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Judgment
Rajesh Bindal, J
The petitioners, who are running institutes for imparting education in Ayurvedha and Physiotherapy, have filed the present petition impugning the Government Order No. 634-HME of 2019 dated 04.07.2019. Further prayer has been made for quashing of notice No. 72-BOPEE of 2019 dated 18.07.2019, notification No. 77-BOPEE of 2019 dated 01.08.2019, notification No. 78-BOPEE of 2019 dated 23.08.2019 to the extent it pertains to filling up of the management quota seats in the petitioners institutes through Board of Professional Entrance Examination (for short "BOPEE"). Further prayer has been made for directing the respondents to allow the petitioners to fill up the management quota seats of their own by following the merit scored by the candidates in NEET.
Mr. Sunil Sethi, learned Senior Counsel for the petitioners submitted that the petitioners had set up their colleges for imparting education in Ayurveda and Physiotherapy. All the admissions for different courses run by the petitioners are to be made on the basis of merit secured by the candidates, who appear in NEET. All the candidates against the Government quota seats are to be selected by BOPEE. The only dispute in the present petition is regarding filling up of seats of management quota. In that process, the State or BOPEE cannot interfere. The only restriction or condition, which can put is that only the candidates, who successfully passed NEET examination, can be admitted. To this, the petitioners do not have any objection.
It was further argued that there is a Committee constituted by the State for monitoring of admissions in the professional colleges. The petitioners do not have objection in case the process of admission in their colleges is also monitored by that Committee. The petitioners will follow transparent method while admitting the students. The only idea is that the seats do not go vacant, as during the last year, when BOPEE carried out the process of admissions, about 30% seats remained vacant. In case such high percentage of seats remain vacant, the financial viability of the petitioners institutes will itself be in doubt. The petitioners may have to close down their colleges. It will not be for benefit of anyone. The State do not have that much colleges for imparting education. The petitioners are supplementing the efforts of the State. He further submitted that in all other States as well, the management quota seats are being filled up by the colleges themselves.
Reference has been made to the notices issued in the States of Karnataka and Maharashtra.
It was further submitted that during the last year as well, initially, there was some reluctance, however, later on, the colleges were permitted to admit the students of their own on the basis of merit secured by them in NEET. Same process can be followed this year. There is no policy, as such prepared at the National level.
On the other hand, learned counsel for BOPEE submitted that Clause 5A of the Regulations on Graduate Medical Education, 1997, which deals with admission to MBBS provides that counseling for all admissions to MBBS course in all Medical Educational Institutions in the State/Union Territory is to be conducted by the State/Union Territory. Such common counseling shall be under overall superintendence and control of the State/Union Territory Government. In terms of the aforesaid Regulation all the seats for MBBS, including the management quota, are being filled up by common counseling by the agency designated by the respective States.
Even for admission to various courses in AYUSH, Indian Medicine Central Council (Minimum Standards of Education in Indian Medicine) Regulations were amended vide notification dated 07.12.2018. In terms thereof, the designated authority for counseling for all the admissions to under-graduate courses in all Ayurveda Educational Institutions shall be the respective States or Union Territory. No authority or Institution is permitted to admit any candidate in contravention to the criteria laid down in the aforesaid Regulations. After the aforesaid amendment was brought to the notice of BOPEE, the impugned circulars were issued. The same being the policy at the national level, the petitioners cannot raise a grievance.
BOPEE is an authority created by the State to carry out admissions to various professional courses in the State. It has no interest in not filling up all the seats in the colleges. In the case of admissions to BDS courses in the State of J&K, the respective colleges had supplemented the efforts being made by BOPEE by issuing advertisements so that the process of admissions comes to the knowledge of more and more candidates. In case the colleges are permitted to carry out admissions at their own level, there will be difficulty to determine the merits of the candidates. Whosoever comes for admission to the petitioners institutes, they are well within their right to redirect that candidate to BOPEE so that those candidates participate in the process of counseling and get admission in the institutes of their choice.
Mr. Siddiqui, learned counsel for the State submitted that during last year, permission was given to colleges to admit students against the management quota seats at their own level, however, during this year, there being policy at the national level to have centralized counseling for admissions, such a permission cannot possibly be granted. The State cannot possibly violate the mandate issued by the Central Government. There is no prejudice caused to the petitioners if the admissions are carried out through BOPEE. The apprehension expressed by the petitioners is totally misconceived. The State would not be the beneficiary in case seats in any of the colleges in the State go vacant. BOPEE will make all efforts to ensure that all the seats are filled up. However, the same can be filled if candidates are available. The petitioners can also guide the candidates and redirect them to BOPEE before the cut-off date so as to enable them to participate in the process of counseling for admission against the management quota seats.
In response, Mr. Sethi, learned Senior Counsel for the petitioners submitted that there is a distinction between Regulations framed by the Central Council of Indian Medicine (for short "CCIM") and the MCI. The MCI Regulations provide for a common counseling, which is missing in the case of the Ayurvedic courses.
Heard learned counsel for the parties and perused the paper book.
The petitioners, in case in hand, are aggrieved of the action of the State, directing that all the admissions to various Ayurvedic courses shall be carried out by BOPEE, an agency of the State. BOPEE has been constituted as an agency by the State for carrying out admissions to different courses in the State. The dispute pertains to the management quota seats only. The petitioners claim that the colleges should be permitted to carry out admissions against the management quota seats. It is not being disputed by them that such admissions can be made only from the candidates, who had passed NEET and strictly as per merit.
Learned counsel for the respondents had placed reliance on the amendment carried out by CCIM in the 1986 Regulations. These Regulations deal with admissions to various courses in AYUSH. The amendment carried out vide notification dated 07.12.2018 is effective for admissions for the academic Session 2019-20 onwards. It provides for various eligibility conditions including minimum marks to be secured in NEET by the candidates belonging to different categories.
Clause 2(d)(v) of the Regulations clearly provides that the designated authority for counseling for all admissions to graduation courses in all Ayurveda education institutions in the States/Union territories, shall be the respective State or Union territory. It further provides that no authority or institution shall admit any candidate to the course in contravention to the criteria or procedure laid down in these Regulations.
Any candidate admitted in contravention shall be discharged by the Central
Council in addition to action against the authority or institution.
The relevant Regulations as amended vide notification dated 07.12.2018 are extracted below:-
"1. Short title, commencement and application-
(1) These regulations may be called the Indian Medicine Central Council (Minimum Standards of Education in Indian Medicine) Amendment Regulations, 2018.
(2) & (3) ×××
In the Indian Medicine Central Council (Minimum Standards of Education in Indian Medicine) Regulations, 1986 (hereinafter referred to as the said regulations) in Schedule-I, for regulation 2, the following regulation be substituted, namely:-
"2. Eligibility for Admission: The eligibility to seek admission in Bachelor of Ayurveda education shall be as under:
(a) to (c) ×××
(d) (i) There shall be a uniform entrance examination for all medical institutions at the under-graduate level, namely the National Eligibility Entrance Test (NEET) for admission to under- graduate course in each academic year and shall be conducted by an authority designated by the Central Government.
(ii) to (iv) ×××
(v) The designated authority for counseling for all admissions to under-graduate course in all Ayurveda educational institutions in the States and Union territories including institutions established by the State Government, University, Deemed University, Trust, Society, Minority Institutions, Corporation or Company concerned State or Union territory Government, as the case may be.
(vi) & (vii) ×××
(viii) No authority or institution shall admit any candidate to the under-graduate course in contravention of the criteria or procedure as laid down by these regulations in respect of admissions and any candidate admitted in contravention of the said criteria or procedure shall be discharged by the Central Council forthwith.
(ix) The authority or institution which grants admission to any student in contravention of the aforesaid criteria or procedure shall be liable to face action in terms of the provisions of the Act."
(emphasis supplied)
Similar provisions are there for admission to B.A.M.S, B.S.M.S and B.U.M.S Courses, for the academic session 2019-20 onwards. In the light of the aforesaid Regulations, nothing lies in the mouth of the petitioners to claim that they should be granted liberty to admit students against management quota seats at their own level. As the aforesaid amended Regulations clearly provide that the designated authority shall be established for counseling for all the admissions to under-graduate courses in all Ayurveda educational institutions. That will not mean that the management quota seats will not be included therein, as it talks of 'all' admissions.
Reliance on notification issued by the State of Karnataka and Maharashtra is totally misplaced. As far as the public notification issued by the State of Karnataka is concerned, the same pertains to the admissions for the academic session 2018-19, i.e. before the amended Regulations came into force. As far as the notice issued by the State of Maharashtra is concerned, in case the same runs contrary to the amended regulations, it will not come to the rescue of the petitioners to claim that in their case also, a direction be issued to violate the Regulations.
The contention that there is already a monitoring Committee constituted by the State, which is headed by a retired Hon'ble Judge of this Court and the admissions can be made under his overall supervision, will also not stand in view of the amended Regulations, which clearly provide for the procedure to be followed.
However, I find merit in the contention raised by the learned counsel for the petitioners to the extent that the seats in the Professional Colleges should not go waste and all efforts should be made to fill up those seats. No doubt, learned counsel for the respondents stated that number of notices are published in various newspapers to apprise the prospective candidates about the process of admission, the last date fixed so as to enable the candidates to apply to BOPEE well within time for taking admission in the institute of their choice, as per merit. However, still in case the petitioners feel that the efforts made by BOPEE require to be supplemented, the petitioners shall also be at liberty to educate prospective candidates by way of public notice in the Newspapers of their choice and also by putting such notices on the web-sites of the respective colleges or even by way of public notice in their respective institutes so as to educate the prospective candidates about the schedule of counseling and the manner in which admission can be sought against Management Quota seats. Such an effort cannot be said to be in violation of any Rule as infrastructure created for imparting education in Professional Colleges should not go waste. If the candidates are available, they should be granted admission. Even the BOPEE should also encourage and educate all the prospective candidates, who wish to seek admission in various Ayurveda Courses. It has to be taken care of that any advertisement issued by the petitioners should not be misleading in any manner whatsoever, as the aim thereof is only to supplement the efforts being made by BOPEE to apprise the prospective candidates of the schedule for seeking admission against Management Quota seats. Whenever and by whatever mode any such advertisement is published or uploaded on website or displayed on notice board, copies thereof shall be sent by the petitioners to BOPEE, immediately.
The writ petition is dismissed as far as challenge to the notification is concerned, however, with liberty as contained in para No.18 of the order.