Jayoti Vidyapeeth Womens ... vs The Union Of India
2022 Latest Caselaw 6952 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR D.B. Civil Writ Petition No. 5836/2022

1. Rajputanan Unani Medical College, Hospital & Research Centre, Gujar Mohalla, Kho Nagoriyan, Jagatpura Road, Jaipur Through Its Assistant Secretary Anees Ahmed Alvi, Aged About 61 Years.

2. Rajasthan Unani Medical College And Hospital, Jagdamba Colony, Paladi Meena, Agra Road, Jaipur Through Its Principal Dr. Azam Ansari, Aged About 57 Years.

----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. 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 National Commission For Indian System Of Medicine, Ministry Of Ayush, Government Of India, 61-65, Institutional Area, Janakpuri, D Block, New Delhi - 110058 Through Its Secretary.

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

----Respondents

Connected with D.B. Civil Writ Petition No. 6762/2022

Jayoti Vidyapeeth Womens University, Jaipur, Vedaant Gyan Valley, Village Jharna, Mahala Jobner Link Road, Nh-8 Jaipur Ajmer Express Way, Jaipur, Rajasthan Through Its Advisor And CEO Vedant Garg, Aged About 20 Years.

                                                                   ----Petitioner


                                           (2 of 12)                    [CW-5836/2022]


                                    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 National Commission For Homoeopathy, Jawaharlal Nehru Bhartiya Chikitsa Evan Anusandhan Bhawan, 61- 65, Institutional Area, Opp. D Block, Janakpuri, New Delhi Through Its Registrar.

                                                                 ----Respondents


For Petitioner(s)         :     Mr. Akhilesh Rajpurohit
For Respondent(s)         :     Mr. Sunil Joshi, through V.C.

HON'BLE ACTING CHIEF JUSTICE MR. MANINDRA MOHAN SHRIVASTAVA HON'BLE MR. JUSTICE FARJAND ALI

Order

10/05/2022

Heard on applications for interim relief filed by the

petitioners.

Learned counsel for the petitioners would argue that the

impugned regulations namely, Indian Medicine Central Council

(Minimum Standards of Education in Indian Medicine) Amendment

Regulations, 2018 (hereinafter referred to as the 'Regulations of

2018') framed vide notification dated 07.12.2018 is ultra vires

Section 22 of the Indian Medicine Central Council Act, 1970

(hereinafter referred to as the 'Act of 1970').

(3 of 12) [CW-5836/2022]

Learned counsel for the petitioners would argue that the

procedure prescribed under Section 22(2) of the Act of 1970,

before carrying out amendment vide notification dated 07.12.2018

thereby prescribing eligibility for admission to under-graduate

BUMS course, requiring candidate to obtain minimum marks at

50th percentile in the National Eligibility Entrance Test (hereinafter

referred to as the 'NEET') for under-graduate course, has not been

complied with. Referring to specific ground taken in the writ

petitions, it is argued that the regulations earlier framed under the

Act of 1970 regulating admission to Indian Medicine courses,

which include BUMS course, did not provide for admission from

amongst those candidates, who qualify in the NEET examination

because there was no such scheme framed under the Act of 1970.

The respondents have carried out impugned amendment vide

notification dated 07.12.2018, ignoring that Ayurveda, Unani and

Siddha (hereinafter referred to as 'AYUSH') courses are different

from MBBS and MDS courses being part of modern medicine

system. Introduction of scheme of NEET for admission to AYUSH

courses including BUMS course by impugned regulation is wholly

uncalled for because there is not enough competition amongst

candidates desirous of pursuing AYUSH courses including BUMS

course with the result that because of the stringent criteria of

obtaining 50th percentile through NEET examination which is not

being fulfilled, it has resulted in large number of seats in BUMS

courses remaining vacant in the Unani Medical Colleges over the

country including the petitioners-institutions. It is further argued

that even after lowering the percentile, the candidates through

NEET are not made available to fill up seats and in such

circumstance, in respect of the left over seats, the petitioners-

(4 of 12) [CW-5836/2022]

institutions should be allowed to admit candidates desirous of

pursuing BUMS course, otherwise large number of seats may

remain vacant which will be against the public interest. It has also

been contended that under the amendment scheme applicable to

MBBS and MDS courses, it has now been provided that where

sufficient number of candidates through NEET are not available,

the minimum standard of percentile may be reduced so as to

ensure that seats are filled up and do not remain vacant, but no

such corresponding provision has been introduced insofar as

admission to AYUSH courses including BUMS course is concerned,

which is also discriminatory in nature.

Learned counsel for the petitioners submitted that as the

respondents have not come out with any specific reply to ground

raised in the petitions that before issuing notification dated

07.12.2018, carrying out amendment in the existing regulations

and providing for necessity of obtaining minimum percentile

through NEET examination, the mandatory procedure prescribed

under Section 22(2) of Act of 1970 was not complied with, the

very requirement of obtaining minimum percentile through NEET

examination has no sanctity and the petitioners-institutions cannot

be denied their right to admit students, at least against those

seats which have remained vacant on account of non-availability

of NEET qualified students, from amongst those who are otherwise

desirous to pursue BUMS course and possessed of other minimum

eligibility criteria prescribed under the regulations. On this aspect,

it is argued that respondents No.2 and 4 have not come out with

specific reply much less any material placed on record along with

reply to even prima facie satisfy the Court that the procedure

prescribed under Section 22(2) of the Act of 1970 was complied

(5 of 12) [CW-5836/2022]

with before carrying out amendment in the regulations vide

notification dated 07.12.2018. Further submission is that this

issue was examined at length by the Karnataka High Court,

Dharwad Bench in the case of The Karnataka Private

Homeopathic Medical Colleges Management Association &

Ors. vs. Union of India & Ors. [W.P. No.100652/2021, vide

order dated 31.08.2021]. The amendment carried out in the

regulation providing for similar provision of admission through

NEET without complying with the mandatory requirement of

Section 20(2) of the Homeopathy Central Council Act, 1973, which

is pari materia Section 22(2) of the Act of 1970, has been struck

down being ultra vires Section 20(2) of the Homeopathy Central

Council Act, 1973. The said judgment is squarely applicable in the

case of the petitioners herein because similar requirement under

Section 22(2) of the Act of 1970 is applicable in the case of BUMS

courses. It has been violated in the absence of there being any

material placed on record by the respondents to satisfy the Court

that copy of the draft regulations and all subsequent amendments

were furnished by the Central Council to all the State

Governments and Union Territories, before submitting the draft of

amendment in regulations to the Central Government for sanction,

which had taken into consideration the comments of any State

Government received within three months from the date of

furnishing of the copies of such draft regulation/amendment.

It is lastly submitted that in view of the judgment of the

Karnataka High Court, interim orders have been passed in the

petitions filed in the High Court of Madhya Pradesh, High Court of

Delhi as also this Court insofar as the BHMS and BAMS courses

are concerned, allowing provisional admission without insisting on

(6 of 12) [CW-5836/2022]

eligibility criteria contained in the regulation requiring candidates

to obtain minimum percentile through NEET.

On the other hand, learned counsel for the respondents No.2

and 4, referring to their respective reply, would submit that

admission to all the courses under Indian medicine system being

BHMS, BUMS and BAMS, are governed by uniform procedure

prescribing that the admission would be granted only through

NEET to those candidates who have obtained minimum percentile

as required under the regulations. It is argued that challenge to

the validity of the regulations of 2018 vide notification dated

07.12.2018, which is under challenge in the present case, has

been repelled by the Supreme Court in the case of Union of

India vs. Federation of Self-Financed Ayurvedic Colleges

Punjab & Ors. [Civil Appeal No.603/2020, vide order dated

20.02.2020] wherein the Supreme Court has held that

prescribing minimum percentile for admission to under-graduate

courses does not suffer from any illegality observing that 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. It is also observed that the argument

regarding non-availability of eligible candidates for admission to

Ayush courses, which includes under-graduate courses BUMS,

cannot be a reason to lower the standards prescribed by the

Central Council for admission. As far as the decision of the

Karnataka High Court is concerned, it is argued that it pertained to

legality of regulations amended under the scheme of a different

enactment requiring procedure to be followed under the

(7 of 12) [CW-5836/2022]

Homeopathy Central Council Act, 1973. Therefore, that order is

not applicable in the instant case.

It is further contended that this aspect with regard to validity

of similar provisions in the matter of admission to BAMS courses

was recently considered by the Delhi High Court in the case of

Ravi Kumar & Anr. vs. Union of India & Ors. [W.P.(C)

No.5963/2022, vide order dated 12.04.2022] wherein relying

upon the Supreme Court decision in the case of Federation of Self-

Financed Ayurvedic Colleges Punjab (supra) and upon due

consideration of the similar arguments regarding non-compliance

of Section 22(2) of the Act of 1970 as has been raised in the

present case and further taking into consideration that now

regulations have been framed under the National Commission for

Indian System of Medicine Act, 2020 called the National

Commission for Indian System of Medicine (Minimum Standards of

Under Graduate Ayurvedic Education) Regulations, 2022, having

come into force on 16.02.2022 prescribing uniform entrance

examination for all medical institutions at the under-graduate

level, namely NEET for admission to under-graduate programs in

each academic year as per Regulation 5(2) and that word

"uniform" used therein cannot be read as "separate", application

for grant of interim relief has been rejected. Therefore, it is

argued that as far as statutory scheme regulations relating to

admission to BAMS, BUMS courses are concerned, they are not

similar as those relating to admission to BHMS under-graduate

courses and therefore, in the present case, the judgment of the

Karnatake High Court is not applicable, but on the other hand

present case is squarely covered by the judgment of the Supreme

Court in the case of Federation of Self-Financed Ayurvedic Colleges

(8 of 12) [CW-5836/2022]

Punjab (supra) and order dated 12.04.2022 passed by the High

Court of Delhi in the case of Ravi Kumar (supra). During the

course of argument, a letter dated 09.06.2017 of the Central

Council of Indian Medicine addressed to Health Secretaries of all

States/Union Territories, Directors of Ayush Departments of all

States/Union Territories has also been placed for perusal of this

Court, though not filed, to buttress the submission that in any

case even the requirement of Section 22(2) of the Act of 1970 as

was in force on the date of issuance of impugned notification

dated 07.12.2018, was duly complied with.

On prima facie considerations, as far as challenge to the

policy of eligibility requirement for admission to under-graduate

BUMS course through NEET is concerned, firstly this is essentially

in the realm of policy decision. The argument that requirement of

clearance by candidates with prescribed minimum percentile

through NEET ought not to be introduced as far as BUMS courses

are concerned, was considered by the Supreme Court in the case

of Federation of Self-Financed Ayurvedic Colleges Punjab (supra)

wherein it was held that 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. In the aforesaid

case, the validity of the notification dated 07.12.2018, which is

under challenge in the present case, was examined. Challenge

laid to the validity of the notification was premised mainly on the

ground that the regulations are ultra vires the Act of 1970. The

argument that introduction of All India Examination in the Form of

NEET is beyond the regulation making power authority of the

Central Council under Section 36 of the Act of 1970 was rejected.

(9 of 12) [CW-5836/2022]

It was held that Section 22 of the Act provides powers to the

Central Council to prescribe minimum standards of education in

Indian Medicine which are required for granting recognized

medical qualifications by Universities, Boards or Medical

Institutions in India. Though the argument, that introduction of

an All India Examination will not be covered by Section 36(i)(j)(k)

of the Act, was accepted, however, upon interpretation of Section

36(p) read with Section 22 of the Act of 1970, it was held that the

2018 regulations cannot be said to be ultra vires the Act of 1970.

The plea made that insistence on the minimum qualifying marks in

the NEET for admission to alternative examination courses

including BUMS, placing it on the same pedestal as MBBS and BDS

courses, was bad in law, was also not accepted. Therefore, the

submissions made in this regard by learned counsel for the

petitioners that such a policy of introducing requirement of

clearance through NEET for admission to BUMS course either on

the ground that the MBBS and BDS courses on the one hand and

AYUSH courses including BUMS course on the other, cannot be

treated at par and therefore, there was no need to introduce the

NEET examination for admission to BUMS course, in view of the

aforesaid judgment of the Supreme Court, does not make out a

prima facie case in favour of the petitioners. Even the argument,

that the scheme of the Act of 1970 did not permit introduction of

scheme of admission through NEET, also does not make out a

prima facie case in favour of the petitioners.

As far as the challenge to notification dated 07.12.2018

amending Indian Medicine Central Council (Minimum Standards of

Education in Indian Medicine) Regulation, 1986 and thereby

introducing eligibility for admission through NEET requiring

(10 of 12) [CW-5836/2022]

minimum of marks at 50th percentile on the ground that the said

notification is in contravention of mandatory provisions contained

in Section 22(2) is concerned, detailed arguments were made

before us by referring to the aforesaid regulation, placing reliance

on the judgment of the Karnataka High Court in the case of

Karnataka Private Homeopathic Medical Colleges Management

Association (supra). In that case, on facts, it was found that the

regulation requiring admission to BHMS courses through NEET was

ultra vires the provision contained in Section 20(2) of the

Homepathy Central Council Act, 1973 as the respondents therein

failed to prove compliance of the provisions before notifying

regulation requiring admission to BHMS courses through NEET. In

the present case, this issue has been raised by the petitioners and

parties have filed their respective pleadings. During the course of

arguments, learned counsel for the respondents placed for

consideration of this Court communication dated 09.06.2017 of

the Central Council of Indian Medicine, by which the draft of

regulation requiring introduction of scheme of admission on the

basis of NEET was circulated to the Health Secretaries of all

States/Union Territories, Directors of Ayush Departments of all

States/Union Territories. Though this document has not been filed

along with the reply of the respondents, it is an official

communication which may be permitted to be taken on record

before completion of pleadings and final arguments. The

impugned notification dated 07.12.2018 was issued only after

draft amendments were circulated to all States and Union

Territories inviting their objections vide letter dated 09.06.2017.

Therefore, it would be a matter which requires deeper

examination at the time of hearing as to whether there was

(11 of 12) [CW-5836/2022]

compliance of the requirements of Section 22(2) of the Act of

1970.

Reliance placed on various orders passed by other courts

including this Court, at this stage, may not be of any benefit

because the orders referred to are with regard to BHMS courses

and based on the judgment of Karnataka High Court governed by

separate set of Acts and Regulations. Prayer for interim relief for

admission to BAMS courses was also made before the Delhi High

Court in the case of Ravi Kumar (supra) on the grounds which

have been raised before this Court, wherein interim relief was not

granted taking into consideration that the validity of notification

dated 07.12.2018 was upheld by the Supreme Court in the case of

Federation of Self-Financed Ayurvedic Colleges Punjab (supra) and

further taking into consideration that regulations have been

framed under new Act i.e. National Commission for Indian System

of Medicines Act, 2020, repelling earlier Act of 1970, known as

National Commission for Indian System of Medicine (Minimum

Standards of Under Graduate Ayurvedic Education) Regulations,

2022 wherein provision has been made for uniform entrance

examination for all medical institutions at the under-graduate level

namely, NEET for admission to under-graduate program for Indian

System of Medicine.

We are, therefore, of the view that unless a declaration is

made by the Court after hearing of the matter, declaring

notification dated 07.12.2018 ultra vires the provision of the Act of

1970 as was in force prior to coming into force the National

Commission for Indian Medicine Commission Act, 2020 on the

ground which have been raised in these petitions, grant of interim

relief directing provisional admission would be contrary to the

(12 of 12) [CW-5836/2022]

provisions contained in regulation notified vide notification dated

07.12.2018.

In view of the aforesaid considerations, we are not inclined

to grant any interim relief as prayed for in the petition seeking

provisional admission against seats to BUMS courses from

amongst those candidates who have not cleared NEET. We are,

however, of the view that the petitions require hearing as early as

possible.

We, accordingly, direct these petitions to be listed for final

hearing on 28.06.2022. In the meantime, the parties may file and

exchange additional pleadings so as to ensure that all the

pleadings are complete on or before 27.06.2022.

List for final hearing on 28.06.2022.

(FARJAND ALI),J (MANINDRA MOHAN SHRIVASTAVA),ACJ

85&88-MohitTak/-

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