Rajasthan High Court - Jodhpur
Madhav University vs State Of Rajasthan on 27 November, 2025
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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 16431/2018
1. Mangilal Nirban Homoeopathic Medical College, M.n.
Hospital Campus, Near Karni Singh Stadium, Bikaner
Through Its Principal Shri Mohd. Aizaz Sulemani, Aged
About 34 Years, Son Of Shri Aziz Sulemani.
2. Madhav Homoeopathic Medical College, Madhav
University Campus,abu Road, Sirohi Through Its Director
Shri Krishan Kumar Singh, Aged About 61 Years, Son Of
Shri Om Prakasth Singh.
3. Rajasthan Vidhyapeeth Homoeopathic Medical College,
Dabok, Udaipur Through Its Authorized Signatory Dr.
Pankaj Sharma, Aged About 58 Years, Son Of Dr. Madan
Lal Sharma.
4. Madan Pratap Khunteta Homoeopathic Medical College,
Homeopathy University, Saipura, Sanganer, Jaipur
Through Its Principal Shri Atul Kumar Singh, Aged About
49 Years, Son Of Shri Ramdev Singh.
5. Swasthya Kalyan Homoeopathic Medical College And
Research Centre, A 10, Sitapura Institutional Area, Jaipur
Through Its Director, Dr. Pahkan Sharma, Aged About 58
Years, Son Of Dr. Madan Lal Sharma.
6. Yuvraj Pratap Singh Homoeopatich Medical College,
Shivaji Park, Alwar Through Its Principal Dr. Mukesh
Kumar Sharma, Aged About 55 Years, Son Of Shri J.p.
Sharma.
7. Sri Ganganagar Homoeopathic Medical College,
Hanumangarh Road, Sri Ganganagar Through Its
Authorized Signatory Ashwini Gogia Son Of Hari Chand
Gogia, Aged About 50 Years.
8. Arogaya Homoeopathic Medical College, Village Naila,
Agra Road, Jaipur Through Its Director Shri Vimal Kumar
Kanwata, Son Of Shri Jagdish Prasad, Aged About 42
Years.
9. Federation Of The Rajasthan Homoeopathic Medical
Colleges, Jai Villa, Narayan Singh Road, Near Trimurti
Circle, Jaipur Through Its Authorized Signatory Dr. Pankaj
Sharma, Aged About 58 Years, Son Of Shri Madan Lal
Sharma.
----Petitioners
Versus
1. State Of Rajasthan, Through The Principal Secretary,
Department Of Ayurved And Indian Medicine, Government
Of Rajasthan, Secretariat, Jaipur.
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2. Dr. Sarvapalli Radhakrishnan, Rajasthan Ayurved
University, Nagaur Raod, Karwad, Jodhpur Through Its
Registrar.
3. The Counseling Board Bams, Bums, Bhms, Bnys,
Counseling Dr. Sarvapalli Radha Krishnan Rajasthan
Ayurved University, Nagar Road, Karwar, Jodhpur Through
Chairman, Counseling Board.
4. 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
----Respondents
Connected With
S.B. Civil Writ Petition No. 17432/2018
1. The Tantia University, Hanumangarh Road, Sri
Ganganagar, Through Its Registrar Dr. Vinod Sharma,
Aged About 43 Years, Son Of Shri Dharam Chand
Sharma.
2. J.R. Tantia Charitable Trust, 2-A-6, Sukhadia Nagar, Sri
Ganganagar Through Its Authorized Signatory Mukesh
Kumar S/o Shri Bhagirath Ji Aged About 31 Years.
3. Sri Ganganagar College Of Ayurvedic Science And
Hospital Hanumangarh Road Sri Ganganagar, Through Its
Authorized Signatory Ashwini Gogia W/o Hari Chand
Gogia, Aged About 50 Years.
4. Sri Ganganagar Homoeopathic Medical College,
Hanumangarh Road, Sri Ganganagar, Through Its
Authorized Signatory Ashwini Gogia, S/o Hari Chand
Gogia, Aged About 50 Years.
----Petitioners
Versus
1. State Of Rajasthan, Through The Principal Secretary,
Department Of Ayurveda And Indian Medicine,
Government Of Rajasthan, Secretariat, Jaipur.
2. The Counseling Board BAMS, BHMS, BNYS Counseling Dr.
Sarvapalli Radha Krishnan Rajasthan Ayurved University,
Nagaur Karwar, Jodhpur Through Chairman, Counseling
Board.
3. The Union Of India, Through The Secretary, Ministry Of
Ayurveda, Yogba And Naturopathy, Unani, Siddha And
Homeopathy (Ayush), B-Block, Gpo Complex, Ina, New
Delhi-110023.
----Respondents
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S.B. Civil Writ Petition No. 19286/2018
1. Madhav University, Abu Road, District Sirohi Through Its
Authorized Signatory Dr. Sunil Singh Aged About 42
Years, Son Of Shri K.n. Singh.
2. Madhav Homeopathic Medical College, Madhav University
Campus, Abu Road, Sirohi Through Its Principal Dr. Sunil
Singh, Aged About 42 Years Son Of Shri K.n. Singh.
----Petitioners
Versus
1. State Of Rajasthan, Through The Principal Secretary,
Department Of Ayurveda And Indian Medicine,
Government Of Rajasthan, Secretariat, Jaipur.
2. The Counseling Board BAMS, BUMS, BHMS, BNYS, Dr.
Sarvapalli Radh Krishnan Rajasthan Ayurved University,
Nagaur Road, Karwar, Jodhpur Through Chairman,
Counseling Board.
3. The Union Of India, Through Secretary, Ministry Of
Ayurveda, Yoga And Naturopathy, Unani, Siddha And
Homeopathy (Ayush), B-Block, Gpo Complex, Ina, New
Delhi-110023.
----Respondents
For Petitioner(s) : Mr. Akhilesh Rajpurohit
Mr. Vineet Dave
Mr. Ankur Mathur
Mr. Sourabh Rajpurohit
Mr. Lakshya Singh Udawat
Mr. Kaushik Dave
Mr. Nishant Bapna
For Respondent(s) : Mr. Bharat Vyas, Sr.Adv. - cum- ASG
with Mr. B.P. Bohra, Sr. CGSC,
Mr. Vivek Shrimali, Sr.CGSC
Mr. Vaibhav Bhansali
For Applicant(s) : Mr. Sunil Joshi
HON'BLE MR. JUSTICE SUNIL BENIWAL
Order
Conclusion of Arguments &
Reserved on : 07/11/2025
Pronounced on : 27/11/2025
1. Since the above titled writ petitions filed by the private
universities, involve common issues based on similar facts,
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therefore, they are being decided by this common order. However,
for brevity, the facts, as narrated in SBCWP No.16431/2018 are
taken into consideration.
2. The facts in brief are that the petitioners are self financed
Homeopathy colleges and are running various courses in
Homeopathy including post graduation courses in Homeopathy.
The respondent No.3 had issued NEET, BAMS, BUMS, BHMS, BNYS
Counselling 2018 Information Booklet, which provides information
about centralized admission to all Government and Private
Ayurved / Unani / Homeopathy / Naturopathy and Yoga Colleges
for academic session 2018-19 in Bachelor courses of Ayurvedic,
Unani, Homeopathy, Naturopathy & Yoga by the BAMS / BUMS/
BHMS / BNYS Admission Board NEET-2018 constituted by the
State Government.
2.1 The respondent No.3 later issued programme of counselling
on 21.09.2018 for the academic year 2018-19 for admission in
Bachelor course of Ayurvedic, Unani, Homeopathy, Yoga and
Naturopathy which was followed by another notice dated
03.10.2018, whereby online applications were invited for filling up
of NRI seats for the academic session 2018-19. A notice for
second round of counselling was issued on 09.10.2018 for filling
up of vacant seats for the academic session 2018-19.
2.2 The petitioners, during the said counselling process, came to
know that NRI quota seats were not filled and the respondent
No.3 was in the process of filling those unfilled seats with general
category candidates. The petitioners were later informed that the
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said procedure is being adopted based on the directions issued by
the Ministry of Ayurveda, Yoga & Naturopathy, Unani, Siddha and
Homeopathy ('AYUSH'), but, the respondent No.3 could only allot
267 students out of 745 students in Bachelor of Homeopathy
Medicine and Surgery ('BHMS') course. The reason for not filling
up of the vacant seats was only because of wrong application of
eligibility criteria of NEET qualification.
2.3 The grievance raised in the writ petition is with regard to
series of communications issued by the Government of India,
Ministry of AYUSH on various occasions which were addressed to
all the State Authorities intimating that admissions in AYUSH
undergraduate courses are to be given based on the merit list of
NEET only from the academic year 2018-2019. The said
communications were sent on 23.01.2017, 26.04.2017,
12.02.2018, 21.02.2018, 14.05.2018, 05.06.2018, 11.06.2018
and 15.06.2018. Consequently, the State Government issued
communications dated 09.08.2018 and 12.10.2018 to NEET 2018
Counseling Board to fill up the vacant seats of NRI quota. Thus,
the aforementioned notice dated 03.10.2018 came to be published
by the Counseling Board whereby online applications were sought
to fill the NRI vacant seats so also it was indicated that the merit
list of NEET would be considered for the same.
By way of the present writ petition, the petitioner has laid
challenge to the aforementioned communications sent by the
Government of India, Ministry of AYUSH to the State authorities so
also the subsequent communications sent by the State
Government to the Counseling Board. Further, the communication
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dated 21.09.2018 sent by Government of India, Ministry of AYUSH
to all State Authorities has been challenged whereby the
qualification of AIPGET 2018 was mandated to participate in
AYUSH PG Courses for the academic year 2018-2019.
2.4 The precise grievance raised in the present bunch of writ
petitions is with regard to mandating the qualification of NEET /
AIPGET for filling up of vacant seats through administrative /
executive instruction by the Union of India. Further, it has been
prayed that the colleges be permitted to fill up the vacant seats at
their own level.
2.5 The fundamental ground raised in these writ petitions is that
while exercising powers under Sections 20 & 33 of the
Homeopathy Central Council Act, 1973 ('the Act of 1973'), the
Central Council of Homeopathy has framed Homeopathy (Degree
Course) Regulations, 1983 ('Regulations of 1983') and Regulation
4 (Part-III) thereof provides for eligibility to seek admission in
BHMS course. Similarly, Homeopathy (Post Graduate Degree
Course) M.D. (Hom.) Regulations, 1989 ('Regulations of 1989')
were enacted wherein too, Regulation 4 (Part-III) provides for
eligibility to seek admission in M.D. (Hom.) course. The said
Regulations do not mandate marks obtained in NEET as a basic
eligibility criteria to give admission in BHMS/M.D. (Hom.) course
and in absence of any such provision, the Ministry of AYUSH could
not have imposed such condition by issuing aforementioned
communications, which are mere administrative instruction and
carry no statutory force.
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3. In the present batch of writ petitions, the Union of India has
not filed reply despite taking time on numerous occasions.
4. An application in the form of preliminary submissions on
behalf of the National Commission for Homeopathy ('NCH') came
to be filed with the prayer that the present writ petitions be
dismissed for non-joinder of necessary party. Since the issue
raised in the said application is with regard to maintainability of
the present writ petitions on the ground of non-joinder of a
necessary party, therefore, this Court deems it appropriate to first
decide the said application.
5. Mr. Sunil Joshi, learned counsel appearing on behalf of the
NCH, while arguing the application for dismissal of the writ
petitions, has made following submissions :-
(i)- These writ petitions are not maintainable without impleading
NCH as a party respondent, as it is a necessary and proper party.
Without impleading it as a party respondent, the present writ
petitions are not maintainable and are required to be dismissed on
this ground alone.
(ii)- It is settled law that without impleading necessary party in
the suit / writ proceedings, no effective decree or order could be
passed by the Court.
(iii)- The Act of 1973 was enacted by the Parliament and extended
to all the States. It is stated that no State Act / Rules /
Regulations concerning Homeopathy shall prevail over the
provisions of the Act of 1973. The Act of 1973 was amended by
Homeopathy Central Council (Amendment) Act, 2002, and Central
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Council of Homeopathy ('CCH') was constituted as per the
Homeopathy Central Council (Amendment) Act, 2018 by dissolving
the then CCH on 18.05.2018. Later, the Board of Governors of
CCH was dissolved on 05.07.2021 and the same was replaced by
National Commission for Homeopathy Act, 2020 ('the Act of
2020'), which was enacted for monitoring the standards of
Homeopathy Education, Medical Assessment and Rating of the
Colleges and Institutions and Ethics and Registration for
Homeopathy medical practitioners and other residuary matters.
The NCH, being a regulatory body and being the authority to
supervise the standard of Homeopathy education, must be
impleaded as party respondent, therefore, without impleading it
as a party respondent, these writ petitions are not maintainable.
(iv) In view of the Act of 1973 so also in view of the Act of 2020,
the petitioners were mandatorily required to implead either
Central Council of Homeopathy and / or the National Commission
for Homeopathy as a party respondent in the present writ
petitions.
(v) In this bunch of cases, interim order was passed by the
Court and petitioners have admitted the students illegally in their
colleges without following the due procedure of law. Certified copy
of the interim orders were never served upon CCH / NCH. It is
further stated that the Regulations of 1983 so also Regulations of
1989 as amended from time to time provide that no authority or
institution shall admit any candidate to the undergraduate /
postgraduate course in contravention of the criteria or procedure
as laid down by these Regulations in respect of admissions.
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(vi) NCH has recently come to know about petitioners- colleges,
have given admission in an illegal manner and the respective
colleges have approached the appropriate forum for getting their
grievances redressed. Recently, the students, who were given
admissions, have filed separate writ petitions, wherein NCH has
been made party. It is only on receiving notice in such writ
petitions, the NCH came to know about the writ petitions filed in
the year 2018.
Based on the above submissions, it is argued by learned
counsel appearing on behalf of the NCH that since the admissions
to the students made by the petitioners colleges, right from
inception, were illegal, void ab initio and run contrary to the
provisions contained under the Act of 1973, Act of 2020,
Regulations of 1983 and Regulations of 1989 so also against the
verdict of the Apex Court and since the petitioners are not entitled
to get any relief on account of non-joinder of CCH / NCH as party
in this bunch of matters, therefore, the writ petitions are required
to be dismissed.
6. Mr. Bharat Vyas, Sr. Advocate - cum - Additional Solicitor
General appearing on behalf of the Union of India has supported
the preliminary submissions made by the NCH and has further
submitted that the UOI is simply an approval authority, whereas
the NCH is the authority, which is directly concerned and is
statutorily empowered to regulate and maintain the standard of
Homeopathy education in the country and therefore, the NCH is a
necessary and proper party. Thus, these writ petitions are
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required to be dismissed on the ground of non-joinder of
necessary party.
7. Learned counsel for the petitioners, while responding to the
preliminary submissions made by learned counsel appearing on
behalf of the NCH so also by learned Additional Solicitor General,
made the following submissions:
(i)- The petitioners in the present writ petitions are aggrieved by
the communications issued by the Government of India, Ministry
of AYUSH. Since the said communications are under challenge, the
NCH is not a necessary and proper party and therefore, even in its
absence, the present writ petitions are maintainable.
(ii)- By way of the aforementioned communications, condition of
giving admission in undergraduate course so also postgraduate
course based on NEET / AIPGET score has been mandated, which
is under challenge. It is argued that as far as admission in BHMS
course is concerned, the same is governed under the Regulations
of 1983 and unless appropriate amendment is made in the
Regulation itself, such condition cannot be imposed by issuing
such administrative / executive order. Therefore, the impugned
communications are wholly without jurisdiction. Since the
communications issued by the Government of India, Ministry of
AYUSH are under challenge, the presence of NCH in deciding such
controversy was not at all needed and therefore, the petitioners
rightly did not choose to implead NCH as party respondent.
(iii)- When the impugned communications dated 12.02.2018 and
21.02.2018 were issued, as a matter of fact, Central Council of
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Indian Medicine ('CCIM') was of the same view as the petitioners
which is apparent from the communication dated 05.03.2018,
wherein it has specifically been recorded and Secretary to the
Government of India, Ministry of AYUSH has been informed that
for making NEET score mandatory for giving admission, necessary
regulations are required to be amended and without amending the
regulations, such condition cannot be imposed.
(iv)- While referring to the said communication, it is contended
that the CCIM rather supported the stand of the petitioners and
that being so, the presence of NCH was not quite necessary. Even
otherwise, it is for the UOI to justify its competence in issuing the
impugned communication. That is the precise issue, which
requires consideration before this Court, therefore, the preliminary
submission of non-maintainability of the present writ petitions is
required to be rejected at the threshold. As far as the submissions
made by learned ASG with regard to maintainability of writ
petitions are concerned, it is submitted that the UOI has not filed
reply to the writ petitions, therefore, in absence of any pleadings
the petitioners had no occasion to address such objections. Even
otherwise, the stand of learned ASG is rather supporting the stand
of writ petitioners as learned ASG submitted that UOI is formal
approving authority and NCH is the main authority to monitor the
standard of Homeopathy education, therefore, the UOI had no
authority to issue impugned communications.
8. Heard learned counsel for the parties on application filed by
the NCH and perused the material available on record.
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9. It is to be noted that though the UOI has supported the
application submitted by the NCH, however, no reply to the writ
petition has been filed raising such objection nor there are any
pleadings on merit of the writ petitions.
10. At inception a request was of course made by learned ASG
that they require some time to file reply. However, considering the
fact that on earlier occasions time had been sought repeatedly,
the matter was posted for final disposal. The order was passed in
the presence of counsel appearing on behalf of the UOI. Even after
the matter was posted for final disposal and listed on numerous
occasions, the UOI did not choose to file a reply.
11. The precise grievance raised in the present writ petitions is
on account of the impugned communications, which were issued
by the Government of India, Ministry of AYUSH. By the said
communications, it has been informed to all the State Authorities
to give admission in AYUSH undergraduate courses and
postgraduate courses for the academic year 2018-19 only on the
basis of merit list of NEET and AIPGET, respectively.
11.1 One of the fundamental ground raised in the present writ
petitions is that in absence of any statutory competence, the
Government of India, Ministry of AYUSH could not introduce /
amend the admission criteria. The admissions in AYUSH
undergraduate and postgraduate courses are governed by the
Regulations of 1983 and Regulations of 1989, which provide for
the eligibility criteria for granting admission. Unless the said
eligibility criteria is amended by making necessary amendment in
the Regulations, the UOI by such administrative instructions
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cannot amend the eligibility criteria. Considering the fundamental
ground raised in the writ petition, the core issue which requires
adjudication in the present writ petitions is with regard to the
competence of the UOI in issuing the impugned communications.
That being so, what is to be seen is as to whether for deciding the
validity of the impugned communications, the presence of NCH is
required or not.
12. Learned counsel appearing on behalf of the NCH has argued
that the Council is directly concerned with the standard of
Homeopathy education, and is also directly concerned with the
introduction of any such condition so as to have best talent from
the pool. He might be right in contending that the NCH being a
regulatory body is directly concerned with the standard of
Homeopathy education, but the issue in the present writ petitions
is not with regard to whether introduction of NEET is necessary or
not. The issue is whether in absence of amending regulation, such
eligibility could have been introduced. That being so, the presence
of NCH is not required as it is for the UOI to defend and establish
its competency in imposing such condition without making
amendment in the regulation.
13. There is another aspect which requires consideration i.e.
when two of the impugned communications dated 12.02.2018 and
21.02.2018 were issued, the mistake was realized by the CCIM
and for this precise reason, a communication dated 05.03.2018
was made to the Secretary, Government of India, Ministry of
AYUSH, wherein it was specifically highlighted that even while
making NEET as mandatory criteria, amendment was made in
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Indian Medical Council Act, 1956. That being so, the necessary
amendments are required to be made in the Indian Medicine
Central Council (Minimum Standards of Education in Indian
Medicine) Amendment Regulations of 2016. Not only this,
reference to the earlier communications dated 22.02.2017,
01.03.2017, 06.03.2017 and 19.04.2017 was also made while
stating that elaborate and exhaustive discussion was made and it
was conveyed that there was requirement of amending the Indian
Medicine Central Council (Minimum Standards of education in
Indian Medicine) Amendment Regulations, 2016 for Ayurveda,
Siddha and Unani under Section 22 of the IMCC Act and therefore,
without amending such Regulation, introduction of NEET would
adversely affect the aspirants of Indian Systems of Medicine
graduate course, especially those from the rural areas, under
privileged and economically weak backgrounds would continue to
grope in the dark.
13.1 Considering the concern shown by the CCIM, it was required
from the Government of India to have made amendment before
introducing such conditions. As a matter of fact, this
communication rather indicates that the CCIM was of the same
view as has been expressed by the petitioners in the present writ
petitions. It further strengthens the argument of the petitioners
that NCH was not required as a necessary party in the writ
petitions as CCIM was also not in favour of introducing such
eligibility criteria without amending the Regulations.
14. It is also to be noted that the NCH has submitted preliminary
submissions without it being a party in the present writ petitions.
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15. In view of the discussion made above, the preliminary
submissions as raised by the applicant are required to be rejected.
16. The learned counsel for the petitioners in the present writ
petitions challenging the validity of the impugned communications
specified in para no.2.3 of this order has raised the following
grounds:-
(i)- firstly, the eligibility condition could not be changed by
issuing an administrative/executive instruction;
(ii)- secondly, the new eligibility condition cannot be laid without
making amendment in the Regulations;
(iii)- thirdly, one of the impugned communications dated
12.02.2018 is already quashed and set-aside by the Patna High
Court in Vihar Private Unani Medical Colleges & Anr. Vs. UOI
& Ors. (Civil Writ Jurisdiction Case No.16541/2018),
decided on 10.10.2018;
(iv)- fourthly, Apex Court in Ebtesham Khatoon Vs. UOI & Ors.
(Special Leave to Appeal No.6658/2020), decided on
12.02.2025 while considering identical issue has permitted the
students to continue with their course despite noting the fact that
they were admitted without fulfilling NEET criteria;
(v)- fifthly, the case of the present petitioners is on much better
footing than what was under consideration before the Apex Court.
In the present case, the students, who were given admission in
the academic session 2018-19, have already completed their five
years course so also the mandatory internship subsequent to
graduation, whereas the students, whose admissions were under
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consideration before the Apex Court, had not graduated as their
results were not declared; and
(vi)- sixthly, CCIM has also clearly recommended that such
eligibility criteria should be introduced only after necessary
amendment in the Regulations.
17. While countering these submissions, learned ASG has argued
that -
(i)- For betterment and for improving standard of the medical
education, the Government of India has made NEET mandatory
and the Government of India is competent to do so.
(ii)- The factum of the eligibility criteria being introduced by
impugned administrative communications without amending the
Regulation is not disputed, however, it is argued by learned
Additional Solicitor General that the eligibility criteria even if
introduced without amending Regulation, till the decision to do so,
cannot be said to be arbitrary or discriminatory in any manner as
the UOI has taken such decision considering the nature of the
courses and more so, considering that the students after obtaining
such degree would be assigned to treat human beings and
therefore, the standard and quality could not be compromised at
any cost.
(iii)- The judgment passed by the Patna High Court would not in
any manner come in the way in examining the issue in question by
this Court and therefore, the observation / finding given by the
Patna High Court, which is only having persuasive value, would
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not in any manner come in the way for this Court to re-examine
the issue.
(iv)- As far as the judgment rendered by the Apex Court is
concerned, the same was issued while exercising power under
Article 142 of the Constitution of India and does not elaborately
deal with the issue as raised in the present writ petitions and
therefore, the petitioners cannot get any support from the
judgment passed by the Apex Court.
(v) It is also argued that the issue with regard to the
requirement of NEET qualification while giving admission is
pending consideration before the Hon'ble Apex Court.
The Apex Court is seized of the matter and would be
considering as to whether the NEET qualification could be
mandated and this being the precise question in the present writ
petitions, it would be appropriate to defer the present hearing till
the issue is finally decided by the Apex Court. It is prayed in the
alternate, the present writ petitions being devoid of merit, be
dismissed.
18. Heard learned counsel for the parties on the main writ
petitions and perused the material available on record.
19. Learned counsel appearing on behalf of NCH so also learned
ASG have fairly conceded that the issue which is pending
before the Apex Court is with regard to amended regulation and
deals with the admissions, which were given after academic year
2018-19.
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19.1 In view of the above, as far as the controversy, which is said
to be pending before the Apex Court is concerned, that is
undisputedly with regard to the amended regulation and as such,
pendency of such SLP before the Apex Court does not, in any
manner, come in the way for deciding the present writ petitions,
wherein the admissions are prior to the amendment in the
Regulation i.e. academic year 2018-19.
19.2 The judgment passed by the Patna High Court, wherein one
of the impugned communications dated 12.02.2018 has been
quashed and set-aside, has attained finality as no subsequent
challenge has been given to it and as such, the impugned
communication dated 12.02.2018 already stands quashed. The
Patna High Court has also observed that without amending the
relevant Regulations, such eligibility criteria could not have been
amended by executive instructions.
The judgment passed by the Patna High Court may be only
having persuasive value while dealing the present writ petitions,
but this Court cannot ignore the fact that one of the impugned
communications challenged in the present writ petitions has
already been quashed and set-aside. It is pointed out by learned
counsel for the petitioners that the order passed by the learned
Single Judge of Patna High Court has attained finality as no
subsequent challenge has been made. This fact is not disputed by
learned counsel appearing on behalf of UOI and for NCH and that
being so, the finding given by the Patna High Court so also the
conclusion cannot be overlooked.
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19.3 The Apex Court, while dealing with the similar controversy,
has allowed the students therein to pursue their courses despite
noting the fact that they were not NEET qualified and has further
observed that withholding the results so also degree of such
students would cause them hardship.
19.4 In the present bunch of petitions, the petitioner-Colleges
are before this Court challenging the decision of UOI to mandate
NEET score and AIPGET score as an eligibility criteria to admit
candidates in AYUSH undergraduate courses and postgraduate
courses, respectively, more specifically BAMS, BHMS and M.D.
(Hom.) courses. It is pertinent to note here that this Court is not
examining the validity of introduction of NEET/AIPGET, rather the
only concern is with regard to the competence of the UOI in
issuing the impugned communications. In other words, this Court
has to examine whether the UOI had the authority/power to issue
such direction to the State authorities to mandatorily admit
candidates upon qualifying NEET/AIPGET, as the case may be.
That being so, the contentions of learned ASG substantiating the
introduction of NEET do not carry much weight to adjudicate the
issue in the present writ petitions.
20. Before considering the competency of UOI in issuing the
impugned communications, it would be appropriate to refer the
judgment passed by the Apex court in the case of Pharmacy
Council of India vs. Rajeev College of Pharmacy & Ors.,
reported in AIR 2022 SC 4321, paras 7, 9, 34, 37, 41, 42, 43,
48, 55, 56 & 57 are reproduced as under :-
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"7. Shri Maninder Singh, learned Senior Counsel submits that
the decision was taken by the Appellant-PCI after a subcommittee
of experts was appointed to study the issue. It is submitted that
after the sub-committee recommended moratorium in view of
mushrooming growth of pharmacy colleges, the Central Council
of the Appellant-PCI, after taking into consideration all these
aspects, recommended a moratorium. He submits that this was
done in order to prevent a situation which would lead to
uncontrolled growth of pharmacy colleges, resultantly producing
many pharmacists, who will be without any employment. It is
submitted that these factors have not been taken into
consideration by the High Courts in the impugned judgments.
9. Shri Maninder Singh further submitted that the power to
regulate would also include a power to prohibit. He relies on the
judgments of this Court in the case of Madhya Bharat Cotton
Association Ltd. v. Union of India and Anr. : AIR 1954 SC 634 and
in the case of Star India Private Limited v. Department of
Industrial Policy and Promotion and Ors. : (2019) 2 SCC 104 in
this regard.
34. It will be relevant to refer to the following observations of
the Constitution Bench, consisting of 11 Judges, of this Court in
the case of T.M.A. Pai Foundation (supra):
"18. With regard to the establishment of educational
institutions, three articles of the Constitution come into
play. Article 19(1)(g) gives the right to all the citizens to
practise any profession or to carry on any occupation,
trade or business; this right is subject to restrictions that
may be placed Under Article 19(6). Article 26 gives the
right to every religious denomination to establish and
maintain an institution for religious purposes, which
would include an educational institution. Article 19(1)
(g) and Article 26, therefore, confer rights on all citizens
and religious denominations to establish and maintain
educational institutions...."
37. It could thus be seen that the Constitution Bench in Islamic
Academy of Education (supra) holds that the State would be
entitled to impose restrictions and make Regulations both in terms
of Article 19(1)(g) and Article 30 of the Constitution of India for
maintaining excellence in the standard of education. It has been
held that regulatory measures are necessary for ensuring orderly,
efficient and sound administration.
41. It is thus clear that though there is a fundamental right to
establish educational institutions, the same can be subject to
reasonable restrictions, which are found necessary in the general
public interest. However, the question that requires to be answered
is as to whether the same can be done by executive instructions or
not.
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42. The question is directly answered by this Court in the case of
State of Bihar and Ors. v. Project Uchcha Vidya, Sikshak Sangh
and Ors. : (2006) 2 SCC 545 in paragraph 69, which reads thus:
"69. The right to manage an institution is also a right to
property. In view of a decision of an eleven-Judge Bench
of this Court in T.M.A. Pai Foundation v. State of
Karnataka [(2002) 8 SCC 481] establishment and
management of an educational institution has been held
to be a part of fundamental right being a right of
occupation as envisaged Under Article 19(1)(g) of the
Constitution. A citizen cannot be deprived of the said
right except in accordance with law. The requirement of
law for the purpose of Clause (6) of Article 19 of the
Constitution can by no stretch of imagination be
achieved by issuing a circular or a policy decision in
terms of Article 162 of the Constitution or otherwise.
Such a law, it is trite, must be one enacted by the
legislature."
[emphasis supplied]
43. It could thus be seen that this Court has categorically held
that a citizen cannot be deprived of the said right except in
accordance with law. It has further been held that the requirement
of law for the purpose of Clause (6) of Article 19 of the
Constitution can by no stretch of imagination be achieved by
issuing a circular or a policy decision in terms of Article 162 of
the Constitution or otherwise. It has been held that such a law
must be one enacted by the legislature.
48. It could thus be seen that the Constitution Bench holds that
even an Executive cannot do something to infringe the rights of
the citizens by an executive action, though the State Legislature
has legislative competence to legislate on the subject.
55. Since we have held that the Resolutions/communications
dated 17th July 2019 and 9th September 2019 of the Central
Council of the Appellant-PCI, which are in the nature of executive
instructions, could not impose restrictions on the fundamental
right to establish educational institutions Under Article 19(1)(g)
of the Constitution of India, we do not find it necessary to consider
the submissions advanced on other issues. We find that the
Resolutions/communications dated 17th July 2019 and 9th
September 2019 of the Central Council of the Appellant-PCI are
liable to be struck down on this short ground.
56. Before parting, we may observe that there could indeed be a
necessity to impose certain restrictions so as to prevent
mushrooming growth of pharmacy colleges. Such restrictions may
be in the larger general public interest. However, if that has to be
done, it has to be done strictly in accordance with law. If and
when such restrictions are imposed by an Authority competent to
do so, the validity of the same can always be scrutinized on the
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touchstone of law. We, therefore, refrain from considering the rival
submissions made on that behalf.
57. It is further to be noted that the applications seeking
approval for D. Pharm and B. Pharm courses are required to be
accompanied by a "No Objection Certificate" ("NOC") from the
State Government and consent of affiliation from the affiliating
bodies. While scrutinizing such applications, the Council can
always take into consideration various factors before deciding to
allow or reject such applications. Merely because an institution
has a right to establish an educational institution does not mean
that such an application has to be allowed. In a particular area, if
there are more than sufficient number of institutions already
existing, the Central Council can always take into consideration
as to whether it is necessary or not to increase the number of
institutions in such an area. However, a blanket prohibition on the
establishment of pharmacy colleges cannot be imposed by an
executive resolution."
21. The issue in the present case is quite similar to the issue
which was under consideration in the case of Pharmacy Council
of India (supra). What has been observed by Apex Court is that
by executive instructions the fundamental right cannot be taken
away. If at all any condition is to be introduced or imposed it has
to be through appropriate legislation. In the present case too, the
UOI by executive instruction seeks to introduce an eligibility
criteria without amending the Regulations which are statutory in
nature. That being so, the UOI could not have introduced new
eligibility criteria for giving admission to BAMS, BHMS and M.D.
(Hom.) course by introducing NEET/AIPGET qualification as
mandatory requirement for taking admission.
22. So far as submission made by learned ASG with regard to
the maintenance of standard of education is concerned, this Court
agrees with the contention that the graduates of AYUSH courses
would treat human beings thereby requiring maintenance of high
standard and quality of education. However, simultaneously, it is
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pertinent to note that the students who have been admitted
without qualifying NEET/AIPGET have pursued the same course as
those candidates who qualified NEET/AIPGET and have graduated
with the same degree as those who were admitted upon qualifying
NEET/AIPGET. Thus, the factum of them studying the prescribed
curriculum and obtaining the requisite degrees, cannot be denied.
Hence, the argument raised by the learned ASG raising concern
over quality of education of graduates without qualifying NEET, at
this stage, is not tenable.
22.1 It is further noted that the petitioner-Colleges proceeded to
admit students for the respective courses after interim orders
were passed by this Court in respective writ petitions. True it is
that the admissions remained subject to outcome of the writ
petitions, however, much water has flown since then. Thus, for the
said reason too, the contention of learned ASG does not hold good
so also considering the fact, as mentioned in preceding paras, this
Court is not delving into the validity of introduction of NEET
criteria rather is only concerned with the mode through which the
same has been introduced by the UOI vide the impugned
communications.
23. So far as the order of the Apex Court, cited by the learned
counsel for the petitioners is concerned, therein the result of the
students was not declared and the same was ordered to be
declared by the Hon'ble Supreme Court in the case of Ebtesham
Khatoon (supra) vide order dated 12.02.2025. However, in the
present case, the students were admitted after interim orders
been passed by this Court and they obtained their degrees upon
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completion of their course. It has also been submitted by learned
counsel for the petitioners that the students have also indeed
completed their mandatory internship post the graduation. Thus,
the case of the students herein is at better footing than those
present before the Hon'ble Supreme Court. Be that as it may,
herein the Court is only concerned with the impugned
communications issued by the UOI addressed to all the State
Authorities whereby it has been directed that only NEET/AIPGET
qualified candidates be admitted in the respective courses.
24. Learned counsel appearing for UOI has, as noted in the
preceding paras, not filed reply to the writ petition, thus, this
Court has considered the oral submissions made during the course
of arguments. While attempting to substantiate the competence of
the UOI in issuing the impugned communications, the sole
contention raised is that the UOI is competent to do so in order to
maintain quality of doctors who would treat human beings. It has
nowhere been reflected as to whether such authority is derived
through any legislation or guidelines, interestingly, action is said
to be justified being non-arbitrary and non-discriminatory.
24.1 It is pertinent to note that amended regulations have been
brought into force in the year 2019 which is after the academic
year which is the bone of contention in the present matter.
Meaning thereby, prior to 2019, attempt was made vide impugned
communications to introduce NEET/AIPGET as a mandatory
criteria. It is further noted that the amended regulations, as
conceded by learned counsel for UOI, have been challenged and
the issue is pending consideration before the Apex Court. Thus, it
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can be fairly inferred that UOI too realised the necessity to amend
the regulations to enforce a pan India common entrance test.
24.2 This Court is of the opinion that the action of UOI in passing
the impugned communications is without any legislative backing
and through an executive / administrative order, it has tried to
bring in a change in admissions process in wide arena of
educational institutes without amending the relevant Regulations.
It has been held by the Apex Court in catena of judgments that
executive action cannot override or introduce changes which are
embodied in statutory legislation surpassing the procedure of
amendment. A similar view has also been taken in the above-
quoted judgment in the case of Pharmacy Council of India
(supra).
25. Considering the precedent law discussed above so also the
discussion made by the Patna High Court, this Court is of the firm
opinion that the UOI had no jurisdiction and authority to have
amended the eligibility criteria by introducing NEET/AIPGET
qualification as mandatory requirement for the purpose of giving
admission without amending the relevant regulation.
26. Resultantly, the writ petitions are allowed. The impugned
communications dated 23.01.2017, 26.04.2017, 12.02.2018,
21.02.2018, 14.05.2018, 05.06.2018, 11.06.2018 and 15.06.2018
issued by the Government of India, Ministry of AYUSH addressed
to all the State Authorities intimating that admissions in AYUSH
undergraduate courses are to be given based on the merit list of
NEET only from the academic year 2018-2019 so also
communication dated 21.09.2018 sent by Government of India,
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Ministry of AYUSH to all State Authorities whereby the qualification
of AIPGET 2018 was mandated to participate in AYUSH PG Courses
for the academic year 2018-2019, are quashed and set-aside qua
the petitioners, with all consequential benefits to follow.
27. Pending application(s), if any, stand(s) disposed of.
(SUNIL BENIWAL),J
Rmathur/-
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