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Allahabad High Court · body

2019 DIGILAW 381 (ALL)

Mohammad Hyder Mirza v. Union Of India

2019-02-13

PANKAJ BHATIA, PRADEEP KUMAR SINGH BAGHEL

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JUDGMENT : 1. Since the controversy and facts involved in the aforesaid connected writ petitions are the same, therefore, they are being heard together by a common order with the consent of the parties. 2. The petitioner is a Society registered under the Societies Registration Act, 1860. It runs Homeopathy College, Hospital and Research Centre. The petitioner, in the companion Civil Misc. Writ Petition No. 35634 of 2018, is a students for admission in the PG Course in Academic Session 2018-19. This Court, in its order dated 20.12.2018, has refused to grant interim order for admission and having regard to the facts of the case, the matter was listed for final disposal in the last week of January, 2019. Due to paucity of time, the matter could not be taken up. In the meantime, the petitioner has moved an application for early hearing on the ground that in the similar matter the Supreme Court in 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 vs. Union of India & others) has passed an order in the following terms: “Though the last date for admission to the BHMS course was 15th 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 1st 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 201819, 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 1st year BHMS course for the academic session 2018-19 on the basis of the eligibility criteria mentioned in the information brochure dated 5th February, 2018. A candidate who has secured minimum marks in the NEET UG-2018 shall be eligible for admission to the 1st year BHMS course for the academic year 2018-19. A candidate who has secured minimum marks in the NEET UG-2018 shall be eligible for admission to the 1st year BHMS course for the academic year 2018-19. 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.” 3. Following the said order, we have passed an interim order in these two writ petitions in respect of the admission of the under-graduate students. 4. Learned counsel for the parties have made submission today in the matter of the admission in P.G. Course in Homeopathic Colleges. It is urged by learned counsel for the parties that this matter is also covered by the order of Hon'ble Supreme Court as mentioned above. However, for the sake of convenience, the brief facts are set out below. 5. The central counsel of homeopathic with previous sanction of the Central Government exercising its power conferred by clause (i), (j) and (k) of Section 33 and subsection 1 of Section 20 of the Homoeopathy Central Council Act, 1973 has made Homoeopathy (Post Graduate Degree Course) M.D.(Hom.) Regulations, 1989 (as amended). Part III deals with the admission amongst other regulations. Only eligibility for admission in MD (Hom.) is Bachelor of Homeopathic Medicine and Surgery or equivalent qualification in homeopathy and/ or Bachelor of Homeopathy Medicine and Surgery (Graded Degree) or equivalent qualification in Homeopathy. 6. On 12.4.2018, the respondent no. 1, Ministry of Ayurveda, Yoga and Naturopathy, Unani, Siddha and Homeopathy (for short 'AYUSH') issued instructions wherein the State authorities were directed that admission in AYUSH Post Graduation Course shall be only through All India AYUSH Post Graduation Entrance Test (for short as 'AIA-PGET'). The said test will be conducted by AIA, New Delhi. It was also provided that a centralized counselling shall be held for the said academic session. The said test will be conducted by AIA, New Delhi. It was also provided that a centralized counselling shall be held for the said academic session. The state level counselling was to be conducted on the basis of merit list of 'AIA-PGET' as per State Rules/Regulations. In the said circular, no cut of marks was prescribed by the respondent no. 1. Pursuant thereto the Director, Ayurveda, respondent no. 5, issued a circular on 12/13.9.2018 wherein the minimum qualification was laid down on the basis of percentile. A week later, on 20.9.2018, the Central Government sent a communication to all the State authorities wherein it was mentioned that due to some administrative reasons the centralized counseling for admission for All India AYUSH M.D/PG Course seat will not take place and concerned authorities were directed to admit the students at their own level as was done in the last Academic Session 2017-18 as per existing Rules. 7. Regard being had to the fact that the respondent no. 1 vide a communication dated 4.9.2017 addressed to all the state authorities waived the criteria of 50% of the qualifying marks for admission in Ayurveda Stream like in the case of Homeopathy, but the State Government on 26.9.2018 changed the criteria from percentile to percentage. The said criteria was again changed on 26.10.2018. The Central Government, on 26.10.2018, issued a circular to all the State Authorities wherein it is mentioned that the Ministry has received various representation stating that seats are lying vacant. 8. In view of the said representation, the Ministry decided that minimum eligibility marks of the Entrance Test for admission shall be in percentile and not on the basis of the percentage of marks. 9. The grievance of the petitioner is that on 26.9.2018 list of the successful candidates was declared, wherein 68 successful candidates were shown in the said list. The name of the petitioner figures in the said list. But on the same day i.e. 26.9.2018 amended list of successful candidates was issued (Annexure-11) showing that only 18 candidates have qualified for admission in PG Course. 10. We have Sri Alok Kumar Yadav and Sri Udayan Nandan, learned counsel for the petitioners, learned counsel for the Union of India and learned Standing Counsel for the State-respondents. 11. The State Government has not filed any counter affidavit so far. 10. We have Sri Alok Kumar Yadav and Sri Udayan Nandan, learned counsel for the petitioners, learned counsel for the Union of India and learned Standing Counsel for the State-respondents. 11. The State Government has not filed any counter affidavit so far. It is submitted by learned counsel that the Chapter III Regulation 4 deals with the admission wherein the minimum eligibility has been prescribed. The said Regulation has been amended in December 2018 much after the admission process was over, hence the said amendment cannot be made applicable retrospectively. He further submits that the subsequent change of the criteria after the last date of the submission of the application i.e. 26.9.2018 shall not affect the process of the selection. It is submitted that the Director has no authority to lay down the minimum qualification when the Central Government has clearly provided through various communications that the minimum cut off marks of 50% was waived of, the first merit list of 68 students was published on 26.9.2018 but the same was changed on the same day wherein only 18 candidates have been shown successful the second list was prepared on the basis of the communication issued by the Director of Ayurveda and the State Government. Both the communication and the Circular issued by the Director and the State Government were not only contrary to the regulations but also against the directions issued by the Central Government from time to time. 12. It was further argued that several High Courts have granted interim orders including this Court in respect of the under graduate classes. The Supreme Court has issued necessary directions considering the various interim orders passed by the High Courts and has extended the date for admission till 15.2.2019. 13. Lastly, it was urged that a large number of seats shall remain vacant, if the admission on the basis of the amended merit list is made, inasmuch as, only 18 students stood qualified whereas in the previous merit list which was issued by the respondent, 68 candidates were found to be eligible for the admission in the P.G Course. 14. We have considered the rival submissions. We find that the petitioner has made prima facie case. It is admitted case that the regulations, which deals with the admission in the P.G. Course, have not been amended till the admission process commenced. 14. We have considered the rival submissions. We find that the petitioner has made prima facie case. It is admitted case that the regulations, which deals with the admission in the P.G. Course, have not been amended till the admission process commenced. The amendment has been made on 14.12.2018 after the last date for the admission i.e. 26.9.2018 was over. 15. Moreover, learned counsel for the respondents has failed to satisfy us that the amendment made in the year 2018 has retrospective effect. We are also prima facie satisfied the communication of the Director dated 13.9.2018 is contrary to the directions issued by the respondent no. 1 whereby the direction was issued that due to administrative reasons centralized counsellng was not possible and the states were directed to admit the students on the basis of the criteria of Academic Session 2017-18. 16. For the reasons mentioned above, we are of the view that the petitioners are entitled for the interim protection. 17. In view of the fact that a large number of seats are lying vacant and the 68 students were found to be eligible by the respondents which were subsequently changed and the number was reduced to only 18 candidates. 18. Accordingly, we direct that the respondents shall permit the petitioners in Civil Misc. Writ Petition No. 34649 of 2018 to admit the students from the first merit list containing the list of 68 candidates. The name of the petitioners in Civil Misc. Writ Petition No. 35634 of 2018 is also included in the said list. The aforesaid admissions shall be made strictly in terms of the order of the Supreme Court wherein the last date have been extended till 15.2.2019. 19. It is made clear that the admission of the students shall be at their own risk and shall subject to the decision of the writ petition. 20. Learned Standing Counsel prays for and is granted four weeks' time to file counter affidavit. Rejoinder affidavit, if any, may be filed within ten days thereafter. 21. List after expiry of the said period.