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2018 Supreme(Ker) 953
IN THE HIGH COURT OF KERALA AT ERNAKULAM
K. SURENDRA MOHAN, SHIRCY V., JJ.
Silpa Suresh K.T.S. (Minor) D/o Dr. K.T.G. Suresh – Petitioner
Versus
Union of India Rep. by the Ministry of Ayush, Department of Health and Family Welfare – Respondent
WP (C) Nos. 25252, 31519, 31522 of 2018
Decided On : 26-10-2018
For the Petitioner: Sri. George Poonthottam.
For the Respondents: Sri. N. Nagaresh, Sri. K. Shri Hari Rao, Sri. V. Manu.
IMPORTANT POINTS :
• 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 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 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.
Headnote:The Indian Medicine Central Council (Minimum Standards of Education in Indian Medicine) Regulations, 1986; Indian Medicine Central Council Act, 1970 -Section 36 -The Regulations have been issued by the Central Council for Indian Medicine in exercise of the powers conferred -The term 'commercial site' as defined in S.2(5) of the Act read with S.81(1)(q) of the Act has to be given a narrower meaning only- What is relevant under S.81(3) of the Act is that there should be public interest as opposed to private interest and the land bona fide required for the purpose intended.
Statement of facts :
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 12th 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 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.
Finding of the court :
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-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 12th standard with 50% marks stipulated by Regulation 2 of Ext.P5-The conduct of such an examination to evaluate the comparative merit of the candidates who have applied cannot be said to be arbitrary.
Result : Writ petitions are dismissed.
K. SURENDRA MOHAN, J.
1. 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 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 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 12th 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 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 50th 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 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 vs. 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 has been set aside. On the above grounds, the learned Counsel seeks interference with Exts.P7, P8 an
