Priyanshu Undaviya and Ors. v. Union of India and Ors.

7.2. Apart from anything else, Mr Animesh contends that with the enactment of the 2020 Ayurveda Act and the 2020 Homeopathy Act, the earlier Acts i.e., the Indian Medicine Central Council Act, 1970 (hereafter referred to as “1970 Ayurveda Act”) and the Homeopathy Central Council Act, 1973 (hereafter referred to as “1973 Homeopathy Act”) have been repealed.

7.3. It is also Mr Animesh‟s contention that the Homoeopathy (Degree Course) Amendment Regulations, 2018[2] (hereafter referred to as “2018 Homeopathy Regulations”), framed under the erstwhile Act, which, in turn, brought about the amendment in the Homeopathy (Degree Course) Regulations, 1983, do not, presently, survive despite the savings provision incorporated in the 2020 Homeopathy Act i.e., Section 59(2)3 of the 2020 Homeopathy Act. [The said amendment was enacted via notification dated 14.12.2018.] 7.3(a) This assertion has been made by Mr Animesh, based on the judgment of the Division Bench of the Karnataka High Court dated 31.08.2021, passed in W.P.(C) No.100650/2021, titled The Karnataka Private Homeopathic Medical Colleges Management Association and Ors. vs. Union of India and Ors. Briefly, the Karnataka High Court allowed the writ petition, and struck down, inter alia, the 2018 Homeopathy Regulations. The relevant paragraphs, for the sake of convenience, are extracted hereafter: The relevant part of the amendment has been extracted hereafter: “3. In the said regulations, in regulation 4A, for sub-regulation (1), the following sub-regulation shall be substituted, namely: "(i) There shall be a uniform entrance examination to all medical institutions at the undergraduate level, namely the National Eligibility Entrance Test (NEET) for admission to undergraduate course in each academic year and shall be conducted by an authority designated by the Central Government;

(ii) In order to be eligible for admission to undergraduate course for an academic year, it shall be necessary for a candidate to obtain minimum of marks at 50th percentile in the National Eligibility Entrance Test for undergraduate course' held for the said academic year:”

59. (2) Notwithstanding the repeal of the Homoeopathy Central Council Act 1973, the educational and medical standards, requirements and other provisions of the Homoeopathy Central Council Act, 1973 and the rules and regulations made thereunder shall continue to be in force and operate till new standards or requirements are specified under this Act or the rules and regulations made thereunder: Provided that anything done or any action taken as regards the educational and medical standards and requirements under the enactment under repeal and the rules and regulations made thereunder shall be deemed to have been done or taken under the “12.

QUESTIONS FOR CONSIDERATION: In view of the development that have taken place subsequent to the order dated 12.04.2021 passed by the Hon’ble Supreme Court in SLP No.5288/2021 namely repealing of the Act, 1973 and consequent dissolution of CCH and in view of Sections 14 & 16 of the New Act providing for NEET for UG Courses and PG NEET for PG Courses as mandatory, the questions that would arise for our consideration in these writ petitions are as under: (a) Whether the impugned regulations dated 14.12.2018 & 19.06.2019 produced at Annexures-D & D[1] in W.P. No.100650/2021 and the impugned regulations dated 14.12.2018 & 19.06.2019 produced at Annexures-C & C[1] in W.P. No.100652/2021 imposing NEET ranking for UG Homeopathy Course and AIAPGET ranking for PG Homeopathy courses as basis of admission are arbitrary and without authority of law and contrary to sub-section (2) of Section 20 of the Act, 1973 (since repealed)? (b) Consequently whether the petitioners are entitled for the approval of their admission to UG & PG Courses in Homeopathy for the academic year 2020-21 based on the interim orders passed by this Court in the facts and circumstances of the cases? xxx xxx xxx

14. ANALYSIS: (a) The Act, 1973 was enacted by the Parliament for the purpose of constitution of CCH and maintenance of Central Register of Homeopathy and for the matters connected therewith. That the CCH had been set up under Section 3 of the Act, 1973 for regulating the body of Homeopathy practitioner and also to provide standard of education in Homeopathy. In terms of Section 20 of the Act, the CCH has been vested with power to prescribe minimum standard of education in Homeopathy. The provisions of said Section are extracted hereunder: “Minimum standard of education in Homeopathy,

20. (1) The Central Council may prescribed the minimum standards of education in Homeopathy required for granting corresponding provision of this Act and shall continue in force accordingly unless and until superseded by anything or by any action taken under this Act. recognized medical qualifications by Universities, Board or medical institutions in India. (2) Copies of the draft regulations and of all subsequent amendments thereof shall be furnished by the Central Council to all State Governments and the Central Council shall, before submitting the regulations or any amendment thereof as the case may be, to the consideration the comments of any State Government received within three months from the furnishing of the copies as aforesaid.” (e) The provisions of Sections 14 & 16 of the newly enacted the National Commission of Homeopathy Act, 2020 specifically providing for uniform examination NEET and PG NEET for the admission of Homeopathy UG and PG Courses; there are no such similar provisions available under the repealed Act 1973. Therefore, the impugned Amendment Regulations which were issued by the CCH purportedly in furtherance to its power under Section 20 of the repealed Act,1973 needs to be viewed. (o) Similarly respondent No.2 while referring to the order of the Hon’ble Supreme Court passed in Civil Appeal No.603/2020 along with other connected matters pointed out that the Supreme Court had held that the notification dated 14.12.2018 pertaining to the Homeopathy Course is similar to that of AYUSH Course. This may not be the correct position inasmuch as the Hon’ble Supreme Court at paragraph 13 of the said order (as extracted infra) has left the said issue open for the petitioners to raise before the High Court. Thus, there is no adjudication on this aspect even by the Hon’ble Supreme Court.

15.

CONCLUSION ON THE VALIDITY OF THE IMPUGNED

AMENDMENT REGULATIONS: (a) In the light of the above settled legal principles, particularly with regard to the non compliance of statute even as admitted by the respondent No.2 in paragraph No.12 of the counter affidavit in W.P. No.100650/2021 and in paragraph No.21 of the counter affidavit in W.P. No.100652/2021, which is extracted herein above, we are of the considered view that there has been no compliance of the mandatory requirement of sub-section (2) of Section 20 of the Act, 1973 (since repealed). This is an infraction of the mandatory provision of the Act,

1973. (b) In the absence of the statute providing for imposition of qualification regarding eligibility for admission to the UG & PG Courses, it was all the more necessary for the respondent No.2 to have complied strictly with the mandatory provisions of sub-section (2) of Section 20 of the Act, 1973 to have circulated draft regulations and the amendment thereof with all stake holders. This admittedly not having been done, needs to be set aside as illegal, arbitrary and unenforceable.

(c) It is also a settled law that failure to confirm to the statute under which subordinate legislature is made or exceeding the limits of authority conferred by the enabling Act, would result in the same being rendered illegal and unenforceable. Hence, the first question is answered in the affirmative.”

7.4. Mr Animesh fairly concedes that a Special Leave Petition [S.L.P.] has been preferred against the said judgment. This S.L.P., we are told, was filed in December, 2021. We are informed by Mr Animesh that the said S.L.P has not been listed, as yet, before the Court.

7.5. It is also not disputed by Mr Animesh that the aforementioned judgment of the Karnataka High court concerns the academic year 2020-

2021. Insofar as the present case is concerned, it relates to academic year 2021-22.

8. Given this background, Mr Animesh says that, apart from anything else, there is no prescribed standard of marks that the petitioners have to obtain to qualify the NEET examination. It is submitted that the standard that a candidate has to obtain is provided in the Information Bulletin for NEET (UG) -2021 issued by respondent no.1, and not by way of any Regulation framed under the 2020 Homeopathy Act. The relevant part of the Information Bulletein is extracted hereafter:- “CHAPTER 15 – ELIGIBILITY CRITERIA/QUOTA OF SEATS/RESERVATION /RESULT CRITERIA / COUNSELLING FOR ADMISSION TO BAMS/BSMS/BUMS /BHMS COURSES

5. *Percentile criteria for declaration of Result / Ranking for BAMS, BSMS, BUMS, and BHMS Courses. In order to be eligible for admission to under-graduate BAMS, BSMS, BUMS, and BHMS Courses, it shall be necessary for a candidate to obtain a minimum of marks at 50th percentile in the ‘National Eligibility Entrance Test for undergraduate course’ held for the said academic year: Provided that in respect of-. a. For candidates belonging to the Scheduled Castes, Scheduled Tribes, and Other Backward Classes, the minimum marks shall be at 40th percentile; b. candidates with benchmark disabilities specified under the Rights of Persons with Disabilities Act, 2016 (49 of 2016), the minimum marks shall be at 45th percentile in the case of general category and 40th percentile in the case of the Scheduled Castes, Scheduled Tribes, and Other Backward Classes”. [Emphasis is ours.]

8.1. Mr Animesh submits that insofar as the earlier regime was concerned i.e., prior to the enactment of the 2020 Homeopathy Act, the minimum marks for qualifying the NEET examination qua undergraduate courses for alternate medicine stream was provided via the 2018 Homeopathy Regulations. It is contended that since the said regulations do not survive in the eyes of law, after the aforementioned judgment of the Karnataka High Court dated 31.08.2021, the saving clause provided in the 2020 Homeopathy Act cannot come to the aid of the contesting respondents i.e., respondent nos. 1 to 3.

8.2. Furthermore, Mr Animesh says that the fact that the Karnataka High Court has granted interim relief for the academic year in issue i.e., 2021-22 to similarly circumstanced persons as the petitioners, via an order dated 07.02.2022 passed in W.P.(C) No.1261/2022—is a factor which the court should consider while dealing with the prayer for interim relief sought for by the petitioners vis-a-vis Homeopathy stream. 8.[3] For this purpose, our attention has been drawn to Annexure-A/4, which is appended to the petitioners‟ application i.e., CM Appl. 10133/2022. The operative part of the aforementioned interim order passed by the Karnataka High Court reads as follows: “For the aforementioned reasons and taking into account the interim orders passed by this court on 11.10.2018 in W.P.NO. 41486/2018 as well as on 20.09.2019 in W.P. No. 41486/2018 and on 26.02.2018 in W.P.No. 100650/2021 which have not been interfered with by the Supreme Court and with a view to maintain parity, it is directed that the petitioner – Institutions shall be permitted to make admissions for Homeopathy Under Graduate courses for the academic years 2021-2022 which remained unfilled after all NEET qualified candidates have made their choices, by any other candidate, subject to the result of the writ petition.”

8.4. We are informed by Mr Animesh that the contesting respondents have not yet carried the matter further.

8.5. Therefore, it is Mr Animesh‟s submission, at this juncture, that the concerned petitioners be allowed to take admission in the undergraduate courses in the Homeopathy stream based on their Class XII result in respect of seats that are leftover, after the selection process is concluded qua those candidates who qualify the NEET exam. In other words, only if there are any surplus seats left after the process is completed in respect of candidates who wish to take admission either in Modern Medicine Stream or in the alternate medicine stream, then, the concerned petitioner should be considered for admission against such seats.

9. On the other hand, Ms Archana Pathak Dave, who appears on behalf of the respondent no.2, says that since the petitioners seek admission only in Homeopathy stream, she would require further instructions in the matter and at this stage would not like to make any submissions. 9.[1] Ms Monika Arora, who appears for respondent no.1/Union of India (UOI), has, however, in opposition, relied upon the judgment of the Supreme Court dated 20.02.2020, passed in Civil Appeal No. 603/2020, titled Union of India v. Federation of Self-Financed Ayurvedic Colleges Punjab and Ors. In particular, Ms Arora has relied upon the observations made by the Supreme Court in paragraphs 9, 11 and 12.

9.2. Ms Arora says, based on the aforementioned judgment of the Supreme Court and the stand taken in the counter-affidavit filed on behalf of respondent no.1/UOI, that a uniform standard for medicine is required to be put in place irrespective of the stream in which the candidates seek admission.

9.3. Ms Arora goes on to state that, if the minimum standards for education are not provided, the outcome would be that we would have available for treatment “half-baked doctors”. It is Ms Arora‟s submission that the petitioners, in the present case, had taken the NEET examination but failed to qualify.

10. However, what is recorded hereinabove, while capturing the arguments of Mr Animesh-which is, that the final judgment of the Karnataka High Court dated 31.08.2021 remains operable and has not been interdicted up-until now, is not refuted by Ms Arora. Thus, the fact that the 2018 Homeopathy Regulations framed under the 1973 Homeopathy Act [which inter alia provided the minimum percentile that the candidate was required to attain to qualify the NEET examination] remains inoperable, is not disputed by Ms Arora. 10.[1] It is also not in dispute that the interim order dated 07.02.2022 passed by the Karnataka High Court, to which, we have made a reference above also continues to obtain up-until now. 10.[2] We may note that Ms Arora has referred to an interim order of the Bombay High Court dated 04.10.2019, passed in W.P.(C) 10324/2019. To be noted, this was an interim order which was passed under the old regime. As noted above, the Karnataka High Court has rendered a final judgment on 31.08.2021.

10.3. Mr Sunil Narula, who appears for respondent no.3, says that the fact that NEET is applicable to the petitioners is evident upon a bare perusal of Section 14 of the 2020 Homeopathy Act. Although Mr Narula may perhaps be right qua this aspect, what he is unable to assist us with, apart from anything else, is as to what is the minimum marks required for candidates to qualify the NEET examination, insofar as those who applied for Homeopathy stream. Notably, a provision in this regard was made under the 2018 Homeopathy Regulations. The fact that the provision qua minimum marks is required to be made in the Regulations is evident upon a perusal of Chapter15 of the information bulletin. The information bulletin, in our view, cannot substitute the regulations framed under a statute. Chapter15 of the information bulletin reads thus: “CHAPTER 15 – ELIGIBILITY CRITERIA/QUOTA OF SEATS/RESERVATION /RESULT CRITERIA / COUNSELLING FOR ADMISSION TO BAMS/BSMS/BUMS /BHMS COURSES

1. Admission to all seats of BAMS, BSMS, BUMS, and BHMS Courses through NEET-2021 Admissions to all seats of Undergraduate Ayurveda, Siddha, Unani and Homoeopathy Courses will be done through NEET (UG) – 2021 as per the provisions of the Indian Medicine Central Council (Minimum Standards of Education in Indian Medicine) Amendment Regulations (2018) and Homeopathy (Degree Course) Amendment Regulations (2018) under Indian Medicine Central Council Act 1970 and the Homoeopathy Central Council Act, 1973, as notified by the Central Council of Indian Medicine and Central Council of Homeopathy respectively (which are Regulatory Bodies of the abovementioned Courses under the Ministry of AYUSH).” [Emphasis is ours.]

11. As noted above, reliance was placed by Ms Arora on the judgment rendered by the Supreme Court in Federation of Self-financed Ayurvedic Colleges Punjab & Ors. case to contend that the notification dated 14.12.2018 pertaining to the Homeopathy courses [i.e., Bachelor of Homeopathic Medicine and Surgery (BHMS)] is similar to that of the AYUSH courses [i.e., Bachelor of Ayurvedic Medicine and Surgery (BAMS), Bachelor of Unani Medicine and Surgery (BUMS) and Bachelor of Siddha Medicine and Surgery (BSMS)], and, hence, the two cannot be viewed differently. Insofar as the reliance placed on the judgement of the Supreme Court dated 20.02.2020 is concerned, our attention was drawn by Mr Animesh to the observations made by the Supreme Court in paragraph 13 of the said judgment[4]. “13. The notification dated 14.12.2018 pertaining to the Homeopathy courses is similar to that of the AYUSH courses. It was contended on behalf of Homeopathy colleges that the procedure prescribed in Section 20 (2) of the Homeopathy Central Council Act, 1973 (for short, „1973 Act‟) was not followed before the amendment was carried out to the Regulations. In view of the paucity of time, no response was filed by the Central Council of Homeopathy or by the Union of India clarifying the factual position pertaining to the non-compliance of the procedure prescribed under the 1973 Act for making Regulations.

11.1. A perusal of the observations made in the said paragraph would show that the Supreme Court noticed that since the respondent nos. 1 and 3 had failed to clarify as to why the procedure prescribed under Section 20(2) of the 1973 Homeopathy Act was not complied, the petitioners therein [i.e., in W.P.(C) 1461/2019] should be given leave to raise their issues concerning the said aspect before the High Court, if deemed fit and proper. The clarification, as noticed by the Supreme Court, could not be given due to paucity of time. As alluded to above, the Karnataka High Court struck down the 14.12.2018 notification, concededly, for the reason that the procedure laid down under Section 20(2) of the 1973 Homeopathy Act was not followed. As adverted to, right at the very outset, in the present case, the petitioners have confined their relief to those who are seeking admission in the Homeopathy stream qua undergraduate courses.

11.2. In these circumstances, we find that Ms Arora‟s submission, at this juncture, is not sustainable.

12. Therefore, having heard the learned counsel for the parties at some length, we are prima facie of the view that there are issues obtaining in the writ action which require closer examination.

12.1. That being said, there can be no dispute that whether a candidate seeks admission in Modern Medicine stream or in alternate medicine stream, minimum educational standard need to be fixed. The larger issue which has been raised in the writ petition is: whether those who seek admission in the alternate medicine stream should be subjected to the same minimum In view of the same, we are not in a position to decide the issue raised by the Petitioners in Writ Petition (C) No.1461 of 2019. We leave it open to the Petitioners to raise these issues before the High Court, if they deem it fit and proper. It is not necessary to deal with various submissions made by the Appellants in view of the order passed by us educational standard that are applicable to candidates wanting to enter the Modern Medicine stream?

12.2. Concededly, the contesting respondents are relying upon the 2018 Homeopathy Regulations fixing minimum standard, issued under the old regime i.e., 1973 Homeopathy Act. To defend their position, the contesting respondents rely upon Section 59(2) i.e., the repeal and saving provision contained in the 2020 Homeopathy Act. This may have helped the cause of the contesting respondents but for the fact that the 2018 Homeopathy Regulations issued under the old regime stand quashed by the Karnataka High Court via judgment dated 31.08.2021.

13. Thus, having considered the matter, and given the backdrop set forth above, for the moment, the only protem direction which can be issued is the following:

(i) Respondent no.3 will carry on the counselling for admission to the undergraduate courses in the Homeopathy stream qua those candidates who have qualified the NEET along with other candidates under the prevailing regime.

(ii) In case any surplus seats are left, the concerned institutions will be permitted to provisionally admit students in the Homeopathy stream qua undergraduate courses vis-à-vis academic year 2021-2022.

(iii) It is made clear that in case admission is granted to the petitioners, by the concerned institutions, by adopting the route as delineated in clause (ii) above- their admission being provisional, they would not be allowed to claim any equities in case they fail in the writ petition.

13.1. The above-captioned application i.e., CM No.1274/2022 is, permitting the students to continue their studies.” accordingly, disposed of in the aforesaid terms.

15. List the writ petition before the concerned bench on the date already fixed i.e., 30.03.2022.

RAJIV SHAKDHER, J TALWANT SINGH, J FEBRUARY 25, 2022 Nk/tr Click here to check corrigendum, if any