# C/M, Alpsankhyak Shiksha Vikas Samiti, Kanpur & Anr v. State of U.P. & Ors. 94 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2023) 3 ILRA 93
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-03-06
- **Case number:** Writ A No. 91 of 2023
- **Bench:** Devendra Kumar Upadhyaya, Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/c-m-alpsankhyak-shiksha-vikas-samiti-kanpur-anr-v-state-of-u-p-ors-94-indian-49880
- **Pages:** 12

## Headnote

A. Education Law - Reduction in percentile
criteria for admission - National Commission
for Indian System of Medicine Act, 2020:
Section 10, 55(1); National Commission for
Indian System of Medicine Act, 2020 (Act No. 14
of 2020); National Commission for Indian
System of Medicines (Minimum Standards of
Undergraduate
Ayurvedic
Education)
Regulations, 2022; National Commission for
Indian
System
of
Medicines
(Minimum
Standards of Undergraduate Unani Education)
Regulations, 2022 - The issue of reducing
cut-off marks is a matter of academic
policy and it is not possible for the Court
to entertain such requests by directing
reduction in the percentile. Fixing of cutoff marks etc. for the purposes of making
admission in the undergraduate course,
decision in respect of fixation or reducing
or enhancing minimum percentile, is a
matter of policy that is one of the primary
functions and duties of the Commission,
which is an autonomous statutory body
created by an Act of parliament. (Para 27)

B. Proviso appended to Regulation 5(2) of
the Regulations, is to be construed in the
light of the entire scheme of the Act, 2020
and the Regulations framed thereunder -
No doubt, the proviso envisages a situation
where the Commission has to exercise its
discretion for lowering the minimum marks
required for admission, where sufficient number
of students in the respective category fail to
secure minimum marks in NEET, however, such
provision is to be considered and construed in
the light of the provisions of the Act, 2020.

The very purpose of enacting Act No. 14 of
2020 was to improve access to quality
medical
education
and
to
ensure
availability of adequate and high quality
medical professionals of Indian System of
medicines in all parts of the country. Thus,
if the Commission takes into account any factor
which is relevant for the purposes of improving
access to quality medical education and which
would ensure availability of high quality medical
professionals of Indian system of medicine, the
said factors will not be irrelevant even while
exercising
the
discretion
vested
in
the
Commission under the proviso appended to
Regulation
5(2)
of
the
Regulations.
But
consideration of such factors will be germane to
the purpose for which the Commission has been
created under the 2020 Act.

In the present case, the Commission while
rejecting the prayer of the appellants-petitioners
has assigned the reason that the eligibility
criteria was fixed to maintain the quality of
education and to give opportunity to well
qualified and skillful students to become
professionals in the field of Indian system of
Medicine. Further reason assigned therein is
that such doctors have to deal with the
patients' life and thus merit cannot be
disregarded. (Para 28 to 30)

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, there is
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. (Para 31)

C. The possibility of available candidates
who are credited with more percentile
than the cut-off percentile having not
opted for the institutes run by the
appellant-petitioners, cannot be denied.
The
submission
that
there
exists
nonavailability of the candidates and because of
their non-availability, seats in the institutions
remained unfilled does not stand its ground
as 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.
(Para 32)
3 All. C/M, Alpsankhyak Shiksha Vikas Samiti, Kanpur & Anr. Vs. State of U.P. & Ors.
95
D. Obse

## Text

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3 All. C/M, Alpsankhyak Shiksha Vikas Samiti, Kanpur & Anr. Vs. State of U.P. & Ors.
93
nature of duty, responsibility etc. as is
being pressed by the State Government to
carve (11) out a class of Medical Officers
i.e. PHMS being superior to other Medical
Officers is misconceived and unfounded
insofar it relates to conferment of SACP.
The administrative policy is invariably
discriminatory in keeping the Medical
Officers (Ayurvedic) and other streams out
of the scheme having regard to the concept
of ACP as discussed earlier."

31. In the case of Indian Drugs &
Pharmaceuticals
Ltd.
v.
Workmen,
(2007) 1 SCC 408, the Hon'ble Supreme
Court clarified that "a mere direction of the
Supreme Court without laying down any
principle of law is not a precedent. It is
only where the Supreme Court lays down a
principle of law that it will amount to a
precedent."

32. The reasons recorded in the order
dated
29/03/2019
passed
on
the
representation of the petitioners, that the
working conditions of Ayush doctors engaged
on contractual basis are not the same as those
of M.B.B.S. Doctors for the reasons that their
duty is for six hours today, they are not given
any physical charge, they are not required to
deal with medicolegal cases and to conduct
post-mortem examinations, there not required
to administer I.V. injections and they do not
perform
surgeries
other
than
only
Ayurvedic/Yunani surgeries like ksharsutra,
has not been found to be perverse or
unsustainable. Therefore, the law laid down
in the aforesaid cases referred by the learned
Counsel for the respondents would not apply
to the present case.

33. In view of the aforesaid discussion,
we are of the considered opinion that the
order dated 29/03/2019 passed by the
government rejecting the representation of
the petitioners does not suffer from any such
error
or
illegality,
as
warranted
and
interference by this Court in exercise of its
extraordinary jurisdiction under article 226 of
the Constitution of India.

34. The Hon'ble Single Judge has
allowed the writ petition and the review
petition under mistaken belief that the benefit
of assured career progression was being
denied to the petitioners and that they were
entitled to the same whereas the petitioners
having been engaged on contractual basis, are
not entitled to assured career progression and
they had not raised any such claim. In view
of the discussion made above, we do not find
ourselves in agreement with the view taken
by the Hon'ble single Judge while allowing
the writ petition and the review petition.

35. Accordingly, the instant special
appeal is allowed. The judgment and order
dated 12.12.2022 passed by the Hon'ble
single Judge in Civil Miscellaneous Review
Application Number 187 of 2022 as well as
the judgment and order dated 20/10/2022
passed in Writ A No. 23479 of 2019 are
hereby set aside and Writ A No. 23479 of
2019 is dismissed.
----------

(2023) 3 ILRA 93
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 06.03.2023
BEFORE

THE HON'BLE DEVENDRA KUMAR
UPADHYAYA, J.
THE HON'BLE SUBHASH VIDYARTHI, J.

Writ A No. 91 of 2023

C/M, Alpsankhyak Shiksha Vikas Samiti,
Kanpur & Anr. ...Appellants
Versus
State of U.P. & Ors. ...Respondents
94 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Appellants:
Rajat Rajan Singh, Vidhu Bhushan Kalia

Counsel for the Respondents:
C.S.C., A.S.G.I., Devak Vardhan

A. Education Law - Reduction in percentile
criteria for admission - National Commission
for Indian System of Medicine Act, 2020:
Section 10, 55(1); National Commission for
Indian System of Medicine Act, 2020 (Act No. 14
of 2020); National Commission for Indian
System of Medicines (Minimum Standards of
Undergraduate
Ayurvedic
Education)
Regulations, 2022; National Commission for
Indian
System
of
Medicines
(Minimum
Standards of Undergraduate Unani Education)
Regulations, 2022 - The issue of reducing
cut-off marks is a matter of academic
policy and it is not possible for the Court
to entertain such requests by directing
reduction in the percentile. Fixing of cutoff marks etc. for the purposes of making
admission in the undergraduate course,
decision in respect of fixation or reducing
or enhancing minimum percentile, is a
matter of policy that is one of the primary
functions and duties of the Commission,
which is an autonomous statutory body
created by an Act of parliament. (Para 27)

B. Proviso appended to Regulation 5(2) of
the Regulations, is to be construed in the
light of the entire scheme of the Act, 2020
and the Regulations framed thereunder -
No doubt, the proviso envisages a situation
where the Commission has to exercise its
discretion for lowering the minimum marks
required for admission, where sufficient number
of students in the respective category fail to
secure minimum marks in NEET, however, such
provision is to be considered and construed in
the light of the provisions of the Act, 2020.

The very purpose of enacting Act No. 14 of
2020 was to improve access to quality
medical
education
and
to
ensure
availability of adequate and high quality
medical professionals of Indian System of
medicines in all parts of the country. Thus,
if the Commission takes into account any factor
which is relevant for the purposes of improving
access to quality medical education and which
would ensure availability of high quality medical
professionals of Indian system of medicine, the
said factors will not be irrelevant even while
exercising
the
discretion
vested
in
the
Commission under the proviso appended to
Regulation
5(2)
of
the
Regulations.
But
consideration of such factors will be germane to
the purpose for which the Commission has been
created under the 2020 Act.

In the present case, the Commission while
rejecting the prayer of the appellants-petitioners
has assigned the reason that the eligibility
criteria was fixed to maintain the quality of
education and to give opportunity to well
qualified and skillful students to become
professionals in the field of Indian system of
Medicine. Further reason assigned therein is
that such doctors have to deal with the
patients' life and thus merit cannot be
disregarded. (Para 28 to 30)

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, there is
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. (Para 31)

C. The possibility of available candidates
who are credited with more percentile
than the cut-off percentile having not
opted for the institutes run by the
appellant-petitioners, cannot be denied.
The
submission
that
there
exists
nonavailability of the candidates and because of
their non-availability, seats in the institutions
remained unfilled does not stand its ground
as 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.
(Para 32)
3 All. C/M, Alpsankhyak Shiksha Vikas Samiti, Kanpur & Anr. Vs. State of U.P. & Ors.
95
D. Observations about the manner in
which the decision by the Commission
embodied
in
the
letter/order/circular
dated 02.03.2023 has been arrived at - (i)
The Commission has not followed the
mandate of the proviso appended to the
Regulation 5(2) of the Regulations by not
consulting the Central Government. (Para 34 to
38)
(ii) Ambiguity in the proviso appended to
Regulation 5(2) of the Regulations. The
earlier part of the proviso St.s that the
Commission will take a decision in its discretion
to lower the minimum marks in consultation
with the Central Government, however, the later
part of the said proviso itself St.s that marks so
lowered by the Central Government shall be
applicable. Thus the ambiguous language in
which the proviso is couched has the potential
of creating confusion in as much as it is not
clear as to in the matter of lowering the cut-off
marks for admission which is the final authority,
the Commission or the Government of India.
(Para 39)

Special appeal dismissed. (E-4)

Precedent followed:

1. U.O.I. Vs Federation of Self-Financed
Ayurvedic Colleges Punjab & ors., Civil Appeal
No. 603 of 2020) (Para 12)

2. NIMS University Vs U.O.I. & ors., 2022 SCC
OnLine 644 (Para 14)

Precedent distinguished:

1. Harshit Agarwal & ors. Vs U.O.I. & ors., Writ
Petition (C) No. 54 of 2021 (Para 12)

2. Kunal & ors. Vs U.O.I. & ors., Writ Petition
(Civil) No. 290 of 2022, decided on 29.04.2022
(Para 12)

Present special appeal questions the
legality and validity of the order dated
03.03.2023, passed by learned Single
Judge in Writ C No. 1747 of 2023, which
was filed with a prayer for quashing the
order passed by the National Commission
for Indian System of Medicine, dated
02.03.2023 whereby the prayer of the
appellants-petitioners for reducing the
percentile
criteria
for
admission
to
undergraduate
B.U.M.S.
and
B.A.M.S.
courses based on NEET 2022 has been
refused and further, the request for
extending the date of counseling for the
purposes of said admission has also not
been acceded to.

(Delivered by Hon'ble Devendra Kumar
Upadhyaya, J.
&
Hon'ble Subhash Vidyarthi, J.)

1. Our jurisdiction under Chapter VIII
Rule 5 of the Allahabad High Court Rules
has been invoked to question the legality
and validity of the order dated 03.03.2023
passed by learned Single Judge in Writ C
No. 1747 of 2023. By the said order
learned Single Judge has dismissed the writ
petition which was filed with a prayer for
quashing the order passed by the National
Commission for Indian System of Medicine
(hereinafter
referred
to
as
the
''Commission'), dated 02.03.2023 whereby
the prayer of the appellants-petitioners for
reducing
the
percentile
criteria
for
admission to undergraduate B.U.M.S. and
B.A.M.S. courses based on NEET 2022 has
been refused and further, the request for
extending the date of counseling for the
purposes of said admission has also not
been acceded to.

2. Heard Sri Rajat Rajan Singh, Sri
Vidhu Bhushan Kalia and Sri. Adarsh
Saxena Advocates, the learned counsel
representing the appellants-petitioners and
Sri
Asit
Chaturvedi,
learned
Senior
Advocate assisted by Sri Devak Vardhan
Advocate
for
the
Commission,
Sri
Shailendra Kumar Singh, learned Chief
Standing Counsel assisted by Sri Nishant
Shukla,
learned
Standing
Counsel
96 INDIAN LAW REPORTS ALLAHABAD SERIES
representing the State of UP, Sri Anand
Dwivedi, learned counsel representing the
Union of India.

3. In deference to our order passed on
04.03.2023 Dr. S. Sreenivasa Prasad
Beduru, President, Board of Ayurveda,
National Commission for Indian System of
Medicines is present in person in the Court.
He has also been heard in support of the
case
put
forth
before
us
by
the
Commission.

4. We have also perused the records
available before us on this special appeal.

5. The appellant no. 1 is a society
which runs a medical college offering
undergraduate/bachelor's degree courses in
Unani system of medicine, whereas the
appellant no. 2 is also a society which runs
a medical college offering undergraduate
course in Ayurvedic system of medicine.

6. The central legislature enacted the
Natioinal Commission for Indian System of
Medicine Act, 2020 (Act No. 14 of 2020)
for providing 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 described in Section 10 of
the Act, 2020, are inter alia to lay down
policies for maintaining high quality and
high standards in education in Indian
system of medicine and to make necessary
regulations therefor. Section 55(1) of the
2020 Act empowers the Commission to
make
regulations
to
carry
out
the
provisions of the said Act. In exercise of its
powers vested in it under sub section (2) of
Section 55 of 2020 Act, two separate sets of
Regulations have been framed by the
Commission which are known as (i)
National Commission for Indian System of
Medicines
(Minimum
Standards
of
Undergraduate
Ayurvedic
Education)
Regulations,
2022
and
National
Commission
for
Indian
System
of
Medicines
(Minimum
Standards
of
Undergraduate
Unani
Education)
Regulations, 2022, notified respectively on
16.02.2022 and 28.02.2022. As per the
scheme for making admissions available in
these 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.

7. National Eligibility-cum-Entrance
Test, Undergraduate (NEET UG) was held
in the month of April, 2022 for making
admissions in the academic session 202223. On the basis of the result of NEET UG
2022, online counseling was to be held in
five rounds, namely the first round, the
second round, mop-up/3rd round, special
mop-up round and stray vacancy round.
Last date of counseling as determined by
the Commission was 18.02.2023 which was
extended till 04.03.2023.

8. The appellants-petitioners instituted
the proceedings of Writ C No. 1313 of
2023 before this Court with the prayer that
the minimum marks required for admission
to the undergraduate courses in question be
ordered to be reduced for the reason that
sufficient number of candidates with
minimum
marks
determined
by
the
3 All. C/M, Alpsankhyak Shiksha Vikas Samiti, Kanpur & Anr. Vs. State of U.P. & Ors.
97
Commission, were not available. In terms
of the provisions contained in Regulation
5(2)
of
the
Regulations
it
is
the
Commission in consultation with the
Central Government which is empowered
in its discretion to lower the minimum
marks
required
for
admission
to
undergraduate courses where sufficient
number of candidates in the respective
category failed to secure the minimum
marks in NEET.

9. This Court disposed of Writ C No.
1313 of 2023 by means of the order dated
17.02.2023 directing the Commission to
take a decision on the representation which
was preferred by the appellants. The said
direction appears to have been given by the
learned Single Judge keeping in view the
provisions contained in Regulation 5(2) of
the Regulations.

10. In compliance of the order dated
17.02.2023 the Commission took the
decision which is embodied in the letter /
order / circular dated 02.03.2023 whereby
the prayer of the appellants-petitioners was
refused.

11. Writ C No. 1747 of 2023 was filed
by the appellants-petitioners on 28.04.2023
with the prayers to direct the Union of
India to further extend the last date of
admission up to 31.03.2023 and further, to
lower the minimum percentile in NEET UG
2023 for making admissions to the courses
in question. Another prayer made in the
writ petition was that the respondents be
directed
to
conduct
stray
round
of
counseling for filling up the vacant seats in
the institutions run by the appellantspetitioners and for the said purpose, to
conduct counseling of All India Quota
seats. The writ petition has however been
dismissed by the order dated 03.03.2023
passed by learned Single, Judge which is
under challenge before us in this special
appeal. During pendency of the writ
petition, the order dated 02.03.2023 passed
by the Commission was communicated to
the appellants-petitioners. Accordingly, the
writ petition was amended and a challenge
to the said order dated 02.03.2023 with the
prayer to quash the same was also made by
way of amending the writ petition.

12. Sri Rajat Rajan Singh making
submissions on behalf of the appellantspetitioners, has submitted that the reasons
indicate by the Commission in its order
dated 02.03.2023 refusing the prayer of the
appellants-petitioners are not germane in as
much as the reasons indicated therein are
not available to the Commission to deny
their prayer. He has also submitted that
reliance placed by the Commission on the
judgment rendered by Hon'ble Supreme
Court on 20.02.2020 in the case of Union
of India v. Federation of Self-Financed
Ayurvedic Colleges Punjab & Ors. (Civil
Appeal No. 603 of 2020) is misplaced in as
much as considering the dictum of the said
judgment, the Hon'ble Supreme Court in a
later judgment rendered on 08.02.2021 in
the case of Harshit Agarwal & Ors. v.
Union of India & Ors (Writ Petition (C)
No. 54 of 2021) has held that the only
relevant factor to be considered by the
Commission while exercising its discretion
under the Proviso appended to Regulation
5(2) of the Regulations is the nonavailability of eligible students and further
that consideration of factors other than the
said factor would be the result of influence
by irrelevant or extraneous matters. Sri
Rajat Rajan Singh has drawn our attention
to another judgment dated 29.04.2022 of
the Hon'ble Supreme Court in the case of
Kunal & Ors. v. Union of India & Ors.
(Writ Petition (Civil) No. 290 of 2022
98 INDIAN LAW REPORTS ALLAHABAD SERIES
decided on 29.04.2022) and has submitted
that noticing the judgment in the case of
Harshit Agarwal (supra) the Supreme
Court in Kunal & Ors. (supra) has agreed
with the dictum of Harshit Agarwal
(supra).

13. Several other arguments have also
been
made
by
the
learned
counsel
appearing for the appellants-petitioners by
submitting that the State Government did
not conduct the counseling so far as the
privately run unaided institutions in the
State of U.P. are concerned for all India
quota seats to the extent of 15% as is
permissible under the relevant Regulations.
On the aforesaid count, submission of the
learned counsel for the appellants is that
learned Single Judge has completely
ignored the aforesaid relevant aspects of
the matter and has thus erred in dismissing
the writ petition filed by the appellantspetitioner. He thus prays that the special
appeal may be allowed with the direction to
the Commission to lower down the
minimum percentile for making admission
in the institutions run by the appellantspetitioners.

14. On the other hand, the learned
Senior
Advocate
representing
the
Commission and the learned counsel
appearing on behalf of the Union of India
have submitted that relevant factors were
considered by the Commission while
rejecting the prayer of the appellantspetitioners and as a matter of fact in case
the minimum percentile is reduced, the
same may result in producing half-baked
doctors and that in the facts of the present
case alleged non availability of the eligible
candidates for admission to the courses in
question cannot be a reason to lower down
the
standards
prescribed
by
the
Commission. On behalf of the respondentCommission it has been argued that the
judgment in the case of Harshit Agarwal
and Kunal were rendered in the facts of the
case and in fact these judgments do not lay
down any ratio as a binding precedence.
Reliance has been placed by the learned
Senior
Advocate
representing
the
Commission on the judgment of the
Hon'ble Supreme Court rendered on
09.05.2022 in the case of NIMS University
v. Union of India & Ors, reported in 2022
SCC OnLine 644 for submitting that the
issue as to whether percentile should be
reduced, is a matter of academic policy and
the reasons which might have weighed with
the Commission for declining to reduced
percentile, cannot be said to be arbitrary or
extraneous.

15. Our attention on behalf of the
Commission and the Union of India has
also been drawn to two letters- (i) the letter
dated 17.02.2023 written by the Special
Secretary in the Ministry of Ayush,
Government of India to the Additional
Chief
Secretary
(Health
and
Family
Welfare
Department,
Government
of
Gujarat) and (ii) the letter dated 24.02.2023
written by the Director, Ministry of Ayush,
Government of India to the Central
Government Standing Counsel representing
the Government of India before the Hon'ble
High Court of Madras in a related matter.
Sri Chaturvedi has submitted that in fact
the Government of India in the aforesaid
two letters gave adequate reasons which
weighed with the Commission while
passing the order dated 02.03.2023 refusing
the prayer of the appellants-petitioners to
lower the percentile for the purposes of
making admission to the courses in
question. According to him, one reason
indicated in the said letters is that since the
Central Counseling Committee had already
conducted 5 rounds of counseling till
3 All. C/M, Alpsankhyak Shiksha Vikas Samiti, Kanpur & Anr. Vs. State of U.P. & Ors.
99
15.02.2023, as such even if the cut-off
percentile is reduced, additional eligible
candidates on account of reduced cut-off
percentile will not get a chance to
participate in the counseling. It has also
been argued that the Government of India is
of the opinion that the conversion algorithm
has already been applied on the all India
quota seats which were not opted by any
candidate and hence even on account of the
reduced
percentile
cut-off,
additionally
eligible candidates will not get the reserved
seats as the said seats have already been
occupied on the basis of such conversion
algorithm. The third reason, as argued by Mr.
Chaturvedi on the basis of the aforesaid two
letters, is that approximately 52,274 Ayush
seats were available for the current academic
year as against which 9,93,069 candidates
have qualified and hence there does not
appear to be any shortage of qualified
candidates. Sri Chaturvedi has further argued
that NEET-UG is conducted not only for
making admissions to the undergraduate
courses in Indian systems of medicines but
also to undergraduate courses in Allopathic
system of medicine (M.B.B.S.) and also to
the
undergraduate
courses
in
Dental
Science (B.D.S.). He has further stated that
as against the total seats of about 2 lakh in
these courses, the candidates who were
declared to have obtained the minimum
cut-off percentile in NEET-2023 are
9,93,069. His further submission is that out
of these 9,93,069 candidates, only two lakh
seats are to be filled in. Thus about 8 lakh
candidates declared successful on the basis
of cut-off percentile have not taken
admission anywhere and accordingly it is
not a case where the candidates are not
available rather it is a case where the
available candidates have exercised their
option not to seek admission in the
institutions being run by the appellantspetitioners.

16. Further submission on behalf of
the Commission is that NEET 2022 carried
715 marks and the cut-off marks for the
general category candidates to qualify is
117 whereas for reserved category of
Scheduled Casts, Scheduled Tribes and
Other Backward Classes it is 93. The
submission is that the minimum cut-off
marks for admission to undergraduate
courses as prescribed by the Commission
itself are considerably low for the different
categories
of
candidates
and
further
lowering of such marks will ultimately
result in compromising with the merit,
which will not be in public interest also.

17. On the aforesaid counts, the
submission on behalf of the Union of India
and the Commission, is that the order
passed by the learned Single Judge in this
case need not be interfered with.

18. So far as the State of UP is
concerned, our attention has been drawn to
the Government Order dated 19.12.2022
according to which the State Government
conducted counseling for 85% state quota
seats in the Government Ayurvedic/ Unani
and Homeopathic colleges and it also
conducted counseling for 100% seats,
which included 85% State Quota seats and
15% all India quota seats, in private
colleges. It has thus been argued by the
learned
Chief
Standing
Counsel
Sri
Shailendra Singh that the submission of the
learned
counsel
for
the
appellantspetitioners that no counseling by the State
was conducted against 15% all India quota
seats, is factually incorrect. Apart from the
aforesaid, learned counsel representing the
State has submitted that rest of the issues
do not concern the State Government.

19. We have given our thoughtful
consideration to the rival submissions made
100 INDIAN LAW REPORTS ALLAHABAD SERIES
by
the
learned
counsel
representing
respective parties. The sheet anchor of the
arguments advanced by the learned counsel
for
the
appellants-petitioners
is
the
judgment in the case of Harshit Agarwal
(supra). So far as the assertion that State
Government had not conducted counselling
for 15% all India quota seats is concerned,
in view of the statement made by the
learned Chief Standing Counsel appearing
for the State as also having regard to the
Government Order dated 19.12.2022, this
submission appears to be incorrect which is
thus not acceptable.

20. As noticed above, heavy reliance
has been placed by learned counsel
representing the appellants-petitioners on
the judgment in the case of Harshit
Agarwal
(supra)
where
the
earlier
judgment in the case of Federation of Selffinanced Ayurvedic Colleges (supra) has
been noticed and it has been stated that
consideration
of
factors
other
than
availability of eligible students would be
the result of the Commission being
influenced by irrelevant or extraneous
matters.

21. Reliance has also been placed by
the
learned
counsel
representing
the
appellants on Kunal & Ors. (supra)
wherein a reference to Harshit Agarwal
(supra) has been made. Reference to yet
another judgment by Supreme Court in the
case of NIMS (supra) has been made by
the
learned
counsel
representing
the
commission to refute the submission made
on behalf of the appellants-petitioners on
the basis of Harshit Agarwal (supra).

22. We now proceed to note the facts
under which the aforesaid judgments in the
case of Federation of Self-financed
Ayurvedic
Colleges
(supra),
Harshit
Agarwal (supra) and Kunal & Ors. (supra)
have been rendered.

23. The subject matter in the case of
Federation of Self-financed Ayurvedic
Colleges (supra) was the notification
issued by the then existing Central Council
of Indian Medicine (the Predecessor of the
Commission) and the minimum qualifying
marks prescribed therein. Hon'ble Supreme
Court, while noticing the submissions made
in the said case on behalf of the Council
and the Government of India that minimum
standards cannot be lowered even for
Ayush courses, observed that doctors who
are qualified in Ayurvedic, Unani and
Homeopathic systems also treat patients
and
lack of
minimum
standards
in
education would result in half-baked
doctors being turned out of professional
colleges. Hon'ble Supreme Court further
observed that non-availability of eligible
candidates
for
admission
to
Ayush
undergraduate courses cannot be a reason
to lower the prescribed standards.

24. Thus Hon'ble Supreme Court did
not interfere in the prescribed standards on
the ground that there was non-availability
of eligible candidates for admission.

25. So far as Harshit Agarwal (supra)
is concerned, the said case was filed by
those who had appeared in NEET 2020 for
admission to BDS course and had not
obtained the minimum marks prescribed by
the Dental Council of India in the
regulations. In the said case, in terms of the
extant regulations which were in vogue at
the relevant point of time, the Dental
Council of India had recommended for
lowering the cut-off percentile and as per
the regulations consideration for lowering
the minimum cut-off marks was to be made
by the Government of India in consultation
3 All. C/M, Alpsankhyak Shiksha Vikas Samiti, Kanpur & Anr. Vs. State of U.P. & Ors.
101
with the Dental Council of India. It is in
this fact situation where the expert body
namely Dental Council of India had
recommended to the Central Government
for lowering down the cut-off marks, that
the judgment in the case of Harshit
Agarwal was rendered by Hon'ble Supreme
Court wherein the reasons given by the
Central Government for not accepting the
recommendation of the Dental Council of
India were not found sound.

26. So far as the judgment in the case of
Kunal (supra) is concerned, in the said case
also the Executive Committee of the Dental
Council of India had recommended to the
Central Government to lower down the
qualifying cut-off percentile for NEET UG.
However, since the Government of India had
not
taken
any
decision
on
the
recommendation made by the Dental Council
of India, a writ petition was filed before the
Supreme Court under Article 32 of the
Constitution of India. During the course of
pendency of the said case, it was informed to
Hon'ble Supreme Court that a decision was
taken by the Union of India not to reduce the
minimum percentile fixed for eligibility. It is
in these circumstances that referring to the
judgment in the case of Harshit Agarwal,
Hon'ble Court while disposing of the said
matter by means of the order dated
29.04.2022, directed the Central Government
to reconsider the issue relating to re-fixation
of the cut-off percentile. Thus so far as the
judgments in the case of Harshit Agarwal
and Kunal (supra) are concerned, it is
noticeable that in both the cases, the body of
experts, namely Dental Council of India, had
already found it appropriate to lower down
the cut-off percentile for the purpose of
facilitating the admission in BDS course,
whereas in the present case, such a prayer has
been rejected by the experts' body i.e. the
Commission.

27. We may now refer to the judgment
relied upon by learned counsel for the
Commission
in
the
case
of
NIMS
University (supra). In the said judgment
Hon'ble Supreme Court has clearly held
that the issue as to whether cut-off marks
should be reduced or not is a matter of
academic policy and that it is not possible
for the Court to entertain such requests by
directing reduction in the percentile.
Though the matter in the case of NIMS
University (supra) related to admission in
Super Specialty courses, however, so far as
fixing of cut-off marks etc. for the purposes
of
making
admission
even
in
the
undergraduate
courses
is
concerned,
decision in respect of fixation or reducing
or enhancing minimum percentile, in our
opinion, is a matter of policy that is one of
the primary functions and duties of the
Commission, which is an autonomous
statutory body created by an Act of
parliament.

28. As regards the submission of the
learned counsel for the appellant that
insufficiency of number of candidates is the
only relevant consideration for determining
as to whether the minimum marks for
admission are to be lowered or not is
concerned, we may deal with the said issue
in the light of the provisions contained not
only in the proviso appended to Regulation
5 (2) of the Regulations, but also keeping in
view the entire scheme of the Act, 2020 and
the Regulations framed thereunder.

29. Proviso appended to Regulation
5(2) of the Regulations runs as under:-

"Provided further that where
sufficient number of candidates in the
respective category fail to secure minimum
marks in the National Eligibility- cumentrance Test held for any academic year
102 INDIAN LAW REPORTS ALLAHABAD SERIES
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
in
consultation with the Central Government
may as 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."

30. No doubt, the said proviso
envisages
a
situation
where
the
Commission has to exercise its discretion
for lowering the minimum marks required
for admission, where sufficient number of
students in the respective category fail to
secure minimum marks in NEET, however,
such provision is to be considered and
construed in the light of the provisions of
the Act, 2020. As noticed above, the very
purpose of enacting Act No. 14 of 2020
was to improve access to quality medical
education and to ensure availability of
adequate
and
high
quality
medical
professionals
of
Indian
System
of
medicines in all parts of the country. Thus,
if the Commission takes into account any
factor which is relevant for the purposes of
improving access to quality medical
education
and
which
would
ensure
availability
of
high
quality
medical
professionals of Indian system of medicine,
in our considered opinion the said factors
will not be irrelevant even while exercising
the discretion vested in the Commission
under the proviso appended to Regulation
5(2) of the Regulations. But consideration
of such factors will be germane to the
purpose for which the Commission has
been created under the 2020 Act. If we,
thus, examine the submissions of the
learned Counsel for the petitioners in the
light of what we have noticed above, what
we find is that the Commission while
rejecting the prayer of the appellantspetitioners has assigned the reason that the
eligibility criteria was fixed to maintain the
quality
of
education
and
to
give
opportunity to well qualified and skillful
students to become professionals in the
field of Indian system of Medicine. Further
reason assigned therein is that such doctors
have to deal with the patients' life and thus
merit cannot be disregarded.

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.

32. The submission made on behalf of
the appellants-petitioners that there exists
non-availability 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 cut-off percentile having
3 All. C/M, Alpsankhyak Shiksha Vikas Samiti, Kanpur & Anr. Vs. State of U.P. & Ors.
103
not opted for the institutes run by the
appellant-petitioners, cannot be denied.

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.

34. However, before parting with the
case we may make certain observations
about the manner in which the decision by
the
Commission
embodied
in
the
letter/order/circular dated 02.03.2023 has
been arrived at.

35. We have quoted the proviso
appended to Regulation 5(2) of the
Regulations which vests the authority in the
Commission to take a decision in its
discretion for lowering the minimum marks
required for admission to undergraduate
programmes for the candidates belonging
to respective categories. According to the
said provision, the Commission has to take
a decision in consultation with the Central
Government in a situation where sufficient
number
of
candidates
in
respective
categories are not available because of the
fact that they could not secure the
minimum marks in NEET. However, the
order dated 02.03.2023 does not make any
mention
of
the
Commission
having
consulted the Central Government. Even
the learned Senior Advocate representing
the Commission has fairly admitted that no
consultation in writing was held with the
Central Government, rather before taking
the decision dated 02.03.2022 verbal
telephonic conversation took place between
the authorities of the Commission and the
officers of the Central Government wherein
the Commission was apprised of the
Central Government stand as is contained
in the two letters mentioned above, namely
the letter dated 17.02.2023 from the
Ministry of Ayush, Government of India
addressed to the State of Gujarat and the
letter dated 24.02.2023 written by the
Director, Ministry of Ayush to the learned
Standing Counsel representing the Central
Government before the Hon'ble High Court
of Madras.

36. It is to be noticed that except the
proviso appended to Regulation 5(2) of the
Regulations, there is no other provision
which empowers the Commission to take a
decision regarding lowering of cut-off
marks. It is also to be noticed that it is
under the directions issued by this Court
vide its order dated 17.02.2023 in Writ
Petition (C) No.1313 of 2023 that the
Commission was to consider the issue
relating
to
lowering
of
the
cut-off
percentile.

37. Once the proviso mandates the
decision to be taken by the Commission
only after consultation with the Central
Government, it was mandatory and binding
on the Commission to have properly and
appropriately
consulted
the
Central
Government before passing the order dated
02.03.2023.
Even
if
the
Central
Government had expressed its views in the
letters as aforesaid, dated 17.02.2023 and
24.02.2023, that in itself would not amount
to consultation for the reason that none of
the
letters
were
addressed
to
the
Commission and even their copies were not
endorsed to the Commission. While making
the decision, the verbal information said to
have been provided by the Central
Government to the Commission regarding
these two letters could have been noticed
and noted.

38. In the aforesaid view of the matter
it appears that the Commission has not
104 INDIAN LAW REPORTS ALLAHABAD SERIES
followed the mandate of the proviso
appended to the Regulation 5(2) of the
Regulations by not consulting the Central
Government.

39. There is yet another issue which
we notice and that is in relation to the
ambiguity which exists in the proviso
appended to Regulation 5(2) of the
Regulations. If we peruse the said proviso
with care and precision, what we find is
that the earlier part of the proviso states
that the Commission will take a decision in
its discretion to lower the minimum marks
in
consultation
with
the
Central
Government, however, the later part of the
said proviso itself states that marks so
lowered by the Central Government shall
be
applicable.
Thus
the
ambiguous
language in which the proviso is couched
has the potential of creating confusion in as
much as it is not clear as to in the matter of
lowering the cut-off marks for admission
which
is
the
final
authority,
the
Commission or the Government of India.

40. We thus call upon the Commission
and the Government of India in the
concerned department and ministry to look
into the aforesaid aspect of the matter and
take corrective measures so that ambiguity
which we have noticed in the proviso
appended to Regulation 5(2) of the
Regulations and its earlier and later parts
may be reconciled.

41. There will be no orders as to costs.
----------
(2023) 3 ILRA 104
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 07.02.2023

BEFORE

THE HON'BLE RAMESH SINHA, J.
HON'BLE SUBHASH VIDYARTHI, J.

Special Appeal No. 328 of 2014

Santosh Kumar Shukla 3531 S/S2000
 ...Appellant
Versus
Syndicate Bank & Ors. ...Respondents