# C/M Dr. Abdul Ali Tibbiya College And Hospital, Lko. & Ors v. State of U.P. & Ors

- **Citation:** (2024) 2 ILRA 1029
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-02-22
- **Case number:** Writ - C No. 9920 of 2023
- **Bench:** Om Prakash Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/c-m-dr-abdul-ali-tibbiya-college-and-hospital-lko-ors-v-state-of-u-p-ors-51403
- **Pages:** 11

## Headnote

Civil Law - National Commission for Indian
System of Medicine Act, 2020 - Sections
10 & 55 - National Commission for Indian
System of Medicine (Minimum Standards of
Undergraduate
Ayurveda/Unani
Education)
Regulations, 2022 - Regulation 5(2) - NEET UG
2023-24 - Lowering of Minimum Percentile -
Judicial Review - Article 226

The petitioners, Committees of Management of
various Ayurvedic and Unani Colleges in Uttar
Pradesh, sought a reduction in the minimum
NEET UG 2023-24 percentile (by 10% and 15%)
for admission to AYUSH UG Courses (BAMS and
BUMS) and an extension of the admission
deadline to fill vacant seats in their institutions
1030 INDIAN LAW REPORTS ALLAHABAD SERIES
for the academic session 2023-24. They argued
that despite four rounds of counselling, many
seats remained vacant, and cited precedents
where
percentiles
were
lowered
for
medical/dental/AYUSH
courses,
including
a
recent reduction to zero for PG medical/dental
courses. They relied on Regulation 5(2)(ii) of
the NCISM Regulations, 2022, which allows the
NCISM,
in
consultation
with
the
Central
Government, to lower the minimum percentile if
insufficient candidates meet the required marks.
The NCISM countered that 83% of the 59,000
AYUSH seats were filled, with 12,44,686
candidates qualifying at the reduced 45th
percentile (from 50th), and further reduction
would compromise educational quality. Held:
The court, exercising judicial review under
Article 226, declined to interfere with the
NCISM's policy decision to lower the percentile
by only 5%, as it was a reasoned exercise of
discretion by an expert body. The petitioners'
claim of vacant seats did not justify further
reduction, as the availability of 12.44 lakh
qualified candidates far exceeded the available
seats, and reasons for vacancies could be varie
The court followed C/M Alpsankhyak Shiksha
Vikas Samiti, Kanpur Vs St. of U.P. (2023 SCC
OnLine ALL 80), which rejected similar pleas for
2022-23,
and
Modern
Dental
College
&
Research Centre Vs St. of Madhya Pradesh
((2016) 7 SCC 353), emphasizing that minimum
standards ensure quality education. The Delhi
High Court's ruling in Dr. Abhinav Kumar Vs
U.O.I. (2022 SCC OnLine DEL 2241) was cited
to underscore the societal risk of lowering
standards, given the life-and-death implications
of medical practice. Precedents of percentile
reductions were distinguished as case-specific
decisions by competent authorities, not binding
for 2023-24. The Gujarat High Court's judgment
was inapplicable due to differing St. regulations.
With the admission deadline (30.11.2023)
lapsed and classes commenced, the plea for
extension was also rejecte However, the court
urged NCISM to devise a pragmatic policy to
address
recurring
seat
vacancies
while
maintaining educational standards. Both writ
petitions were dismisse

Case Law Cited:

## Text

2 All. C/M Dr. Abdul Ali Tibbiya College And Hospital, Lko. & Ors. Vs. State of U.P. & Ors. 1029
considered while cancelling the license of
the petitioner by a speaking order. The
competent authority has concluded that the
petitioner has indulged in the irregularities
and in this view of the matter, the license of
the petitioner has been cancelled. Thus,
when the order impugned dated 21.05.2022
is seen in the light of the Government order
dated 05.08.2019, the Court records that
there has been strict adherence to the said
Government order.

45. So far as the judgments over
which reliance has been placed by the
learned counsel for the petitioner i.e
Amodnath (supra) & Manoj Kumar
Pathak (supra), suffice it to state
that all the judgments have been
rendered by the Single Judges of this
Court
which
judgments
would
obviously have to give way to the
Division Bench judgment of this
Court in the case of Shanker Prasad
(supra).

46. So far as the judgment of this
Court in the case of Amar Nath (supra) is
concerned per which Shanker Prasad
(supra) has also been considered, suffice it
to state that in the said case this Court had
specifically concluded that the order of
cancellation and rejection of appeal were
orders based on extraneous grounds alien to
the charges levelled against the petitioner
and in this view of the matter the Court
interfered. As already indicated above, this
Court has examined all the grounds as have
been raised by the learned counsel for the
petitioner but none of the grounds have
been found to be legally tenable in the eyes
of law. The orders impugned, both of
cancellation of the license and rejection of
the appeal, are speaking order having been
passed after considering in detail the
inquiry report and reply of the petitioner
after giving due opportunity of hearing to
him.

47. Keeping in view the aforesaid
discussion, no case for interference is made
out. Accordingly, the writ petition is
dismissed.
----------
(2024) 2 ILRA 1029
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 22.02.2024

BEFORE

THE HON'BLE OM PRAKASH SHUKLA, J.

Writ - C No. 9920 of 2023
Connected with
Writ - C No. 10640 of 2023

C/M Dr. Abdul Ali Tibbiya College And
Hospital, Lko. & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Rajat Ranjan Singh, Adarsh Saxena, Vidhu
Bhushan Kalia

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

Civil Law - National Commission for Indian
System of Medicine Act, 2020 - Sections
10 & 55 - National Commission for Indian
System of Medicine (Minimum Standards of
Undergraduate
Ayurveda/Unani
Education)
Regulations, 2022 - Regulation 5(2) - NEET UG
2023-24 - Lowering of Minimum Percentile -
Judicial Review - Article 226

The petitioners, Committees of Management of
various Ayurvedic and Unani Colleges in Uttar
Pradesh, sought a reduction in the minimum
NEET UG 2023-24 percentile (by 10% and 15%)
for admission to AYUSH UG Courses (BAMS and
BUMS) and an extension of the admission
deadline to fill vacant seats in their institutions
1030 INDIAN LAW REPORTS ALLAHABAD SERIES
for the academic session 2023-24. They argued
that despite four rounds of counselling, many
seats remained vacant, and cited precedents
where
percentiles
were
lowered
for
medical/dental/AYUSH
courses,
including
a
recent reduction to zero for PG medical/dental
courses. They relied on Regulation 5(2)(ii) of
the NCISM Regulations, 2022, which allows the
NCISM,
in
consultation
with
the
Central
Government, to lower the minimum percentile if
insufficient candidates meet the required marks.
The NCISM countered that 83% of the 59,000
AYUSH seats were filled, with 12,44,686
candidates qualifying at the reduced 45th
percentile (from 50th), and further reduction
would compromise educational quality. Held:
The court, exercising judicial review under
Article 226, declined to interfere with the
NCISM's policy decision to lower the percentile
by only 5%, as it was a reasoned exercise of
discretion by an expert body. The petitioners'
claim of vacant seats did not justify further
reduction, as the availability of 12.44 lakh
qualified candidates far exceeded the available
seats, and reasons for vacancies could be varie
The court followed C/M Alpsankhyak Shiksha
Vikas Samiti, Kanpur Vs St. of U.P. (2023 SCC
OnLine ALL 80), which rejected similar pleas for
2022-23,
and
Modern
Dental
College
&
Research Centre Vs St. of Madhya Pradesh
((2016) 7 SCC 353), emphasizing that minimum
standards ensure quality education. The Delhi
High Court's ruling in Dr. Abhinav Kumar Vs
U.O.I. (2022 SCC OnLine DEL 2241) was cited
to underscore the societal risk of lowering
standards, given the life-and-death implications
of medical practice. Precedents of percentile
reductions were distinguished as case-specific
decisions by competent authorities, not binding
for 2023-24. The Gujarat High Court's judgment
was inapplicable due to differing St. regulations.
With the admission deadline (30.11.2023)
lapsed and classes commenced, the plea for
extension was also rejecte However, the court
urged NCISM to devise a pragmatic policy to
address
recurring
seat
vacancies
while
maintaining educational standards. Both writ
petitions were dismisse

Case Law Cited:

1. C/M Alpsankhyak Shiksha Vikas Samiti,
Kanpur Vs St. of U.P., 2023 SCC OnLine ALL 80
2. Modern Dental College & Research Centre Vs
St. of Madhya Pradesh, (2016) 7 SCC 353

3. Dr. Abhinav Kumar & ors. Vs U.O.I. & ors.,
2022 SCC OnLine DEL 2241

4. Arogyam Association of Regional Ayush
Colleges, Gujarat Vs Admission Committee for
Professional Undergraduate Medical Educational
Course, R/Special Civil Application No. 19485 of
2023, decided on 30.11.2023 (Guj. HC)

(Delivered by Hon'ble Om Prakash Shukla,
J.)

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

(2) The above-captioned petitions
came to be filed by the various Committee
of Management of Ayurvedic and Unani
Colleges in the State of Uttar Pradesh,
primarily seeking filling of the vacant seats
of their institutions by lowering the
minimum percentile of National Eligibilitycum-Entrance
Test
(Undergraduate)
(hereinafter referred to as 'NEET UG')
2023-24 declared for admission in AYUSH
UG Courses i.e. Bachelor of Ayurvedic
Medicine & Surgery (in short 'BAMS')
and Bachelor of Unani Medicine & Surgery
(in short 'BUMS'). These petitioners have
also sought for extension of time for the
last date of admission for these AYUSH
UG Courses, wherein Writ-C No. 9920 of
2023 (Committee of Management, Dr.
Abdul Ali Tibbiya College & Hospital &
Others Vs State of Uttar Pradesh & Ors.)
have been filed by almost seven Ayurvedic
& Unani Institutions and Writ-C No. 10640
of 2023 has been filed by the Committee of
2 All. C/M Dr. Abdul Ali Tibbiya College And Hospital, Lko. & Ors. Vs. State of U.P. & Ors. 1031
Management,
Sahararanpur
Ayurvedic
Medical College.

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

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

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

08.09.2023

25.09.2023

Second round
of Counselling

03.10.2023

10.10.2023

Third round of
Counselling

26.10.2023

30.10.2023

Stray round of
Counselling

03.11.2023

07.11.2023

(6) It has further been submitted
by the learned Counsel for the petitioners
that although the stray round of counselling
ended on 07.11.2023, however, the last
date of admission for AYUSH Courses
stood extended till 20.11.2023 by the
NCISM. The hinge of the argument of the
learned Counsel is that even after the
conduct of four rounds of counselling, large
numbers of seats are still vacant in these
institutions and has, thus, sought for
lowering the minimum percentile for
AYUSH admissions by 10% for the current
academic session 2023-24. The learned
Counsel has tried to draw an analogy with
the decision dated 20.09.2023 taken by the
Central Government for PG Courses
(Medical/Dental), wherein the Government
taking cognizance of the fact that large
number of PG seats were vacant, has
reduced the minimum qualifying percentile
to "zero" across all categories. Thus, it has
been contended by the learned Counsel that
although Medical/Dental Course are more
specialized, superior, serious and difficult
Courses
than
AYUSH
Courses,
the
lowering of the minimum qualifying
percentile to 'zero' should be treated as a
good example for lowering the minimum
percentile for the AYUSH Courses. The
learned Counsel has further demonstrated
and gave illustration of various instances,
wherein the minimum percentile was
lowered/reduced
for
various
1032 INDIAN LAW REPORTS ALLAHABAD SERIES
Medical/Dental/AYUSH Courses, which
can be capitulated in a tabular chart hereinbelow :

Academic
Session

Course
Reduction
of
minimum percentile
criteria
2021-22

NEET
UG
2021
for
AYUSH
Courses

Reduction
by
5%
across all categories

2020-21

NEET
UG
2020
for
AYUSH
Courses

Reduced
from
50
percentile
to
40
percentile
for
unreserved and 40
percentile
to
30
percentile for OBC
and SCT/ST

2022-23

NEET
PG
2022
for
MDS
Courses

Reduction from 50
percentile to 24.286
percentile

2020-21

NEET PG

Reduction from 50 to
35 percentile

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

(8) The petitioners claimed to have
send representation to the Secretary,
NCISM, however, the same was without
any success and according to them, the
inaction on the part of the Central
Government/ NCISM in not lowering the
minimum percentile for admission in
AYUSH Courses has left various seats
vacant
in the
respective
institutions,
thereby infringing their fundamental rights
as guaranteed under the Constitution of
India.

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

(10) This Court has been informed
that after the said adjournment, NCISM
vide its letter dated 09.11.2023 has decided
to lower the cut-off percentile by 5% across
all categories for admission to UG and PG
Courses and has also extended the last date
of admission to 30th of November, 2023. It
has been submitted that although, various
institutions got their seats filled due to the
aforesaid lowering of the percentile by the
NCISM in the stray round of counselling,
however, even as on date, there are number
of vacant seats in these institutions and the
cause for filing the present petition still
survives. In fact, it has been submitted that
the second petition being Writ-C No. 10640
2 All. C/M Dr. Abdul Ali Tibbiya College And Hospital, Lko. & Ors. Vs. State of U.P. & Ors. 1033
of 2023 (Committee of Management,
Sahararanpur Ayurvedic Medical College)
has been filed after the said lowering of 5%
by the NCISM. The petitioners have also
relied on certain direction given in a
judgment of the Gujrat High Court passed
on
30.11.2023
in
R/Special
Civil
Application No. 19485 of 2023 (Arogyam
Association of Regional Ayush Colleges,
Gujrat
Vs
Admission
Committee
for
profession
under
graduate
Medical
Educational Course).

(11) On the other hand, NCISM have
filed their counter affidavit refuting the
claim of the petitioners, according to the
data provided by them, about 11,45,976
were NEET Qualified students with 50
percentile for the present academic session
2023-24 and the said figure of qualified
students
increased
to
12,44,686
by
lowering the minimum criteria to 45
percentile. According to them, against the
aforesaid 12.44 Lakhs qualified students,
the permitted seats across various UG
streams of Ayurveda, Siddha, Unani and
Homeopathy was only 59000 seats and as
such decreasing/lowering the percentile any
further would not serve any purpose.
According to him, there could be various
reasons for these vacant seats and further
lowering of percentile would lead to drastic
quality of students joining the AYUSH
Course, which would neither be good for
the Institution/College nor the Society at
large. He has contended that amongst the
total available seats, 83% seats have been
filled and 17% are vacant and as far as the
State of Uttar Pradesh relating to UG
Ayurveda is concerned, the total permitted
seats were 6,993, against which 5732 are
already occupied and 1261 is still vacant.
He has also relied upon a judgment passed
by a Division Bench of this Court in
Special Appeal No. 91 of 2023 (C/M
Alpsankhyak Shiksha Vikas Samiti, Kanpur
Vs. State of U.P & Others).

(12) The learned Counsel has argued
that the process of admission by lowering
minimum percentile cannot be an endless
process as the same would result in halfbaked doctors and in any case is a policy
decision to be exercised by the concerned
authority under the National Commission
for Indian System of Medicine Act, 2020.
The Gujrat High Court Judgment rendered
in Arogyam Association of Regional Ayush
Colleges,
Gujrat
(supra)
has
been
distinguished on facts and on the existence
of Rule 16 of Gujrat Professional Medical
Educational
Courses
(Regulation
of
Admission in Undergraduate Courses)
Rules, 2017 in the State of Gujrat and nonapplicable in the State of Uttar Pradesh or
across the country. According to him, it is
the NCISM Regulation, 2022, which is the
law regulating any admission in AYUSH
Courses. Further, the learned Counsel has
relied on an interim order dated 21.04.2023
passed by the Karnataka High Court at
Dharwad in Writ Petition No. 101793/2023
to negate the relief of any further lowering
of the pass percentile. It has been submitted
that when NCISM has already exercised its
powers for reducing the percentile across
the UG and PG courses of AYUSH for the
year 2023-24, there was no occasion or
justifiable reasons for further lowering the
percentile, especially when the last date of
admission has already passed and the said
process would lead to an endless process
and would amount to compromising the
medical standards of doctors in the country.

(13) Having regard to the contentions
of the parties and going through the record
available before this Court, it is required to
be noted herein that the centrifugal issue to
be dealt in these petitions encircles around
1034 INDIAN LAW REPORTS ALLAHABAD SERIES
the lowering of the minimum percentile of
NEET UG 2023-24 declared as a prerequisite for admission in AYUSH UG
Courses (BAMS & BUMS).

(14)

Apparently,
National
Commission for Indian System of Medicine
Act, 2020 (hereinafter referred to as
'NCISM Act, 2020') was enacted to
consolidate the prevailing law relating to
admission to AYUSH Courses and with an
objective to provide an appropriate medical
education system that improves access to
quality and affordable medical education
and further ensures availability of adequate
and high quality medical professionals of
Indian System of Medicine in all parts of
the country. The functions of the said
Commission, as to be found in Section 10
of the NCIMS Act, 2020, inter alia relates
to laying down policies for maintaining
high quality and
high
standards
in
education in Indian System of Medicine
and to make necessary regulations thereof.
Further, Section 55 (1) of the NCISM Act,
2020 empowers the Commission to make
regulations to carry out the provisions of
the said Act. This Court has been informed
that the Commission in exercise of its
powers vested in it under sub-section (2) of
Section 55 of NCIMS Act, 2020, has
framed (i) National Commission for Indian
System of Medicines (Minimum Standards
of Undergraduate Ayurvedic Education)
Regulations,
2022
and
(ii)
National
Commission
for
Indian
System
of
Medicines
(Minimum
Standards
of
Undergraduate
Unani
Education)
Regulations, 2022, notified on 16.02.2022
and 28.02.2022, respectively.

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

(16) For appreciating the contention
of the petitioners, it would be relevant to
note that Regulation 5 of the NCISM
Regulation, 2022 prescribes the eligibility
criteria for admission, wherein Regulation
5 (1) prescribes the educational eligibility
and Regulation 5 (2) prescribes for the
national eligibility-cum-entrance test. It is
also required to be noted that Regulation 5
(2) of the NCIMS Regulation, 2022 interalia states the following :

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

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

Provided that in respect of-

(i) candidates belonging to the
Scheduled Castes, Scheduled Tribes and
Other Backward Classes, the minimum
marks shall at 40th percentile;
2 All. C/M Dr. Abdul Ali Tibbiya College And Hospital, Lko. & Ors. Vs. State of U.P. & Ors. 1035

(ii) candidates with specified
disabilities under the Rights of Persons
with Disabilities Act, 2016 (49 of 2016) the
minimum marks shall be at 45th percentile
in the case of general category and 40th
percentile in the case of the Scheduled
Castes,
Scheduled
Tribes
and
Other
Backward Classes:

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

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

(18) The phrase "sufficient number of
candidates" in the respective category is of
special importance as the non-availability
of the said sufficient number of candidates
failing to secure the minimum marks in
NEET
is
the
triggering
point
for
consultation between the NCISM and the
Central Government to lower the minimum
marks required for admission to the
AYUSH UG Courses. As far as the
academic session 2023-24 is concerned, the
data as quoted by the learned counsel
appearing for NCISM reveals that about
11,45,976 candidates were found to be
NEET
Qualified
students
with
50
percentiles against the total available seats
across various UG streams of Ayurveda,
Siddha, Unani and Homeopathy to be
59000 seats. This Court finds that the said
data can never be an indication to the ratio
between the number of candidates with 50
percentiles
vis-à-vis
the
number
of
available seats for AYUSH Courses, as
NEET is also used for admission to various
Medical Courses including MBSS, BDS
etc. Apparently, it is not the case of the
petitioners that sufficient
number of
candidates could not secure the minimum
percentile of 50 for the present year, rather
it is the case of the petitioners that
sufficient number of candidates are not
available for taking the AYUSH Courses
within the said period and that for that
reasons, they are seeking the indulgence of
this Court for lowering of the minimum
percentile.

(19) However, this Court finds that
during the pendency of the present writ
petitions, the NCISM in consultation with
the Central Government, keeping in view
the proviso to Regulation 5 (b) has lowered
the minimum percentile across all category
by 5%, which has not only reduced the
minimum percentile for admission to
1036 INDIAN LAW REPORTS ALLAHABAD SERIES
AYUSH Courses to 45% but has also
brought almost about one lakhs more
candidates within the eligibility zone for
consideration
of
admission
to
these
AYUSH Courses.

(20) Having recorded so, the moot
point is as to whether this Court, while
exercising its power of Judicial review
under Article 226 of the Constitution of
India, can further lower the minimum
percentile, so as to enable the petitioners'
college to fill their unfilled seats for the
present academic session 2023-24. A
Division Bench of this Court in an identical
situation had examined the issue for
reducing
the
percentile
criteria
for
admission to BUMS and BAMS Courses
for the academic session 2022-23, which
had been refused. The Hon'ble Division
Bench in the said case, reported as C/M
Alpsankhyak
Shiksha
Vikas
Samiti,
Kanpur Vs State of U.P & Others : 2023
SCC Online ALL 80, while upholding the
decision of the Co-ordinate Bench of this
Court, had been pleased to hold inter-alia
as under :

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

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."

(21) This Court further finds that
the grounds taken by the learned Counsel
for the petitioners seeking lowering of the
minimum
percentile
for
the
present
academic session 2023-24, is identical to
the grounds, which had not found favour
with the Hon'ble Division Bench of this
Court for the academic year 2022. In any
case, even if the said grounds are
independently
viewed
de
hors
the
judgement passed by the Hon'ble Division
Bench of this Court for the session 2022,
this Court finds that the argument of the
learned counsel for the petitioners seeking
lowering of the minimum percentile, is
basically on two folds; the first being large
number of vacant seats are available in
AYUSH Colleges and the second being
there are numbers of precedents, wherein
the percentile have been reduced on several
occasion earlier.
2 All. C/M Dr. Abdul Ali Tibbiya College And Hospital, Lko. & Ors. Vs. State of U.P. & Ors. 1037

(22) As far as the first limb of
argument is concerned, as per proviso to
Regulation 5 (b) of the NCISM Regulation,
2022, a discretion is vested with the
NCISM in consultation with the Central
Government
to
lower
the
minimum
percentile, in case of a situation where
there are insufficient number of candidates
in the respective categories, who have
failed to secure minimum marks in the
National
Eligibility-cum-Entrance
Test.
This Court finds that the NCISM has
already
exercising
its
discretion
as
aforesaid
has
lowered
the
minimum
percentile by 5% for the present academic
session leading to increase of candidates
from 11,45,976 to 12,44,686 against the
total availability of AYUSH seats of
59,000. The contention of the petitioners
that even after the said increase of
candidates, there are still vacant seats lying
in their college and as such the lowering of
the percentile should ought to have
commensurate to the vacancies to be filled
in their Colleges, is an argument of
convenience and cannot be accepted as has
been rightly pointed out by the learned
counsel for the respondents that there might
be several reasons for these seats remaining
vacant.

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

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

(25) Time and again, the Hon'ble
Supreme Court has held that lack of
1038 INDIAN LAW REPORTS ALLAHABAD SERIES
minimum standards would result in halfbaked doctors and non-availability of
eligible candidates could not be a reason to
lower the standard. A Division bench of the
Hon'ble
Delhi
High
Court,
while
adjudicating the issue as to whether
Regulation 9 (3) of the Postgraduate
Medical
Education
(Amendment)
Regulations, 2018 to the extent that it
provided for minimum marks of 50
percentile as a mandatory requirement for
admission to postgraduate courses should
be quashed on the ground that the said
requirement is arbitrary, unjustified
and contrary to Article 14, Article 19
(1)(g)
and
Article
21
of
the
Constitution of India, held in the case
reported as Dr. Abhinav Kumar &
Ors. V/s Union of India & Ors. :
2022 SCC Online DEL 2241, as herein
below:

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

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

(27)

Further,
as
regards
the
availability of various precedents, wherein
the minimum percentile has been reduced
is concerned, it has to be noted that in all
the cases, it is the competent authority, who
had come to the rescue and had exercised
their discretion in lowering the minimum
percentile. In any case, the said exercise
has to be on case to case and year to year
basis and cannot be treated as precedence
or a thumb rule as it would defeat the very
purpose for which these eligibility criteria
have been prescribed to maintain the
medical standards. Moreover, the said
precedence has to be viewed keeping in
mind that as far as the present case is
concerned, the authorities have already
lowered the minimum percentile by 5% and
are resisting any further reduction in the
minimum
percentile
for
the
present
academic session 2023-24. Additionally,
this Court has been informed that the last
date for all admission has lapsed on
30.11.2023 and the classes for all AYUSH
Classes have already been started. Thus,
2 All. Syed Hamidul Bari Vs. State of U.P. & Ors.
1039
this Court finds the reliance of the learned
counsel for the petitioners on earlier
precedence to be unfounded and meritless.

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

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

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

(31) For all the reasons as stated herein
above and subject to the observation made by
this Court, the above-captioned writ petitions
are dismissed. There shall be no order as to
cost.
----------
(2024) 2 ILRA 1039
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 27.02.2024

BEFORE

THE HON'BLE VIVEK CHAUDHARY, J.
THE HON'BLE OM PRAKASH SHUKLA, J.

Writ - C No. 11383 of 2023
Along With
Writ - C No. 514 of 2024
And other connected cases

Syed Hamidul Bari ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Kazim Ibrahim, Amrit Khare

Counsel for the Respondents:
C.S.C., Pushpila Bisht, Ratnesh Chandra,
Ruchir

Civil Law - U.P. Slum Areas (Improvement
and Clearance) Act, 1962 - Section 2(i) -
U.P. Urban Planning and Development Act,
1973 - Section 27 - Principles of Natural
Justice - Public Trust Doctrine - Slum Dwellers
- Illegal Encroachment - Article 226

The petitioners, 25 individuals claiming to be
slum dwellers of Akbar Nagar (I) and (II),
Lucknow, challenged proceedings under the
U.P. Urban Planning and Development Act,
1973, seeking to protect their alleged slum