Silpa Suresh K.T.S. (Minor) v Union of India; Vidya H v Union of India; Manu Krishna P.V (Minor) v Union of India

**“C R”** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN** **&** ## **THE HONOURABLE MRS. JUSTICE SHIRCY V.** **FRIDAY ,THE 26TH DAY OF OCTOBER 2018 / 4TH KARTHIKA, 1940** ## **WP(C).No. 25252 of 2018** ## **PETITIONER:** **SILPA SURESH K.T.S (MINOR)** **D/O.DR.K.T.G.SURESH, AGED 17, REPRESENTED THROUGH GUARDIAN,DR.K.T.G. SURESH, SUDEVAM, RAJEEV NAGAR, PALAKKAD - 678 006.** ## **BY ADV. SRI.GEORGE POONTHOTTAM** ## **RESPONDENTS:** - **1 UNION OF INDIA** **REPRESENTED BY THE MINISTRY OF AYUSH,DEPARTMENT OF HEALTH & FAMILY WELFARE,A WING, NIRMAN BHAVAN, MAULANA AZAD ROAD,NEW DELHI -110 011.** - **2 CENTRAL COUNCIL FOR INDIAN MEDICINE JAWAHAR LAL NEHRU BHARTIYA CHIKITSA AVAM HOMOEOPATHY ANUSANDHAN BHAWAN, 61-65,INSTITUTIONAL AREA, JANAKPURI "D" BLOCK,NEW DELHI - 110 058.** - **3 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT,DEPARTMENT OF HEALTH AND FAMILY WELFARE,GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** - **4 THE COMMISSIONER OF ENTRANCE EXAMINATIONS OFFICE OF THE COMMISSIONER OF ENTRANCE EXAMINATIONS,5TH FLOOR, HOUSING BOARD BUILDING, SHANTHI NAGAR,THIRUVANANTHAPURAM - 695 001.** **BY ADVS.SRI.N.NAGARESH SRI.K.SHRI HARI RAO, CGC SRI.V.MANU, SENIOR GOVT. PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.10.2018, ALONG WITH WP(C).31522/2018 AND WP(C).31519/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C) 25252/2018 ,WP(C).31522/2018 , WP(C).31519/2018** **2** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN** **&** ## **THE HONOURABLE MRS. JUSTICE SHIRCY V.** **FRIDAY, THE 26TH DAY OF OCTOBER 2018 / 4TH KARTHIKA, 1940** **WP(C).No. 31522 of 2018** ## **PETITIONER:** **VIDHYA H, D/O M. HARISH, AGED 19 YEARS, PRANAVAM, KAITHARAVE, VANDITHAVALAM PO, PALAKKAD - 678534** **BY ADV. SRI.GEORGE POONTHOTTAM** ## **RESPONDENTS:** **1 UNION OF INDIA REPRESENTED BY THE MINISTRY OF AYUSH, DEPARTMENT OF HEALTH AND FAMILY WELFARE, A WING, NIRMAN BHAVAN, MULANA AZAD ROAD, NEW DELHI - 110011** - **2 CENTRAL COUNCIL FOR INDIAN MEDICINE, JAWAHAR LAL NEHRU BHARTIYA CHIKITSA AVAM, HOMOEOPATHY ANUSANDHAN BHAWAN, 61-65, INSTITUTIONAL AREA, JANAKPURI “D” BLOCK, NEW DELHI 110 058.** - **3 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF HEALTH AND FAMILY WELFARE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001.** **4 THE COMMISSIONER OF ENTRANCE EXAMINATIONS, OFFICE OF THE COMMISSIONER OF ENTRANCE EXAMINATIONS, 5TH FLOOR, HOUSING BOARD BUILDING, SHANTHI NAGAR, THIRUVANANTHAPURAM 695 001. SRI.N.NAGARESH -ASSISTANT SOLICITOR GENERAL BY GOVERNMENT PLEADER, ADV. SRI.V.MANU** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.10.2018, ALONG WITH WP(C).25252/2018 AND WP(C).31519/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C) 25252/2018 ,WP(C).31522/2018 , WP(C).31519/2018** **3** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN** ## **&** **THE HONOURABLE MRS. JUSTICE SHIRCY V.** **FRIDAY ,THE 26TH DAY OF OCTOBER 2018 / 4TH KARTHIKA, 1940** ## **WP(C).No. 31519 of 2018** **PETITIONER:** **MANU KRISHNA P.V (MINOR) S/O K VELAYUDHAN,AGED 17, REPRESENTED THROUGH GUARDIAN, K VELAYUDHAN, S/O LATE P V KRISHNAN, AGED 62, PODIKULANGARA HOUSE, VARODE P O, PALAKKAD678572** ## **BY ADV. SRI.GEORGE POONTHOTTAM** ## **RESPONDENTS:** |**1**|**UNION OF INDIA**| |---|---| ||**REPRESENTED BY THE MNISTRY OF AYUSH, DEPARTMENT OF**| ||**HEALTH AND FAMILY WELFARE, A WING, NIRMAN BHAVAN,**| ||**MAULANA AZAD ROAD, NEW DELHI-110011**| |**2**|**CENTRAL COUNCIL FOR INDIAN MEDICINE**| ||**JAWAHAR LAL NEHRU BHARTIYA CHIKITSA AVAM HOMOEOPATHY**| ||**ANUSANDHAN BHAWAN, 61-65, INSTITUTIONAL AREA,**| ||**JANAKPURI “D” BLOCK, NEW DELHI-110 058.**| |**3**|**STATE OF KERALA**| ||**REPRESENTED BY THE SECRETARY TO GOVERNMENT,**| ||**DEPARTMENT OF HEALTH AND FAMILY WELFARE, GOVERNMENT**| ||**SECRETARIAT, THIRUVANANTHAPURAM-695001.**| **WP(C) 25252/2018 ,WP(C).31522/2018 , WP(C).31519/2018** **4** **4 THE COMMISSIONER OF ENTRANCE EXAMINATIONS OFFICE OF THE COMMISISONER OF ENTRANCE EXAMINATIONS, 5TH FLOOR, HOUSING BOARD BUILDING, SHANTHI NAGAR, THIRUVANANTHAPURAM-695001.** ## **OTHER PRESENT:** **SRI.K.SHRI HARI RAO,CGC SRI.N.NAGARESH -ASSISTANT SOLICITOR GENERAL BY SENIOR.GOVERNMENT PLEADER, ADV. SRI.V.MANU** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26.10.2018, ALONG WITH WP(C).25252/2018 AND WP(C).31522/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C) 25252/2018 ,WP(C).31522/2018 , WP(C).31519/2018** **5** ## **JUDGMENT** **[ WP(C) 25252/2018 ,WP(C).31522/2018 ,WP(C).31519/2018 ]** ## **K.Surendra Mohan,J** These three writ petitions are filed by aspirants for admission to the (Bachelor of Ayurvedic Medicine and Surgery) BAMS conducted by the various Ayurvedic Colleges in the State. They have filed these writ petitions challenging Exts.P7 and P8 proceedings by which NEET has been made applicable for admission to the BAMS courses also. Accordingly, admissions to BAMS courses can be given only on the basis of the ranking in the NEET rank list. According to the petitioners, Exts.P7 and P8 proceedings are unsustainable and liable to be set aside. The notification issued by the State Government on 23.7.2018 is also challenged. Since the question that arises for consideration **WP(C) 25252/2018 ,WP(C).31522/2018 , WP(C).31519/2018** **6** is the same, these writ petitions are considered and disposed of together. 2. According to Adv.Sri.George Poonthottam who appears for the petitioners, it is Ext.P5 Regulations that govern admissions to courses in Ayurvedic Medicine. Ext.P5 is the Indian Medicine Central Council (Minimum Standards of Education in Indian Medicine) Regulations, 1986 (hereinafter referred to as the 'the Regulations' for short). The Regulations have been issued by the _Central_ Council for Indian Medicine in exercise of the powers conferred by Section 36 of the Indian Medicine Central Council, Act 1970 (48 of 1970). It is pointed out that as per Regulation 2 the qualification to seek admission to the Bachelor of Ayurveda Education course has been provided as 12[th] standard with Science or any other equivalent examination recognised by the concerned State Governments and Education Boards with at least fifty percent aggregate marks in the subjects of Physics, Chemistry and Biology. It is contended that the petitioners herein possess the said qualification that makes **WP(C) 25252/2018 ,WP(C).31522/2018 , WP(C).31519/2018** **7** them eligible for admission to the BAMS course. However by Ext.P7 communication issued by the AYUSH, all State Governments have been informed that Ayush-UG seats from the Academic session 2018-19 shall be mandatorily filled by considering the merit list of National Eligibility cum Entrance Test (NEET) conducted by CBSE. Ext.P7 was followed by another communication Ext.P8 dated 11.6.2018 from the Ayush specifying that it shall be necessary for a candidate to obtain minimum of marks at 50[th] percentile in NEET for the academic year in order to be granted admission. The State Government has by Ext.P9 dated 20.6.2018 notified the publication of the rank list prepared on the basis of the NEET. The said proceedings are also alleged to be unsustainable and liable to be set aside. 3. The contention is that, Ext.P5 Regulations being the result of exercise of the legislative power occupies a superior position in comparison to Exts.P7 and P8 issued in exercise of the executive power of the State. Since in the matter of prescribing qualifications for the grant of **WP(C) 25252/2018 ,WP(C).31522/2018 , WP(C).31519/2018** **8** admission to the Ayurveda course, the field is occupied by Ext.P5 Regulations, Exts.P7 and P8 would have to yield to the provisions contained in Ext.P5. Otherwise, the resultant situation would be that of a regulation being amended by the exercise of an executive power. Since the qualifying criteria are also settled by Ext.P5 Regulations no alteration thereof by the issue of orders or communications like Exts.P7 and P8 is permissible. It is further contended that the said proceedings are therefore required to be interfered with and set aside. The learned Counsel places reliance on the decisions of a Division Bench of this Court in _**P.N.N.M.Ayurveda Medical College, Palakkad v. Kerala University of Health Sciences, Trichur and Another [2018 1 KHC 695 (DB)]**_ to contend that the Indian Medicine Central Council Act, 1970 is a complete code in itself. The Counsel also places reliance on the decision of a Single Bench of the High Court of Judicature at Patna dated 10.10.2018 in Civil Writ Jurisdiction Case No.16541/2018 to contend that, a similar communication **WP(C) 25252/2018 ,WP(C).31522/2018 , WP(C).31519/2018** **9** has been set aside. On the above grounds, the learned Counsel seeks interference with Exts.P7, P8 and P9. 4. The learned Senior Government Pleader Sri.V.Manu refutes the contention of the Counsel for the petitioners stating that the State Government has been conducting a common entrance test examination upto the year 2016-17 and admissions to BAMS courses were being granted only on the basis of the ranking in the said common entrance examination. For the academic year 2018-19 the prospectus was published as early as on 30.1.2018 wherein, it was specified that admissions to BAMS course would also be made only on the basis of the ranking in the NEET rank list. The learned Senior Government Pleader places reliance on the decision in _**Ajay K. Hasia and Others v. Khalid Mujib Sehravardi and others [1981(1) SCC 722],**_ particularly paragraph 17, to point out that the practice of conducting a common test for assessing the comparative merit of candidates was accepted by the Apex court as early as in the year 1981. **WP(C) 25252/2018 ,WP(C).31522/2018 , WP(C).31519/2018** **10** Apart from the above, as far as the present year is concerned, it is pointed out that allotment of candidates to the various colleges conducting BAMS course in the State has been completed, with only a few seats remaining to be filled up here and there. Therefore, it is contended that, there is no merit in the contentions put forwarded at this belated stage. 5. A statement has been filed by Adv.K.Sreehari Rao the Central Government Counsel. According to the learned Counsel, the Ministry had received a lot of representations from various quarters intimating them of the necessity of having a common entrance test for the purpose of admitting students to the Ayurveda-UG Courses. It was after considering the said representations and all other attendant circumstances, that the insistence on admissions being made on the basis of the merit according to the NEET rank list has been implemented. According to the learned counsel, the impugned proceedings are all justified and there are no grounds to interfere with them. **WP(C) 25252/2018 ,WP(C).31522/2018 , WP(C).31519/2018** **11** ## 6. Heard. 7. Ext.P5 is a copy of the Indian Medicine Central Council (Minimum Standards of Education in Indian Medicine) Regulations, 1986. As the title itself suggests what the regulations intend to provide for is only the minimum standards of education in Indian Medicine. The Apex Court has emphasized time and again that stipulation of minimum standards by the regulatory authority of any profession would not disentitle the State Government or the other authorities from stipulating higher standards in the interests of maintaining excellence in education. Therefore, insistence on a higher standard contrary to Ext.P5 cannot be found fault with. Regulation 2 of Ext.P5 reads as under: “2. Admission qualification- The eligibility to seek admission in Bachelor of Ayurveda education are as under- (a) 12[th] standard with Science or any other equivalent examination recognised by concerned State Governments and Education Boards with at least fifty per cent aggregate marks in the subjects of Physics, Chemistry and Biology. (b) For reserved category or special category like **WP(C) 25252/2018 ,WP(C).31522/2018 , WP(C).31519/2018** **12** physically handicapped students in 10+2, they shall be given relaxation in marks for admission in Bachelor of Ayurvedic Medicine and Surgery as per rules for time being in force. (c) For foreign students any other equivalent qualification to be approved by the concerned authority may be allowed.” 8. The above Regulation stipulates that the eligibility to seek admission in the Bachelor of Ayurveda Education is i) 12[th] standard with science or any other equivalent examination recognised by concerned State Governments and Education Boards ii) with at least fifty percent aggregate marks in the subjects of Physics, Chemistry and Biology. 9. It is clear from a reading of the above Regulation that what is stipulated is the criteria of 'eligibility'. It is common knowledge that, all persons satisfying the eligibility criteria would not be able to obtain admission to professional colleges. Admissions to professional colleges are granted on an evaluation of the comparative merit of the eligible candidates who apply for admission. Since **WP(C) 25252/2018 ,WP(C).31522/2018 , WP(C).31519/2018** **13** candidates from different State Boards seek admission to the professional courses, in order to evaluate their comparative merit, a common standard of assessment is necessary. It is for the said purpose, that a common entrance examination is conducted. The conduct of a common entrance examination is for a purpose different from that for which the criteria of eligibility are stipulated. The conduct of a common entrance examination is part of the procedure of admission through which the more meritorious among the candidates seeking admission are selected. Therefore, the prescription of ranking in the NEET as the basis for the grant of admission to candidates cannot be described as altering or amending the eligibility criteria stipulated by Ext.P5 regulations. Neither Ext.P7 nor Ext.P8 seeks to amend or alter the basic eligibility criteria of possession of 12[th] standard with 50% marks stipulated by Regulation 2 of Ext.P5. As held by the Supreme court as early as in _**Ajay Hasia's**_ case, the conduct of such an examination to evaluate the comparative merit of the **WP(C) 25252/2018 ,WP(C).31522/2018 , WP(C).31519/2018** **14** candidates who have applied cannot be said to be arbitrary. 10. In the above view of the matter, we are not satisfied that either Ext.P7 or P8 has amended Ext.P5 regulations. 11. Apart from the above, in so far as the current academic year is concerned, we are informed that the admission process has more or less been completed, on the basis of the NEET rank list. The petitioners in these writ petitions except one person has not qualified the NEET. For the above reasons, we find no merit in these writ petitions. They are dismissed. Sd/- K.SURENDRA MOHAN JUDGE Sd/- SHIRCY V. JUDGE smm **WP(C) 25252/2018 ,WP(C).31522/2018 , WP(C).31519/2018** **15** ## APPENDIX OF WP(C) 25252/2018 ## **PETITIONERS' EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE CHECKLIST OF RESULT SHOWING THE MARK SECURED BY THE PETITIONER IN THE EXAMINATION. EXHIBIT P2 TRUE COPY OF THE INTRODUCTION CONTAINED IN THE INFORMATION BULLETIN PUBLISHED BY CBSE. EXHIBIT P3 TRUE COPY OF THE GENERAL INFORMATION PUBLISHED BY CBSE. EXHIBIT P4 TRUE COPY OF THE ELIGIBILITY & QUALIFICATION PUBLISHED BY CBSE. EXHIBIT P5 TRUE COPY OF THE LATEST REGULATION FRAMED AND WHICH HOLDS THE FIELD AS OF NOW AND NOTIFIED ON 7TH NOVEMBER 2016. EXHIBIT P6 TRUE COPY OF THE RELEVANT PAGES OF THE PROSPECTUS ISSUED BY THE COMMISSIONER FOR ENTRANCE EXAMINATION. EXHIBIT P7 TRUE COPY OF THE LETTER DATED 14.05.2018 ISSUED BY THE MINISTRY OF AYUSH. EXHIBIT P8 TRUE COPY OF THE LETTER F.NO.R13040/33/2016-HD (TECH) PART DATED 11.06.2018 ISSUED BY THE GOVERNMENT OF INDIA. EXHIBIT P9 TRUE COPY OF THE NOTIFICATION DATED 20.06.2018 ISSUED BY THE 4TH RESPONDENT. EXHIBIT P10 TRUE COPY OF THE NOTIFICATION DATED 23.07.2018 ISSUED BY THE 4TH RESPONDENT.** **WP(C) 25252/2018 ,WP(C).31522/2018 , WP(C).31519/2018** **16** ## **APPENDIX OF WP(C) 31522/2018** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE CERTIFICATE ISSUED BY THE DIRECTORATE OF HIGHER EDUCATION IN FAVOUR OF THE PETITIONER.** **EXHIBIT P2 TRUE COPY OF THE PUBLICATION OF NEET RESULT OF THE PETITIONER,DECLARED ON 04-06-2018. EXHIBIT P3 TRUE COPY OF THE INTRODUCTION CONTAINED IN THE INFORMATION BULLETIN PUBLISHED BY CBSE EXHIBIT P4 TRUE COPY OF THE GENERAL INFORMATION PUBLISHED BY CBSE EXHIBIT P5 TRUE COPY OF THE ELIGIBILITY AND QUALIFICATION PUBLISHED BY CBSE. EXHIBIT P6 TRUE COPY OF THE LATEST REGULATION FRAMED AND WHICH HOLDS THE FIELD AS OF NOW AND NOTIFIED ON 07-11-2016 EXHIBIT P7 TRUE COPY OF THE RELEVANT PAGES OF THE PROSPECTUS ISSUED BY THE COMMISSIONER FOR ENTRANCE EXAMINATION. EXHIBIT P8 TRUE COPY OF THE LETTER DATED 14-05-2018 ISSUED BY THE MINISTRY OF AYUSH. EXHIBIT P9 TRUE COPY OF THE LETTER F.NO. R- 13040/33/2016-HD (TECH) PART DATED 11-062018 ISSUED BY THE GOVERNMENT OF INDIA. EXHIBIT P10 TRUE COPY OF THE NOTIFICATION DATED 20.6.2018 ISSUED BY THE 4TH RESPONDENT. EXHIBIT P11 TRUE COPY OF THE NOTIFICATION DATED 23.7.2018 ISSUED BY THE 4TH RESPONDENT.** **WP(C) 25252/2018 ,WP(C).31522/2018 , WP(C).31519/2018** **17** ## **APPENDIX OF WP(C) 31519/2018** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE CERTIFICATES ISSUED BY THE CBSE DATED 26.5.2018 IN FAVOUR OF THE PETITIONER.** **EXHIBIT P2 TRUE COPY OF THE CHECKLIST OF RESULT SHOWING THE MARK SECURED BY THE PETITIONER IN THE EXAMINATION DATED 6.7.2018.** **EXHIBIT P3 TRUE COPY OF THE PUBLICATION OF CBSE-NEET RESULT OF THE PETITIONER, DECLARED ON 4.6.2018.** **EXHIBIT P4 TRUE COPY OF THE INTRODUCTION CONTAINED IN THE INFORMATION BULLETIN PUBLISHED BY CBSE. EXHIBIT P5 TRUE COPY OF THE GENERAL INFORMATION PUBLISHED BY CBSE. EXHIBIT P6 TRUE COPY OF THE ELIGIBILITY & QUALIFICATION PUBLISHED BY CBSE. EXHIBIT P7 TRUE COPY OF THE LATEST REGULATION FRAMED AND WHICH HOLDS THE FIELD AS OF NOW AND NOTIFIED ON 7.11.2016. EXHIBIT P8 TRUE COPY OF THE RELEVANT PAGES OF THE PROSPECTUS ISSUED BY THE COMMISSIONER FOR ENTRANCE EXAMINATION. EXHIBIT P9 TRUE COPY OF THE LETTER DATED 14.5.2018 ISSUED BY THE MINISTRY OF AYUSH. EXHIBIT P10 TRUE COPY OF THE LETTER F.NO.R13040/33/2016-HD (TECH) PART DATED 11.6.2018 ISSUED BY THE GOVERNMENT OF INDIA. EXHIBIT P11 TRUE COPY OF THE NOTIFICATION DATED 20.6.2018 ISSUED BY THE 4TH RESPONDENT. EXHIBIT P12 TRUE COPY OF THE NOTIFICATION DATED** **WP(C) 25252/2018 ,WP(C).31522/2018 , WP(C).31519/2018** **18** **23.7.2018 ISSUED BY THE 4TH RESPONDENT**