J U D G M E N T

B.R. GAVAI, J .

1. Leave granted.

2. This appeal challenges the order dated 12th December 2023 passed by the Division Bench of the High Court of Gujarat at Ahmedabad in Letters Patent Appeal (LPA) No. 1433 of 2023 in R/Special Civil Application (SCA) No. 19485 of 2023, whereby the order passed by the learned Single Judge dated 30th November 2023 was stayed.

3. The appellant before us had approached the High Court for direction to respondent No.1-Admission Committee for Professional Undergraduate Medical Educational Courses (for short “Admission Committee”) (Respondent No.2 herein) to follow the mandate of Rule 16 of the Gujarat Professional Medical Educational Courses (Regulation of Admission in Undergraduate Courses) Rules, 2017 (for short “2017 Rules”). It had also prayed for a direction permitting the unaided ayurveda and homeopathy medical colleges in the State of Gujarat to admit students on seats that remained vacant after completion of the admission process by the Admission Committee in accordance with Rule 16 of the 2017 Rules.

4. The learned Single Judge of the High Court considered that though Respondent No.2-Union of India through Ministry of Ayurveda, Yoga & Naturopathy, Unani, Siddha & Ayurveda (AYUSH) (for short “AYUSH”) (Respondent No.3 herein) had framed guidelines for State/ UT counselling for the Academic year 2023-24, they did not make any provision for filling up the vacancies after the final round of counselling, more particularly known as ‘the mop up round’ or ‘the stray vacancies round’.

5. The learned Single Judge of the High Court had also observed that the last date for granting admission being 30th November, 2023 i.e. the date on which it passed the order, there was likelihood that there would be many vacancies which would be reported by the end of the day and there would be no modalities for filling up the said vacancies.

6. In the peculiar facts and circumstances of the instant case and more particularly, in view of the fact that no provisions had been made for filling up the vacancies in the ‘mop up round’ or ‘the stray vacancies round’, the learned Single Judge of the High Court issued directions as under:

" 8. Having regard to such submissions more particularly since it appears that there is a strong possibility of vacancies arising even after the final round of counseling as per the guidelines issued by the Central Government, and whereas since there is no provision for the stray vacancies as having been made in Rule 16 of the Rules hereinabove, more particularly to ensure that seats do not go vacant and to ensure that eligible meritorious candidates are not deprived of admission and also to ensure transparency remains even in the filling up of the stray vacancies, this Court passes the following directions:

[1] While the last date for joining after the 9th round of counselling being at 4 p.m. today, the respondent no. 1 shall on 04.12.2023 prepare a list of vacancies which have occurred on account of students who, have been given admission not joining.

[2] The vacancies shall be filled up by the respondent no. 1 in the following order:

[i] The respondent no. 1 shall give admission to the remaining students figuring in the merit list of eligible candidates as per admission Rules and who have been hitherto not being given admission to any colleges. The vacancies shall be filled up in by the respondent no.1 in the above mode within a period of five working days from 05.12.2023.

[ii] If there are any seats remaining after the above round, then the respondent no. 1 shall fill up such vacancies from candidates who have applied to admission committee and qualified as per the NEET-UG criteria but are not included in the merit list of the Committee because of not fulfilling some other criteria as per the Admission Rules. Such exercise shall commence from 12.12.2023 and will be completed by

16.12.2023.

[iii] After the above two rounds, if there are any further vacancies remaining then the said vacancies shall be displayed by the respondent no. 1 on its official website as well as on its own Notice Board and whereas candidates who are eligible as per NEET- UG criteria but who had not applied to the Admission Committee anytime before, would be eligible to apply and whereas such vacancies shall be filled in by the Admission Committee from amongst the merit list of such students based upon their inter se merit.

[iv] It is clarified that students who have not reported in the last round would not be eligible to apply. Furthermore, students who have applied and having been given admission and having not reported shall also not be eligible to apply in the rounds as stated above.

[v] The respondent No. 2 after being intimated about the vacancies which are filled in as per the procedure prescribed hereinabove shall approve the same.

[vi] The above arrangement would be for the present year in the peculiar facts of the present case and whereas this Court hopes that respondent no. 2 will make appropriate amends in the guidelines to ensure that there would be modality prescribed for filling up of the stray vacancies from the next academic year.”

7. It is to be noted that the directions issued by the learned Single Judge of the High Court, permitted the admission to be made through the Admission Committee and not the colleges.

8. It is further to be noted that the learned Single Judge of the High Court also issued a direction to the Admission Committee to fill up the vacancies only from the candidates who had applied to the Admission Committee and were qualified as per the NEET-UG criteria. The learned Single Judge granted the window from 12th December 2023 to

16th December 2023 to comply with the said direction.

9. We have heard Mr. Nikhil Goel, learned counsel appearing for the appellant, Mr. Purvish Jitendra Malkan, learned counsel appearing for respondent No.1, Ms. Manisha Lavkumar, learned Senior Counsel appearing for respondent No.2-Admission Committee, Ms. Aishwarya Bhati, learned Additional Solicitor General appearing for respondent No.3-Union of India through Ministry of AYUSH and Ms. Archana Pathak Dave, learned counsel appearing for respondent Nos.4 and 5.

10. Learned counsel appearing for the respective respondents have vehemently opposed the appeal.

11. It is submitted by the learned counsel for the respondents that such a course as ordered by the learned Single Judge of the High Court is not permissible in law.

12. One of the directions which was issued by the learned Single Judge was that if any student does not report within the specified period i.e. from 12th December 2023 to 16th December 2023, such student would not be entitled to apply.

13. It appears that in pursuance to the directions issued by the learned Single Judge of the High Court, the Admission Committee in compliance with the said directions, started the admission process and in the said process, 228 students had been admitted by 12th December 2023. Out of those 228 students, 76 students had already paid their fees. However, since the learned Division Bench of the High Court stayed the order of learned Single Judge on 12th December 2023, the remaining students could neither deposit their fees nor could the Admission Committee accept their fees.

14. It is to be noted that the appeal before the Division Bench of the High Court was filed by a student, who could not be benefited by the order of the learned Single Judge in view of the directions in paragraph 8(iv). The limited prayer made by the appellant therein was to be given the benefit of the order passed by the learned Single Judge of the High Court. Neither the Union of India through Ministry of AYUSH nor the Admission Committee challenged the order of the learned Single Judge of the High Court by way of an appeal.

15. On the contrary, the Admission Committee, in effect, implemented the order passed by the learned Single Judge of the High Court till it was stayed by the Division Bench of the High Court.

16. As a matter of fact, even the appellant who had approached the Division Bench of the High Court, wanted to withdraw the appeal but the request was rejected.

17. It could thus be seen that the order passed by the learned Division Bench of the High Court has been passed in an appeal wherein even the appellant therein did not want to prosecute the appeal.

18. No doubt that in the ordinary course, the Courts are not expected to interfere with the admission process.

19. However, taking into consideration the peculiar facts and circumstances of the present case, more particularly, Rule 16 of the 2017 Rules and the vacuum in the guidelines by the Ministry of AYUSH for filling up the vacancies after the ‘mop up round’ or the ‘stray vacancies round’, the learned Single Judge exercised the discretion. While exercising the discretion, the learned Single Judge took care to see to it that admissions are not left to the respective colleges but the same are done through the Centralised Admission Agency i.e. the Admission Committee-respondent No.1 therein.

20. It further took care to ensure that the admissions were done only of the candidates who were qualified as per the NEET-UG criteria. As such, it cannot be said that the discretion exercised by the learned Single Judge of the High Court was exercised in a perverse manner.

21. It is further to be noted that even a three-Judges Bench of this Court in the case of S. Krishna Sradha v. State of Andhra Prades h and Others1 , has also held that under exceptional circumstances, the Court will be empowered to extend the last date of admission.

22. We therefore find that, in the peculiar facts and circumstances of the present case, it was not necessary for the Division Bench of the High Court to have interfered with the order passed by the learned Single Judge of the High Court. More particularly so, when the person who had approached the Division Bench, had in fact, wanted the benefit of the order of the learned Single Judge of the High Court and was not aggrieved by the same.

23. Further, the said student also wanted to withdraw the appeal and did not want to proceed further.

24. Neither the Admission Committee (Respondent No.2 herein) nor Union of India through Ministry of AYUSH (Respondent No.3 herein), had approached the Division Bench of the High Court. At least, at that stage, they did not have any grievance with regard to the directions issued by the learned Single Judge of the High Court. As already pointed out that the Admission Committee, had in fact implemented the order passed by the learned Single Judge of the High Court.

25. No doubt that on account of the stay granted by the Division Bench of the High Court, the four additional days which were made available to the Admission Committee for filling up the posts, would not be available and the number of vacancies which would be much more, will now remain vacant or not filled. However, at this stage, we

1 (2020) 17 SCC 46 5 do not propose to go into the said issue.

26. Since 228 students have already taken admission, we direct the Admission Committee (Respondent No.2 herein) and Union of India through Ministry of AYUSH (Respondent No. 3 herein) to regularize their admissions and also accept the fees of such students who could not pay their fees by 12th December 2023.

27. Mr. Purvish Jitendra Malkan, learned counsel appearing for the Respondent No.1 (appellant before the High Court) reiterates that he does not want to proceed further with the appeal and so the LPA No. 1433 of 2023 in R/SCA No. 19485 of 2023 is, therefore, disposed of as withdrawn.

28. The appeal is allowed in the above terms.

29. Pending application(s), if any, stand disposed of.

….........................J .

(B.R. GAVAI )

............................J .

(SANDEEP MEHTA )

NEW DELH I JANUARY 09, 202 4 ITEM NO.51 COURT NO.3 SECTION II I S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDING S Petition(s) for Special Leave to Appeal (C) No(s). 27875/202 3 (Arising out of impugned final judgment and order dated 12-12-202 3 in LPA No. 1433/2023 passed by the High Court Of Gujarat A t Ahmedabad )

AAROGYAM ASSOCIATION OF REGIONA L AYUSH COLLEGES GUJARAT STATE Petitioner(s )

VERSU S DESAI SUJAN JAYRAMBHAI (MINOR) & ORS. Respondent(s )

(FOR ADMISSION and I.R. and IA No.261829/2023-EXEMPTION FROM FILIN G C/C OF THE IMPUGNED JUDGMENT and IA NO. 267289-APPLICATION O F IMPLEADMENT )

Date : 09-01-2024 This petition was called on for hearing today .

CORAM :

HON'BLE MR. JUSTICE B.R. GAVA I HON'BLE MR. JUSTICE SANDEEP MEHT A For Petitioner(s )

Mr. Nikhil Goel, AO R Ms. Naveen Goel, Adv .

Mr. Adithya Koshy Roy, Adv .

Ms. Siddhi Gupta, Adv .

For Respondent(s )

Mr. Purvish Jitendra Malkan, AO R Mrs. Dharita Purvish Malkan, Adv .

Mr. Alok Kumar, Adv .

Mr. Kush Goel, Adv .

Ms. Manisha Lavkumar, Sr. Adv .

Ms. Deepanwita Priyanka, AO R Mr. Gurmeet Singh Makker, AO R Ms. Archana Pathak Dave, AO R Mr. Kumar Prashant, Adv .

Mr. Parmod Kumar Vishnoi, Adv .

Mr. Vaibhav Dwivedi, Adv .

Mr. Pradhuman Gohil, Adv .

Mrs. Taruna Singh Gohil, AO R Ms. Ranu Purohit, Adv .

Mr. Alapati Sahithya Krishna, Adv .

Mr. Rushabh N. Kapadia, Adv .

Mr. Mohit Prasad, Adv .

UPON hearing the counsel the Court made the followin g

O R D E R

1. Leave granted .

2. The appeal is allowed in terms of the signed non-reportabl e judgment .

3. Pending application, including application fo r intervention/impleadment(s), if any, stand disposed of .

(DEEPAK SINGH) (BEENA JOLLY )

COURT MASTER (SH) COURT MASTER (NSH )

[Signed non-reportable judgment is placed on the file ]