Shaikh Ainashwa Mohd Habeebuddin vs The State Of Maharashtra And ...
2021 Latest Caselaw 14755 Bom

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         IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                      BENCH AT AURANGABAD

                        WRIT PETITION NO.7936 OF 2020

Shaikh Ainashwa Mohd.Habeebuddin,
Age-20 years, Occu-Education,
R/o Khultabad, Tq.Khultabad,
Dist.Aurangabad                                             -- PETITIONER

VERSUS

1. State of Maharashtra,
   Through the Secretary for
   Medical Education and Drugs Department,
   Mantralaya, Mumbai

2. The Director of AYUSH
   Maharashtra State, Mumbai,

3. The University of Health Sciences,
   Dindori Road, Nashik,
   District : Nashik,
   Through its Registrar

4. Sayali Charitable Trust's
   Colleve of Homeopathy
   Nityanand Park, Near;
   Kasliwal Tarangan, Mitmita,
   Nashik Road, Aurangabad,
   Dist.Aurangabad,
   Through its Principal,

5. State CET Cell Maharashtra,
   8th floor, New Excelsior Building,
   Fort, Mumbai,
  Through its Commissioner                               -- RESPONDENTS

Mr.V.D.Hon, Sr.Counsel h/f Mr.A.V.Hon, Advocate for the petitioner. Mr.P.S.Patil, AGP for respondent Nos. 1 and 2.

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Mr.K.C.Sant, Advocate for respondent No.3.

None for respondent No.4.

Mr.M.D.Narwadkar, Advocate for respondent No.5.

( CORAM : RAVINDRA V. GHUGE & S.G. MEHARE, JJ)

DATE : OCTOBER 8, 2021

PER COURT :

1. We have considered the strenuous submissions of the learned

Sr.Advocate for the petitioner and the learned Advocate for respondent

Nos.1 to 3 and 5. Though this matter was heard for more than one

hour, the learned Advocate for respondent No.4/Management has not

appeared before the Court.

2. The petitioner, a student of B.H.M.S. Course, purportedly

admitted on 12/10/2019 in the respondent No.4 college, has put forth

prayers B, C, D and E as under :-

"B. Issue a writ of certiorari or writ in the nature of certiorari to

quash and set aside the communication dated 31/08/2020 of the

Director of AYUSH, Maharashtra State, Mumbai to the extent of

the petitioner holding that the petitioner is not eligible for

admission to B.H.M.S. Course.

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C. Issue a writ of mandamus or writ in the nature of mandamus

to the respondents to hold and declare that the petitioner is

eligible for admission to B.H.M.S. course as she complies with the

NEET-UG eligibility criteria applicable to the O.B.C. category

student and the petitioner be permitted to pursue the course and

appear for the examination of B.H.M.S. Course.

D. Pending the hearing and final disposal of this writ petition

grant stay to the operation, implementation and execution of the

communication dated 31/08/2020 of the Director of AYUSH,

Maharashtra State, Mumbai to the extent of the petitioner only.

E. Pending the hearing and final disposal of this writ petition

issue writ, order or directions to the respondent No.3

Maharashtra University of Health Sciences, Nashik to issue hall

ticket to the petitioner for B.H.M.S. examination of first year

scheduled to be held on 24.11.2020 and the petitioner be

permitted to appear for the said examination and to declare her

result."

3. The undisputed factors emerging from the record and the

submissions of the parties, are as under :-

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[a] The NEET-UG Exam 2019 was conducted by respondent No.5

authority.

[b] The petitioner had filled in application Form No.9195062079.

[c] In the said State Common Entrance Application Form, the

petitioner has mentioned her choice on reservation as under :-

Reservation status of the candidate- OPEN

Select Specified Reservation - NONE

[d] The minimum marks for the open category were 120.

[e] The minimum marks for the OBC category were 107.

[f]     The petitioner scored 113 marks.

[g]     The admission to the B.H.M.S. course is based on the marks

        scored by a candidate in the NEET test.

[h]     The petitioner has placed before the Court a receipt bearing

No.559 dated 12/10/2019 indicating deposit of Rs.50,000/- as

tuition fees. The receipt appears as under :-

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[i] A bonafide certificate was issued by the Management dated

14/10/2019 declaring that the petitioner was a student of the said

college.

[j] The petitioner acquired a caste certificate on 14/01/2020, which

indicates that she belongs to the MUJAWAR caste which is recognized

as OTHER BACKWARD CLASS (OBC).

[k] The petitioner received a certificate of validity on 11/11/2020

certifying her caste as belonging to MUJAWAR 339.

[l] The Management wrote a letter to the Director, Directorate of

Aayurveda, Mumbai on 31/07/2020 for recognizing the petitioner as a

student who had not registered in CET - 2019/2020. She was made to

pay a fine of Rs.15,000/-.

[m] On 31/08/2020, the Director AAYUSH addressed respondent

No.5, which is the admission regulatory authority, declaring that

respondent No.4 college had illegally admitted the petitioner when her

NEET score of 113 was less than the minimum score of 120 required for

the open category.

[n] The college Management wrote to respondent Nos.2 and 5 on

13/11/2020 that the petitioner was admitted through the Institute/

Management quota. She had applied for admission from the Open

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Category as she did not have a caste certificate. She was admitted in

the quota reserved for the OBC category on the condition that she

would submit her caste certificate and validity certificate. She had

scored 113 marks and was eligible from the OBC category which

required a minimum of 107 marks. She has paid Rs.15,000/- as

penalty and therefore her admission should be regularized.

4. The learned Senior Advocate has vehemently contended that the

petitioner is not at fault. She does belong to the MUJAWAR caste and

falls under the OBC category. She has honestly stated at the time of

filling in the NEET form that she applied from the Open Category as she

did not have the caste certificate. Subsequently, she has received her

caste certificate and has also received a validation certificate from the

competent committee.

5. The learned Senior Advocate has then relied upon the judgment

delivered by the Hon'ble Apex Court in Civil Appeal No.603/2020 filed

by Union of India Vs. Federation of Self Financed Aayurvedic Colleges,

Punjab and others alongwith other petitions, decided on 20/02/2020.

He refers to paragraph Nos.4, 7 and 9 to 12, which read as under :-

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"4. As stated above, the point that arises for our consideration is whether the students seeking admissions to Under Graduate courses (BAMS, BUMS, BSMS and BHMS) and Post Graduate courses can be denied admission on the ground that they did not take the NEET or that they did not get the minimum percentile prescribed by the 2018 Regulations. It would be convenient to refer to the facts in SLP (C) No.29 of 2020 which has been filed against the judgment of the High Court of Punjab and Haryana dated 18.12.2019 in Civil Writ Petition No.23710 of 2019 (O&M), as the lead matter.

7. Per contra, Ms. Pinky Anand, the learned Additional Solicitor General appearing for the Central Council submitted that the 2018 Regulations are perfectly valid having been made in the valid exercise of the power conferred on the Central Council under Section 36 of the Act. Ms. Anand submitted that Section 22 of the Act pertaining to the minimum standards of education in Indian Medicine includes the power to conduct entrance examination for admission to the Under Graduate courses. According to Ms. Anand, the Central Council is not denuded of the power to make Regulations as Section 36 of the Act enables the Council to make Regulations generally to carry out the purposes of the Act. She urged that the minimum qualifying percentile fixed for admission to the Under Graduate courses (BAMS, BSMS, BUMS and BHMS) is required to be maintained in order to ensure minimum standards of education. She contended that general standards for admission to professional courses are fixed on the basis of a detailed study and the correctness of such decision is beyond the ken of this Court.

9. We are in agreement with the contention made on behalf of the students and the Institutions that introduction of an all India examination will not be covered by Section 36 (i), (j) and (k) of the Act. However, Section 36 (p) refers to any matter under the Act for which provision may be made by the Regulations. In our considered opinion, Section 22 which deals with the minimum standards of education in Indian Medicine, covers the topic of an

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all India common entrance examination. We are supported in this view by a judgment of this Court in Veterinary Council of India v. Indian Council of Agricultural Research1. Section 22 of the Veterinary Council of India Act is in pari materia with Section 22 of the Indian Council of Medicine Act. An all India common entrance examination was introduced by Regulations made by the Veterinary Council of India in 1993 and an examination was conducted pursuant thereto from the academic year 1995-1996. The dispute pertaining to the validity of the Regulations was resolved by this Court by holding that the Veterinary Council of India is authorized to frame regulations prescribing the standards of veterinary education and such power includes power to make Regulations relating to grant of admissions and veterinary qualifications. This Court observed that such authority to frame regulations regarding admissions is necessary for maintaining the standards of education. The instant case is squarely covered by the law laid down by this Court in Veterinary Council of India (supra) therefore, we are of the opinion that the 2018 Regulations cannot be said to be ultra vires the Act.

10. The last date for admissions to the Under Graduate courses for the academic year 2019-2020 was 15 th October, 2019 and 31st October, 2019 for Post Graduate courses. One of the contentions raised on behalf of the Institutions and the students is that a large number of seats in the first year Ayurvedic, Homeopathy and Unani courses are not filled up. To illustrate, Mr. P.S. Patwalia, learned Senior Counsel submitted that there are 540 seats available for admission to the first year BAMS course in Guru Ravidas Ayurved University. Only 27 seats could be filled up in the all India counselling held on 25.06.2019. In the second counselling which was held on 24.07.2019, only 28 candidates were found eligible. After the State counselling, 320 out of 540 seats remained vacant. On the basis of interim orders passed by the High Court of Punjab and Haryana, admissions were made without insisting on NEET and in the process, 275 seats were filled.

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11. Similar statements were made on behalf of the Institutions and the students from the other States that insistence on the minimum qualifying marks in the NEET would render a large number of seats in the Under Graduate courses for the academic year 2018-2019 vacant. A fervent plea was made by the learned counsel appearing for the students that they may be permitted to continue as they have already been admitted and they would lose a precious year in case their admissions are cancelled. In any event, the seats vacated by them cannot be filled up.

12. 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. 15th October, 2019. The said direction is also applicable to students admitted to Post Graduate courses before 31 st October, 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."

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6. He then refers to the order dated 04/05/2021 delivered by this

Court at Nagpur in WP N.410/2021 filed by Takhtmal Shrivallab

Homeopathic Medical College and Hospital and others Vs. Union of

India and others, cited by Advocate Narwadkar, representing the

respondent No.5 Examination Regulatory Authority and contends that

the view taken by the Nagpur Bench would not apply to the case of the

petitioner. No fault can be attributed to the petitioner. She is a young

student and it would be harsh to take away her admission. He further

submits that if the petitioner had produced a false caste certificate or

had obtained a validity certificate fraudulently, she could be deprived of

the said admission. But, this is not the case.

7. The learned Advocate representing respondent Nos. 2, 3 and 5

are united in submitting that the petitioner was surreptitiously admitted

by the College from the OBC category when she was found to have

scored marks below the minimum required for the OPEN category.

Though she may belong to the OBC category, she had never appeared

for the NEET test from the said category. The admissions to the

B.H.M.S. Course are regulated by respondent No.5 and a person taking

the NEET test has to score a minimum of 50% to secure admission from

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the Open Category. As such, on the date of her admission, she was not

eligible as she did not even have a caste certificate which she has

subsequently acquired on 14/01/2020.

8. The learned Advocate representing respondent No.5 refers to the

NEET UT-29 information brochure published by the Govt. of

Maharashtra, Commissionerate, Common Entrance Test Cell and

submits that Rule 4.9, in so far as the minimum percentile marks to be

scored and Rule 9.1.5.1, mandating that the request of an applicant for

change in category from Open to Reserve once the provisional merit list

is declared, will have to be strictly applied. Rule 4.9 and Rule 9.1.5.1.

are as under :-

"4.9 NEET UG 2019 Eligibility for Admission to

MBBS/BDS/BAMS/BUMS and BHMS Courses : A candidate belonging

to open category must secure not less than 50 percentile marks in

Physics, Chemistry and Biology (PCB) taken together at NEET UG-

2019. A candidate belonging to constitutional reservation (Annexure

B); and constitutional reservation with Person with disability claim,

must secure not less than 40 percentile marks in Physics, Chemistry and

Biology (PCB) taken together in the NEET UG -2019. Person with

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disability candidate in General Category must secure not less than 45

percentile marks in Physics, Chemistry & Biology (PCB) taken together

in the NEET UG-2019 or decided by respective central council time to

time.

9.1.5.1. CONSTITUTIONAL RESERVATIONS :-

The candidate should have claimed the constitutional

reservation in the original Online application form for the State of

Maharashtra. For claiming of category, no document required at time

of online registration. Request for category claim after submission

application form will not be granted.

The Caste Certificate and the Caste / Tribe Validity Certificate :-

No document is required to claim the reservation in online application

form. Document is required only at the time of document verification

process. If a candidate claiming reservation in online application form

does not produce document, then he / she will be automatically

considered in open category if otherwise eligible

Candidates belonging to Backward Classes / SEBC / EWS must

have claimed so in his online registration form of Maharashtra State

quota seats, failing which such a claim will not be entertained

subsequently. Candidate belonging to above categories (except EWS)

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should produce Caste Certificate, Caste Validity Certificate and Non-

Creamy Layer Certificate (wherever applicable) at the time of physical

document verification process. However, EWS candidates must

produce eligibility certificate issued by the competent Authority.

Candidate who fails to produce above said certificates will be

considered as Open Category Candidate provided he/she fulfills the

eligibility criteria of NEET-UG 2019.

The applicant request for change in category from Open to

reserve once provisional merit list is declared, will be straight way

rejected. The candidates belonging to the backward class categories

will be required to submit the Caste Certificate / validity at the time of

document verification failing, which the category claimed, will not be

granted and the candidate will be treated as a general candidate.

While applying online all the category candidates must mention their

category as SC, ST, VJ/DT(A), NT-B, NT-C, NT-D, OBC, SEBC and EWS.

EWS reservation - 10% seats of the available seats will be

reserved for EWS candidates. For MBBS/BDS/ BAMS/BHMS and BUMS

courses, this reservation will be applicable only if central Government /

respective council increases existing seats. For courses other than

MBBS/BDS/BAMS/BHMS and BUMS courses 10% EWS reservation will

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be applicable on available seats (refer annexure-T).

The Caste Validity Certificate :

. The candidates belonging to the following Backward Class categories

i.e. SC, ST, VJ/DT(A), NT-B, NT-C, NT-D, OBC, SEBC and EWS will be

required to submit the Caste Validity Certificate at the time of physical

Document Verification, failing which the category claimed, will not be

granted and the candidates will be treated as a general candidate.

[Emphasis Supplied]

9. It is obvious that the petitioner had applied for admission from

the Open Category and specifically declined the option of "select

specified reservation", leaving no choice or discretion with the College

Management to make alterations by converting her admission from

Open Category to OBC Category at the level of the College and that too,

surreptitiously. The permission to do so before admitting the student

was not taken by the College Management from respondent No.2 or 5.

Moreover, no such permission would have been granted, in view of

Rule 9.1.5.1 (underlined portion in the provision reproduced above.)

As such, it is the respondent No.4 College, which has illegally admitted

the petitioner from the OBC category after realizing that she had not

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qualified from the OPEN category though having opted for admission

from the Open Category.

10. The learned Senior Advocate has cited an order dated

15/01/2021 passed by this Court at Aurangabad in WP No.6264/2020

and 7776/2020. Firstly, the said order is by way of an ad-interim

arrangement, in which the respondent colleges were directed to submit

the proposals for verification and scrutiny of documents of the students,

to the Director of Aayush. Secondly and more importantly, it is a

consenting order based on a similar consent order dated 22/12/2020

at the Principal Seat. A consenting order is not to be cited.

11. In the order delivered at Nagpur in Takhta bal (supra) dated

04/05/2021, the Court had considered the judgment delivered by the

Hon'ble Apex Court dated 20/02/2020 in Union Of India (supra),

relevant paragraphs having been reproduced hereinabove. The Nagpur

Bench concluded that the Hon'ble Supreme court had disapproved of

lowering the percentile or admitting students who had scored such

marks which rendered them eligible only after the minimum 50%

percentile was reduced below permissible limits. As a one time

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measure, the admissions were protected for reasons which are evident

from the paragraphs reproduced above. The Hon'ble Apex Court has

specifically observed in paragraph No.12 that this is a one time

exercise, which is permitted in view of the peculiar circumstances and

the said order shall not be treated as a procedent. The Nagpur Bench,

therefore, declined to regularize the admissions of the students who

were admitted in colleges for the B.H.M.S. course and were taking

education, despite having scored below the qualifying (minimum) marks.

12. In Union of India (supra), the Hon'ble Supreme Court was

dealing with a case of students having been admitted though having

scored lesser marks. It was held that such students become doctors

and treat patients. Lack of minimum standards of education would

result in half baked doctors. Non availability of eligible candidates

cannot be a reason to lower the standards prescribed by the Nodal Body

dealing with admissions.

13. In the case in hand, the College admitted the petitioner by

converting her admission from Open Category to the OBC category,

knowing fully well that she had scored below the minimum required for

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the OPEN category. The college also knew that she did not have even a

caste certificate, much less a caste validity certificate. Rule 4.9

mandates that a candidate applying from any reserved category will

have to submit the caste certificate / validity certificate at the time of

document verification, failing which, the category claimed would not be

granted and the candidate will be treated as a General Candidate. As

such, when the College Management was bound by the said provisions,

it could not have admitted the petitioner to the said Course by

indulging in an illegality of changing her admission from the OPEN

category to the reserved category at it's personal level.

14. In view of the above, this petition fails. The same is dismissed.

15. We leave it open to the petitioner to deal with the Management

for the illegal admission and we express no opinion on the same. In the

event, the petitioner initiates any legal action against the Management,

the observations made in this order would not come in way of the

litigating parties.

16. At this juncture, the learned Senior Advocate submits that if there

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are seats available so as to accommodate the petitioner from the

Management Quota, she would prefer to make an application to

respondent No.5.

17. The learned Advocate representing respondent No.5 submits that

he would not make any statement except that if such an application is

filed, it would be scrutinized strictly within the permissible limits of the

provisions and the law applicable.

      ( S.G. MEHARE, J. )                     ( RAVINDRA V. GHUGE, J. )




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