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Supreme Court of India
Union Of India vs Federation Of Self Financed … on 20 February, 2020Author: 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)
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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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