Union Of India vs Federation Of Self Financed … on 20 February, 2020


Supreme Court of India

Union Of India vs Federation Of Self Financed … on 20 February, 2020

Author: L. Nageswara Rao

Bench: L. Nageswara Rao, R. Subhash Reddy

                                               Non-Reportable

        IN THE SUPREME COURT OF INDIA
         CIVIL APPELLATE JURISDICTION

               Civil Appeal No.603 of 2020
         (Arising out of SLP (C) No.26267 of 2019)

UNION OF INDIA
                                            .... Appellant(s)
                           Versus


FEDERATION OF SELF-FINANCED AYURVEDIC COLLEGES
PUNJAB & ORS.
                                  …. Respondent (s)
                        With
               Civil Appeal No. 589 of 2020
        (Arising out of SLP (C) No. 25464 of 2019)

                 W.P.(C) No. 1395 of 2019

                 W.P.(C) No. 1461 of 2019

               Civil Appeal No.602 of 2020
       (Arising out of SLP (C) No. 29172 of 2019)

               Civil Appeal No. 605 of 2020
        (Arising out of SLP (C) No.29792 of 2019)

              Civil Appeal No.606 of 2020
  (@ SLP (C) No.2493 of 2020 @ Diary No(s). 18 of 2020

               Civil Appeal No. 607 of 2020
          (Arising out of SLP (C) No. 29 of 2020)

               Civil Appeal No.608 of 2020
  (@ SLP (C) No.2494 of 2020 @ Diary No(s). 356 of 2020

               Civil Appeal No. 604 of 2020
        (Arising out of SLP (C) No.26724 of 2019)




                                                         1 | Page
                Civil Appeal No. 609 of 2020
          (Arising out of SLP (C) No. 518 of 2020)

                Civil Appeal No. 610 of 2020
          (Arising out of SLP (C) No.1155 of 2020)



                     JUDGMENT

L. NAGESWARA RAO, J.

1. The validity of the Notifications issued by the Central

Council of Indian Medicine (hereinafter referred to as, ‘ the

Central Council’) and Central Council of Homeopathy

prescribing an all-India National Eligibility cum Entrance

Test (for short, ‘NEET’) for admission to Under Graduate

courses (BAMS, BUMS, BSMS and BHMS) and minimum

qualifying marks in the said examination, arise in the

above Appeals and Writ Petitions. These notifications shall

apply to admissions for AYUSH Under Graduate courses

from the academic year 2019-2020. Similarly, validity of

the Notification introducing the AYUSH Post Graduate

Entrance Test (AIA-PGET) for admissions to Post Graduate

courses (MD-Ayurveda) and prescribing minimum

qualifying marks also arises in the above appeals.

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2. The Ministry of Ayurveda, Yoga & Naturopathy, Unani,

Siddha, Sowa Rigpa and Homoeopathy (for short, ‘ AYUSH’),

instructed all the State Governments, Union Territories and

the Universities concerned to admit students in AYUSH

Under Graduate courses for the academic year 2018-2019

only on the basis of merit list of the NEET, conducted by

the Central Board of Secondary Education (CBSE) in

accordance with the existing rules and reservation policies

of the concerned State Governments. A minimum

qualifying mark for eligibility to admissions in the Under

Graduate courses was prescribed at 50 th percentile. The

minimum marks for the Scheduled Castes and Schedules

Tribes and Other Backward Classes was prescribed at 40 th

percentile. The percentile shall be determined on the basis

of marks secured in the all India Common merit list in

NEET. Thereafter, by a notification dated 07.12.2018, the

Central Council introduced the Indian Medicine Central

Council (Minimum Standards of Education in Indian

Medicine) Amendment Regulations, 2018 (hereinafter

referred to as, ‘the 2018 Regulations). The Indian

Medicine Central Council (Minimum Standards of Education

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in Indian Medicine) Regulations, 1986 were amended by

the 2018 Regulations. Regulation 2 (d) of the 2018

Regulations provides that there shall be a uniform

entrance examination for all medical institutions, namely

the National Eligibility Entrance Test (NEET) for admission

to under-graduate courses in each academic year and that

the NEET examination shall be conducted by an authority

designated by the Central Government. The minimum

eligibility mark for admission to Under Graduate courses

has been prescribed at 50th percentile for General category

candidates and 40th percentile for Scheduled Castes and

Schedules Tribes and Other Backward Class candidates.

The Indian Medicine Central Council (Post Graduate

Ayurvedic Education) Amendment Regulations, 2018 were

issued making amendments to the Indian Medicine Central

Council (Post Graduate Ayurvedic Education) Regulations,

2016. An all India entrance examination (AIA-PGET), on

the lines of the examination prescribed for the Under

Graduate courses, was introduced by the said regulations

for Post Graduate courses.

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3. The Guru Ravidas Ayurved University, Hoshiarpur,

Punjab issued a prospectus on 31.07.2019 for admission to

BAMS, BHMS and BUMS courses prescribing minimum

marks in NEET and the criteria for admission to Under

Graduate courses. In Civil Writ Petition No.23710 of 2019

filed by the managements of AYUSH colleges, the High

Court of Punjab and Haryana passed an interim order on

06.09.2019 permitting admission of students to Under

Graduate courses (BAMS, BHMS and BUMS) without

insisting on the students getting the minimum requisite

percentile in the NEET. Similar orders were passed by the

High Court of Punjab and Haryana in other Writ Petitions.

All the Writ Petitions filed by the Ayurvedic and

Homeopathic colleges were dismissed by the High Court of

Punjab and Haryana by its judgment dated 18.12.2019.

Aggrieved by the said judgment, the Colleges as well as

the students filed these Special Leave Petitions before us.

There are other SLPs filed by the students seeking

admission to Under Graduate courses (BAMS, BUMS and

BHMS) for the academic year 2019-2020. Admission were

granted to students in the Institutions on the basis of the

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interim orders of the High Court without insisting on the

eligibility criterion fixed by the 2018 Regulations i.e.

securing minimum marks in NEET. The Central Council

has also filed some SLPs, aggrieved by the interim orders

passed by the High Courts permitting admission of

students without insisting on the NEET eligibility in Under

Graduate as well as Post Graduate courses.

4. As stated above, the point that arises for our

consideration is whether the students seeking admissions

to Under Graduate courses (BAMS, BUMS, BSMS and

BHMS) and Post Graduate courses can be denied

admission on the ground that they did not take the NEET

or that they did not get the minimum percentile prescribed

by the 2018 Regulations. It would be convenient to refer

to the facts in SLP (C) No.29 of 2020 which has been filed

against the judgment of the High Court of Punjab and

Haryana dated 18.12.2019 in Civil Writ Petition No.23710

of 2019 (O&M), as the lead matter.

5. In the High Court, it was contended on behalf of the

Institutions which filed the Writ Petitions that the 2018

Regulations are ultra vires the Indian Medicine Central

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Council Act, 1970 (hereinafter referred to as, ‘the Act’). It

was argued that introduction of an all India examination in

the form of NEET is beyond the regulation making

authority of the Central Council under Section 36 of the

Act. Reliance was placed by the Writ Petitioners on the

fact that the NEET examination was introduced for the

MBBS and BDS courses only after amending the provisions

of the Indian Medical Council Act, 1956 and Dentists Act,

1948 respectively. Reference was made to the

amendments carried out to Section 10 and Section 33 of

the Act and introduction of Section 10-A in both the

aforementioned Acts. It was contended that without

conducting a similar exercise of amending the provisions of

the Act empowering the Central Council to make

regulations governing entrance examinations, the Central

Council hastily made the 2018 Regulations. The High

Court dismissed the Writ Petitions by rejecting the

contentions raised on behalf of the Institutions by holding

that the impugned Regulations dated 07.12.2018 were well

within the powers conferred on the Central Council by the

Act. The admissions made to the Under Graduate courses

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for the academic year 2019-2020 to students without NEET

eligibility were found to be unsustainable as they were

contrary to the 2018 Regulations. The High Court held that

the students cannot claim any equity because the interim

orders on the basis of which admissions were given to the

students stipulated that their admissions would be subject

to the final result of the Writ Petitions.

6. It was contended on behalf of the Institutions and the

students that the 2018 Regulations are ultra vires the Act.

No power is conferred on the Central Council to make

Regulations for introduction of an all India entrance

examination under Section 36 of the Act. Assuming that

the Regulations were made under the general rule making

power, the submission on behalf of the Institutions and the

students was that the 2018 Regulations are not in

conformity with “purposes of the Act” under Section 36 (1)

of the Act. In support of the submissions, reference was

made to the amendments that were carried out to the

Indian Medicine Council Act, 1956 and the Dentist Act,

1948 before making Regulations by which the all India

examinations for admission to Under Graduate and Post

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Graduate courses were introduced. The further submission

of the students and the Institutions was that NEET is not

structured for Ayurvedic courses as the syllabi for AYUSH

courses is completely different from syllabi for MBBS or

BDS courses.

7. Per contra, Ms. Pinky Anand, the learned Additional

Solicitor General appearing for the Central Council

submitted that the 2018 Regulations are perfectly valid

having been made in the valid exercise of the power

conferred on the Central Council under Section 36 of the

Act. Ms. Anand submitted that Section 22 of the Act

pertaining to the minimum standards of education in

Indian Medicine includes the power to conduct entrance

examination for admission to the Under Graduate courses.

According to Ms. Anand, the Central Council is not denuded

of the power to make Regulations as Section 36 of the Act

enables the Council to make Regulations generally to carry

out the purposes of the Act. She urged that the minimum

qualifying percentile fixed for admission to the Under

Graduate courses (BAMS, BSMS, BUMS and BHMS) is

required to be maintained in order to ensure minimum

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standards of education. She contended that general

standards for admission to professional courses are fixed

on the basis of a detailed study and the correctness of

such decision is beyond the ken of this Court.

8. It is relevant to refer to the provisions of the Indian

Medicine Central Council Act, 1970. Section 22 of the Act

confers power on the Central Council to prescribe

minimum standards of education in Indian medicine which

are required for granting recognised medical qualifications

by Universities, Boards or medical institutions in India.

Section 36 provides that the Central Council may, with the

previous sanction of the Central Governments make

regulations generally to carry out the purposes of the Act.

Section 36 (i), (j), (k) and (p) are as follows:

“(i) the courses and period of study and of practical
training to be undertaken, the subjects of examination
and the standards of proficiency therein to be obtained,
in any University, Board or Medical Institutions for grant
of recognised medical qualifications;

(j) the standards of staff, equipment, accommodation,
training and other facilities for education in Indian
Medicine;

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(k) the conduct of professional examinations,
qualifications of examiners and the conditions of
admissions to such examinations;

(p) any matter for which under this Act provision may
be made by regulations.”

9. We are in agreement with the contention made on

behalf of the students and the Institutions that introduction

of an all India examination will not be covered by Section

36 (i), (j) and (k) of the Act. However, Section 36 (p) refers

to any matter under the Act for which provision may be

made by the Regulations. In our considered opinion,

Section 22 which deals with the minimum standards of

education in Indian Medicine, covers the topic of an all

India common entrance examination. We are supported in

this view by a judgment of this Court in Veterinary

Council of India v. Indian Council of Agricultural

Research1. Section 22 of the Veterinary Council of India

Act is in pari materia with Section 22 of the Indian Council

of Medicine Act. An all India common entrance

examination was introduced by Regulations made by the

Veterinary Council of India in 1993 and an examination

was conducted pursuant thereto from the academic year

1 (2000) 1 SCC 750

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1995-1996. The dispute pertaining to the validity of the

Regulations was resolved by this Court by holding that the

Veterinary Council of India is authorized to frame

regulations prescribing the standards of veterinary

education and such power includes power to make

Regulations relating to grant of admissions and veterinary

qualifications. This Court observed that such authority to

frame regulations regarding admissions is necessary for

maintaining the standards of education. The instant case

is squarely covered by the law laid down by this Court in

Veterinary Council of India (supra) therefore, we are of

the opinion that the 2018 Regulations cannot be said to be

ultra vires the Act.

10. The last date for admissions to the Under Graduate

courses for the academic year 2019-2020 was 15 th

October, 2019 and 31st October, 2019 for Post Graduate

courses. One of the contentions raised on behalf of the

Institutions and the students is that a large number of

seats in the first year Ayurvedic, Homeopathy and Unani

courses are not filled up. To illustrate, Mr. P.S. Patwalia,

learned Senior Counsel submitted that there are 540 seats

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available for admission to the first year BAMS course in

Guru Ravidas Ayurved University. Only 27 seats could be

filled up in the all India counselling held on 25.06.2019. In

the second counselling which was held on 24.07.2019, only

28 candidates were found eligible. After the State

counselling, 320 out of 540 seats remained vacant. On the

basis of interim orders passed by the High Court of Punjab

and Haryana, admissions were made without insisting on

NEET and in the process, 275 seats were filled.

11. Similar statements were made on behalf of the

Institutions and the students from the other States that

insistence on the minimum qualifying marks in the NEET

would render a large number of seats in the Under

Graduate courses for the academic year 2018-2019

vacant. A fervent plea was made by the learned counsel

appearing for the students that they may be permitted to

continue as they have already been admitted and they

would lose a precious year in case their admissions are

cancelled. In any event, the seats vacated by them

cannot be filled up.

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12. Prescribing a minimum percentile for admission to the

Under Graduate courses for the year 2019-2020 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 Under

Graduate 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 Under Graduate 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 th October, 2019.

The said direction is also applicable to students admitted

to Post Graduate courses before 31 st October, 2019. This

is a one-time exercise which is permitted in view of the

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peculiar circumstances. Therefore, this order shall not be

treated as a precedent.

13. The notification dated 14.12.2018 pertaining to the

Homeopathy courses is similar to that of the AYUSH

courses. It was contended on behalf of Homeopathy

colleges that the procedure prescribed in Section 20 (2) of

the Homeopathy Central Council Act, 1973 (for short,

‘1973 Act’) was not followed before the amendment was

carried out to the Regulations. In view of the paucity of

time, no response was filed by the Central Council of

Homeopathy or by the Union of India clarifying the factual

position pertaining to the non-compliance of the procedure

prescribed under the 1973 Act for making Regulations. In

view of the same, we are not in a position to decide the

issue raised by the Petitioners in Writ Petition (C) No.1461

of 2019. We leave it open to the Petitioners to raise these

issues before the High Court, if they deem it fit and proper.

It is not necessary to deal with various submissions

made by the Appellants in view of the order passed by

us permitting the students to continue their studies.

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14. For the afore mentioned observations, all the Appeals

and the Writ Petitions are disposed of.

……………………………..J.

[L. NAGESWARA RAO]

…………………………….J.
[DEEPAK GUPTA]
New Delhi,
February 20, 2020.

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