Rajasthan High Court - Jodhpur

Sandeep Kumar Mehla vs State Of Rajasthan on 1 April, 2021

Bench: Pushpendra Singh Bhati

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 4757/2021

Sandeep Kumar Mehla S/o Pokar Mal, Aged About 35 Years, Vpo Dhankoli, Tehsil Deedwana, District Nagaur (Raj.), Mobile No.8239010104.

----Petitioner Versus

1. State Of Rajasthan, Through The Principal Secretary, Department Of Medical Education, Government Of Rajasthan, Secretariat, Jaipur.

2. Directorate General Of Health Services, Ministry Of Health And Family Welfare, Government Of India, Nirman Bhawan, Maulana Azad Rd, New Delhi-110108.

3. The Chairman, Super Speciality (D.m./ M.ch.

Courses)/dnb Ss Counseling Board - 2020, Directorate General Of Heatlh Services, Nirman Bhawan, Maulana Azad Rd, New Delhi.

4. National Board Of Examinations Neet-Ss-2020, Medical Enclave, Ansari Nagar, Mahatma Gandhi Marg, Ring Road, New Delhi-110029.

5. National Medical Commission, Through The Chairperson, Dada Dev Mandir Road, Sector 8 Dwarka, New Delhi- 110077.

6. Mahatma Gandhi Medical College Jaipur, Through The Principal.

7. Sms Medical College Jaipur, Through The Principal.

                                                                   ----Respondents


For Petitioner(s)          :     Mr. YP Khileree
For Respondent(s)          :     Mr. Mukesh Rajpurohit, ASG
                                 Mr. Ramdin Choudhary for Mr. Manish
                                 Vyas, AAG

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Order

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01/04/2021

1. In wake of onslaught of COVID-19, abundant caution is

being taken while hearing the matters in Court.

2. The petitioner has preferred this writ petition claiming

the following reliefs:

"a. The respondents may kindly be directed to allot the residual seat of CTVS specialty at respondent SMS Medical College, Jaipur/ Mahatma Gandhi Medical College, Jaipur or any other medical college as per his merit pursuant to notice dated 02.08.2020 Annex.2;

b. The respondent No.2/3 may kindly be directed to complete the remaining Mop Up rounds counselling process forthwith so that residual seats of super specialty courses pursuant to NEET SS 2020-21 can be filled up;

c. The respondents may kindly be directed to fill the vacant seats lying after first Mop-up round of counsel pursuant to notice dated 30.01.2021 Annex.8 on the basis of merit of the candidates by lowering the minimum qualifying percentile;

3. Learned counsel for the petitioner has shown the

alarming statistics for the colleges in Rajasthan, where out of 135,

41 seats in DNB/DM/M.CH Super-specialty Courses are vacant.

4. Learned counsel for the petitioner further submits that

the requirement of NEET for Medical Colleges, the compulsory

mode of filling the seats being Medical Colleges, the number of

vacant seats reflects that there is a grave loss of manpower and

infrastructure being caused due to the qualifying percentile, which

was 50% and has been reduced to 40% by the Hon'ble Apex

Court.

5. Learned counsel for the petitioner has relied upon the

order passed by the Karnataka High Court in Writ Petition

No.100652/2021 on 26.02.2021, which reads as under:

"Heard Sri M.R.Naik, learned Senior Counsel along with learned counsel Sri.Sharanabasavaraj C.S. and

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Sri.M.B.Kanavi, learned Senior Central Government Standing Counsel.

Learned counsel Sri.J.M.Gangadhar takes notice on behalf of respondent No.5 and the learned counsel Sri.R.M.Kulkarni takes notice on behalf of respondent No.6.

Issue notice to respondent No.2.

Learned Senior Counsel would invite the attention of this Court to Annexure-K, The Homoepathy Central Council Act, and would take the Court through the provisions of Section 20 (2) relating to framing of regulations. He would contend that the issue was raised before the Hon'ble Apex Court, where it was contended that there is no compliance with the mandate of Section 20(2) while imposing the stipulation of qualifying in the NEET examinations. Hence, has minimum percentile being contrary to the statute the same is vitiated as being contrary to the very provisions of the Act. Learned counsel would takes this Court through order of the Hon'ble Apex Court rendered in Civil Appeal No.603/2020, wherein at paragraph No.13 the Hon'ble Apex Court has been pleased to observe as under:

13. The notification dated 14.12.2018 pertaining to the Homoeopathy courses is similar to that of the AYUSH Courses. It was contended on behalf of Homoeopathy colleges that the procedure prescribed in Section 20(2) of the Homoeopathy Central Council Act, 1973 (for short, '1973' Act) was not followed before the amendment was carried out to the Regulations. In view of the paucity of time, no response was filed by the Central Council of Homoeopathy or by the Union of India clarifying the factual position pertaining to the non-compliance of the procedure prescribed under the 1973 Act for making Regulations. In view of the same, we are not in a position to decide the issue raised by the Petitioners in Writ Petition (C) No.1461 of 2019. We leave it open to the Petitioners to raise these issues before the High Court, if they deem it fit and proper it is not necessary to deal with various submissions made by the Appellants in view of the order passed by us permitting the students to continue their studies.

3. Learned Senior Counsel was also take this Court through the interim order by a co-ordinate bench headed by Sri Justice A.S.Bopanna, (as he then was) and would pray for grant of interim relief.

4. Per contra, learned Central Government Standing Counsel would submit that he requires to take instructions and that the matter was not heard before the Hon'ble Apex Court as no

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statement of objections had been filed by the Homoeopathy Council.

5. Be that as it may, the submissions on behalf of learned senior counsel merits consideration, the learned counsel would submit that Homoeopathy is not one of the popular course and that if there is existence upon the students having competed in NEET exam to seek admission, it would result in huge number of vacancies resulting in waste of the infrastructure and other resources. He would contend perusal of the questions settled for the NEET exam would reveal that there has been no question pertaining to Homoeopathy. Be that as it may, we are of the prima facie view that permitting any infrastructure in the academic sector to go to waste is something which cannot be condoned and so long as the students otherwise qualify, we deem it proper to permit the petitioner-institution to admit students for the coming academic year 2021.

Accordingly, there shall be an interim order of stay as prayed for subject to the result of the writ petition.

It is made clear that the interim order enabling the petitioner to admit the petitioner shall be intimated to every students prior to his admission.

Copy of the interim order shall also be furnished to them."

6. Per contra, learned counsel for the respondents submits

that since the matter pertains to Medical and Health Education,

therefore, lowering of standard shall be detrimental to the cause

of the health of a common citizen.

7. Learned counsel for the respondents have relied upon

the precedent law laid down by the Hon'ble Apex Court in Writ

Petition (C) No.54 of 2021 (Harshit Agarwal & Ors. Vs.

Union of India & Ors.), in which the Hon'ble Apex Court has

reduced the percentile from 50% to 40%, thus, paving a way for

increase in seats. Para 14 of the said judgment reads as follows:

"14. For the aforementioned reasons, we set aside the decision of the first Respondent dated 30.12.2020 to not reduce the minimum marks for admission to BDS course as it suffers from the vices of illegality and irrationality. We direct that the vacant seats in first year BDS course for the year 2020-2021 shall be filled up from the candidates who have participated in the NEET (UG) courses for the year 2020-2021 after lowering the percentile mark by 10 percentile. The

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candidates belonging to the general category who have secured 40 percentile shall be eligible to be considered for admission in the first year BDS course for the year 2020- 2021. Likewise, students belonging to the SC/ST/OBC categories shall be qualified if they have secured 30 percentile. In so far as General candidates with bench mark disabilities specified under the Rights of Persons with Disabilities Act, 2016, they would be eligible if they have secured 35 percentile. The admissions shall be made strictly in accordance with merit and the admission process shall be completed by 18.02.2021. Any other student who has qualified in NEET (UG) - 2020 even without lowering the minimum marks and is willing to participate in the admission process shall also be considered for admission to BDS course."

8. Learned counsel for the respondents further submit

that the mandatory requirement of NEET qualification and the

minimum percentile is to check the minimum standard prescribed

for the student of such education.

9. Learned counsel for the respondents also submit that

lowering of percentile has drastically reduced the marks range and

going below a point would not be in the interest of quality medical

education.

10. At this stage, learned counsel for the petitioner

submitted that in the best interest of justice towards the students,

aspiring candidates and huge infrastructure lying vacant, it would

be appropriate if the Union of India takes a considered decision in

light of the notification dated 19.06.2019 for the purpose of

Homoeopathy colleges, 07.12.2018 for Unani colleges and

14.12.2018 for M.D. Homoeopathy. The relevant proviso which is

having common language in all three disciplines reads as follows:

"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 Central Council may at its discretion lower the minimum marks required for admission to under-graduate course for candidates belonging

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to respective categories and marks so lowered by the Central Government shall be applicable for that academic year only."

11. This Court, while constrained to see that in the Medical

Colleges in Rajasthan, out of 135, 41 seats in DNB/M.CH Super-

specialty Courses are vacant, deems it appropriate to direct the

respondents to take a considered decision in accordance with the

aforesaid proviso to the notification dated 19.06.2019 to consider

reduction in minimum percentile amongst the NEET-SS

candidates, so as to enable the colleges to have more eligbile

students and so as to enable more able aspirants to come within

the ambit of qualifying for DNB/M.CH Super-specialty Courses.

The said decision shall be taken by the respondents within a

period of 15 days from today after considering the vacant seat

position in Rajasthan state, strictly in accordance with law. In

case, the respondents come to a considered conclusion that the

percentile for the NEET-SS students for DNB/M.CH Super-specialty

Courses minimum percentile is reduced then appropriate

extension of dates and accommodation shall also be made for that

academic session only by respective respondents. However, the

petitioner shall be required to file fresh representation within a

period of three days from today.

12. With the aforesaid observations and directions, the

present writ petition is disposed of. Stay petition as well as all

pending applications also stand disposed of accordingly.