Dr. Rafique Khan Son Of Ayub Khan vs National Institute Of Ayurveda
2021 Latest Caselaw 2102 Raj/2

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

            S.B. Civil Writ Petition No. 34/2021
1.    Rekha Ram S/o Magana Ram, Aged About 25 Years, R/o
      37 Pawron Ka Tala, Dhanau, Chohtan, Barmer.
2.    Shubham Sharma S/o Damodar Prasad Sharma, Aged
      About 26 Years, R/o 54 Shyampuri Jothwara, Jaipur.
                                                              ----Petitioners
                                 Versus
National Institute Of Ayurveda, Deemed To Be University (De
Novo), Jorawar Singh Gate, Amer Road, Jaipur Through Its
Chairman And Managing Director.
                                                              ----Respondent
                       CONNECTED WITH
            S.B. Civil Writ Petition No. 43/2021
1.    Kailash Chand S/o Pratapa Ram, Aged About 28 Years,
      R/o Bhedana, Barmer, Rajasthan.
2.    Sahun Khan S/o Ismail Khan, Aged About 27 Years, R/o
      Nibhara, Post - Patan Mewan, Tehsil Kishangarh Bass,
      Alwar.
3.    Om Prakash Nain S/o Kishna Ram, Aged About 28 Years,
      R/o Neno Ki Dhani Nokhra Bhatiyan, Jodhpur.
                                                              ----Petitioners
                                 Versus
National Institute Of Ayurveda, Deemed To Be University (De
Novo), Jorawar Singh Gate, Amer Road, Jaipur Through Its
Chairman And Managing Director.
                                                              ----Respondent
           S.B. Civil Writ Petition No. 245/2021
Dr. Rafique Khan Son Of Ayub Khan, Aged About 32 Years,
Address- C-102, Sanjay Nagar, Bhatta Basti, Shastri Nagar,
Jaipur (Rajasthan) - 302016.
                                                               ----Petitioner
                                 Versus
National Institute Of Ayurveda, Deemed To Be University (De-
Novo) Through Its Director, Jorawar Singh Gate, Amer Road,
Jaipur (Rajasthan) - 302002.
                                                              ----Respondent

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For Petitioner(s)          :     Mr.Vagish Kumar Singh, Mr.Narendra
                                 Kumar Jain and Mr.Tribhuvan Narayan
                                 Singh, Advocates.
For Respondent(s)          :     Mr.Anurag Agarwal & Mr.Dharmendra
                                 Joshi, Advocates.


          HON'BLE MR. JUSTICE ASHOK KUMAR GAUR
                                      ORDER
Judgment Reserved on :                   25th February, 2021

Date of Order                    :       1st March, 2021

By the Court:

These three writ petitions since involve common question, as

such, all are disposed of by the present order.

2. The petitioners, in the present writ petitions, have challenged

the seat matrix for counselling and admission in Ayurveda

Vachaspati/Ayurveda Dhanwantari - MD/MS (Ayurveda) for the

Academic Session 2020-21. They also seek direction to make

appropriate changes in the seat allotment for admission in Post

Graduate Course of MD/MS (Ayurveda) for the Academic Session

2020-21 by keeping in mind the law laid down by the Apex Court

in the case of Saurabh Chaudri & Ors. Vs. Union of India &

Ors. reported in (2013) 11 SCC 146.

3. All the petitioners have passed the Ayurvedacharya Degree,

also known as 'Bachelor of Ayurveda Medicine & Surgery' (in short

'BAMS') from different colleges affiliated to Dr.Sarvepalli

Radhakrishnan Rajasthan Ayurved University, Jodhpur. The

petitioners claim themselves to be eligible for admission in Post-

Graduate Courses, after participating in the common entrance

examination to all medical institutions at the Post-Graduate level

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namely - All India AYUSH PG Entrance Test (in short 'AIAPGET')

conducted by the National Testing Agency (NTA).

4. All the petitioners being eligible to appear in the AIAPGET,

participated in the said examination and result thereof was

declared on 04.11.2020.

5. The petitioners have pleaded that for the purpose of

admission, counselling was held by the designated authority,

appointed by the respective States for State Quota Seats and the

Central Government for All India Quota Seats.

6. The petitioners have pleaded that till the Academic Session

2019-20, counselling was conducted by Dr.Sarvepalli

Radhakrishnan Rajasthan Ayurved University, Jodhpur and the

National Institute of Ayurveda (NIA) was an institute/college

affiliated to Dr.Sarvepalli Radhakrishnan Rajasthan Ayurved

University, Jodhpur till Academic Session 2019-20 and on

09.11.2020, the National Institute of Ayurveda attained the status

of a 'Deemed University'.

7. The Counselling Board, National Institute of Ayurveda issued

prospectus and provided seat matrix for the year 2020-21 and

there were in total 65 seats for PG Counselling, out of which 21

seats were for the Central/State Government in-service candidates

and the remaining 44 seats were for Rajasthan State candidates

which were also bifurcated into two categories i.e. 22 seats for the

candidates who passed out their graduation course from the

University of Rajasthan/Dr.Sarvepalli Radhakrishnan Rajasthan

Ayurved University, Jodhpur/National Institute of Ayurveda and 22

seats were allocated to National Institute of Ayurveda passed out

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(fresh candidates). The seat matrix, as published, by the

respondent is quota hereunder:-

RAJASTHAN STATE CANDIDATES (Only for UOR/Dr.S.R.R.A.U/NIA and NIA Passed Out Fresh Candidates) Category UOR/ NIA Passed Out Dr.S.R.R.A.U/NIA (Fresh Candidates)

Grand Total - 44

8. The definition of 'NIA Passed Out (fresh candidate)',

according to the prospectus, is of a candidate who has completed

his BAMS & Internship from National Institute of Ayurveda after

the last cut off date of AIAPGET, 2019 and the fresh candidate was

also required to complete BAMS and Internship from the erstwhile

National Institute of Ayurveda between 01.11.2019 to 30.09.2020.

9. The petitioners have pleaded that they are not eligible for

seats reserved for National Institute of Ayurveda Passed Out

(Fresh Candidates), as some of the petitioners have passed out

from the National Institute of Ayurveda in the year 2016 and

internship certificate has been issued to them in the year 2017

(e.g. petitioner-Dr.Rafique Khan in CWP No.245/2021). Likewise,

the petitioners in CWP Nos.34/2021 & 43/2021 have also done

their graduation course in Ayurveda from the National Institute of

Ayurveda affiliated to Dr.Sarvepalli Radhakrishnan Rajasthan

Ayurved University, Jodhpur and, as such, they were also not

treated to be the National Institute of Ayurveda Passed Out (Fresh

Candidates).

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10. The grievance of the petitioners is that undue and illegal

advantage has been given to the students who have completed

BAMS i.e. Under Graduate course from the National Institute of

Ayurveda and further admission is confined to only such

candidates, who have completed their Under Graduate course and

internship from the National Institute of Ayurveda in 2019-20.

Further grievance of the petitioners is that the respondent, in the

garb of institutional preference, has conferred benefit by giving

preferential treatment to the students, who have obtained Under

Graduate degrees from a particular institution and the same is

contrary to the principles laid down by the Apex Court in the case

of Saurabh Chaudri (supra).

11. Counsel for the petitioners have made following

submissions:-

11A. Institutional preference to the students of National

Institute of Ayurveda (prior to attaining the status of

Deemed University) is being granted by forming a separate

category and such category is completely artificial and

imaginative.

11B. National Institute of Ayurveda (Deemed University) did

not exist prior to November, 2020 and there cannot be any

academic continuity or institutional preference. Degrees to

all the students of Under Graduate Courses like petitioners or

other students of National Institute of Ayurveda College,

were issued by Dr.Sarvepalli Radhakrishnan Rajasthan

Ayurved University, Jodhpur and even the said University will

continue to issue degrees for the next four years to the

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batches currently undergoing studies and as such,

discrimination cannot be made by the respondent amongst

the similarly situated students.

11C. There is no intelligible differentia between the

petitioners and any other students of National Institute of

Ayurveda, whether fresh or old. The National Institute of

Ayurveda College had the same academic standards, courses

and other methods of imparting education and the same was

not distinct and different from other students who had

completed the Under Graduate courses in the State of

Rajasthan prior to 2020.

11D. Institutional preference is permissible only to the

extent of 50% of the seats and rest 50% are to be calculated

on residual seats, which come to the Institution after All

India Quota is consumed.

11E. The seat matrix of 22 seats has been exclusively

reserved for fresh candidates of National Institute of

Ayurveda and another stream, for 22 seats, is open for old

students of National Institute of Ayurveda to contest along

with the students of other Universities and as such, the

percentage of institutional preference will go beyond 50%.

11F. The respondent ought to consider 'merit' as the only

criterion for Post Graduate Courses and only on the basis of

the students passed out from a particular institution, seats

should not be earmarked for them.

11G. The reservation of seats for National Institute of

Ayurveda passed out (Fresh Candidates) is arbitrary,

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discriminatory and in violation of Article 14 of the

Constitution of India, as in the present case institutional

reservation means giving preference to the students' alumni.

11H. The National Institute of Ayurveda has not framed any

Rules, Regulations or statutory provisions in accordance with

law in regard to reservation of seats in relation to the

National Institute of Ayurveda passed out (Fresh Candidates)

and in absence of such provisions, the entire action is

vitiated in the eyes of law.

12. Counsel for the petitioners in support of their contentions

have placed reliance on the judgment passed by the Punjab and

Haryana High Court in Dr.Chahat Bhatia Vs. Government

Medical College & Hospital, Chandigarh (CWP

No.8962/2018[O&M]) and other connected writ petitions dated

15.05.2018, judgments rendered by the Apex Court in the case of

State of UP & Ors. Vs. Dr.Dinesh Singh Chauhan reported in

(2016) 9 SCC 749 and AIIMS Students Union Vs. AIIMS &

Ors. reported in AIR 2001 SC 3262.

13. Mr.Anurag Agarwal, appearing for the respondent has filed

reply to the writ petition. The respondent has averred that the

National Institute of Ayurveda is as Institute which is 100%

funded by the Government of India and the same has now become

a 'Deemed University'. The members of the governing body of

National Institute of Ayurveda (Deemed University) held a meeting

on 03.12.2020 and the said governing body approved and

permitted the Institute to make admission on its own level in

different courses from the Academic Session 2020-21 and the seat

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matrix was also approved by the governing body which has been

placed on record as Annexure-R/3. The respondent has approved

the seat matrix allotting 44 seats for the candidates of State of

Rajasthan, out of which 22 seats were earmarked for the

candidates of University of Rajasthan and Dr.Sarvepalli

Radhakrishnan Rajasthan Ayurved University and the rest 22 seats

for the National Institute of Ayurveda passed out fresh candidates,

who have completed their internship between 01.11.2019 to

30.09.2020. The respondent has also averred that institutional

reservation and institutional continuity in education is provided to

the students of the National Institute of Ayurveda, as per the law

laid down by the Apex Court. The respondent has further averred

that other Universities have also provided same reservation for the

institutional students and they have referred to the information

brochure of the Banaras Hindu University, placed on record as

Annexure-R/2 where 50% of the total seats have been reserved

for institutional candidates, who have passed final Professional

BAMS Examination from the Faculty of Ayurveda, IMS, BHU.

14. Counsel for the respondent Mr.Anurag Agarwal further

submitted that 50% institutional reservation is permitted under

the law and accordingly, the decision was taken by the governing

body and no fault can be found with the decision making process

adopted by the respondent.

15. I have heard learned counsel for the parties and with their

assistance perused the material available on record.

16. This Court finds that seat matrix, which has been prepared,

as per the decision of the governing body of the respondent,

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provides that 22 seats will be filled from the National Institute of

Ayurveda passed out fresh candidates. This Court further finds

that if 22 seats out of 44 seats have been earmarked for the

National Institute of Ayurveda passed out fresh candidates, the

respondent has not committed any illegality and such 50% seats

for the institutional continuity is permissible under the law.

17. This Court had occasion to consider the issue of institutional

preference/institutional continuity in the case of Dr.Simple Gupta

Vs. State of Rajasthan & Anr. [S.B.Civil Writ Petition

No.5227/2020] decided on 10.09.2020 and after considering the

law laid down by the Apex Court, this Court held that the

authorities are free to prescribe institution-wise reservation but

the same should not exceed the limit of 50%, as approved by the

Apex Court in the case of Saurabh Chaudri (supra). The relevant

portion of the order dt.10.09.2020, passed by this Court, is

quoted hereunder:-

"34. This Court further holds that 50% of seats which are meant to be filled from non-service candidates cannot be filled on the basis of qualification acquired by the candidates only from the State of Rajasthan and the respondent-State is required to consider the merit of such candidates who want to apply for the said course.

35. This Court further holds that the State is always free to prescribe any other reasonable condition like other States have prescribed condition of domicile/resident of a particular State, however, 100% institution-wise reservation is not permissible in the eye of law.

36. This Court further finds that the State is always free to prescribe institution-wise reservation but the same should not exceed the limit of 50% as has been approved by the Apex Court in the case of Saurabh Chaudri (supra).

37. Accordingly, the present writ petition filed by the petitioner is allowed. The eligibility condition of having passed MBBS Degree from the College situated in the State of Rajasthan is declared illegal and the same is set aside. The respondents are further permitted to make appropriate provision of providing institution-wise reservation to the

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extent of 50% and the remaining 50% seats, from the non- service category candidate, should be filled from the candidates who have applied for the same and who stand higher in merit, as per the criteria evolved by the State by taking into account the marks secured in NEET PG Examination, 2020."

18. The submission of learned counsel for the petitioners that

the National Institute of Ayurveda has become 'Deemed

University' only in the year 2020 and as such, no artificial

distinction can be made between the candidates who have done

their Graduation prior to the year 2020 and all the colleges were

affiliated to Dr.Sarvepalli Radhakrishnan Rajasthan Ayurved

University, Jodhpur, this Court finds that if the National Institute of

Ayurveda (NIA) was having affiliation with Dr.Sarvepalli

Radhakrishnan Rajasthan Ayurved University, Jodhpur and

education was imparted to the Under Graduate students of NIA by

NIA only, the respondent has the valid justification to carve out

such category for NIA passed out fresh candidates to give them

institutional preference. Imparting of education, in a particular

College/Institute or for that matter different Colleges having

affiliation with one University, may not deprive that College which

may later on become University to give preference to its own

students, who have done their Graduation Course from such

College.

19. The submission of learned counsel for the petitioners that

against remaining 22 seats, which are open for those students

who have passed out from the University of Rajasthan or

Dr.Sarvepalli Radhakrishnan Rajasthan Ayurved University,

Jodhpur, the chances of admission are curtailed, this Court finds

that the students who are not NIA passed out fresh students, they

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can participate in the counselling against such seats and if they

fall in the order of merit, their admissions can be accordingly

made.

20. The submission of learned counsel for the petitioners that

respondent has not kept in mind the law laid down by the Apex

Court in the case of Saurabh Chaudri (supra), this Court finds that

the Apex Court has permitted 50% seat by way of institutional

preference and as such, that ceiling is not breached by the

respondent in the present case, while taking decision.

21. The submission of learned counsel for the petitioners that

the Punjab and Haryana High Court in the case of Dr.Chahat

Bhatia (supra) has held that 50% institutional preference should

be restricted to such of the seats, falling to the share of the

Institution, after remaining seats are consumed in the All India

Quota, this Court finds that in the present case, the seat matrix

which has been given, excludes the seats of Central/State

Government in-service candidate as 21 seats out of 65 total seats

and against the remaining 44 seats, institutional preference has

been given on 50% seats i.e. 22 seats for the National Institute of

Ayurveda passed out fresh candidates, this Court finds that no

illegality has been committed by the respondent while issuing the

seat matrix and they have also followed the law laid down by the

Apex Court.

22. Consequently, the present writ petitions being devoid of any

force, accordingly stand dismissed. No costs.

(ASHOK KUMAR GAUR),J

Solanki DS, PS

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