Gujarat High Court
Dharmina Dineshbhai Patel vs Central Council Of Indian ... on 5 April, 2021
Bench: Bhargav D. Karia
C/SCA/3818/2021 ORDER DATED: 05/04/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 3818 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 4847 of 2021
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DHARMINA DINESHBHAI PATEL
Versus
CENTRAL COUNCIL OF INDIAN MEDICINE THROUGH CHAIRMAN
==========================================================
Appearance:
MR HIMANISH J JAPEE(11295) for the Petitioner(s) No.
1,10,11,12,13,14,15,16,17,18,2,3,4,5,6,7,8,9
MR JV JAPEE(358) for the Petitioner(s) No.
1,10,11,12,13,14,15,16,17,18,2,3,4,5,6,7,8,9
for the Respondent(s) No. 1,2,3
==========================================================
CORAM:HONOURABLE THE CHIEF JUSTICE MR. JUSTICE
VIKRAM NATH
and
HONOURABLE MR. JUSTICE BHARGAV D. KARIA
Date : 05/04/2021
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE BHARGAV D. KARIA)
1. Heard learned advocate Mr. J.V. Japee for the
petitioners through video conference.
2. Since both the petitions are having similar
issues, the same were heard analogously and
are being disposed of by this common order.
For the sake of convenience Special Civil
Application No.3818/2021 is treated as a lead
matter.
C/SCA/3818/2021 ORDER DATED: 05/04/2021
3. The petitioners of Special Civil Application
No. 3818/2021 have challenged the Rules 6(1)
(c), 6(2)(c), 6(3)(c) and 6(4)(d) of
Schedule-I in Rule 2 of the Indian Medicine
Central Council (Minimum Standards of
Education in Indian Medicine) Amendment
Regulations, 2016 (For short "the Amendment
Regulations, 2016") being ultra-vires the
Constitution of India and the Indian Medicine
Central Council Act, 1970 (For short "the
Act, 1970"). The petitioners have also prayed
to direct the respondents to allow the
petitioners to pass all the four professional
examinations within a period of maximum nine
years as per Rule 6(4)(e) of the Amendment
Regulations, 2016 without any restrictions
on the number of chances to pass each
professional examination.
4. Brief facts of the case are that the
petitioners were pursuing their studies of
Bachelor of Ayurvedic Medicine and Surgery
(for short "B.A.M.S.") course in different
colleges affiliated with Gujarat Ayurved
University, Jamnagar.
4.1) It is the case of the petitioners
that they are adversely affected by the
relevant provisions of Amendment Regulations,
C/SCA/3818/2021 ORDER DATED: 05/04/2021
2016 which provides for debarring the
students upon their failure to pass any of
the four professional examinations in four
chances within three years. According to the
petitioners, as per Rule 6(4)(e) of the
Amendment Regulations, 2016 a student can
pass all the four professional examination
within a period of maximum nine years and
therefore, the cap of four chances for
passing each professional examination in
three years, is unjustified.
4.2) The Indian Medicine Central Council
(Minimum Standards of Education in Indian
Medicine) Regulations, 1986 (for short
"Regulation, 1986") was amended by the Indian
Medicine Central Council (Minimum Standards
of Education in Indian Medicine) Amendment
Regulations, 2016 by the Central Council of
Indian Medicine with the previous sanction of
the Central Government in exercise of powers
conferred by clauses (i), (j) and (k) of sub-
section (1) of section 36 of the Act, 1970.
Schedule-I of the Regulation 5 of the
Regulation 1986 was substituted by the
Amendment Regulations, 2016. Rule 6 of the
Schedule-I which prescribes the Scheme of
Examination reads as under :
C/SCA/3818/2021 ORDER DATED: 05/04/2021
"6. Scheme of examination:-(1)(a) The
first professional session shall
ordinarily start in July and the first
professional examination shall be at the
end of one academic year of first
professional session;
(b)The first professional examination
shall be held in the following subjects,
namely:-
1. Padarth vigyan evam Ayurved Itihas:
2. Sanskirt
3. Kriya Sharir (Physiology);
4. Rachana Sharir(Anatomy);and
5. Maulik Siddhant evam Ashtanga
Hridaya(Sutra sthan);
(c) The failed students of first
professional shall be allowed to appear
in second professional examination, but
the student shall not be allowed to
appear in third professional examination
unless the student passes all the
subjects of first professional
examination and maximum four chances
shall be given to pass first
professional examination within a period
of maximum three year.
(2)(a) The second professional session
shall start every year in the month of
July following completion of first
professional examination and the second
professional examination shall be
ordinarily held and completed by the end
of month of May or June every year after
completion of one year of second
professional session;-
(b) The second professional examination
shall be held in the following
C/SCA/3818/2021 ORDER DATED: 05/04/2021
subjects,namely;-
1. Dravyaguna Vigyan(Pharmacology and
Materia Medica)
2. Rasashastra evam Bhaishajya Kalpana
(Pharmaceutical science);
3. Roga Nidan evam Vikriti
Vigyan(Diagnostic Procedure and
Pathology);and
4. Charak Samhita-Purvardha(an ancient
Ayurvedic text,Part-I)
(c) The failed student of second
professional who have passed all the
subjects of first professional
examination shall be allowed to appear
in third professional examination, but
the student shall not be allowed to
appear in final professional examination
unless the student passes all the
subjects of second professional
examination and maximum four chances
shall be given to pass second
professional examination within a period
of maximum three years.
(3)(a) The third professional session
shall start every year in the month of
July following completion of second
professional examination and the third
professional examination shall be
ordinarily held and completed by the end
of the month of May or June every year
after completion of one year of third
professional session;
(b)The third professional examination
shall be held in the following subjects,
namely;-
1. Agad Tantra Vyavahar Ayurveda
evam Vidhi Vaidyaka(Toxicology
and Medical Jurisprudence)
2. Charak Samhita-Uttarardh (an
C/SCA/3818/2021 ORDER DATED: 05/04/2021
ancient Ayurvedic text, Part-
II);
3. Swasthavritta and Yoga
(Preventive and Social
Medicine and Yoga);
4. Prasuti evam
Striroga(Obstetrics &
Gynecology);and
5. Bal Roga (pediatrics)
(c) The failed student of third
professional who have passed all the
subjects of first and second
professional examination shall be
allowed to appear in final professional
examination and maximum four chances
shall be given to pass third
professional examination within a period
of maximum three years.
(4)(a) The final professional session
shall be of one year and six months
duration and shall start every year in
the month of July following completion
of third professional examination and
the final professional examination shall
be ordinarily held and completed by the
end of month of October or November
every year after completion of one year
and six months of final professional
session;
(b) The final professional examination
shall comprise of the following
subjects,namely;-
1. Shalya Tantra (General surgery)
2. Shalakya Tantra (Diseases of Head and
Neck including
Ophthalmology,Ear,Nose,Throat and
Dentistry)
3. Kayachikitsa (Internal medicine-
including Manas Roga,Rasayan and
Vajikarana);
C/SCA/3818/2021 ORDER DATED: 05/04/2021
4. Panchakarma;and
5. Research Methodology and Medical-
statistics
(c) Research Methodology shall remain in
the department of Samhita Siddhant but
for the purpose of teaching,Bio-
statistician shall be required as part
time to teach Research Methodology;
(d) The student failed in any of the
four professional examination in four
chances shall not be allowed to continue
his or her studies;
Provided that, in case of serious
personal illness of a student and in any
unavoidable circumstances, the Vice-
Chancellor of the concerned University
may provide one more chance in any of
four professional examination;
(e) To become eligible for joining the
compulsory internship programme, all
four professional examination shall be
passed within a period of maximum nine
years including all chances as mentioned
above."
5. Learned advocate Mr. J.V. Japee for the
petitioners submitted that the aforesaid
rules are arbitrary, irrational, unjustified,
unfair and unreasonable and are in clear
violation of Article 14 of the Constitution
of India as such rules debar the students who
fail to pass the examination within the
specified number of chances.
5.1) It was submitted that such students
C/SCA/3818/2021 ORDER DATED: 05/04/2021
have to leave the B.A.M.S. course and they
would fail to pursue the career of Ayurvedic
doctor and it would be too late for them to
join any other course resulting into dark
future without any prospects. It was
submitted that the impugned rules therefore,
infringe the fundamental rights of the
students under Article 19(1)(g) of the
Constitution of India.
5.2) Learned advocate Mr. Japee submitted
that Rules 6(1)(c), 6(2)(c), 6(3)(c) and 6(4)
(d) of Schedule-I of Rule 2 of Amendment
Regulations, 2016 which provides for
debarring a student upon his failure to clear
the examination in the specified number of
chances are contrary to and inconsistent with
Rule 6(4)(e) which provides that all the
professional examination of B.A.M.S. course
should be passed within a period of maximum
nine years including all chances mentioned in
Rules 6(1)(c), 6(2)(c), 6(3)(c) and 6(4)(d).
It was therefore, submitted that the
petitioners and similarly situated persons
are required to be allowed to clear all the
professional examinations of B.A.M.S. course
within the period of nine years irrespective
of the number of chances availed of to pass a
particular examination.
C/SCA/3818/2021 ORDER DATED: 05/04/2021
5.3) It was submitted that the Rules
providing for embargo on the number of
chances to pass examination during B.A.M.S.
course are different than similar medical
courses including M.B.B.S. course as there is
no embargo in any other medical courses
providing number of chances which can be
availed of in passing particular examination.
5.4) Reference was made by learned
advocate Mr. Japee to the medical regulations
for medical courses of M.B.B.S. and B.D.S.
where there is no restriction in the number
of chances a student can avail to pass any
examination. It was pointed out that old
rules for M.B.B.S. course provided for such
restrictions but subsequently such
restrictions were removed and a student is
allowed to clear the M.B.B.S. course within
10 years of joining the first M.B.B.S. course
irrespective of number of chances availed for
passing any examination.
5.5) It was submitted that similarly in
B.D.S. course also there is no such
restriction in number of chances a student
can avail for passing any examination and a
student can clear the B.D.S. course within
C/SCA/3818/2021 ORDER DATED: 05/04/2021
nine years of the date of admission. It was
pointed out that in B.A.M.S. course also
earlier there was no restriction on number of
chances available to pass the examination as
per the Indian Medicine Central Council
(Minimum Standards of Education in Indian
Medicine) (Amendment) Regulations, 2012 (For
short "Regulations, 2012") but for the first
time by the impugned Amendment Regulations,
2016, such embargo is placed without any
reason or justification. It was therefore,
submitted that the classification in respect
of the relevant examination rules between
B.A.M.S. course on one hand and all other
medical courses including M.B.B.S. on the
other hand, is not based on any rational or
intelligible criteria and there is no reason
or justification to introduce the impugned
Rules providing for embargo on number of
chances to pass examination in B.A.M.S.
course.
5.6) Learned advocate Mr. J.V. Japee
referred to the orders passed by this Court
in Special Civil Application No.6830/1999 and
Special Civil Application No.15185/2004
annexed with the petition wherein this Court
allowed the petitioners of the said petition
to pursue the M.B.B.S. course and appear in
the examination when in the old rules of
C/SCA/3818/2021 ORDER DATED: 05/04/2021
M.B.B.S. course, there was restriction of
chances which a student can avail for passing
the examination. But after the amendment of
the rules, embargo of chances was removed and
in view of removal of such embargo, debarred
students were allowed to pursue further
M.B.B.S. course and appear in the
examination.
5.7) Learned advocate Mr. Japee further
submitted that as compared to other medical
courses, it is much more difficult to clear
the examination in B.A.M.S. course as the
examination results in B.A.M.S. course is
very low, more particularly, after inclusion
of some parts of syllabus of M.B.B.S course
in B.A.M.S. course since the year 2016. It
was pointed out that apart from this, many
words and sentences in Sanskrit are required
to be translated in English by B.A.M.S.
students and there is no uniformity in the
books referred to by the professors of
different colleges for B.A.M.S. which creates
problem in answering the questions in the
examinations and also in checking of the
answers. It was submitted that a student who
has failed in a particular subject for any
particular year has to attend two papers each
of three hours in a single day resulting into
tremendous stress for the students.
5.8) It was further pointed out that in
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some subjects there are examination of
practical along with theory to be treated
separately and if a student fails in
practical but passes in theory, he has to
again appear in theory as well as practical
and vice-versa. It was therefore, submitted
that chances of failing in examination of
B.A.M.S. course are much more resulting into
more chances of debarring of the students on
account of the impugned rules.
5.9) Learned advocate Mr. Japee further
submitted that as per the impugned rules, a
student who fails in the examination of first
year is allowed to appear in the examination
of second year but he is not allowed to
appear in the examination of third year till
he passes all the subjects of the first year
in four chances within three years and same
rule situation would apply for second year
and third year with over all cap of nine
years. It was therefore, submitted that the
student who fails in any of the four
professional examinations in four chances
within three years shall not be allowed to
continue his or her studies and maximum nine
years are given to pass all the four
professional examinations including the
chances within three years. It was therefore,
C/SCA/3818/2021 ORDER DATED: 05/04/2021
submitted that the students who cannot clear
the examination of a particular year within
four chances in three years, he would be
wasting his time, money and energy for study
of the subsequent years. It was further
submitted that if the student fails to clear
all the subjects of the first year within
four chances in three years, he would be
debarred from the course and his study for
subsequent years and also the fees paid by
him for subsequent years would go in waste
resulting into irreversible prejudice. It was
therefore, submitted that the amended Scheme
of Examination requiring the student to pass
all the four professional examination within
a period of maximum nine years including all
the chances is arbitrary inasmuch as there is
no reason or justification to put restriction
on number of chances and also the restriction
on the period to avail such chances for
passing the examination of the year in which
the student has failed.
5.10) Learned advocate Mr. Japee further
submitted that like all other medical courses
in B.A.M.S. course also a student should be
allowed to pass all the examination in the
maximum number of years allowed irrespective
of the chances availed of for passing any
C/SCA/3818/2021 ORDER DATED: 05/04/2021
examination. It was therefore, submitted that
the impugned rules providing for debarring
the students are inconsistent with Rule 6(4)
(e) of the Rules which provide for the
maximum period of nine years for passing all
the four professional examinations.
5.11) Learned advocate Mr. Japee relied
upon the decision of Supreme Court in case of
Haribans Misra and others v. Railway Board
and others reported in (1989) 2 Supreme Court
Cases 84 to submit that rules framed by the
authority must be with certain objects in
view and must not be arbitrary and the Court
is always entitled to examine whether a
particular rule which takes away the vested
right or seriously affects a person with
retrospective effect has been made to meet
the exigencies of circumstances or has been
made arbitrarily without any real object
behind it.
5.12) Learned advocate Mr. J.V. Japee
relied upon the decision of Supreme Court in
case of Natural Resources Allocation in Re,
Special Reference No. 1 of 2012 reported in
(2012) 10 Supreme Court Cases 1, wherein it
is observed that the State action be it
legislative or executive action, has to be
C/SCA/3818/2021 ORDER DATED: 05/04/2021
tested for constitutional infirmities qua
Article 14 of the Constitution of India and
the action of the State in order to escape
the wrath of Article 14 has to be fair,
reasonable, non discriminatory, transparent,
non capricious, unbiased, without favouritism
or nepotism and action of State must conform
to norms which are rational, informed with
reasons and guided by public interest. It was
submitted that the legislature and executive
are answerable to the Constitution and it is
there where judiciary, guardian of the
Constitution must find contours of powers.
5.13) Reliance was also placed on decision
in case of Shayara Bano v. Union of India
reported in (2017) 9 Supreme Court Cases 1,
wherein the Apex Court has observed that
subordinate legislation can be struck down on
the ground that it is arbitrary and
therefore, violative of Article 14 of the
Constitution of India and one of the tests
for challenging the constitutionality of
subordinate legislation is that, subordinate
legislation should not be manifestly
arbitrary.
5.14) Learned advocate Mr. Japee
therefore,prayed that the impugned rules
C/SCA/3818/2021 ORDER DATED: 05/04/2021
amending the Scheme of Examination be
declared as ultra vires the Articles 14 and
19 (1)(g) of the Constitution of India as
well as the Act, 1970.
6. Having heard the learned advocate for the
petitioners, in order to test the impugned
rules which are amended in the Scheme of
Examination of B.A.M.S. to the touchstone of
Articles 14 and 19(1)(g) of the Constitution
of India, it would be necessary to analyse
such rules. The relevant Rules which are
under challenge are as under :
"6. Scheme of examination:-(1)(c) The
failed students of first professional
shall be allowed to appear in second
professional examination, but the
student shall not be allowed to appear
in third professional examination unless
the student passes all the subjects of
first professional examination and
maximum four chances shall be given to
pass first professional examination
within a period of maximum three year.
6(2)(c) The failed student of second
professional who have passed all the
subjects of first professional
examination shall be allowed to appear
in third professional examination, but
the student shall not be allowed to
appear in final professional examination
unless the student passes all the
subjects of second professional
examination and maximum four chances
shall be given to pass second
professional examination within a period
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of maximum three years.
6(3)(c) The failed student of third
professional who have passed all the
subjects of first and second
professional examination shall be
allowed to appear in final professional
examination and maximum four chances
shall be given to pass third
professional examination within a period
of maximum three years.
6(4)(d) The student failed in any of the
four professional examination in four
chances shall not be allowed to continue
his or her studies;
Provided that, in case of serious
personal illness of a student and in any
unavoidable circumstances, the Vice-
Chancellor of the concerned University
may provide one more chance in any of
four professional examination;
6(4)(e) To become eligible for joining
the compulsory internship programme, all
four professional examination shall be
passed within a period of maximum nine
years including all chances as mentioned
above."
7. Rule 6(1)(c) pertains to the first
professional session of B.A.M.S. course in
the subjects specified in rule 6(1)(b) and if
the student fails in the subjects of first
professional session, it is provided that
such student shall be allowed to appear in
second professional examination, but the
student shall not be allowed to appear in
third professional examination unless the
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student passes all the subjects of first
professional examination and maximum four
chances shall be given to pass first
professional examination within a period of
maximum three years. Meaning thereby from
this rule, it appears that the object of
amendment of the Scheme of Examination is to
allow the student to pursue further study
only if the student clears the first
professional course within the stipulated
time of maximum three years with maximum four
chances. Similar rule is provided for second
professional session as per rule 6(2)(c) and
for third professional session as per rule
6(3)(c) and for final professional session
which is for one year and six months. Rule
6(4)(d) provides that if a student failed in
any of the four professional examinations in
four chances, such student shall not be
allowed to continue his or her study.
Duration of B.A.M.S. course is prescribed in
Rule 3 which reads as under:
"3.Duration of course:- The duration of
course shall be five year and six months
comprising-
(a)First professional - Twelve months
(b)second professional - Twelve months
(c)third professional - Twelve months
(d)final professional - Eighteen months
(e)compulsory rotatory
Internship -Twelve months"
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8. Thus from the above rule, it appears that the
course which prescribes studies for five
years and six months, as per rule 6(4)(e),
period of maximum nine years including all
chances is provided. Therefore, if the
student is unable to pass his first year
professional session for three years i.e. up
to third professional course, he would be
debarred from pursuing further studies.
9. In view of the above Scheme of Examination,
it cannot be said that it is detriment to the
students in any manner whatsoever because if
any student who cannot clear first
professional examination within three years
and within four chances, then his career to
pursue B.A.M.S. course would come to an end
and would not extend up to nine years and
such student would therefore, save six
precious years of his life. Similarly, if the
student is not able to clear his second
professional examination up to fifth year,
then he would save four precious years of his
life and if the student is unable to clear
third year professional examination within a
period of six years, then he would save three
precious years of his life. Thus it cannot be
said that the restrictions placed for
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clearance of examination giving four chances
within three years is arbitrary in any
manner.
10. Comparison of B.A.M.S. course with that
of M.B.B.S course or any other medical
courses may not be possible in absence of any
comparison with regard to subjects and
duration of course placed on record by the
petitioners. The petitioners have only made
averments to the effect that a student
pursuing M.B.B.S. or B.D.S. course is
permitted to clear year-wise examination for
unlimited time with unlimited chances during
the maximum period of 10 years to clear the
same.
11. The above submissions of the petitioners
are not true and correct in view of
Regulations of Graduate Medical Education
(Amendment) 2019 which are framed in exercise
of powers conferred by section 33 of the
Indian Medical Council Act, 1956 while
amending the Regulations on Graduate Medical
Examination, 1997. Regulation Nos.11.2.6 and
11.2.7 relevant for our purpose which read as
under :
"11.2.6 A learner shall not be entitled
to graduate after 10 years of his/her
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joining of the first part of the MBBS
course.
11.2.7 University examination shall be
held as under:
(a) first professional
1. The first professional examination
shall be held at the end of first
professional training (1+12 months), in
the subjects of Human Anatomy,Physiology
and Biochemistry.
2. A maximum number of four permissible
attempts would be available to clear the
first professional University
examination, whereby the first
professional course will have to be
cleared within 4 years of admission to
the said course. Partial attendance at
any University examination shall be
counted as an availed attempt.
(b) second professional
1. The second Professional
examination shall be held at the end
of second professional training (11
months), in the subjects of
Pathology Microbiology, and
pharmacology.
(c) third professional
1. Third professional Part I shall be
held at end of third professional part
I of training (12 months) in the
subjects of Ophthalmology,
Otorhinolaryngology, Community
Medicine and Forensic Medicine and
Toxicology
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2. Third professional Part II -( Final
professional) examination shall be at
the end of training (14 months
including 2 months of electives) in
the subject of General Medicine,
General Surgery, Obstetrics &
Gynecology and Pediatrics. The
discipline of Orthopedics,
Anesthesiology, Dentistry and
Rediodiagnosis will constitute 25% of
the total theory marks incorporated as
a separate section in paper II of
General Surgery.
3. The discipline of Psychiatry and
Dermatology, Venereology and Leprosy
(DVL), Respiratory Medicine including
Tuberculosis will constitute 25% of
the total theory marks in General
Medicine incorporate as a separate
section in paper II of General
Medicine."
12. On perusal of the above regulation, it
appears that in the course of M.B.B.S. also,
maximum number of four permissible attempts
are made available to clear the first
professional University examination within
four years of admission to the said course
and for the purpose of second professional
and third professional examination, the time
period prescribed is that a student shall not
be entitled to graduate after 10 years of
his/her joining of the first part of the
M.B.B.S course. The structure and marks
distribution of M.B.B.S. course is totally
different than that of B.A.M.S course.
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Therefore, rules are also different for both
the courses with regard to passing of
examination by the student.
13. The petitioners have challenged the
rules under the Scheme of Examination which
have come into force on the date of
publication of Amendment Regulation, 2016
with effect from 7.11.2016. Therefore, such
regulations would be applicable to the
students who joined the course of B.A.M.S.
from academic year 2017-2018 only, as the
first professional session ordinarily starts
in July of any year. The petitioners have not
stated with regard to their individual
details of their study of B.A.M.S. course and
have challenged the vires of the regulation
in general.
14. In the above context, it would be
beneficial to refer to the judgment of High
Court of Madras in case of A.T.S.V.S. Siddha
Medical college & Hospital, Rep by its
Interim Administrator, Justice A. Ramamurthi
v. Vice-chancellor and others dated 28th
January, 2019 wherein it was prayed to direct
the respondents to implement the regulations
in letter and spirit. Accordingly, the Madras
High Court held that the Amendment
Regulations, 2016 was notified on 7.11.2016
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and the same would take effect and shall be
operative from July 2017 alone as the
academic sessions commences from July. It is
held that Regulations, 2016 would come into
operation with effect from academic year
2017-2018. The petitioners who were pursuing
B.A.M.S. course would be governed by the
Amendment Regulations, 2016 for academic year
2017-2018 only.
15. Amendment Regulations, 2016 therefore,
cannot be said to be ultra vires to Article
14 as it applies to all the students who are
pursuing the study of B.A.M.S in India nor
such regulations can be said to be violative
of Article 19(1)(g) as such regulations are
for the benefit of the students who cannot
clear the examination and therefore, it would
be in the interest of the students to pass
the examination within the prescribed
chances.
16. The Amendment Regulations,2016 are
notified with the sanction of the Central
Government as per the powers conferred by
clauses (i), (j) and (k) of sub-section (1)
of section 36 of the Act, 1970 by the Central
Council of Indian Medicine and therefore,
such regulations cannot be held to be ultra
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vires which are framed after considering the
various aspects. Moreover, Rule 1 of the
Schedule-I of Amendment Regulations, 2016
provides for aims and objects to the effect
that the Bachelor of Ayurveda education shall
aim at producing graduates having profound
knowledge of Ashtanga Ayurveda supplemented
with knowledge of scientific advances in
modern medicine along with extensive
practical training so as to become efficient
physicians and surgeons fully competent to
serve the health care services. To achieve
such object, if a rule is provided that if a
student cannot pass the examination of any
professional session within four chances
within maximum three years, it cannot be said
that such rule is arbitrary. By the impugned
rules, enough chances within the prescribed
period of three years are given to the
students to clear the examination of earlier
years.
17. Reliance placed by the petitioners on
the decisions of the Apex Court would not be
applicable in the facts of the case.
1) The Hon'ble Supreme Court in case of
Haribans Misra and others (supra) as well as
in case of Natural Resources Allocation
C/SCA/3818/2021 ORDER DATED: 05/04/2021
(supra) has laid down the guidelines to test
the Constitutional validity of any rule to
the effect that such rule should be fair,
reasonable, non discriminatory, transparent,
non capricious, unbiased, without favouritism
and nepotism.
2) Similarly in case of Shayara Bano
(supra), the Apex Court observed that
subordinate legislation can be struck down on
the ground that it is arbitrary. However, in
the facts of the case, the petitioner has
failed to demonstrate as to how the impugned
amendment in the Regulations 2016 are
arbitrary in any manner whatsoever.
18. The Supreme Court in case of Cellular
Operators Association of India and others v.
Telecom Regulatory Authority of India and
others reported in (2016) 7 Supreme Court
Cases 703 has held that Court in judging
reasonableness of a law, will necessarily
see, not only the surrounding circumstances
but all contemporaneous legislation passed as
part of a single scheme. Reasonableness of
the restriction and not of the law has to be
found out, and if restriction is under one
law, but countervailing advantages are
created by another law passed as part of the
same legislative plan, Court should not
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refuse to take that other law into account.
In facts of the case, the Regulations 2016,
provides for reasonable conditions for
passing of the examination by the student
pursuing the course of B.A.M.S. The Supreme
Court in the aforesaid decision has laid down
the parameters of judicial review of the
subordinate legislation as under :
"Parameters of Judicial Review of
Subordinate Legislation
34. In State of Tamil Nadu v. P.
Krishnamoorthy, (2006) 4 SCC 517, this
Court after adverting to the relevant
case law on the subject, laid down the
parameters of judicial review of
subordinate legislation generally thus:-
"15. There is a presumption in favour of
constitutionality or validity of a
subordinate legislation and the burden
is upon him who attacks it to show that
it is invalid. It is also well
recognised that a subordinate
legislation can be challenged under any
of the following grounds:
(a) Lack of legislative competence to
make the subordinate legislation.
(b) Violation of fundamental rights
guaranteed under the Constitution of
India.
(c) Violation of any provision of the
Constitution of India.
(d) Failure to conform to the statute
under which it is made or exceeding the
limits of authority conferred by the
enabling Act.
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(e) Repugnancy to the laws of the land,
that is, any enactment.
(f) Manifest arbitrariness/
unreasonableness (to an extent where the
court might well say that the
legislature never intended to give
authority to make such rules).
16. The court considering the validity
of a subordinate legislation, will have
to consider the nature, object and
scheme of the enabling Act, and also the
area over which power has been delegated
under the Act and then decide whether
the subordinate legislation conforms to
the parent statute. Where a rule is
directly inconsistent with a mandatory
provision of the statute, then, of
course, the task of the court is simple
and easy. But where the contention is
that the inconsistency or non-conformity
of the rule is not with reference to any
specific provision of the enabling Act,
but with the object and scheme of the
parent Act, the court should proceed
with caution before declaring
invalidity."
In the present case, the petitioners
have failed to adhere to point out any
of the criterias laid down by the Apex
court for judicial review of the
impugned Regulations.
18.1) In case of Commissioner of Central
Excise & Customs v. Venus Castings (P) Ltd.
reported in (2000) 4 Supreme Court Cases 206,
the Apex Court while considering the vires of
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Rules 96-ZO(3) of the Central Excise Rules,
1944 being contrary to the provisions of the
parent Act held that in holding a relevant
rule to be ultra vires, it becomes necessary
to take into consideration the purpose of the
enactment as a whole starting from the
preamble to the last provision thereto. If
the entire enactment read as a whole
indicates the purpose and that purpose is
carried out by the Rules, the same cannot be
stated to be ultra vires of the provisions of
the enactment. In facts of the case
regulations are amended to carry out the
purpose of the Act, 1970.
18.2) In case of Khargram Panchayat Samiti
and another v. State of West Bengal and
others reported in (1987) 3 Supreme Court
Cases 82, the Apex Court has held that
doctrine of ultra vires is not to be applied
narrowly but it should be applied reasonably
so that exercise of such incidental or
consequential power which may be conferred on
the authority must be construed as impliedly
authorising everything which could fairly and
reasonably be regarded as incidental or
consequential to the power itself. The Apex
Court in context of conferment of powers upon
the local authorities has held as under :
"4.In our judgment, the view taken by
the High Court that although the
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Panchayat Samiti was vested with the
power to grant a licence for the holding
of a hat or fair under s. i 17 of the
Act, yet it had no consequential or
incidental power to specify a day for
holding of such hat or fair, is
manifestly erroneous and cannot be
supported. It failed to appreciate that
under the Act the power of general
administration of the local area vests
in the Panchayat Samiti only to grant a
licence to hold a hat or fair under s.
117 of the Act, but such power of
general administration necessarily
carries with it the power to supervise,
control and manage such hat or fair
within its territorial jurisdiction. The
conferment of the power to grant a
licence for the holding of a hat or fair
under s. 117 of the Act includes the
power to make incidental or
consequential orders for specification
of a day on which such hat or fair shall
be held. The decision of the High Court
runs counter to the well-accepted
principles. It overlooks that the
statutory bodies like the Panchayat
Samiti enjoy a wide 'incidental power'
i.e. they may do every thing which is
'calculated to facilitate, or is
conductive or incidental to, the
discharge of any of their functions' and
the doctrine of ultra vires is not to be
applied narrowly. It is well-accepted
that the conferral of statutory powers
on these local authorities must be
construed as impliedly authorising
everything which could fairly and
reasonably be regarded as incidental or
consequential to the power itself. See:
de Smith's Judicial Review of
Administrative Action. 4th edn., p. 95.
HWR Wade's AdminiStrative Law, 5th edn.,
p. 217. Craies on Statute Law, 6th edn.,
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p. 276. Attorney General v. Great
Eastern Railway, LR (1880) 5 AC 473;
Baroness Wenlock v. River Dee Co., LR
(1885) 10 AC 354. De Smith in his
celebrated work Judicial Review of
Administrative Action, 5th edn. at p. 95
puts the law tersely in these words:
The House of Lords has laid down the
principle that "whatever may fairly be
regarded as incidental to. or consequent
upon. those things which the Legislature
has authorised. ought not (unless
expressly prohibited) to be held, by
judicial construction, to be ultra
vires."
This principle was. enunciated by Lord
Selborne in Attorney General v. Great
Eastern Railway, supra, in these words:
"The doctrine of ultra vires ought to be
reasonably. and not unreasonably,
understood and applied and whatever may
be fairly regarded as incidental to. or
consequential upon, those things which
the legislature has authorised ought not
(unless expressly prohibited) to be
held, by judicial construction. to be
ultra vires."
These words have been quoted by
Professor wade in his monumental work
Administrative Law. 5th edn. at p, 2 17
and also by Craies on Statute Law, 6th
edn. p, 276. Craies also refers to the
observations of Lord Watson in Baroness
Wenlock v. River Lee Co., supra, to the
effect:
"Whenever a corporation is created by
Act of Parliament with reference to the
purposes of the Act, and solely with a
view to carrying these purposes into
execution, I am of opinion not only that
the objects which the corporation may
legitimately pursue must be ascertained
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from the Act itself, but that the powers
which the corporation may lawfully use
in furtherance of these objects must
either be expressly conferred or derived
by reasonable implication from its
provisions,"
However, in the facts of the present
case, the Regulations 2016 only provides
reasonable time for a student to clear the
examination so as to see that discipline in
imparting education is maintained and such
condition is incidental and consequential to
the scheme of the examination itself.
18.3) In case of Vinod Kumar v. State of
Supreme Court Cases 293, while considering
the decision of the administrative authority,
the Apex Court has laid down the parameters
within which the administrative action can be
reviewed by the Courts. The Apex Court in
such context has held as under :
"25. The decision of the administrative
authority must be related to the purpose
of the enabling provisions of Rules or
Statutes, as the case may be. If they
are manifestly unjust or outrageous or
directed to an unauthorized end, such
decisions can be set aside as arbitrary
and unreasonable. Likewise, when action
taken is ultra vires, such
action/decision has no legal basis and
can be set aside on that ground. When
there are Rules framed delineating the
powers of the authority as well as the
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procedure to be followed while
exercising those powers, the authority
has to act within the limits defined by
those Rules. A repository of power acts
ultra vires either when he acts in
excess of his power in the narrow sense
or when he abuses his power by acting in
bad faith or for an inadmissible purpose
or on irrelevant grounds or without
regard to relevant considerations or
with gross unreasonableness. This was so
explained in Shri Sitaram Sugar Co.Ltd.
v. Union of India (1990) 3 SCC 223 in
the following manner:
"51. A repository of power acts ultra
vires either when he acts in excess of
his power in the narrow sense or when he
abuses his power by acting in bad faith
or for an inadmissible purpose or on
irrelevant grounds or without regard to
relevant considerations or with gross
unreasonableness. See Associated
Provincial Picture Houses Ltd. v.
Wednesbury Corporation, [1948] 1 K.B.
223. In the words of Lord Macnaghten in
Westminster Corporation v. London and
North Western Railway, [1905] AC 426:
"...It is well settled that a public
body invested with statutory powers such
as those conferred upon the Corporation
must take care not to exceed or abuse
its powers. It must keep within the
limits of the authority committed to it.
It must act in good faith. And it must
act reasonably. The last proposition is
involved in the second, if not in the
first...."
In Barium Chemicals Ltd. and Anr. v. The
Company Law Board and Ors., : [1966]
Supp. SCR 311, this Court states:
"60. ...Even if (the statutory order) is
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passed in good faith and with the best
of intention to further the purpose of
the legislation which confers the
powers, since the Authority has to act
in accordance with and within the limits
of that legislation, its order can also
be challenged if it is beyond those
limits or is passed on grounds
extraneous to the legislation or if
there are no grounds at all for passing
it or if the grounds are such that no
one can reasonably arrive at the opinion
or satisfaction requisite under the
legislation. In any one of these
situations it can well be said that the
authority did not honestly form its
opinion or that in forming it, it did
not apply its mind to the relevant
facts."
In Renusagar, AIR 1988 SC 1737,
Mukharji, J., as he then was, states:
"86. The exercise of power whether
legislative or administrative will be
set aside if there is manifest error in
the exercise of such power or the
exercise of the power is manifestly
arbitrary. Similarly, if the power has
been exercised on a non-consideration or
non-application of mind to relevant
factors the exercise of power will be
regarded as manifestly erroneous. If a
power (whether legislative or
administrative) is exercised on the
basis of facts which do not exist and
which are patently erroneous, such
exercise of power will stand vitiated".
The true position, therefore, is that
any act of the repository of power,
whether legislative or administrative or
quasi- judicial, is open to challenge if
it is in conflict with the Constitution
or the governing Act or the general
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principles of the law of the land or it
is so arbitrary or unreasonable that no
fair minded authority could ever have
made it."
In facts of the present case, it cannot
be said that the respondents have framed the
Regulations, 2016 which can be said to be an
act in excess of powers on irrelevant grounds
or without regard to the relevant
considerations or with gross
unreasonableness.
18.4) In case of St. Johns Teachers
Training Institute v. Regional Director,
National Council for Teacher Education and
another reported in (2003) 3 Supreme Court
Cases 321, the Apex Court while considering
the issue of delegation of legislative
functions or powers with respect to excessive
delegation, held that it has to be decided
having regard to the subject-matter, the
scheme, the provisions of the statute,
including its preamble and factual and
circumstantial background of its enactment
and there would be a presumption in favour of
its vires. It was held that if two
constructions are possible, one makes it
valid would be adopted.
18.5) In case of Seema Silk & Sarees and
another v. Directorate of Enforcement and
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others reported in (2008) 5 Supreme Court
Cases 580, while considering the challenge
to the Constitutional validity of section
18(2) and (3) of the Foreign Exchange
Regulation Act, 1973 on the ground of
infringement of fundamental rights under Part
III of the Constitution, the Apex Court held
as under :
"13. The appellants have questioned the
validity of the Act only on the ground
of infringement of Article 14 of the
Constitution of India. Apart from the
fact that the Act is protected
under Article 31B of the Constitution of
India having been placed in the Ninth
Schedule thereof, even otherwise, we do
not find any reason to arrive at a
conclusion that the Act is ultra
vires Article 14 of the Constitution of
India. A discrimination on the ground of
valid classification which answers the
test of intelligible differentia does
not attract the wrath of Article 14 of
the Constitution of India. Hardship, by
itself, may not be a ground for holding
the said provision to be
unconstitutional.
14. In Ajoy Kumar Banerjee v. Union of
India [(1984) 3 SCC 127], this Court
held:
"50. Differentiation is not always
discriminatory. If there is a rational
nexus on the basis of which
differentiation has been made with the
object sought to be achieved by
particular provision, then such
differentiation is not discriminatory
and does not violate the principles
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of Article 14 of the Constitution. This
principle is too well-settled now to be
reiterated by reference to cases. There
is intelligible basis for
differentiation. Whether the same result
or better result could have been
achieved and better basis of
differentiation evolved is within the
domain of legislature and must be left
to the wisdom of the legislature. Had it
been held that the scheme of 1980 was
within the authority given by the Act,
we would have rejected the challenge to
the Act and the scheme under Article
14 of the Constitution."
15. No case has been made out that the
Act is confiscatory in nature. No
foundation fact has also been brought on
record. Appellants have not annexed even
a copy of the writ petition. The learned
counsel has not been able to satisfy us
that there existed any factual
foundation in support of his argument.
16. In Southern Petrochemical Industries
Co. Ltd. v. Electricity Inspector &
ETIO [(2007) 5 SCC 447], this Court
held:
"69. The issue that the 2003 Act is in
violation of the equality clause
contained in Article 14 of the
Constitution of India was not raised
before the High Court. Only in one of
the civil appeals, prayer was made for
urging additional ground and the same
having been directed, additional ground
has been taken to urge the said
question. A ground taken, however,
must be based on a factual foundation.
For attracting Article 14, necessary
facts were required to be pleaded. The
foundational facts as to how Section
14 of the 2003 Act would be
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discriminatory in nature have not been
stated at all. The Government of Tamil
Nadu has also not been given any
opportunity to meet the said contention.
70. It is now trite that such factual
foundation, unless is apparent from the
statute, itself, cannot be permitted to
be raised and that too for the first
time before this Court."
It was further opined:
"74. In absence of necessary pleadings
and grounds taken before the High Court,
we are not in a position to agree with
the learned counsel appearing on behalf
of the appellants that only
because Section 13 of the repealed Act
is inconsistent with Section 14 of the
2003 Act, the same would be arbitrary by
reason of being discriminatory in nature
and ultra vires Article 14 of the
Constitution of India on the premise
that charging section provides for levy
of tax on sale and consumption of
electrical energy, while the exemption
provision purports to give power to
exempt tax on "electricity sold for
consumption" and makes no corresponding
provision for exemption of tax on
electrical energy self-generated and
consumed."
17. In absence of such factual
foundation having been pleaded, we are
of the opinion that no case has been
made out for declaring the said
provision ultra vires the Constitution
of India.
18. A domestic trader and an exporter
stand on different footings. The said
provisions were made when the country
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was undergoing severe `foreign exchange
crunch'. The Parliament in its wisdom
has inserted the said provisions so as
to prevent fraud. Sub-section (1)
of Section 18 of the Act provides for
filing of an application for grant of
exemption by the Reserve Bank of India.
Refusal to give such an exemption is
required to be preceded by reasonable
opportunity of making a representation.
19. A legal provision does not become
unconstitutional only because it
provides for a reverse burden. The
question as regards burden of proof is
procedural in nature. [See Hiten P.
Dalal v. Bratindranath Banerjee, (2001)
6 SCC 16 and M.S. Narayana Menon v.
State of Kerala, (2006) 6 SCC 39]."
19. In view of above conspectus of law, We do
not find any merit in the petitions. Accordingly,
they are dismissed.
(VIKRAM NATH, CJ)
(BHARGAV D. KARIA, J)
RAGHUNATH R NAIR
