Gujarat High Court

Patel Utsav Dineshbhai vs The Gujarat Ayurved University on 19 January, 2021

Bench: Biren Vaishnav

     C/SCA/7216/2020                                 CAV JUDGMENT




         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/SPECIAL CIVIL APPLICATION NO. 7216 of 2020

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PATEL UTSAV DINESHBHAI Versus THE GUJARAT AYURVED UNIVERSITY ========================================================== Appearance:

MR DHAVAL DAVE, SENIOR COUNSEL WITH MR NISARG H VYAS(9431)

MR DEVANG VYAS, ADDITIONAL SOLICITOR GENERAL for the

MR PREMAL R JOSHI(1327) for the Respondent(s) No. 1 MS VISHWA A SHASTRI(10559) for the Respondent(s) No. 2 PRANAV U RAVAL(9475) for the Respondent(s) No. 2 ==========================================================

CORAM: HONOURABLE MR. JUSTICE BIREN VAISHNAV

Date : 19/01/2021

CAV JUDGMENT

1. The petitioner herein, by way of this petition has prayed for a

writ of mandamus to declare the communications dated 24-

25.2.2020 and 14.3.2020 as bad, illegal, unwarranted and

against the principles of natural justice.

2. The facts in brief are as under:

* The petitioner, a student, appeared for his Higher

Secondary Education Examination in the month of

March, 2019 and secured 43.90 percentile marks.

Since he intended to prosecute further studies in the

field of Ayurveda Medicine, the petitioner appeared for

NEET in 2019. It is the case of the petitioner that he

secured 216 out of 720 marks. The case of the

petitioner is that he secured admission in Bachelor of

Ayurvedic Medicine and Surgery (BAMS) on the All

India Quota of 15% of the seats. The petitioner was

called for counseling on 3.7.2019 and the respondent

No. 2 College was the College allotted to the petitioner

as per his own choice. According to All India Quota

ranking, an admission letter was issued on 11.7.2019

and accordingly the petitioner had paid his fees. The

case of the petitioner is that he is in the College for the

last 10 months.

* On 25.2.2020, the respondent No.1 - Gujarat

Ayurveda University issued a communication to the

respondent No.2 College informing the College that the

petitioner is not qualified to be enrolled in the BAMS

Course. The remark in the communication indicated

that petitioner had secured 214 marks in Physics,

Chemistry and Biology(PCB). Subsequent

communication dated 14.3.2020 was addressed to the

petitioner that he must collect his fees as his admission

has been cancelled by the University. This has given

rise to the present petition.

3. Mr. Dhaval Dave, learned Senior Counsel appearing with Mr.

Nisarg Vyas learned advocate for the petitioner would submit

as under:

* According to the learned counsel for the petitioner, the

petitioner had secured 69.77 percentile in NEET. He was

allotted the respondent College on 3.7.2019. He paid the

fees as he had applied on All India Quota of 15%. The

admission to the All India Quota is regulated through Central

Admission Process. By the impugned communication of

25.2.2020, which was not served on the petitioner, his

admission stands cancelled. It was only on 14.3.2020 that

the College informed the petitioner. He invited the Court's

attention to a communication dated 25.2.2020 and 14.3.2020

to submit that the communications are bad.

4. Mr. Dhaval Dave, learned counsel would invite the attention

of the Court to the required parameters which have to be

considered for admission against the All India Quota. Inviting

the attention of the Court to the FAQs, he would submit that

the counseling was to be done by AYUSH Admissions

Central Counseling Committee (AACCC) for minimum 15%

All India Quota Seats. The eligibility was on the basis of

NEET score. The petitioner had produced the downloaded

result of the NEET.

* Mr.Dave would also invite the attention to question

1.20 and submit that as far as the documents required

at the time of online counseling is concerned, the

question indicated that no documents were required for

participating in online allotment process.

* Mr.Dave would submit that it was only through the

affidavit-in-reply that it has come forth as stated by the

University that the admission given by the College to

the petitioner for the year 2019-20 was in violation of

provisions of the Gujarat Provisional Medical Education

Courses (Regulations of Admission in Under Graduate

Courses) Rules, 2017.

* Mr. Dave invited the attention of the Court to the Rules

and would submit that the case of the University was

that the petitioner had secured less than 50% in HSC.

The Rules of 2017 would apply only for Government

and Management Seats. The admission to the All India

Quota was not governed by the 2017 Rules.

5. Inviting the attention of the Court on the rejoinder filed,

Mr.Dave would submit that the petitioner had applied in the

All India Quota of NEET for which the Government had

allotted 15% of the seats. When the Rules of 2017 were

framed, there was no All India Quota in respect of Ayurveda

College. It was only in the year 2019-20 that this concept

was introduced and, therefore, reliance on the rules 2017

does not arise.

6. Mr.Dave would also submit that the reliance placed by the

University on the communication dated 18.6.2019 was

misconceived as in-fact the All India Quota was by the

Ministry of AYUSH and even when communication dated

3.1.2019 is read, admission is to be based on NEET score.

He would, therefore, submit that if the College had made any

mistake, which it has not, it was not the petitioner's fault and,

therefore, he should not be deprived off the admission that

he had secured in BAMS. He relied on the following

decisions:

A. Rajesh Kumar Mehta v. Karnataka University

reported in 1986(Suppl) SCC 740 (Para 8

thereof).

B. Ashok Chand Singhvi v. University of

Jodhpur reported in 1981 (1) SCC 399 (Para

17 thereof) .

C. Sanatan Gauda v. Behrampur University

reported in 1990(3) SCC 23.

7. Mr.Premal Joshi, learned counsel has appeared on behalf of

the Gujarat Ayurveda University. He made the following

submissions:

* Mr.Joshi invited the attention of the Court to the mark-

sheet of the petitioner of standard 12. He would submit that

admittedly the petitioner had secured 43.90% i.e. less than

50% and, therefore, was admittedly ineligible.

* Inviting the attention of the Court to the FAQs, Mr.Joshi

disputes Mr.Dave's submission that no documents are

required. Relying on question 1.21, he would submit that

original documents such as mark-sheet of 10+2 etc were

required for verification for allotment at the homeopathy

College. The College ought to have verified the mark-sheet

when it was apparently clear on the examination thereof that

the petitioner had secured less than 50% in HSC, as

required under the Rules.

* He would also rely on the communication dated

18.6.2019 together with 3.1.2019 to submit that it is

admittedly clear that the Rules of 2017 would apply to the All

India Quota because it specifically provides in (b) of Para 2

of the letter that counseling for admission has been done in

accordance with the relevant rules of the State.

* Mr. Joshi would submit that a list of 25 students

including the petitioner of various institutions was produced

to justify that it is not only the petitioner who has been

singled out but several such cases came to the light of the

University and admissions have been cancelled. He would

rely on the decision in the case of Sunil Oraon and others

v. CBSE and others reported in 2006(13) SCC 673 (Para 23

thereof).

8. In rejoinder, Mr.Dave would submit that it is not right for Mr.

Joshi to rely on a communication dated 3.1.2019 [clause

2(b)] thereof because on the contrary it only talks for

counseling for all admissions and not specific talk on the

applicability of Rules, 2017 to the All India Quota.

9. Mr. Devang Vyas, learned Additional Solicitor General

appeared for Union of India - respondent No.3. He has filed

his written submissions. In a nut shell, his submissions read

as under:

* The Indian Medical Central Council (Minimum

Standards of Education in Indian Medicine)

Amendment Regulations, 2019 were notified on

18.6.2019. These regulations are applicable to the

students who shall be admitted to the Bachelor of

Ayurveda (Medicine and Surgery). Relevant extract of

the Rules as under:

"1. Short title, commencement and application. -(1) These regulations may be called the Indian Medicine Central Council (Minimum Standards of Education in Indian Medicine) Amendment Regulations, 2019. (2) They shall come into force on the date of their publication in the Official Gazette. (3) These regulations shall apply to students who shall be admitted for B.A.M.S., B.S.M.S. and B.U.M.S from the commencement of the academic session (2019-2020)."

"2. In the Indian Medicine Central Council (Minimum Standards of Education in Indian Medicine) Regulations, 1986 (hereinafter referred to as the said regulations) in Schedule-I, for regulation 2, the following regulation shall be substituted, namely:-

"2. Eligibility for Admission. - The eligibility to seek admission in Bachelor of Ayurveda education shall be as under:-

(a) The candidate must have passed intermediate (10+2) or its equivalent examination recognised by the concerned State Government and Education Board with the subjects of Physics, Chemistry, Biology and English individually and must have obtained minimum of fifty per cent. marks taken together in Physics, Chemistry and Biology at the aforesaid qualifying examination in the case of general category and forty per cent. Marks in the case of the Scheduled Castes, Scheduled Tribes and Other Backward Classes.

(b) In respect of persons with disability candidate specified under the Rights of Persons with Disabilities Act, 2016 (49 of 2016), the minimum qualifying marks in the said qualifying examination in Physics, Chemistry and Biology shall be forty-five per cent. in the case of general category and forty per cent. in the case of the Scheduled Castes, Scheduled Tribes and Other Backward Classes.

(c) No candidate shall be admitted to B.A.M.S Degree Course unless he has attained the age of seventeen

years on or before the 31st December of the year of his admission in the first year of the Course and not more than of twenty-five years on or before the 31st December of the year of admission in the first year of the Course: Provided that the upper age limit may be relaxed by five years in the case of the Scheduled Castes, Scheduled Tribes, Other Backward Classes and physically handicapped candidates.

(d) (i) There shall be a uniform entrance examination for all medical institutions at the under-graduate level, namely the National Eligibility Entrance Test (NEET) for admission to under-graduateCourse in each academic year and shall be conducted by an authority designated by the Central Government.

(ii) In order to be eligible for admission to under-

graduate Course for an academic year, it shall be necessary for a candidate to obtain minimum of marks at 50th percentile in the 'National Eligibility Entrance Test for undergraduate Course' held for the said academic year:

Provided that in respect of-

(A) candidates belonging to the Scheduled Castes, Scheduled Tribes and Other Backward Classes, the minimum marks shall be at 40th percentile; (B) candidates with benchmark disabilities specified under the Rights of Persons with Disabilities Act, 2016 (49 of 2016), the minimum marks shall be at 45th percentile in the case of general category and 40th percentile in the case of the Scheduled Castes, Scheduled Tribes and Other Backward Classes.

Explanation.--The percentile shall be determined on the basis of highest marks secured in the all India common merit list in the National Eligibility Entrance Test for under-graduate Courses: Provided further that when sufficient number of candidates in the respective categories fail to secure minimum marks in the National Eligibility Entrance Test, as specified above, held for any academic year for admission to under-graduate Courses, the Central Government in consultation with the Central Council may at its discretion lower the minimum marks required for admission to under-graduate Course for candidates belonging to respective categories and marks so lowered by the Central Government shall be applicable for that academic year only.

(iii) An all-India common merit list as well as State-wise merit

list of the eligible candidates shall be prepared on the basis of the marks obtained in the National Eligibility Entrance Test and the candidates, within the respective categories, shall be admitted to under-graduate Course from the said merit lists only.

(iv) The seat matrix for admission in the Government, Government-aided Institutions and Private Institutions shall be fifteen per cent. for the all-India quota and eighty-five per cent. for the States and Union territories quota.

(v) The designated authority for counseling for all admissions to under-graduate Course in all Ayurveda educational institutions in the States and Union territories including institutions established by the State Government, University, Deemed University, Trust, Society, Minority Institution, Corporation or Company shall be the respective State or Union territory in accordance with the relevant rules and regulations of the concerned State or Union territory Government, as the case may be.

(vi) The counseling for all admission to B.A.M.S Course for seats under all India quota as well as for all Ayurveda educational institutions established by the Central Government shall be conducted by the authority designated by the Central Government.

(vii) No candidate who has failed to obtain the minimum eligibility marks as specified above shall be admitted to under-graduate Course in the said academic year.

(viii) No authority or institution shall admit any candidate to the under-graduate Course in contravention of the criteria or procedure as laid down by these regulations in respect of admissions and any candidate admitted in contravention of the said criteria or procedure shall be discharged by the Central Council forthwith.

(ix) The authority or institution which grants admission to any student in contravention of the aforesaid criteria or procedure shall be liable to face action in terms of the provisions of the Act.

(e) For foreign national candidate any other equivalent qualification to be approved by the Central Government may be allowed and clause (d) shall not be applicable for said foreign national candidate.".

10. Reading of the Rules would indicate that for being eligible for

admission, according to Mr.Vyas, a candidate must have

obtained minimum of 50% marks taken together in Physics,

Chemistry and Biology at the aforesaid qualifying

examination in a case of General Category candidate. In

addition, thereto, as per the Rules, a candidate has to obtain

minimum mark of 50 percentile in National Eligibility

Entrance Test for Under Graduate Courses. A candidate who

fails to obtain the minimum eligibility marks as specified in

the Rules cannot be admitted and a student so not be

admitted by any institution.

* Mr.Vyas, learned ASG relied on several decisions of

the Supreme Court to submit that if the institution

permitted admission of a student in contravention of

the regulations, such admission cannot be regularized.

In support of his submission, he relied on the decision

of the Supreme Court in case of MCI v. Kalinga

Institute of Medical Science reported in 2016 (11)

SCC 530. Special attention was drawn to para, 30, 31,

31.1 and 31.2. He also relied on a decision in the case

of MCI v. MGR Education reported in 2015(4) SCC

580.

* He would therefore submit that the object of the

amendment was to induct meritorious students in

various Courses including BAMS and certain minimum

educational qualification and standards were

prescribed. If the student has been admitted de hors

such a qualification, it cannot be then said that he

would continue to pursue his studies with the College

despite he being not qualified. Reliance was also

placed on the decision in the case of Union of India v.

Federation of Self Financed Ayurveda Colleges

Punjab and others (Para 12 thereof) which Mr. Vyas

has quoted in the Written Submissions.

11. Considering the above submissions at hand, from the facts,

what is evident is that reading of the mark sheet of standard

12 of the petitioner would indicate he had secured 43.90% of

marks. Admittedly, therefore, in accordance with the rules of

2019, he had secured less than 50% and, therefore was not

eligible for admissions to the BAMS Course. Mr. Dave,

learned Senior Advocate's harping on the fact that by virtue

of letter dated 18.7.2019/3.1.2019 and by virtue of NEET

score of 216, it was not the fault of the candidate if he was

allotted to the JS Ayurveda Maha Vidhyalaya, the institution

which is herein respondent No.2 and that, no fault can be

found with the student for having been admitted and allotted

to such institution.

12. To draw support, reliance was placed on the inapplicability of

the rules of 2017 on the ground that such rules apply only to

the Government seats and management seats. Perusal of

the FAQs would indicate that they cannot be read in

isolation. The frequently asked questions talked about the

documents for online counseling. That counseling in

accordance with the 2019 rules, as shown by Mr.Vyas in the

Written Submissions even for the All India Quota was to be

done by the Central Government, by an authority designated

by it. What is lost sight by the learned counsel for the

petitioner is that FAQ 1.21 would indicate that it became

incumbent upon the College to which the petitioner was

allotted to verify the documents including mark-sheet of

10+2. The submission made by the learned counsel for the

College Ms.Vishwa A. Shastri that the College was

completely ignorant and was only an executing authority

lacks complete merit. It shows rank irresponsibility on the

part of the College in not following the rules which stipulated

the eligibility criteria for admission. For the College to say

that it was unaware of the rules and was only merely

accepting an online allotment made by the Central Council

cannot absolve the College of serious lapses or irregularities.

13. Mr.Dave would contend that if it was the lapse of the

College, why should the student suffer. Perusal of the notes

and events that unfolded before filing of the petition would

indicate that the petitioner was allotted to the College in July,

2019. He paid his fees on 11.7.2019. Aggrieved by the

communications dated 25.2.2020 and 14.3.2020, the

petitioner approached this Court by filing a petition which

was registered on 2.6.2020, 3 months after the admission

was cancelled. It was on 3.6.2020 that the Court issued

notice making it returnable on 5.6.2020 without any interim

order. The matter was subsequently adjourned from time to

time without there being any interim orders passed thereon.

The only clarification that the Court made on 2.11.2020 was

that if the examination dates are announced, it will be open

for the petitioner to move the Court. It appears that the

petitioner as submitted by learned advocate Shri Dave

attended online classes during the interregnum period

though his admission was cancelled by the University and

consequently by the College in March, 2020. This would not

hold and give any equities in favour of the petitioner.

14. As far as the applicability or inapplicability of the Rules of

2017 is concerned, the submission of Mr.Dave that the rules

were not applicable pales into insignificance in view of the

amended rules brought on record through written

submissions by Mr. Vyas, learned ASG. It was in context of

these amended rules that the communication dated

18.7.2019 filed by the University together with the reply

needs to be appreciated. In consonance with the rules what

was decided was that the counseling should be done for

admissions to under graduate Courses through a centralized

agency and such counseling should be done in accordance

with the relevant rules and regulations. Also annexed to the

affidavit-in-reply, is a statement of similarly situated students

which the University opined for removing from the College. A

list of 25 such students who either were ineligible or had

lesser marks and were faced with the same situation when

their admissions were cancelled is placed on record. The

question is not whether the petitioner was governed by the

2017 rules inasmuch as, whether he was within the

Government or management quota. Be that as it may, that

he was in All India Quota for being selected for BAMS what

glares on the face of the Rules of 2019 is that he did not

possess the minimum eligibility criteria of being selected to

undertake the Course in BAMS. Citations relied upon by

Mr.Vyas in the case of Kalinga (Supra) and MCI v. MGR

Education (Supra) are vocal enough to suggest that the

benefit cannot go to the students. In a judgment cited by

Mr.Joshi in the case of Sunil Oraon (Supra), the court has

categorically held that merely because a wrong admission

has been given, the Court should not exercise discretion in

favour of the student. Having found that student is clearly

ineligible and even as per the latest judgment in the case of

Union of India v. Self Financed College (Supra) wherein

the Supreme Court in para 12 has observed as under, it is

categorically clear that the petitioner deserves no discretion

in favour of being continued to be permitted to undergo the

BAMS Course.

"12. Prescribing a minimum percentile for admission to the Under Graduate Courses for the year 2019-2020 was vehemently defended by the Central Council and the Union of India by submitting that the minimum standards cannot be lowered even for 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 prescribes 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 2019-2020 on the strength of interim orders passed by the High Courts, we direct that the students may be permitted to continue provided that they were admitted prior to the last date of admission i.e. 15 th October, 2019. The said direction is also applicable to students admitted to Post-Graduate Courses before 31st October, 2019. This is one-time exercise which is permitted in view of the peculiar circumstances. Therefore, this order shall not be treated as a precedent."

15. In view of the aforesaid reasons, I find no merit in the

petition. Accordingly, the petition stands dismissed. The

respondent College shall immediately refund the fees as

stipulated in the communications impugned in the petition.

Much could be said about the recalcitrance and the

negligence of the College for which the student has suffered

but for the College granting admission in the face of he being

ineligible and the petitioner being constrained to approach

this Court and particularly when the petitioner continued to

pursue his studies albeit online with the respondent No.2

institute and the respondent No.2's stand being that it only

was an executing and an implementing authority shows a