J.R. Kissan, Homoeopathic Medical College & Hospital, Rohtak Through Its Chairman vs Union Of India And Others

Daya Chaudhary, J

Petitioner-College has approached this Court by way of filing the present petition for quashing of letter/advertisement dated 23.01.2018 with

06.03.2018 and notice dated 21.09.2018 (Annexure P-2 colly) issued by respondent No.1 to the extent which prescribes AIA-PGET, the base of

admission for the Post Graduation Course in Homeopathy.

A further prayer has also been made for issuance of a writ in the nature of mandamus directing the respondents to fill up seats under the Homeopathy

(Post Graduate Degree Course) M.D. (HOM.) Regulations, 1989.

The grievance of the petitioner-College, in nutshell, is that in derogation of the Homeopathy Central Council Act, 1973 (here-in-after called as the

`Act') as amended from time to time, the respondents had proceeded to redefine the eligibility criteria for admission to Post Graduation Course in

Homeopathy by directing that those persons, who have appeared and qualified the All India Ayush PG Entrance Test (here-in-after called as `AIA-

PGET') are to be admitted to the PG in Homeopathy instead of the eligibility prescribed under the Homeopathy (Post Graduate Degree Course) M.D.

(Hom) Regulations, 1989 and Statutory regulations contained thereunder.

Learned counsel for the petitioner submits that the same issue was there in CWP No.7 of 2019 and the controversy, in the present case, is squarely

covered by decision in CWP No.28442 of 2018 titled as J.R.

Kissan, Homoeopathic Medical College & Hospital, Rohtak vs Union of India and others decided on 24.01.2019 as well as judgment of Hon'ble the

Apex Court in case Association of Managements of Homeopathic Medical Colleges of Maharashtra vs Union of India (UOI) and ors. (Civil Appeal

No.1393 of 2019 arising out of S.L.P. (Civil) No.766 of 2019 and other connected matters.

Learned counsel for the petitioner also submits that in view of the precedents of Hon'ble Patna High Court and Hon'ble Rajasthan High Court, the

respondents were directed to issue an advertisement regarding counselling for grant of admission in BAMS, BHMS, BUMS and BNYS courses with

the stipulation that those fulfilling the eligibility conditions other than NEET, would be eligible for grant of admission and by counselling the candidates

alongwith the pre-scheduled counselling which was underway. It was also directed that while holding the counselling and granting admissions to such

students including the students who did not clear NEET, the preference would be given to candidates, who were having the NEET eligibility. The

students without NEET eligibility, who were granted admission, a specific stipulation would be indicated that the same would be subject to final

outcome of the writ petition. It is also the argument of learned counsel for the petitioner that the respondents have proceeded further to redefine the

eligibility criteria for admission to Homeopathy course by introducing AIA-PGET examination on the basis of admission to MD (Homeopathy) course

instead of the eligibility prescribed under the Act and the Regulations framed thereunder. At the end, learned counsel for the petitioner submits that the

case of petitioner-College is squarely covered by decision rendered in CWP No.29837 of 2018, wherein, judgments passed in CWP No.28442 of 2018

and CWP No.28729 of 2018 have been relied upon.

Learned counsel for the respondents have not disputed the ratio of judgment passed in said cases.

Heard the arguments of learned counsel for the parties and we have also perused the judgments which have been relied upon by learned counsel for

the petitioner and affirmed by learned counsel for the respondents.

The judgment passed by Division Bench of this Court in J.R. Kissan’s case (supra) is reproduced as under :-

“By this order we will dispose of above said two petitions bearing Nos.CWP-28442-2018 and CWP-28729-2018. Since common questions of law

and facts are involved so these writ petitions are being decided by this common order.

The point in controversy raised before us is the eligibility condition prescribed for BHMS and BAMS provided in part III of the Regulations, the

relevant of which is extracted herein below:-

“4. Eligibility criteria.- (i) No candidate shall be admitted to B.H.M.S. Degree Course unless he has passed-

(a) the higher secondary examination or the Indian School Certificate Examination which is equivalent to 10+2 Higher Secondary Examination after a

period of twelve years study, the last two years of study comprising of Physics, Chemistry, Biology with Mathematics or any other elective subjects

with English at a level not less than core course of English as prescribed by the National Council of Educational Research and Training after the

introduction of the 10+2+3 years educational structure as recommended by the National committee on Education.â€​

The grievance centersaround the directives issued by the Ministry of Ayurveda, Yoga and Naturopathy, Unani, Siddha and Homeopathy (AYUSH)

prescribing National Eligibility-cum-Entrance Test (NEET) as an essential condition to seek admission in the course for the academic year 2018-19.

The relevant directive is extracted hereinbelow:-

“In the process of streamlining the admissions and to bring meritorious students to the AYUSH systems of medicine in the country, the Ministry

vide letter number R-13040/33/2016-HD(Tech) Part dated 26.4.2017 (copy enclosed)-had requested all the State Governments to admit students in

AYUSH under Graduate Courses from A.Y. 2018-19 through the merit list of National Eligibility-cum-Entrance Test (NEET) only. Therefore, it has

been once again informed that from Academic Year 2018-19 all UG seats of AYUSH Degrees namely, BAMS, BHMS, BUMS, BSMS and BNYS

shall be filled by considering the merit list of National Eligibility-cum-Entrance Test (NEET) only.â€​

Learned counsel for the petitioners contend that such a directive is contrary to the Regulations prescribed for the courses in question. Learned counsel

for respondent No.1-Union of India has referred to the instructions wherein, in clause 12 it has been stated that the result of NEET (UG) may be

utilised by other entities of Central/State Government for admission purposes in accordance with their rules. We are of the opinion that the stand of

the respondents is totally unjustified. Unless they amend the Regulations they cannot insist on NEET being an essential qualification for admission in

said courses. Even if the stand of the respondents is appreciated, it only gives a direction that the result of NEET for Under Graduate Course may be

utilised by other stake holders. We would be one with the respondents, that it may be desirable to have a fair selection from the students who have

completed in NEET and occasioned a merit but are unable to be absorbed in the MBBS and BDS courses and such human resource may be desirous

of pursuing the courses such as BAMS and BHMS but for the purpose they should have left the issue open to the Colleges and Universities rather

than issuing a mandate. As things stand today the insistence on admission from students who have completed in NEET alone cannot be sustained.

Indeed they can also be considered.

The writ petitions are allowed.

We, however, make it clear that if admissions have been made from amongst the students of NEET it would not nullify their admission.â€​

Accordingly, the present petition is allowed in the same terms as allowed by Division Bench of this Court in J.R. Kissan’s case (supra) as well as

CWP No.29837 of 2018 titled as Guru Nanak Dev Charitable Trust (Regd.) through Smt. Tejinder Kaur D/o Sh. Ranjit Singh, Principal, Sri Guru

Nanak Dev Homoeopathic Medical College & Hospital, Canal Road Barewal, Ludhiana vs Union of India and others decided on 11.07.2019.

However, the respondents are directed to consider the case of the petitioner in terms of abovesaid judgments.