Amit Kumar & Ors Vs. U.O.I Thru Min. Ayurveda Yoga & Naturopathy New Delhi & Ors

Allahabad High Court (Single Judge)

MISC. BENCH, 15794 of 2017, Judgment Date: Jul 25, 2017

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH 

 

AFR 
Court No. - 5 
Case :- MISC. SINGLE No. - 15794 of 2017 

Petitioner :- Amit Kumar & Ors 
Respondent :- U.O.I Thru Min. Ayurveda Yoga & Naturopathy New Delhi & Ors 
Counsel for Petitioner :- Sameer Kalia,Rajat Rajan Singh 
Counsel for Respondent :- C.S.C,A.S.G 

Hon'ble Devendra Kumar Upadhyaya,J. 
 

Heard Sri Sameer Kalia and Sri Rajat Rajan Singh, learned counsel for the petitioners, Sri S.B.Pandey, learned Assistant Solicitor General of India and Sri Ramesh Pandey, learned Chief Standing Counsel representing the State-respondents. 
Learned Chief Standing Counsel has received instructions from the State Government through letter dated 21.07.2017. The said instructions are taken on record. 
Considering the urgency in the matter, the Court proceeds to decide the petition on the basis of submissions which have been advanced by learned counsel appearing for respective parties taking into account the instructions received by learned Chief Standing Counsel through letter dated 21.07.2017. 
These proceedings instituted under Article 226 of the Constitution of India impeach the validity of Government Order dated 10.07.2017 issued by the State Government in the Department of AYUSH whereby detailed instructions have been given to make admission to various under graduate courses being offered by the colleges in the State of U.P. imparting education in Indian Systems of Medicine, namely, Ayurvedic, Unani, Siddha and Homeopathic streams of medicines. 
In the State of U.P., there are various medical colleges both in the State sector as well as in private sector and certain other deemed Universities and Minority institutions which offer Under Graduate Courses in Indian Systems of Medicine and award degrees, such as BAMS, BUMS and BHMS etc. By the impugned order, a decision has been taken by the State Government to make admission to these institutions by adopting merit of the candidates prepared on the basis of National Eligibility-cum-Entrance Test (UG)-2017 which, in common parlance, is known as ''NEET' and is conducted by Central Board of Secondary Education. 
The sheet anchor of argument advanced by learned counsel for the petitioners challenging the impugned order embodying the impugned decision taken by the State Government to admit the students to under graduate courses in Indian Systems of Medicine through NEET is that there are various candidates/students who did not apply to appear in NEET for the reason that they never intended to take admission in the medical colleges offering under graduate courses in Allopathic system of medicine for the reason that neither the advertisement issued by the Central Board of Secondary Education for conducting NEET, nor the Information Bulletin issued for the said purpose anywhere disclosed that admission to AYUSH Under Graduate Courses in the State of U.P. shall be made through merit based on NEET. It has further been contended by learned counsel for the petitioners that it is not only that the Central Board of Secondary Education while notifying NEET-2017 did not intimate or publicize that admission shall be made through merit on NEET but even the State Government, at the relevant point of time i.e. at the time when the advertisement for NEET was being issued and also at the time when the last date of submission of application form for taking NEET, did not notify or publicize that admission to AYUSH under graduate courses shall be made through NEET. Submission, thus, is that the petitioners and other like students/candidates who are desirous of taking admission to AYUSH Under Graduate Courses in the colleges situated in the State of U.P. have not only been taken by surprise but the impugned order/decision of the State Government has resulted in depriving the petitioners and other such students/candidates of their right of participation in the selection for the purposes of making admission to these courses. 
Defending the impugned decision of the State Government, learned Chief Standing Counsel, Sri Ramesh Pandey has submitted that the decision of the State Government embodied in the Government Order dated 10.07.2017 is nothing but compliance of the directions issued by the Central Council of Indian Medicine, New Delhi, which is a statutory body created under an Act of Parliament, and also by the Central Government. In this regard, he has produced before the Court a letter/order dated 31.05.2016, which is addressed to all the Health Secretaries in the States, according to which, to bring meritorious students to the Indian Systems of Medicine by making admission in Ayurved, Unani and Siddha courses in the country, admission shall be made through National Eligibility-cum-Entrance Test (NEET) only from session 2017-18 onwards. Sri Pandey has also produced a letter of the Central Government dated 25.01.2017 addressed to all concerned authorities of the States wherein it has been observed that to bring meritorious students to AYUSH systems of medicine in the country, a decision has been taken that the entrance examination being conducted by the private association may be stopped from the academic session 2017-18 and all under graduate seats may be filled by considering the merit list of National Eligibility-cum-Entrance Test (NEET). The said letter dated 25.01.2017, thus, makes a request to the State Government to ensure compliance of the decision of the Government of India and accordingly, admit the students in AYUSH Under Graduate Courses through NEET. 
It is in the light of the aforesaid two letters/orders dated 31.05.2016 and 25.01.2017 that it has been submitted by learned Chief Standing Counsel that the decision has been taken by the State Government to make admission to AYUSH Under Graduate Courses in the academic session 2017-18 through the merit list based on NEET. 
The issue, based on the pleadings available on record and the rival submissions made by learned counsel for the parties, which emerge for consideration of the Court in this case is as to whether the impugned decision taken by the State Government has any logical basis and is supported by any rationale so as to conform to the principles of non-arbitrariness and fair play in State's action, as enunciated under Article 14 of the Constitution of India. Yet, another issue, which has emerged for determination of the Court in this case is as to whether the impugned decision of the State Government has resulted in deprivation of various candidates/students from participation in the selection for the purposes of seeking admission to AYUSH Under Graduate Courses. 
It may be that the impugned decision by the State Government has precipitated on the basis of the letters dated 25.01.2017 and 31.05.2016 issued by the Government of India and the Central Council of Indian Medicine, respectively, however, the State Government while taking the said decision appears to have completely lost sight of two subsequent letters/orders issued by the Government of India, namely, letters dated 03.04.2017 and 04.07.2017, which have been annexed as annexure nos.9 and 10 to the writ petition, respectively. The State Government also appears to have completely ignored the fact that the impugned decision has been taken on 10.07.2017 whereas the advertisement for NEET was issued as long back as on 31.01.2017 by the Central Board of Secondary Education and written examination was also held on 07.05.2017 and result whereof has also been declared on 08.06.2017. Thus, at the time when the impugned decision has been taken on 10.07.2017, the entire process of NEET examination was already complete and in fact, the impugned decision has resulted in creating a situation where various candidates desirous of seeking admission to AYUSH Under Graduate Courses have been deprived of participation in the selection for the reason that they did not or may not have applied to appear in NEET for the reason that Central Board of Secondary Education while advertising the NEET did not anywhere intimate or communicate that admissions to AYUSH Under Graduate Courses in the State of U.P. shall be made on the basis of merit to be prepared based on NEET. The petitioners and other such candidates have also been deprived of participation in the selection for admissions to AYUSH Under Graduate Courses for the reason that even the State Government did not notify or communicate or intimate or publicize that for the academic session 2017-18, admission shall be made through NEET. In case the State Government was of the view that admissions for the academic session 2017-18 are to be made through merit based on NEET, it was incumbent upon the authorities of the State to have notified the said decision to the students and other eligible candidates before issuance of advertisement by Central Board of Secondary Education for conducting NEET-2017. 
At this juncture, learned Chief Standing Counsel, Sri Pandey has submitted that the number of candidates desirous of seeking admission only to AYUSH Under Graduate Courses without making an attempt for seeking admission to Under Graduate Courses in Allopathic system of medicine, is negligible. The aforesaid submission of learned Chief Standing Counsel is not based on analysis of any statistical or otherwise data. 
To the contrary, it has been informed to the Court by learned Chief Standing Counsel himself that in the last year's entrance test held by the State Government for making admission to AYUSH Under Graduate Courses for the academic session 2016-17, as many as forty thousand candidates/students had appeared. Forty thousand is not a number, which can be termed to be negligible, as has been sought to be emphasized upon by the learned Chief Standing Counsel. 
It is not a question of number of students/candidates, who stand deprived of their right of participation for selection for admission to various such under graduate courses. The Court is concerned with the manner and background in which the State Government has taken the impugned decision, and timing therefor, which admittedly has resulted in deprivation of various candidates for participation in the selection. 
Admission to any course of study including vocational courses or a course leading to award of degree in Indian Systems of Medicine may not be a right vested in any student or candidate, however, in case any admission process is intimated or taken recourse to by the authorities of the State Government, then it becomes right of all eligible candidates to participate in the same. 
In the instant case, NEET was advertised as back as on 31.01.2017. The Information Bulletin circulated by the Central Board of Secondary Education relating to NEET-2017 nowhere makes any prescription that admission to AYUSH Under Graduate Courses shall be made in the State of U.P. through merit based on NEET. There is nothing on record to suggest that the State Government had sent any such requisition or made a request to the Central Board of Secondary Education, which conducted NEET-2017 for conducting examination for the purposes of making admission to AYUSH Under Graduate Courses as well. 
It is also relevant to observe at this juncture that the letter of the Central Government on which the State Government appears to have acted upon is dated 25.01.2017. The letter of the Central Council of Indian Medicine is dated 31.05.2016 and the advertisement by the Central Board of Secondary Education was issued on 31.01.2017. If the State Government was of the view that in the academic session 2017-18, admissions to AYUSH Under Graduate Courses are to be made on the basis of merit based on NEET, it was incumbent upon the authorities of the State Government to have notified such decision and to have circulated such information amongst the candidates and simultaneously, it was also expected of the State Government to have requisitioned the Central Board of Secondary Education requesting that NEET be conducted for the purposes of making admission to AYUSH Under Graduate Courses as well. Having not done so, it cannot be said that the State Government has acted in a manner which can be said to be in conformity with the requirement of reasonableness and non-arbitrariness. This observation by the Court is being made for the reason that in fact the impugned decision has resulted in deprivation of the petitioners and other such candidates from realizing their right to participate in the selection for admission. 
There is yet another aspect of the matter, which further requires consideration by this Court. As observed above, after issuance of the letter dated 25.01.2017, the Central Government issued another letter on 03.07.2017. The said letter clearly indicates the decision of the Central Government, according to which, selection for AYUSH Under Graduate Courses are to be made through NEET/Common Entrance Test conducted by an authority designated by the State Government concerned. Thus, in the subsequent letter dated 03.07.2017, an unambiguous and clear stipulation was made giving liberty to concerned State Government to either make admission to AYUSH Under Graduate Courses through NEET or through Common Entrance Test to be conducted by an authority designated for the said purpose by the State Government. While taking the impugned decision, the State Government has completely ignored and has not paid any heed to the contents of the letter of the Central Government dated 03.07.2017. It is further noticeable that by a subsequent letter dated 04.07.2017, the letter dated 03.07.2017 has been kept in abeyance by the Central Government itself. As a result of the letter dated 04.07.2017, the letter of the Central Government dated 26.04.2017 assumes importance, according to which, in case any difficulty was felt by any particular State leading to its inability to adopt NEET merit list for AYUSH Under Graduate Courses for academic session 2017-18, such State Government was free to admit students to these courses through Common Entrance Test as per existing rules and policy of the State Government. Thus, the letter dated 26.04.2017 appears to have been completely lost sight of by the State Government which clearly permitted the State to conduct its Common Entrance Test by an authority designated for the said purpose by the State Government itself. The difficultly in this case in adopting the mode of admission through NEET is apparent. There would not have been any difficultly before the State Government for making admission on the basis of NEET to various AYUSH Under Graduate Courses even in the academic session 2017-18, had the State Government made notification to the said effect prior to issuance of the advertisement by Central Board of Secondary Education for conducting NEET which was issued way back on 31.01.2017. Having failed to have issued any such notification or circulation of information for making admission through NEET in the academic session 2017-18 prior to 31.01.2017 and also having failed to requisition the Central Board of Secondary Education for notifying the NEET for the purposes of making admission to AYUSH Under Graduate Courses as well, the difficulty being faced by the prospective candidates/students desirous of seeking admission only to AYUSH Under Graduate Courses is apparent. In such a situation, appropriate course which can be said to have been available for the State Government was to conduct Common Entrance Test, as is permissible under the letter/order of the Central Government dated 26.04.2017. 
In view of the aforesaid discussions, it is apparently clear that the State Government while taking the impugned decision has not taken into account various relevant factors which makes the impugned decision vulnerable and not in conformity with the requirement of constitutional principles of reasonableness and fairness in the State actions enunciated under Article 14 of the Constitution of India. Further, the impugned decision has clearly resulted in depriving the petitioners and various other like candidates/students from exercising their right to participate in selection for admission to various AYUSH Under Graduate Courses. 
In light of the aforesaid, the writ petition deserves to be allowed. 
Resultantly, the writ petition is allowed and the impugned order dated 10.07.2017 passed by the State Government is hereby quashed. A direction is issued to the State Government and all concerned to conduct Common Entrance Test for the purposes of making admission to AYUSH Under Graduate Courses being run by various institutions/colleges in the State of U.P. for the current academic session.
At this juncture, learned Chief Standing Counsel has brought to the notice of the Court the Regulations notified on 07.11.2016 framed by the Central Council of Indian Medicine which are known as ''Indian Medicine Central Council (Minimum Standards of Education in Indian Medicine) Regulations, 2016' and has submitted that in terms of the provisions contained in the said Regulations, the last date by which admission to AYUSH Under Graduate Courses can be made is 30.09.2017 and hence, it may not be possible for the State Government to conduct Common Entrance Test and make admission by the cut off date of 30.09.2017 due to insufficiency of time. 
The aforesaid submission made by learned Chief Standing Counsel does not appeal to the Court. In this regard, reference may be made to the Combined Pre-AYUSH Test (CPAT) 2016 conducted by Mahatma Gandhi Kashi Vidyapeeth, Varanasi, the University designated by the State Government to conduct the said test for the purposes of making admission to AYUSH Under Graduate Courses in the academic session 2016-17. According to the schedule given in the information brochure of CPAT-2016, the entire process from registration of online applications till declaration of result had taken 46 days from 18.08.2016 till 04.10.2016. If the entire process of examination can be concluded by the authority designated by the State Government for conducting CPAT-2016 within a period of 46 days in the year, 2016, there is no reason why the Common Entrance Test or Combined Pre-AYUSH Test cannot be held within the same period or within a period even less than period taken in CPAT-2016. The Court is conscious of the fact that after declaration of the result some time may be required for conducting counselling and completion of other formalities required for completing the admission process such as verification of documents etc. Even if some period, say the period of ten days is counted and added for the said purpose, in my view, the authorities of the State Government have enough and ample time to complete the process of conducting the Common Entrance Test and thereafter counselling and admission by or before 30.09.2017. If the period available is counted from today onwards, the State Government has clear 65 days' time to initiate and complete the process for conducting examination and completing the admission process by 30.09.2017. 
For the said purpose, the time period which may be prescribed for various processes in Common Entrance Test can suitably be reduced. For example, the schedule for CAPT-2016 prescribed 15 days period permitting the candidates to get their on line applications registered. This period can very well be reduced by 10 days, for the purpose of registration of online application. In any case, if the State Government has the will to conduct Common Entrance Test, in my opinion, it does not lack resources to get it completed and make admission based on such test before the cut off date i.e. before 30.09.2017. 
Accordingly the State Government is directed to conduct Common Entrance test for making admission to various AYUSH Under Graduate Courses in the State of U.P. and complete the process of admission by 30.09.2017. 

Costs made easy. 

Order Date :- 25.7.2017 
Renu/-