(i) In the on-going counselling for the academic year 2019-20, after all NEET qualified students have made their choices and if seats remain unfilled, any other candidate who has not appeared for NEET examination, but has the minimum qualification to undergo the AYUSH courses (BAMS, BHMS and BUMS) as provided, shall be permitted to take part in the counselling.
(ii) Such of those candidates would also be intimated that their admission are being made in view of the absence of NEET qualified candidates and would ultimately remain subject to the result of these writ petitions.
(iii) It is further made clear that the process as indicated above would be applicable only to such of those institutions who are otherwise qualified to make admissions by possessing requisite infrastructure and if the competent authorities have taken any action against any of the colleges and restrained them from making admissions for the present academic year, such of those institutions shall not make admissions by taking benefit of this order.
(iv) If any of the institution against whom action had been initiated has secured any interim order permitting admissions and have already participated in the counselling, such institutions are eligible for making admissions in terms of this order.
I.A. No.1/2019 is accordingly disposed of"
Accordingly, it is submitted by Sri S.K.Kalia, learned counsel for the petitioners that the same benefit may also be given to the present petitioners.
Sri Savitra Vardhan Singh, learned counsel for opposite party no.1/ Union of India, in rebuttal, submits that the benefit of the orders passed by other High Courts be not extended to the petitioners keeping in view the fact that the order passed by Punjab and Haryana High Court would be challenged before Hon'ble Apex Court and for which S.L.P. almost has been prepared and the fact that the other Court while passing the interim orders have not been considered the Regulation dated 07.12.2018, in issue.
Sri Savitra Vardhan Singh, learned counsel for opposite party no., while opposing the interim relief relied upon the order passed in the Civil Appeal no.1393 of 2019 [S.L.P. ( Civil) No. 766 of 2019]. The Apex Court has held as under:-
"5. We have perused the judgments and orders passed by the High Courts of Patna, Karnataka, Madras, Rajasthan, Punjab & Haryana, Allahabad and Kolkata. Directions were issued in favour of the students permitting admissions on the basis of the marks in the qualifying examination without reference to the marks secured by them in the NEET UG-2018 examination. The learned Additional Solicitor General fairly submitted that none of the judgments or orders passed by the High Courts have been challenged.
6. Though the last date for admission to the BHMS course was 15th November, 2018, we are informed that the last date was extended till 20th December, 2018 by the Allahabad High Court. Though there is no agreement on the exact number of vacant seats, it is common ground that there are vacant seats for admission to the 1st year BHMS course in the State of Maharashtra. As there is no uniformity in the matter of admission to the 1st year BHMS course for the year 2018-19, as securing minimum marks in NEET is not required in some States pursuant to orders of the High Courts, we are of the opinion that the Appellants are entitled to the relief of admissions being made without reference to the letter dated 11th June, 2018 of Respondent No. 1 and the consequential notice of Respondent No. 3. In other words, the Appellant-Association should be permitted to make admissions to the 1st year BHMS course for the academic session 2018-19 on the basis of the eligibility criteria mentioned in the information brochure dated 5th February, 2018. A candidate who has secured minimum marks in the NEET UG-2018 shall be eligible for admission to the 1st year BHMS course for the academic year 2018-19.
7. As two months have passed after the last date of admission to the 1st year BHMS course i.e. 15th November, 2018, we direct the Appellants to complete the process of admissions strictly on the basis of the merit by 15th February, 2019. The Managements of the colleges are directed to hold extra classes for students who will be admitted pursuant to this order to comply with the requirements of minimum working days. This order which is passed in the peculiar facts of the case shall not be treated as a precedent. No opinion is expressed by us regarding the introduction of the minimum percentile as an eligibility criteria in the NEET examination.
8. Appeals are disposed of accordingly."
Sri S.K.Kalia learned counsel for the petitioner, in rebuttal, submits that petitioners are entitled to same protection/ interim relief, which has been provided by other High Courts, even if the Regulations dated 07.12.2018 are treated as intra vires, as National Eligibility Cum Entrance Test ( in short 'NEET') was not held for Ayush Courses i.e. Bachelor of Ayurveda Medicine and Surgery ( in short 'BAMS') and Bachelor of Unani Medicine and Surgery (in short 'BUMS') for the academic year 2019-20 and for the said reason the petitioners could not apply for NEET, 2019.
In support of his contention Sri S.K. Kalia placed reliance on the Information Bulletin of NEET-2019 ( Annexure no.15 to the writ petition) from which it reflects that NEET-2019 was held for MBBS/BDS courses, and Regulation 2(2)(d) (ii) of Regulation dated 07.12.2018.
Further, submitted that the preference be given to the candidates, who appeared and selected in the NEET and on remaining vacant seats of Ayush Courses, the candidature of the petitioners be considered as per merits. It has also been stated that by other High Courts the interim orders have been passed and parity should be extended to the students of State of U.P. keeping in view the fact that the orders passed by other High Courts have not been interfered till date. The Apex Court, though the issue is different in the present case, in its judgment relied upon by the counsel for opposite party no.1 has granted the relief keeping in view the orders passed by the different High Courts. Thus the arguments which have been raised by Sri Savitra Vardhan Singh, learned counsel for opposite party no.1 will not come in the way of the petitioners and the petitioners are entitled to same benefit, which has been given by different High Courts in the matter in issue.
After hearing learned counsel for the parties and going through the record, including Information Bulletin of NEET-2019 and Regulation 2(2) (d) (ii) as well as the fact that in similar facts and circumstances the other High Courts have granted the interim relief and the same is still intact, as an interim measure we provide that after giving admissions to the students, who appeared and selected in NEET, if seat(s) are left, then in that event, appropriate authority shall consider the case of the petitioners / other candidates for giving admission in Ayush Course i.e. BAMS and BUMS in the light of the directions given by other High Courts, as stated herein above. The admission be given to meritorious students.
Learned counsel for the respondents pray for and are granted four weeks time to file counter affidavit. Rejoinder affidavit, if any, be filed within two weeks thereafter.
List thereafter.
(Saurabh Lavania,J.) (Anil Kumar,J.) Order Date :- 30.9.2019/dk