Rajasthan High Court - Jodhpur

Rajputana Unani Medical College, ... vs The Union Of India on 25 March, 2021

Bench: Pushpendra Singh Bhati

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 4181/2021

Jayoti Vidyapeeth Womens University, Jaipur, Vedaant Gyan Valley, Village Jharna, Mahala Jobner Link Road, Nh-8 Jaipur Ajmer Express Way, Jaipur, Rajasthan Through Its Registrar Smt. Meghna Singhal, Aged About 43 Years, Wife Of Shri Ankur Singhal, R/o 142, Abhilasha Apartment, Vidyut Nagar 'C', Gandhi Path, Jaipur.

----Petitioner Versus

1. The State Of Rajasthan, Through The Principal Secretary, Department Of Ayurved And Indian Medicine, Government Of Rajasthan, Secretariat, Jaipur.

2. The UG/PG Ayush Counseling Board, Rajasthan, 112-113, 1st Floor, Administrative Building, Dr. Sarvapalli Radha Krishnan Rajasthan Ayurved University, Nagaur Road, Karwar, Jodhpur Through Its Chairman.

3. The Union Of India, Through The Secretary, Ministry Of Ayurveda, Yoga And Naturopathy, Unani, Siddha And Homoeopathy (Ayush), B-Block, GPO Complex, Ina, New Delhi 110023.

4. The Central Council Of Homoeopathy (CCH), Jawaharlal Nehru Bhartiya Chikitsa Evam Anusandhan Bhawan, 61- 65, Institutional Area, Opp. 'D' Block, Janakpuri, New Delhi Through Its Registrar.

5. The Central Council Of Indian Medicine (CCIM), 61-65, Institutional Area, Opp. 'D' Block, Janakpuri, New Delhi Through Its Registrar.

----Respondents Connect With

S.B. Civil Writ Petition No. 5020/2021

1. Janardan Rai Nagar Rajasthan Vidyapeeth, (Deemed-To-

Be University), Pratap Nagar, Udaipur Through Its Authorized Signatory Dr. Amiya Nanda Dev Goswami, Aged About 51 Years.

2. Rajasthan Vidhyapeeth Homoeopathic Medical College And Hospital, Airport Road Dabok, Udaipur 313022

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Through Its Principal Dr. Amiya Nanda Dev Goswami, Aged About 51 Years.

----Petitioners Versus

1. The Union Of India, Through The Secretary, Ministry Of Ayurveda, Yoga And Naturopathy, Unani, Siddha And Homoeopathy (Ayush), B-Block, Gpo Complex, Ina, New Delhi 110023.

2. The State Of Rajasthan, Through The Principal Secretary, Department Of Ayurved And Indian Medicine, Government Of Rajasthan, Secretariat, Jaipur.

3. The Ug/pg Ayush Counselling Board, Rajasthan, 112-

113, 1St Floor, Administrative Building, Dr. Sarvapalli Radha Krishnan Rajasthan Ayurved University, Nagaur Road, Karwar, Jodhpur Through Its Chairman.

4. The Central Council Of Homoeopathy (Cch), Jawaharlal Nehru Bhartiya Chikitsa Evam Anusandhan Bhawan, 61- 65, Institutional Area, Opp. D Block, Janakpuri, New Delhi Through Its Registrar.

----Respondents S.B. Civil Writ Petition No. 4382/2021

1. Mangilal Nirban Homoeopathic Medical College And Research Institute, M.n. Hospital Campus, Near Karni Singh Stadium, Bikaner Through Its Principal Aijaz Aziz Sulemani, Aged About 42 Years.

2. Homoeopathy University, Saipura, Sanganer, Jaipur Through Its Registrar, Dr. Tarkeshwar Jain, Aged About 51 Years.

3. Swasthya Kalyan Homoeopathic Medical College And Research Centre, 10-A, Sitapura Institutional Area, Jaipur Through Its Director Dr. Pankaj Sharma, Aged About 62 Years

4. Sri Ganganagar Homoeopathic Medical College, Hanumangarh Road, Sri Ganganagar Through Its Director, Ashwini Gogia, Aged About 50 Years.

----Petitioners Versus

1. The Union Of India, Through The Secretary, Ministry Of Ayurveda, Yoga And Naturopathy, Unani, Siddha And

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Homoeopathy (Ayush), B-Block, Gpo Complex, Ina, New Delhi - 110023

2. The State Of Rajasthan, Through The Principal Secretary, Department Of Ayurved And Indian Medicine, Government Of Rajasthan, Secretariat, Jaipur.

3. The Ug/pg Ayush Counseling Board, Rajasthan, 112-

113, 1St Floor, Administrative Building, Dr. Sarvapalli Radha Krishnan Rajasthan Ayurved University, Nagaur Road, Karwar, Jodhpur Through Its Chairman.

4. The Central Council Of Homoeopathy (Cch), Jawaharlal Nehru Bhartiya Chikitsa Evam Anusandhan Bhawan, 61- 65, Institutional Area, Opp. D Block, Janakpuri, New Delhi Through Its Registrar.

----Respondents S.B. Civil Writ Petition No. 4385/2021

1. Mangilal Nirban Homoeopathic Medical College, M.n.

Hospital Campus, Near Karni Singh Stadium, Bikaner Through Its Principal Shri Mohd. Aizaz Sulemani, Aged About 42 Years, Son Of Shri Aziz Sulemani.

2. Madhav Homeopathic Medical College And Hospital, Madhav University Campus, Abu Road, Sirohi Through Its Director Dr. Sunil Singh, Aged About 44 Years, Son Of Shri Krishna Nand Singh.

3. Homoeopathy University, Saipura, Sanganer, Jaipur Through Its Registrar, Dr. Tarkeshwar Jain, Aged About 51 Years.

4. Swasthya Kalyan Homoepathic Medical College And Research Centre, A-10, Sitapura Institutional Area, Jaipur Through Its Director Dr. Pankaj Sharma Aged About 62 Years.

5. Yuvraj Pratap Singh Homoeopathic Medical College, Shivaji Park, Alwar Through Its Director Dr. M.k. Sharma, Aged About 57 Years.

6. Sri Ganganagar Homoeopathic Medical College, Hanumangarh Road, Sri Ganganagar Through Its Director, Ashwini Gogia S/o Hari Chand Gogia, Aged About 50 Years.

7. Arogaya Homoeopathic Medical College, Village Naila, Agra Road, Jaipur Through Its Authorized Signatory Niranjan Kumar S/o Shri Babulal, Aged About 32 Years,

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Resident Of Village Dhanapa, Tehsil Merta City, District Nagaur.

8. Bhartiya Homoeopathic Medical College, Bharatpur Through Its Principal, Dr. V.p. Srivastava, Aged About 62 Years S/o Shri Chiranji Lal

9. Federation Of The Rajasthan Homoeopathic Medical Colleges, Jai Villa, Narayan Singh Road, Near Trimurti Circle, Jaipur Through Its Secretary Dr. Pankaj Sharma, Aged About 62 Years, S/o Shri Madan Lal Sharma.

----Petitioners Versus

1. The Union Of India, Through The Secretary, Ministry Of Ayurveda, Yoga And Naturopathy, Unani, Siddha And Homeopathy (Ayush), B-Block, Gpo Complex, Ina, New Delhi-110023.

2. State Of Rajasthan, Through The Principal Secretary, Department Of Ayurved And Indian Medicine, Government Of Rajasthan, Secretariat, Jaipur.

3. The Ug/pg Ayush Counselling Board, Dr. Sarvapalli Radha Krishnan Rajasthan Ayurved University, Nagaur Road, Karwar, Jodhpur Through Its Chairman.

4. The Central Council For Homoeopathy (Cch), Jawaharlal Nehru Bhartiya Chikitsa Evam Anusandhan Bhawan, 61- 65, Institutional Area, Opp. D Block Janakpuri, New Delhi Through Its Registrar.

----Respondents

S.B. Civil Writ Petition No. 5330/2021

Rajputana Unani Medical College, Hospital And Research Centre, Gujar Mohalla, Kho Nagoriyan, Jagatpura Road, Jaipur Through Its Assistant Secretary Anees Ahmed Alvi, Aged About 61 Years, Son Of Mohammed Amjad Ali.

----Petitioner Versus

1. The Union Of India, Through The Secretary, Ministry Of Ayurveda, Yoga And Naturopathy, Unani, Siddha And Homeopathy (Ayush), B-Block, Gpo Complex, Ina, New Delhi-110023.

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2. State Of Rajasthan, Through The Principal Secretary, Department Of Ayurved And Indian Medicine, Government Of Rajasthan, Secretariat, Jaipur.

3. The Ug/pg Ayush Counselling Board, Dr. Sarvapalli Radha Krishnan Rajasthan Ayurved University, Nagaur Road, Karwar, Jodhpur Through Its Chairman.

4. The Central Council For Homoeopathy (Cch), Jawaharlal Nehru Bhartiya Chikitsa Evam Anusandhan Bhawan, 61-65, Institutional Area, Opp. D Block Janakpuri, New Delhi Through Its Registrar.

5. Dr. Sarvapalli Radhakrishnan Rajasthan Ayurved University, Nagaur Road, Karwar, Jodhpur Through Its Registrar.

----Respondents

For Petitioner(s) : Mr. Akhilesh Rajpurohit For Respondent(s) : Mr. Mukesh Rajpurohit, ASG assisted by Mr. Navneet Singh Birkh Mr. Hemant Dutt Mr. Himanshu Shrimali Mr. Uttam Khan for Ms. Juhi Mathur

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Order

25/03/2021

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

being taken while hearing the matters in Court.

2. The petitioners have preferred these writ petitions, in

sum and substance, claiming the following reliefs:

"(i) By an appropriate writ, order or direction, the respondents may kindly be directed to lowering the qualifying percentile for admission in BAMS & BHMS courses in accordance with the provisions contained in the Act of 1970 and the Act of 1973 and the regulations framed thereunder with all consequential benefits.

(ii) By an appropriate writ, order or direction, the respondents may kindly be directed to permit the petitioner to take admission of students who are NEET appeared, in case the

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NEET qualified students are not available for admission in BAMS & BHMS courses.

(iii) Any other appropriate order or direction, which this Hon'ble Court considers just and proper in the facts and circumstances of this case, may kindly be passed in favour of the petitioners.

(iv) Costs of the writ petition may kindly be awarded to the petitioners."

3. Learned counsel for the petitioners has shown the

alarming statistics for the colleges in Rajasthan, where out of 153,

83 seats in Unani colleges are vacant, out of 745 seats, 482 seats

in Homoeopathy colleges are vacant and out 700 seats, 606 seats

in Yoga and Naturopathy are vacant.

4. Learned counsel for the petitioners further submits that

the requirement of NEET for Unani and Homoeopathy colleges, the

compulsory mode of filling the seats being Unani and

Homoeopathy 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 petitioners 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 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)

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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 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

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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 submit

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 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

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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 petitioners

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 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

Homoeopathy colleges in Rajasthan, out of 153, 83 seats in Unani

colleges are vacant, out of 745 seats, 482 seats in Homoeopathy

colleges are vacant and out 700 seats, 606 seats in Yoga and

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Naturopathy 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 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 BHMS, BUMS and M.D. Homoeopathy courses. The