[CASE NUMBER] ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD [CASE NUMBER] [On note for speaking to minutes of order dated 02/08/2017 in [CASE NUMBER] ] [ENTITY] & 2 Petitioner(s) Versus [ENTITY] & 1 Respondent(s) Appearance: MR [ENTITY], SENIOR ADVOCATE WITH MR [ENTITY], ADVOCATE for the Petitioner(s) No. 1 - 3 MR [ENTITY], ADDITIONAL ADVOCATE GENERAL WITH MR [ENTITY], AGP for the Respondent(s) No. 1 MS MANISHA LAVKUMAR SHAH, GOVERNMENT PLEADER WITH MR KM ANTANI, AGP for the Respondent(s) CORAM: HONOURABLE THE CHIEF JUSTICE MR. [ENTITY] and HONOURABLE MR.JUSTICE [ENTITY] Date : 11/08/2017 ORAL ORDER
(PER :HONOURABLE THE CHIEF JUSTICE MR. [ENTITY]) This matter is placed pursuant to a note for speaking to minutes submitted by the office of the Government Pleader dated 04.08.2017.
We have perused the note dated 04.08.2017 submitted by the office of the Government Pleader of this Court. It is submitted in the said note that while dismissing [CASE NUMBER] vide order dated 02.08.2017, due to inadvertence, appearance of the learned Government Pleader with learned Assistant Government Pleader has not been mentioned in the HC-NIC Page 1 of 45 Created On Sun Aug 20 15:44:56 IST 2017 1 of 45 order.
Accordingly, the note for speaking to minutes is disposed of with a direction to the Registry to show the appearance of learned Government Pleader Mrs. [ENTITY] with learned Assistant Government Pleader Mr. [ENTITY] for the respondents in the order dated 02.08.2017.
([ENTITY], CJ) ([ENTITY], J.) [ENTITY] HC-NIC Page 2 of 45 Created On Sun Aug 20 15:44:56 IST 2017 2 of 45 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD [CASE NUMBER] FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR. [ENTITY] and HONOURABLE MR.JUSTICE [ENTITY] 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the [ACT] or any order made thereunder ?
[ENTITY] & 2 Petitioner(s) Versus [ENTITY] & 1 Respondent(s) Appearance:
MR [ENTITY], SENIOR ADVOCATE WITH MR [ENTITY], ADVOCATE MR [ENTITY], ADDITIONAL ADVOCATE GENERAL WITH MR DM CORAM: HONOURABLE THE CHIEF JUSTICE MR. [ENTITY] and HONOURABLE MR.JUSTICE [ENTITY] Date : 02/08/2017 [ENTITY] (PER : HONOURABLE MR.JUSTICE [ENTITY])
1. By way of present petition which is filed under [SECTION] of the [ACT] Page 3 of 45 Created On Sun Aug 20 15:44:56 IST 2017
3 of 45 India, petitioners have challenged the validity of [SECTION], [SECTION] and [SECTION] of the [ACT], (hereinafter referred to as the Rules of 2017), insofar as it makes National Eligibility Entrance Test ([ACT]) mandatory for students aspiring to get admissions to Bachelor of [ENTITY]a, Medicine and Surgery (BAMS) and Bachelor of Homeopathic Medicine and Surgery (BHMS) courses. Petitioners have sought declaration that the said provisions be declared as ultra vires.
2. The factual matrix of the present case is as under:
2.1. The petitioners have appeared in 12th Standard Examination (Group B) conducted by the Gujarat Secondary and Higher Secondary Education Board, Gandhinagar for the academic year 2017-
2018. Petitioners secured qualifying marks in 12th Standard Examination. Petitioners were eligible to appear in [ACT] conducted by the Central Board of Secondary Education (CBSE). However, as per the case of the petitioners the same was required for getting admission to Bachelor of Medicine and Bachelor of Surgery (MBBS) and Bachelor of Dental Surgery (BDS) courses. It is the say of the HC-NIC Page 4 of 45 Created On Sun Aug 20 15:44:56 IST 2017 4 of 45 petitioners that they appeared in [ACT] for the sake of appearing as they were otherwise eligible to appear without any serious aspiration to get admissions to MBBS and BDS courses. However, they failed to get qualifying marks in [ACT] prescribed for the purpose of securing admission to MBBS and BDS courses.
2.2. It is stated that as a result of insertion of [SECTION] in [ACT] and the [ACT], [ACT] become the sole criteria for the students aspiring to take admissions to medical courses w.e.f. the academic year 2017-18. It is the case of the petitioners that since [ACT] is meant only for getting admissions to MBBS and BDS courses for which the petitioners were not aspiring, the petitioners also appeared in Gujarat Common Entrance Test (GUJCET), which was compulsory up till now for students aspiring to get admissions to various courses in all the professional disciplines including [ENTITY]a and Homeopathy in which the petitioners intend to pursue their career. It is further stated that till last year, the minimum eligibility criteria for getting admissions to courses in [ENTITY]a (BAMS) was that the students should have got 50% marks in qualifying examination, i.e. 12th Standard Examination and that students should have only HC-NIC Page 5 of 45 Created On Sun Aug 20 15:44:56 IST 2017 5 of 45 appeared in GUJCET without there being any further requirement of securing any minimum percentage of marks in GUJCET. Similarly, till last year minimum criteria for getting admission to courses in Homeopathy was that the students should have only passed qualifying examination and that the students should have only appeared in GUJCET without there being any further requirement of securing any minimum percentage of marks in GUJCET.
2.3. It is further stated that for the current academic year, i.e. 2017-2018, GUJCET is confined only for admissions to courses in Engineering and Pharmacy. The same is not made applicable for the courses of BAMS and BHMS.
2.4. The grievance of the petitioners is that by way of the impugned Rules, the eligibility criteria for admissions is changed and as per the new criteria, a candidate who desires admissions in MBBS, BDS, BAMS, BHMS, BNAT shall have qualified in [ACT] conducted for the current academic year. It is further provided in the Rules that no candidate shall be admitted in the Professional Medical Educational Courses unless he fulfills the eligibility criteria including the minimum qualifying percentage/percentile. It is stated that for getting admissions in BAMS, HC-NIC Page 6 of 45 Created On Sun Aug 20 15:44:56 IST 2017 6 of 45 minimum 50% marks is required in qualifying examination and 50 percentile is required in [ACT] for General Category candidate. Similarly, for getting admission in BHMS, a candidate must pass qualifying examination with Physics, Chemistry percentile in [ACT]. Thus, the grievance of the petitioners is that the eligibility criteria has been changed by the respondent State by framing the impugned rules, which is ultra vires and therefore the present petition is filed.
3. Heard learned Senior Counsel Mr. [ENTITY] assisted by learned advocate [ENTITY] for the petitioners and learned Additional Advocate General Mr. [ENTITY] assisted by learned AGP Mr. [ENTITY] for the respondents.
4. Learned Senior Counsel Mr. [ENTITY] appearing for the petitioners mainly contended that the State Legislature is not competent to prescribe [ACT] as the sole criteria for admissions to the courses in BAMS and BHMS, inasmuch as the said criteria could only have been prescribed by the parent Councils established by the Central Government under two Central Legislations viz. [ACT] (hereinafter referred to as the [ACT]) and [ACT] Page 7 of 45 Created On Sun Aug 20 15:44:56 IST 2017 7 of 45 1973 (hereinafter referred to as the Act of 1973). It is submitted that the Regulations are framed by the Council established under the [ACT] while exercising powers under [SECTION] of the [ACT] and said regulations are amended by a Notification dated 7.11.2016. It is submitted that the eligibility criteria provided under the said Regulations for getting admission in Bachelor of [ENTITY]a is that a candidate should have passed 12th Standard Examination with science or any other equivalent examination recognized by concerned State Government and Educational Board with at least 50% aggregate marks in the subjects of Physics, Chemistry and Biology. Similarly, the Central Council of Homeopathy have framed the Regulation in which it is provided that no candidate shall be admitted to BHMS unless he has passed Higher Secondary Examination or the Indian School Certificate Examination which is equivalent to 10+2 Higher Secondary Examination with the subjects of Physics, Chemistry and Biology. Thus, it is contended that by prescribing the [ACT] as the sole criteria by inserting [SECTION] and 4(5)(A)
(b) in the Rules of 2017, the State Legislature has encroached upon the field which is occupied by two Central Legislations viz. [ACT]. It is, therefore, urged that the impugned Rules deserve to be struck down.
HC-NIC Page 8 of 45 Created On Sun Aug 20 15:44:56 IST 2017 8 of 45 4.1. At this stage, learned Senior Counsel Mr. [ENTITY] would submit that [SECTION] is inserted in [ACT] and similar provision is also inserted in [SECTION] of [ACT], whereby [ACT] become the sole criteria for students aspiring to take admissions to medical courses w.e.f. Academic year 2017-2018. Learned counsel would further contend that [ACT] is mandatory only for securing admissions to courses in MBBS and BDS which aspect would be clear if the booklet issued by CBSE is examined. Learned counsel referred the information bulletin issued by CBSE for [ACT] which is produced at page 38 of the compilation and contended that it is specifically stated in the said bulletin that [ACT] is for admission to MBBS/BDS courses. It is therefore submitted that [ACT] is meant only to get admission to MBBS and BDS courses. Petitioners though appeared in the said examination but not taken the same seriously. At this stage, it is clarified that till last year the eligibility criteria for getting admissions in BAMS and BHMS courses was different and the candidates were admitted on the basis of the marks obtained in 12th standard examination and that the students should have appeared in GUJCET. Thus, it is submitted that by framing the impugned Rules, the respondents have encroached upon the field which is occupied by HC-NIC Page 9 of 45 Created On Sun Aug 20 15:44:56 IST 2017 9 of 45 the Central Legislations.
4.2. It is further contended that if the petitioners had been made aware in advance about the fact that [ACT] was going to be made sole criteria for admission to the courses of BAMS and BHMS, they could have prepared for [ACT] in much better way. At this stage, it is submitted that the respondent State was not justified in changing the Rules midway i.e. after the conclusion of GUJCET and qualifying examination i.e. 12th Standard Examination. The change in the Rules, if at all required, is permitted before the commencement of the qualifying examination and not thereafter. It is, therefore, submitted that on this ground also, the impugned Rules be struck down.
4.3. Learned counsel Mr. [ENTITY] thereafter submits that at the time of conducting the [ACT], the respondent State has not given wide publicity that though [ACT] which was meant for MBBS and BDS courses as per the information bulletin, the same would apply to BAMS and BHMS courses also and therefore the students like the petitioners were justified in believing that the [ACT] is for MBBS and BDS courses only.
4.4. Learned counsel Mr. [ENTITY] further submits HC-NIC Page 10 of 45 Created On Sun Aug 20 15:44:56 IST 2017 10 of 45 that the respondent State has wrongly placed reliance upon the communication issued by the AYUSH Ministry of the Central Government. It is submitted that the communication dated 26.04.2017, the concerned Under Secretary of AYUSH Department, Government of India has informed the State Authorities that it would be advisable to adopt the merit list of [ACT] for admission in AYUSH UG courses for the academic year 2017-2018. In the said communication it is further clarified that due to some difficulties, if the States are unable to adopt [ACT] merit list for AYUSH UG admission for the academic year 2017-2018, then the State Government may admit students as per the existing Rules and Policies of the State Government and admissions to such courses shall be compulsorily be made through [ACT] merit list from academic year 2018-2019. At this stage, it is submitted that by way of executive instruction such directions cannot be issued by the Central Government to the State Government in absence of amendment in the parent Acts i.e. [ACT] and the regulations framed thereunder.
4.5. Learned counsel Mr. [ENTITY] lastly contended that the [ACT] is proposed which provides for conducting [ACT] for Indian HC-NIC Page 11 of 45 Created On Sun Aug 20 15:44:56 IST 2017 11 of 45 Systems of Medicine i.e. [ENTITY]a, Homeopathy, etc. However, the said Bill is not laid in the Parliament and therefore the provisions of the proposed Bill cannot be applied. Learned counsel therefore urged that the present petition be allowed and impugned Rules be declared as ultra vires and consequently the same be struck down.
5. On the other hand, learned Additional Advocate General Mr. [ENTITY] opposed the petition on the ground that the Ministry of AYUSH, vide communication dated 25.01.2017 instructed all the State Governments to ensure that admissions to AYUSH system of medicine be made through [ACT]. On the basis of the said instructions, the State Government issued the press note that [ACT] shall be mandatory for admission to Professional Medical Educational Courses as defined under [SECTION] of the [ACT] which includes BAMS and BHMS. Consequently, the Health and Family Welfare Department also instructed the Gujarat Secondary and Higher Secondary Education Board that there shall be no Common Entrance Test for admissions to the institutions imparting professional medical educational courses. At this stage, it is submitted that various State HC-NIC Page 12 of 45 Created On Sun Aug 20 15:44:56 IST 2017 12 of 45 Governments made representation to the Central Government pointing out their difficulties in implementing the instructions dated 25.01.2017 and therefore the Ministry of AYUSH issued clarification dated 26.04.2017 by which instructions were given to the State Government to undertake admission procedure through Common Entrance Test for the academic year 2017-18, however if they were unable to adopt [ACT] for the current academic year, it was also directed that [ACT] shall be made compulsory for admissions to the institutions imparting education in AYUSH system of medicine from academic year 2018-2019 onwards. However, the respondents through the concerned Department informed the Gujarat Secondary and Higher Secondary Education Board that GUJCET shall not be required for admissions to the Professional Medical Educational Courses and therefore the respondent State has acted as per the directions issued in the communication dated 25.01.2017.
5.1. Learned Additional Advocate General would further contend that despite notifying [ACT] to be a mandatory requirement for admission to Professional Medical Educational Courses which includes BAMS and BHMS as early as on 10.02.2017, the petitioners had 'no serious ambitions' to appear in [ACT] thus had participated in [ACT] only HC-NIC Page 13 of 45 Created On Sun Aug 20 15:44:56 IST 2017 13 of 45 for the sake of appearing. It is submitted that once the petitioners have participated in [ACT] and having failed to secure qualifying marks, it is not open for the petitioners to contend that they were not aware about the fact that result of the [ACT] would be considered for admission to BAMS and BHMS courses also.
5.2. Learned Additional Advocate General would contend that in the Regulations framed under the [ACT], minimum eligibility criteria is prescribed by the concerned Councils. It is submitted that it is always open for the State to enhance the eligibility criteria. It is, therefore, contended that when the State has provided the criteria higher than the minimum eligibility criteria provided under the concerned regulations, it cannot be said that State has encroached upon the field occupied by the Central Legislations and the regulations framed thereunder. Thus, it is stated that on this ground, the impugned Rules cannot be declared as ultra vires as submitted by the petitioners.
5.3. Learned Additional Advocate General submits that more than 98% students of standard 12th (Group B) have appeared in [ACT] and therefore it cannot be said that the students were under HC-NIC Page 14 of 45 Created On Sun Aug 20 15:44:56 IST 2017 14 of 45 the belief that [ACT] is meant for MBBS and BDS courses only. At this stage, it is further pointed out that against the total approximately 15,000 seats for Professional Medical Educational Courses, there are approximately 32,000 registration for such seats. Thus, looking to the limited seats available for the aforesaid courses, respondent State is justified in prescribing the higher standard then the minimum prescribed by the concerned Councils.
5.4. Learned Additional Advocate General has placed reliance upon the following decisions in support of his submissions:
(1) In [PRECEDENT].
(2) In [PRECEDENT], reported in 1986 (Supp) SCC 543.
(3) In State of T.N. & Anr. v. [ENTITY] Educational & Research Institute & Ors., reported in (1995) 4 SCC 104.
(4) In [PRECEDENT] Page 15 of 45 Created On Sun Aug 20 15:44:56 IST 2017 15 of 45 5.5. Learned Additional Advocate General, therefore, requested that present petition being devoid of any merits be dismissed.
6. We have heard the learned counsels appearing for the parties. We have also gone through the material produced on record, relevant provisions of law as well as the decisions upon which reliance is placed by the learned counsel.
7. In the present petition, following question is posed for our consideration:
"Whether the respondent State is justified in law in enacting [SECTION], [SECTION] and [SECTION] in Rules of 2017, providing for [ACT] in the eligibility criteria for admissions to BAMS and BHMS courses and whether the State has encroached upon the field occupied by the Central Legislations i.e. the [ACT]?"
8. It has emerged from the record that petitioners have appeared in 12th Standard Examination (Group B) conducted by the Gujarat Secondary and Higher Secondary Board for the academic year 2017-2018. Petitioners also appeared in GUJCET as well as [ACT]. However, petitioners failed to get qualifying marks in HC-NIC Page 16 of 45 Created On Sun Aug 20 15:44:56 IST 2017 16 of 45 [ACT] prescribed for the purpose of securing admission in MBBS and BDS courses. It is the case of the petitioners that they appeared in [ACT] for the sake of appearing as they were otherwise eligible to appear without any serious aspiration to get admissions to MBBS and BDS courses. From the record, it has also emerged that Gujarat Secondary and Higher Secondary Education Board issued the press-note on 08.03.2017, wherein it has been specifically stated that GUJCET would be conducted for Degree Engineering, Degree/Diploma Pharmacy Courses only for the academic year 2017- 2018. Thus, the petitioners were aware about the fact that for the academic year 2017-2018 result of the GUJCET will not be considered for admission to Professional Medical Educational Courses including BAMS and BHMS. In spite of that they appeared in GUJCET. It is further revealed from the communication dated 31.05.2016 from Central Council of Indian Medicine issued to the Health Secretaries of all the State Governments (the same was produced on record at the time of hearing by the learned Additional Advocate General) that in the meeting held on 09.05.2016 at the Ministry of AYUSH, it was decided to bring meritorious students to the Indian Systems of Medicine by making the admission in [ENTITY], [ENTITY] and [ENTITY] courses in the country through the [ACT] only from academic session 2017-2018 HC-NIC Page 17 of 45 Created On Sun Aug 20 15:44:56 IST 2017 17 of 45 onwards. However, it was stated in the said communication that for academic year 2016-2017, the State Government can give admission on the basis of the examination conducted by the respective State Governments through Common Entrance Test.
9. It has further emerged that Ministry of AYUSH once again informed the concerned Department of all the State Governments by communication dated 25.01.2017 that UG seats may be filled by considering the merit of [ACT] and thereafter it was clarified by another communication dated 26.04.2017 by the Department of AYUSH that it would be advisable for the State Government to adopt the merit-list of [ACT] for admission in AYUSH-UG courses for the academic year 2017-18. However, if due to some difficulties State Governments are unable to adopt [ACT] merit-list for the aforesaid courses for the academic year 2017-18 then the Governments may admit the students through Common Entrance Test of the concerned State Governments and admissions in AYUSH UG courses shall compulsorily be made through [ACT] merit list from academic year 2018-19. At this stage, it is relevant to note that the first communication from Central Council of Indian Medicine was of May 2016 for giving admission in BAMS and BHMS HC-NIC Page 18 of 45 Created On Sun Aug 20 15:44:56 IST 2017 18 of 45 courses on the basis of the result of the [ACT] from the academic year 2017-18. Similar communication was issued by the Ministry of AYUSH in January 2017. Thus, the Gujarat Secondary and Higher Secondary Education Board has issued the press-note in March 2017 that GUJCET would be conducted for Degree Engineering and Degree/Diploma Pharmacy courses only. The press- note/news item is also published in the concerned newspaper which is produced at page 123 of the compilation by the respondent State from which also it is revealed that the admissions in medical, dental, homeopathy, ayurveda and naturopathy courses will be granted on the basis of [ACT] scores and GUJCET will not be conducted this year.
10. In the aforesaid factual aspects, impugned Rules of 2017 are required to be considered. [SECTION], [SECTION] and [SECTION] of the Rules of 2017 provide as under:
"4. Eligibility for Admission.- xxx xxx xxx (4) have qualified in [ACT] conducted in current academic year in case of MBBS, BDS, BAMS, BHMS, BNAT.
(5) Minimum qualifying standard for admission: No candidate shall be admitted HC-NIC Page 19 of 45 Created On Sun Aug 20 15:44:56 IST 2017 19 of 45 in the professional medical educational courses unless he fulfills the eligibility criteria including the minimum qualifying percentage/percentile as follows;
A. Minimum qualifying standard for MBBS, BDS, BAMS, BHMS, BNAT Courses: Eligibility criteria in HSC examination and [ACT] of current academic year.
(a) For Government Seats Course Exam General Gen-PH Reserved Category Category (SC, ST, SEBC includin g Physical ly disabled ) Categori es MBBS, HSC or 50.00% 45.00% 40.00% BDS and Equivalent BAMS examination passed with Physics, Chemistry and Biology Theory and Practical, in percentage BHMS & HSC or Pass Pass Pass BNAT Equivalent examination passed with Physics, Chemistry and HC-NIC Page 20 of 45 Created On Sun Aug 20 15:44:56 IST 2017 20 of 45 Biology. Theory and Practical. Percentile of the current academic year (b) For Management seats: Exam All Candidates HSC or Equivalent Same criteria as for the examination passed with Government seats Physics, Chemistry and Biology - Theory and Practical.
[ACT] qualifying Percentile (As per criteria laid down by the Government of India)
11. From the aforesaid, it is revealed that [SECTION] provides for eligibility for admissions to Professional Medical Educational Courses and [SECTION] provides that a candidate who desires admission shall have qualified in [ACT] conducted in current academic year in case of MBBS, BDS, BAMS, BHMS, BNAT. It is further revealed that for getting admission in BAMS, a candidate from General Category must have passed HSC or equivalent examination with 50% with Physics, Chemistry and Biology subjects and 50 percentile is required in [ACT]. Similarly, for getting admission in BHMS, a candidate must have passed HSC or equivalent examination with Physics, Chemistry and Biology subjects and he must have HC-NIC Page 21 of 45 Created On Sun Aug 20 15:44:56 IST 2017 21 of 45 got 50 percentile in [ACT].
12. At this stage, we would like to refer to [SECTION] of the [ACT], which provides as under:
"4. Eligibility for admission in case of Government seats and Management seats :-
A candidate who desire admission on Government and management seats shall :- (1) be a Citizen of India:
Provided that the candidate whose parents are origin of India, and does not hold Indian Citizenship and has applied for Indian Citizenship, shall require to produce the proof of submission of such application to the Admission Committee before the date of counseling. Such candidates shall be admitted provisionally subject to submission of the certificate of their having acquired the Indian Citizenship on or before 31st July of next year, failing which their provisional admission shall be treated as cancelled without any notice. (2) have completed 17 years of age on the 31st December of the Academic year for which the admissions are being conducted :
(3) have passed the qualifying examination with "B group" or "AB group" from -
(i) The Gujarat Board; or
(ii) The Central Board of Secondary Education provided that the school in which the candidate has studied, is located in the State of Gujarat; or
(iii) The Council of Indian School Certificate Examinations Board, New Delhi provided that the school in which the HC-NIC Page 22 of 45 Created On Sun Aug 20 15:44:56 IST 2017 22 of 45 candidate has studied is located in the State of Gujarat.
(4) have qualified in [ACT] conducted in current academic year in case of management seats of MBBS and BDS courses and have qualified in the Gujarat Common Entrance Test conducted in the current academic year for admission on Government and management seats in all courses except management seats of MBBS and BDS courses.
(5) Minimum qualifying standard for admission :
A. For Government seats (1) No candidate shall be admitted in the professional medical educational courses unless he fulfills the eligibility criteria including the minimum qualifying percentage / percentile.
(2) The minimum percentage in qualifying examination for admission, obtained in both theory and practical shall be as follows, namely:
(a) For medical and Dental Courses (MBBS and BDS) and [ENTITY]a (BAMS): (Physics, Chemistry and Biology)
(i) For General category candidates including EWS : 50% (ia) For physical Disabled candidate : 45% belonging to General category
(ii) For candidate belonging to Scheduled Castes : 40% Scheduled Tribes and Socially and Educationally Backward Classes (excluding creamy layer) including Physically Disabled candidates of respective categories
(b) For B.Sc. Nursing Courses : (Physics, Chemistry, Biology and English)
(i) For General category candidates HC-NIC Page 23 of 45 Created On Sun Aug 20 15:44:56 IST 2017 23 of 45 including EWS : 45% and physical Disabled candidate
(ii) For candidate belonging to Scheduled Castes : 40% Scheduled Tribes and Socially and Educationally Backward Classes (excluding creamy layer) including Physically Disabled candidates of respective categories
(c) For Homeopathy / Naturopathy / Physiotherapy / Orthotics and Prosthetics / Optometry / Audiology and Speech Language Pathology and Occupational Therapy Courses : (Physics, Chemistry and Biology)
(i) For candidates belonging to all categories : Pass (3) The minimum percentage of aggregate marks obtained in Gujarat Common Entrance Test (GUJCET) for candidates shall be as follows, namely -
a. For Medical and Dental Courses (MBBS and BDS) :
(i) For General category candidates including EWS : 50%
(a) For physical Disabled candidate : 45% belonging to General category
(ii) For candidate belonging to Scheduled Castes : 40% Scheduled Tribes and Educationally Backward Classes (excluding creamy layer) including Physically Disabled candidates of respective categories HC-NIC Page 24 of 45 Created On Sun Aug 20 15:44:56 IST 2017 24 of 45 b. For other courses (other than the Medical and Dental Courses) The candidate shall have appeared in the Gujarat Common Entrance Test (GUJCET) of the current academic year."
13. Thus, from the aforesaid Rules of 2016 it is clear that for getting admission in BAMS and BHMS courses a candidate was required to appear in GUJCET. At this stage, it is also required to be noted that for the current academic year 2017-18, GUJCET was not conducted for BAMS and BHMS courses instead the respondent State has provided in the impugned Rules for [ACT].
14. In the aforesaid facts of the present case, the decisions rendered by the Hon'ble Supreme Court upon which reliance is placed by the learned Additional Advocate General for the respondent State are required to be considered.
15. In [PRECEDENT] (supra), the Hon'ble Supreme Court observed and held in para 15 as under:
"15. In our view there is no substance in any of the contentions as will be apparent from our conclusions noted above and the decisions of this Court bearing on this point. The [ACT], as pointed out, merely prescribed a minimum qualification for entry into the higher course of study. There was no regulation to the effect that HC-NIC Page 25 of 45 Created On Sun Aug 20 15:44:56 IST 2017 25 of 45 admission to higher course of study was guaranteed by the securing of eligibility. The Executive have a power to make any regulation which would have the effect of a law so long as it does not contravene any legislation already covering the field and the Government order in this case in no way affected the rights of candidates with regard to eligibility for admission:
the test prescribed was a further hurdle by way of competition when mere eligibility could not be made the determining factor."
15.1 In the case of Dr. [PRECEDENT] (supra), the Hon'ble Supreme Court observed and held in para 19, 20, 22 and 26 as under:
"19. The State Government can in exercise of its executive power make an order relating to matters referred to in [SECTION] of the Concurrent List in the absence of any law made by the State Legislature. The impugned order made by the State Government pursuant to its executive powers laying down the eligibility qualification for the candidates to be considered on merits for admission to the post-graduate courses in Medical Colleges in the State, is valid and it cannot be assailed on the ground that it is beyond the competence of the State Government to make such order provided it does not encroach upon or infringe the power of the Central Government as well as the Parliament provided in [SECTION] [SECTION] is in the following terms:-
"Co-ordination and determination of HC-NIC Page 26 of 45 Created On Sun Aug 20 15:44:56 IST 2017 26 of 45 standards in institutions for higher education or re- search and scientific and technical institutions."
20. The only question to be considered is whether the impugned order is repugnant to or encroaches upon or is in conflict with the power of the Central Legislature to make laws in respect of matters specified in [SECTION] to the [ACT]. The Indian Medical Council pursuant to [SECTION] of the [ACT] had made certain recommendations which have been embodied in the Regulations made by the Central Government laying down the criteria or standards for admitting the candidates to various post-graduate disciplines in the Medical Colleges of the State. These Regulations, as has been quoted hereinbefore, clearly prescribe that the candidates should be selected strictly on merit judged on the basis of academic record in the undergraduate courses i.e. MBBS Course and this selection should be conducted by the University. There are also other eligibility qualifications provided in the said Regulations namely the candidates must have obtained full registration i.e. they must have completed satisfactorily one year of compulsory rotating internship after passing the final MBBS examination and also they must have done one year's housemanship prior to admission to the post-graduate degree or diploma course.
xxx xxx xxx
22. In the instant case the number of seats for admission to various post- graduate courses both degree and diploma in Medical Colleges is limited and a large HC-NIC Page 27 of 45 Created On Sun Aug 20 15:44:56 IST 2017 27 of 45 number of candidates undoubtedly apply for admission to these courses of study. In such circumstances the impugned order laying down the qualification for a candidate to be eligible for being considered for selection for admission to the said courses on the basis of the merit as specified by Regulations made under the [ACT], cannot be said to be in conflict with the said Regulations or in any way repugnant to the said Regulations. It does not in any way encroach upon the standards prescribed by the said Regulations. On the other hand by laying down a further qualification of eligibility it promotes and furthers the standard in an institution.
xxx xxx xxx
26. On a consideration of the aforesaid decisions we are unable to hold that the impugned order dated 15.12.1982 has in any way contravened or encroached upon the power of the Central Legislature to make laws or the Central Government to make orders in regard to matters provided in [SECTION] to the [ACT]. There is no conflict between the Regulations and also the order in question. The State Government by laying down the eligibility qualification namely the obtaining of certain minimum marks in the MBBS examination by the candidates has not in any way encroached upon the Regulations made under the [ACT] nor does it infringe the central power provided in the [SECTION] to the [ACT]. The order merely provides an additional eligibility, qualification. We are in full agreement with the reasoning and conclusion of the High Court in this HC-NIC Page 28 of 45 Created On Sun Aug 20 15:44:56 IST 2017 28 of 45 respect. This contention therefore, in our considered opinion, is without any merit. It is pertinent to mention in this connection that the number of seats allotted to each of the prescribed courses is on the basis of two seats per professor and there is a crying necessity in the State for more experts in various disciplines in Medicine and Surgery etc. It is incumbent on the State Government-to see that all these seats earmarked for each of these disciplines or courses are filled up. It appears from Annexure D to the petition in [CASE NUMBER] that quite a considerable number of seats in various disciplines were kept vacant as the applicants did not fulfill the eligibility qualification framed by the State Government by its aforesaid order and as a result several professors and Assistant professors who are meant for imparting teaching in these disciplines were kept idle though a considerable fund had to be expended for meeting their emoluments- It is for the 673 State to consider and to see that the seats are filled up in all the disciplines and they are not left vacant in spite of a large number of applicants applying for admission in the various disciplines and the State Government has to evolve such criteria of eligibility that all the seats in different M.D., M.S. degree and diploma courses are filled up."
15.2. In the case of [ENTITY] Educational & Research Institute (supra), the Hon'ble Supreme Court held in para 41 as under:
"41. What emerges from the above discussion is as follows:
HC-NIC Page 29 of 45 Created On Sun Aug 20 15:44:56 IST 2017 29 of 45 [I] The expression "coordination" used in [SECTION] to the [ACT] does not merely mean evaluation. It means harmonisation with a view to forge a uniform pattern for a concerted action according to a certain design, scheme or plan of development. It, therefore, includes action not only for removal of disparities in standards but also for preventing the occurrence of such disparities. It would, therefore, also include power to do all things which are necessary to prevent what would make "coordination" either impossible or difficult. This power is absolute and unconditional and in the absence of any valid compelling reasons, it must be given its full effect according to its plain and express intention.
[ii] To the extent that the State legislation is in conflict with the Central legislation though the former is purported to have been made under [SECTION] of the Concurrent List but in effect encroaches upon legislation including subordinate legislation made by the center under [SECTION] of the Concurrent List or to give effect to [SECTION], it would be void and inoperative. [iii] If there is a conflict between the two legislations, unless the State legislation is saved by the provisions of the main part of [SECTION], the State legislation being repugnant to the Central legislation, the same would be inoperative.
[iv] Whether the State law encroaches upon [SECTION] or is repugnant to the law made by the center under [SECTION] of the Concurrent List, will have to be determined by the examination of the two laws and will depend upon the facts of HC-NIC Page 30 of 45 Created On Sun Aug 20 15:44:56 IST 2017 30 of 45 each case.
[v] When there are more applicants than the available situations/seats, the State authority is not prevented from laying down higher standards or qualifications than those laid down by the center or the Central authority to short-list the applicants. When the State authority does so, it does not encroach upon [SECTION] or make a law which is repugnant to the Central law.
[vi] However, when the situations/ seats are available and the State authorities deny an applicant the same on the ground that the applicant is not qualified according to its standards or qualifications, as the case may be, although the applicant satisfies the standards or qualifications laid down by the Central law, they act unconstitutionally. So also when the State authorities de-recognize or disaffiliate an institution for not satisfying the standards or requirement laid down by them, although it satisfied the norms and requirements laid down by the central authority, the State authorities act illegally."
15.3. In the case of [PRECEDENT] (supra), the Hon'ble Supreme Court observed and held in para 9, 10 and 12 as under:
"9. [SECTION] and [SECTION] have tobe read together and it cannot be read in such a manner as to from an exclusivity in the matter of admission but if certain prescription of standards have been made pursuant to [SECTION], then those standards will prevail over the standards fixed by the State in HC-NIC Page 31 of 45 Created On Sun Aug 20 15:44:56 IST 2017 31 of 45 exercise of powers under [SECTION] insofar as they adversely affect the standards-laid down by the Union of India or any other authority functioning under it. Therefore, what is to be seen in the present case is whether the prescription of the standards made by the State Government is in any way adverse to, or lower than, the standards fixed by the AICTE. It is no doubt true that the AICTE prescribed two modes of admission - One is merely dependent on the qualifying examination and the other dependent upon the marks obtained at the Common Entrance Test. The appellant in the present case prescribed the qualification of having secured certain percentage of marks in the related subjects which is higher than the minimum in the qualifying examination in order to be eligible for admission. If higher minimum is prescribed by the State Government than what had been prescribed by the AICTE, can it be said that it is in any manner adverse to the standards fixed by the AICTE or reduces the standard fixed by it? In our opinion, it does not. On the other hand, if we proceed on the basis that the norms fixed by the AICTE would allow admission only on the basis of the marks obtained in the qualifying examination the additional test made applicable is the common entrance test by the State Government. If we proceed to take the standard fixed by the AICTE to be the common entrance test then the prescription made by the State Government of having obtained certain marks higher than the minimum in the qualifying examination in order to be eligible to participate in the common entrance test is in addition to the common entrance test. In either event, the streams proposed by the AICTE are not belittled in any manner. The manner in which the High Court has HC-NIC Page 32 of 45 Created On Sun Aug 20 15:44:56 IST 2017 32 of 45 proceeded is that what has been prescribed by the AICTE is inexorable and that that minimum alone should be taken into consideration and no other standard could be fixed even the higher as stated by this Court in Dr. [ENTITY]'s case. It is no doubt true as noticed by this Court in [ENTITY]'s case that there may be situations when a large number of seats may fall vacant on account of the higher standards fixed. The standards fixed should always be realistic which are attainable and are within the reach of the candidates. It cannot be said that the prescriptions by the State Government in addition to those of AICTE in the present case are such which are not attainable or which are not within the reach of the candidates who seek admission for engineering colleges. It is not very high percentage of marks that has been prescribed as minimum of 60% downwards, but definitely higher than the mere pass marks. Excellence in higher education is always insisted upon by series of decisions of this Court including Dr. [ENTITY]'s case. If higher minimum marks have been prescribed, it would certainly add to the excellence in the matter of admission of the students in higher education.
10. Argument advanced on behalf of the respondents is that the purpose of fixing norms by the AICTE is to ensure uniformity with extended access of educational opportunity and such norms should not be tinkered with by the State in any manner. We are afraid, this argument ignores the view taken by this Court in several decisions including Dr. [ENTITY]'s case that the State can always fix a further qualification or additional qualification to what has been prescribed HC-NIC Page 33 of 45 Created On Sun Aug 20 15:44:56 IST 2017 33 of 45 by the AICTE and that proposition is indisputable. The mere fact that there are vacancies in the colleges would not be a matter, which would go into the question of fixing the standard of education. Therefore, it is difficult to subscribe to the view that once they are qualified under the criteria fixed by the AICTE they should be admitted even if they fall short of the criteria prescribed by the State. The scope of the relative entries in the [SECTION] to the [ACT] have to be understood in the manner as stated in the Dr. [ENTITY]'s case and, therefore, we need not further elaborate in this case or consider arguments to the contrary such as application of occupied theory no power could be exercised under [SECTION] as they would not arise for consideration.
xxx xxx xxx
12. One other argument is further advanced before us that the criteria fixed by the AICTE was to be adopted by the respective colleges and once such prescription had been made it was not open to the Government to prescribe further standards particularly when they had established the institutions in exercise of their fundamental rights guaranteed under [SECTION] of the [ACT]. However, we do not think this argument can be sustained in any manner. Prescription of standards in education is always accepted to be an appropriate exercise of power by the bodies recognising the colleges or granting affiliation, like AICTE or the University. If in exercise of such power the prescription had been made, it cannot be said that the whole matter has been foreclosed."
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16. Keeping in view the aforesaid provisions contained in the aforesaid Rules and the aforesaid decisions rendered by the Hon'ble Supreme Court, if the facts as discussed hereinabove are examined, it is revealed that in exercise of powers conferred under [SECTION] of the [ACT], regulations are framed which are amended in the year 2016, which are known as '[ACT]'. [SECTION] of [ACT] provides as under:
"2. Admission qualification.- The eligibility to seek admission in Bachelor of [ENTITY]a education are as under-
(a) 12th 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 physically handicapped students in 10+2, they shall be given relaxation in marks for admission in Bachelor of [ENTITY]ic Medicine and Surgery as per rules for time being in force.
(c) For foreign students any other equivalent qualification tobe approved by the concerned authority may be allowed."
17. Similarly, Regulations of 1983 framed under HC-NIC Page 35 of 45 Created On Sun Aug 20 15:44:56 IST 2017 35 of 45 the Act of 1973 provides eligibility criteria for admission to BHMS Degree Course. Relevant Clause provides as under:-
"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.
(b) The intermediate examination in science of an Indian University or Board or other recognised examining body with Physics, Chemistry and Biology which shall include a practical test in these subjects and also English as a compulsory subject;
(c) the pre-professional or pre-medical examination with Physics, Chemistry and Biology, after passing either the higher secondary school examination, or the pre- university or an equivalent Examination, which shall include a practical test in Physics, Chemistry and Biology and also English as a compulsory subject;
HC-NIC Page 36 of 45 Created On Sun Aug 20 15:44:56 IST 2017 36 of 45 OR
(d) the first year of the three years' degree course of a recognised University, with Physics, Chemistry and Biology including a practical test in these subjects provided the examination is a University Examination and candidate has passed 10+2 with English at a level not less than a core course;
(e) any other examination which, in scope and standard is found tobe equivalent to the intermediate science examination of an Indian University or Board, taking Physics, Chemistry and Biology including practical test in each of these subjects and English as a compulsory subject;
(ii) No candidate shall be admitted to B.H.M.S. Degree Course unless he has attained the age of 17 years' on or before 31st December of the year of his admission to the first year of the course.
(iii)No candidate shall be admitted to B.H.M.S. Degree Course if he is blind (including colour blindness), deaf, dumb, deaf and dumb."
18. Thus, aforesaid regulations provide for the minimum eligibility criteria for getting admission in BAMS and BHMS degree courses. At this stage, it is once again required to be noted that Central Council of Indian Medicine - AYUSH Department informed the Health Secretaries of all the State Governments by communication dated 31.05.2016 that admission to BAMS and BHMS HC-NIC Page 37 of 45 Created On Sun Aug 20 15:44:56 IST 2017 37 of 45 courses be given on the basis of [ACT] only from the academic session 2017-18 onwards. Similar instructions were also issued in January2017 which was clarified on 26.04.2017.
19. At this stage, we would like to refer to [SECTION] to the [ACT], which provides as under:
"66. Co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions."
20. [SECTION] to the [ACT], provides as under:
"25. Education, including technical education, medical education and universities, subject to the provisions of [SECTION], [SECTION], [SECTION] and [SECTION]; vocational and technical training of labour."
21. Thus, from the aforesaid provisions, it is revealed that State is empowered to frame the Rules for the subject mentioned in [SECTION] to the [ACT]. From the regulations framed under the [ACT] as well as Act of 1973, it is revealed that the minimum eligibility criteria for giving admissions in BAMS and BHMS courses HC-NIC Page 38 of 45 Created On Sun Aug 20 15:44:56 IST 2017 38 of 45 respectively is provided. From the submissions canvassed by learned Additional Advocate General, it is revealed that for approximately 15,000 seats available for Professional Medical Educational Courses, approximately 33,000 students were registered. Hence, looking to the number of seats available for admission to various Professional Medical Educational Courses and looking to the registration of large number of candidates for such courses, the impugned Rules framed by the respondent State laying down the qualification for a candidate to be eligible for being considered for selection for admission to BAMS and BHMS courses on the basis of the merit list of [ACT], cannot be said to be in conflict with the [ACT] or in any way repugnant to the said Central Legislations. From the aforesaid decisions rendered by the Hon'ble Supreme Court which are referred to hereinabove, it is further clear that When there are more students/applicants than the available seats, the State authority is not prevented from laying down higher standards or qualifications than those laid down by the center or the Central authority to short-list the students/applicants. When the State authority does so, it does not encroach upon [SECTION] and when the Rules are framed by the State laying down further qualification, it HC-NIC Page 39 of 45 Created On Sun Aug 20 15:44:56 IST 2017 39 of 45 cannot be said to be in conflict with the Central Law or repugnant to the Central Law. Thus, when the field is not occupied, the State is empowered to frame the Rules.
22. It is an admitted fact that the petitioners have appeared in the [ACT] conducted by CBSE and when they failed to obtain the prescribed eligibility criteria, it would not be proper on the part of the petitioners to contend that they have appeared in [ACT] for the sake of appearing. Moreover, the contention raised by the learned counsel for the petitioners that, petitioners would have prepared in better manner for appearing in [ACT] if it was declared by the State Government that admission to BAMS and BHMS would be given on the basis of the result of the [ACT], is misconceived. It is required to be noted that [ACT] was conducted by CBSE for three subjects i.e. Physics, Chemistry and Biology. Petitioners have studied these three subjects in standard 12th and in fact they appeared in the [ACT]. Therefore, it is not proper on the part of the petitioners to contend that they were not aspired to get admissions in MBBS and BDS courses and therefore they have not made proper preparation for [ACT].
23. So far as the contention of learned counsel appearing for the petitioners that HC-NIC Page 40 of 45 Created On Sun Aug 20 15:44:56 IST 2017 40 of 45 [SECTION] is inserted in the [ACT] and the [ACT] and thereby [ACT] is introduced, whereas in the [ACT], such provision is not inserted and therefore the respondent State is not empowered to take into account the result of the [ACT] for giving admissions in BAMS and BHMS courses, we are of the opinion that the aforesaid submission is misconceived. The Hon'ble Supreme Court in the case of [PRECEDENT]. by an order dated 28.04.2016 held that [ACT] is compulsory for getting admissions in MBBS and BDS courses. Thereafter [SECTION] is inserted in the concerned Act only on 24.05.2016. Even otherwise, as discussed hereinabove, the Central Government through Department of AYUSH informed all the State Governments by communication dated 31.05.2016 and thereafter by communications dated 25.01.2017 and 26.04.2017 that admissions to BAMS and BHMS courses be given on the basis of [ACT] only from academic year 2017-18. Thus, when the field is not occupied by the Central Act by way of executive instruction and the Department of AYUSH has given instructions to all the State Governments to grant admissions in BAMS and BHMS courses on the basis of the [ACT] from academic year 2017-18, we are of the view that State has not committed any illegality while framing the HC-NIC Page 41 of 45 Created On Sun Aug 20 15:44:56 IST 2017 41 of 45 impugned Rules.
24. At this stage, it is required to be noted that after this matter was reserved for orders and before the judgment is pronounced, learned Senior Counsel Mr.[ENTITY] appearing for the petitioners requested that this Court may consider the decision dated 25.07.2017 rendered by the High Court of Allahabad in the case of [PRECEDENT] through Ministry of [ENTITY]a Yoga & Naturopathy, New Delhi & Ors. in [CASE NUMBER]. It is submitted by learned counsel that in identical fact situation, the High Court of Allahabad has quashed the Government Order dated 10.07.2017 issued by the State Government in the Department of AYUSH, whereby the instructions have been given to make admission to various undergraduate courses being offered by the colleges in the State of U.P. imparting education in Indian Systems of Medicine viz. [ENTITY]ic, [ENTITY], [ENTITY] and Homeopathic streams of medicines. By way of the said order, it was decided to give admission on the basis of the result of [ACT]. Learned counsel has placed on record the aforesaid order passed by the High Court of Allahabad.
25. On the other hand, learned Additional Advocate General Mr. [ENTITY] distinguished the said judgment passed by the High Court of Allahabad HC-NIC Page 42 of 45 Created On Sun Aug 20 15:44:56 IST 2017 42 of 45 and contended that the facts of the present case are different and therefore the said decision would not be applicable in the present case.
26. We have also considered the aforesaid decision upon which the reliance is placed by the learned counsel appearing for the petitioners. It is relevant to note that in the said case the concerned petitioners did not appear for [ACT]. In the said case, the concerned Government passed an order on 10.07.2017 after the [ACT] was conducted on 07.05.2017. The High Court of Allahabad observed that 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. From the aforesaid judgment of the High Court of Allahabad, it is further revealed that the petitioners and other students who did not apply to appear in [ACT] for the reasons that they never intended to take admission in the medical colleges offering undergraduate courses in Allopathic system of medicine. However, in the present case, as discussed hereinabove, it is an admitted fact that petitioners have appeared in [ACT] conducted by CBSE and they failed to obtain the prescribed eligibility criteria. In the case before the High Court of Allahabad, the concerned Government passed an executive order by which decision was taken to grant admission on the HC-NIC Page 43 of 45 Created On Sun Aug 20 15:44:56 IST 2017 43 of 45 basis of the result of [ACT] in [ENTITY]ic, [ENTITY], [ENTITY] and Homeopathic streams of medicines, whereas, in the present case, the State Government has framed the Rules of 2017. Further, in the present case, the Health and Family Welfare Department instructed the Gujarat Secondary and Higher Secondary Education Board that there shall be no Common Entrance Test for admissions to the institutions imparting Professional Medical Educational Courses and therefore the said Board issued a press-note on 08.03.2017 wherein it was specifically stated that GUJCET would be conducted only for Degree Engineering, Degree/Diploma Pharmacy Courses. Similarly, news item was also published on the basis of the declaration made by the Health Minister of the State in which it was specifically stated that admissions in medical, dental, homeopathy, ayurveda and naturopathy courses will be granted on the basis of [ACT] score and GUJCET will not be conducted this year. The said news item was published on 10.02.2017, whereas in the case before the Allahabad High Court, for the first time Government issued the order on 10.07.2017 and therefore the said decision would not be helpful to the petitioners. Thus, we are of the view that the aforesaid decision upon which the reliance is placed by the learned counsel for the petitioners is not HC-NIC Page 44 of 45 Created On Sun Aug 20 15:44:56 IST 2017 44 of 45 applicable to the facts of the present case.
27. In view of the aforesaid discussions, our answer to the aforesaid question is that the respondent State is justified in enacting [SECTION], [SECTION] and [SECTION] in the Rules of 2017, whereby [ACT] is provided for being eligible to get admissions to BAMS and BHMS courses and the respondent State has not encroached upon the field occupied by the Central Legislations nor the impugned Rules are repugnant to and in conflict with the Central Legislations i.e. the [ACT].
28. Hence, the petition being devoid of any merit is dismissed with no order as to cost.
([ENTITY], CJ) ([ENTITY], J.) [ENTITY] HC-NIC Page 45 of 45 Created On Sun Aug 20 15:44:56 IST 2017 45 of 45