Rajasthan High Court - Jodhpur
Rajputana Unani Medical College, ... vs Union Of India on 31 May, 2021
Bench: Manoj Kumar Judge)
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
(1) S.B. Civil Writ Petition No. 6865/2021
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 Wife Of Shri Ankur Singhal, Aged About 40
Years, R/o 142, Abhilasha Apartment, Vidyut Nagar C, Gandhi
Path, Jaipur.
----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.
2. The UG/PG Ayush Counseling Board, 112-113, 1St Floor,
Administrative Building, Dr. Sarvapalli Radha Krishnan
Rajasthan Ayurved University, Nagaur Road, Karwar,
Jodhpur Through Its Chairman.
3. State Of Rajasthan, Through The Principal Secretary,
Department Of Ayurved And Indian Medicine, Government
Of Rajasthan, Secretariat, Jaipur.
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, Opposite D Block, Janakpuri, New Delhi
Through Its Registrar.
----Respondents
Connected With
(2) S.B. Civil Writ Petition No. 6880/2021
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.
----Petitioner
(2 of 30) [CW-6865/2021]
Versus
1. Union Of India, Through Its Secretary, Ministry Of
Ayurveda, Yoga And Naturopathy, Unani, Siddha And
Homeopathy (Ayush), B-Block, Gpo Complex, Ina, New
Delhi-110023.
2. The State Of Rajasthan, Through Its Principal Secretary,
Depatment 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 Homeopathy (CCH), Jawaharlal
Nehru Bhartiya, Chikitsa Evam Anusandhan Bhawan, 61-
65, Institutional Area, Opp. D Block, Janakpuri, New Delhi
Through Its Registrar.
----Respondents
(3) S.B. Civil Writ Petition No. 6901/2021
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,
S/o Mohammed Amjad Ali.
----Petitioner
Versus
1. Union Of India, Through Its Secretary, Ministry Of
Ayurveda, Yoga Nad Naturopathy, Unani, Siddha And
Homeopathy (Ayush), B-Block, Gop Complex, Ina, New
Delhi-110023.
2. The State Of Rajasthan, Through Its Principal Secretary,
Depatment 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 Indian Medicine (CCIM), 61-65,
Institutional Area, Opp. D Block, Janakpuri, New Delhi
Through Its Registrar.
----Respondents
(3 of 30) [CW-6865/2021]
(4) S.B. Civil Writ Petition No. 7099/2021
1. The Taraqque Tibbi Society, Saleem Manzil, Uncha Kuwa,
Haldiyon Ka Rasta, Johari Bazar, Jaipur - 302003
(Rajasthan) Through Its Authorized Signatory Dr. Azam
Ansari Aged About 56 Years.
2. Rajasthan Unani Medical College And Hospital, Jagdamba
Colony, Paladi Meena, Agra Road, Jaipur Through Its
Principal Dr. Azam Ansari Aged About 56 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 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 Indian Medicine (CCIM), 61-65
Institutional Area, Opposite D Block, Janakpuri, New Delhi
Through Its Registrar.
5. Dr. Sarvapalli Radhakrishnan Rajasthan Ayurved
University, Nagaur Road, Karwar, Jodhpur Through Its
Registrar.
----Respondents
(5) S.B. Civil Writ Petition No. 6211/2021
1. Simran Singh D/o Diler Singh Bhati, Aged about 19
Years, House No.105, Street No.4, Gulab Nagar, Near
RTO Office, Jodhpur, Rajasthan.
2. Payalben Chaudhary D/o Ishvarbhai Chaudhary, Aged
about 18 Years, Dhanera, Banaskantha, Gujarat.
3. Manya Yadav D/o Gaurav Yadav, Aged about 19 Years,
Kheda, Ambabadi, Jaipur, Rajasthan.
(4 of 30) [CW-6865/2021]
4. Asma Khanam D/o Mohd. Yunus Khan, Aged about 18
Years, Mahidas Colony, Dashara Maidan, Gangapur,
Sawai Madhopur, Rajasthan.
5. Mubashshera Pathan S/o Mohd. Aslam, Aged about 20
Years, Ward No.27, Islampura, Gangapur, Sawai
Madhopur, Rajasthan.
6. Joya Pathan D/o Mohd. Intjar, Aged about 19 Years,
Ward No.27, Islampura, Gangapur, Sawai Madhopur,
Rajasthan.
----Petitioners
Versus
1. The Union Of India, Through Its Secretary, Ministry Of
Ayurveda, Yoga And Naturopathy, Unani, Siddha And
Homeopathy (Ayush), B-Block, Gpo Complex, Ina, New
Delhi-110023.
2. The Central Council Of Indian Medicine (CCIM), 61-65
Institutional Area, Opposite D Block, Janakpuri, New
Delhi Through Its Registrar.
3. The Central Council Of Homeopathy (CCH), Jawaharlal
Nehru Bhartiya Chikitsa Evam Anusandhan Bhawan, 61-
65, Institutional Area, Opp. D Block, Janakpuri, New
Delhi Through Its Registrar.
4. 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.
5. The State Of Rajasthan, Through Its Principal Secretary,
Department Of Ayurved And Indian Medicine,
Government of Rajasthan, Secretariat, Jaipur.
----Respondents
For Petitioner(s) : Mr. Akhilesh Rajpurohit]
Mr. Kuldeep Mathur ], through
Cisco Webex App
For Respondent(s) : Mr. Mukesh Rajpurohit, ASG]
Mr. Hemant Dutt ]
Mr. Nihar Jain ]
Mr. Himanshu Shrimali ], through
Cisco Webex App
(5 of 30) [CW-6865/2021]
JUSTICE DINESH MEHTA
Judgment
Reserved on : 24/05/2021
Pronounced on : 31/05/2021
Reportable
(1) Out of the captioned writ petitions, cases mentioned at
S.Nos.1 to 4 have been filed by the institutions, whereas case
mentioned at S.No.5 has been filed by the students, seeking
admission against the seats remaining vacant in these
Institutions.
(2) The petitioners Nos.1 to 4 are conducting courses of
Bachelor of Ayurvedic Medicine & Surgery (BAMS), Bachelor of
Homeopathic Medicine & Surgery (BHMS),Bachelor of Naturopathy
& Yogic Sciences (BNYS) and Bachelor of Unani Medicines &
Surgery (BUMS) commonly known as AYUSH Courses. Petitioners-
Institutions are having due approval from the respective statutory
bodies.
(3) After the academic session 2019-20, the students in AYUSH
Courses are being given admission through counseling, subject to
condition of clearing National Eligibility cum Entrance Test
(hereinafter referred to as 'the NEET'), through counseling, of
course on the basis of their merit in such examination.
(4) All petitions involve common facts and question of law,
hence, they are being decided conjointly. However, the facts from
S.B. Civil Writ Petition No.6865/2021 [Jyoti Vidyapeeth Womens
University Vs. The U.O.I. & Ors.] are being taken into
consideration.
(5) The Central Council of Indian Medicine (hereinafter referred
to as 'the Council' or 'the CCIM'), in exercise of powers conferred
(6 of 30) [CW-6865/2021]
upon it by the various clauses of sub-section (1) of Section 36 of
the Indian Medicine Central Council Act, 1970, framed
Regulations, which were published in the Official Gazette of India
on 07.12.2018. These Regulations have been named as Indian
Medicine Central Council (Minimum Standards of Education in
Indian Medicine)(Amendment Regulations), 2018 which
hereinafter will be referred to as 'the Regulations of 2018' or 'the
Regulations'.
(6) Regulation No.2 of the Regulations of 2018 prescribes
required educational qualification and other eligibility criteria for
admission in undergraduate course of Bachelor of Ayurvedic
Medicines (BAMS) according to which, a candidate is eligible for
admission, who has passed intermediate (10+2) or equivalent
examination with subjects of Physics, Chemistry, Biology and
English individually and has obtained minimum aggregate of 50%
marks in Physics, Chemistry and Biology, subject to some
relaxation carved out for the candidates belonging to SC, ST, OBC
Categories and persons with benchmark disability.
(7) Clause (d) of Regulation No.2 of the Regulations of 2018
provides that in order to be eligible for admission to
undergraduate course in an academic year, it shall be necessary
for a candidate of unreserved category to secure minimum of
marks at 50th percentile in the NEET held for such academic year.
Relaxation in this requirement has also been provided to the
candidates belonging to SC, ST, OBC and persons with disabilities
and accordingly, in case of candidates of SC, ST and OBC, the
minimum passing marks is 40 th percentile and for persons with
disabilities it is 45th percentile for general category and 40th
percentile for SC, ST, OBC.
(7 of 30) [CW-6865/2021]
(8) A proviso is appended with above referred clause (d) of
Regulation No.2 of the Regulations, which postulates that in case
substantial number of candidates in respective categories fail to
secure minimum marks in the NEET held in a particular academic
year, the Central Government, in consultation with the CCIM may
at its discretion lower the minimum marks required for admission
to undergraduate course, however, with a condition that such
relaxation would be applicable for that academic year only.
(9) Before proceeding further, it would be apt to sail through the
Regulation No.2 of the Regulations of 2018, which reads as
under:-
"2. Eligibility for Admission.- The eligibility to seek
admission in Bachelor of Ayurvedic education shall be
as under:-
(a) The candidate must have passed (10+2) or its
equivalent examination recognised by the concerned
State Government and Education Board with the
subjects of Physics, Chemistry, Biology and English
individually and must have obtained minimum of fifty
per cent. marks taken together in Physics, Chemistry
and Biology at the aforesaid qualifying examination in
the general category and forty per cent. Marks in the
case of the Scheduled Castes, Scheduled Tribes and
Other Backward Classes.
(b) In respect of persons with disability candidate
specified under the Rights of Persons with Disabilities
Act, 2016 (49 of 2016), the minimum qualifying
marks in the said qualifying examination in Physics,
Chemistry and Biology shall be forty-five per cent. in
the case of general category and forty per cent. in the
case of the Scheduled Castes, Scheduled Tribes and
Other Backward Classes.
(c) No candidate shall be admitted to B.A.M.S. Degree
Course unless he has attained the age of seventeen
years on or before the 31st December of the year of
admission in the first year of the course:
Provided that the upper age limit may be relaxed by
five years in the case of the Scheduled Castes,
Scheduled Tribes, Other Backward Classes and
physically handicapped candidates.
(8 of 30) [CW-6865/2021]
(d) (i) There shall be a uniform entrance examination
for all medical institutions at the under-graduate level,
namely the National Eligibility Entrance Test (NEET)
for admission to under-graduate course in each
academic year and shall be conducted by an authority
designated by the Central Government.
(ii) In order to be eligible for admission to under-
graduate course for an academic year, it shall be
necessary for a candidate to obtain minimum of
marks at 50th percentile in the 'National Eligibility
Entrance Test for under-graduate course' held for the
said academic year.
Provided that in respect of -
(A) candidates belonging to the Scheduled Castes,
Scheduled Tribes and Other Backward Classes, the
minimum marks shall be at 40th percentile.
(B) Candidates with benchmark disabilities specified
under the Rights of Persons with Disabilities Act, 2016
(49 of 2016), the minimum marks shall be at 45 th
percentile in the case of general category and 40 th
percentile in the case of the Scheduled Castes,
Scheduled Tribes and Other Backward Classes.
Explanation.- The percentile shall be determined on
the basis of highest marks secured in the all India
common merit list in the National Eligibility Entrance
Test for under-graduate courses.
Provided further that when sufficient number of
candidates in the respective categories fail to
secure minimum marks in the National Eligibility
Entrance Test, as specified above, held for any
academic year for admission to under-graduate
courses, the Central Government in consultation
with the Central Council may at its discretion
lower the minimum marks required for
admission to under-graduate course for
candidates belonging to respective categories
and marks so lowered by the Central
Government shall be applicable for that
academic year only.
(iii) An all India common merit list as well as State-
wise merit list of the eligible candidates shall be
prepared on the basis of the marks obtained in the
National Eligibility Entrance Test and the candidates,
within the respective categories, shall be admitted to
under-graduate course from the said merit lists only.
(iv) The seat matrix for admission in the Government,
Government-aided Institutions and Private Institutions
(9 of 30) [CW-6865/2021]
shall be fifteen per cent. for the all India quota and
eighty-five per cent. for the State and Union
territories quota.
(v) The designated authority for counseling for all
admissions to under-graduate course in all Ayurveda
educational institutions in the States and Union
territories including institutions established by the
State Government, University, Deemed University,
Trust, Society, Minority Institution, Corporation or
Company shall be the respective State or Union
territory in accordance with the relevant rules and
regulations of the concerned State or Union territory
Government, as the case may be.
(vi) The counseling for all admission to B.A.M.S.
Course for seats under all India quota as well as for
all Ayurveda educational institutions established by
the Central Government shall be conducted by the
authority designated by the Central Government.
(vii) No candidate who has failed to obtain the
minimum eligibility marks as specified above shall be
admitted to under-graduate course in the said
academic year.
(viii) No authority or institution shall admit any
candidate to the under-graduate course in
contravention of the criteria or procedure as laid down
by these regulations in respect of admissions and any
candidate admitted in contravention of the said
criteria or procedure shall be discharged by the
Central Council forthwith.
(ix) The authority or institution which grants
admission to any student in contravention of the
aforesaid criteria or procedure shall be liable to face
action in terms of the provisions of the Act.
(e) For foreign national candidate any other
equivalent qualification to be approved by the Central
Government may be allowed and clause (d) shall not
be applicable for said foreign national candidate."
(10) For the academic year 2020-21, after getting intake of
students as per the merit of the NEET, based on the requisite
percentile, fixed by the Regulations of 2018, some of the seats
remained vacant in different AYUSH Courses in various colleges of
Rajasthan. According to the averments made by the petitioners,
(10 of 30) [CW-6865/2021]
for academic year 2020-21, following number of seats in different
AYUSH Courses are lying vacant in the colleges of Rajasthan:-
Subject Total Seats Vacant Seats
(11) The petitioner No.1 to 4 had earlier also preferred writ
petitions before this Court for seeking direction/permission to fill-
up the vacant seats. Writ petition filed by the petitioner - Jyoti
Vidyapeeth and other connected matters came to be disposed by a
Coordinate Bench of this Court, vide its order dated 25.03.2021.
(12) Referring to the judgment dated 08.02.2021 passed by
Hon'ble the Supreme Court, in the case of Harshit Agarwal Vs.
Union of India & Ors. [Writ Petition (C) No.95/2021], while
expressing its concern about the seats remaining vacant, the
Coordinate Bench of this Court directed the respondents to take a
considered decision in accordance with law, particularly in light of
the Regulations of 2018 and to consider reduction in minimum
percentile so as to enable the colleges to have more students in
BAMS, BHMS and MD Homeopathy Courses.
(13) In furtherance of the above referred order (dated
25.03.2021), the petitioner submitted a representation dated
27.03.2021 before the Secretary, Union of India, Ministry of
AYUSH, with a request to reduce minimum percentile as mandated
by the Regulations of 2018. Such request to reduce the required
percentile was made in terms of the proviso to Clause (d) of
Regulation No.2 of the Regulations. The petitioner, in its
(11 of 30) [CW-6865/2021]
representation, highlighted that out of total 770 seats, 77 seats
are lying vacant so far as BAMS Course is concerned. The
representation was simultaneously addressed to the Registrar,
CCIM also.
(14) The Central Government, in turn, however, rejected
petitioner's above referred representation vide its order dated
08.04.2021. While refusing to reduce the percentile, the Central
Government observed that further reduction of percentile criteria
in NEET qualification for Ayurveda Course will lead to inviting less
qualified candidates. It was inter alia indicated in the order that
vide letter dated 15.01.2021, the Ministry has already relaxed the
percentile criteria by 10th percentile points for each category and
that sufficient number of NEET qualified candidates (9,09,776) are
available. It was ruled by the Ministry that lowering of marks may
adversely affect the life and health of general public.
(15) It will not be out of place to reproduce the entire order
passed by the Ministry, which is short and succinct yet full of
substance:-
"Sub: NEET percentile criteria in order to be
eligible for admission in Ayurveda UG Course
for academic year 2020-21-reg.
Sir,
I am directed to refer to your this
representation dated 30.03.2021 regarding
relaxation of minimum eligibility percentile criterion
in NEET UG-2020 for admission to Ayurveda UG
(BAMS) course for academic year 2020-21.
2. Your representation has been considered and
examined in view of the prevailing situations and
status of NEET qualified candidates. It is found that,
as per the percential criterion required as per
regulations namely the Indian Medical Central
Council (Minimum Standards of Education in Indian
Medicine) amendment Regulations, 2018,
approximately 7,71,511 NEET qualified candidates
were available against the approximately 38,814
(12 of 30) [CW-6865/2021]
permitted seats in Ayurveda, Siddha, Unani and
Homoeopathy UG Courses for A.Y.2020-21 and out
of which total permitted seats in UG Ayurveda
Course are approximately 21,135. Further,
Ministry vide its letter dated 15.01.2021 (copy
attached) has relaxed the percentile criteria by
reducing 10 percentile for each category for
academic session 2020-21 due to prevailing COVID-
19 pandemic and various reasons, which has
resulted in availability of total number of 9,09,776
NEET-2020 qualified candidates. As per present
relaxed criteria, marks required for unreserved (UR)
category candidates at 40th percentile is 113 of 720
(15.69%), for Schedule Castes (SC)/the Scheduled
Tribes (ST)/Other Backward Classes (OBC)/SCPwd/
OBCPwd candidates at 30th percentile is 87 out of
720 (12.08%) and for URPwD Candidates at 35th
percentile is 99 out of 720 (13.75%) and
maximum of the seats are filled up in the most of
the States. Thus, it may be seen that, sufficient
number of NEET qualified candidates are available.
3. Further, reducing of percentile criterion further
in NEET qualification for UG Ayurveda Course will be
inviting a lower qualified candidates below 15.69%
for General category and 12.08% for reserved
category and it would affect the vary purpose of
rendering quality medical education and health
services. Lowering of qualification marks may
compromise standard of qualified Medical
Practitioners, which may adversely affect the life and
health of general public.
4. In view of the above, your request for further
reducing the percentile criteria cannot be agreed to.
5. This issues the approval of competent
authority."
(16) Oppugning the order dated 08.04.2021, passed by the
Central Government, Mr. Akhilesh Rajpurohit, learned counsel for
the petitioners, argued that the Central Government has seriously
erred in not reducing minimum percentile marks in the NEET
Examination. He argued that impugned decision of the
respondents in refusing to exercise the discretion vested in it, has
led to huge number of seats lying vacant, which is a national loss
and loss of resources and the same is, thus, irrational.
(13 of 30) [CW-6865/2021]
(17) It was pointed out that prior to introduction of NEET, the
candidates were given admission on the basis of their marks in
intermediate examination only. Learned counsel urged that the
petitioners, in any case, are not seeking relaxation of percentage
obtained in intermediate examination, which is the fundamental
educational qualification required - they are seeking relaxation or
reduction of minimum marks required in NEET Examination, so
that more students can be accommodated/admitted in AYUSH
Courses.
(18) He contended that so far as minimum level of standard is
concerned, same would be secured inasmuch as, no candidate
having lesser prescribed marks in intermediate examination (of
course according to his/her category) will be given admission.
However, if the minimum marks required under clause (d) of
Regulation No.2 of the Regulations of 2018 are reduced, the same
would hardly have any bearing on the quality of students getting
admission in the AYUSH Courses.
(19) Learned counsel placed strong reliance upon the judgment
rendered in the case of Harshit Agarwal (supra) and in order to
draw simile, he pointed out that for the purpose of admission in
Bachelor of Dentistry (BDS) Course also, a student is picked
through NEET and that analogous provisions, as are applicable in
the present case, are applicable in terms of Regulation XII of the
Dental Council of India Revised BDS Course Regulations, 2007 (for
short, 'the Regulations of 2007') including the proviso, giving the
Central Government a power to relax. He submitted that Hon'ble
the Apex Court, in the judgment of Harshit Agarwal (supra) has
set aside the decision of Union of India, which refused to reduce
the minimum marks for admission to BDS Course, observing that
(14 of 30) [CW-6865/2021]
the same suffered from the vice of illegality and irrationality, while
holding thus:-
"13. There are about 7,000 seats available for
admission to the first-year BDS course during the year
2020-21. We are not impressed by the argument of
the learned Additional Solicitor General that there are
sufficient number of Dentists in the country and,
therefore, there is no harm in the seats being unfilled.
However, we find force in the submission made by the
learned Additional Solicitor General that the fee
charged by the private dental colleges is a deterrent
for the seats not being filled up. Only 265 out of 7,000
seats are vacant in government colleges. All the other
unfilled seats are in private Dental colleges. The
Managements of private Dental Colleges shall consider
reducing the fee charged by them to encourage
students to join the Colleges. Reliance was placed by
the first Respondent in an order passed by this Court
in Union of India v. Federation of Self-Financed
Ayurvedic Colleges, Punjab (2020) SCC 115 to
submit that non-availability of eligible candidates for
admission to AYUSH (UG) courses cannot be a reason
to lower the standards prescribed by the Central
Council for admission. The facts of this case are
entirely different as the Central Council of India itself
recommended for lowering the minimum marks. That
apart, the first Respondent has exercised its discretion
and lowered the minimum marks for admission to first-
year BDS Course for the year 2019-20.
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 2020-21 shall be filled
up from the candidates who have participated in the
NEET (UG) courses for the year 2020-21 after lowering
the percentile mark by 10 percentile. The candidates
belonging to general category who have secured 40
percentile shall be eligible to be considered for
admission in the first year BDS course for the year
2020-21. 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
(15 of 30) [CW-6865/2021]
marks and is willing to participate in the admission
process shall also be considered for admission to BDS
Course."
(20) Relying upon the judgment aforesaid, learned counsel for the
petitioners contended that the judgment of the Supreme Court
applies on all fours to the facts of the present cases and thus,
present writ petitions also deserve to be allowed. He emphatically
submitted that impugned order of the Central Government
deserves to be quashed as the same suffers from identical
irrationality or non-application of mind.
(21) Reliance was also placed upon the judgment dated
03.02.2021, rendered in the case of Index Medical College,
Hospital & Research Centre Vs. The State of M.P. & Ors.
[Civil Appeal No.867/2021], particularly para No.25 thereof to
buttress his argument that not filling up of the medical seats is not
a solution to the problem and seats being kept vacant results in
huge financial loss to the management of the educational
institutions, apart from being a waste of national resources.
(22) Para No.25 of the judgment aforesaid is extracted
hereunder:-
"25. The right to admit students which is a part of the
management's right to occupation under Article 19(1)
(g) of the Constitution of India stands defeated by
Rule 12(8) (a) as it prevents them from filling up all
the seats in medical courses. Upgradation and
selection of subject of study is pertinent only to
postgraduate medical course. In so far as
undergraduate medical course is concerned, the
upgradation is restricted only to a better college. Not
filling up all the medical seats is not a solution to the
problem. Moreover, seats being kept vacant results in
huge financial loss to the management of the
educational institutions apart from being a national
waste of resources. Interest of the general public is
not subserved by seats being kept vacant. On the
other hand, seats in recognised medical colleges not
being filled up is detrimental to public interest. We are
(16 of 30) [CW-6865/2021]
constrained to observe that the policy of not
permitting the managements from filling up all the
seats does not have any nexus with the object sought
to be achieved by Rule 12(8)(a). The classification of
seats remaining vacant due to non-joining may be
based on intelligible differentia but it does not have
any rational connection with the object sought to be
achieved by Rule 21(8)(a). Applying the test of
proportionality, we are of the opinion that the
restriction imposed by the Rules is unreasonable. Ergo,
Rule 12(8)(a) is violative of Articles 14 and 19(1)(g) of
the Constitution."
(23) It was also argued with vehemence that in any case, NEET
Examination is nothing more than a screening test and the
requirement of obtaining minimum percentile cannot be said to be
mandatory and such requirement can be ignored given that
number of seats are lying vacant. This argument of learned
counsel stemmed from the judgment dated 20.04.2018, passed
by a Coordinate Bench of this Court in a batch of writ petitions, led
by S.B. Civil Writ Petition No.13776/2017 [Mahendra
Mension & Ors. Vs. State of Rajasthan & Ors.], especially
from the following observations:-
"In view of the above discussion, it is evident that
although it was necessary to take the NEET
examination for entrance to the courses, its purpose
was only short-listing the candidates. Therefore,
attaining 50th percentile minimum marks was not
mandatory as the same could be reduced as per the
discretion to be exercised by the Central Government
in consultation with Dental Council of India, in case of
inadequate number of available candidates."
(24) Learned counsel for the petitioners, having advanced above
arguments, prayed that impugned decision dated 08.04.2021,
taken by the AYUSH Department of Central Government be
quashed and set aside and the petitioners be permitted to fill-up
the vacant seats, subject of course to the eligibility of students
based on their marks in the intermediate examination, as per
(17 of 30) [CW-6865/2021]
clauses (a) and (b) of Regulation No.2 of the Regulations of 2018,
and fulfilling other eligibility criteria and appearance in NEET
Examination, however, without insisting upon minimum percentile
marks in terms of clause (d) of Regulation No.2 of the Regulations
of 2018.
(25) These cases were listed on 13.04.2021, on which date, upon
hearing rival counsel at some length, this Court prima facie felt
that proviso to clause (d) of Regulation No.2 of the Regulations
confers a discretion with the Central Government and it is not
mandatory to reduce the minimum marks. Judgment of Hon'ble
the Apex Court in the case of Harshit Agawral (supra) was also
brought to the notice of the Court, for which, it was deemed
appropriate to have the opinion or view point of the concerned
Council (respondents Nos.4 and 5) so as to arrive at a final
conclusion after considering the stand of the CCIM. Learned
counsel Mr. Dutt was, therefore, directed to ascertain whether the
Council was consulted in relation to the request/representation of
the petitioner institution for reduction of percentile marks and
what is the Council's point of view on this issue.
(26) It will not be out of place to reproduce the proceedings of
13.04.2021, which reads thus:-
"1. By way of the present writ petitions, petitioners
have challenged decision of the Central Government
dated 08.04.2021/13.04.2021, whereby they have
refused to reduce minimum requisite percentile for
admission to Ayush Courses, while dealing with
Institutions' request in this regard interms of proviso
to Regulations of 2018 and 2019.
2. In prima facie opinion of this Court, the proviso
does not mandate the Central Government to reduce
the percentile, it rather confers a discretion which is
evident by the use of expression 'may at its
discretion'.
(18 of 30) [CW-6865/2021]
3. Mr. Rajpurohit relies upon the judgment of Hon'ble
the Supreme Court dated 03.02.2021 rendered in the
case of 'Harshit Agarwal vs. Union of India'. Upon
perusal of this judgment, this Court deems it
appropriate to ask the concerned Council (respondent
No.4 and 5), as to what are/were its views in relation
to Institutes' request for reduction of percentile in
terms of the regulation of 2018.
4. The same is being considered necessary in view of
the observation made by Hon'ble the Supreme Court
in the judgment of Harshit Agarwal (supra),
particularly para No.12 thereof, that respondent No.2
therein (the Council) had recommended deduction of
percentile.
5. List these cases on 24.05.2021.
6. In case the council has not sent any opinion in
relation to reduction of percentile in terms of the
proviso, they would make their stand clear in this
regard."
(27) In response to Court's query, Mr. Hemant Dutt, learned
counsel appearing for respondents Nos.4 and 5, categorically
stated that the Council has not recommended for lowering the
percentile as the same would amount to lowering the minimum
standard and reducing the minimum standard of education would
result in half-baked doctors.
(28) Learned counsel for the respondents Nos.4 and 5, argued
that though a discretion vests in the Central Government to
reduce the minimum percentile, however, the proviso cannot be
read to mean that in all cases, minimum percentile are to be
reduced simply because certain seats remained unfilled in some of
the colleges.
(29) Learned counsel submitted that the controversy involved in
the present case is squarely covered by the judgment of Hon'ble
the Apex Court in the case of Union of India Vs. Federation of
(19 of 30) [CW-6865/2021]
Self-Financed Ayurvedic Colleges, Punjab [(2020) 12 SCC
115].
(30) Citing the judgment aforesaid, he apprised the Court about
the background facts that the Punjab & Haryana High Court had
directed the Central Government to reduce the percentile, which
judgment has been up-turned by Hon'ble the Supreme Court,
while holding that non-availability of eligible candidates for
admission to AYUSH Undergraduate Courses cannot be a reason to
lower the standards prescribed by the CCMS for admission. He
added that true it is, that Hon'ble the Supreme Court has
protected the admissions granted to the students for the academic
year 2019-20, as they were admitted on the strength of interim
orders passed by the High Court, but any indulgence to the
petitioners in this academic year would be contrary not only to the
clear statutory provision but also to the judgment of the Hon'ble
Apex Court, rendered in the case of Union of India Vs. Federation
of Self-Financed Ayurvedic Colleges (supra).
(31) Mr. Mukesh Rajpurohit, learned Assistant Solicitor General for
the respondent-Union of India, submitted that neither the
institutions running the courses nor can the students claim
relaxation in the minimum percentile marks as a matter of right.
He submitted that the proviso appended with Clause (d) of
Regulation No.2 of the Regulations of 2018 is not mandatory and
the same conveys a discretion upon the Central Government to
reduce the percentile marks. He emphasised that number of seats
remaining vacant cannot be a factor to be taken into account. He,
however, flagged that looking to the present situation, arising from
COVID-19, the Central Government has already reduced the
percentile by 10 points in each category. He argued that any
(20 of 30) [CW-6865/2021]
further reduction of percentile would be nothing but playing with
health of the citizens.
(32) In a bid to defend the order dated 08.04.2021, passed by
the Central Government, learned counsel argued that Central
Government has taken a well considered and conscious decision
giving crisp reasoning and since the petitioners have failed to
point out any infirmity in the order, the writ petitions be dismissed
with cost.
(33) Heard.
(34) After hearing learned counsel for the parties and upon
consideration of the statutory scheme, this Court is of the opinion
that the proviso to clause (d) of Regulation No.2 of the
Regulations is nothing more than a discretionary power bestowed
upon the Central Government to reduce the required percentile
points when sufficient number of candidates in respective
categories fail to secure minimum marks in NEET Examination.
This discretion is required to be exercised on overall appraisal of
relevant legends, one of which may be number of vacant seats,
but it cannot be the sole factor to be reckoned or a driving force.
(35) Such opinion flows from the very language of the proviso,
which lays down that the Central Government, in consultation with
the CCIM may, at its discretion, lower the minimum marks
required for admission. As such, the discretionary power of the
Central Government can be solicited or invoked neither by the
institutions imparting education nor by the enthusiastic or willing
students, simply citing that some seats are lying vacant.
(36) The proviso under consideration permits the Central
Government to reduce the minimum percentile points only in case,
(21 of 30) [CW-6865/2021]
sufficient number of candidates in the respective categories
fail to secure minimum marks.
(37) Expression "sufficient" implies a state of affairs whose
existence assure the existence of the another state of affairs.
[Re.: Webster]. The word "sufficient" means "adequate", "enough,
"as much as may be necessary to answer the purpose intended."
It embraces no more than, that which provides a plenitude which,
when done, suffices to accomplish the purpose intended in the
light of existing circumstances and when viewed from reasonable
standard of practical and cautious men. [Re.: Benarsi Das Saraf &
Ors. Vs. Dalmia Dadri Cement Ltd. & Ors. (AIR 1995 P&H 232)]
(38) In the opinion of this Court, the adjective "sufficient" is of a
great significance and interpretation given in para No.(37) above
clearly suggests that merely because 10%, 15% or even more
seats in some of the colleges of the State of Rajasthan are lying
vacant, the Central Government cannot be called upon much less
compelled to reduce the minimum percentile. Because, if
relaxation is to be given by the Central Government, it has to be
given to all the candidates through out the length and breadth of
the country and not to the candidates of State of Rajasthan only,
as NEET examination is an all India level competition.
(39) The petitioners have not placed on record total number of
seats in the entire country and the corresponding vacancy position
and thus, based on petitioners' pleadings that number of seats, as
indicated in para No.(10) above, in Rajasthan are lying vacant,
neither can the Central Government be expected to grant
relaxation, nor can a direction be sought from the High Court.
(40) Although the petitioners have not brought on record the
vacant seat position of the entire country, but the Central
(22 of 30) [CW-6865/2021]
Government having undertaken such exercise, has recorded in its
order under challenge that maximum number of seats are filled-up
in most of the States. That being the position, the finding of the
Central Government that sufficient number of seats have been
filled, is an uncontroverted fact. The fulcrum of the decision of the
Central Government is such indisputed fact. The same can neither
be faulted with nor can it be alleged to be suffering from any
infirmity much less irrationality.
(41) The basic foundation, on which learned counsel for the
petitioners premised his case is, that reduction of requisite
minimum percentile in NEET Examination would not adversely
affect the educational standards of the candidates inasmuch as
they are otherwise required to have at least 50% marks in their
intermediate examination. According to him requirement of 50%
in intermediate (10+2) examination provides enough check on the
intelligence and proficiency of the students getting admission in
AYUSH Courses. This Court is not impressed with such argument
of Mr. Rajpurohit, for the reasons given in the following paragraph.
(42) A simple look at Regulation No.2 of the Regulations shows
that following three criteria have been fixed by the Regulations for
admission in undergraduate AYUSH Courses:-
(i) a candidate must have obtained minimum 50%
marks taken together in Physics, Chemistry and
Biology in intermediate examination;
(ii) he has attained the age of 17 years on or before
the 31st December of the year of admission; and
(iii) he should secure 50th Percentile marks in NEET
held for the said year.
(23 of 30) [CW-6865/2021]
All the above three conditions are mandatory and need to be
complied with before a candidate is admitted in AYUSH Courses.
(43) It is to be noted that the Regulations themselves have
provided for relaxation of the above eligibility criteria. So far as
criteria Nos.(i) and (ii) are concerned, the relaxation has been
given on the basis of social background; whereas for criteria No.
(iii) above, the Central Government has been clothed with the
power to relax, however, in terms of proviso. If the argument of
the petitioners is to be accepted, the third criteria, prescribed by
Regulation No.2 of the Regulations will be rendered nugatory and
the purpose of inserting clause (d) in Regulation No.2 of the
Regulations in relation to uniform examination, based for all
medical institutions for admission in undergraduate courses,
namely, NEET, shall be otiose.
(44) Adverting to the judgment of the Apex court rendered in the
case of Harshit Agarwal (supra), which was heavily relied upon by
learned counsel for the petitioners; it is true that the Apex Court
has directed the Central Government to reduce the percentile
marks by 10th percentile in BDS Course and equally true is the
assertion that the provisions of the Regulations of 2007 are
analogous to the provisions of Regulations of 2018, but then, a
careful reading of the judgment in the case of Harshit Agarwal
(supra) reveals that the Apex Court was pleased to allow the writ
petitions and direct the Central Government to grant relaxation,
essentially because of the fact that the Dental Council of India
itself had recommended for lowering the minimum marks.
(45) As against this, such is not the position when it comes to the
cases at hand. In the teeth of categorical stance taken by the
CCIM through its counsel that the CCIM does not approve of
(24 of 30) [CW-6865/2021]
lowering the requisite percentile, as the same would lead to
reduction of requisite standards of education and result in half-
baked doctors, the judgment, relied upon by Mr. Akhilesh
Rajpurohit, is clearly distinguishable.
(46) Moving on to the judgment of Hon'ble the Supreme Court in
the case of Index Medical College, Hospital & Research Centre
(supra) and the observations made in para No.25 of the judgment
aforesaid, pertinent it is to note that the said case related to the
year 2017 and the admissions in question were of medical colleges
of State of M.P., where the admissions were governed by M.P.
Chikitsa Shiksha Pravesh Niyam, 2018 and the question before the
Court was that of admissions through mop-up round and not with
regard to reduction in minimum percentage or percentile points or
eligibility criteria. While dealing with such issue of filling-up of the
management quota seats, Hon'ble the Apex Court made the
observations that seats remaining vacant in medical colleges
results in huge financial loss to the management. This judgment
too is clearly distinguishable as admission in the AYUSH Courses
given on the basis of NEET result. And Central Government has
already lowered the bar by 10 points even for this academic year.
(47) Furthermore, financial loss to one or more educational
Institutions cannot be compared with the risk to the health of the
citizens. If the financial loss of an institution is to be weighed
against loss of health on account of lesser meritorious candidates,
being given admission, in the opinion of this Court, the equity and
justice warrants this Court to lean towards the interest of the
health of the citizens, rather than being swayed by the vested
interest of the institutions, who are moved or driven by their
monetary motives and materialistic pleasures.
(25 of 30) [CW-6865/2021]
(48) Learned counsel for the petitioners relied upon judgment of
this Court in the case of Mahendra Mension (supra) to contend
that the NEET Examination is nothing more than a process of
short-listing of the candidates and thus, the criteria of securing
minimum percentile in NEET Examination can be ignored. In the
opinion of this Court, such argument has no substance and the
same deserves to be rejected. Though an observation has been
made by this Court while dealing with somewhat similar
controversy that NEET Examination for entrance to the course was
only for short listing of the candidates but a careful consideration
of the discussion made and purposive reading of the reproduced
part of the judgment unravels that those observations were made
by the Coordinate Bench, in view of the discretion vested in the
Central Government to reduce the minimum percentile in case of
inadequate number of available candidates.
(49) If those observations are read holistically, it clearly turns out
that the same were made in the back-drop of the prevailing facts.
Even if the same is taken to be a conclusion drawn by this Court,
it cannot be said that minimum percentile, as fixed by the Central
Government, are not mandatory and discretionary power to
reduce minimum percentile can be enforced by issuing a writ,
regardless of the contextual facts.
(50) Whereas, the judgment cited by Mr. Hemant Dutt is exactly
on the point under consideration and clinches the issue against the
petitioners. It will not be out of place to reproduce para No.15 of
the judgment in the case of Union of India Vs. Federation of Self-
Financed Dental Colleges (supra), which reads thus:-
"15. Prescribing a minimum percentile for admission
to the undergraduate courses for the year 2019-2020
(26 of 30) [CW-6865/2021]
was vehemently defended by the Central Council and
the Union of India by submitting that the minimum
standards cannot be lowered even for AYUSH Courses.
We agree. Doctors who are qualified in Ayurvedic,
Unani and Homeopathy streams also treat patients
and the lack of minimum standards of education
would result in half-baked doctors being turned out of
professional colleges. Non-availability of eligible
candidates for admission to AYUSH undergraduate
courses cannot be a reason to lower the standards
prescribed by the Central Council for admission.
However, in view of admission of a large number of
students to the AYUSH undergraduate courses for the
year 2019-2020 on the strength of interim orders
passed by the High Courts, we direct that the
students may be permitted to continue provided that
they were admitted prior to the last date of admission
i.e. 15.10.2019. The said direction is also applicable
to students admitted to postgraduate courses before
31.10.2019. This is a one-time exercise which is
permitted in view of the peculiar circumstances.
Therefore, this order shall not be treated as a
precedent."
(51) A perusal of above quoted para of the judgment clearly
shows that non-availability of eligible candidates cannot be a
reason to lower the standards prescribed by the Central
Government for admission. It is true that in spite of having held
this, Hon'ble the Apex Court has protected the rights of the
students, who have been given admission for academic year 2019-
20, but that was done because the students (respondents therein)
were admitted to the courses on the strength of interim orders
passed by the High Court.
(52) Issuing a direction to relax the eligibility condition(s) or
passing an order to accord admission by way of interim order or
otherwise would be clearly contrary to the unambiguous law on
the subject laid down by the Apex court, apart from being contrary
to facts involved in the extant case.
(53) It is pertinent to note that while deciding the case of Harshit
Agarwal (supra), Hon'ble the Supreme Court has taken into
(27 of 30) [CW-6865/2021]
consideration the above referred judgment of Union of India Vs.
Federation of Self-financed Dental Colleges (supra) and has taken
a view somewhat different than the one taken in the case of Union
of India Vs. Federation of Self-financed Dental Colleges (supra).
But, such different view was taken because of the fact that Dental
Council of India itself had recommended for lowering the minimum
marks. The fact that the Dental Council of India had
recommended for lowering the minimum marks was a very
striking feature of the case, for which Hon'ble the Supreme Court
was pleased to direct the Central Government to reduce the
percentile.
(54) Having regard to the statement so assertively given by Mr.
Dutt that the Council has neither recommended for reduction in
minimum percentile nor does it approve of such reduction, this
Court has no hesitation in holding that the petitioners cannot claim
relaxation in minimum percentile points solely on the basis of
judgment of Hon'ble the Supreme Court in the case of Harshit
Agarwal (supra), as the direction was issued considering the
peculiar factual matrix of that case.
(55) In the opinion of this Court, the impugned decision dated
08.04.2021, passed by the AYUSH Department of the Central
Government is a well reasoned order. One cannot lose sight of the
fact that the order dated 08.04.2021 records that the Ministry,
vide its letter dated 15.01.2021, has already relaxed the
percentile criteria by reducing 10 th percentile points, for each
category for academic session 2020-21 having due regard to the
prevailing pandemic (COVID-19) and for other reasons.
(56) As the Central Government has already exercised its
discretionary power and reduced minimum marks by 10
(28 of 30) [CW-6865/2021]
percentile, directing it to reduce it further would be nothing short
of intruding in the affairs of academic bodies, which are experts in
their own fields and are in a better position to strike a balance
between the Institutions' thirst of getting students vis-a-vs the
societal requirement of quality health care.
(57) No infirmity has been pointed out or even alleged by the
petitioners in the decision dated 08.04.2021. Even petitioner's
representation submitted pursuant to this Court's order dated
25.03.2021 also did not contain anything of substance - it
contained a hollow request to reduce the minimum percentile, that
too on the sole ground that 77 seats out of total 770 seats are
lying vacant. Petitioner's point has been taken note of, duly
pondered upon and then, debunked with sound reasoning. This
Court hardly finds any reason to interfere in such decision of the
Central Government.
(58) A perusal of the Central Government's order dated
08.04.2021 brings to fore that after reducing 10 th percentile points
vide its order/letter dated 15.01.2021, the minimum required
percentile for unreserved category has been fixed at 40 th
percentile, whereas for SC/ST and Other Backward Classes, it has
been reduced to 30th Percentile and 35th Percentile for Differently
Abled Candidates. After bringing the bar down by the Central
Government, as many as 9,09,776 candidates have qualified the
NEET Examination. Thus, more than sufficient number of NEET
qualified candidates are/were available. If those candidates, for
their own reasons, do not choose to opt for the courses run by
these colleges, the Central Government cannot be asked to keep
on reducing the percentile and compromising with the educational
standards.
(29 of 30) [CW-6865/2021]
(59) If the yardstick has been set at 40th percentile, it means that
60% of the students, who have appeared in the NEET examination
have been declared successful. This is quite a number, given the
large number of candidates who appeared in the NEET
Examination. It is of common knowledge that these qualified
candidates will be enjoined with the responsibility of diagnosing
and curing the suffering populace. It is intriguing that out of 720
marks, the candidates who have scored 113 marks (15.69%) of
the unreserved category; candidates having secured 87 marks
(12.08%) of SC/ST and Other Backward Classes and candidates
obtaining 99 marks (13.75%) out of the persons with disability
category, have been declared qualified in NEET-2020.
(60) If the criteria for minimum percentile is further reduced, this
Court is doubtful about the standard of the students taking
admission and is wary of their potential to undertake the
professional courses. They will really be half-baked professional,
as stated by learned counsel for the Council. It may ultimately be
fatal to the health of the citizens.
(61) In light of the foregoing discussion, this Court is of the firm
view that sufficient number of students (9,09,776) have qualified
NEET-2020. Simply because some seats have remained unfilled,
the Central Government cannot be directed to relax the minimum
percentile points in NEET-2020, particularly when the same has
already been done (by reducing 10 th percentile), for each category
for this academic year itself.
(57) Writ petitions at S.Nos. 2 to 4 filed by the Institutions so also
writ petition at S.No.5 by the students are almost identical.
Though these petitioners impart Degree Courses in different
streams and governed by different Regulations but the provisions
(30 of 30) [CW-6865/2021]
are para materia and the prayer is common. Even the impugned
orders of the Central Government are of even date and ad-
verbatim (except in CW No.6880/2021, date of Central
Government's order is 13.04.2021).
(56) This Court does not find any merit or substance in these writ
petitions, for which all of them are hereby dismissed.
(57) The stay applications also stand disposed of.
(DINESH MEHTA),J
/skm/-
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