Piyush Bind S/O Ramshankar Bind vs Union Of India
2021 Latest Caselaw 1650 Guj

            C/SCA/20824/2019                            CAVJUDGMENT




                 IN THEHIGHCOURTOF GUJARATAT AHMEDABAD

                  R/SPECIALCIVILAPPLICATIONNO. 20824of 2019
                                    With
                   R/SPECIALCIVILAPPLICATIONNO. 9994of 2020
                                    With
                  R/SPECIALCIVILAPPLICATIONNO. 11779of 2020
                                    With
                   R/SPECIALCIVILAPPLICATIONNO. 431 of 2021
                                    With
                  R/SPECIALCIVILAPPLICATIONNO. 20841of 2019
                                    With
                  R/SPECIALCIVILAPPLICATIONNO. 21105of 2019
                                    With
                  R/SPECIALCIVILAPPLICATIONNO. 21102of 2019
                                    With
                  R/SPECIALCIVILAPPLICATIONNO. 23189of 2019
                                    With
                  R/SPECIALCIVILAPPLICATIONNO. 23196of 2019
                                    With
                  R/SPECIALCIVILAPPLICATIONNO. 23241of 2019
                                    With
                  R/SPECIALCIVILAPPLICATIONNO. 14251of 2020

FORAPPROVALANDSIGNATURE:


HONOURABLEMR. JUSTICEBIRENVAISHNAV

==========================================================

1 Whether Reporters of Local Papers may be allowed NO to see the judgment ?

2 To be referred to the Reporter or not ? NO

3 Whether their Lordships wish to see the fair copyNO of the judgment ?

4 Whether this case involves a substantial question NO of law as to the interpretation of the Constitution of India or any order made thereunder ?

========================================================== SURELAZARNANARESHBHAI

C/SCA/20824/2019 CAVJUDGMENT

Versus UNIONOF INDIA ========================================================== Appearance:

APPEARANCEIN SCANO. 20824of 2019, 9994of 2020, 431 of 2021, 20841of 2019, 21102of 2019, 23189of 2019, 23196of 2019 MR. SHALINMEHTA,SENIORCOUNSELWITHMRHEMANGM SHAH(5399)for the Petitioner(s)No. 1,2,3,4,5,6 MR. SIDDHARTHDAVE,ADVOCATEFORMRDEVANGVYAS(2794)for the Respondent(s)

MRPREMALR JOSHI(1327)for the Respondent(s)No. 5 MR. KMANTANI(6547)for the Respondent(s)No. 3 NOTICESERVEDBY DS(5)for the Respondent(s)No. 2,4,6 APPEARANCEIN SCANO. 11779of 2020, 21105of 2019, 23241of 2019& 14251of 2020 MR. SHALINMEHTA,SENIORCOUNSELWITHMRHEMANGM SHAH(5399)for the Petitioner(s)No.

MR. SIDDHARTHDAVE,ADVOCATEFORMRDEVANGVYAS(2794)for the Respondent(s)

MRAVINASHTHACKERWITHMR. SHIVANGTHACKER,for the Respondent(s)No. 7 MR. KMANTANI(6547)for the Respondent(s)No. 3 APPEARANCEIN SCANO. 14251of 2020 MR. BHARATT RAO,for the Petitioner(s) MR. SIDDHARTHDAVE,ADVOCATEFORMR. DEVANGVYASfor the Respondent(s)No 1 and 2 MR. AVINASHTHACKEER,ADVOCATEWITHMR. SHIVANGTHACKER,for the Respondent(s)No.5 ==========================================================

CORAM: HONOURABLE MR. JUSTICE BIREN VAISHNAV

Date: 04/02/2021

CAVJUDGMENT

1. Conscious of the settled legal position that if the rule of merit is

defeated by inefficiency, inaccuracy or improper method of

admission, then it can be interfered and that if the merit alone is

criteria for admissions, circumvention of merit is not only

impermissible but is also abuse of process of law, this court has

taken up these petitions for hearing.

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1.1 The petitioners, in these petitions, are students who have

been granted conditional admission by their respective colleges

affiliated to the respective Universities to pursue the course in the

Bachelor of Homeopathic Medicine and Surgery (B.H.M.S) and

Bachelor of Ayurvedic Medicine and Surgery (B.A.M.S)

respectively. The petitioners have been granted conditional

admission by the colleges to pursue the respective B.H.M.S and

B.A.M.S courses for the year 2019­20 subject to the lowering of

percentile in NEET 2019­2020 examinations. In this context, the

prayers of the petitioners is for issuance of a writ of mandamus

commanding the respective respondents to hold discussion and

thereby lower the qualifying percentile in NEET 2019­20

examination, so as to enable the petitioners to secure admission to

the BAMS / BHMS courses.

2 The facts in brief are as under:

2.1 The case of the petitioners is that they have cleared their HSC

examination. They were inclined to pursue the Bachelor of

Ayurvedic Medicine and Surgery course and / or Bachelor of

Homeopathic Medicine & Surgery course. They appeared for NEET

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- UG 2019 examination and cleared the same. The cut off for the

admissions to the respective courses was 50% percentile for the

general category candidates. The petitioners have secured a much

lower percentile than the required for being eligible to secure

admission to the courses.

2.2 Since many seats across the Gujarat State could not be filled

in, the concerned colleges on their own filled up the seats on the

basis of the NEET score, knowing fully well that the students

concerned had not secured the cut off marks. Under these

circumstances, conditional letters of admission were issued to the

petitioners making it clear that the admission is granted on a

condition that if the Department of AYUSH reduces the cut off

marks for the academic year 2019­20, their admissions shall be

secured. In the event the department refuses such reduction, their

admissions shall stand cancelled.

2.3 The case of the petitioners is that the relevant regulations

concerning BAMS / BHMS have a proviso which gives the

competent authority discretion that when sufficient number of

candidates in the respective categories fail to secure minimum

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marks in the NEET, the Central Government in consultation with

the Council may at its discretion lower the minimum marks

required for admission to undergraduate course for candidates

belonging to the respective categories and the marks so lowered by

the Central Government shall be applicable for that academic year

only. It is in this context that the petitioners have prayed that

discussions be held between the Central Government and the

respective councils to lower the percentile for the academic year

2019­20 as was done for the year 2018­19.

2.4 It is the case of the petitioners that the National Testing

Agency when it came to securing admissions to the Bachelor of

Dental Surgery Course (BDS), revised and lowered the percentile

for various categories for securing admission to BDS course for the

academic year 2019­20. Reliance is placed on the decision of the

High Court of Karnataka at Bengalaru in Writ Petition No. 41486 of

2018, where an order dated 20.09.2019 was passed by the

Karnataka High Court and by virtue of such order, the colleges had

issued conditional admission letters. The case of the petitioners is

that even in a case before the Bombay High Court, the court on

04.10.2019 passed orders wherein interim relief was refused.

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2.5 Aggrieved by these orders, Special Leave Petitions were filed

before the Hon'ble Supreme Court. As far as the Bengalaru

judgment is concerned of the Karnataka High Court, the order

granting conditional admissions was stayed by the Supreme Court.

As far as the decision of the Bombay High Court is concerned,

where interim relief was refused to the petitioners, the Supreme

Court on 05.11.2019 passed an order wherein it refused to

interfere with the refusal of interim relief granted by the Bombay

High Court. However, the Supreme Court observed that the

petitioners were at a liberty to make a representation to the Union

of India to reduce the qualifying marks for admission to

Homeopathy, Ayurveda and Unani courses in NEET­2019. The

Supreme Court observed that in case such a representation is made,

the Union of India shall consider it expeditiously.

2.6 Having come to know of these developments, the case of the

petitioners is that they approached their colleges and the

association of colleges took steps to request the competent

authorities to reduce the qualifying percentile in NEET­2019 for the

respective courses. It is the case of the petitioners that as far as the

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State of Maharashtra is concerned, the Ministry of AYUSH rejected

the representations on the ground that lowering of qualifying

marks may compromise the standard of qualified medical

practitioners.

2.7 The case of the petitioners is that by a communication dated

15.11.2019, the State authorities in reference to admission to the

post graduate degree in Ayurveda and Homeopathy reduced the

qualifying percentile restricting it to the year 2019­2020. The case

of the petitioners is that in the undergraduate course, as on

19.10.2019, 995 seats are vacant out of 2200 seats in Ayurveda

colleges and 1546 seats out of 3630 seats are vacant in the

Homeopathy colleges. The case of the petitioners is that for the

year 2018, the Ministry had lowered the qualifying percentile for

NEET candidates and even for the year 2020­2021, the NEET

percentile had been lowered from 40th percentile to 35th percentile

for unreserved category candidates. Therefore, the case of the

petitioners is that similar treatment should be meted out to the

petitioners who are in the academic year 2019­2020 who have

been singled out, whereas benefits have been given to the students

of academic year 2018­2019 and 2020­2021.

C/SCA/20824/2019 CAVJUDGMENT

3. Mr. Shalin Mehta, learned Senior Advocate appearing for the

petitioners would read the proviso to the relevant regulations and

submit that the proviso obliges the respondents to hold

consultation for lowering the percentile upon availability of vacant

seats. Such power, according to Mr. Mehta, learned Senior

Advocate, is coupled with duty. He would submit that when

circumstances exist i.e. when seats are going vacant, discretion

ought to be exercised and a decision to lower the qualifying

percentile must be taken so as to benefit the students which would

not compromise the quality of medical doctors.

3.1 Mr. Shalin Mehta, learned Senior Advocate, would further

submit that if the Dental Council of India as well as the Medical

Council of India could lower the qualifying marks for their

respective courses for the academic year 2019­2020, there was no

reason or logic to deny such benefit of lowering of percentile in

respect of BAMS and BHMS courses. Denial of such a benefit would

fall foul of Article 14 of the Constitution of India.

3.2 Mr.Shalin Mehta, learned Senior Advocate, would further

C/SCA/20824/2019 CAVJUDGMENT

submit that if the benefit can be given of lowering such percentile

in the higher pursuit of studies i.e. in the post graduate courses of

BAMS and BHMS, there is no reason why the under graduates be

not given such benefits as was given to the post graduate students.

3.3 Mr. Shalin Mehta, learned Senior Advocate, would rely on

the decision of the Supreme Court in the case of Union of India vs.

Federation of Self Financed Ayurvedic Colleges & Ors., reported

in 2020 8 Scale 177 and submitted by relying on paras 10 to 13 of

the judgment that in the facts of the case where interim orders

were granted by the High Court of Punjab at Haryana and

admissions were granted to students who had not even undertaken

NEET or had undertaken NEET with lower qualifying percentile,

the Supreme Court had, as a matter of one time measure, knowing

that the admissions were within the cut off date of 15.10.2019,

permitted the students to continue with such studies as a one time

exercise. He would submit that even in the present circumstance,

interim orders protecting conditional admissions have been

granted, and therefore, order of the Supreme Court would squarely

govern their case.

C/SCA/20824/2019 CAVJUDGMENT

3.4 Mr.Shalin Mehta, learned Senior Advocate, would submit

that the interim order passed by this Court were never challenged

by the competent respondents, and therefore, if the admissions are

sought to be cancelled now, the career of the students would be

ruined. He would submit that the interpretation made by the

respondents on the Supreme Court judgment was misconceived.

3.5 Mr.Shalin Mehta, learned Senor Advocate, also relied on the

decision of the Supreme Court in the case of Pharmacy Council of

India vs. Dr.S.K.Toshniwal Education Trust, reported in 2020 (5)

scale pg 439. He would rely on paragraph 22 of the judgment.

4 Mr. Siddharth Dave, learned advocate has appeared for the

learned Additional Solicitor General Shri Devang Vyas for the

Ministry of AYUSH. Shri Dave, learned advocate would invite the

attention of the Court to the prayers made in the petition, namely,

Special Civil Application No. 20824 of 2019 and he would submit

that the petitioners of the BAMS and the BHMS course are not

entitled to the reliefs that they have prayed for. Inviting the

attention of the Court to the reliefs of SCA No. 20824 of 2019,

Mr.Dave, learned advocate, would submit that their cannot be a

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writ sought under Article 226 of the Constitution of India for a

direction that the respondents should lower the percentile of the

NEET score contrary to the regulations. Mr. Dave, learned

advocate, would submit that by virtue of the amendment to the

respective regulations in the branches of Homeopathy and

Ayurveda, the candidates who passed the NEET examination are

eligible to be admitted to the respective colleges only if they secure

a minimum percentile. In absence of challenge to the rules, it is not

open for the petitioners to claim the relief that they have sought for

in these petitions.

4.1 Mr.Siddharth Dave, learned advocate, would further submit

that it is not open for the petitioners to compare their status with

the dental college students because the cut off percentile in the

dental courses were reduced by the Dental Council of India because

of 44% seats in government colleges and 42% seats in the private

dental colleges lying vacant. Perusal of the letter of the Department

to the State of Maharashtra would indicate that a lesser number of

seats had remained vacant and therefore their status cannot be

compared to those of dental students.

            C/SCA/20824/2019                       CAVJUDGMENT



4.2    Mr. Siddharth Dave, learned advocate, would further submit

that discrimination under Article 14 cannot be invoked by the

petitioners, inasmuch as, a NEET score prescribing a minimum

eligibility criteria for admission, and therefore, a classification to

secure admission for better qualified candidates is based on an

intelligible differentia. Mr. Dave, learned advocate, would also rely

on the decision in the case of Federation of Self Financed

Ayurvedic Colleges (supra), and submit that the decision would

support the respondents inasmuch as not only were the regulations

not under challenge whereas it was so in that case. He would also

emphasize on the observations of the Supreme Court, wherein, it

held that the non availability of eligible candidates cannot be a

reason to lower the standard prescribed by the Central council. The

order categorically stated that it was only a one time measure and

not to be treated as a precedent, and therefore not a statement of

law.

4.3 In support of his submissions, Mr.Dave, learned advocate,

would also rely on the decision of the Supreme Court in the case of

M.C.I vs. Kalinga Institute of Medical Sciences, reported in

(2016) 11 SCC 530 and the decision in the case of M.C.I vs.

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M.G.R Education, reported in (2015) 4 SCC 580, where the Court

took a serious view where the students were admitted contrary to

the instructions given by the department. Mr.Dave, learned

advocate, would rely on the decision of this Court rendered in

Special Civil Application No. 7216 of 2020, wherein, the same

regulations were considered. Shri Dave, learned advocate, would

rely on a decision of the Kerala High Court in the case of Kerala

State Indian System of Medicine Self Financing Management

College Association dated 12.12.2019.

5. For the Guru Govind University and the Saurashtra University

in Special Civil Application Nos. 21105 and 23241 of 2019, 11779

of 2020 and 14251 of 2020, Mr.Avinash Thacker, learned advocate

with Mr.Shivang Thacker, learned advocate, have appeared for the

Saurashtra University and Shri Guru Govind University.

5.1 Shri Thacker, learned advocate, would also take support of

the decision in the case of All India Federation of Self Financed

Ayurved Colleges (supra) judgment of the Supreme Court. He

would submit that if para 3 of the decision is read, it was a case

where the High Court of Punjab had passed an interim order

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permitting the colleges to admit students. In the present case, the

colleges on their own had given conditional letters of admission

and the fact that the colleges had chosen not to contest the

petitions would suggest the collusion between the students and the

college. He would submit that in some of the petitions, no interim

relief has been granted, and therefore, the students have no right to

continue to prosecute their courses in the respective fields.

6 Mr. Premal Joshi, learned advocate, has appeared for the

Gujarat Ayurveda University in Special Civil Application Nos. 20824

and 23196 of 2019. He would submit that if the petitioners' names

are compared to the list annexed to the petitioners of Special Civil

Application No. 7216 of 2020, which petition was dismissed by this

Court on 19.01.2021, the Ayurveda University in that petition had

annexed a list of 25 students whose admissions were cancelled. The

petitioners herein are the same 25 candidates. He would rely

strongly on the decision in Special Civil Application No. 7216 of

2020. Inviting the attention of the Court to the relevant paras of

the decision, wherein, the Court had relying on this very list had

approved the cancellation of admission of the petitioners therein.

C/SCA/20824/2019 CAVJUDGMENT

6.1 Mr.Premal Joshi, learned advocate, would further submit that

the letters of admission categorically stated that the admission was

conditional. The judgment in Federation of Self Financed

Ayurved Colleges (supra), was not applicable. Here it was the

college which was assuming that the competent authority would

lower the percentile. The interim relief that was granted to the

petitioners was not to disturb their conditional admission and such

an interim relief would not give a right to the petitioners.

7 Considering the submissions made by the learned counsels

appearing for the petitioners, it will be necessary to appreciate the

following contours of the controversy to come to a particular

decision.

(A) The relevant regulations which have been amended in the

year 2018 categorically provide that in order to secure admission to

the BAMS / BHMS courses, a minimum cut off percentile in the

case of unreserved category concerned i.e. 50 th percentile would be

necessary to secure admission to the colleges.

(B) The present petitioners have not challenged the amendment

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to the rules or assailed the stipulation prescribing a minimum

qualification.

(C) Letters of Admission by the respective colleges are on record.

For the purposes of brevity, one of the sample letters of admission

would need to be referred to. Reading the letter of admission

would indicate that the admission is provisional for the year 2019­

20 and this is a conditional admission on the last date of the cut off

dates and it is clearly informed that this is subject to the Ministry of

AYUSH's approval of reduction in cut off marks. This is in the case

of homeopathy colleges. Same is the position in the case of

admission letters of ayurvedic colleges, where the admission letters

clearly state that the admission to the college is based on a

presumption that since in the last three years the Department of

AYUSH has brought down the cut off marks for NEET, we assume

that the same shall be adopted this year also. The college further

goes on to write in the admission letter that the college is therefore

conditionally admitting the students. The letter further stipulates

that in case the cut off marks did not come down, then the

admission shall be cancelled.

C/SCA/20824/2019 CAVJUDGMENT

(D) Perusal of the records of the petitions would indicate that

though the proviso to the rule does stipulate a discretion with the

Council in consultation with the Central Government to reduce the

cut off percentile in case the seats are remaining vacant, the

discretion would automatically not give the students seeking

admission as a matter of right to command such lowering of the

percentile of marks.

(E) Since both the learned counsels for the respective parties

have relied on the decision in the case of Federation of Self

Financed Ayurved Colleges (supra), inasmuch as, Mr.Shalin

Mehta, learned Senior Advocate, would submit that the case would

squarely govern the petitioners and the petitions be allowed,

whereas the respondents have in fact, sought support from the

decision, it will be necessary to extensively refer to the decision

therein. Before the Supreme Court, the validity of the notifications

issued by the Central Council of Indian Medicine and Central

Council of Homeopathy and minimum qualifying marks was a

subject matter of challenge. Amended regulations then came into

force in the year 2018 prescribing a uniform entrance examination

for all medical institutions. It appears that one Guru Ravidas

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University issued a prospectus to admissions for BAMS and BHMS

course and the criteria for admission to under graduates courses.

When a petition was filed by the management of the colleges, the

High Court of Punjab & Haryana passed an interim order on

06.09.2019, permitting admissions of students to under graduate

courses without insisting on the students on getting minimum

requisite percentile in NEET. The High Court of Punjab then finally

dismissed the petitions by judgment and order dated 18.12.2019.

Special Leave Petitions were filed by the students as well as the

colleges against the said judgment. Admissions were granted to the

students on the basis of interim order of the High Court. The

question that arose before the Supreme Court for its consideration

was whether the students seeking admissions to under graduate

courses can be denied admission on the ground that they did not

take NEET or that they did not get the minimum percentile

prescribed under the regulations. Perusal of the judgment of the

Supreme Court would indicate that in the petitions, the 2018

regulations were under challenge and the prayer was to declare

them as ultra vires the provisions of Section 36 of the Central

Council Act. It was in this context that we need to read the

judgment of the Supreme Court. Para 9 of the judgment when read

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would indicate that the Supreme Court opined that there was an

authority for the respondent Ministry to frame regulations. What

was found before the Supreme Court that a large number of seats

in the institutions in Punjab were vacant and it was under these

circumstances on the basis of interim orders, the institutions

granted admissions. These interim orders continued and it was

under these circumstances that the Supreme Court as a one time

measure permitted the institution under peculiar circumstance not

to disturb the admissions so granted. When para 12 is read, it is

therefore clear that the order was so passed as a one time exercise

in peculiar circumstances and not to be treated as precedent. The

Supreme Court observed that prescribing a minimum percentile for

admission to under graduate courses for the year 2019­2020 was

appropriate. It observed that doctors who are qualified in

Ayurveda, 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. It was

clearly observed in para 12 of the decision that non availability of

eligible candidates for admissions to AYUSH under graduate

courses cannot be a reason to lower the standards prescribed by the

Central Council for Admission.

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(F) The similarity drawn by Mr. Shalin Mehta, learned Senior

Advocate, by submitting that since interim orders have been passed

in these petitions protecting the petitioners, the decision of the

Supreme Court would squarely govern, cannot be taken into

consideration. In context of the prayers made in the petition what

was protected by this Court pending hearing of the petitions was

that the conditional admission granted to the petitioners would not

be disturbed. The orders categorically said so.

(G) Merely because interim orders have been passed which were

ad­interim ex­parte orders without the benefit of the arguments of

the other side on the basis of the replies filed and the pleadings,

such interim ex­parte orders cannot be said to be binding when the

court takes up the matter for final hearing. This is particularly so

when it is taken and appreciated in the facts of the case.

(H) The colleges in which the petitioners secured admission had

issued letters unequivocally stating that the admissions were

conditional and on an assumption that the Ministry would lower

the percentile for the academic year 2019­20. The letters further

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went on to state that in case the lowering of percentile is not done,

the admission of the students will stand cancelled. The students

accepted their admission with open eyes on the basis of these

conditional letters. Interim application granting them the

protection of not disturbing their admission subject to further

hearing would not give them a vested right in terms of the order of

the Supreme Court in the case of Federation of Self Financed

Ayurved Colleges (supra).

(I) The other distinction that needs to be drawn between the

petitioners and the case on hand before the Supreme Court is that

the notification of the regulations were challenged, which is not the

case on hand in the present petitions. The petitioners, therefore,

knowing fully well and having accepted the minimum stipulation of

qualifications cannot now turn around and say that let these

minimum qualifications not bind them in light of the order of the

Supreme Court. The order of the Supreme Court was a one time

measure not to be treated as a precedent as the High Court of

Punjab & Haryana had granted interim orders permitting the

colleges to admit. A thin line of distinction therefore needs to be

drawn here. The conditional admissions already granted by the

colleges were protected. These admissions were granted when the

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colleges and the students/petitioners were fully aware of the

potholes that could follow in case the Ministry did not lower the

standards of qualifications. It is in light of these circumstances that

the relevant paragraph of the decision in the case of M.C.I vs.

Kalinga Institute of Medical Sciences (supra), which have been

quoted by this Court in Special Civil Application No. 7216 of 2020

needs to be considered. For the purposes of benefit of this Court,

para 12 of the decision in the case of Union of India vs. Self

Financed College (supra), is relied upon by this Court in para 14

of the decision in SCA No. 7216 of 2020 which reads as under:

      "14 XXX                    XXX                XXX
      XXX ......

12. Prescribing a minimum percentile for admission to the Under Graduate Courses for the year 2019­2020 was vehemently defended by the Central Council and the Union of India by submitting that the minimum standards cannot be lowered even for the 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 reason to lower the standards prescribed by the Central Council for admission. However, in view of the admission of a large number of students to the AYUSH under graduate courses for the year 2019­2020 on the strength of interim orders passed by the High Courts, we direct that the students may be permitted to continue provided that they were admitted prior to the last date of admission i.e. 15th October, 2019.

      The said direction is also       applicable to students admitted




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to Post­Graduate Courses before 31st October, 2019. This is one­time exercise which is permitted in view of the peculiar circumstances. Therefore, this order shall not be treated as a precedent."

(J) Even in the case of M.C.I vs. Kalinga Institute of Medical

Sciences (supra), and the relevant paras 30, 31,31.1 and 31.2 read

as under:

30. Learned counsel for KIMS and the students contended that unless this appeal is dismissed it will result in the students suffering a loss of two years of their studies. This may be so - but if such a situation has come to pass, KIMS is entirely to be blamed. KIMS was specifically told not to admit students by the Central Government in its letter dated 15th June, 2015. Despite this KIMS persisted in litigation to somehow or the other accommodate 50 additional students. This was certainly not with a charitable motive. As an institution that should have some responsibility towards the welfare of the students, it would have been far more appropriate for KIMS to have refrained from giving admission to 50 additional students rather than being instrumental in jeopardizing their career.

31. However, for the fault of KIMS, the students should not suffer nor should KIMS get away scot free. KIMS must pay for its inability to introspect and venture into adventurist litigation. Accordingly, we direct as follows: 31.1 The admission granted to the 50 students pursuant to the order of the High Court dated 25th September, 2015 and the provisional permission granted by the Central Government only on 28th September, 2015 shall not be disturbed. How the students will complete their course of studies without putting undue pressure on them is entirely for the MCI and KIMS and other concerned authorities to decide. 31.2 Costs of Rs. 5 crores are imposed on KIMS for

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playing with the future of its students and the mess that it has created for them. The amount will be deposited by KIMS in the Registry of this Court within six weeks from today. The amount of Rs. 5 crores so deposited towards costs shall not be recovered in any manner from any student or adjusted against the fees or provision of facilities for students of any present or subsequent batches."

(K) In the decision of Self Financed Colleges (supra), the

Supreme Court was also conscious of the fact that there should not

be half baked doctors.

8. All these parameters lead one to believe that merely because

interim orders were passed by this Court in these petitions would

not itself give a right to the petitioners to continue to pursue their

studies in the respective BAMS & BHMS courses in light of a

specific conditional admission granted to them making them aware

that in case the percentile is not lowered their admission shall

stand cancelled. In absence of a challenge to the regulations

stipulating a minimum qualification, no writ in the nature as

prayed for, for commanding the respondents to lower the

qualifying percentile in NEET 2019 - 2020 examinations can be

granted.

8.1 There is a fine distinction between the petitioners before the

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Supreme Court. Perusalof the facts of the case before the Supreme

Court wouldindicate that admissions were granted by institutions.

This has been extensively discussed in the earlier part of the

decision. In the facts of the present case, what is evident is that the

institutions have taken the liberty to admit the students with a

specific condition that "they assume that the Ministry shall lower

the percentile as was done in the past". On the basis of such

assumptions not only were the institution and the students not

entitled to claim equity on the ground of warranting a discretion

being exercised in their favour. Merely because such an exemption

was given in the preceding year i.e. 2018­19 and is so given in

2020­21 would not give the institutions and the students a licence

to claim benefit of an assumption on the part of the institutions

contrary to the rule position sacrificing merit. Therefore, even if

the benefit was to be extended in terms of the interim orders and

permit the students to pursue the course as they have already

undertaken a year of study would tantamount to giving premium to

an admission secured contrary to the rule position. Thus, the

discretion so exercised by the Supreme Court as a one time

measure cannot be permitted to be perpetrated in case such

institutions continue to assume and usurp the powers of the

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admission committee in securing admissions to courses such as

medical courses in light of the primacy of merit that is required.

The admissions therefore granted to the students needs to be

cancelled as the same is contrary to the eligibility criteria

prescribed for the concerned year. Granting indulgence only on the

pretext of a one time measure or not treating the present case as a

precedent would prompt and embolden educational institutions to

forego merit in admissions to such courses as medical stream. The

respective respondent colleges have not appeared to contest the

petitions, except in one petition represented by Mr. B.T. Rao,

learned advocate and least it be said that the apprehension

expressed by the University that these are collusive petitions at the

hands of colleges with the students, may not be a submission which

can entirely be discounted.

9. Article 14 of the Constitution of India cannot be pleaded as is

so pleaded by the petitioners as compared to the students of the

dental colleges as it has been specifically pointed out in the

affidavit­in­reply that the vacancies in the dental colleges are far

higher than those in the ayurveda and the homeopathy stream.

Even otherwise, if the authorities have sought to exercise discretion

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to lower the percentile for the year 2018­19 and for the years 2020­

21 and not for the academic year 2019­20, the fact that the

petitioners ventured to secure conditional admission in the colleges

and the action of the colleges in granting such admission on the

face of they knowing that the students were ineligible would not

give the petitioners a vested right to continue their studies and

pursue their course when admittedly in accordance with the rules

stipulating a minimum qualification the petitioners were not

eligible to have secured admission to such colleges.

10. Accordingly, all the petitions are dismissed. Interim reliefs

granted earlier protecting the secured admissions stand vacated.

(BIRENVAISHNAV,J) BIMAL

FURTHER ORDER

Mr. Shalin Mehta, learned Senior Counsel, requests that the

interim relief that was operating in some of the petitions, be

continued for a period of two weeks. Request is accepted. Interim

relief wherever granted to continue for a further period of two

weeks from today.

(BIRENVAISHNAV,J) BIMAL