Karnataka High Court
Karnataka State Private ... vs The Union Of India on 3 March, 2023
Bench: Alok Aradhe, Vijaykumar A Patil
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF MARCH 2023
R
PRESENT
THE HON'BLE MR. JUSTICE ALOK ARADHE
AND
THE HON'BLE MR.JUSTICE VIJAYKUMAR A. PATIL
W.P. No.25723 OF 2022 (EDN-RES)
BETWEEN:
1. KARNATAKA STATE PRIVATE HOMEOPATHIC
MEDICAL COLLEGE MANAGEMENTS
ASSOCIATION (R)
103/6, 40 FEET BDA ROAD, NGEF LAYOUT MALLATHALLI,
BANGALORE - 560056
REP BY ITS SECRETARY
SRI. K. CHANDRASHEKAR
S/O SRI. HANUMANTHAPPA
AGED 73 YEARS
R/AT BENGALURU.
2. FR. MULLER HOMOEOPATHIC MEDICAL
COLLEGE AND HOSPITAL
DERALAKATTE, MANGALURU - 575018
REP BY ITS PRINCIPAL
DR. PRABHUKIRAN ESJ
S/O ISAIAH
AGED 53 YEARS
R/AT MANGALURU.
3. ALVA'S HOMOEOPATHIC MEDICAL
COLLEGE AND HOSPITAL
MOODABIDIRE - 574225
D K DISTRICT
REP BY ITS PRINCIPAL
DR. HERALD ROSHAN PINTO
2
S/O WILLIAM PINTO
AGED 50 YEARS
R/AT MOODABIDIRE.
4. ROSY ROYAL HOMOEOPATHIC MEDICAL
COLLEGE AND HOSPITAL
NELAMANGALA
BENGALURU RURAL DISTRICT - 562162
REP BY ITS PRINCIPAL
DR. SYED SADIQ AHMED
S/O SYED BASHIR AHMED
AGED 61 YEARS
R/AT BENGALURU.
5. BHAGAWAN BUDHA HOMOEOPATHIC MEDICAL COLLEGE
AND HOSPITAL
MALLATHALLI, BENGALURU - 560056
REP BY ITS PRINCIPAL
DR. SEBASTIAN PRABHAKAR
S/O DORAI RAJ
AGED 57 YEARS
R/AT BENGALURU.
... PETITIONERS
(BY MR. M.R. NAIK, SR. COUNSEL FOR
MR. SURAJ NAIK, ADV.,)
AND:
1. THE UNION OF INDIA
MINISTRY OF AYURVEDA, YOGA, UNANI,
SIDDA AND HOMOEOPATHY
AYUSH, AYUSH BHAWAN, B BLOCK
GPO COMPLEX, INA
NEW DELHI - 110 023
REP BY ITS SECRETARY.
2. THE NATIONAL COMMISSION FOR HOMOEOPATHY
61-65, INSTITUTIONAL AREA
OPPOSITE TO D BLOCK
JANAKAPURI
3
NEW DELHI - 110058
REP BY ITS SECRETARY.
3. STATE OF KARNATAKA
HEALTH AND FAMILY WELFARE DEPARTMENT
M S BUILDING, DR. AMBEDKAR VEEDHI
BANGALORE - 560001
REP BY ITS PRINCIPAL SECRETARY.
4. DEPARTMENT OF AYUSH
GOVT OF KARNATAKA
ANAND RAO CIRCLE
BENGALURU - 560009
REP BY ITS DIRECTOR.
5. KARNATAKA EXAMINATION AUTHORITY
18TH CROSS, SAMPIGE ROAD
MALLESHWARAM WEST
BENGALURU - 560012
REP BY ITS EXECUTIVE DIRECTOR.
6. FEE REGULATORY COMMITTEE
(STATUTORY BODY CONSTITUTED
UNDER SECTION 6 OF THE KARNATAKA PROFESSIONAL
EDUCATIONAL INSTITUTIONS REGULATION OF ADMISSION
AND
DETERMINATION OF FEE ACT 2006)
KARNATAKA EXAMINATION AUTHORITY
PREMISES, 18TH CROSS
SAMPIGE ROAD, MALLESHWARAM
BENGALURU - 560012
REP BY ITS MEMBER SECRETARY.
... RESPONDENTS
(BY MR. SHANTHI BHUSHAN H, DSGI FOR R1
MR. ARUN SHYAM M, SR. COUNSEL FOR
MR. SUYOG HERALE, ADV., FOR R2
MR. LAKSHMINARAYAN, AGA FOR R3 & R4
MR. K.M. PRAKASH, ADV., FOR R5
R6 SERVED)
4
THIS W.P. IS FILED UNDER ARTICLE 226 & 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT IN THE
NATURE OF DECLARATION, DECLARING THAT SECTIONS 3, 4, 10,
12, 14, 43, 44, 55(2)(i)(m) OF THE NATIONAL COMMISSION OF
HOMEOPATHY ACT, 2020 (CENTRAL ACT NO.15/2020) (VIDE
ANNEXURE-A) ARE MANIFESTLY ARBITRARY, UNWORKABLE AND
UNCONSTITUTIONAL AND STRIKE DOWN THE AFORESAID
PROVISIONS. ISSUE A WRIT OF CERTIORARI OR ANY OTHER WRIT,
ORDER, OR DIRECTION TO DECLARE THAT THE REGULATIONS OF
2022 (VIDE ANNEXURE-N) NOTIFIED BY THE RESPONDENT NO.2, IN
SO-FAR AS THEY SEEK TO REGULATE, FINDING IT NECESSARY AND
PERMITS ADOPTING NEET OF NATIONAL MEDICAL COMMISSIONER
AND COUNSELLING PROCESS AND A SEAT MATRIX STIPULATING
QUOTAS FOR ADMISSION IN PRIVATE INSTITUTIONS, AS
MANIFESTLY ARBITRARY AND ILLEGAL & ETC.,
THIS W.P. COMING ON FOR ORDERS, THIS DAY,
ALOK ARADHE J., MADE THE FOLLOWING:
ORDER
The petitioner No.1 is an Association of Private
Homeopathic Medical Colleges in the State of Karnataka. The
members of petitioner No.1 - Association with an intent to
impart education in Homeopathy system of medicine have
established Colleges and teaching hospitals under the
provisions of Homeopathic Central Council Act, 1973, in
different parts of the State. In the said colleges, education is
imparted in homeopathy in Under Graduate and Post
Graduate courses. The petitioners in this writ petition seek
the following reliefs:
(a) Issue a writ in the nature of
declaration, declaring that Sections 3, 4, 10, 12,
14, 43, 44, 55 (2)(i)(m) of the National
Commission of Homeopathy Act, 2010 (Central
Act No.15/2020) (vide Annexure A) are
manifestly arbitrary, unworkable and
unconstitutional and strike down the aforesaid
provisions.
(b) Issue a writ of certiorari or any
other writ, order or direction to declare that the
Regulations of 2022 (vide Annexure N) notified by
the respondent No.2, in so far as they seek to
regulate, finding it necessary; and permits
adopting NEET of National Medical Commissioner
and counselling process; and a seat matrix
stipulating 'quotas' for admission in private
institutions, as manifestly arbitrary and illegal.
(c) Issue a writ of Certiorari or any other
writ, order, or direction to declare that 'the
Addendum' dated 13.12.2022 bearing No.
AKUKA 253 PIM 2022 (vide Annexure P) issued
by the respondent No.3 is illegal, unreasonable
and unenforceable; and quash the same.
(d) Issue a writ directing that, counselling
for the 'Management Quota' of 60% as of last
academic year having been completed by the
members of the 1st petitioner Association based
on NEET merit list and G.O. dated 13.10.2022
same be permitted and continued; the KEA filling
the balance of Government quota seats to sub
serve the reservation policy of the state per 'seat
sharing' Annexure K; and these petitioners be
permitted to conduct 'counselling for NRI /
Management Quota seats' based on inter se merit
of applicants to the individual institutions at their
level; subject to a rider that 'the fee notified' is
tentative, that 'the fee fixation committee' would
examine some of the fee proposal that may be
filed and approved; on which event, said 'fees'
determined would be applicable for the current
year on-words as well. Further be pleased to
direct the KEA to inform the students to likely
increase in the fees which they would be liable to
pay, in the event of determination of higher fees
by the committee.
(e) Issue a writ of mandamus or any other
appropriate writ,; directing the 6th respondent -
Fee Regulatory Committee to determine the fee
for the Homeopathy colleges for the Academic
year 2022-23, within a fixed time frame taking
into consideration the balance sheets of a few
colleges to arrive at an average fee to be applied
to all the institutions in the State in view of the
counselling process commencing and, also to take
into consideration the comprehensive guidelines
issued by the NCH for determination of fee and;
(f) Issue a writ of mandamus or any other
appropriate writ, directing the state to cause
determination of 'tuition fee' payable by a
committee in terms of Section 6 and 7 of 2006 Act
and that till 'the Fee Regulatory Committee' take
the decision fixing the fee, amounts indicated in
Govt. Order dated 13.10.2022 (vide Annexure K)
be operated.
(g) Grant such other order or reliefs as this
Hon'ble Court deems fit to grant in the facts and
circumstances of this case.
2. The relevant facts need mention, which are stated
hereinafter. The State Government issued a notification dated
27.01.2018, wherein it was provided that in view of decision
taken by ministry of Ayurveda, Yoga, Unani, Sidda and
Homeopathy, it has decided to adopt National Eligibility
Entrance Test (NEET) in place of Common Entrance Test for
Ayush course in Government as well as private colleges in the
State of Karnataka from the academic session 2018-19 and
the admission shall be based on the rank in NEET
examination. The petitioners thereupon challenged the said
order in a writ petition viz., W.P.No.41486-534/2018 in
which an interim order was granted on 11.10.2018, by which
petitioners were permitted to admit students who were
meeting the academic qualifications prescribed in the
Regulations but have not appeared in NEET.
3. For the academic year 2019-20, the Council for
Homeopathy amended the Homeopathy (Degree Course)
Regulations, 1983. Regulation 4A was substituted with
Regulation 4A(i), which provided that there shall be uniform
entrance examination to all medical institutions at the under
graduate level viz., NEET for admission to under graduate
courses, which was to be conducted by an authority
designated by Central Government. The petitioners thereupon
once again filed an application in W.P.No.41486-534/2018 to
pass an interim order for academic session 2019-20. A
division bench of this court by an order dated 20.09.2019
passed an interim order permitting the petitioners to make
admission to the seats which remained unfilled after all NEET
qualified students had made their choices.
4. The aforesaid interim order was challenged by
Central Council of Indian Medicine before Hon'ble Supreme
Court by way of Special Leave Petition. The Civil appeal viz.,
Civil Appeal No.603/2020 was decided by an order dated
20.02.2020. The Hon'ble Supreme Court did not disturb the
admission already made but upheld the validity of the
notification prescribing NEET for admission to ayurveda
courses. However, validity of the notification issued by
Homeopathic Central Council was not decided and the
petitioners were granted the liberty to raise the issue before
the High Court. In view of order passed by Hon'ble Supreme
Court, this court by an order dated 11.12.2020 disposed of
the writ petition.
5. For the academic session 2020-21, several
institutions were unable to admit the students from merit list
of NEET. The institutions therefore, approached the Central
Government for redressal of their grievance. The Central
Government by a communication dated 15.01.2021 brought
down the minimum percentile from 50 to 40-30 percentile
depending on the category of candidates.
6. The Karnataka Examination Authority by an order
dated 25.01.2021 issued a notification dated 25.01.2021 for
counseling for admission to Ayush courses for the academic
year 2020-21. A division bench of this court in
W.P.No.100650/2021 and other connected matters, by an
order dated 31.08.2021 allowed the writ petition and quashed
the Regulations and directed the respondents to approve the
admission made in pursuance of the interim order passed in
the writ petition.
7. The Homeopathy Central Council Act, 1973 was
repealed by a new enactment viz., the national Commission
for Homeopathy Act, 2020 (hereinafter referred to as 'the
2020 Act' for short), which received the assent of the
President on 20.09.2020. The Central Government by an
order dated 05.07.2021 issued under Section 3 of the 2020
Act constituted National Commission for Homeopathy. The
National Testing Agency issued a public notice dated
13.07.2021 inviting online applications for National
Eligibility cum Entrance Test as per Section 14 of the
National Medical Commission Act, 2019.,
8. The National Testing Agency notified the conduct of
NEET examination for academic year 2022-23 on 17.07.2022.
The National Commission for Homeopathy on 09.09.2022
circulated two letters inviting comments and suggestions over
the draft Regulations for National Commission for
Homeopathy (Homeopathy Degree Course - B.H.M.S)
Regulation, 2022 and the National Commission for
Homeopathy (Minimum Standards of Requirement for
Homeopathy Colleges and Attached Hospitals) Regulations,
2022. The State Government by a communication dated
13.10.2022 convened a meeting to arrive at a consensual
arrangement for providing appropriate fee structure and seat
sharing. The petitioner No.1 thereupon submitted
representations on 09.11.2022 and 05.12.2022 to re-consider
the fee structure.
9. The State Government after holding meeting with
members of petitioner No.1-Association and other stake
holders passed an order on 13.10.2022 providing for annual
fee structure and seat matrix in respect of admissions to
graduate and post graduate courses in Homeopathic colleges
for academic year 2022-23. The Ministry of Ayush issued an
advisory on 18.10.2022, which was treated as National
Commission for Homeopathy as guidelines for grant of
admission to academic year 2022-23. The National
Commission for Homeopathy, however, on 06.12.2022
notified the Regulations viz., National Commission for
Homeopathy (Homeopathy Graduate Degree Course -
Bachelor of Homeopathic Medicine and Surgery (B.H.M.S.))
Regulations, 2022 (hereinafter referred to as '2022
Regulations' for short). Thereafter, on 06.12.2022, the
calendar was notified regulating imparting of courses of
study. It was directed that courses shall commence from 1st
October of the year. An addendum was issued vide
government order dated 13.12.2022 by which it was provided
that seats for Homeopathy courses shall be filled as per the
Regulations of 2022 notified on 06.12.2022 through
Karnataka Examination Authority.
10. For the academic session 2022-23 also, large
number of seats were vacant. Thereupon the petitioners once
again filed an interlocutory application in W.P.No.1261/2022.
Thereafter, a division bench on 22.11.2022 passed an interim
order, permitting admissions to students academically
qualified but without NEET ranking. The said order was
challenged by National Commission for Homeopathy before
Hon'ble Supreme Court. The Civil Appeal was decided by an
order dated 13.02.2023 by which order passed in
W.P.No.1261/2022 dated 22.11.2022 was set aside and the
matter was remitted to the High court to decide the same on
merits finally before last date proposed for admission, which
was to be extended by National Medical Council. The
petitioners thereafter filed an application for early hearing
20.02.2023 which was listed before this Court on
22.02.2023. Thereupon, this Court directed the petition to be
listed for final hearing on 01.03.2023. The arguments were
heard on 02.03.2023 as well as today. Admittedly, the last
date for admission to B.H.M.S. course is tomorrow i.e.,
04.03.2023. In the aforesaid factual background, this
petition arises for our consideration.
11. Learned Senior Counsel for the petitioners submit
that the fundamental rights acknowledged and recognized
which are available to private educational institutions on
account of decision of Hon'ble Supreme Court viz., Right to
admit and to impart secular education is subject to
reasonable restrictions and is not permissible to impose any
restriction by subordinate or delegated legislation, as is
sought to be done by the guidelines issued by Ayush
Department of Central Government. Section 14 of 2020 Act is
wholly disproportionate to the object sought to be achieved
and suffers from manifest arbitrariness. It is also urged that
provisions of the Act suffer from doctrine of non retrogression
and hit by principles of proportionality. It is contended that
Section 14 of the 2020 Act providing for uniform NEET can
operate only in the manner prescribed and such a manner is
required to be specified by the Regulations.
12. It is argued that institutions imparting education
in homeopathy courses are not of All India character and
there is no excess demand over availability, giving scope for
malpractices and therefore, requiring assessment of inter se
merit for grant of admission to competing aspirants for
admission does not arise. It is also urged that equating and
comparing the study of homeopathy with allopathic medicine
and dentistry and applying rigors of provision for grant of
admission and standards of education provided for such
courses is manifestly arbitrary and suffers from the vice of
non application of mind. It is submitted that impugned
legislation is violative of fundamental rights guaranteed to the
petitioners.
13. It is pointed out that Sections 3, 4 and 10 2020 Act
are hit by principles of non retrogression inasmuch as the
aforesaid provision contemplate nominees of the Central
Government only. It is submitted that Section 43 and 44 of
the 2020 are enabling provisions and therefore, no direction
to hold the NEET can be given under the same. It is
contended that Section 55(2)(m) does not enable the Central
Government to issue instructions. It is argued that Clause
4.2, 4.4, 4.5 to 4.7 of the 2022 Regulations are hit by
doctrine of proportionality. It is further contended that
Regulations notified on 06.12.2022 do not have any
retrospective operation to govern the grant of admission for
academic year 2022-23 which commenced from 19.07.2022.
14. It is urged that the Regulations of 2018 cannot be
applied for admission for academic session 2022-23 as the
same have been quashed by this court in
W.P.No.10065/2021. It is argued that since, neither the
Regulations nor the guidelines apply for the academic session
2022-23, therefore, the petitioners be permitted to admit the
students on the basis of their academic eligibility. In support
of aforesaid submissions, reliance has been placed on
decisions of the Hon'ble Supreme Court in 'TMA PAI
FOUNDATION VS. STATE OF KARNATAKA', (2002) 8 SCC
481, 'P.A.INAMDAR VS. STATE OF MAHARASHTRA', (2005)
6 SCC 537, 'CHRISTIAN MEDICAL COLLEGE VS. UNION OF
INDIA', (2014) 2 SCC 305, 'UNION OF INDIA VS.
FEDERATION OF SELF FINANCED AYURVEDIC COLLEGES
PUNJAB & ORS.', CIVIL APPEAL NO.603/2020 DATED
20.02.2020, 'HARSHIT AGARWAL VS. UNION OF INDIA',
(2021) 2 SCC 710', 'NEIL AURELIO NUNES VS. UNION OF
INDIA', W.P.(C) NO.961/2021, 'NAVTEJ SINGH JOHAR VS.
UNION OF INDIA', (2018) 10 SCC 1, 'JUSTICE
K.S.PUTTASWAMY (RETD.) VS. UNION OF INDIA AND ORS',
(2017) 10 SCC 1, 'MODERN DENTAL COLLEGE &
RESEARCH CENTRE VS. STATE OF M.P.', (2016) 7 SCC
353, 'INDEX MEDICAL COLLEGE VS. STATE OF M.P.',
(2021) SCC ONLINE SC 318.
15. Learned Senior Counsel for respondent No.2 viz.,
National Homeopathy Commission submitted that the Act
and the Regulations framed therein have been enacted with
an object to provide medical education system, which
includes access to quality and affordable medical education
and there is no violation of either any fundamental rights of
the petitioners or any other constitutional provision. It is also
contended that under Section 59(2) of 2020 Act
notwithstanding repeal of the old Act and the Rules, the
Regulations made shall continue to be in force and shall
operate till new standards or requirement are specified under
the Act. It is also urged that Act 2020 empowers the Central
Government under Sections 43 and 44 of the Act to issue the
guidelines and directions to National Council for Homeopathy
for effective implementation of the Act and the guidelines
dated 18.10.2022 shall govern the process of admission for
academic session 2022-23. It is also submitted that
requirement of holding a common examination has already
been upheld by Hon'ble Supreme Court. In support of
aforesaid submissions, reliance has been placed on decisions
in ' MODERN DENTAL COLLEGE & RESEARCH CENTRE
VS. STATE OF M.P.', (2016) 7 SCC 353, 'CHRISTIAN
MEDICAL COLLEGE VELLORE ASSOCAITION VS. UNION
OF INDIA AND OTHERS', AIR 2020 SC 4721 and 'DENTAL
COUNCIL OF INDIA VS. BIYANI SHIKSHAN SAMITI, (2022)
6 SCC 65.
16. Learned Deputy Solicitor General of India for
Union of India supported the submissions made by Learned
Senior Counsel for respondent No.2 and has submitted that
the Act and the Regulations are valid. It is further submitted
that prescription of minimum standards of education in
respect of Ayurvedic, Unani and Homeopathic schemes have
been upheld by Hon'ble Supreme Court by judgment dated
20.02.2020 in Civil Appeal No.603/2020 (UNION OF INDIA
VS. FEDERATION OF SELF FINANCED AYURVEDIC
COLLEGES, PUNJAB AND ORS.). Reference has also been
made to decisions of Hon'ble Supreme Court in 'SHRI RAM
KRISHNA DALMIA VS. S.R.TENDOLKAR', AIR 1958 SC
538, 'PARAYANKANDIYAL ERAVATH KANAPRAVAN
KALLIANI AMMA (SMT.) VS. K.DEVI', (1996) 4 SCC 76,
'MYLAPORE CLUB VS. STATE OF T.N.', (2005) 12 SCC 752,
'UNION OF INDIA VS. ELPHINSTONE SPINNING AND
WEAVIGN CO. LTD', (2001) 4 SCC 139 and 'GOVT. OF A.P.
VS. P.LAXMI DEVI', (2008) 4 SCC 720.
17. Learned Additional Government Advocate has
supported the submissions made by Learned Senior Counsel
for respondent No.1 and learned ASGI and has submitted
that the order dated 13.12.2022 was issued in consonance
with the Regulation framed by National Commission. Learned
counsel for Karnataka Examination Authority has supported
the stand taken by other respondents.
18. We have considered the submissions made on both
sides and have perused the record. The Act 2020 was enacted
inter alia with an object to provide for medical education
system which improves access to quality and affordable
medical education, ensures availability of adequate and high
quality homeopathic medical professionals in all parts of the
country. The fundamental challenge in this writ petition is to
Section 14 of the Act, which provides that there shall be
Uniform National Eligibility cum Entrance Test for admission
to under graduate Homeopathy in all the institutions
governed under the Act. Section 43 of the Act provides that
the Commissions and Autonomous Boards shall be bound by
the directions on the question of policy as the Central
Government may give in writing to them from time to time.
Section 44 deals with the power of the Central Government to
give directions to State Government for carrying out the
provisions of the Act. Section 55 deals with the power of the
Commission to make Regulations. Section 55(2)(m) deals with
power to frame regulations in the manner of conducting
common counselling by the designated authority for
admission to the post graduate seats in all medical
institutions under Section 16(3) of the Act. Section 14 of the
2020 Act is extracted below for the facility of reference:
14. (1) There shall be a uniform National
Eligibility-cum-Entrance Test, for admission to the
undergraduate in Homoeopathy in all medical
institutions governed under this Act.
(2) The Commission shall conduct the
National Eligibility-cum-Entrance Test in English
and in such other languages, through such
designated authority and in such manner, as
may be specified by regulations.
(3) The Commission shall specify by
regulations the manner of conducting common
counselling by the designated authority for
admission to all the medical institutions governed
under this Act: Provided that the common
counselling shall be conducted by the designated
authority of --
(i) the Central Government, for All India
seats; and
(ii) the State Government, for the remaining
seats at the State level.
19. In exercise of powers conferred in Section 55(2) of
the 2020 Act, the Regulations viz., Regulations 2022 have
been framed. The said Regulations were framed on
06.12.2022.
20. It is well settled in law that validity of an Act can be
assailed either on the ground of lack of legislative competence
or on the ground that the same contravenes either any of the
fundamental rights or the constitutional provisions. The Act
2020 has been enacted in exercise of powers under Entry 65
and 66 of List 1 of VIIth Schedule to the Constitution of India.
There is no challenge to the provisions of the Act on the
ground that Parliament lacks legislative competence to enact
the Act.
21. A Constitution Bench of Supreme Court in PREETI
SRIVASTAV (Dr.) Vs. STATE OF M.P. (1999) 7 SCC 127 has
held that norms for admission can have a direct impact on
standards of education. Similar view was taken in
VETERNARY COUNCIL OF INDIA Vs. INDIAN COUNCIL FOR
AGRICULTURAL RESEARCH (2000) 1 SCC 750 and it has
been held that power to regulate standard of education casts
a corresponding duty to conduct an All India Examination.
Thus, even in the absence of a specific provision, it has been
held that power to regulate standard of education casts a
corresponding duty to conduct an All India Examination.
However, in the instant case, Section 14 of the 2020 Act
expressly prescribes NEET for admission to under graduate
in Homeopathy in all Medical Institutions. Thus, the
legislature in its wisdom, has taken a view that merit based
admission can be ensured to a common entrance test namely
NEET.
22. The right to admit the students is an essential facet
of right to administer educational institution. However, the
same is not absolute and could be regulated. In T.M.A. PAI
FOUNDATION Vs. STATE OF KARNATAKA (2002) 8 SCC
481, the Hon'ble Supreme Court has held as follows:
50. The right to establish and administer
broadly comprises of the following rights:
(a) to admit students:
(b) to set up a reasonable fee structure:
(c) to constitute a governing body:
(d) to appoint staff (teaching and non-
teaching): and
(e) to take action if there is dereliction of
duty on the part of any employees.
Whether the admission of students to
minority educational institution, whether
aided or unaided, can be regulated by the
State Government or by the University to
which the institution is affiliated?
Admission of students to unaided minority
educational institutions, viz., schools and
undergraduates colleges where the scope
for merit-based selection is practically nil,
cannot be regulated by the concerned State
or University, except for providing the
qualifications and minimum conditions of
eligibility in the interest of academic
standards.
The right to admit students being an
essential facet of the right to administer
educational institutions of their choice, as
contemplated under Article 30 of the
Constitution, the state government or the
university may not be entitled to interfere
with that right, so long as the admission to
the unaided educational institutions is on a
transparent basis and the merit is
adequately taken care of. The right to
administer, not being absolute, there could
be regulatory measures for ensuring
educational standards and maintaining
excellence thereof, and it is more so in the
matter of admissions to professional
institutions.
A minority institution....
23. Similarly, in P.A.INAMDAR Vs. STATE OF
MAHARASHTRA (2005) 6 SCC 537, it has been held as
follows:
76. So far as the admissions based on
common entrance test are concerned, it is
submitted that paragraphs 58 and 59 of Pai
Foundation permit regulations to be framed
for admission in professional institutions by
State agency to ensure admission on merit.
In the absence of CET and centralized
counselling, private educational institutions
would pick and choose candidates ignoring
merit, as has been evident from the
Karnataka experience. If the private
professional educational institutions
conceive that merit cannot be ignored in
granting admission, direction to make
selection based on CET does not in any
manner adversely affect the character of the
minority institution. The State regulation
providing for CET is a reasonable restriction
and it will pass the test of Article 19(6) both
in respect of aided and unaided non-
minority institutions. Private unaided
institutions have also to admit students on
the basis of merit in a fair and transparent
manner in the interest of student
community. Right of private educational
institutions to admit students can be
regulated. Such regulations if in national
and public interest do not in any manner
impinge on the right of minority.
92. As an occupation, right to impart
education is a fundamental right under
Article 19(1)(g) and therefore, subject to
control by clause (6) of Article 19. This right
is available to all citizens without drawing a
distinction between minority and non-
minority. Such a right is, generally
speaking, subject to laws imposing
reasonable restrictions in the interest of the
general public. In particular, laws may be
enacted on the following subject: (i) the
professional or technical qualifications
necessary for practicing any profession or
carrying on any occupation, trade or
business: (ii) the carrying on by the State, or
by a corporation owned or controlled by the
State of any trade, business, industry or
service whether to the exclusion, complete or
partial of citizens or otherwise. Care is
taken of minorities, religious or linguistic,,
by protecting their right to establish and
administer educational institutions of their
choice under Article 30. To some extent,
what may be permissible by way of
restriction under Article 19(6) may fall foul
of Article 30. This is the additional
protection which Article 30(1) grants to the
minorities.
24. In MODERN DENTAL COLLEGE AND RESEARCH
CENTRE VS. STATE OF M.P.', (2016) 7 SCC 353, it has
been held that right to administer an institution includes a
right to admit students and to set up a reasonable fee
structure. However, the same is subject to Regulation. Thus,
from perusal of judgments of Supreme Court in T.M.A. PAI
FOUNDATION, supra as well as P.A.INAMDAR and MODERN
DENTAL COLELGE AND RESEARCH CENTRE, supra, it can
safely be gathered that right to administer an educational
institution which includes a right to admit students, is not an
absolute right and can be regulated.
25. In ABDUL AHAD AND ORS. Vs. UNION ON INDIA
(2020) 1 SCC ONLINE SC 627, a three Judge Bench of
Supreme Court has approved the principles laid down by a
Constitution Bench of the Supreme Court in MODERN
DENTAL COLLEGE AND RESEARCH CENTRE supra,
upholding the introduction of common entrance examination
for the following reasons:
1. The legislature in its wisdom
has taken the view that merit-based
admissions can be ensured only through a
common entrance test followed by
centralised counselling either by the State or
by an agency authorised by the State.
2. In order to ensure rights of the
applicants aspiring for medical courses
under Articles 14, 15, and 16 of the
Constitution of India, legislature by the
impugned legislation introduced the system
of common entrance test (CET) to secure
merit-based admission on a transparent
basis.
3. If private unaided educational
institutions are given unfettered right to
devised their own admission procedure and
fee structure, it would lead to situation
where it would impinge upon the "right to
equality" of the students who aspire to take
admission in such educational institutions.
4. Common entrance test by State
or its agency will ensure equal opportunity
to all meritorious and suitable candidates
and meritorious candidates can be
identified for being allotted to different
institutions depending on the courses of
study, the number of seats and other
relevant factors.
5. Having regard to the larger
interest and welfare of the student
community to promote merit and achieve
excellence and curb malpractices, it would
be permissible for the State to regulate
admissions by providing a centralised and
single-window procedure.
6. Holding such CET followed by
centralised counselling or single window
system regulating admissions does not
cause any dent on the fundamental rights of
the institutions in running the institution.
7. While private educational
institutions have a "right of occupation" in
running the educational institutions, equally
they have the responsibility of selecting
meritorious and suitable candidates, in
order to bring out professionals with
excellence. Rights of private educational
institutions have to yield to the larger
interest of the community.
8. The freedom of private
educational institutions to establish and run
institution, impart education, recruit staff,
take disciplinary action, admit students,
participate in fixation of fees is in no way
being abridged by the impugned legislation;
it remains intact.
26. In CHRISTIAN MEDICAL COLLEGE, VELLORE
ASSOCIATION VS. UNION OF INDIA AND OTHERS, AIR
2020 SC 4721, a three judge bench of Hon'ble Supreme
Court while examining the validity of the notifications issued
by Medical Council of India and Dental Council of India,
which provided for NEET for admission to MBBS course has
upheld the prescription of NEET to MBBS course and has
held that prescription of NEET has been made to improve the
quality of medical education and is a step in furtherance of a
duty from the State enshrined under Article 47 of the
Directive Principles of State Policy. The view taken in
P.A.INAMDAR supra that admission based on merit are in
national interest and strengthened the national welfare were
also referred. The relevant extract of para 58 reads as under:
58. Thus, we are of the opinion that rights
under Articules 19(i)(g) and 30 read with
Articles 25, 26 and 29(1) of the Constitution
of India do not come in the way of securing
transparency and recognition of merits in
the matter of admissions. It is open to
regulating the course of study, qualifications
for ensuring educational standards. It is
open to imposing reasonable restrictions in
the national and public interest. The rights
under Article 19(1)(g) are not absolute and
are subject to reasonable restriction in the
interest of the student's community to
promote merit, recognition of excellence and
to curb the malpractices. Uniform Entrance
Test qualifies the test of proportionality and
is reasonable. XXXX
27. The prescription of NEET fulfils the twin tests of
proportionality and reasonableness. The object of prescription
of test is to ensure that qualified students take admission in
B.H.M.S Course, which is in the interest of the patients
whom they treat. Merely because number of seats are more
and the candidates are less, the requirement of merit based
admission cannot be dispensed with and the private
educational institution cannot have an unfettered right to
admit the students regardless of their merit. The doctrine of
non retrogression provides that State should not take any
measures or steps that deliberately lead to retrogression on
the enjoinment of rights either under the Constitution or
otherwise.
28. In the instant case, by enacting Section 14, the
right of the petitioners to admit students in educational
institutions has merely been regulated and the same does
not amount to violation of the rights of the petitioners under
the constitution or any other enactment. Therefore, principle
of doctrine of non retrogression is not applicable to the facts
of the case. In view of aforesaid enunciation of law by Hon'ble
Supreme Court, it is held that Section 14 of the Act neither
suffers from manifest arbitrariness nor the test of
proportionality or in violation of the doctrine of non
retrogression. Therefore, the challenge to constitutional
validity of Section 14 of 2020 Act is repelled.
29. Before adverting to the challenge made to Sections
3, 4 and 10, it is apposite to take note of the same, which are
extracted below for the facility of reference:
(3) The following persons shall be
appointed by the Central Government as ex
officio Members of the Commission,
namely:-- (a) the President of the
Homoeopathy Education Board; (b) the
President of the Medical Assessment and
Rating Board for Homoeopathy; (c) the
President of the Board of Ethics and
Registration for Homoeopathy; (d) Advisor
(Homoeopathy) or Joint Secretary to the
Government of India in-charge of
Homoeopathy, in the Ministry of AYUSH; (e)
the Director, National Institute of
Homoeopathy, Kolkata; (f) the Director,
North Eastern Institute of Ayurveda and
Homoeopathy, Shillong; and (g) the Director-
General, Central Council for Research in
Homoeopathy, Janakpuri, New Delhi.
(4) The following persons shall be
appointed by the Central Government as
part-time Members of the Commission,
namely:-- (a) three Members to be
appointed from amongst persons of ability,
integrity and standing, who have special
knowledge and professional experience in
the areas of Homoeopathy, management,
law, health research, science and
technology and economics; (b) ten Members
to be appointed on rotational basis from
amongst the nominees of the States and
Union territories in the Advisory Council for
a term of two years in such manner as may
be prescribed. (c) six members to be
appointed from amongst the nominees of the
States and Union territories, under clause
(d) of sub-section (2) of section 11, of the
Advisory Council for a term of two years in
such manner as may be prescribed:
Constitution of National Commission for
Homoeopathy. Composition of Commission.
3 of 1956. 4 THE GAZETTE OF INDIA
EXTRAORDINARY [PART II-- Provided that
no Member shall either himself or through
any of his family members, directly or
indirectly, own or be associated with or
have any dealings with the managing body
of a private or non-government medical
institution which is regulated under this Act.
Explanation.--For the purpose of this
section and section 19, the term "leader"
means the Head of a Department or the
Head of an Organisation.
10. (1) The Commission shall perform the
following functions, namely:-- (a) lay down
policies for maintaining a high quality and
high standards in education of
Homoeopathy and make necessary
regulations in this behalf; (b) lay down
policies for regulating medical institutions,
medical researches and medical
professionals and make necessary
regulations in this behalf; (c) assess the
requirements in healthcare, including
human resources for health and healthcare
infrastructure and develop a road map for
meeting such requirements; (d) frame
guidelines and lay down policies by making
such regulations as may be necessary for
the proper functioning of the Commission,
the Autonomous Boards and the State
Medical Councils of Homoeopathy; (e)
ensure coordination among the Autonomous
Boards; Meetings of Commission. Power
and functions of Commission. SEC. 1] THE
GAZETTE OF INDIA EXTRAORDINARY 7 (f)
take such measures, as may be necessary,
to ensure compliance by the State Medical
Councils of Homoeopathy of the guidelines
framed and regulations made under this Act
for their effective functioning under this Act;
(g) exercise appellate jurisdiction with
respect to decisions of the Autonomous
Boards; (h) make regulations to ensure
observance of professional ethics in Medical
profession and to promote ethical conduct
during the provision of care by medical
practitioners; (i) frame guidelines for
determination of fees and all other charges
in respect of fifty per cent. of seats in private
medical institutions and deemed to be
Universities which are governed under the
provisions of this Act. (j) exercise such other
powers and perform such other functions as
may be prescribed. (2) All orders and
decisions of the Commission shall be
authenticated by signature of the Secretary
and the Commission may delegate such of
its powers on administrative and financial
matters, as it deems fit, to the Secretary. (3)
The Commission may constitute sub-
committees and delegate such of its powers
to them as may be necessary to enable
them to accomplish specific tasks.
30. The validity of aforesaid provisions is assailed on
the ground that Central Homeopathy Council comprises of
officers of the Government and the aforesaid provisions are in
violation of doctrine of non retrogression. Section 3 of the
2020 Act deals with the power of Central Government to
constitute National Commission for Homeopathy. Section 4 of
the 2020 Act provides for composition of Commission. The
commission comprises of the persons to be nominated as ex
officio members of the commission as well as the persons
referred to in Section 4(4) of the Act, which can be appointed
as part time members of the Committee. Section 10 of the
2020 Act, deals with powers and function of the Commission.
The contention that Commission comprises only of officers of
the Central Government is incorrect, as the Commission
comprises part time members also. The Commission has
been constituted under the 2020 Act to perform its functions
under the Act. The aforesaid provisions by no stretch of
imagination suffer from the doctrine of non retrogression.
The aforesaid provisions have also not been shown to be per
se arbitrary. Therefore, the contention that the aforesaid
provisions are manifestly arbitrary or are unworkable cannot
be accepted.
31. A challenge to the constitutional validity of Section
43 and 44 of the 2020 Act has been made on the ground that
in exercise of aforesaid powers, no direction could be given to
hold NEET as the same are enabling provision. It is apposite
to take note of Section 43 and 44 of the Act, which read as
under:
43. (1) Without prejudice to the foregoing
provisions of this Act, the Commission and the
Autonomous Boards shall, in exercise of their
powers and discharge of their functions under
this Act be bound by such directions on questions
of policy as the Central Government may give in
writing to them from time to time: Provided that
the Commission and the Autonomous Boards
shall, as far as practicable, be given an
opportunity to express their views before any
direction is given under this sub-section.
(2) The decision of the Central Government
whether a question is one of policy or not shall be
final.
44. The Central Government may give such
directions, as it may deem necessary, to a State
Government for carrying out all or any of the
provisions of this Act and the State Government
shall comply with such directions.
32. The aforesaid contention need not detain us, as
suffice it to say that Section 14 of the 2020 Act itself contains
a provision for admission to B.H.M.S course through NEET.
The Act itself requires holding of NEET for admission to the
course. Therefore, in any case, the aforesaid contention made
on behalf of the petitioners does not render the provision
Sections 43 and 44 of the 2020 Act bad in law. Therefore,
the challenge to the validity of the aforesaid provisions also
fails.
33. The validity of Section 55(2)(m) of the 2020 Act has
been assailed on the ground that the same does not permit
the Central Government to issue advisory instructions to the
National Testing Agency. Section 55(2)(m) reads as under:
55. (1) The Commission may, by
notification, make regulations consistent with this
Act and the rules made thereunder to carry out
the provisions of this Act.
(2) In particular, and without prejudice to
the generality of the foregoing power, such
regulations may provide for all or any of the
following matters, namely:--
(m) the manner of conducting common
counselling by the designated authority for
admission to the postgraduate seats in all
medical institutions under sub-section (3) of
section 16;
34. Even assuming that Section 55(2)(m) of the 2020
Act does not authorize the Central Government to give
advisory / instructions to National Testing Agency, the
provision itself cannot be struck down. At the most, order, if
any, issued under the said provision can be struck down.
Therefore, challenge of the petitioners to the power to frame
Regulations in the matter of conducting the common
counselling by designated authority for admission to post
graduate seats in all medical institutions does not suffer from
any infirmity. The aforesaid challenge is also repelled.
35. Now we may advert to the challenge made to the
Regulations on the ground that the same is hit by principles
of proportionality. It is trite law that there is a presumption
in favour of constitutionality or validity of a subordinate
legislation and the burden is on the person who challenges
the same. A subordinate legislation can be assailed on any of
the following grounds:
(i) Lack of legislative competence.
(ii) Violation of fundamental rights.
(iii) Violation of any provisions of the Constitution.
(iv) Failure to conform to the parent statute.
(v) Repugnancy to the laws of the land.
(vi) Manifest arbitrariness / unreasonableness to an extent
where the Court might well say that legislature never
intended to give authority to make such rules.
[See: 'DENTAL COUNCIL OF INDIA VS. BIYANI SHIKSHAN
SAMITI', (2022) 6 SCC 65]
36. The 2022 Regulations have been framed in exercise
of powers under Section 55(2) of the 2020 Act. The challenge
to the Regulation made on behalf of the petitioners does not
fall in any of the aforementioned grounds. Regulation 4
provides for eligibility criteria for admission and manner of
admission, which does not suffer from any infirmity much
less by doctrine of proportionality. The challenge to the
validity of the 2022 Regulations also fails and is hereby
repelled.
37. Now we may deal with the contention of the
petitioners that the guidelines dated 18.10.2022 as well as
Regulations dated 06.12.2022 do not have a retrospective
operation and cannot apply to admission process, which was
already commenced on 17.07.2022. It is trite law that every
statute shall be construed as prima facie prospective unless
expressly or by necessary implication it is made to have a
retrospective operation. A power conferred to make a
subordinate legislation must be exercised in conformity with
the parent Act. A subordinate legislation can be given a
retrospective effect and operation if any power in this behalf
contained in the main Act. [See: 'HUKUM CHAND VS. UNION
OF INDIA', (1972) 2 SCC 601, 'MAHABIR VEGETABLE OILS
P. LTD. VS. STATE OF HARYANA', (2006) 3 SCC 620, VICE
CHANCELLOR M.D.UNIVERSITY ROHTAK VS. JAHAN
SINGH (2007) 5 SCC 77 and 'FEDERATION OF INDIAN
MINERAL INDUSTRIES AND OTHERS VS. UNION OF INDIA
AND ANOTHER', (2017) 16 SCC 186].
38. From perusal of Section 55 of the 2020 Act, which
deals with power to make Regulations, it is evident that the
same does not confer any power to frame Regulations with
retrospective effect. The Regulations dated 06.02.2022 do not
provide that they would operate from any anterior date.
Similarly, the guidelines dated 18.10.2022 issued in exercise
of powers under Section 43 and 44 of the 2020 Act also
cannot apply to process of admission, which was already
commenced on 17.07.2022. It is noteworthy that Government
order dated 13.10.2022 was passed after consulting the
petitioners. The petitioners in pursuance of aforesaid order
have admitted the students in their quota of seats. Therefore,
the same binds the petitioners.
39. In view of preceding analysis, our conclusions are
as under:
(i) Sections 3, 4, 10, 12, 14, 43, 44 and
55(2)(m) of the National Commission for
Homeopathy Act, 2020 are valid and
constitutional.
(ii) The National Commission for
Homeopathy (Homeopathy Degree Course -
B.H.M.S) Regulation, 2022 are also intra vires.
(iii) The guidelines framed by Ministry of
Ayush dated 18.10.2022 and the Regulations
framed by National Commission for Homeopathy
dated 06.12.2022 do not apply to the process of
admission to B.H.M.S under graduate course
which have already commenced on 19.07.2022.
(iv) The Government Order dated
13.12.2022 making the 2022 Regulations
applicable in respect of admission to B.H.M.S.
under graduate course for academic session
2022-23 is quashed.
(v) The petitioners shall be permitted to
admit students on remaining vacant seats on the
basis of academic eligibility for the academic
session 2022-23 only.
With the aforesaid directions, the writ petition is
disposed of.
Sd/-
JUDGE
Sd/-
JUDGE
SS
