Jumrani Gautam Anilkumar And Ors vs Union Of India Thr Ministry Of ...
2022 Latest Caselaw 12839 Bom

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        Digitally signed
ANANT   by ANANT


                                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
KRISHNA KRISHNA NAIK
        Date: 2022.12.15
NAIK    10:06:33 +0530




                                      APPELLATE SIDE CIVIL JURISDICTION

                                         WRIT PETITION NO. 2223 OF 2022

                           Jumrani Gautam Anilkumar & Ors                    ....PETITIONERS
                                V/S
                           Union Of India Thr Ministry Of Ayush & Ors.       ...RESPONDENTS

WITH WRIT PETITION (ST) NO. 5004 OF 2022

Chaudhary Zoha Maimuna Aslam Parvez & Ors ....PETITIONERS V/S Union Of India Through Ministry Of Ayush & Ors ....RESPONDENTS

WITH WRIT PETITION NO. 2224 OF 2022

Abnave Sneha Pramod & Ors ....PETITIONERS V/S Union Of India Thr. Ministry Of Ayush & Ors. ...RESPONDENTS

WITH WRIT PETITION NO. 12490 OF 2022

Isha Y Gangwane & Ors ....PETITIONERS V/S Union Of India Thr Ministry Of Ayush & Ors. ...RESPONDENTS

WITH WRIT PETITION NO. 5556 OF 2022

Gondhale Vaishnavi Ramnath & Ors ....PETITIONERS V/S Union Of India Thr. Secretary Ministry Of Ayush & Ors ....RESPONDENTS

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WITH WRIT PETITION NO. 8126 OF 2022

Pranali Mahesh Karande & Ors. ... PETITIONERS Vs Union of India, Thr Ministry of Ayush & Ors. ... RESPONDENTS.

WITH WRIT PETITION NO. 5558 OF 2022

Choudhari Daminee Suresh & Ors ...PETITIONERS V/S Union Of India Thr. Secretary Ministry Of Ayush & Ors ....RESPONDENTS

Mr. V. B. Naik, Sr. Adv. i/by Adv. Suryajeet P. Chavan for the Petitioners in WP/2223/2022, WP/5004/2022, WP/2224/2022 & WP/12490/2022.

Mr. Mihir Desai, Sr. Adv. i/by Adv. Rajaram V. Bansode for the Petitioners in WP/5556/2022, WP/8126/2022, WP/5558/2022 Mr. R. V. Govilkar a/w Adv. Mihir Govilkar, Adv. A. R. Gole, Adv. Vaishali Botle for the Respondent no. 1 in all Writ Petitions. Mr. Sameer Khedekar a/w Adv. Jagruti Vemula for the Respondent nos. 3 & 7 in all Writ Petitions.

Mr. Sachin Shetye a/w Adv. R. V. Govilkar, Adv. Mihir Govilkar for the Respondent no. 5 in all Writ Petitions. Mr. N. K. Rajpurohit AGP for the State.

CORAM : NITIN W. SAMBRE & SHARMILA U. DESHMUKH, JJ

DATED : 12th DECEMBER, 2022 P.C.:

1. Heard Mr. Naik, learned senior counsel for the petitioners in

first four writ petitions i.e. WP/2223/2022, WP/5004/2022,

WP/2224/2022 & WP/12490/2022 & Mr. Desai, learned senior

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counsel for the petitioners in WP/5556/2022, WP/8126/2022,

WP/5558/2022.

2. In all these writ petitions the claim of the petitioners is

pertaining to the regularization of admissions to the bachelor of

homeopathy course / for declaration of results of the examination

of first year and second year, permission to appear for next year

examination.

3. Out of the first four writ petitions, the prayers in the

WP/2224/2022 reads thus:

(a) That by an order of this Hon'ble Court, a Writ of Mandamus or any other Writ in the nature of Mandamus be issued directing the Respondents to declare the Results of the petitioners;

(b) That by an Order of this Hon'ble Court, a Writ of Mandamus or any other Writ in the nature of Mandamus be issued directing the Respondents to accept the examination forms of the Petitioners and a further direction to permit the Petitioners to appear for 1st year and 2nd year Homeopathy examination;

(c) That by an Order of this Hon'ble Court a Writ of Mandamus or any other Writ in the nature of Mandamus directing the Respondents to regularize the admission of the Petitioners in view of the directions issued by the Hon'ble Supreme Court vide its Order dated 20/02/2020 passed in Civil Appeal No. 603 of 2020.

(d) That by an Order of this Hon'ble Court pending the hearing and final disposal of the present Writ Petition the Respondents be directed to allow the Petitioners to appear for the 1st Year and 2nd Year Homeopathy

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examination scheduled to held in the month of March, 2022."

4. As far as second bunch of writ petitions, which are argued by

Mr. Desai, learned senior counsel prayers in WP/556/2022 are as

follows:

(a) This Hon'ble Court may be pleased to issue a writ of certiorari or writ in the nature of direction and thereby direct the Respondent Authority i.e. Respondent No. 5. ARA to grant approval to the admissions of the present petitions for the 1st year of BHMS Degree Course for the academic year 2020-2021 in the Respondent No. 9 Homeopathic Medical College in view of the Hon'ble Supreme Court's order dated 03.02.2021 passed in Civil Appeal No. 867/2021 and other civil Appeals.

(b) This Hon'ble Court may be pleased to issue a writ of certiorari or writ in the nature of direction and thereby direct the Respondent no. 5 ARA & Respondent No. 7 University i.e MUHS Nashik to accept the 1 st year BHMS exam application forms and allow all the Petitioners to appear and/or to face the 1st year BHMS (2015) examination for the academic year 2020-2021 which will be held in the month of January/February 2022 or soon thereafter subject to the outcome of the present writ petition.

(c) Pending the hearing and final disposal of this writ petition, direct the Respondent No. 5 ARA & Respondent No. 7 University i.e. MUHS, Nashik to accept the 1st year BHMS exam application forms and allow all the Petitioners to appear and/or to face the 1 st year BHMS (2015) examination for the academic year 2020-2021 which will be held in the month of January/February 2022 or soon thereafter subject to the outcome of the present Writ Petition.

(d) Interim/Ad-interim relief be granted in terms of prayer

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clauses (c) in favour of the Petitioners.

5. The petitioners in the first four writ petitions alleged that

they were admitted to first year Bachelor's of Homeopathic

Medicine and Surgery (BHMS) Course for the academic year 2019-

20 and 2020-21 in the respondent no. 6-college. It is claimed that

the aforesaid admissions were carried out at the college level on

or before 15/10/2019 by the college authority as the petitioners

pursuant to their qualification in NEET examination were not

qualified to get admissions having scored less than the qualifying

marks. The reference to the admissions prior to 15/10/2019 is

claimed to be only for the purpose of same being cut-off date

fixed by the orders of the Apex Court for admissions of graduate

medical course. For the aforesaid four years under graduate

course of homeopathy, it is claimed that as per the regulations

framed by Homeopathy Central Council Act, 1973 the qualifying

marks of the candidates are considered from HSC examination.

6. It is claimed by the petitioners that as per Central Council of

Homeopathy (Degree Course) Regulations, 1983 the marks

obtained in 10+2 examinations after having studied last two years

the subject of physics, chemistry and biology were qualified to get

admission in first year BHMS Course. It is claimed vide

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amendment dated 14/12/2018 a proviso was inserted vide clause

4A. As per amended clause 4A the requirement is made necessary

of 50% percentile in NEET examination.

7. According to the petitioners since the aforesaid clauses i.e.

4A were subject matter of challenge in various High Courts and

subsequently before the Apex Court, the Apex Court has issued

directions vide order dated 20/02/2020 passed in Civil Appeal No.

603 of 2020 and connected matters. According to the petitioners

vide said order of the Apex Court admissions of the students like

that of petitioners are protected provided they are admitted prior

to 15/10/2019 to the undergraduate course. It is also stated by the

petitioners that issue of non-compliance of the provisions of

section 20 of the Central Council Act was kept open to be agitated

before the High Courts.

8. In this background, the petitioners claim that they

continued to appear for first year BHMS examination and

subsequently they have approached this Court vide

WPST/94490/2020 seeking necessary reliefs in the matter of

regularization of the admissions of the petitioners and acceptance

of their examination forms so as to enable the petitioners to

appear for first year homeopathy examination. The High Court by

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consent of the parties was pleased to issue directions to the

colleges to submit their proposals for scrutiny of documents of

students admitted for the academic year 2019-20 with the

respondents who in turn were directed to forward the same to the

university. The aforesaid orders are claimed to have been passed

keeping in mind the spirit of order dated 20/02/2022 referred

supra by the Apex Court in Civil Appeal No. 603 of 2020. The High

Court in the aforesaid matter claimed to have given a time bound

directions to the respondents while disposing of the said writ

petitions. It is also stated that in view of the aforesaid directions,

the respondent-Admission Regulating Authority (ARA) has

regularized the admission of the students pursuant to

recommendations of the Directorate of AYUSH, Maharashtra State,

Mumbai. According to the petitioners, in view of above the

petitioners have appeared for the examination, however, the

respondents are intentionally not declaring their results, which has

prompted them to prefer the present petitions.

9. The submission of Mr. Naik, learned senior counsel appearing

for the petitioners are, the challenge to the clauses 4A were

subjudiced before various High Courts and the Supreme Courts.

Relying on the judgment of Karnataka High Court delivered on

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31/08/2021 in WP/100650/2021 and WP/100652/2021, the

amended regulations which were gazetted on 14/12/2018 &

19/06/2019 were set aside as illegal and arbitrary. He would

further urge that directions are issued by the Karnataka High

Court to approve the admissions of the students. As such,

according to Mr. Naik, the insertion of the clause 4A in the existing

regulations are already set aside as illegal and arbitrary and that

being so the qualification prescribed i.e minimum 50% percentile

in NEET examination cannot be made a qualifying criteria for the

petitioners.

10. Relying on the sub Article 2 of Article 226 of the constitution

and drawing support from the judgment of Apex Court in the

matter of Kusum Ingots & Alloys Ltd. vs Union of India &

Anr. reported in (2004) 6 SCC 254 he would urge that the order

passed in writ petition questioning the constitutionality of

Parliamentary Act will have effect through out the territory of India

and as such the said judgment of Karnataka High Court has to be

taken into account by this Court for the purpose of determining

the issue.

11. According to Mr. Naik, if the judgment in the matter of Civil

Appeal No. 603 of 2020 decided by the Apex Court on 20/02/2020

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is perused, it can be inferred that so as to avoid the seats going

waste and thereby causing loss to the students and the academic

institutions, the Apex Court has already permitted to continue the

studies by the students who were admitted before 15/10/2019. He

would further urge that the paragraph no. 13 of the said judgment

which deals with the notification dated 14/12/2018 in categorical

terms has left the issue open to be considered by the High Courts.

He would as such urge that in view of the provisions of section

20(2) of the Homeopathy Central Council Act, 1973 once the

Karnataka High Court in the above referred judgment delivered in

in WP/100650/2021 has held that the said notification is illegal,

the admissions of the petitioners must be regularized.

12. In addition to above, Mr. Naik would further urge that the

Division Bench of this Court in WP/6565/2021 with connected

matters decided on 23/02/2022 has granted the relief of

regularizing the admission and also permitting them to appear for

the examination. According to him, the said relief is granted which

is in tune with the judgment of Apex Court delivered in Civil

Appeal No. 603 of 2020. As such, Mr. Naik would urge that the

petitioners are entitled to claim the relief at par with the students

who are granted relief by the Apex Court in the judgments

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delivered in Civil Appeal No. 603 of 2020 so also in WP/6565/2021

referred supra.

13. Further contentions of Mr. Naik are, the petitioners when

approach this Court in WPST/94490/2020 (Sayali A. Sadafule & Ors

vs. Union of India) with other connected matters, by consent an

order was passed thereby directing the respondent-colleges to

submit the proposal for verification and scrutiny of documents of

the students who have been admitted to respondent-colleges for

academic year 2019-20 to the respondent-Director, AYUSH, State

of Maharashtra within a week. He would urge that the Director,

AYUSH was directed to scrutinize the proposals and forward the

same with its recommendations to Admission Regulatory Authority

(ARA) i.e. respondent no. 7 within one week. The ARA thereafter

was directed to examine and verify the proposals within two

weeks from the receipt of the same and it is further directed that

while dealing with the claim of the students like the petitioners,

regard be had to order of the Apex Court dated 20/02/2020 in Civil

Appeal No. 603 of 2020.

14. Mr. Naik accordingly would invite our attention to the

subsequent order passed in aforesaid writ petition on 02/02/2021

so as to claim that since the process as was directed by this Court

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on 22/12/2020 was already undertaken, the said petitions were

disposed of. According to Mr. Naik, respondent no. 7-ARA in

relation to claim of the petitioners for academic year 2019-20, in

view of the aforesaid order passed in the petitions had made

petitioners eligible for the homeopathy course which was though

initially approved by the respondent no. 7-ARA, however

incorporated a rider of requirement of the approval of the State

Government. He would further urge that the ARA had reviewed its

order dated 18/08/2021 and approved admissions of 22 students,

as mentioned in the aforesaid orders of the High Court, subject to

payment of fine of Rs.30,000/- to be paid by the colleges. In view

of above, Mr. Naik would urge that the petitioners were held to be

eligible and accordingly rightly so admitted by the respondent-

colleges to the BHMS Course

15. In this background, the contentions of Mr. Naik is, once the

admissions of the petitioners were regularized by the Directorate

of AYUSH, the Admission Regulatory Authority, the MUHS as such

was justified in permitting the petitioners to appear for the

examination of 1st and 2nd year BHMS Course. As such, Mr. Naik

would urge that this Court needs to allow the Writ Petitions of the

petitioners in accordance with the prayer clauses thereby not only

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declaring the admissions of the petitioners to be regularized but

also by permitting them appear for the requisite examination after

their results are declared.

16. As far as WP/5556/2022, WP/5558/2022 and WP/8126/2022

for the purpose of deciding the issue, we need to consider the

reliefs claimed in the one of the lead writ petition i.e

WP/5556/2022. The prayer in the said petition reads thus:

(a) This Hon'ble Court may be pleased to issue a writ of certiorari or writ in the nature of direction and thereby direct the Respondent Authority i.e. Respondent No. 5. ARA to grant approval to the admissions of the present petitions for the 1st year of BHMS Degree Course for the academic year 2020-2021 in the Respondent No. 9 Homeopathic Medical College in view of the Hon'ble Supreme Court's order dated 03.02.2021 passed in Civil Appeal No. 867/2021 and other civil Appeals.

(b) This Hon'ble Court may be pleased to issue a writ of certiorari or writ in the nature of direction and thereby direct the Respondent no. 5 ARA & Respondent No. 7 University i.e MUHS Nashik to accept the 1 st year BHMS exam application forms and allow all the Petitioners to appear and/or to face the 1st year BHMS (2015) examination for the academic year 2020-2021 which will be held in the month of January/February 2022 or soon thereafter subject to the outcome of the present writ petition.

(c) Pending the hearing and final disposal of this writ petition, direct the Respondent No. 5 ARA & Respondent No. 7 University i.e. MUHS, Nashik to accept the 1st year BHMS exam application forms and allow all the Petitioners to appear and/or to face the 1 st year BHMS (2015) examination for the academic year 2020-2021 which will

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be held in the month of January/February 2022 or soon thereafter subject to the outcome of the present Writ Petition.

17. The petitioners therein have appeared for NEET under

graduate, 2020 examination conducted by the Central Board of

Examination, New Delhi. According to them, the petitioners were

admitted on 31/03/2021 alleging to be at the college level

counselling round. According to the petitioners, on the date of

their admission i.e 31/03/2021 they have paid their requisite fees

for admission to first year BHMS Decree Course for the academic

year 2021. The Petitioners further claim that the respondent no. 5

in the said petition i.e. ARA has provisionally approved the

admissions of 67 students. In the light of above, according to

them MUHS vide communication dated 30/09/2021 has informed

that since petitioners are not fulfilling the NEET percentile and PBC

marks, hence they are not eligible for the admission.

18. Mr. Desai, learned senior counsel in addition to the

arguments canvassed by Mr. Naik would continue to urge that

even if the admissions of the petitioners are after cut-off date i.e.

15/10/2019, the regard must had to the fact that the students

academic career is at stake. It is claimed that it is not in the

interest of the students so also the academic institutions to waste

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the valuable medical seats particularly when the country is short

of qualified doctors.

19. He would further urge that in view of the judgment of

Karnataka High Court, once condition of requirement of qualifying

marks in NEET examination i.e. 50% is set aside, only option left is

to consider the marks obtained in physics, chemistry and biology

as was existing before amendment to the Central Regulations by

clause 4.

20. He would further urge that the admissions in all the petitions

including the petitions, which are argued by Mr. Naik, learned

senior counsel are within the sanctioned strength and complete

transparency is maintained at the time of granting admissions at

the college level. As such, he would urge that the benefit of the

judgment of the Apex Court in the matter of Index Medical

College, Hospital and Research Centre vs. State of Madhya

Pradesh & Ors. decided on 03/02/2021 needs to be appreciated.

21. He would urge that the none filling of the medical seats is

not a solution to the problem as the seats being kept vacant

results in financial losses to the management, education

institutions apart from nation wide waste of resources. He would

as such urge that admissions of the petitioners are need to be

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regularized in the light of the the judgment of the Apex Court in

Civil Appeal No. 603 of 2020 so also the orders passed by the High

Court in WP/6565/2021 and WPST/94490/2020.

22. While countering the aforesaid submissions, learned counsel

for the Central Government so also MUHS would oppose the

prayer. According to them, the judgment in Civil Appeal No. 603 of

2020 will not come to the rescue of the petitioners particularly

when the said judgment is deciding right in personem and not

right in rem. It is claimed that the said judgment is delivered

under the exceptional constitutional powers exercised by the

Supreme Court under Article 142 of the Constitution of India to do

complete justice.

23. It is settled principle of law that directions issued under

Article 142 of the Constitution do not constitute a binding

precedent. In support of the aforesaid proposition reliance can be

placed on judgment of the Apex Court in the matter of State of

U.P. vs. Neeraj Avasthi (2006) 1 SCC 667. Powers under

Article 142 can be exercised for issuance of directions to do proper

justice. In support of such directions, reasons recorded by the

Apex Court cannot be considered to be a law laid down under

Article 141 of the Constitution. In view of above, it cannot be said

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that directions given under Article 142 by the Apex Court are

binding under Article 141.

Powers of the High Court under Article 226 cannot be said to

be at par with that of Article 142. In view of above, it cannot be

said that this Court has jurisdiction to direct the regularization of

admission or to evolve a procedure so as to redress the claim of

the Petitioners in exercise of powers under Article 226 based on

the above referred judgment of Apex Court in Appeal No.603 of

2020.

24. He would urge that the Apex Court in the aforesaid judgment

has directed regularization of the admissions of such students who

were admitted under the orders of the High Court. So as to

substantiate the said claim reliance is placed on the observations

made by the Apex Court in the judgment delivered in Civil Appeal

No. 603 of 2020 so also the judgment of the Karnataka High Court.

25. Further contentions of learned counsel for the respondents

are, the orders passed by consent in WPST/94490/2020 on

02/02/2021 is of hardly any consequence as the said judgment is

not adjudicating rights of the parties but is only directing to take

decision on the eligibility of the students.

26. According to learned counsel for the respondents, fees

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regulatory authority or Director, AYUSH has hardly any control

over the admissions to be regularized as these authorities are not

armed with the powers to lower down the minimum qualifying

criterias for the admission to the courses. The further contentions

of learned counsel for the respondents are, the judgment of

Karnataka High Court is restricted to the extent of the petitioners

who were party to the petitions before the admissions of such

petitioners which were made pursuant to the interim orders of the

High Court, which is not the case in hand.

27. According to learned counsel for the respondents,

particularly MUHS, the National Commission for Homeopathy i.e.

respondent herein has already intimated about non-fulfilling the

percentile prescribed by the rules and regularization and as such

the ARA, Government of Maharashtra has no powers to regularize

the admissions. It is also claimed that the petitioners cannot claim

parity with the students who were benefited out of the judgment

of the Apex Court, judgment of the Karnataka High Court and the

orders delivered by this Court.

28. Our specific attention is invited to the another judgment of

this Court delivered in WP/2277/2022 on 01/03/2022 wherein on

identical lines this Court has already dismissed the similar

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challenge. The further contentions of learned counsel for the

respondents are, the respondent-colleges have already

approached this Court questioning the legality of the clause 4 as

amended by notification of 2018 and the association of colleges

were not granted any reliefs by this Court. A specific reliance is

placed on the order of this Court delivered in WP/91141/2019 with

WP/10324/2019 and WP/26178/2019. As such, it is claimed that all

the petitions are liable to be dismissed.

29. We have appreciated the rival submissions.

30. The claim of the petitioners in first group of petitions is that

of based on the principle of parity, based on the judgment of Apex

Court and Karanataka High Court. No other challenge in the

petitions could be noticed.

31. The Apex Court in Civil Appeal No. 603 of 2020 was

considering the validity of the notification issued by the Central

Council of Indian Medicine and Central Counsel of Homeopathy

prescribing an All India National Eligibility cum Entrance Test

(NEET) for admissions to under graduate courses including BHMS.

As per the aforesaid regulation, a minimum qualifying marks for

eligibility to admissions to under graduate course was prescribed

at 50%, minimum marks for scheduled casts, scheduled tribes and

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OBC was prescribed at 40%. The percentile was to be determined

on the basis of marks secured in all India common merit list in

NEET. The notification dated 07/12/2018 was issued by the Central

Council thereby introducing the Indian Medicine Central Council

(Minimum Standard of Education in Indian Medicine) amendment

Regulations, 2018. The Indian Medicine Central Council (Minimum

Standard of Education in Indian Medicine) Regulation 1986 were

amended by 2018 regulation. The regulation 2(d) of the 2018

regulation provide for uniform entrance examination for all

medical institutions i.e NEET for admission to under graduate

courses. The said NEET examination was to be conducted by the

authority as shall be designated by the Central Government.

32. Admittedly, all the petitioners are not qualifying the

aforesaid requirements and as such were not entitled for the

admission based on their NEET qualification. That being so the

petitioners were straightway admitted by the respondent-colleges

to the under graduate BHMS Course.

33. The Apex Court in the said judgment was sensitive to the

issue as to the cut-off date 15/10/2019 for admission to under

graduate courses. We are concerned in the present petitions about

the admissions to the under graduate course i.e BHMS. The Apex

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Court in paragraph nos. 12 & 13 of the said judgment has

observed thus:

"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. 15 th 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.

13. The notification dated 14.12.2018 pertaining to the Homeopathy courses is similar to that of the AYUSH courses. It was contended on behalf of Homeopathy colleges that the procedure prescribed in Section 20(2) of the Homeopathy Central Council Act, 1973 (for short, '1973 Act') was not followed before the amendment was carried out to the Regulations. In view of the paucity of time, no response was filed by the Central Council of Homeopathy or by the Union of India clarifying the factual position pertaining to the non-

compliance of the procedure prescribed under the 1973 Act for making Regulations. In view of the same, we are not in a position to decide the issue raised by the Petitioners in Writ Petition (C) No.1461 of 2019. We leave it open to the Petitioners to raise these issues before the High Court, if

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they deem it fit and proper. It is not necessary to deal with various submissions made by the Appellants in view of the order passed by us permitting the students to continue their studies.

34. As a consequences of the aforesaid observations, the Apex

Court in the backdrop of the admissions of large number of

students to the AYUSH undergraduate course for the year 2019,

on the strength of the interim orders passed by the

various High Courts was pleased to direct that the

students may be permitted to continue their courses

provided they were admitted prior to the last date i.e.

15/10/2019. The said relief was granted by the Apex Court

as one time exercise in view of peculiar circumstances. The

Apex Court has in categorical terms observed that the said

order be not treated as a precedent.

35. Though the Apex Court has left the issue as to non-

compliance of section 20 sub-section 2 of the Homeopathy Central

Council Act, 1973 to the High Court, however, the fact remains

that the said judgment of the Apex Court is having regard to the

powers conferred in it by virtue of Article 142 of the Constitution.

Such powers are not available to the High Court under section 226

of the Constitution. In this background, it cannot be said the

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petitioners are entitled to claim parity whose admissions were

protected by the aforesaid order of the Apex Court.

36. There is one major distinguishing factor which needs to be

noted is, all the students whose admissions were protected by the

Apex Court in the aforesaid judgment were admitted under the

orders of the Court and not like one in the case in hand were the

admissions were carried out by the respondent-colleges at their

own level.

37. This takes us to the next contention of learned counsel for

the petitioners viz. seeking parity with other orders passed by this

Court i.e. WP/6565/2021 with connected matters. No doubt,

Division Bench of this Court has granted relief in favour of the

students, however, it appears that the judgment of the Apex Court

in Civil Appeal No. 603 of 2020 was not brought to the notice of

the said Court while deciding the said petitions. Apart from above,

the Respondent-ARA has supported the case in the petitioners

based on the orders passed in WPST/94490/2020 with connected

matter.

38. If we appreciate the observations made in WPST/94490/2020

with connected matters, what can be noticed is, the Division

Bench of this Court has passed an order by consent only about the

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submitting proposals for verification and scrutiny of the

documents of the students. The respondent-authorities i.e. Central

Council nor the MUHS has never consented for the regularization

of the admissions of the petitioners.

39. As such, it cannot be said that this Court in the aforesaid

WPST/94490/2020 had any intentions to order regularization of

the admissions of the students particularly when said issue was at

all not canvassed while disposing of the petition on 02/02/2021.

Neither the order dated 22/12/2020 nor 02/02/2021 passed in the

aforesaid WPST/94490/2020 orders regularization of the

admissions.

40. Apart from above, the fact remains that the admissions of

the petitioners cannot be regularized by the respondent no. 7-ARA

or Director, AYUSH, State of Maharashtra particularly when no

such powers are vested in the said authorities.

41. Even if the claim of the Petitioners are considered that the

physics, chemistry and biology marks are required to be taken into

account in regularization of their admissions, neither AYUSH

Authority nor the ARA has relied on the physics, chemistry and

biology marks of the petitioners for the purpose of regularization

of the admissions. At least, no such materials to that effect is

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brought on record.

42. This takes us to the last submission of the petitioners i.e. the

judgment of the Karnataka High Court. The Karnataka High Court

has protected the admissions of the petitioners who were

admitted to the courses pursuant to the interim orders of the

Court. Apart from above, the illegality as regards 2018

notification, even if it is upheld, the said matter is subject matter

of challenge before Apex Court.

43. Be that as it may. That the protection granted in the order of

the Karanataka High Court cannot be extended to the petitioners

for the reasons that the petitioners were never admitted pursuant

to the directions issued by Court. Rather the admissions of the

Petitioners are carried out at college level that too after the cut-off

date i.e. 15/10/2019.

44. In the second group of petitions which were argued by Mr.

Desai, it is an admitted position that the admissions were carried

out by the colleges almost after the six months of cut-off date i.e.

15/10/2019. Admittedly, it is claimed by the petitioners that their

admission were made by the respondent-colleges on 31/03/2021.

45. In this background, neither of the petitioners case is at par

with the one which was pleaded before the Apex Court nor before

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the Karnataka High Court. As such, the petitioners cannot be

extended the benefit of Article 226(2) of the Constitution of India.

46. This Court is further required to be sensitive to the judgment

of the Division Bench in the matter of Sayyed Alfya Fatima

Ikhlas & Ors. Vs UOI delivered in WP/2277/2022. The earlier

view taken by this Court in WP/6565/2021 was corrected by the

Division Bench of this Court particularly when the judgment of the

Apex Court in Civil Appeal No. 603 of 2020 was brought its notice.

47. In view of above, what can be notice is, the respondent-

colleges have carried out admission process of the petitioners in

violation of the admission rules. The law as was existing on the

date of the admissions of the students requires minimum 50% /

40% in NEET examination, which none of the petitioners have

achieved. Rather the admissions of the students by the colleges in

the second group of petitions is in contravention to the cut-off

date of 15/10/2019 fixed by Apex Court as the students were

admitted on 31/03/2021.

48. It is to be further held that in view of the admission

regulations as were prevailing at the relevant time, neither the

respondent-ARA nor the Director of AYUSH, State Government are

authorized to relax the qualifying/eligibility category in the

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admission to BHMS Course.

49. In this background, no case for exercising writ jurisdiction is

made out. All the writ petitions sans merit and are accordingly

dismissed.

      (SHARMILA U. DESHMUKH, J)             (NITIN W. SAMBRE, J.)




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