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2011 DIGILAW 2540 (RAJ)

Arvind Kumar v. Union of India

2011-11-22

ALOK SHARMA

body2011
Hon'ble SHARMA, J.—This petition has been filed on behalf of the six petitioners. However, at the out set the counsel for the petitioners submits the petition has been rendered infructuous in respect of petitioners No.3, 4, 5 & 6 in view of the fact that they have been admitted into the post graduate MD/MS Ayurveda course. 2. By this writ petition, the remaining petitioners No.1 and 2 seek the following reliefs : (i) By an appropriate writ, order or direction the action of the respondents in not giving admission on all the 104 seats advertised by the respondents and for which entrance examination was held for admission to MD/MS Ayurveda, 2011, may kindly be declared to be illegal and the same may be quashed and set aside; (ii) By further an appropriate writ, order or direction the reduction of number of seats from 104 to 64 by the respondents may also kindly be declared to be illegal and the same may be quashed and set aside and the respondents may be directed to give admission in MD/MS Ayurveda, 2011 against all the 104 seats and in case the petitioners are found entitled for admission, the respondents may be directed to give admission to the petitioners in MD/MS Ayurveda 2011 pursuant to their success in JPGEE, 2011 with all consequential benefits. 3. The facts of the case are that having passed Bachelor in Ayurved Medicine and Surgery (BAMS) examination from the Rajasthan Ayurved University, Jodhpur, the petitioners in response to an advertisement for admission to post graduate (MD/MS) Ayurved course wrote the Joint Post Graduate Entrance Examination (JPGEE) held pursuant to an online advertisement for admission to Ayurved Vachaspati / Ayurveda Dhanvantari (MD/MS Ayurveda) for the academic session 2011-12 in the National Institute of Ayurveda, Jaipur and IPGT & RA (Institute of Post Graduate Training and research in Ayurveda), Jamnagar and Government Akhandenanda Ayurveda College, Ahmadabad. In the prospectus for JPGEE in table No.2 depicted the Subjects, Reservation and Availability of Seats in NIA, Jaipur. A note was however appended to Table No.2 stating that for the academic session 2011-12, the status of seat and number of seats in different specialties would be finalized on the basis of final approval of CCIM/ Department of AYUSH and accordingly the status of reservation would if necessary be re-defined. A note was however appended to Table No.2 stating that for the academic session 2011-12, the status of seat and number of seats in different specialties would be finalized on the basis of final approval of CCIM/ Department of AYUSH and accordingly the status of reservation would if necessary be re-defined. Provisionally, however, the aggregate number of seats under Post Graduate (MD/MS) Ayurveda in various disciplines was indicated as 104 seats. 4. The petitioners wrote JPGEE held on 03.07.2011 and were initially included in the list of successful candidate the result whereof was declared on 08.07.2011. The petitioner No.1, Arvind Kumar was placed at the 8th rank in General Category and the respondent No.2, Rashmi Mutha was placed at the 10th rank in General Category. 5. The petitioners appeared for counseling held on 07.10.2011, but they were not successful in getting admission for the reason that as against number of 104 seats indicated provisionally at the National Institute of Ayurveda in the prospectus, counseling was finally held only for 74 seats as the under Secretary, Government of India, vide letter dated 06.09.2011 had informed the National Institute of Ayurveda, Jaipur, respondent herein, that it has been decided by the Department of AYUSH in the Ministry of Health & Family Welfare, Government of India that for the academic session 2011-12, the Institute would be allotted a total of 74 seats in different PG courses namely Maulik Siddhant (8 seats), Rachana Sahrir (7seats), Kriya Sharir (8 seats), Dravyaguna (8 seats), Rasashastra (9 seats), Kaumar Bhritya (7 seats), Kaya Chikitsa (9 seats), Roganidan (8 seats), Shalya (5 seats), Prasuti & Striroga (5 seats), for the academic session 2011-12 under Section 13C/13A of the Indian Medicines Council Act, 1970 subject to the condition that the college would fulfill requirements indicated in the letter by 31.12.2011. It is relevant to note that the National Institute of Ayurveda, Jaipur has not challenged the order dated 06.09.2011 issued under the hand of the Secretary, Government of India, Ministry of Health and Family Welfare limiting the intake of seats in its PG courses to 74 numbers. 6. It is relevant to note that the National Institute of Ayurveda, Jaipur has not challenged the order dated 06.09.2011 issued under the hand of the Secretary, Government of India, Ministry of Health and Family Welfare limiting the intake of seats in its PG courses to 74 numbers. 6. The petitioners however have been denied admission into PG (MD/MS) Ayurveda course owing to approval having been limited to 74 seats in the PG courses of National Institute of Ayurveda, Jaipur and therefore seek to challenge the order dated 06.09.2011 issued under the hand of the Secretary, Government of India even though no such prayer has been made in the writ petition. 7. Counsel for the respondent-Institute submits that the petitioners have no case inasmuch as for one, no person less meritorious than the petitioners has been admitted into PG (MD/MS) Ayurveda course by the respondent-Institute and secondly that in any event of the matter, the prospectus, on which the petitioners have placed reliance in respect of number of seats in PG courses advertised, cannot be said to be determinative at it was stated clearly that the intake of students indicated as 104 numbers was only provisional. Counsel submits that the note to table 2 of the prospectus for JPGEE circulated by the National Institute of Ayurveda, Jaipur it categorically had mentioned the aforesaid fact. It is submitted that it was made clear to all candidates that the number of seats was dependent on final approval by the CCIM/ Department of AYUSH. Counsel for the respondent-Institute further submits that the number of seats under the prospectus being provisional and the CCIM/ Department of AYUSH having determined the number of seats in PG courses as 74 seats, the petitioners cannot make out any contravention of their legal or fundamental rights in the facts of the case. 8. I have the counsel for the petitioners as also the respondents and perused the writ petition and the documents annexed thereto. 9. I am of the considered view that the writ petition ought to fail for more than one reason. For one, the order dated 06.09.2011 issued under the hand of Secretary, Government of India, has not been put to challenge in this writ petition. 9. I am of the considered view that the writ petition ought to fail for more than one reason. For one, the order dated 06.09.2011 issued under the hand of Secretary, Government of India, has not been put to challenge in this writ petition. There is no substance in the submission of the counsel for the petitioners that even without a specific challenge to the order dated 06.09.2011, the same can be set aside with reference to the general / residuary prayer in the writ petition. Under the order dated 06.09.2011, the number of seats approved by CCIM / Department of AYUSH is 74 only. Consequently, admission to the PG courses in the National Institute of Ayurveda, Jaipur as of necessity had to be confined to 74 seats. This has been done and the petitioners on the basis of their merits in JPGEE did not make it to the seats for the General category and consequently can have no reason to lay this writ petition. Second, the matter with regard to number of seats in PG courses of National Institute of Ayurveda, Jaipur is a matter strictly between the National Institute of Ayurveda, Jaipur on the one hand and CCIM/ Department of AYUSH on the other. The petitioners as prospective candidates in the PG courses would have no lis with CCIM / Department of AYUSH on the issue of number of seats approved by the said department for the purpose of PG courses at the National Institute of Ayurveda, Jaipur. It is also important to take into consideration that the National Institute of Ayurveda, Jaipur has not challenged the order dated 06.09.2011 whereby the number of seats approved for the PG courses at the institute has been confined to 74 seats. I would thus hold that the petitioners have no locus even to challenge the order dated 06.09.2011, issued under the hand of the Secretary, Government of India, Ministry of Health and Family Welfare. 10. Counsel for the petitioners however, would submit that the petitioners had a legitimate expectation in terms of the prospectus for JPGEE circulated by the National Institute of Ayurveda, Jaipur giving out the number of seats in the PG courses as 104. 10. Counsel for the petitioners however, would submit that the petitioners had a legitimate expectation in terms of the prospectus for JPGEE circulated by the National Institute of Ayurveda, Jaipur giving out the number of seats in the PG courses as 104. Counsel would submit that the prospectus was in effect an implied representation to admit 104 students to the Post Graduate course in Ayurveda by the National Institute of Ayurveda, Jaipur and hence by extension by the CCIM / Department of Ayurveda by which they would be bound. Counsel further would then submit that the aforesaid legitimate expectation furnishes the petitioners with a cause of action and hence locus standi to lay the present writ petition. 11. I am of the view that the contentions raised of the counsel for the petitioners based on doctrine of legitimate expectation are completely misdirected and unsustainable. 12. The doctrine of legitimate expectation on the principle of implied representation will not be operative in the facts of the case where far from any implied representation having been made with regard to 104 seats under the PG courses at the National Institute of Ayurveda, Jaipur, note to table 2 in the prospectus for JPGEE examination stated categorically that the number of seats in the PG courses would be determined on the basis of approval of CCIM/ Department of AYUSH. Further, the arguments based on past practice is also without substance. The issue of past practice being relevant would be only in a situation where there was no caution with regard to variation from past practice. Further neither legitimate expectation, nor past practice is at all relevant in this case because the authority to determine the number of seats in the PG course did not lie with the National Institute of Ayurveda. Where the alleged representation actual or implied does not flow from an authorised person it is of no consequence. 13. In my considered view, even otherwise the note to table 2 of the prospectus circulated for JPGEE examination by the National Institute of Ayurveda, Jaipur had put the prospective candidates to caution with regard to the number of seats and in view of the specific caution, there was no occasion for the petitioners to rely upon past practice and invoke the doctrine of legitimate expectation based thereon. 14. 14. Counsel for the petitioner has relied upon a judgment of the Hon'ble Supreme Court rendered in the case of East Coast Railway & Anr. vs. Mahade Appa Rao & Ors. ( (2010) 7 SCC 678 ) to contend that even though a candidate may not have an indefeasible right, he would have a legitimate expectation as a citizen of this country of non-arbitrariness in the consideration of his case. The judgment relied upon by the counsel for the petitioners is not applicable as the facts of the aforesaid case are entirely different from the facts of the present case. The case of East Coast Railway (Supra) arose in the context of number of vacancies advertised for recruitment by the State Government and the right of the candidates to be considered for the said vacancies in the context of the subsequent decision of the State Government not to fill up all the vacancies advertised. This situation does not obtain in the facts of the present case. In the present case, the vacancies advertised by the National Institute of Ayurveda, Jaipur were quite clearly stated to be dependent upon a decision of ICCM / Department of AYUSH. The ICCM / Department of AYUSH at no point of time gave out to the petitioners the number of seats in the PG courses which would be approved for the National Institute of Ayurveda, Jaipur. Therefore, in my considered view, the case relied upon by the counsel for the petitioners is of no succour to the petitioners' case. 15. Counsel for the petitioners has also relied upon the judgment of the Hon'ble Supreme Court rendered in the case of Food Corporation of India vs. Kamdhenu Cattle Feed Industries ( (1993) 1 SCC 71 ). Again this case is in an entirely different factual context. In the aforesaid case, the issue was as to whether the highest bidder had a indefeasible right of his bid being accepted and contract being granted to him thereupon. The Hon'ble Supreme Court held that even though it was not incumbent on the government as of necessity to accept the highest bid, yet in the context of the Government's obligation under Article 14 of the Constitution of India the rejection of the highest bid had to be based on same legitimate reasons. 16. The Hon'ble Supreme Court held that even though it was not incumbent on the government as of necessity to accept the highest bid, yet in the context of the Government's obligation under Article 14 of the Constitution of India the rejection of the highest bid had to be based on same legitimate reasons. 16. The issue in the present writ petition cannot be determined by the enunciation of the Hon'ble Supreme Court in the case of Food Corporation of India (Supra). 17. In view of the facts of the present case, it is an admitted position that ICCM / Department of AYUSH having inspected the premises of the National Institute of Ayurveda, Jaipur and having evaluated the infrastructure came to a conclusion that the infrastructure as obtaining on the date of visit did not justify the grant of 104 seats for PG courses. The ICCM / Department of AYUSH is an expert body and it is not within the province of this court to interfere with the decision of an expert body in the field of academics and it cannot be for this Court to say what number of seats in National Institute of Ayurveda, Jaipur should be granted for PG courses. 18. The upshot of the aforesaid discussion is that the writ petition is absolutely without substance and liable to be dismissed. As such, the writ petition is dismissed. Stay application is also dismissed.