AFR

Court No. - 40

Case :- WRIT - C No. - 20273 of 2021

Petitioner :- Lalit Chaudhary And 10 Others

Respondent :- Union Of India And 6 Others

Counsel for Petitioner :- Ashish Kumar Srivastava

Counsel for Respondent :- A.S.G.I.,Abhinav

Gaur,C.S.C.,Vibhu Rai,Vivek Kumar Rai

Hon'ble Ashwani Kumar Mishra,J.

Hon'ble Vikram D. Chauhan,J.

(Per Hon. Vikram D. Chauhan, J.)

1.The present writ petition has been filed by the petitioners for

declaring the Combined Pre-Ayush Test 2017 (CPAT) for admission

in BAMS course for the Session 2017–18 as unconstitutional, illegal

and void ab initio. The petitioners further challenge the letter

dated 26.04.2017 issued by the Government of India and the

communication dated 31.05.2016 issued by the respondent No. 2–

Central Council of Indian Medicine and other reliefs.

2.The brief facts in the present case is to the effect that the

admissions in the Bachelor of Medicine and Surgery – B.A.M.S is

regulated by Indian Medicine Central Council (Minimum Standards

of Education in Indian Medicine) Regulations, 1986, as amended

from time to time. The present controversy arises out of the

admission in Bachelor of Medicine and Surgery – B.A.M.S for the

Session 2017–18. The petitioners in the present writ petition are

the students of 2017–18 batch who have taken admission in

Shaheed Narendra Kumar Ayurvedic Medical College and R.K.M.S.

Charitable Hospital, Pisawa Road, Chandaus, District Aligarh.

3.The above-mentioned regulations were amended in the year

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2012 by means of notification dated 25.04.2012. The aforesaid

notification dated 25.04.2012 did not provide for any Common

Entrance Test for admissions in Bachelor of Medicine and Surgery –

B.A.M.S in various institutions run in the State. It is the case of the

petitioners that the regulations provide for direct admission in the

Bachelor of Medicine and Surgery – B.A.M.S course to those

candidates who fulfilled the admission qualification as prescribed in

the above-mentioned regulations as amended by notification dated

25.04.2012.

4.The respondent institution for the academic session 2015–16

admitted students directly as per the above-mentioned regulations

as amended by notification dated 25.04.2012. It is further

submitted by the counsel for the petitioners that the State

Government nor the University raised any objection to the said

admissions.

5.By means of letter dated 31.05.2016, the Central Council of

Indian Medicine, New Delhi communicated to the Health

Secretaries of Government of Various States including the State of

Uttar Pradesh and decision was taken at the meeting held on

09.05.2016 at the Ministry of Ayush providing that the admission

to the above-mentioned course should be made in the country

through National Eligibility Entrance Test (NEET) from Session

2017–18. It was also directed that the admissions to the above-

mentioned course through any other means will not be admissible

in any case from the Year 2016–17 and a direction was issued to

the State Government to take responsibility to implement the

aforesaid decision.

6.On 26.04.2017, the Ministry of Ayush communicated its

decision to all the State Authorities that in case due to some

difficulties the States are unable to adopt NEET merit list for

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AYUSH-UG admission for the academic year 2017–18 then the

States may admit students in the colleges and institutions through

Common Entrance Test (CET) of the concerned State Government.

7.Further, by means of notification dated 07.11.2016, the

above-mentioned regulations were again amended by means of

Indian Medicine Central Council (Minimum Standards of Education

in Indian Medicine) Amendment Regulations, 2016. The above-

mentioned Regulations of 2016 provided for admission

qualification. However, the aforesaid Regulations of 2016 also did

not provide any mandate for holding of Common Entrance Test in

respect of the course in question.

8.It is further submitted by the learned counsel for the

petitioners that the State Government thereafter on 4.09.2017

issued direction nominating Lucknow University, Lucknow to

conduct Combined Pre Ayush Test 2017 for selection of candidates

for the Session 2017–18 in the BAMS Course. It is submitted by

the learned counsel for the petitioners that the above-mentioned

letter dated 04.09.2017 has been issued by the Secretary without

any statutory authority or power. It is further submitted by the

learned counsel for the petitioners that neither the regulation nor

any rules have been framed for holding the selections through the

Combined Pre Ayush Test.

9.It is submitted that all the colleges in the State of Uttar

Pradesh were required to proceed for admissions in Bachelor of

Medicine and Surgery – B.A.M.S only from students who have

qualified the above-mentioned Combined Pre-Ayush Test. The

respondent no 7-College was provided with 5 candidates from the

above-mentioned Combined Pre-Ayush Test while the College had

sanctioned strength of 60 Candidates.

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10.It is submitted by the leaned counsel for the petitioners that

thereafter the respondent No. 7 issued an advertisement dated

28.11.2017 in the daily newspaper inviting applications for direct

admission to the Bachelor of Medicine and Surgery–B.A.M.S from

students who have passed Intermediate examination. The

petitioners in pursuance to the above-mentioned advertisement

applied for admission in Bachelor of Medicine and Surgery –

B.A.M.S Course and was admitted by the institution – respondent

no 7 in the course on 29.11.2017.

11.It is further submitted that after being admitted by

respondent No. 7 in the Bachelor of Medicine and Surgery –

B.A.M.S for the Session 2017–18 and after completing one year of

studies in the aforesaid institution when the petitioners submitted

their online form for annual examination in the month of July

2019, they were debarred by the respondent University.

12.On 07.12.2018, the respondent No. 2 amended the above-

mentioned regulations by means of Indian Medicine Central

Council (Minimum Standard of Education in Indian Medicine)

Amendment Regulation, 2018 and by means of Regulation 2 (d)(i),

it was provided that there shall be a uniform entrance examination

for all medical institutions at the undergraduate level namely the

National Eligibility Entrance Test (NEET) for admission to

undergraduate courses in each academic year and shall be

conducted by an authority designated by the Central Government.

It is submitted that for the first time in the year 2018 by means of

notification dated 07.12.2018, the regulations above-mentioned

were amended and the uniform entrance examination for the

course in question was prescribed by the aforesaid regulations.

13.In July 2019 when the University held the examination in

respect of the course in question, the petitioners were not allowed

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to appear in the first year examination of the said course and the

respondent University illegally cancelled the candidature of the

petitioners in the aforesaid course. On further enquiry it was

revealed that the respondent institution being aggrieved by non-

acceptance of the students by the University who have taken

admission directly with the institution had preferred Writ Petition

No. 23634 of 2019 and the aforesaid writ petition was finally

decided by means of Judgement dated 22.07.2019. It is submitted

by the learned counsel for the petitioners that the aforesaid

judgement dated 22.07.2019 however does not take into

consideration the legality and power of the State Government to

hold a common entrance test in respect of the course in question

as the same was never challenged in the aforesaid writ petition

and in this manner, the aforesaid judgement would not have any

effect on the issues raised by the petitioners by means of the

present writ petition.

14.The challenge to the Combined Pre Ayush Test 2017 on

behalf of the petitioners is that the Indian Medicine Central Council

(Minimum Standard of Education in Indian Medicine) Regulations,

do not provide for a Common Entrance Test in respect of the

course in question and that the aforesaid regulations were

amended by notification dated 07.12.2018 whereby a uniform

entrance examination was introduced for the first time for all

medical institution at the undergraduate level. The submission of

the learned counsel for the petitioners is that for the Academic

Year 2017–18 there was no provision in the regulation for

conducting the common entrance test/uniform entrance

examination for the course in question. It is submitted that the

State Government has not been granted any power under the

Indian Medicine Central Council Act, 1970 or under the regulations

to impose any condition with regard to common entrance

test/uniform entrance examination in respect of the course in

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question and as such the Combined Pre Ayush Test 2017

conducted by the respondent no 3 – State of Uttar Pradesh is

without authority of law.

15.It is further submitted by the learned counsel for the

petitioners that the institution in question has 60 sanctioned seats

in the BAMS Course and out of the result of the above-mentioned

common entrance test conducted by the respondent No. 3 only

five candidates were allotted to the respondent No. 7 – institution.

The remaining seat of the aforesaid institution remained vacant

and as such there exist no illegality in filling up the vacant seats

directly by the respondent No. 7–institution on the basis of an

advertisement published in the newspaper. It is also urged on

behalf of the petitioners that the respondent University was not

justified in cancelling the candidature of the petitioners on the

ground that the petitioners have not passed the Combined Pre

Ayush Test 2017. According to the learned counsel for the

petitioners, the admission of the petitioners was legal and valid in

accordance with the Indian Medicine Central Council Act, 1970

and the Regulations framed thereunder.

16.On behalf of the respondents, it is submitted that the

Combined Pre Ayush Test 2017 was conducted by the State

Government on the basis of the directions issued by the Central

Council of Indian Medicine and Ministry of Ayush. It is also

submitted that on 09.05.2016 the Ministry of Ayush in order to

bring meritorious students to the Indian System of Medicine by

making admission in Ayurveda, Unani and Siddha Courses in the

country directed for holding of National Eligibility Entrance Test

from the Session 2017–18. It was further directed by the Ministry

of Ayush by means of communication dated 26.04.2017 that the

admission to the course in question for the Academic Year 2017-18

may be held by the respective State Governments by means of a

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common entrance test as per the existing rules and policies of the

State Government. It is urged on behalf of the respondents that

the above-mentioned decision to hold common entrance test in

respect of the course in question was on account of the directives

of Hon'ble Supreme Court in Writ Petition (C) No. 261 of 2016 and

connected matters. It is further submitted by the learned counsel

for the respondent that the common entrance test in respect of the

course in question is in furtherance of the order of the Hon'ble

Supreme Court and as such no interference is warranted in the

present writ petition.

17.The controversy in the present writ petition arises out of the

admissions to Bachelor of Medicine and Surgery–B.A.M.S for the

Session 2017–18 made directly by respondent No. 7-Institution.

By order dated 31.05.2016, the Central Council of Indian Medicine,

New Delhi communicated to the Health Secretaries of Government

of various States including the State of Uttar Pradesh its decision

which was taken at the meeting held on 09.05.2016 at the Ministry

of Ayush providing that the admission to the above-mentioned

course should be made in the country through National Eligibility

Entrance Test from Session 2017–18. It was also directed that the

admissions to the above-mentioned course through any other

means will not be admissible in any case from the Year 2016–17

and a direction was issued to the State Government to take

responsibility to implement the aforesaid decision.

18.Further, on 26.04.2017 the Ministry of Ayush communicated

its decision to all the State authorities that in case due to some

difficulties the States are unable to adopt NEET merit list for

AYUSH-UG admission for the academic year 2017–18 then the

States may admit students in the colleges and institutions through

Common Entrance Test of the concerned State Government as per

the existing rules and policies of the concerned State and Union

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Territories.

19.The aforesaid order dated 31.05.2016 and 26.04.2017 was

issued by the respondent authorities on the basis of the directives

issued by the Hon'ble Supreme Court in Writ Petition (C) No. 261

of 2016 (Sankalp Charitable Trust and another Vs Union of India).

The order dated 28.04.2016 directed while recording the

submissions of the respondents that the NEET would be held in

respect of medical admissions. The aforesaid directions of the

Hon'ble Supreme Court was further considered in the meeting at

the Ministry of Ayush held on 09.05.2016 whereby it was decided

that in order to bring meritorious students to the Indian System of

Medicine by Making Admission in Ayurveda, Unani and Siddha

courses admission in the country will be through National Eligibility

cum Entrance Test (NEET) only from Session 2017–18 onwards.

20.In pursuance to the above-mentioned directions of the

Ministry of Ayush and the Central Council of Indian Medicine, the

State Government had conducted Combined Pre Ayush Test 2017

for admissions to the Bachelor of Medicine and Surgery – B.A.M.S

for the Session 2017–18.

21.The submission of the learned counsel for the petitioners is

that the Indian Medicine Central Council Act, 1970 and the

Regulations framed thereunder do not provide for Common

Entrance Test in respect of the course of Bachelor of Medicine and

Surgery–B.A.M.S for the Session 2017–18 and the regulations

were amended subsequently by means of notification dated

07.12.2018 providing for uniform entrance examination for all

medical institutions at the undergraduate level and the aforesaid

notification dated 07.12.2018 would not be applicable in respect of

the admissions to be conducted for the Session 2017–18 and as

such the State Government had no authority under the law to

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conduct Combined Pre Ayush Test 2017.

22.The Combined Pre Ayush Test 2017 was conducted by the

State Government on the basis of the direction dated 31.05.2016

issued by the Central Council for Indian Medicine and order dated

26.04.2017 by the Ministry of Ayush, Government of India. The

aforesaid orders dated 31.05.2016 and 26.04.2017 was issued in

furtherance of the direction of the Hon'ble Supreme Court in Writ

Petition (C) No. 261 of 2016 (Sankalp Charitable Trust and another

Vs Union of India). Once the Supreme Court has directed for

holding of Common Entrance Test in respect of admission to the

medical courses and in furtherance thereof the Central Council of

Indian Medicine and Ministry of Ayush has further taken a decision

to hold Common Entrance Test in respect of BAMS Course, the said

decision of the respondent authorities is relatable to the direction

issued by the Hon'ble Supreme Court in the above-mentioned writ

petition.

23.It is further to be noted that Article 144 of the Constitution of

India obliges all authorities, civil and judicial in the territory of

India to act in aid of the Supreme Court and as such all the

authorities are bound by the directions of the Supreme Court and

have to act in aid and furtherance of the directions of the Supreme

Court. The might of the State must stand behind the court’s order

for survival of the rule of law in the country. The common entrance

examination in respect of the course in question was conducted on

the basis of a policy decision taken by the respondent authorities

in furtherance of the directions of the Hon'ble Apex Court in the

above-mentioned writ petition and as such the State Government

had the authority under law to act in aid of the directions of the

Supreme Court as contained in the policy decision communicated

by order dated 31.05.2016 and 26.04.2017. The holding of the

combined entrance examination in respect of medical courses on

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the basis of the direction of the Hon'ble Supreme Court is in order

to bring meritorious students to the medical education.

24.Further, Section 22 of the Indian Medicine Central Council

Act, 1970 empowers the Central Council to prescribe the Minimum

standards of education in Indian medicine and the aforesaid

provision deals with the minimum standard of education in Indian

Medicine which in effect covers the power to direct for conduct of

Common Entrance Examination.

25.In view of the judgment of the Constitution Bench in Preeti

Srivastava (Dr) v. State of M.P., (1999) 7 SCC 120, it is no

longer possible to argue that norms for admission come into the

picture only after admissions are made and have no connection

with “standards of education”. On the contrary, regulation of

admissions has a direct impact on the maintenance of standards of

education and in exercise of its power to prescribe and maintain

standards of education, Central Council of Indian Medicine has the

right as well as an obligation to regulate admissions.

26.The Hon’ble Apex Court in the case of Dr Preeti Sriastava

(supra) held as under:-

“36. It would not be correct to say that the norms for admission have no

connection with the standard of education, or that the rules for admission

are covered only by Entry 25 of List III. Norms of admission can have a

direct impact on the standards of education. Of course, there can be rules

for admission which are consistent with or do not affect adversely the

standards of education prescribed by the Union in exercise of powers

under Entry 66 of List I. For example, a State may, for admission to the

postgraduate medical courses, lay down qualifications in addition to

those prescribed under Entry 66 of List I. This would be consistent with

promoting higher standards for admission to the higher educational

courses. But any lowering of the norms laid down can and does have an

adverse effect on the standards of education in the institutes of higher

education. Standards of education in an institution or college depend on

various factors. Some of these are:

(1) the calibre of the teaching staff;

(2) a proper syllabus designed to achieve a high level of education in the

given span of time;

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(3) the student-teacher ratio;

(4) the ratio between the students and the hospital beds available to each

student;

(5) the calibre of the students admitted to the institution;

(6) equipment and laboratory facilities, or hospital facilities for training

in the case of medical colleges;

(7) adequate accommodation for the college and the attached hospital;

and

(8) the standard of examinations held including the manner in which the

papers are set and examined and the clinical performance is judged.

37. While considering the standards of education in any college or

institution, the calibre of students who are admitted to that institution or

college cannot be ignored. If the students are of a high calibre, training

programmes can be suitably moulded so that they can receive the

maximum benefit out of a high level of teaching. If the calibre of the

students is poor or they are unable to follow the instructions being

imparted, the standard of teaching necessarily has to be lowered to make

them understand the course which they have undertaken; and it may not

be possible to reach the levels of education and training which can be

attained with a bright group. Education involves a continuous interaction

between the teachers and the students. The pace of teaching, the level to

which teaching can rise and the benefit which the students ultimately

receive, depend as much on the calibre of the students as on the caliber

of the teachers….”

27.Thus, in view of the law laid down by the Constitution Bench

in Dr Preeti Srivastava case (supra) it must be held that the

power to regulate the standards of education in Indian Medicine

prescribed by the Council is vested in Central Council under the

Indian Medical Council Act, 1970. The corresponding duty to

conduct common entrance examination for filling up BAMS seats,

on merits, must also vest in it.

28.The Indian Medicine Central Council (Minimum Standard of

Education in Indian Medicine) Regulations at the relevant time did

not provide any specific direction for holding of admissions in the

course in question in a particular manner and in fact the

regulations only prescribed the admission qualifications for

eligibility/admission in Bachelor of Ayurveda education and as such

the directions issued by the Central Council and the Ministry of

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Ayush were in no manner contrary to the Indian Medicine Central

Council Act, 1970 and the Regulations framed thereunder. Where

the regulations are silent in respect of the mode and manner of

admissions in the course in question and the directions are issued

by the Central Council and the Ministry of Ayush for admissions in

the course in question through a Common Entrance Examination,

the same cannot be said to be contrary to law. The field not being

occupied by the Indian Medicine Central Council Act, 1970 and the

Regulations framed thereunder and as such it is open for the

respondent authorities to direct for holding of Common Entrance

Test in respect of the admissions to the course in question

specifically in view of the directions of the Hon'ble Apex Court and

the powers vested in the Central Council and the Government.

29.The legislative competence of Parliament and the legislatures

of the States to make laws under Article 246 is regulated by the

VIIth Schedule to the Constitution. In the VIIth Schedule as

originally in force, Entry 11 of List II gave to the State an exclusive

power to legislate on

“education including universities, subject to the provisions of

Entries 63, 64, 65 and 66 of List I and Entry 25 of List III”.

Entry 11 of List II was deleted and Entry 25 of List III was

amended with effect from 3-1-1976 as a result of the Constitution

42nd Amendment Act of 1976. The present Entry 25 in the

Concurrent List is as follows:

“25. Education, including technical education, medical

education and universities, subject to the provisions of Entries 63,

64, 65 and 66 of List I; vocational and technical training of labour.”

Entry 25 is subject, inter alia, to Entry 66 of List I. Entry 66

of List I is as follows:

“66. Coordination and determination of standards in

institutions for higher education or research and scientific and

technical institutions.”

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30.Both the Union as well as the States have the power to

legislate on education including medical education, subject, inter

alia, to Entry 66 of List I which deals with laying down standards in

institutions for higher education or research and scientific and

technical institutions as also coordination of such standards. The

State cannot, while controlling education in the State, impinge on

standards in institutions for higher education as this is exclusively

within the purview of the Union Government. Therefore, while

prescribing the criteria for admission to the institutions for higher

education including higher medical education, the State cannot

adversely affect the standards laid down by the Union of India

under Entry 66 of List I. The States are required to act in

accordance with the standards for admission set by the Union and

its agencies.

31.The executive power of the Union Government under Article

73 extends to the matters in respect to which the Parliament has

power to make laws. While the executive cannot act against the

provisions of law, it does not follow that in order to enable the

executive to function relating to a particular subject there must be

a law already in existence authorising such action. The functions of

the executive are not confined to the execution of laws made by

the legislature already in existence. Article 73 indicate that the

power of the executive of the Union are coextensive with the

legislature power of the Union. In the present case, the directions

for holding of Common Entrance Test is relatable to Entry 66 of List

I and in furtherance of the order of the Hon'ble Apex Court as

detailed hereinabove. It is to be seen that the Indian Medicine

Central Council Act and the Regulations framed thereunder at the

relevant point of time were silent in respect of the mode/manner

of admissions to be made in the BAMS Course and as such, the

directions issued by the Government of India and the Central

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Council is consistent with the Entry 66 List I of the Constitution of

India. Once the Government of India, Ministry of Ayush has laid

down the standard for higher education in the course in question

by fixing Common Entrance Test in respect of admission to the

course in question, it was incumbent upon the State Government

to have followed the aforesaid direction and to have conducted the

common entrance test for BAMS course for the Session 2017–18

and the aforesaid action of the State Government cannot be

faulted on the ground that there is no provision in law,

empowering the State Government to hold the common entrance

test.

32.The course in question is undoubtedly a professional course.

The institutions, therefore cannot be permitted to admit students

through a process which is not fair and transparent and which does

not promote merit and excellence in such courses. To curb the

malpractices, the Supreme Court in the case of Modern Dental

College and Research Centre Versus State of Madhya

Pradesh, (2016) 7 SCC 353 has emphasised the need for

common entrance test to be held for admission in professional

courses. In the present case, the institution in question has

adopted dual approach while some students have been admitted

by means of the common entrance examination and the unfilled

vacancies in the institution for the course in question, have been

filled up by direct admission by the respondent no.7–Institution.

Institution was aware that admission was to be from NEET

students only. If sufficient students were not available, it could

have raised a grievance but direct admission, in face of direction

by the competent body in light of Supreme Court direction was not

permissible. Learned counsel for the petitioners has not been able

to show the source of power which permits the respondent

institution to directly take admissions in the course in question

specifically when the institution already received student from the

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common entrance examination. The advertisement issued by the

respondent institution for taking direct admissions in the institution

does not prescribe the procedure adopted by the respondent

institution to take admissions in the institution. Further, the

petitioners have no fundamental right to take admissions in the

professional courses of higher education and any admission in

respect of the professional courses can only be through common

entrance test in view of the judgement of the Apex Court and the

decision of Ministry of Ayush. The respondent institution could not

be permitted to take admissions directly in professional courses

specifically when Central Council and the Government of India has

only permitted admission to the course in question through a

common entrance examination. The non-availability of eligible

candidates for admission in the course in question cannot be a

reason to permit direct admissions by the respondent no 7 –

Institution which will amount to lowering the minimum standard of

education prescribed by the respondent Nos. 1 and 2. The

petitioners had the opportunity to appear in the common entrance

examination conducted by the State of Uttar Pradesh in respect of

the course in question at the relevant time. However, the

petitioners did not appear in the common entrance examination

and thereafter as a backdoor entry have secured the admission to

the respondent No. 7 – Institution in the professional course which

is unfair and illegal.

33.It is further to be noted that earlier the respondent No. 7 –

Institution had filed Writ Petition No. 23634 of 2019 (Shaheed

Narendra Kumar Ayurvedic Medical College and R.K.M.S.

Charitable Hospital Vs. State of Uttar Pradesh and 6 others) for

regularisation of the admissions in the BAMS Course of students

who have secured admission directly in the institution without

participating in the common entrance examination. The aforesaid

writ petition was finally disposed of by means of judgement dated

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22.07.2019 and it was specifically held that the institution has not

only compromised with the merit but also the future of the

students at stake. The aforesaid judgement further directed that

the students who have been granted illegal admission in the BAMS

course by the respondent–Institution are at liberty to approach

before the appropriate forum to seek compensation from the

institution.

34.In this reference relevant extract of the order passed by this

Court in earlier Writ Petition No. 23634 of 2019 filed by respondent

No.7- Institution is extracted hereinbelow :-

“In the facts and circumstances of the case, reference of the case of some

Institution of State of Kerala is relevant to mention. Some medical

Institution had given admissions to the students against the rule and

regulations in the State of Kerala, however, the admissions were

cancelled and such order was also upheld by the Hon'ble Supreme Court

also. The State of Kerala promulgated ordinance in order to protect those

students. However, the Hon'ble Supreme Court declared the said

ordinance to be ultra vires by the judgment passed in the matter of

Medical Council of India vs. State of Kerala reported in (2018) SCC

Online SC 1467 in which the Supreme Court held that fairness of

process of admission and merit cannot be compromised.

The Supreme Court has also directed to refund the fee received from the

students and also held the students to be entitled for compensation also

in the matter of Riya George vs. Kannaur Medical College reported in

2019 SCC Online SC 252.

The petitioner - Institution has not only compromised with the merit but

also put the future of students at stake. Petitioner's college is not entitled

for any sympathy or equity.

In view of the above discussions, the writ petition sans merit.

However, the students who have been granted illegal admissions in the

BAMS course by the petitioner - Institution are at liberty to approach

before the appropriate forum to seek compensation from the petitioner -

Institution, if so adviced.

The writ petition is, disposed of, accordingly.”

35.Learned counsel for the petitioners has further placed

reliance on the judgment of the Apex Court in Union of India Vs.

Federation of Self-Financed Ayurvedic Colleges, Punjab and

others, reported in (2020) 12 SCC 115, to establish that the

Apex Court has permitted the candidates who have not appeared

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in the common entrance test to be continued in the course in

question in ayurvedic undergraduate course. In this respect, it is to

be seen that the aforesaid judgment was passed by the Apex

Court as a one time exercise in the peculiar circumstances of the

aforesaid case and the Apex court has further directed that the

aforesaid order shall not be treated as a precedent. The reliance

on the aforesaid judgment of the Apex Court is of no use in the

present case as the aforesaid order was passed by the Apex Court

in exercise of its power under Article 142 of the Constitution of

India, considering the special facts and circumstances arising out

of the case and since there being no right of the petitioners to

have direct admission in the course in question by-passing

common entrance test and as such no orders can be passed in

favour of the petitioners.

36.It is further to be seen that the present writ petition pertains

to the challenge to the BAMS Course for the Session 2017-18 and

as per the case of the petitioners, in July, 2019 they were debarred

by the University from filling the annual examination form online.

Thereafter the respondent No. 7- Institution filed Writ Petition No.

23634 of 2019 challenging the aforesaid action of the respondent

authorities and the aforesaid writ petition was disposed of by order

dated 22.07.2019. The present writ petitioners who are the

students in respect of the course in question however, at that point

of time, did not prefer any writ petition before this Court

challenging the action of the respondent authorities. However,

when the writ petition of respondent no. 7-Institution was disposed

of by order dated 22.07.2019, the petitioners have preferred the

present writ petition in August, 2021. The aforesaid delay on

behalf of the petitioners specifically after the order dated

22.07.2019 is of significance as the institution's writ was already

disposed of with a specific finding that the institution has not only

compromised with the merit but the also put the future of the

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petitioners at stake and as such, the present writ petition is a

belated exercise which is not permissible in exercise of the

extraordinary jurisdiction under Article 226 of the Constitution of

India.

37.In view of the aforesaid, the petitioners are not candidates

who have secured admission in the BAMS Course for the Session

2017–18 in accordance with the established procedure and in

accordance with the directions of the Supreme Court, through

Common Entrance Test and as such are not valid

candidates/students and as such no right accrues in favour of the

petitioners for admission in the course in question.

38.In the result, the writ petition lacks merit and is dismissed.

Order Date :- 29.11.2021

VMA/D. Tamang

(Vikram D. Chauhan, J.) (Ashwani Kumar Mishra, J.)