Calcutta High Court (Appellete Side)
Union Of India & Anr vs Md. Garib Nawaz & Ors on 22 March, 2021
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
MAT 700 OF 2020
CAN 1 OF 2020
CAN 2 OF 2020
UNION OF INDIA & Anr.
Vs.
Md. Garib Nawaz & Ors.
With
MAT 701 OF 2020
CAN 1 OF 2020
CAN 2 OF 2020
UNION OF INDIA & Anr.
Vs.
EBTESHAM KHATOON & Ors.
Before:
The Hon'ble Justice Soumen Sen
The Hon'ble Justice Saugata Bhattacharyya
For the appellants : Mr. Kumar Jyoti Tewari, Adv.
Mr. Rajesh Kumar Shah, Adv.
For the writ petitioners/
Respondent nos. 1 & 2 : Mr. Bikash Ranjan Bhattacharyya, Sr. Adv.
Mr. Arup Nath Bhattacharyya, Adv.
Ms. Sayani Das, Adv.
Ms. Sreetama Biswas, Adv.
For the respondent no.4 : Mr. U.S. Menon, Adv.
Mr. Abhirup Chakraborty, Adv.
For the respondent no. 3
in MAT 700 of 2020 &
respondent no. 2 in
MAT 701 of 2020 : Ms. Indrani Chakraborty, Adv.
Ms. Sarda Sha, Adv.
For WBUHS : Ms. Debaki Nandan Maiti
For respondent nos. 11
to 13 : Mr. Anirban Roy, Adv.
Mr. Prantik Garai, Adv.
Mr. Hemanta Kumar Das, Adv.
For the State : Mr. Tapan Kumar Mukherjee, Ld. A.G.P.
Mr. Somnath Naskar, Adv.
Heard on : 04.12.2020, 15.12.2020, 04.01.2021,
06.01.2021, 13.01.2021, 03.02.2021 &
15.03.2021.
Judgment on : 22.03.2021
Saugata Bhattacharyya J. :
1. These appeals are presented against the order dated 23rd June, 2020
as well as the order dated 8th September, 2020 by which the previous order
dated 23rd June, 2020 was modified, passed by the learned Single Judge
while allowing the writ petitions preferred by two writ petitioners.
2. The writ petitioners, inter alia, prayed for following reliefs in one of the
writ petitions being W.P. 19900 (w) of 2019 :
"a) A writ of declaration declaring that the students aspiring to
pursue the Ayurved and Unani under graduate courses in the
academic year 2019-2020 are eligible for admission on the
basis of the merit selection made by the respective colleges.
b) A writ of or in the nature of Mandamus commanding the
respondents to allow admission of the petitioners and/or
aspiring students who qualifies the qualification set forth by the
Central Council of Indian Medicine in such manner as this
Hon'ble Court may deem fit and proper;
c) A writ of or in the nature of mandamus commanding the
respondents and each of them particularly the respondents No.1
and 2 to extend the cutoff date for admission;
d) A writ of or in the nature of Prohibition commanding the
respondents not to give any effect or any further effect to the
letter dated 1st November, 2018;"
3. From the prayer couched in the writ petitions it appears that writ
petitioners were desirous to take admission in Bachelor of Unani Medicine &
Surgery (BUMS) and Bachelor of Ayurvedic Medicine and Surgery (BAMS)
and Bachelor of Homoeopathic Medicine and Surgery (BHMS) for the
Academic Session 2019-20. In pursuit of getting relief from this Hon'ble
Court for taking admission into BUMS/BAMS/BHMS Courses the main
plank of argument advanced on behalf of the writ petitioner was inadequate
notice of notification dated 7th December, 2018 prescribing requirement by
the Central Council of Indian Medicine for participating in National
Eligibility-cum-Entrance Test (UG) 2019 in terms of the Indian Medicine
Central Council (Minimum standards of Education in Indian Medicine)
Amendment Regulations, 2018. According to the writ petitioners,
newspaper's notification requiring participation in the entrance test (NEET
UG-2019) was published in November, 2018 and the same need not be given
effect to for facilitating admission of the writ petitioners in the said BUMS
and BAMS Courses. Another limb of argument for seeking relief on the writ
petition filed by the petitioners was that there was no requirement to follow
the notification dated 7th December, 2018 issued under the Indian Medicine
Central Council (Minimum standards of Education in Indian Medicine)
Regulations, 2018 due to lack of notice which was required to be
disseminated prescribing requirement to qualify entrance examination being
a precondition for taking admission into BUMS and BAMS Courses. It was
also contended on behalf of the writ petitioners that the criteria laid down by
the appellants for admission to ayush/unani undergraduate course is not
inconformity with the opinion expressed by the Joint Director of National
Testing Agency.
4. On perusal of the order under appeal dated 23rd June, 2020 it appears
that on behalf of respondents point was taken that in absence of admission
of the writ petitioners the seats would go vacant for the Academic Session
2019-20 in the said medical courses.
5. Considering the rival contentions of the parties learned Single Judge
while disposing of the writ petition passed an order dated 23rd June, 2020
permitting the respondent authorities to allow the writ petitioners to take
admission in BUMS and BAMS Courses for the Session 2019-20 by placing
reliance on the order dated 18th November, 2018 passed by Lucknow Bench
of Allahabad High Court which was taken note by the learned Single Judge
in His order dated 5th December, 2018 passed in WP No. 22539 (w) of 2018.
The impugned order dated 23rd June, 2020 was corrected by a subsequent
order dated 8th September, 2020 by the learned Single Judge which is also
subject-matter of challenge in the present appeal whereby the respective
colleges were directed to complete the admission process within the period
from 16th September, 2020 to 20th September, 2020 for the Academic Year
2019-20.
6. Being aggrieved by such decision as emanates from the orders dated
23rd June, 2020 and 8th September, 2020 the appellants herein preferred an
appeal questioning the said orders of the learned Single Judge dated 23 rd
June, 2020 and 8th September, 2020 on the following grounds:
i) In terms of the relevant provisions of the Indian Medicine Central
Council Act, 1970 the Indian Medicine Central Council (Minimum standards
of Education in Indian Medicine) Amendment Regulations, 2018 (hereinafter
as 'Regulations of 2018') were promulgated by notification dated 7th
December, 2018 amending the Indian Medicine Central Council (Minimum
standards of Education in Indian Medicine) Regulations, 1986 which
contemplates entrance examination for all medical institutions at the Under
Graduate level, namely, the National Eligibility-cum-Entrance Test (NEET)
for admission to Under Graduate Courses in each academic year and shall
be conducted by an authority designated by the Central council.
ii) The said Regulations of 2018 also made it mandatory from the
Academic Session 2019-20 that in order to be eligible for admission to said
Under Graduate medicine course for an academic year, it shall be necessary
for a candidate to obtain minimum of marks of 50th percentile in the
National Eligibility-cum-Entrance Test for Under Graduate course held for
the said academic year.
iii) The said Regulations of 2018 framed under the Indian Medicine
Central Council Act, 1970 being a central legislation is binding upon all the
colleges running courses of Ashtang, Ayurveda, Siddha, Unani Tibb or Sowa
Rigpa throughout the country and it is also binding upon the concerned
authorities of the State Government regulating admissions to the medical
courses under Indian Medicine.
iv) In view of the judgment of the Hon'ble Supreme Court dated 20th
February, 2020 passed on batch of civil appeals wherein the lead matter was
Union of India Vs. Federation of Self-Financed Ayurvedic Colleges
Punjab & Ors. (Arising out of SLP (C) No. 26267 of 2019) declaring the
said Regulations of 2018 intra vires; the candidates intending to take
admission in BAMS/BUMS/BHMS Courses must qualify NEET UG-2019 for
taking admission in the academic year 2019-20.
v) In view of the solemn judgment of the Hon'ble Supreme Court dated
20th February, 2020 in the case of Union of India Vs. Federation of Self-
Financed Ayurvedic Colleges Punjab & Ors. after 15th October, 2019,
being the last date for taking admission in BUMS and BAMS courses for the
academic session 2019-20, no further admission can be permitted after the
said cutoff date.
7. Mr. Bikash Ranjan Bhattacharjee, learned Senior Advocate
representing writ petitioners has strenuously argued that there was
inadequate notice at the material point of time which kept the writ
petitioners in dark which resulted in failure on their part to participate in
the entrance test, i.e., NEET UG-2019. It has further been contended that
the brochure issued by the National Testing Agency prior to holding National
Eligibility-cum-Entrance Test (UG) 2019 was meant for admission of
students in medical and dental Under Graduate Courses and which cannot
be stretched beyond that requiring writ petitioners to qualify the said
entrance test for taking admission in the courses under Indian Medicine. In
this regard paragraph 8 of the affidavit-in-opposition used on behalf of the
National Testing Agency before the learned Single Judge has been relied
upon wherein it has been averred that words "other entities" in Clause 5
Chapter 7 means that the result of NEET UG-2019 could be utilized by the
entities other than the entities mentioned in (f) above and not for other
courses. According to the writ petitioners such statement demonstrates the
actual state of affairs relating to precondition for taking admission into
BAMS and BUMS courses which justifies admission of the writ petitioners
into the said courses without taking part in the entrance examination of
2019 and the same contention is fortified by the previous notification issued
by the Indian Medicine Central Council on 7 th November, 2016 in respect of
Ayurveda as well Unani Medicine Courses. However, it is important to note
that in paragraphs 10 and 11 of the said affidavit the said respondent
authorities have taken note of the clarification issued by the Ministry of
Ayush that in the process of streamlining admission to bring meritorious
students to the Ayush system of medicine in the country, the Ministry had
directed all States/Union Territories to admit students in Ayush Under
Graduate Courses through the merit list of National Eligibility cum Entrance
Test (NEET) and in this regard the Ministry requested all States to make
wider publicity to the students seeking admission in Ayush Under Graduate
Courses, namely, BAMS, BUMS, BSMS and BHMS to appear in the NEET,
2019 to be conducted by National Testing Agency on 5th May, 2019.
Moreover, the recognition of the certificate and its accreditation falls within
the domain of Central Council of Indian Medicine and the State Council
have laid down the required eligibility criteria in the notification dated 7 th
November, 2016. The decision in Majda Humayun and several other
decisions of different High Courts concerning the admission to BHMS
Course was considered by the Hon'ble Supreme Court in association of
Managements of Homeopathic Medical Colleges of Maharashtra v.
Union of India & Ors. reported in (2019) 20 SCC 511 in disposing of the
said Special Leave Petition wherein the Hon'ble Supreme Court in exercise of
its power under Article 142 of the Constitution had passed the following
orders:
"7. We have perused the judgments and orders passed by the
High Courts of Patna, Karnataka, Madras, Rajasthan, Punjab &
Haryana, Allahabad and Kolkata. Directions were issued in
favour of the students permitting admissions on the basis of the
marks in the qualifying examination without reference to the
marks secured by them in the NEET UG-2018 examination. The
learned Additional Solicitor General fairly submitted that none
of the judgments or orders passed by the High Courts have
been challenged.
8. Though the last date for admission to the BHMS course
was 15-11-2018, we are informed that the last date was
extended till 20-12-2018 by the Allahabad High Court. Though
there is no agreement on the exact number of vacant seats, it is
common ground that there are vacant seats for admission to the
1st year BHMS course in the State of Maharashtra. As there is
no uniformity in the matter of admission to the 1st year BHMS
course for the year 2018-19, as securing minimum marks in
NEET is not required in some States pursuant to orders of the
High Courts, we are of the opinion that the appellants are
entitled to the relief of admissions being made without reference
to the letter dated 11-6-2018 of Respondent 1 and the
consequential notice of Respondent 3. In other words, the
appellant Association should be permitted to make admissions
to the 1st year BHMS course for the academic session 2018-19
on the basis of the eligibility criteria mentioned in the
information brochure dated 5-2-2018. A candidate who has
secured minimum marks in the NEET UG-2018 shall be eligible
for admission to the 1st year BHMS course for the academic
year 2018-19.
9. As two months have passed after the last date of
admission to the 1st year BHMS course i.e. 15-11-2018, we
direct the appellants to complete the process of admissions
strictly on the basis of merit by 15-2-2019. The managements
of the colleges are directed to hold extra classes for students
who will be admitted pursuant to this order to comply with the
requirements of minimum working days. This order which is
passed in the peculiar facts of the case shall not be treated as a
precedent. No opinion is expressed by us regarding the
introduction of the minimum percentile as an eligibility criteria in
the NEET examination."
8. It is further submitted on behalf of the writ petitioners that the State
of West Bengal did not take any step to notify as required by Government of
India. Mr. Bhattacharyya has relied upon the decision of a learned Single
Judge in Sweta Singh & Ors. v. All India Medical Council of India &
Ors. and the decision of a learned Single Judge in Majda Humayun & Ors.
v. Union of India & Ors. (W.P. 22539(W) of 2018) decided on 5th
December, 2018 to argue that in both the decisions the learned Single
Judges of this court on consideration that there has been lack of adequate
publicity of such notices for admission permitted the candidates to get
admission although the cut off date may have expired in the meantime. Mr.
Bhattacharyya has referred to the decision of the Hon'ble Supreme Court in
Dr. Dinesh Kumar and Ors. v. Motilal Nehru Medical College reported in
(1987) 4 SCC 459 and Priya Gupta v. State of Chhattisgarh reported in
(2012) 7 SSC 433 and submits that the learned Single Judges deciding the
earlier two writ petitions involving similar questions of law and fact have
relied upon the said two decisions of the Hon'ble Supreme Court to extend
the benefit of admission to such students beyond the cut off date. The order
of the Hon'ble Supreme Court in Union of India v. Federation of Self-
Financed Ayurvedic Colleges, Punjab & Ors. decided on 20th February,
2020 was sought to be distinguished on the ground that the cut off date
prescribed in the said order would not be applicable in the instant case as
due to lack of publicity as a result whereof the writ petitioners could not
participate in this selection process. It is submitted that the writ court is a
court of equity and if it appears on record that there has been no adequate
publicity as directed by the Hon'ble Supreme Court in the abovementioned
two decisions, then the aspiring candidates should not be denied their right
to admission and if allowed in the meantime, their admission should not be
disturbed.
9. In furtherance to this argument, Mr. Bhattacharjee, learned Senior
Advocate has drawn our attention to the notification dated 7 th November,
2016 issued under the Indian Medicine Central Council Act, 1970 under
notification No.24-14/2016(U.G. Regulation) prescribing eligibility criteria
for admission in Bachelor of Ayurveda Education as well as notification
dated 7th November, 2016 also issued under the Indian Medicine Central
Council Act, 1970 vide notification No.11-76/2016-Unani(UG Regl.)
prescribing eligibility criteria for taking admission in Bachelor of Unani
Medicine Courses. Pointing out the relevant provision under the respective
Amendment Regulations of 2016 it has been argued on behalf of the writ
petitioners that the requirement of qualifying NEET (UG)-2019 is not
necessary for taking admission into BAMS and BUMS courses.
10. Another limb of argument which has been advanced on behalf of the
respondent in this appeal is pendency of vacant seats in the courses
wherein the writ petitioners have already taken admission and if such
admissions are not saved by the Hon'ble Court the seats in several colleges
would go vacant.
11. The Indian Medicine Central Council (Minimum standards of
Education in Indian Medicine) Amendment Regulations, 2018 amending the
Indian Medicine Central Council (Minimum standards of Education in
Indian Medicine) Regulations, 1986, have been framed in terms of Section
36 of the Indian Medicine Central Council Act, 1970, albeit no challenge is
thrown to the said amendment regulations of 2018, we find it apposite to
find out the legislative competence of the Central Council of Indian Medicine
to frame such amendment regulations of 2018 in order to answer the points
raised by the parties to this appeal and for adjudication of the issue involved
herein. On perusal of the said Act of 1970 it appears that under Section 36
the Central Council of Indian Medicine has been empowered subject to
previous sanction of the Central Government, to make regulations on the
subjects described under Section 36(1)(a) to 36(1)(p). Clause (k) under sub-
Section (1) of Section 36 is reproduced below:
"(k) The conduct of professional examinations, qualifications of
examiners and the conditions of admission to such
examinations;"
We also find it apposite to quote Section 22 (1) of the Act of 1970:
"22. Minimum standards of education in Indian medicine.--
(1) The Central Council may prescribe the minimum standards
of education in Indian medicine, required for granting
recognized medical qualifications by Universities, Boards or
medical institutions in India."
12. We find pari materia provisions under Clause (l) of sub-Section (1) of
Section 33 of the Indian Medical Council Act, 1956 governing the field of
modern medicine. Section 33 (1) (l) is reproduced below:
"(l) The conduct of professional examinations, qualifications of
examiners and the conditions of admission to such
examinations;"
This provision of Section 33 (1) (l) was tested exhaustively in the case
of Dr. Preeti Srivastava And Anr. Vs. State of Madhya Pradesh And Ors.
reported in (1999) 7 SCC 120 by the Five Judge Bench of the Supreme
Court wherein in paragraph 36 and 37 the law was laid down by the full
bench of the Supreme Court and those two paragraphs are quoted below:
"36. It would not be correct to say that the norms for admission
have no connection with the standard of education, or that the
rules for admission are covered only by Entry 25 of List III.
Norms of admission can have a direct impact on the standards
of education. Of course, there can be rules for admission which
are consistent with or do not affect adversely the standards of
education prescribed by the Union in exercise of powers under
Entry 66 of List I. For example, a State may, for admission to
the postgraduate medical courses, lay down qualifications in
addition to those prescribed under Entry 66 of List I. This would
be consistent with promoting higher standards for admission to
the higher educational courses. But any lowering of the norms
laid down can and does have an adverse effect on the
standards of education in the institutes of higher education.
Standards of education in an institution or college depend on
various factors. Some of these are:
(1) the calibre of the teaching staff;
(2) a proper syllabus designed to achieve a high level of
education in the given span of time;
(3) the student-teacher ratio;
(4) the ratio between the students and the hospital beds
available to each student;
(5) the calibre of the students admitted to the institution;
(6) equipment and laboratory facilities, or hospital facilities for
training in the case of medical colleges;
(7) adequate accommodation for the college and the attached
hospital; and
(8) the standard of examination held including the manner in
which the papers are set and examined and the clinical
performance is judged. .
37. While considering the standards of education in any college
or institution, the calibre of students who are admitted to that
institution or college cannot be ignored. If the students are of a
high calibre, training programmes can be suitably moulded so
that they can receive the maximum benefit out of a high level of
teaching. If the calibre of the students is poor or they are unable
to follow the instructions being imparted, the standard of
teaching necessarily has to be lowered to make them
understand the course which they have undertaken; and it may
not be possible to reach the levels of education and training
which can be attained with a bright group. Education involves a
continuous interaction between the teachers and the students.
The pace of teaching, the level to which teaching can rise and
the benefit which the students ultimately receive, depend as
much on the calibre of the students as on the calibre of the
teachers and the availability of adequate infrastructural
facilities. That is why a lower student-teacher ratio has been
considered essential at the levels of higher university education,
particularly when the training to be imparted is a highly
professional training requiring individual attention and on-hand
training to the pupils who are already doctors and who are
expected to treat patients in the course of doing their
postgraduate courses."
(emphasis supplied)
13. The Indian Medicine Central Council Act, 1970 is relatable to Entry 66
of List-I (Union List) under the Seventh Schedule of the Constitution. Since
the Act of 1970 governs the field of medical education, Entry 66 of List-I of
the Seventh Schedule of the Constitution is reproduced below:
"66. Co-ordination and determination of standards in
institutions for higher education or research and scientific and
technical institutions."
At the same time we are not unmindful of the fact that the medical
institution is also relatable to Entry 25 List-III of the concurrent list of the
Seventh Schedule of the Constitution which is reproduced below:
"25. Education, including technical education, medical
education and universities, subject to the provisions of entries
63,64,65 and 66 of the List I; vocational and technical training
of labour."
Therefore, under the constitutional scheme governing the field of
medical education empowers the State authorities to frame laws relating to
such education subject to the laws framed by the Union under List-I Entry
66 of the Seventh Schedule; In this regard reliance is placed on paragraph
52 of Dr. Preeti Srivastava (Supra). Paragraph 52 is reproduced below:
"52. Mr. Salve, learned counsel appearing for the Medical
Council of India has, therefore, rightly submitted that under the
Indian Medical Council Act of 1956 the Indian Medical Council
is empowered to prescribe, inter alia, standards of postgraduate
medical education. In the exercise of its powers under Section
20 read with Section 33 the India Medical Council has framed
regulations which govern postgraduate medical education.
These regulations, therefore, are binding and the States cannot,
in the exercise of power under Entry 25 of List III, make rules
and regulations which are in conflict with or adversely impinge
upon the regulations framed by the Medical Council of India for
postgraduate medical education. Since the standards laid down
are in the exercise of the power conferred under Entry 66 of List
I, the exercise of that power is exclusively within the domain of
the Union Government. The power of the States under Entry 25
of List III is subject to Entry 66 of List I."
14. In view of the constitutional provisions as discussed above and
placing reliance upon Dr. Preeti Srivastava (Supra) we have no hesitation
to hold that the Indian Medicine Central Council (Minimum standards of
Education in Indian Medicine) Amendment Regulations, 2018 is framed by
the Central Council of Indian Medicine in terms of Section 36 cannot be
impinged upon by any State authorities including the college authorities
running courses under Ayurveda/Unani medicine thereby diluting the
standard of medical education as envisaged under the said Act of 1970.
15. Since the Indian Medicine Central Council (Minimum standards of
Education in Indian Medicine) Amendment Regulations, 2018 has been
framed by the Central Council of Indian Medicine which as we have held
earlier within their legislative competence the said amendment Regulations
of 2018 are statutory in nature and binding upon all the authorities running
the courses of Ayurveda and Unani Medicine. If any regulations have been
framed by an authority which is statutorily empowered to maintain the
standard of medical education and framing of such regulations is within the
legislative competence of the said regulatory authority; the regulations
framed under the parent act cannot be tinkered with. In this regard reliance
has been placed on paragraph 57 of Dr. Preeti Srivastava (Supra) wherein
Five Judge Bench of the Supreme Court placing reliance upon Medical
Council of India Vs. State of Karnataka and Others reported in (1998) 6
SCC 131, held that medical council regulations have a statutory force and
are mandatory. Paragraph 57 of Dr. Preeti Srivastava (Supra) is
reproduced below:
"57. In the case of Medical Council of India v. State of
Karnataka a Bench of three Judges of this Court has
distinguished the observations made in Nivedita Jain. It has
also disagreed with Ajay Kumar Singh v. State of Bihar and has
come to the conclusion that the Medical Council regulations have
a statutory force and are mandatory. The Court was concerned
with admissions to the MBBS course and the regulations
frmaed by the Indian Medical Council relating to admission to
the MBBS course. The Court took note of the observations in
State of Kerela v. T.P. Roshana (SCC at p.580) to the effect that
under the Indian Medical Council Act, 1956, the Medical Council
of India has been set up as an expert body to control the
minimum standards of medical education and to regulate their
observance. It has implicit power to supervise the qualifications
or eligibility standards for admission into medical institutions.
There is, under the Act an overall vigilance by the Medical
Council to prevent sub-standard entrance qualifications for
medical courses. These observations would apply equally to
postgraduate medical courses. We are in respectful agreement
with this reasoning."
(emphasis supplied)
16. Borrowing inspiration from the law laid down by the Five Judge Bench
of the Supreme Court in the case of Dr. Preeti Srivastava (Supra) it is
apposite to conclude that the Indian Medicine Central Council (Minimum
standards of Education in Indian Medicine) Amendment Regulations, 2018
are binding upon the respondent authorities more so when the same has
already been declared intra vires by the solemn judgment of the Supreme
Court dated 20th February, 2020 delivered in the case of Union of India Vs.
Federation of Self-Financed Ayurvedic Colleges Punjab & Ors. (Arising
out of SLP (C) No. 26267 of 2019) along with batch of analogous matters.
17. In view of above discussion it is axiomatic that for taking admission in
BAMS and BUMS courses for the academic session 2018-19 qualifying
NEET UG-2019 was sine qua non.
18. Argument has been made on the point of lack of adequate notice
which prevented the writ petitioners to participate in NEET UG-2019
appears to us an argument made in desperation since a due notice was
published on 2nd November, 2018 by the Government of West Bengal
Central Selection Committee (AYUSH) informing all the aspirants seeking
admission in the AYUSH-UG Courses namely, BAMS, BHMS and BUMS for
the academic session 2019-20 would have to appear in NEET(UG) - 2019 to
be conducted by National Testing Agency on 5th May, 2019. It was further
notified to the aspirants that the last date of submission of On-line
Application Form for appearing in the NEET(UG)-2019 was 30th November,
2018 and it was categorically stated in the said notice published in the daily
vernacular that no separate entrance test will be conducted for admission in
NEET (UG) Course in the State of West Bengal. The newspaper advertised
dated 7th November, 2018 published in Bartaman (Bengali Vernacular) is at
page 268 of the Stay Application. It also appears from one of the letters
dated 6th December, 2018 issued by the Director of Ayurveda, Homeopathy
& Chairman, Central Selection Committee (AYUSH), West Bengal addressed
to the Ministry AYUSH, 'B' Block, GPO Complex INA, New Delhi-110023 that
adequate steps have been taken by the Directorate of AYUSH and
Homeopathy for wide publicity of the decision of the Ministry of AYUSH,
Government of India amongst students seeking admission in Ayurveda - UG
Courses would have to appear in NEET UG-2019 to be conducted by
National Testing Agency on 5th May, 2019. By the said letter dated 6th
December, 2018 it was also informed to the Ministry of AYUSH that a notice
dated 2nd November, 2018 was uploaded on the website of the Department
of Health and Family Welfare of the Government of West Bengal on 2nd
November, 2018 and in addition thereto the concerned department had
arranged for publication of the said notice in four leading daily newspapers
(Bengali, English, Hindi and Urdu) on 7th November, 2018. The said letter
dated 6th December, 2018 is appended to the Stay Application filed in-
connection with the one of the appeals (MAT 700 of 2020) at page 271.
19. On perusal of the two orders dated 23rd June, 2020 which
subsequently corrected by the learned Single Judge vide order dated 8th
September, 2020 thereby permitting the college authorities to admit the writ
petitioners within the period from 16th September, 2020 to 20th September,
2020 resulted in admission of the writ petitioners pursuant to the order of
the learned Single Judge. It also suggests that the writ petitioners pursuant
to the order dated 8th September, 2020 took admission in the month of
September, 2020 which is long after the last date for taking admission for
the academic session 2019-20 since the last date has been fixed by the
Supreme Court in the judgment dated 20th February, 2020 in Federation of
Self-Financed Ayurvedic Colleges Punjab & Ors. (Supra) 15th October,
2019 whereas writ petitioners took admission in the month of September,
2020. In the judgment dated 20th February, 2020 the Supreme Court saved
admission of some of the students in respect of the academic year 2019-20
provided the admission of the candidates took place prior to the last date,
i.e., 15th October, 2019. Such relief was granted to the students who took
admission prior to the last date of 15th October, 2019 by the Supreme Court
as a onetime measure and it was clarified that the same shall not be treated
as precedent. The tenor of the relevant part of the judgment of the Supreme
Court dated 20th February, 2020 clearly suggests that this is a direction
given by the Apex Court in terms of Article 142 of the Constitution of India.
20. We find it apposite to reproduce paragraph 12 of the judgment of the
Supreme Court in Federation of Self-Financed Ayurvedic Colleges
Punjab & Ors. (Supra):
"12. Prescribing a minimum percentile for admission to the
Under Graduate courses for the year 2019-20 was vehemently
defended by the Central Council and the Union of India by
submitting that the minimum stndards 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 2019-20 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 31st 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."
It appears from the record disclosed by the appellants that publicity
was made for admission to the said course. It is, however, not clear
whether the advertisements have been made on at least two consecutive
days as observed by the Hon'ble Supreme Court in Dr. Dinesh Kumar
(supra) and Priya Gupta (supra). The writ petitioners have prayed for a
declaration that the students aspiring to pursue Ayurvedic, Homeopathy
and Unani under graduate courses for the academic year 2019-20 are
eligible for admission on the basis of the merit selection made by the
respective colleges which runs counter to the eligibility criteria laid down
by the Central Council of Indian Medicine. This declaration in view of the
judgment in Federation of Self-Financed Ayurvedic Colleges Punjab &
Ors. (Supra) decided on 20th February, 2020 is no more permissible and a
fait accompli for the writ petitioners. The writ petitioners were allowed
admission pursuant to the order dated 23rd June, 2020 as corrected on
8th September, 2020. The said order was passed notwithstanding
attention being drawn to the learned Single Judge on 8 th September, 2020
that the Hon'ble Supreme Court had passed an order on 20th February,
2020 by which the cut off date for admission in BAMS and BUMS courses
should be restricted to all students admitted on or before 15th October,
2019. The learned Single Judge declined to take note of the said order on
the ground that the matter was listed for correction of the order dated
23rd June, 2020. It is pertinent to mention that on 23rd June, 2020 when
the initial order for admission was passed, the Hon'ble Supreme Court
had already decided the matter on 20th February, 2020 and the
appellants, in our view, ought to have taken out application before the
learned Single Judge for review of the order.
21. The argument of Mr. Bhattacharyya that in view of the fact that the
writ petitioners have been admitted by an interim order and they may be
allowed to pursue their course on the ground of equity cannot be accepted
in view of the clear dicta of the Hon'ble Supreme Court in paragraph 12 of
Federation of Self-Financed Ayurvedic Colleges Punjab & Ors. (Supra).
22. Both the orders of the Hon'ble Supreme Court of which we have
made references were passed in exercise of power under Article 142 of the
Constitution of India. We do not have any such power. Accordingly, we
cannot accept the submission of Mr. Bhattacharyya to allow continuation of
the said course after the Hon'ble Supreme Court has indicated the cut off
date.
23. In the case at our hand we are constrained to hold albeit interest of
the writ petitioners being the students is involved, the admission of the writ
petitioners in the month of September, 2020 for the academic session 2019-
20 wherein last date has been categorically been specified by the Apex
Court, i.e., 15th October, 2019 cannot be countenanced. In this regard
reliance has been placed on the judgment of the Supreme Court reported in
(2005) 2 SCC 65 paragraph 32 (Mridul Dhar (Minor) & Another Vs. Union
of India & Others); (2012) 10 SCC 149 paragraph 14 (Faiza Choudhary
Vs. State of Jammu & Kashmir And Another) and AIR 2012 SC 2413
paragraph 53 (Priya Gupta Vs. State of Chhattisgarh & Ors.).
24. In Sweta Singh (Supra) the learned Single Judge saved admission of
Sweta upon placing reliance on the judgments of the Supreme Court in
Dinesh Kumar (Dr.) Vs. Motilal Neheru Medical College and Priya Gupta Vs.
State of Chattisgarh on inadequacy of notice of admission into medical
courses in the backdrop of fact that the writ petitioner (Sweta) was ward of
insured person under Employees State Insurance Corporation and was
eligible to be considered as ESIC category candidate. Under the said
category in the relevant academic year the last candidate who took
admission obtained lesser marks in the entrance test than Sweta and Sweta
was permitted to take provisional admission in the MBBS Course vide
interim order dated September 26, 2014 within the cutoff date of September
30, 2014. But in the present case the writ petitioners are not NEET-UG
qualified candidates and the cutoff date fixed by the Supreme Court was
15th October, 2019 and the writ petitioners took admission in the month of
September 2020; therefore, judgment of Sweta Singh (Supra) has no manner
of application in the present case.
25. Another limb of submission made on behalf of the respondents is in
the event the admission of the candidates who did not qualify in NEET UG-
2019 is not saved, the seats in the colleges would go vacant. The same
argument does not hold water in view of the decision of the Hon'ble Apex
Court reported in (2002) 7 SCC 258 paragraph 22 and 23 (Medical Council
of India vs. Madhu Singh and Others) wherein the Supreme Court has
categorically held that even the seats are unfilled that cannot be a ground
for mid-session admission after the cutoff date.
26. In order to satisfy our conscience and to ascertain whether for the
Academic Session 2019-20 in the State of West Bengal admission was made
in BAMS/BUMS/BHMS courses thereby admitting the candidates who did
not qualify NEET UG-2019, we directed Mr. Tapan Mukherjee, learned
Additional Government Pleader to file an affidavit indicating whether
candidates who did not qualify NEET UG-2019 were permitted to take
admission in the said Academic Session of 2019-20. The affidavit has been
affirmed on 20th January, 2021 by Dr. Rajat Chattopadhyaya as Member
Secretary, in Central Selection Committee, Calcutta Homeopathe Medical
College & Hospital wherefrom it appears that in government medical colleges
in AYUSH-UG Courses total 318 candidates took admission within 31 st
October, 2019 and all 318 candidates qualified NEET UG-2019. At the same
time by a chart annexed to the said affidavit being Annexure 'R-2' it has
been averred that 102 candidates who did not quality NEET UG-2019 took
admission in private medical colleges for the said session of 2019-20.
Therefore, from the affidavit affirmed on behalf of the state-respondents it
appears that pursuant to the notice published in the newspaper on 7th
November, 2018 requiring candidates to qualify NEET UG-2019, candidates
participated in the NEET UG-2019 for taking admission in BAMS/BUMS
Courses and ultimately took admission in the medical colleges of the State.
Therefore, the contention of the writ petitioners/respondents that due to
inadequate notice they were prevented from participating in NEET UG-2019
pales into insignificance.
27. In view of the above discussions on the points argued by the learned
advocates representing the parties to the appeal and placing reliance upon
the above referred judgments delivered by the Supreme Court including the
recent judgment of the Supreme Court dated 20th February, 2020 in
Federation of Self-Financed Ayurvedic Colleges (Supra) we set-aside the
orders of the learned Single Judge dated 23rd June, 2020 and the order
dated 8th September, 2020 modifying the previous order and in view of our
interpretation of relevant provisions of the Indian Medicine Central Council
(Minimum standards of Education in Indian Medicine) Amendment
Regulations, 2018 specially Regulation 2 (d)(i) & (ii) framed under the Indian
Medicine Central Council Act, 1970 the candidates aspiring to take
admission in BAMS/BUMS/BHMS Courses for the academic session 2019-
20 are required to qualify entrance examination (NEET UG-2019) as
contemplated under the said amendment Regulations of 2018.
28. In above conspectus the both the appeals and the connected
applications are allowed.
29. However, this order shall remain stayed for a period of three weeks.
29. Urgent certified copies of the judgment and order, if applied for, be
supplied to the parties upon compliance with all requisite formalities.
(SAUGATA BHATTACHARYYA, J.)
I agree,
(SOUMEN SEN, J.)
