments advanced by the learned counsel for the appellants-petitioners is the judgment in the case of Harshit Agarwal (supra). So far as the assertion that State Government had not conducted counselling for 15% all India quota seats is concerned, in view of the statement made by the learned Chief Standing Counsel appearing for the State as also having regard to the Government Order dated 19.12.2022, this submission appears to be incorrect which is thus not acceptable.

20. As noticed above, heavy reliance has been placed by learned counsel representing the appellants-petitioners on the judgment in the case of Harshit Agarwal (supra) where the earlier judgment in the case of Federation of Self-financed Ayurvedic Colleges (supra) has been noticed and it has been stated that consideration of factors other than availability of eligible students would be the result of the Commission being influenced by irrelevant or extraneous matters.

21. Reliance has also been placed by the learned counsel representing the appellants on Kunal & Ors. (supra) wherein a reference to Harshit Agarwal (supra) has been made. Reference to yet another judgment by Supreme Court in the case of NIMS (supra) has been made by the learned counsel representing the commission to refute the submission made on behalf of the appellants-petitioners on the basis of Harshit Agarwal (supra).

22. We now proceed to note the facts under which the aforesaid judgments in the case of Federation of Self-financed Ayurvedic Colleges (supra), Harshit Agarwal (supra) and Kunal & Ors. (supra) have been rendered.

23. The subject matter in the case of Federation of Self-financed Ayurvedic Colleges (supra) was the notification issued by the then existing Central Council of Indian Medicine (the Predecessor of the Commission) and the minimum qualifying marks prescribed therein. Hon'ble Supreme Court, while noticing the submissions made in the said case on behalf of the Council and the Government of India that minimum standards cannot be lowered even for Ayush courses, observed that doctors who are qualified in Ayurvedic, Unani and Homeopathic systems also treat patients and lack of minimum standards in education would result in half-baked doctors being turned out of professional colleges. Hon'ble Supreme Court further observed that non-availability of eligible candidates for admission to Ayush undergraduate courses cannot be a reason to lower the prescribed standards.

24. Thus Hon'ble Supreme Court did not interfere in the prescribed standards on the ground that there was non-availability of eligible candidates for admission.

25. So far as Harshit Agarwal (supra) is concerned, the said case was filed by those who had appeared in NEET 2020 for admission to BDS course and had not obtained the minimum marks prescribed by the Dental Council of India in the regulations. In the said case, in terms of the extant regulations which were in vogue at the relevant point of time, the Dental Council of India had recommended for lowering the cut-off percentile and as per the regulations consideration for lowering the minimum cut-off marks was to be made by the Government of India in consultation with the Dental Council of India. It is in this fact situation where the expert body namely Dental Council of India had recommended to the Central Government for lowering down the cut-off marks, that the judgment in the case of Harshit Agarwal was rendered by Hon'ble Supreme Court wherein the reasons given by the Central Government for not accepting the recommendation of the Dental Council of India were not found sound.

26. So far as the judgment in the case of Kunal (supra) is concerned, in the said case also the Executive Committee of the Dental Council of India had recommended to the Central Government to lower down the qualifying cut-off percentile for NEET UG. However, since the Government of India had not taken any decision on the recommendation made by the Dental Council of India, a writ petition was filed before the Supreme Court under Article 32 of the Constitution of India. During the course of pendency of the said case, it was informed to Hon'ble Supreme Court that a decision was taken by the Union of India not to reduce the minimum percentile fixed for eligibility. It is in these circumstances that referring to the judgment in the case of Harshit Agarwal, Hon'ble Court while disposing of the said matter by means of the order dated 29.04.2022, directed the Central Government to reconsider the issue relating to re-fixation of the cut-off percentile. Thus so far as the judgments in the case of Harshit Agarwal and Kunal (supra) are concerned, it is noticeable that in both the cases, the body of experts, namely Dental Council of India, had already found it appropriate to lower down the cut-off percentile for the purpose of facilitating the admission in BDS course, whereas in the present case, such a prayer has been rejected by the experts' body i.e. the Commission.

27. We may now refer to the judgment relied upon by learned counsel for the Commission in the case of NIMS University (supra). In the said judgment Hon'ble Supreme Court has clearly held that the issue as to whether cut-off marks should be reduced or not is a matter of academic policy and that it is not possible for the Court to entertain such requests by directing reduction in the percentile. Though the matter in the case of NIMS University (supra) related to admission in Super Specialty courses, however, so far as fixing of cut-off marks etc. for the purposes of making admission even in the undergraduate courses is concerned, decision in respect of fixation or reducing or enhancing minimum percentile, in our opinion, is a matter of policy that is one of the primary functions and duties of the Commission, which is an autonomous statutory body created by an Act of parliament.

28. As regards the submission of the learned counsel for the appellant that insufficiency of number of candidates is the only relevant consideration for determining as to whether the minimum marks for admission are to be lowered or not is concerned, we may deal with the said issue in the light of the provisions contained not only in the proviso appended to Regulation 5 (2) of the Regulations, but also keeping in view the entire scheme of the Act, 2020 and the Regulations framed thereunder.

29. Proviso appended to Regulation 5(2) of the Regulations runs as under:-

"Provided further that where sufficient number of candidates in the respective category fail to secure minimum marks in the National Eligibility- cum-entrance Test held for any academic year for admission to undergraduate programme, the National Commission for Indian System of Medicine in consultation with the Central Government may at its discretion lower the minimum in consultation with the Central Government may as its discretion lower the minimum marks required for admission to undergraduate programme for candidates belonging to respective category and marks so lowered by the Central Government shall be applicable for that academic year only."

30. No doubt, the said proviso envisages a situation where the Commission has to exercise its discretion for lowering the minimum marks required for admission, where sufficient number of students in the respective category fail to secure minimum marks in NEET, however, such provision is to be considered and construed in the light of the provisions of the Act, 2020. As noticed above, the very purpose of enacting Act No. 14 of 2020 was to improve access to quality medical education and to ensure availability of adequate and high quality medical professionals of Indian System of medicines in all parts of the country. Thus, if the Commission takes into account any factor which is relevant for the purposes of improving access to quality medical education and which would ensure availability of high quality medical professionals of Indian system of medicine, in our considered opinion the said factors will not be irrelevant even while exercising the discretion vested in the Commission under the proviso appended to Regulation 5(2) of the Regulations. But consideration of such factors will be germane to the purpose for which the Commission has been created under the 2020 Act. If we, thus, examine the submissions of the learned Counsel for the petitioners in the light of what we have noticed above, what we find is that the Commission while rejecting the prayer of the appellants-petitioners has assigned the reason that the eligibility criteria was fixed to maintain the quality of education and to give opportunity to well qualified and skillful students to become professionals in the field of Indian system of Medicine. Further reason assigned therein is that such doctors have to deal with the patients' life and thus merit cannot be disregarded.

31. If we further examine the reason given by the Commission in the order dated 02.03.2023 in the light of undisputed fact that though NEET UG carries 715 maximum marks and the cut-off marks for general category candidates has been fixed at 117 and those for reserved category has been fixed to be 93, though this Court is not expert in such matters, however, we have no reason to disagree with the Commission's view that further lowering the cut-off marks will not be conducive for the purpose for which NEET is organized i.e. to select the best of the candidates to pursue medical courses in Indian systems of medicine.

32. The submission made on behalf of the appellants-petitioners that there exists non-availability of the candidates and because of their non-availability seats in their institutions remained unfilled also does not impress us for the simple reason that the total available candidates on the basis of existing cut of percentile are 9,93,069 whereas the total number of seats to be filled in all streams of the undergraduate courses is only 2 lakhs. Accordingly, the possibility of available candidates who are credited with more percentile than the cut-off percentile having not opted for the institutes run by the appellant-petitioners, cannot be denied.

33. For the discussion made and the reasons given above we do not find any good ground to interfere with the order passed by the learned Single Judge. Resultantly special appeal is dismissed.

34. However, before parting with the case we may make certain observations about the manner in which the decision by the Commission embodied in the letter/order/circular dated 02.03.2023 has been arrived at.

35. We have quoted the proviso appended to Regulation 5(2) of the Regulations which vests the authority in the Commission to take a decision in its discretion for lowering the minimum marks required for admission to undergraduate programmes for the candidates belonging to respective categories. According to the said provision, the Commission has to take a decision in consultation with the Central Government in a situation where sufficient number of candidates in respective categories are not available because of the fact that they could not secure the minimum marks in NEET. However, the order dated 02.03.2023 does not make any mention of the Commission having consulted the Central Government. Even the learned Senior Advocate representing the Commission has fairly admitted that no consultation in writing was held with the Central Government, rather before taking the decision dated 02.03.2022 verbal telephonic conversation took place between the authorities of the Commission and the officers of the Central Government wherein the Commission was apprised of the Central Government stand as is contained in the two letters mentioned above, namely the letter dated 17.02.2023 from the Ministry of Ayush, Government of India addressed to the State of Gujarat and the letter dated 24.02.2023 written by the Director, Ministry of Ayush to the learned Standing Counsel representing the Central Government before the Hon'ble High Court of Madras.

36. It is to be noticed that except the proviso appended to Regulation 5(2) of the Regulations, there is no other provision which empowers the Commission to take a decision regarding lowering of cut-off marks. It is also to be noticed that it is under the directions issued by this Court vide its order dated 17.02.2023 in Writ Petition (C) No.1313 of 2023 that the Commission was to consider the issue relating to lowering of the cut-off percentile.

37. Once the proviso mandates the decision to be taken by the Commission only after consultation with the Central Government, it was mandatory and binding on the Commission to have properly and appropriately consulted the Central Government before passing the order dated 02.03.2023. Even if the Central Government had expressed its views in the letters as aforesaid, dated 17.02.2023 and 24.02.2023, that in itself would not amount to consultation for the reason that none of the letters were addressed to the Commission and even their copies were not endorsed to the Commission. While making the decision, the verbal information said to have been provided by the Central Government to the Commission regarding these two letters could have been noticed and noted.

38. In the aforesaid view of the matter it appears that the Commission has not followed the mandate of the proviso appended to the Regulation 5(2) of the Regulations by not consulting the Central Government.

39. There is yet another issue which we notice and that is in relation to the ambiguity which exists in the proviso appended to Regulation 5(2) of the Regulations. If we peruse the said proviso with care and precision, what we find is that the earlier part of the proviso states that the Commission will take a decision in its discretion to lower the minimum marks in consultation with the Central Government, however, the later part of the said proviso itself states that marks so lowered by the Central Government shall be applicable. Thus the ambiguous language in which the proviso is couched has the potential of creating confusion in as much as it is not clear as to in the matter of lowering the cut-off marks for admission which is the final authority, the Commission or the Government of India.

40. We thus call upon the Commission and the Government of India in the concerned department and ministry to look into the aforesaid aspect of the matter and take corrective measures so that ambiguity which we have noticed in the proviso appended to Regulation 5(2) of the Regulations and its earlier and later parts may be reconciled.