Dismissed

C/M Dr. Abdul Ali Tibbiya College and Hospital,Lko. Thru. Director Prof. Dr.Arshad Ali and 6 Others v. State of U.P. Thru. Addl. Chief Secy. Deptt. of Ayush, Lko. and 4 Others

Allahabad HC22 Feb 2024/9920/2023

Case brief

AI extract

What is this about?

In two connected writ petitions, Ayurvedic and Unani college management challenged the NEET cutoff percentile for 2023-24 admissions, citing unfilled seats. The court observed that the NCISM had already reduced the cutoff by 5%. It held that further reduction constitutes unauthorized interference in expert policy and educational standards, dismissing the petitions.

What the court decided

AI extract

C/M Dr. Abdul Ali Tibbiya College and… — Education and Admissions | Allahabad HC (2024)

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Page 1 of 21

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A.F.R.

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Neutral Citation No. - 2024:AHC-LKO:15866

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Reserved

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Court No. - 30

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Case :- WRIT - C No. - 9920 of 2023 Petitioner :- C/M Dr. Abdul Ali Tibbiya College And Hospital,Lko. Thru. Director Prof. Dr.Arshad Ali And 6 Others Respondent :- State Of U.P. Thru. Addl. Chief Secy. Deptt. Of Ayush, Lko. And 4 Others Counsel for Petitioner :- Rajat Rajan Singh,Adarsh Saxena,Vidhu Bhushan Kalia Counsel for Respondent :- C.S.C.,A.S.G.I.,Devak Vardhan,Umesh Singh

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Connected with

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Case :- WRIT - C No. - 10640 of 2023 Petitioner :- C/M,Saharanpur Ayurvedic Medical Collage, Saharanpur Thru. Admin Yogesh Pandey Respondent :- State Of U.P. Thru. Addl. Chief Secy., Deptt. Of Ayush, Lucknow And Others Counsel for Petitioner :- Rajat Rajan Singh Counsel for Respondent :- C.S.C.,A.S.G.I.,Devak Vardhan,Umesh Singh

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Hon'ble Om Prakash Shukla,J.

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(1) Heard Shri Rajat Rajan Singh learned counsel for the petitioner, Sri Vijay Kumar, learned Standing Counsel for the Staterespondent, Shri Umesh Singh, learned counsel for respondent No.2 and Shri Devak Vardhan learned counsel for respondent No.3.

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(2) The above-captioned petitions came to be filed by the various Committee of Management of Ayurvedic and Unani Colleges in the State of Uttar Pradesh, primarily seeking filling of the vacant seats of their institutions by lowering the minimum percentile of National Eligibility-cum-Entrance Test

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Writ-C Nos. 9920 of 2023 and 10640 of 2023

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Page 2 of 21

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(Undergraduate) (hereinafter referred to as ‘ NEET UG ’) 202324 declared for admission in AYUSH UG Courses i.e. Bachelor of Ayurvedic Medicine & Surgery (in short ‘ BAMS ’) and Bachelor of Unani Medicine & Surgery (in short ‘ BUMS ’). These petitioners have also sought for extension of time for the last date of admission for these AYUSH UG Courses, wherein Writ-C No. 9920 of 2023 ( Committee of Management, Dr. Abdul Ali Tibbiya College & Hospital & Others Vs State of Uttar Pradesh & Ors. ) have been filed by almost seven Ayurvedic & Unani Institutions and Writ-C No. 10640 of 2023 has been filed by the Committee of Management, Sahararanpur Ayurvedic Medical College.

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(3) Since common issue is engaging attention of this Court, wherein both these petitions have been filed, praying for lowering of the minimum percentile of NEET UG 2023-24 for admission in AYUSH Courses by 10% and 15%, respectively, for the session 2023-24, both these petitions have been heard together and as such are being disposed of by this common judgment.

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(4) However, in order to appreciate the issue in its right perspective, the facts of Writ-C No. 9920 of 2023 is being curled out as a narrative to the present issue.

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Writ-C Nos. 9920 of 2023 and 10640 of 2023

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Page 3 of 21

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(5) In the said petition, it has been submitted by the learned Counsel for the petitioners that petitioners No.1 to 7, except petitioner No.6, are Unani Medical Colleges and are duly approved by the National Commission for Indian System of Medicine (hereinafter referred to as ‘ NCISM ’) for imparting BUMS Course for the academic year 2023-24, whereas petitioner No.6 has been approved for BAMS for the said session. It has been contended that vide Government Order dated 18.08.2023, the State Government had notified for conducting counselling for BAMS and BUMS Courses on the basis of NEET UG 2023-24, wherein it was proposed to conduct four rounds of counselling i.e first, second, third and stray vacancy round for the filling up the seats of the institutions. Further, a list of participating institutions was also issued on 12.09.2023, which was updated on 26.10.2023 and the petitioners has contended that the counselling for academic session 2023-24 was held in the following manner :-

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Stage of Counsell	ing	Start date	End Date
First round Counselling	of	08.09.2023	25.09.2023
Second round	of	03.10.2023	10.10.2023
Counselling
Third round	of	26.10.2023	30.10.2023
Counselling
Stray round Counselling	of	03.11.2023	07.11.2023

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(6) It has further been submitted by the learned Counsel for the petitioners that although the stray round of counselling ended

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Writ-C Nos. 9920 of 2023 and 10640 of 2023

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Page 4 of 21

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on 07.11.2023, however, the last date of admission for AYUSH Courses stood extended till 20.11.2023 by the NCISM. The hinge of the argument of the learned Counsel is that even after the conduct of four rounds of counselling, large numbers of seats are still vacant in these institutions and has, thus, sought for lowering the minimum percentile for AYUSH admissions by 10% for the current academic session 2023-24. The learned Counsel has tried to draw an analogy with the decision dated 20.09.2023 taken by the Central Government for PG Courses (Medical/Dental), wherein the Government taking cognizance of the fact that large number of PG seats were vacant, has reduced the minimum qualifying percentile to “zero” across all categories. Thus, it has been contended by the learned Counsel that although Medical/Dental Course are more specialized, superior, serious and difficult Courses than AYUSH Courses, the lowering of the minimum qualifying percentile to ‘zero’ should be treated as a good example for lowering the minimum percentile for the AYUSH Courses. The learned Counsel has further demonstrated and gave illustration of various instances, wherein the minimum percentile was lowered/reduced for various Medical/Dental/AYUSH Courses, which can be capitulated in a tabular chart herein-below :

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Academic	Course	Reduction of minimum
Session		percentile criteria
2021-22	NEET UG 2021 for AYUSH Courses	Reduction by 5% across all categories
2020-21	NEET UG 2020	Reduced from 50

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Writ-C Nos. 9920 of 2023 and 10640 of 2023

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Page 5 of 21

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	for AYUSH Courses	percentile for unres percentile for OBC a	to erv to nd	40 ed 30 SC	percentile and 40 percentile T/ST
2022-23	NEET PG 2022 for MDS Courses	Reduction percentile percentile		fr to	om 50 24.286
2020-21	NEET PG	Reduction percentile	fr	om	50 to 35

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(7) The learned Counsel for the petitioners has drawn the attention of this Court to Regulation 5 (2) (ii) of the National Commission for Indian System of Medicine (Minimum Standards of Undergraduate Ayurveda Education) Regulations2022 (hereinafter referred to as ‘ NCISM Regulation, 2022’) which provides for discretionary power vested for lowering of the minimum marks required for admission to UG Program by the Central Government in consultation with the NCISM. According to him, although there exists a statutory empowerment in favour of the Central Government and NCISM for filling of vacant seats, however, for the academic session 2023-24, despite their being a large number of vacancies of seats even after the various rounds of counselling, there had been no decision by the NCISM/Central Government for lowering the minimum percentile of NEET for taking admission in AYUSH UG Course.

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(8) The petitioners claimed to have send representation to the Secretary, NCISM, however, the same was without any success and according to them, the inaction on the part of the Central

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Writ-C Nos. 9920 of 2023 and 10640 of 2023

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Page 6 of 21

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Government/ NCISM in not lowering the minimum percentile for admission in AYUSH Courses has left various seats vacant in the respective institutions, thereby infringing their fundamental rights as guaranteed under the Constitution of India.

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(9) A bare perusal of the record of the petitions reveals that after the aforesaid writ petition was filed, notices were issued to the respondents and the matter was adjourned, wherein on one occasion, this Court even recorded the statement of the Counsel for the NCISM that the issue relating to lowering the minimum percentile of NEET-UG 2023-24 towards admission in AYUSH Course was under active consideration with the concerned authority.

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(10) This Court has been informed that after the said adjournment, NCISM vide its letter dated 09.11.2023 has decided to lower the cut-off percentile by 5% across all categories for admission to UG and PG Courses and has also extended the last date of admission to 30^th of November, 2023. It has been submitted that although, various institutions got their seats filled due to the aforesaid lowering of the percentile by the NCISM in the stray round of counselling, however, even as on date, there are number of vacant seats in these institutions and the cause for filing the present petition still survives. In fact, it has been submitted that the second petition being Writ-C No. 10640 of

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Writ-C Nos. 9920 of 2023 and 10640 of 2023

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Page 7 of 21

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2023 ( Committee of Management, Sahararanpur Ayurvedic Medical College ) has been filed after the said lowering of 5% by the NCISM. The petitioners have also relied on certain direction given in a judgment of the Gujrat High Court passed on 30.11.2023 in R/Special Civil Application No. 19485 of 2023 ( Arogyam Association of Regional Ayush Colleges, Gujrat Vs Admission Committee for profession under graduate Medical Educational Course ).

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(11) On the other hand, NCISM have filed their counter affidavit refuting the claim of the petitioners, according to the data provided by them, about 11,45,976 were NEET Qualified students with 50 percentile for the present academic session 2023-24 and the said figure of qualified students increased to 12,44,686 by lowering the minimum criteria to 45 percentile. According to them, against the aforesaid 12.44 Lakhs qualified students, the permitted seats across various UG streams of Ayurveda, Siddha, Unani and Homeopathy was only 59000 seats and as such decreasing/lowering the percentile any further would not serve any purpose. According to him, there could be various reasons for these vacant seats and further lowering of percentile would lead to drastic quality of students joining the AYUSH Course, which would neither be good for the Institution/College nor the Society at large. He has contended that amongst the total available seats, 83% seats have been filled and 17% are vacant and as far as the State of Uttar

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Writ-C Nos. 9920 of 2023 and 10640 of 2023

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Page 8 of 21

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Pradesh relating to UG Ayurveda is concerned, the total permitted seats were 6,993, against which 5732 are already occupied and 1261 is still vacant. He has also relied upon a judgment passed by a Division Bench of this Court in Special Appeal No. 91 of 2023 ( C/M Alpsankhyak Shiksha Vikas Samiti, Kanpur Vs. State of U.P & Others ).

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(12) The learned Counsel has argued that the process of admission by lowering minimum percentile cannot be an endless process as the same would result in half-baked doctors and in any case is a policy decision to be exercised by the concerned authority under the National Commission for Indian System of Medicine Act, 2020. The Gujrat High Court Judgment rendered in Arogyam Association of Regional Ayush Colleges, Gujrat (supra) has been distinguished on facts and on the existence of Rule 16 of Gujrat Professional Medical Educational Courses (Regulation of Admission in Undergraduate Courses) Rules, 2017 in the State of Gujrat and non-applicable in the State of Uttar Pradesh or across the country. According to him, it is the NCISM Regulation, 2022, which is the law regulating any admission in AYUSH Courses. Further, the learned Counsel has relied on an interim order dated 21.04.2023 passed by the Karnataka High Court at Dharwad in Writ Petition No. 101793/2023 to negate the relief of any further lowering of the pass percentile. It has been submitted that when NCISM has already exercised its powers for reducing the percentile across

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Writ-C Nos. 9920 of 2023 and 10640 of 2023

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Page 9 of 21

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the UG and PG courses of AYUSH for the year 2023-24, there was no occasion or justifiable reasons for further lowering the percentile, especially when the last date of admission has already passed and the said process would lead to an endless process and would amount to compromising the medical standards of doctors in the country.

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(13) Having regard to the contentions of the parties and going through the record available before this Court, it is required to be noted herein that the centrifugal issue to be dealt in these petitions encircles around the lowering of the minimum percentile of NEET UG 2023-24 declared as a pre-requisite for admission in AYUSH UG Courses (BAMS & BUMS).

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(14) Apparently, National Commission for Indian System of Medicine Act, 2020 (hereinafter referred to as ‘ NCISM Act, 2020 ’) was enacted to consolidate the prevailing law relating to admission to AYUSH Courses and with an objective to provide an appropriate medical education system that improves access to quality and affordable medical education and further ensures availability of adequate and high quality medical professionals of Indian System of Medicine in all parts of the country. The functions of the said Commission, as to be found in Section 10 of the NCIMS Act, 2020, inter alia relates to laying down policies for maintaining high quality and high standards in education in Indian System of Medicine and to make necessary

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Writ-C Nos. 9920 of 2023 and 10640 of 2023

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Page 10 of 21

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regulations thereof. Further, Section 55 (1) of the NCISM Act, 2020 empowers the Commission to make regulations to carry out the provisions of the said Act. This Court has been informed that the Commission in exercise of its powers vested in it under sub-section (2) of Section 55 of NCIMS Act, 2020, has framed (i) National Commission for Indian System of Medicines (Minimum Standards of Undergraduate Ayurvedic Education) Regulations, 2022 and (ii) National Commission for Indian System of Medicines (Minimum Standards of Undergraduate Unani Education) Regulations, 2022, notified on 16.02.2022 and 28.02.2022, respectively.

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(15) As per the scheme for making admissions available in the aforesaid two regulations, admissions to Undergraduate Courses in Ayurvedic and Unani Systems of Medicine are made through National Eligibility-cum-Entrance Test (NEET) which is to be conducted by an authority to be designated for the said purpose by the Commission. The authority designated for conducting the NEET by the Commission is National Board of Examination in Medical Science, New Delhi.

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(16) For appreciating the contention of the petitioners, it would be relevant to note that Regulation 5 of the NCISM Regulation, 2022 prescribes the eligibility criteria for admission, wherein Regulation 5 (1) prescribes the educational eligibility and Regulation 5 (2) prescribes for the national eligibility-cum-

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Writ-C Nos. 9920 of 2023 and 10640 of 2023

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Page 11 of 21

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entrance test. It is also required to be noted that Regulation 5 (2) of the NCIMS Regulation, 2022 inter-alia states the following :

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“(2) National Eligibility-cum-Entrance Test.-(i)There shall be a uniform entrance examination for all medical institutions at the under-graduate level, namely the National Eligibility-cum- Entrance Test (NEET) for admission to under-graduate programme in each academic year and shall be conducted by an authority designated by the National Commission for Indian System of Medicine.

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(ii) In order to consider for admission to under- graduate programme for an academic year, it shall be necessary for a candidate to obtain minimum of marks at 50th percentile in the National Eligibility-cum- Entrance Test for undergraduate programme held for the said academic year:

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Provided that in respect of-

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(i) candidates belonging to the Scheduled Castes, Scheduled Tribes and Other Backward Classes, the minimum marks shall at 40th percentile;

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(ii) candidates with specified disabilities 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:

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Provided further that where sufficient number of candidates in the respective category fail to secure minimum marks in the National Eligibility - cum - Entrance Test held for any academic year for admission to undergraduate programme, the National Commission for Indian System of Medicine in consultation with the Central Government may at its discretion lower the minimum marks required for admission to undergraduate programme for candidates belonging to respective category and marks so lowered by the Central Government shall be applicable for that academic year only.”

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Writ-C Nos. 9920 of 2023 and 10640 of 2023

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Page 12 of 21

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(17) There is no gainsaying that although the aforesaid Regulation make it obligatory as a pre-requisite for a candidate to obtain a minimum of marks at 50th percentile in the National Eligibilitycum- Entrance Test for under-graduate programme held for the said academic year to come within the consideration zone for admission to AYUSH Courses, however, the proviso also provides that in case, sufficient number of candidates in the respective category failed to secure minimum marks in the National Eligibility-cum-Entrance Test held for any academic year for admission to undergraduate programme, the NCISM in consultation with the Central Government may lower the minimum marks required for admission to undergraduate programme for candidates belonging to the respective category.

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(18) The phrase “ sufficient number of candidates ” in the respective category is of special importance as the non-availability of the said sufficient number of candidates failing to secure the minimum marks in NEET is the triggering point for consultation between the NCISM and the Central Government to lower the minimum marks required for admission to the AYUSH UG Courses. As far as the academic session 2023-24 is concerned, the data as quoted by the learned counsel appearing for NCISM reveals that about 11,45,976 candidates were found to be NEET Qualified students with 50 percentiles against the total available seats across various UG streams of Ayurveda, Siddha, Unani and Homeopathy to be 59000 seats.

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Writ-C Nos. 9920 of 2023 and 10640 of 2023

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Page 13 of 21

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This Court finds that the said data can never be an indication to the ratio between the number of candidates with 50 percentiles vis-à-vis the number of available seats for AYUSH Courses, as NEET is also used for admission to various Medical Courses including MBSS, BDS etc. Apparently, it is not the case of the petitioners that sufficient number of candidates could not secure the minimum percentile of 50 for the present year, rather it is the case of the petitioners that sufficient number of candidates are not available for taking the AYUSH Courses within the said period and that for that reasons, they are seeking the indulgence of this Court for lowering of the minimum percentile.

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(19) However, this Court finds that during the pendency of the present writ petitions, the NCISM in consultation with the Central Government, keeping in view the proviso to Regulation 5 (b) has lowered the minimum percentile across all category by 5%, which has not only reduced the minimum percentile for admission to AYUSH Courses to 45% but has also brought almost about one lakhs more candidates within the eligibility zone for consideration of admission to these AYUSH Courses.

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(20) Having recorded so, the moot point is as to whether this Court, while exercising its power of Judicial review under Article 226 of the Constitution of India, can further lower the minimum percentile, so as to enable the petitioners’ college to fill their unfilled seats for the present academic session 2023-24. A

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Writ-C Nos. 9920 of 2023 and 10640 of 2023

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Page 14 of 21

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Division Bench of this Court in an identical situation had examined the issue for reducing the percentile criteria for admission to BUMS and BAMS Courses for the academic session 2022-23, which had been refused. The Hon’ble Division Bench in the said case, reported as C/M Alpsankhyak Shiksha Vikas Samiti, Kanpur Vs State of U.P & Others : 2023 SCC Online ALL 80, while upholding the decision of the Co-ordinate Bench of this Court, had been pleased to hold interalia as under :

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“31. If we further examine the reason given by the Commission in the order dated 02.03.2023 in the light of undisputed fact that though NEET UG carries 715 maximum marks and the cut-off marks for general category candidates has been fixed at 117 and those for reserved category has been fixed to be 93, though this Court is not expert in such matters, however, we have no reason to disagree with the Commission's view that further lowering the cut-off marks will not be conducive for the purpose for which NEET is organized i.e. to select the best of the candidates to pursue medical courses in Indian systems of medicine.

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32. The submission made on behalf of the appellants-petitioners that there exists nonavailability of the candidates and because of their non-availability seats in their institutions remained unfilled also does not impress us for the simple reason that the total available candidates on the basis of existing cut of percentile are 9,93,069 whereas the total number of seats to be filled in all streams of the undergraduate courses is only 2 lakhs. Accordingly, the possibility of available candidates who are credited with more percentile than the cutoff percentile having not opted for the institutes run by the appellant-petitioners, cannot be denied.

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Writ-C Nos. 9920 of 2023 and 10640 of 2023

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Page 15 of 21

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33. For the discussion made and the reasons given above we do not find any good ground to interfere with the order passed by the learned Single Judge. Resultantly special appeal is dismissed.”

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(21) This Court further finds that the grounds taken by the learned Counsel for the petitioners seeking lowering of the minimum percentile for the present academic session 2023-24, is identical to the grounds, which had not found favour with the Hon’ble Division Bench of this Court for the academic year 2022. In any case, even if the said grounds are independently viewed de hors the judgement passed by the Hon’ble Division Bench of this Court for the session 2022, this Court finds that the argument of the learned counsel for the petitioners seeking lowering of the minimum percentile, is basically on two folds; the first being large number of vacant seats are available in AYUSH Colleges and the second being there are numbers of precedents, wherein the percentile have been reduced on several occasion earlier.

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(22) As far as the first limb of argument is concerned, as per proviso to Regulation 5 (b) of the NCISM Regulation, 2022, a discretion is vested with the NCISM in consultation with the Central Government to lower the minimum percentile, in case of a situation where there are insufficient number of candidates in the respective categories, who have failed to secure minimum marks in the National Eligibility-cum-Entrance Test. This Court finds that the NCISM has already exercising its

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Writ-C Nos. 9920 of 2023 and 10640 of 2023

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Page 16 of 21

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discretion as aforesaid has lowered the minimum percentile by 5% for the present academic session leading to increase of candidates from 11,45,976 to 12,44,686 against the total availability of AYUSH seats of 59,000. The contention of the petitioners that even after the said increase of candidates, there are still vacant seats lying in their college and as such the lowering of the percentile should ought to have commensurate to the vacancies to be filled in their Colleges, is an argument of convenience and cannot be accepted as has been rightly pointed out by the learned counsel for the respondents that there might be several reasons for these seats remaining vacant.

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(23) Apparently, this Court also does not find the reasons suggested by the learned counsel to be a factor for exercising the discretion vested with the NCISM to lower the minimum percentile. The discretion exercised by the NCISM in consultation with the Central Government for lowering the minimum percentile by 5% for the instant academic session, is a matter of policy decision and discretion exercised by an expert body, who are specialist in their field. Thus, the interference of writ Courts on policy decision ought to be minimal. Further, no ground has been agitated by the petitioners that the lowering of the minimum percentile by 5% is arbitrary. The only ground taken by the learned Counsel is the availability of vacant seats, which cannot be a ground for further lowering of the minimum percentile as has been held in various

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Writ-C Nos. 9920 of 2023 and 10640 of 2023

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Page 17 of 21

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precedents, including by the decision of Division Bench of this Court rendered in C/M Alpsankhyak Shiksha Vikas Samiti, Kanpur (supra).

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(24) Further, it is pertinent to mention that prescribing a minimum percentile is an eligibility criteria laid down for admissions to academic and professional courses and is exclusively in the realms of experts and it has to be understood that the NCISM being a specialized and expert agency has been bestowed with the power to maintain high quality and high standards of education in Indian System of Medicine. The Apex Court with respect to NMC, a body constituted on similar lines for MBBS courses as NCISM, having been constituted for Ayush Courses, has held in the case of Modern Dental College & Research Centre v. State of Madhya Pradesh : (2016) 7 SCC 353, that the objective in prescribing minimum standards is to provide a benchmark of the caliber and quality of education being imparted by various educational institutions in the entire country. Thus, the standards of education are directly linked to the norms of admissions/selection process, and National Medical Commission is certainly competent to determine such standards and to regulate the admission process as well as the admission criteria. The said findings of the Hon’ble Apex Court apply in equal force even to NCISM.

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Writ-C Nos. 9920 of 2023 and 10640 of 2023

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Page 18 of 21

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(25) Time and again, the Hon’ble Supreme Court has held that lack of minimum standards would result in half-baked doctors and non-availability of eligible candidates could not be a reason to lower the standard. A Division bench of the Hon’ble Delhi High Court, while adjudicating the issue as to whether Regulation 9 (3) of the Postgraduate Medical Education (Amendment) Regulations, 2018 to the extent that it provided for minimum marks of 50 percentile as a mandatory requirement for admission to postgraduate courses should be quashed on the ground that the said requirement is arbitrary, unjustified and contrary to Article 14, Article 19 (1)(g) and Article 21 of the Constitution of India, held in the case reported as Dr. Abhinav Kumar & Ors. V/s Union of India & Ors. : 2022 SCC Online DEL 2241, as herein below:

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“In the light of the above observations, this Court emphasizes that the lowering of the standards of medical education has the potential of wreaking havoc on society at large due to the risk that practice of medicine entails; it involves in its ambit the matter of life and death, and therefore, it would be unconscionable for this Court to interfere in the standards duly and diligently set by the governing authority. This Court, therefore, cannot issue a mandamus directing the Respondents to fill up the seats, especially when the persons concerned have not obtained the minimum percentile as this Court is dealing with admissions to postgraduate courses in various medical colleges, and there cannot be any compromise on the issue of quality of doctors/specialists as it involves a risk to human lives. Resultantly, no case for interference is made out in the matter.

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Writ-C Nos. 9920 of 2023 and 10640 of 2023

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Page 19 of 21

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(26) In any case, as the competent authority has already exercised its discretionary power and reduced the minimum marks by 5 percentiles, directing it to reduce it further would be nothing short of interfering in the affairs of the academic bodies, which are experts and specialised in their own fields and are in a better position to strike a balance between the filling of vacant seats in respective college vis-a-vis the societal requirement of quality health care. Thus, this Court does not find any ground to substitute the discretion already exercised by the NCISM in consultation with the Central Government for further lowering of the minimum percentile for admission to AYUSH Courses for the present academic year 2023-24.

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(27) Further, as regards the availability of various precedents, wherein the minimum percentile has been reduced is concerned, it has to be noted that in all the cases, it is the competent authority, who had come to the rescue and had exercised their discretion in lowering the minimum percentile. In any case, the said exercise has to be on case to case and year to year basis and cannot be treated as precedence or a thumb rule as it would defeat the very purpose for which these eligibility criteria have been prescribed to maintain the medical standards. Moreover, the said precedence has to be viewed keeping in mind that as far as the present case is concerned, the authorities have already lowered the minimum percentile by 5% and are resisting any further reduction in the minimum percentile for the present

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Writ-C Nos. 9920 of 2023 and 10640 of 2023

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Page 20 of 21

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academic session 2023-24. Additionally, this Court has been informed that the last date for all admission has lapsed on 30.11.2023 and the classes for all AYUSH Classes have already been started. Thus, this Court finds the reliance of the learned counsel for the petitioners on earlier precedence to be unfounded and meritless.

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(28) Since, this Court is of the considered view that no directions for further lowering of the minimum percentile can be granted, the other consequential prayer for extending the time for completion of admission for AYUSH Courses is also rejected.

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(29) In view of the aforesaid observation and discussion, this Court is of the opinion that no case for lowering of the minimum percentile beyond the already lowered percentile by the authority is possible as the same would result in frustrating the very purpose of prescription of minimum eligibility criteria. Further, this Court finds that prescription of minimum eligibility criteria is in the overall public interest to maintain the standard of education in the field of AYUSH, especially when these days AYUSH is perceived as one of the most ancient well documented system of medicine, wherein prominence to prevention of disease is given rather than cure and there is a dearth of well trained and well qualified AYUSH doctors in the country.

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Writ-C Nos. 9920 of 2023 and 10640 of 2023

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Page 21 of 21

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(30) Although, this Court has refrained from lowering the minimum percentile for admission for the academic session 2023-24, however, this Court hope and trust that NCISM should be alive to the perennial problem of these precious medical seats remaining vacant for each academic year and appreciate that vacancy of these seats in a particular year leads to vacancy of these seats for five successive years in a row, which is a national loss, hence NCISM may look into these issues and if it deem fit, may frame a policy in consultation with the Central Government and all the stake holders to ensure that minimum seats goes vacant by prescribing for a more pragmatic and scientific mechanism for exercising the discretionary power of lowering the minimum percentile by balancing the ambitious objective of maintaining the standard of education vis-à-vis the number of seats going vacant each year.

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(31) For all the reasons as stated herein above and subject to the observation made by this Court, the above-captioned writ petitions are dismissed . There shall be no order as to cost.

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(Om Prakash Shukla, J.)

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Order Date : 22^nd February, 2024 Ajit/-

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Writ-C Nos. 9920 of 2023 and 10640 of 2023

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Digitally signed by :- AJIT KUMAR High Court of Judicature at Allahabad, Lucknow Bench

C/M Dr. Abdul Ali Tibbiya College and Hospital,Lko. Thru. Director Prof. Dr.Arshad Ali and 6 Others v. State of U.P. Thru. Addl. Chief Secy. Deptt. of Ayush, Lko. and 4 Others

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C/M Dr. Abdul Ali Tibbiya College and Hospital,Lko. Thru. Director Prof. Dr.Arshad Ali and 6 Others v. State of U.P. Thru. Addl. Chief Secy. Deptt. of Ayush, Lko. and 4 Others

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