Association of Managements of Unaided Private Medical and Dental College vs Union of India

CIVIL APPEAL NO. 1393 of 2019 [ Arising out of S.L.P. (Civil) No. 766 of 2019 ]

Association of Managements of Homeopathic Medical Colleges of Maharashtra .... Appellant

Versus

Union of India & Ors. ….Respondents

WITH

CIVIL APPEAL NO. 1395 of 2019 [ Arising out of S.L.P. (Civil) No. 767 of 2019 ]

CIVIL APPEAL NO. 1394 of 2019 [ Arising out of S.L.P. (Civil) No. 158 of 2019 ]

JUDGMENT

L. NAGESWARA RAO, J.

Leave granted.

1. The Ministry of Ayurveda, Yoga and Naturopathy, Unani, Siddha,

Homoeopathy (AYUSH), Government of India by letters dated 12 th Signature Not Verified Digitally signed by VISHAL ANAND Date: 2019.02.01

February, 2018 and 5th June, 2018 instructed all the State Governments 15:55:30 IST Reason:

and the concerned universities to admit students in AYUSH under- 1 graduate courses on the basis of the in NEET merit list for the

academic year 2018-19. By a letter dated 11 th June, 2018, the

Government of India informed the State Governments that a candidate

seeking admission to AYUSH under-graduate courses shall obtain

minimum of marks at 50 th percentile in NEET. Pursuant thereto,

Respondent No.3 by a notice dated 15 th June, 2018 informed all the

candidates about the changed eligibility criteria, namely, the

introduction of the requirement of 50 th percentile for open category

and 40th percentile for reserved category. The Appellant-Association

filed a Writ Petition in the High Court of Judicature at Bombay

challenging the legality of the aforementioned letter dated 11 th June,

2018 of Respondent No.1 and notice dated 15 th June, 2018 of

Respondent No.3 which was dismissed. Aggrieved thereby, these

Appeals have been filed.

2. According to the Central Council of Homoeopathy (Degree

Course) B.H.M.S. Regulations, 1983, a candidate should have passed

the 10+2 or other equivalent examination after a period of 12 years’

study with the last two years of study comprising of Physics, Chemistry

and Biology for admission to 1 st year BHMS course. On 5th February,

2018, an information brochure was issued by Respondent No.3 for

NEET UG – 2018 for admission to Health Science courses i.e. MBBS/

2 BDS/ BAMS/ BHMS/ BUMS/ BPTh/ BOTh/ BASLP/ BP&O/ B.Sc. (Nursing)

in all Medical Educational Institutions in a State/ Union territory,

including Medical Educational Institutions established by the Central

Government, State Government, University, Deemed University, Trust,

Society/ Minority Institutions/ Corporations/ Corporations or a company.

The schedule for the entrance examination for admissions for the year

2018-19 was given in the information brochure. The entrance test was

scheduled to be conducted on 6th May, 2018 and the results were to be

declared by the first week of June, 2018. After the declaration of

results of NEET UG – 2018, a notice was issued on 6 th June, 2018 by

Respondent No.3 for online registration. In the meanwhile, the

eligibility criteria for admission to BHMS Degree Course was altered by

Respondent No.1 by a letter dated 11 th June, 2018 pursuant to which a

notice was issued by Respondent No.3. As per the changed criteria

in the letter dated 11th June, 2018, a candidate from the open

category will be eligible for admission only if he/she secured not less

than 50th percentile of the marks in NEET-2018. A candidate belonging

to the reserved category should secure not less than 40 th percentile of

the marks which shall be determined on the basis of highest marks

secured in the all India common merit list in NEET- 2018.

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3. The Appellant-Association made a representation to the

Respondent No.1 on 28th August, 2018 in which they stated that a large

number of seats will remain unfilled if the altered standards are strictly

followed. As there was no response from the Respondent, the

Appellant-Association filed a Writ Petition in the High Court of

Judicature at Bombay challenging the letter dated 11 th June, 2018 of

Respondent No.1 and the consequential notice of Respondent No.3.

The main contention of the Appellant in the Writ Petition was that the

altered standards for admission introduced by letter dated 11 th June,

2018 should not be applied to the ongoing admission process and that

the admissions for the year 2018-19 should be conducted in

accordance with the information brochure which was issued on 5 th

February, 2018. The Appellant-Association was not aggrieved by the

introduction of the NEET examination for admission into the BHMS

course. The only submission made on behalf of the Appellant was that

the percentile method should not have been prescribed after the

commencement of the admission process. The High Court rejected the

said submission by holding that the student community was aware

about the criterion fixed for the admissions on 11 th June, 2018 before

the online process started much before the last date of registration on

17th June, 2018. As the selection is on the basis of merit, according to

4 the High Court, introduction of minimum percentile cannot be said to

be unjustified. The point urged on behalf of the Appellant that the

relevant regulations have been altered or modified by an executive fiat

was also rejected by the High Court.

4. Mr. K.V. Vishwanathan, learned Senior Counsel appearing for the

Appellant-Management and Mr. Guru Krishna Kumar, learned Senior

Counsel appearing for the students submitted that the grievance is

regarding the introduction of the percentile method in June, 2018 in

the midst of the admission process thereby making a large number of

candidates ineligible for admission to the BHMS course. Such

introduction of the percentile method resulted in a number of seats

remaining vacant for the academic session 2018-19. They have

referred to several orders passed by the various High Courts permitting

admission of candidates on the basis of the marks obtained in the

qualifying examinations without taking into account the result of NEET

UG-2018. It was further submitted that it is to nobody’s benefit that a

large number of seats remain unfilled for this academic session. On the

other hand, several aspiring students would be deprived of an

opportunity for admission to the 1 st year BHMS course. Ms. Pinky

Anand, learned Additional Solicitor General appearing for the

Respondent No.1, supported the judgment of the High Court stating

5 that the last date for admission to the AYUSH undergraduate courses

was 15th November, 2018 and no relief can be granted to the

Appellants. She supported the policy decision of the Respondents on

the basis of which the minimum percentile was stipulated for

admission to the 1st year BHMS course. She submitted that the

minimum of 50th percentile in NEET was revised to 35th percentile on

the basis of the representation made on behalf of the Appellants that

several seats would remain unfilled. She further stated that any

further reduction in the minimum percentile would adversely affect the

standards of education. Mr. Katneshwarkar, learned counsel appearing

for Respondent No.2, and Mr. Vinay Navare, learned counsel appearing

for Respondent No.3, supported the learned Additional Solicitor

General. They contended that the colleges should not be permitted to

make admissions as the last date for admissions had expired long back

on 15th November, 2018. Mr. Navare submitted that the students will

not be able to complete the minimum number of working days.

5. We have perused the judgments and orders passed by the High

Courts of Patna1, Karnataka2, Madras3, Rajasthan4, Punjab & Haryana5,

1 CWJC No. 2018 dated 10.10.2018 2 WP Nos. 41486-534/2018, WP Nos. 43286-287/2018 & WP Nos. 43304-308/ 2018 dated 11.10.2018 3 WP No.27006/2018, WMP Nos. 31410, 31417 and 31419/ 2018 dated 22.10.2018 4 S.B. Civil Writ No.16430/2018 dated 24.10.2018 5 CWP No.22482/2018, CM-15991-CWP-2018, CM-15992-CWP-2018, CM-16065-CWP-2018 & CM- 16066-CWP-2018 dated 26.10.2018

6 Allahabad6 and Kolkata.7 Directions were issued in favour of the

students permitting admissions on the basis of the marks in the

qualifying examination without reference to the marks secured by

them in the NEET UG-2018 examination. The learned Additional

Solicitor General fairly submitted that none of the judgments or orders

passed by the High Courts have been challenged.

6. Though the last date for admission to the BHMS course was 15 th

November, 2018, we are informed that the last date was extended till

20th December, 2018 by the Allahabad High Court. Though there is no

agreement on the exact number of vacant seats, it is common ground

that there are vacant seats for admission to the 1 st year BHMS course

in the State of Maharashtra. As there is no uniformity in the matter of

admission to the 1st year BHMS course for the year 2018-19, as

securing minimum marks in NEET is not required in some States

pursuant to orders of the High Courts, we are of the opinion that the

Appellants are entitled to the relief of admissions being made without

reference to the letter dated 11th June, 2018 of Respondent No.1 and

the consequential notice of Respondent No.3. In other words, the

Appellant-Association should be permitted to make admissions to the 6 MISC. Single Nos .18464/2018, 17541/2018, 18747/2018, 31305/2018, 31306/2018, 31308/2018, 31309/2018, 31310/2018, 31311/2018, 31312/2018, 31313/2018, 31314/2018, 31315/2018, 31316/2018, 31317/2018, 31318/2018, 31319/2018, 31320/2018, 31321/2018, 31322/2018, 31323/2018, 31324/2018, 31727/2018, 31733/2018, 31741/2018, 31749/2018, 31753/2018, 31757/2018, 31761/2018, 31901/2018, 31973/2018 & 32653/2018 dated 15.11.2018. 7 WP 22539(W)/ 2018 & WP 22542 (W) 2018 dated 05.12.2018

7 1st year BHMS course for the academic session 2018-19 on the basis of

the eligibility criteria mentioned in the information brochure dated 5 th

February, 2018. A candidate who has secured minimum marks in the

NEET UG-2018 shall be eligible for admission to the 1 st year BHMS

course for the academic year 2018-19.

7. As two months have passed after the last date of admission to the

1st year BHMS course i.e. 15th November, 2018, we direct the

Appellants to complete the process of admissions strictly on the basis

of the merit by 15th February, 2019. The Managements of the colleges

are directed to hold extra classes for students who will be admitted

pursuant to this order to comply with the requirements of minimum

working days. This order which is passed in the peculiar facts of the

case shall not be treated as a precedent. No opinion is expressed by

us regarding the introduction of the minimum percentile as an

eligibility criteria in the NEET examination.

8. Appeals are disposed of accordingly.

CIVIL APPEAL NO.______________ of 2019 [ Arising out of S.L.P. (Civil) No. 158 of 2019 ]

Leave granted.

8 Ms. Pinky Anand, learned Additional Solicitor General for the

Respondent No.1, pointed out that the Ayurvedic medical colleges

stand on a different footing in comparison to the Homoeopathy

medical colleges. We have carefully examined the material on record

and we are convinced that the issue in this Appeal is the same as that

of Homoeopathy colleges, namely, the introduction of minimum

percentile in the NEET for admission to the UG courses for the year

2018-19. Therefore, this Appeal is disposed of in terms of the

judgment in Civil Appeals @ SLP (C) Nos. 766 and 767 of 2019.

..................................J. [L. NAGESWARA RAO]

..................................J. [M.R. SHAH]

New Delhi, February 1, 2019.

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