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Prakash Shikshan Mandal's Loknete v/s State of Maharashtra, through its Department of Medical Education & Drugs & Others

    Writ Petition (ST) No. 25670 of 2019
    Decided On, 13 January 2020
    At, High Court of Judicature at Bombay
    By, THE HONOURABLE MR. JUSTICE S.C. DHARMADHIKARI & THE HONOURABLE MR. JUSTICE R.I. CHAGLA
    For the Petitioner: Vijay M. Thorat, Anukul Seth, M.V. Thorat, Advocates. For the Respondents: R1, B.V. Samant, AGP, R2 & R3, S.S. Patwardhan, Advocate.


Judgment Text

Oral Judgment: (S.C. Dharmadhikari, J.)

1. Rule. Respondents waive service. By consent, Rule made returnable forthwith.

2. By this petition under Article 226 of the Constitution of India, the petitioner is challenging a communication dated 15th February, 2019, issued by the Common Entrance Test Cell set up by the State of Maharashtra – respondent No.1 refusing to recognise the admissions of thirty four students admitted to the petitioner-college.

3. The names of these students is at Exhibit-H to the petition. The petitioner’s case is that these students have been admitted on the basis of the increased intake capacity of the petitioner-institution. The intake capacity has been increased from 60 to 100 seats in the Academic Year 2018-2019. Pertinently, the students have not filed any writ petition challenging the refusal.

4. The communication, which is impugned in the present petition and copy of which is at page 52 of the paper-book, says that the petitioner has already been informed by the respondent Nos.1 and 2 on 12th December, 2018 that the admissions to this increased intake capacity has to be made in accordance with the communication referred in the letter. The letter says that on 12th February, 2019, the petitioner was informed that for the Ayurveda, Yoga and Naturopathy, Unani, Siddha, Homeopathy (for short “AYUSH”) courses, the admissions have to be made in accordance with the rules prescribed in that behalf. This would include the admissions even for the increased intake capacity. Then, on 13th February, 2019, the State Common Entrance Test Cell called upon the petitioner to provide the details of the admissions which have been made for the Academic Year 2018-2019 allegedly on the basis of its increased intake capacity. However, on 14th February, 2019, the petitioner informed the said Cell that it has made the admissions on merit as per the rules and regulations. The petitioner also informed that it has started recovering the fees on the basis of the increased intake capacity. However, the order passed by the Hon’ble Supreme Court of India on 1st February, 2019, according to the State Entrance Test Cell, is applicable to those students who have been affected by the controversy covered by the said judgment. Thus, the judgment would take care of a controversy about the admissions made after the cut-off date, namely, 15th November, 2018.

5. The impugned letter informs the petitioner that the Maharashtra University of Health Sciences has granted the affiliation / approval to the admissions made by the petitioner on the basis of the increased intake capacity after the cut-off date. For all these reasons, this letter communicates to the petitioner that the admissions beyond the intake capacity of 60 seats cannot be said to be valid. The same cannot be upheld.

6. We will have to refer to certain undisputed facts so as to appreciate the arguments of both sides.

7. It is common ground that the first petitioner before this Court is a Private Unaided Ayurvedic Medical College. The respondent No.1 is the Common Entrance Test Cell, a body established under the Maharashtra Unaided Private Professional Educational Institutions (Regulation of Admission and Fees) Act, 2015 (for short “the Act of 2015”). The second respondent is designated as the competent authority for selection and admission of candidates to all Health Science Courses in the State of Maharashtra. The third respondent is the Admission Regulating Authority which is also created under the Act of 2015 for the purpose of verification of admission proposals and final approval thereof, whereas the fourth respondent is the University to which the petitioner college is affiliated. The Prakash Shikshan Mandal Trust is established to impart technical and medical education to the people in rural and urban areas of the State of Maharashtra. This Shikshan Mandal established the petitionercollege in the year 2002 with 50 intake capacity for the Bachelor of Ayurvedic Medical Science course. In the year 2014, this intake capacity was increased to 60 by the Union of India on the recommendation of the Central Council of Indian Medicine. A Government Resolution was issued by the State of Maharashtra on 20th October, 2014, in favour of the petitioner for increase in the intake capacity from 55 to 60 students. On 20th October, 2016, an application came to be made by the petitioner for increasing the intake capacity from 60 to 100.

8. What transpired after making of this application is then set out in the following paragraphs of the petition :

(B) Petitioner state that on 20.10.2016 an application came to be made by the Petitioner for increasing intake capacity from 60 to 100. Upon carefully perusing the application of the Petitioner College, the State of Maharashtra by order dated 19.07.2017 issued No Objection Certificate for increasing the intake capacity from 60 to 100. On the basis of the said NOC, the MUHS inspected the Petitioner College and issued the Consent of Affiliation on 24.07.2017 for increase in intake of the Petitioner College from 60 to 100. Annexed hereto and marked as Exhibit-A is a copy of the No Objection Certificate dated 19.07.2017 issued by the State of Maharashtra. Petitioner craves leave to refer to and rely upon the Consent of Affiliation dated 24.07.2017 as and when required by this Hon’ble Court. After obtaining the above NOC, the Petitioner College forwarded its application to the Union of India for increase in intake to first year BAMS Course and/or for Letter of Permission for increase in intake from 60 to 100 for Ayurvedic UG College. The said Application made by the Petitioner was forwarded by Union of India to the Central Council of Indian Medicine (CCIM) for ascertaining the necessary infrastructure available with the Petitioner College for increase in intake.

(C) Petitioner states that the CCIM thereafter carried out an inspection on 27.07.2017 and upon being satisfied with the infrastructure and/or teaching staff, issued Letter of Intent (LOI) on 02.02.2018. For the purpose of issuing Letter of Permission (LOP) and/or to ascertain whether the necessary infrastructure including teaching and non-teaching staff is available or not, the CCIM carried out inspection on 15th/16th February 2018. For the purpose of verification, the CCIM once again sent a team for the purpose of Letter of Permission on 4th/5th June 2018. The 2nd visiting team also submitted its report to the CCIM recommending increase in intake from 60 to 100. Being satisfied with the infrastructure and the teaching and non-teaching staff The CCIM thereafter by recommendation dated 24.07.2018 recommended to the Respondent-Union of India for issuing Letter of Permission to increase in intake capacity in the existing under-graduate BAMS course from 60 to 100.

(D) Petitioner states that prior to 24.07.2018, Union of India without any authority of power sent its own inspection team on 3rd/4th July 2018 and on the basis of its report, issued a show cause notice dated 27.07.2018 pointing out certain deficiencies therein and directed the Petitioner- College not to undertake admission to Undergraduate Ayurvedic Course for the Academic Year 2018-2019 till the decision of the Central Government on the compliance of the rectification of the deficiencies. Petitioner by its representation dated 11.08.2018 pointed out that no deficiency existed with the Petitioner and/or that all the deficiencies in the show cause were baseless and without any foundation. Petitioner craves leave to refer to and rely upon the Show Cause Notice dated 27.07.2018 and its reply dated 11.08.2018 as and when required by this Hon’ble Court. Despite satisfactorily demonstrating that no deficiency existed at Petitioner College, the Union of India did not permit the Petitioner to admit students to Undergraduate Ayurvedic Course. Therefore, the Petitioner was constrained to file a Writ Petition being WP(L) No.2894 of 2018; seeking to quash and set aside the show cause notice dated 27.07.2018 and permission to admit students to Undergraduate and Postgraduate Ayurvedic Course respectively. Petitioner states that the said Petition came to be heard and by orders dated 11.09.2018 the show cause notice dated 27.07.2018 came to be stayed and the Petitioner was permitted to admit students to Undergraduate Ayurvedic Course. Annexed hereto and marked as Exhibit-B is a copy of the order dated 11.09.2018 passed in WP(L) No.2894 of 2018.

(E) Petitioner states that the Union of India, thereafter, again on 24.09.2018 issued a show cause notice and/or notice for hearing regarding the permission for additional intake from 60 to 100 seats per year. The notice dated 24.09.2018 indicated new deficiencies which never existed at the Petitioner College at the time of inspection and directed the Petitioner to remain present for personal hearing on 03.10.2018 at 10.30 am. The Petitioner was further directed to clarify as to why the proposal for increase in intake from 60 to 100 should not be denied. Petitioner states that pursuant to the show cause notice dated 24.09.2018 the Petitioner remained present along with its reply and produced before the Hearing Committee all relevant and valid documents, records and proof in original to substantiate that on the date of visit there were no shortcomings or deficiencies. However, to the shock and surprise of the Petitioner, the Union of India, refused to issue Letter of Permission and consider the submissions made by the Petitioner. In view thereof, the Petitioner was once again constrained to file another Writ Petition being WP No.11512 of 2018 seeking directions against the Union of India to only consider the report submitted by the CCIM for granting Letter of Permission for increase in intake from 60 to 100. The Writ Petition came to be heard and this Hon’ble Court by its order dated 09.10.2018 was pleased to direct the Union of India to take into consideration only the recommendations-forwarded by the CCIM and the report of inspection team appointed by the CCIM for the purpose of deciding increase in intake from 60 to 100. Annexed hereto and marked as Exhibit-C is a copy of the order dated 09.10.2018 passed by this Hon’ble Court in WP No.11512 of 2018. Pursuant to the order dated 09.10.2018 the Union of India was pleased to issue Letter of Permission dated 30.10.2018 in favour of the Petitioner for increasing its intake capacity from 60 to 100 BAMS course. Annexed hereto and marked as Exhibit -D is a copy of the Letter of Permission dated 30.10.2018 issued by the Union of India in favour of the Petitioner.

(F) Petitioner states that the Petitioner College has already been permitted to admit students to BAMS course with an intake capacity of 60 students for the academic year 2018-19. After the Letter of Permission for increase in intake from 60 to 100 came to be issued, the Petitioner College was officially permitted to admit 100 students for the academic year 2018-19. Petitioner states that initially the last date of admission to BAMS course was 31.10.2018 which was later on extended to 15.11.2018 and the Letter of Permission for increased intake was issued only on 30.10.2018. Upon receipt of the Letter of Permission, the Petitioner on the very same day approached the State of Maharashtra to issue Government Resolution and grant permission to admit the students to BAMS course against the increased intake capacity. However, the CET Cell did not permit the Petitioner to admit students against the increased intake capacity as State of Maharashtra had not issued a Government Resolution in favour of the Petitioner for the increased intake and the First-time affiliation from the MUHS was not issued. Therefore, the CET Cell only allotted 60 students to the Petitioner College upto the cut-off date of 15.11.2018.”

9. The petitioner says that after the cut-off date, namely, 15th November, 2018, the Government of Maharashtra issued a resolution in favour of the petitioner, copy of which is marked as Exhibit-E. This Government Resolution is dated 26th November, 2018. It permitted increase in the intake capacity from 60 to 100 students. The Maharashtra University of Health Sciences, by its letter dated 4th December, 2018, granted first time affiliation to the petitioner-college for increase in the intake capacity from 60 to 100 students for the Academic Year 2018-2019. A copy of the Maharashtra University of Health Sciences’ letter is annexed as Exhibit-F to the petition.

10. Now, the petitioner says that various petitions were filed before this Court as well as the Hon’ble Supreme Court challenging the eligibility criteria for admissions of students to Ayurvedic and Homeopathy courses. Due to the pendency of these petitions, the admission process was delayed. Taking note of the large number of vacant seats and the peculiar situation in the State of Maharashtra, an order was passed by the Hon’ble Supreme Court on 1st February, 2019, extending the cut-off date for admission to 15th February, 2019, instead of the initial cut-off date of 15th November, 2018. The students were allowed to be admitted in the vacant seats on the basis of their merit ranking in the National-Eligibility-cum-Entrance Test (for short “NEET”).

11. Relying upon this judgment, copy of which is at Exhibit-G to the petition, the petitioner claims that 35 students came to be allotted to the college. Out of these 35 students, one student withdrew his admission and, therefore, 34 students confirmed their admission as on 15th February, 2019, against the increased intake capacity. In view of the fact that the petitioner-college had obtained the requisite permissions for this BAMS course with intake capacity of 100 students from the Academic Year 2018-2019, the petitioner was hopeful that the admission process for the Academic Year 2018-2019 can pass off without any further complications. However, the petitioner was informed that the 34 students cannot be considered as having been admitted against the increased capacity for the Academic Year 2018-2019. In other words, the petitioner made these admissions, but the second respondent has refused to recognise the same.

12. It is in these circumstances that this writ petition has been filed.

13. An affidavit-in-reply has been filed to this petition by the State Common Entrance Test Cell. The same is affirmed by Mr. Sandeep Kadam, Commissioner. The affidavit says in paragraph 5 that the petitioner has twisted the facts. The order of the Hon’ble Supreme Court dated 1st February, 2019, in Civil Appeal 1393 of 2019 (Exhibit-G) deals with a judgment and order dated 4th December, 2018 of this Court, in Writ Petition No. 10665 of 2018 and connected matters. The question that fell for consideration in that decision of the Hon’ble Supreme Court was, “whether the stipulation applying a certain percentile in the NEET examination by the Government of Maharashtra’s decision dated 15th June, 2018, would apply to admissions done in the Academic Year 2018-2019 or not”. This Court took the view that the application of the said formula of percentile for the Academic Year 2018-2019 was a correct decision. The Hon’ble Supreme Court has not interfered with the exposition of law by this Court nor has it reversed the judgment of this Court. The Hon’ble Supreme Court has taken a sympathetic view and observed that excepting the State of Maharashtra the students from other parts of India had the benefit of the old eligibility criteria. To them, the new criteria / formula of percentile was not applied. It is only to bring uniformity of standard in the admission to the Health Science courses of India that the Hon’ble Supreme Court in the concluding paragraph of its judgment observed that though it has not dealt with the correctness of the issue of application of percentile formula, it directs extension of the cut-off date for completion of the admission process of the first year BAMS course to 15th February, 2019. This cut-off date was extended only to enable the students who were excluded from the admission process on the applicability of percentile formula to seek admission. The extension of cut-off date was only for these students and for the Academic Year 2018-2019. After the order was passed by the Hon’ble Supreme Court, an application for clarification was made and the Court passed a clarificatory order. Thus this order of the Hon’ble Supreme Court neither benefited the petitioner nor the 34 students. The contention of the petitioners that the extension of the cut-off date would regularise the admissions to the increased intake capacity and cover the additional students over and above the 60 students is not correct. No stipulation in that regard has been altered. Thus, the original seat matrix has been approved. The order of the Hon’ble Supreme Court, therefore, cannot be of any assistance to the present petitioners. It is then stated in this affidavit that the extension of the cut-off date by the Hon’ble Supreme Court would automatically cover the additional intake capacity without any corresponding changes in the composition of seats or seat matrix is not correct. For these reasons, the State CET Cell has rightly disapproved the admissions. The decision to disapprove these admissions was taken on 12th December, 2018, but that has not been challenged by the petitioners. The consequential steps have been communicated by the impugned letter and that alone is challenged. For these reasons, it is submitted that the writ petition be dismissed.

14. There is a rejoinder affidavit filed by the petitioner in which the petitioner says that the Government and the State CET Cell is not consistent in their stand. The stands keeps on shifting, depending on the facts and circumstances of each case. In paragraphs 3 and 4 of this rejoinder affidavit, this is what the petitioner says :

“3. I say that one Sant Gajanan Maharaj Ayurvedic Medical College, Mahagaon, Kolhapur was granted Letter of Permission by the Union of India on 8.11.2018. Prior to that seat matrix was prepared and published on the website of Director of Medical Education & Research in or around June / July 2018. Since the said Sant Gajanan Maharaj Ayurvedic College was not given permission to establish ayurvedic college, seat matrix of the said college was not incorporated. However, after Letter of Permission dated 8.11.2018, Government Resolution was issued on 13.11.2018. After 5 O’Clock on 15.11.2018, Maharashtra University of Health Sciences granted fir time approval and therefore the college could not fill up the seats. After Supreme Court’s order extending the date to 15.2.2019, the said Sant Gajanan Maharaj Ayurvedic College like present Petitioner admitted the students. The students of Sant Gajanan Maharaj Ayurvedic College, Kolhapur are approved by Admission Regulatory Authority, though the seat matrix published by Respondent authorities did not show any seat of the said Sant Gajanan Maharaj Ayurvedic College.

4. Similarly, one Nootan Homeopathic Medical College and Hospital was also granted letter of permission by the Union of India on 26.10.2018 with intake capacity of 60 students. Thereafter, the Respondent University granted First Time Affiliation to Nootan Homeopathic Medical College only on 27.11.2018 i.e. after the cut-off date of 15.11.2019. Despite the name of Nootan Homeopathic Medical College not being mentioned in the seat matrix, the said college admitted the students after the cut-off date was extended by the Hon’ble Supreme Court. After admitting students to BHMS course, the Respondent Admissions Regulating Authority has also approved the students admitted by it. Further, the Respondent CET cell has also not raised any objections regarding the admission of the students to Nootan Homeopathic Medical College. It is therefore evident that the Respondent Authorities are applying different yardsticks for different colleges and have adopted a pick and choose method for granting approval to the students admitted to Undergraduate Ayurvedic and Homeopathic Courses. Annexed hereto and marked as Exhibit-R-2 is a copy of the Letter of Permission dated 26.10.2018 issued by the Union of India to Nootan Homeopathic Medical College. Annexed hereto and marked as Exhibit-R-3 is a copy of the First Time Affiliation dated 27.11.2018 issued by the Maharashtra University of Health Sciences.”

15. It is claimed that the seat matrix is nothing but declaration of the seats by the Director of AYUSH before the first round of admission commences and that is subject to change. If that is subject to change or alteration, then, all the more the petition must succeed.

16. On the above materials, we have heard Mr. Thorat, learned advocate for the petitioner and Mr. Patwardhan appearing on behalf of the respondent No.2.

17. Mr. Thorat invited our attention to the copy of the judgment of the Hon’ble Supreme Court and particularly paragraph 7 thereof. He submits that the students admitted prior to 15th February, 2019, are entitled to claim the relief of regularisation of their admissions. It is clear that the State CET Cell did not approve the admissions and the University did not grant the Eligibility Certificate. However, the reasons for the decision of the CET Cell appear in the communication, copy of which is at page 52 of the paper-book. Mr. Thorat, however, submits that we must first take note of the communication from the Maharashtra University of Health Sciences, Nashik, dated 4th December, 2018. A copy of this communication is at page 40 of the paper-book.

18. The University communicates its decision already taken on 18th June, 2018. Mr. Thorat submits that the decision of the MUHS is much prior to the cut-off date. It is only the communication of that decision which is after the cut-off date. In other words, the communication at page 40 of the paper-book may be dated 4th December, 2018, but the University’s decision is taken in the Academic Council Meeting held on 18th June, 2018. That Council passed a Resolution No.68 of 2018 granting first time affiliation to the petitioner for the Academic Year 2018-2019 for increase in the intake capacity from 60 to 100 seats for BAMS Undergraduate course. Mr. Thorat submits that this affiliation may be subject to the conditions set out in this communication. However, the conditions would not affect the relief claimed in the writ petition. Mr. Thorat criticizes the affidavit in reply filed by the CET Cell and urges that the CET Cell assigns reasons in addition to those assigned in the communication at page 52 of the paper-book. That is impermissible in law. These reasons are assigned as an after thought. Mr. Thorat has invited our attention to the affidavit of the State CET Cell and particularly paragraph 5 thereof to urge that the argument of the CET Cell based on seat matrix is not accurate. That argument overlooks the note which appears in the communications and letters. This note very clearly says that the seat matrix is subject to change. Thus, additional seats can be included by the respondentauthorities. Mr. Thorat says that in the rejoinder affidavit, the petitioner has brought on record instances of Sant Gajanan Maharaj Ayurvedic College, Mahagaon, Kolhapur and Nootan Homeopathic Medical College and Hospital. In the case of these two entities, the seat matrix published by the respondent authorities did not show any allotment. Yet, the Hon’ble Supreme Court order and the benefit thereof was extended to the admitted students. Thus, Mr. Thorat would submit that this is a case covered fully by the order passed by the Hon’ble Supreme Court and we should not allow the respondents to deviate from the decision taken in the case of the above entities. Mr. Thorat says that the CET Cell cannot discriminate in the above manner between entities similarly situate. For all these reasons, he would submit that the petition be allowed.

19. Mr. Patwardhan appearing for the respondent Nos.2 and 3 submits that there is no merit in the contentions of Mr. Thorat. We are considering a situation of Academic Year 2018- 2019. The seat matrix for that Academic Year is 60 students. These 60 students were admitted. 15th November, 2018 was the cut-off date. The admissions closed as the full capacity was achieved. The affiliation of MUHS in this case is dated 4th December, 2018. It is fallacious to urge that the Academic Council’s Resolution dated 18th June, 2018, is the trigerring point. If that decision contained in the Resolution of the meeting of the Academic Council takes effect only after it is communicated, then, the date of the MUHS letter of 4th December, 2018, is crucial and relevant. Our attention has been invited to the order passed by the Division Bench of this Court which was carried in appeal to the Hon’ble Supreme Court. Mr. Patwardhan would submit that the petitioner cannot rely on the Supreme Court judgment by reading it out of context and without any reference to the underlying controversy.. In that decision of the Division Bench of this Court considered the issue as to whether the changed / updated criteria applies to the admission process for the Academic Year 2018-2019. That is the core question. It is in that context that all the observations have been made in the judgment of this Court and which judgment has not been expressly overruled or reversed. In such circumstances, the order of the Hon’ble Supreme Court cannot cover the case at hand. The students which are referred in this petition and their admissions were not in issue before the Hon’ble Supreme Court at all. The learned counsel would invite our attention to the Maharashtra Unaided Private Professional Educational Institutions (Regulation of Admissions and Fees) Act, 2015 (for short “the Maharashtra Act XXVIII of 2015”) which is the law. That law enables making of Rules. The Rules have been made and copy of the said Rules styled in the Gazette Notification as the Maharashtra Unaided Private Professional Educational Institutions (Regulation of Admission to Full-time Professional Undergraduate Ayurved, Unani, Homeopathy, Physiotherapy, Occupational Therapy, Speech Therapy, Prosthetic and Orthotics and BSc. Nursing Courses) Rules, 2016 would apply to the admission process. Once the governing law is the Maharashtra Act XXVIII of 2015 and the above Rules of 2016, then, nothing outside these Rules can be permitted to be recognised. Our attention is invited to the provisions of the Act and the Rules in this behalf by Mr. Patwardhan. He would, therefore, submit that this Court should proceed to dismiss the petition.

20. For proper appreciation of the rival contentions, we must firstly refer to the Maharashtra Act XXVIII of 2015. That Act is applicable to the Unaided Private Professional Educational Institutions of the State of Maharashtra. The Act provides for regulation of admissions and fees charged by these institutions and for matters connected therewith or incidental to it. The Act, therefore, had to define certain words and expressions. The definitions of he following words and expressions in section 2 are relevant for our purpose.

“2. In this Act, unless the context otherwise requires,-

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(a) “Admissions Regulating Authority” means the Authority constituted under section 7 for regulating the admissions in Unaided Private Professional Educational Institutions and conducting CETs;

(b) “appropriate authority” means the authorities declared by the State or Central Government which approve and regulate the professional courses or educational disciplines;

(c) “Centralized Admission Process (CAP)” means the centralized process of admission carried out by the competent authority through single window system in a transparent manner for admitting the students for various professional courses in educational institutions;

(d) “Common Entrance Test (CET)” means the entrance test conducted for determination of merit of the candidates by Centralized Admission Process (CAP) for the purpose of admission to professional education courses through a single window system;

(e) “Competent Authority” means the Commissioner of State CET appointed by the Government under section 10, for conducting CET through CAP for the admissions into Private Professional Educational Institutions;

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(l) “management” means the managing committee or the governing body, by whatever name called, of the Private Professional Educational Institution to which the affairs of such Institution are entrusted and where such affairs are entrusted to any person, by whatever name or designation called, includes such person;

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(p) “prescribed” means prescribed by rules made under this Act;

(q) “Private Professional Educational Institution” means any college, school, institute, institution or other body, by whatever name called, conducting any professional course or courses approved or recognized by the appropriate authority and affiliated to any university, but shall not include,—

(I) any such institution established, maintained or administered by the Central Government, any State Government or any local authority;

(ii) institution declared to be a deemed university under section 3 of the University Grants Commission Act, 1956; or

(iii) a university to which the provisions of the University Grants Commission (Establishment and Maintenance of Private Universities) Regulations, 2003 are applicable;

(r) “Professional Education” means any educational course of study declared and notified as such, from time to time by the Government which includes a course leading to the award of an Under Graduate or Post-Graduate degree, diploma, by whatever name called and recognized by the appropriate authority;

(s) “profiteering” means any amount accepted in cash or kind, directly or indirectly which is in excess of the fee approved as per the provisions of this Act;

(t) “regulations” means the regulations framed by the Regulating Authorities;

(u) “Regulating Authority” means the Admissions Regulating Authority under section 7 or the Fees Regulating Authority under section 11, as the case may be;

(v) “sanctioned intake” means the total number of seats sanctioned or approved by the appropriate authority for admitting candidates in a single academic year in each professional course of study or discipline in a Private Professional Educational Institution at the appropriate level of entry;

(w) “Stake-holders” means the management, the students studying in the respective institution and their parents;

(X) “unaided institution” means Private Professional Educational Institution, which is not receiving aid or grant-inaid from the Central Government, the State Government or the local authority;”

21. A perusal of these definitions leaves us in no manner of doubt that the terms employed in the communications of the MUHS and the Cell are well defined. The ‘sanctioned intake’ means the total number of seats sanctioned or approved by the appropriate authority for admitting candidates in a single academic year in each professional course of study or discipline. The word professional course of study or discipline in a Private Professional Educational Institution at the appropriate level of entry had to be defined so that all stakeholders, including the University would have a clear idea of whether the teacher-student ratio is maintained, the students are imparted quality education by trained professionals. Ultimately, these students are going to practice the alternative medicine. These students would examine patients and prescribe for them the treatment and medicines. It is in these circumstances that eligibility for admission in section 3 falling in Chapter II clearly says that the eligibility conditions and requirements for admission to professional course at any Private Professional Educational Institution shall be such as may be noted by the Government from time to time, but shall not be less than those stipulated by the appropriate authority. Subsection (2) of section 3 says that no student shall be admitted to a Private Professional Educational Institution unless the student possesses such educational or equivalent qualification as may be notified. Sub-section (3) of section 3 mandates that unaided institution shall admit students through a process as may be prescribed. The word “prescribed” is defined to mean prescribed by the rules. Sections 4 and 5 of this Act are relevant and read as under :

“4. The admissions to seats for professional course in every unaided institution shall be carried out in the following manner:—

(a) admission to seats in a Private Professional Educational Institution excluding institutional quota declared by Government from time to time, shall be made on the basis of merit by following the procedure of Common Entrance Test (CET) conducted in the manner, as may be prescribed by rules:

Provided that, the admission to institutional quota institutional quota declared by Government from time to time, shall be made on the basis of merit by following the procedure of Common Entrance Test (CET) conducted in the manner,as may be prescribed by rules shall be on the basis of merit and after following the procedure specified by the appropriate authority:

Provided further that, the State Government may by order issued from time to time exempt any professional courses, from requirement of the Common Entrance Test (CET) thereto.

(b) admissions to such institution shall be carried out by the competent authority through the Centralized Admission Process on the basis of Common Entrance Test (CET) and Centralized Admission Process (CAP);

(c) the Competent Authority shall supervise and guide the entire Centralized Admission Process in such manner as it may specify with a view to ensuring that the process is fair, transparent, merit-based and non-exploitative.

5. Any admission made in contravention of the provisions of this Actor the rules made thereunder shall be void.”

22. A perusal of section 4 would reveal the manner in which the admissions to seats for professional courses in every unaided institution shall be carried out. That is as per clauses (a), (b) and (c) of section 4. The admission to seats in a Private Professional Educational Institution excluding institutional quota declared by Government from time to time, shall be made on the basis of merit. The merit has to be judged by following the procedure of Common Entrance Test (CET) conducted in the manner, as may be prescribed by rules. Then there are two provisos to clause (a) and thereafter follows clause (b) which says that admissions to such institution shall be carried out by the competent authority through the Centralized Admission Process on the basis of Common Entrance Test (CET). The Centralized Admission Process (“CAP” or short) has to be supervised and guided by the competent authority. The goal is that these admissions and the process thereof is fair, transparent, merit based and non-exploitative. It is in this context that section 5 says that any admission made in contravention of the provisions of this Act or the rules made thereunder shall be void. Chapter III sets out the composition of Admissions Regulating Authority and the State Common Entrance Test Cell. The State Common Entrance Test Cell has to be constituted in terms of section 10. The Cell has to be headed by an officer, not below the rank of Joint Secretary, nominated as the Commissioner of the State CET. Sub-section (7) of section 10 says that admission to every seat excluding institutional quota shall be made on the basis of merit secured at the Common Entrance Test (CET) followed by Centralized Admission Process of the State, subject to the reservation policy of the State. The whole enactment and the process applies after the Act has been brought into effect and the rules have been notified. Thereafter Chapter IV contains provisions to regulate fees. The entire exercise of determining the fees is not left to the management, but the stakeholders have a definite role to play therein. By Chapter V Accounts and Maintenance of Records of Authorities is mandated and by Chapter VI Penalties are provided for the contravention of the Act. Chapter VII contains miscellaneous provisions which, inter Alia, contains section 23 granting power to make rules. The rules are made by the State Government by Notification in the Official Gazette to carry out the process of this Act. That is how the Notification dated 19th August, 2016, of the Government of Maharashtra publishes the rules. The rules also contain relevant definitions and for our purposes certain rules are important. Rule 7 titled as Sanctioned Intake Seats for various Courses is crucial. That reads as under :

“7. Sanctioned Intake Seats for various Courses.- The Sanctioned Intake for First Year of undergraduate Medical and Dental Course shall be as per the approval given by the Authority which is competent for giving approval to respective courses and affiliation given by the MUHS.”

23. A perusal of this Rule would leave us in no manner of doubt that the sanctioned intake for First Year of undergraduate Medical and Dental Course shall be as per the approval given by the Authority which is competent for giving approval to respective courses and affiliation given by the MUHS. Now allocation of seats is made in terms of Rule 8 and the seats are distributed in the manner set out in Rule 9. Rule 10 deals with preparation of merit list and Rule 11 is titled as Centralized Admission Process. That Rule reads as under :

“11. Centralized Admission Process (CAP).-

(i) The Unaided Private Professional Educational Institution shall admit Candidates through the Centralized Admission Process (CAP) as referred in sub-section (3) of section 3 of the Act. The stages of CAP shall be as mentioned below, namely –

(a) display or publication of college wise, subject wise and category wise distribution of seats on website;

(b) display or publication of Time Schedule and Venue for preference form filling process on website;

(c) display or publication of Brochure of Preference Form filling and counseling process for admission to Courses;

(d) verification of documents and endorsement of eligibility of the successful candidates for the admission process at the document verification centers i.e. Mumbai, Rune, Quadrangular and Nagpur followed by filling up of Preference Form by the eligible candidates;

(e) display or publication of allotment of seats for Round-I of CAP by way of computerized process and joining of the candidates at respective institution as per the allotment within stipulated time;

(f) display or publication of subsequent computerized round(s) if seats remain vacant after completion of CAP Round-I;

(ii) Candidate shall be given a chance to retain a seat that has been allotted, by way of status retention form at the end of each CAP round. If a Candidate accepts the offered seat and he do not want to participate in any further rounds of seat allocation, such candidate shall not be considered in subsequent rounds of admission.”

24. A perusal of this Rule would denote that the process has to be carried out in stages. At every stage, the aim and object of the Act is kept in the forefront. Once the Act enacts measures to make the admission process fair, transparent, open and non-exploitative, then, at every stage the authority is in a position to monitor and supervise the exercise contemplated by the Act and the Rules. The Commission Admission Process allotment stages and process of allotment as set out in Rule 12 and Rule 13 says selection has to be made by rounds and that is why Rule 13 is titled as ‘Selection Process through CAP Rounds’. After the provisions are made for disqualification for admission and fees, Rule 16 provides for Institutional Level Round. The Rules, therefore, are consistent with the provisions of the Act and sub serve the object and purpose in enacting the law.

25. We have noted the issue arising from a decision of this Court rendered in a batch of Petitions. The petition filed by Association of Management of Homeopathic Medicine Colleges, Maharashtra, Writ Petition No.10665 of 2018 and connected matters decided on 4th December, 2018, raised a short point. The short point was that a stipulation found in the Government of Maharashtra communication dated 15th June, 2018, informing all concerned that candidates who are interested in the Health Science courses, particularly in Ayurveda, Yoga and Naturopathy, Unani, Siddha, Homeopathy (for short “AYUSH”) that on account of the Ministry’s letter dated 11th June, 2018, the Ministry has changed the National-Eligibility-cum-Entrance Test (NEET) - Undergraduate 2018 eligibility criteria. Now, the eligibility criteria is mentioned in the Information Brochure. That would be applied to the on-going process. This judgment disposed of the batch of petitions by concluding that there is no merit in the contentions of the counsel appearing for the petitioners. The writ petitions were, therefore, dismissed.

26. Now, the Civil Appeals carried to the Hon’ble Supreme Court expressly referred to the NEET-Undergraduate Information Brochure and the eligibility criteria. In paragraph 2 of the order passed by the Hon’ble Supreme Court, copy of which is at page 159, the Hon’ble Supreme Court says that the Schedule for the Entrance Examination for admissions for the Academic Year 2018-2019 was given in this Information Brochure. The Entrance Test was scheduled to be conducted on 6th May, 2018 and the results were to be declared by the first week of June, 2018. After the declaration of results of NEET UG – 2018, a notice was issued on 6th June, 2018 by respondent No.3 for online registration. In the meanwhile, the eligibility criteria to BHMS (Bachelor of Homeopathic Medical Sciences) Degree Course was altered by a letter dated 11th June, 2018, pursuant to which a notice was issued to the respondent to that appeal. As per the changed criteria a candidate from the open category will be eligible for admission only if he / she secured not less than 50th percentile of the marks in the NEET-2018. A candidate belonging to the reserved category should secure not less than forty percent of the marks which shall be determined on the basis of the highest marks secured at the All India Common Merit List in NEET – 2018. The appellant-Association before the Hon’ble Supreme Court made a representation on 28th August, 208 in which they stated that a large number of seats will remain unfilled if the altered standards are strictly followed. As there was no response from the respondent to the appeal, the writ petition in the Bombay High Court, in which the judgment was delivered, came to be filed. That challenged the letter of 11th June, 2018, and the consequential notice of the third respondent to the Civil Appeal. The main contention in the writ petition was that the altered standard of admission introduced by letter dated 11th June, 2018, should not be applied to the on-going admission process and that the admissions for the year 2018-2019 should be conducted in accordance with the Information Brochure which was issued on 5th February, 2018. The appellant-Association was not aggrieved by the introduction of the NEET Examination for admission to the BHMS course. The only submission made was that the percentile method should not have been prescribed after the commencement of the admission process. The High Court rejected this submission. The selection is on the basis of merit and minimum percentile cannot be said to be a deviation from that basis. The relevant regulations have been altered or modified by an executive fiat was the other contention rejected by the High Court.

27. The Hon’ble Supreme Court, therefore, in paragraphs 4 and 5 of the judgment listed the rival contentions. Then, the Court perused the judgments and orders passed by the High Courts of Patna, Karnataka, Madras, Rajasthan, Punjab & Haryana, Allahabad and Kolkata. These High Courts issued directions in favour of the students permitting admissions on the basis of the marks in the qualifying examination without reference to the marks secured by them in the NEET-UG 2018 examination. The Additional Solicitor General appearing for the Union of India fairly submitted that none of the judgments or orders passed by these High Courts have been challenged.

28. It is in these circumstances that the Hon’ble Supreme Court, in paragraphs 6 and 7 of its order directed as under :

“6. Though the last date for admission to the BHMS course was 15th November, 2018, we are informed that the last date was extended till 20th December, 2018 by the Allahabad High Court. Though there is no agreement on the exact number of vacant seats, it is common ground that there are vacant seats for admission to the 1st year BHMS course in the State of Maharashtra. As there is no uniformity in the matter of admission to the 1st year BHMS course for the year 2018-19, as securing minimum marks in NEET is not required in some States pursuant to orders of the High Courts, we are of the opinion that the Appellants are entitled to the relief of admissions being made without reference to the letter dated 11th June, 2018 of Respondent No.1 and the consequential notice of Respondent No.3. In other words, the Appellant- Association should be permitted to make admissions to the 1st year BHMS course for the academic session 2018-19 on the basis of the eligibility criteria mentioned in the information brochure dated 5th February, 2018. A candidate who has secured minimum marks in the NEET UG-2018 shall be eligible for admission to the 1st year BHMS course for the academic year 2018-19.

7. As two months have passed after the last date of admission to the 1st year BHMS course i.e. 15th November, 2018, we direct the Appellants to complete the process of admissions strictly on the basis of the merit by 15th February, 2019. The Managements of the colleges are directed to hold extra classes for students who will be admitted pursuant to this order to comply with the requirements of minimum working days. This order which is passed in the peculiar facts of the case shall not be treated as a precedent. No opinion is expressed by us regarding the introduction of the minimum percentile as an eligibility criteria in the NEET examination.”

29. A perusal of these paragraphs would reveal that the last date of admission to the BHMS course (cut-off date) was 15th November, 2018. This last date was extended till 20th December, 2018 by the Allahabad High Court. Though there is no agreement on the exact number of vacant seats, but there were vacant seats for admission to the 1st year BHMS course in the State of Maharashtra. As there was no uniformity in the matter of admission to the first year BHMS course for the year 2018-2019, securing minimum marks in NEET is not required in some States pursuant to orders of the High Court of that State, led to the Hon’ble Supreme Court holding that the Appellants before it are entitled to the relief of admissions being made without reference to the letter dated 11th June, 2018 of Respondent No.1 and the consequential notice of Respondent No.3. Mr. Thorat would read some sentences from these paragraphs in isolation, but without reference to the core question or controversy. The Hon’ble Supreme Court came to the conclusion that the appellant- Association before it should be permitted to make admission to the First Year BHMS course for the Academic Year 2018-2019 on the basis of the old eligibility criteria prescribed in the Information Brochure dated 5th February, 2018. The candidate who secured minimum marks in the NEET-UG-2018 shall be held to be eligible for admission to the first year BHMS course for the Academic Year 2018-2019. In paragraph 7, the Hon’ble Supreme Court noted that when it was dealing with the controversy and delivered its judgment, the cut-off date of 15th November, 2018 had expired. It, therefore, extended it till 15th February, 2019.

30. An attempt was made to seek a clarification of this order and the Hon’ble Supreme Court passed the clarificatory order on 8th February, 2019. It clarified that it has permitted the colleges to admit students to the first year BHMS course for the Academic Year 2018-2019 on the basis of the marks secured by them in NEET-UG-2018. The application was that unfilled seats should be filled up through CAP as per the procedure prescribed by the Maharashtra Act No.XXVIII of 2015. The Hon’ble Supreme Court clarified that its order of 1st February, 2019, permitting admission of students is subject to the supervision of a officer to be deputed by the competent authority.

31. The order of the Hon’ble Supreme Court should be read in the backdrop of the essential question. We must now note as to how the present petition before us is brought. That is brought so as to take care of the factual scenario. That factual scenario is in terms of the above reproduced sub-paragraphs in the memo of the present petition. In the foregoing paragraphs of this judgment, we have reproduced them only to understand that the petitioner relies upon the increase in the sanctioned intake capacity for Ayurvedic Undergraduate course. The Central Council of Indian Medicine (for short “CCIM”) carried out an inspection on 27th July, 2017, and issued the letter of intent on 2nd February, 2018. However, there are conditions imposed in this letter and for satisfaction of those conditions, a second inspection team was deputed and which carried out that inspection on 15th / 16th February, 2018. Following this, the letter of permission of 4th / 5th June, 2018, was issued. Then, a second visiting team submitted its report to the CCIM. The CCIM made a recommendation dated 24th July, 2018, to the Union of India for issuing letter of permission to increase the intake capacity for Undergraduate BAMS Course from 60 to 100. The question was how the Union of India could have sent another team after the CCIM carried out the aforementioned exercise. Be that at it may, the Union of India sent its own inspection team in the month of July, 2018 after which it issued a show cause notice dated 27th July, 2018, pointing out certain deficiencies and directed the petitioner-college not to undertake admission to undergraduate BAMS course for the Academic Year 2018-2019 till the decision of the Central Government on the compliance of the deficiencies. A representation dated 11th August, 2018, of the petitioner pointed out that no deficiency existed and this show cause notice was baseless. The petitioner claims that it had satisfied all the terms and conditions, but did not get any relief from the Union of India. It, therefore, filed a Writ Petition (L) No. 2894 of 2018 seeking to quash and set aside the show cause notice dated 27th July, 2018. The petition was heard and an order dated 11th September, 2018 stayed the show cause notice. The petitioner was permitted to admit students to the Undergraduate Ayurvedic course. So far so good. There was no question of the intake capacity being increased for admissions altogether were stopped because of this show cause notice. On the show cause notice being stayed, the petitioner institution could have admitted students. However, there was a second show cause notice and that was regarding the additional intake or increase in intake capacity from 60 to 100 seats. This show cause notice is dated 24th February, 2018 and, according to the petitioner, it indicated new deficiencies. Now, the petitioner contested this show cause notice. On its own showing this show cause notice was challenged by filing another Writ Petition No. 11512 of 2018 in this Court. The direction therein was to quash and set aside this notice. The further relief was a direction to the Union of India to act only in terms of the CCIM report of inspection and not on the basis of its independent visit and inspection. This writ petition was disposed of on 9th October, 2018. The order of this Court directed the Union of India to consider the recommendation of the CCIM and the decide the issue of increase in the intake capacity. Thereafter, followed the letter of permission dated 30th October, 2018, granting the petitioner, the increased intake capacity from 60 to 100.

32. Now the petitioner is clear in its mind. It says that the basis on which the admissions could have been made for the Academic Year 2018-2019, is the prior order of this Court. But for that no admission was permissible. After the intake capacity was allowed to be increased and the petitioner was officially permitted to admit 100 students for this Academic Year, the last date notified for admission for the BHMS course was 31st October, 2018. It was extended to 15th November, 2018. The petitioner may rely upon the letter of permission issued on 30th October, 2018. However, the CET Cell did not allow the petitioner to admit more than 60 students upto the cut-off date. The increased intake capacity was permitted by the Government Resolution dated 26th November, 2018. The MUHS letter is of 4th December, 2

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018. It is in these circumstances that we are of the opinion that no benefit can be derived from the order of the Hon’ble Supreme Court dated 1st February, 2019. That order dealt with a distinct controversy and covered students within the sanctioned intake capacity (60), who stood excluded from the process on account of the altered eligibility criteria. The seats were vacant because of the altered criteria. It is in these circumstances that these students were allowed to seek admission pursuant to the Hon’ble Supreme Court’s order and direction. The Government Notification issued on 26th November, 2018, could not have been utilised by the petitioner to claim the increased intake capacity. In other words, the 34 students in excess of this 60 sanctioned intake could have been accommodated, according to the petitioner, although the Government Resolution is dated 26th November, 2018, by virtue of the order of the Hon’ble Supreme Court. In that, the petitioner concedes that until 26th November, 2018, and the affiliation from the MUHS dated 4th December, 2018, there is no question of the intake capacity increasing from 60 to 100. Pertinently, on 15th November, 2018, there was no sanction grant to increase the intake of students from 60 to 100. To our mind, therefore, the communication from the CET Cell as also the affiliation of the MUHS dated 4th December, 2018, cannot be faulted. The CET Cell could not have recognised these admissions when the Act and the rules stared in its face. Secondly, the Information Brochure issued by this Cell itself clarified that nothing beyond the cut-off date can be allowed. Thirdly, till the cut-off date the intake capacity was not increased as far as the petitioner is concerned. In the circumstances, on the own showing of the petitioner, the order and decision of the Hon’ble Supreme Court does not cover the admissions beyond 60 seats. The 34 seats have been filled in by the petitioner knowing fully well that these were beyond the sanctioned intake capacity for the Academic Year 2018-2019. That was the relevant Academic Year. 33. Realising this position, Mr. Thorat contended that though the communication from the University is 4th December, 2018, the decision of the Academic Council is of June, 2018. That being the decision contained in the Resolution of that Council granting the increase in intake capacity before the cut-off date of 15th November, 2018, the petitioner can claim the relief on that basis, according to Mr. Thorat. 34. This argument is not sound in law and for more than one reason. Until the Academic Council’s Resolution was communicated by the MUHS Office to the petitioner, there was no question of increase in sanctioned capacity. Pertinently and advisedly, the petitioner itself employs the word “officially” in the memo of the petition. This clinches the issue. So long as the decision of the Academic Council contained in its Resolution passed at its meeting held in June, 2018 remained in the files and was not communicated officially to the petitioner, there was no question of the affiliation from the MUHS. The MUHS performed its official act and duty of granting affiliation upon communication of the decision of the Academic Council. That the MUHS did much beyond the cut-off date, namely, on 4th December, 2018. In any event, on the own showing of the petitioner, the Government Resolution was required to be passed sanctioning the increase in the intake capacity. That was admittedly issued on 26th November, 2018, much beyond the cut-off date. Much before the impugned letter dated 15th February, 2019, the CET Cell on 12th December, 2018, communicated that the petitioner cannot admit more than 60 students. It is this stand, which is reiterated throughout, including in the CET’s affidavit-in-reply filed to this petition. There is no departure from it and Mr. Thorat’s argument, wherein additional reasons are now assigned, has no merit. 35. For all these reasons we do not find any substance in the contentions of Mr. Thorat. The faint attempt of Mr. Thorat to rely upon the two instances set out in the affidavit-in-rejoinder of the petitioner also do not carry the case of the petitioner any further. Mr. Patwardhan at our request made the record in relation to these two institutions available to us. He has placed before us the documents which would enable us to hold that on peculiar facts and on the basis of the orders of the Court, the Sant Gajanan Maharaj Rural Hospital and Research Centre was allowed to admit students, but not beyond the intake capacity. 36. The order of this Court dated 2nd November, 2018 in Writ Petition No.11959 of 2018 of this Sant Gajanan Maharaj Rural Hospital and Research Centre reveals that that institution was aggrieved by an order dated 25th September, 2018, of the Union of India, refusing permission to admit even 60 students for the Academic Year 2018-2019. The issue was of deficiencies. The Court found that the respondent No.1 – Union of India took a contradictory stand. The four other colleges mentioned in paragraph 5 of the order passed in Gajanan Maharaj’s case spelt out a clear distinction. It is in these circumstances that the Court held that once the inspection body in charge of a professional education has the last word and its decision is given finality, then, the Union of India could not have issued a communication. The other college (Nootan) also was the beneficiary of the order passed in the case of Gajanan Maharaj. Pertinently, these two institutions could not admit even 60 students, which was their original sanctioned intake capacity. That is why they challenged the order of the Union of India and succeeded in obtaining interim relief. These cases are, therefore, clearly distinguishable and on facts. They are of no assistance to the petitioner. 37. As a result of the above discussion, the writ petition fails. Rule is discharged. There shall be no order as to costs.
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