1. The petitioner ‘Federation’ has filed this interlocutory application with a prayer to make further ‘interim order’ in terms of para 6 to 8 of the order dated 11.10.2018 passed by this Court, taking note of the changes in the time schedule specified by the authorities.
2. Para 6 to 8 of the order dated 11.10.2018 reads as follows:
“6. Since in the instant facts, we have stated that the process of admission at the first instance has to be completed through the NEET process, the only consideration herein by way of interim direction is with regard to the seats that may remain vacant after all NEET qualified candidates have made their choices and if any further NEET qualified candidates are not available due to the confusion in the process. In that view since we have already taken note of the fact that the KEA has completed the counseling process in respect of the 40% of the seats to which they were required to make the admissions, even in respect of the unfilled seats in such quota and to the seats which are to be filled by the Management, since the admissions are to be made initially from the NEET qualified candidates and at this stage in order to ensure that if any other candidates on the All India basis who have appeared for the NEET examination are available, we direct the respondent No. 4 State Government to issue a paper publication on or before 15.10.2018 calling upon all NEET qualified candidates seeking admission for AYUSH courses to either approach the KEA and in respect of the seats which are to be filled by the respective colleges providing for AYUSH courses to approach the colleges before 25.10.2018. If during such period, the NEET qualified candidates make such applications at the outset they shall be considered on their order of merit for the seats which are available under all the categories to complete the admission. After the said process, if there are no NEET qualified candidates and the seats under the different quota remain vacant and subsequent thereto if the candidates who had not appeared for the NEET examination, but have the minimum qualification to undergo the AYUSH course as provided, approach the colleges, the list of such candidates shall be prepared and on the order of their merit the admission shall be made thereafter. The list thereof shall be prepared by each of the colleges in respect of all categories and be dispatched to the University and KEA. As to whether such candidates possess the qualification would be taken note by the University and KEA. Such of those candidates would also be intimated that their admissions are being made in view of the absence of the NEET qualifying candidates and would ultimately remain subject to the result of these petitions. In any event, all admissions shall be completed before 31.10.2018 i.e., the last date that has been fixed. It is made clear that if any NEET qualified candidates approach any of the colleges before the last date for closure of the admissions they would be preferred over the candidates who have not appeared for the NEET examination notwithstanding that they have approached after 25.10.2018 and in such event if it is found that no seat is available, the last of the non-NEET candidates having the least merit shall be deleted. It is made clear that even if the NEET appeared candidate has lesser merit in the NEET examination as well as the qualifying examination, such candidate shall be preferred over non-NEET despite higher marks in the qualifying examination.”
7. It is further made clear that the process as indicated above would be applicable only to such of those petitioners ‘institutions’ who are otherwise qualified to make the admissions by possessing requisite infrastructure and if the competent authorities have taken any action against any of the colleges and restrained any of the colleges from making admissions for the present academic year, such of those colleges shall not make admission taking benefit of this order.
8. Needless to mention, if any of the colleges against whom action has been initiated has secured any interim orders in their petition due to which admissions are permissible such of those admissions would ultimately remain for consideration in the appropriate petitions wherein such interim orders are granted as well as these petitions.
3. Sri Madhusudhan. R. Naik, learned Senior Counsel, appearing for the petitioner ‘Federation submits that the contentions raised by the Federation in the writ petition’ that the Union of India has no authority to direct admission in private un-aided institutions imparting courses in Bachelor of Ayurvedic Medicine and Surgery Courses (BAMS), Bachelor of Homeopathic Medicine and Surgery Courses (BHMS) and other streams of AYUSH Courses on the basis of the National Eligibility-cum-Entrance Test (NEET) continues to survive for the academic year 2019-20. Drawing the attention of this Court to the fact that in the on-going counselling for the academic year 2019-20, major portion of the seats in several of the institutions in the State remains unfilled. It is in this background that the instant application is filed by the Federation.
4. Smt. Birdy Aiyappa, learned Central Government Counsel appearing for the respondent - Union of India vehemently opposes the application. The learned counsel submits that the legal position as it stood when an interim order was passed by this Court on 11.10.2018 does not remain the same. While drawing the attention of this Court to the amendment brought about in the Indian Medicine Central Council (Minimum Standards of Education in Indian Medicine) Amendment Regulations, 2019, notified on 07.12.2018, it is submitted that the amended Regulation 2(d)(i) provides that there shall be a uniform entrance examination for all medical institutions at the under graduate level, the National Eligibility-cum-Entrance Test (NEET) for admission to undergraduate course in each academic year and shall be conducted by an authority designated by the Central Government. It is further submitted that the cause of action for the instant application cannot be clubbed with the present writ petitions which were filed in the year 2018, when the grounds urged was in the context of there being no such requirement under the Regulations, to hold NEET examinations for the Indian Medicine Courses, popularly known as “AYUSH”. Moreover, it is submitted that the counselling for the academic year 2019-20 has been successfully held and students who appeared in NEET examination have been admitted to all institutions. It is further submitted that if an interim order is granted, several of the institutions which do not have the required infrastructure may take advantage and put the students at risk.
5. Smt. Manasi Kumar, learned counsel appearing for the Central Council of Indian Medicine, draws the attention of this Court to the 2 proviso of Regulation 2(d)(i) and submits that a provision has been made in the Regulations to meet the exigency where sufficient number of students in the respective category failed to secure minimum marks in the NEET, the Central Government in consultation with the Central Council may at its discretion lower the minimum marks required for admission to undergraduate course for candidates belonging to respective categories. With reference to the said provision, it is submitted that the aggrieved institutions or students could approach the Central Government seeking lowering of minimum marks.
6. While drawing the attention of this Court to the order dated 01.02.2019, passed by the Hon'ble Supreme Court in Civil Appeal No. 1393 of 2019, in the case of Association of Managements of Homeopathic Medical Colleges of Maharashtra v. Union of India, it was submitted that though Their Lordships granted relief to the Appellant - Association to make admissions to 1 year BHMS course for the academic year 2018-19 on the basis of the eligibility criteria mentioned in the information brochure and those candidates who had secured minimum marks in NEET UG-2018 were held to be eligible for admission, it has been ordered that the same shall not be treated as a precedent.
7. In reply, the learned Senior Counsel appearing for the Federation submitted that the respondent-Union of India is estopped from raising objections to the application since the Union of India placed reliance on the interim order dated 11.10.2018 passed by this Court, before the Uttarkhand High Court in Writ Petition (M/S) No. 2911 of 2018 in the matter of Association of Combined Entrance Examination (Association of Private Unaided Medical and Dental Colleges of Uttarakhand) v. Union of India and the High Court permitted admission of students in terms of the interim order passed by this Court. Further, drawing the attention of this Court to a decision of the High Court of Patna in Civil Writ Jurisdiction Case No. 16541 of 2018, in the matter of Vihar Private Unani Medical Colleges v. Union Of India, which was decided on 10.10.2018, it was submitted that the amendment brought to the Regulations is of no avail, since it has been held in the light of the Supreme Court decision in Sankalp Charitable Trust v. Union of India; Mihir Abhijit Pathak v. Medical Council of India, reported in (2016) 7 SCC 487 that unless an amendment is brought to the parent Act, as was done in the Indian Medical Council Act, 1956, by incorporating Section 10D, the challenge to the authority of the Union of India remains questionable.
8. It is further submitted that though the 2 proviso to Regulation 2(d)(i) provides for lowering of the minimum marks, inspite of several representations being made in this regard, the Central Government seems reluctant to pass suitable orders. Copies of the representations are made available along with the interlocutory applications. The learned Senior Counsel further submits that with respect to BDS Courses, the Central Government has lowered the minimum marks to 30%, while the same benefit is not extended to the Indian Medicine Courses.
9. Having given our thoughtful consideration to the submissions of the learned counsels and perusing the interlocutory application, we find that the factual matrix which emerged in October, 2018 seems to be repeating for the succeeding academic session i.e., 2019-20. This Court had observed in its earlier order that as against the seats available, sufficient NEET qualified candidates are not available and candidates who possess the minimum qualification had not appeared for NEET. The position then was that the counselling had been completed, yet there were unfilled seats. We agree with the submission of the learned Senior Counsel that the courses in MBBS and BDS cannot to be compared with BAMS, BHMS and BUMS courses. The demand for MBBS and BDS are admittedly not comparable with the Indian Medicine Courses. The fee structure also varies considerably between the two. If the minimum required students are not admitted to the institutions, it may not be possible for the institution to maintain the quality of teaching and the huge infrastructures created for the same.
10. Another important aspect to be noticed is that the cut off date for admission to Ayurveda Colleges is 30.09.2019.
11. Consequently, we proceed to pass the following
(i) In the on-going counselling for the academic year 2019-20, after all NEET qualified students have made their choices and if seats remain unfilled, any other candidate who has not appeared for NEET examination, but has the minimum qualification to undergo the AYUSH courses (BAMS, BHMS and BUMS) as provided, shall be permitted to take part in the counselling.
(ii) Such of those candidates would also be intimated that their admission are being made in view of the absence of NEET qualified candidates and would ultimately remain subject to the result of these writ petitions.
(iii) It is further made clear that the process as indicated above would be applicable only to such of those institutions who are otherwise qualified to make admissions by possessing requisite infrastructure and if the competent authorities have taken any action against any of the colleges and restrained them from making admissions for the present academic year, such of those institutions shall not make admissions by taking benefit of this order.
(iv) If any of the institution against whom action had been initiated has secured any interim order permitting admissions and have already participated in the counselling, such institutions are eligible for making admissions in terms of this order.
12. I.A. No. 1/2019 is accordingly disposed of.