Hon'ble Prakash Padia,J.
1. Heard Shri Alok Kumar Yadav, learned counsel for the petitioner and Shri Sanjeev Kumar Rai, learned counsel for the respondent nos. 1 to 8.
2. The petitioner has preferred the present writ petition with a prayer to issue a writ, order or direction including a writ in the nature of certiorari to quash the orders/letters dated 21.9.2018 and 26.9.2018 respectively issued by the respondent nos. 1 & 2. A further prayer was made to issue a mandamus directing the respondent no. 3 to permit the petitioner to take admission in MD (Homeopathic) Course. Subsequently, a further prayer was added with the permission of the Court to issue a writ, order or direction in the nature of certiorari to quash the order/letter dated 26.10.2018 and letter/order dated 5.11.2018 respectively passed by the respondent nos. 1 & 2 (Annexure-13A & 13B) so far as it prescribed cutoff marks for Other Backward Class category as 45 percentile.
3. During the course of arguments counsel for the petitioner relied upon an interim order granted by the Karnataka High Court in Writ Petition No. 41486-534 of 2018. Apart from the same, an order passed by the Rajasthan High Court at Jodhpur in SB Civil Writ No. 17431 of 2018 dated 10.11.2018 was also placed on record. By the aforesaid Division Bench of Karnataka High Court, directions were given to the State Government by way of interim order to issue a paper publication on or before 15.10.2018 calling upon all the NEET qualified candidates seeking admission for Ayush courses to either approach KAE and in respect of the seats which are to be filled by the respective colleges providing for Ayush courses to approach the college before 25.10.2018. It is further provided that if during such period NEET qualified candidates make such application at the outset they shall be considered on their order of merit for the seats which are available under all the categories to complete the admission. It is further provided that after the said process, if there are no NEET qualified candidates and the seats under the difference quota remained vacant and subsequent thereto if the candidate, who had not appeared for NEET examination, but have the minimum qualification to undergo the Ayush course as provided, approach the college, the list of such candidate shall be prepared in order of merit for admission in the college. Almost similar view was taken by the Rajasthan High Court in SB Civil Writ No. 17431 of 2018.
4. It was further submitted that that in a batch of writ petitions led by Misc. Single No.18464 of 2018 (Pradeep Kumar Chaudhary and Ors. Vs. Union of India) this Court at Lucknow has passed an order wherein certain directions have been issued.
5. We have perused the orders passed by the Karnataka High Court, Rajasthan High Court as well as the Lucknow Bench of this Court. All the aforesaid orders are interlocutory in nature and in all the orders it is provided that the admission granted under the orders of the Court shall be subject to the final decision of the writ petition.
6. It is trite that ordinarily the Court should not pass an order for admission in professional courses by an interim order. In Medical Council of India v. Rajiv Gandhi University of Health Sciences and others (2004) 6 SCC 76, it was observed :-
"14. In the normal circumstances, the High Court ought not to issue an interim order when for the earlier year itself permission had not been granted by the Council. Indeed, by grant of such interim orders students who have been admitted in such institutions would be put to serious jeopardy, apart from the fact whether such institutions could run the medical college without following the law. Therefore, we make it clear that the High Court ought not to grant such interim orders in any of the cases where the Council has not granted permission in terms of Section 10-A of the Medical Council Act. If interim orders are granted to those institutions which have been established without fulfilling the prescribed conditions to admit students, it will lead to serious jeopardy to the students admitted in these institutions."
7. In Medical Council of India v. Kalinga Institute of Medical Sciences (KIMS) and others, (2016) 11 SCC 530 the Supreme Court held thus :
"27. That apart, we are of the opinion that the High Court ought to have been more circumspect in directing the admission of students by its order dated 25-9-2015, Kalinga Institute of Medical Sciences v. Union of India, W.P. (C) No.15685 of 2015, order dated 25.9.2015 (Ori). There was no need for the High Court to rush into an area that MCI feared to tread. Granting admission to students in an educational institution when there is a serious doubt whether admission should at all be granted is not a matter to be taken lightly. First of all the career of a student is involved -- what would a student do if his admission is found to be illegal or is quashed? Is it not a huge waste of time for him or her? Is it enough to say that the student will not claim any equity in his or her favour? Is it enough for student to be told that his or her admission is subject to the outcome of a pending litigation? These are all questions that arise and for which there is no easy answer. Generally speaking, it is better to err on the side of caution and deny admission to a student rather than have the sword of Damocles hanging over him or her. There would at least be some certainty.
28. Whichever way the matter is looked at, we find no justification for the orders passed by the High Court, particularly the order dated 25-9-2015 and order dated 4-3-2016." Kalinga Institute of Medical Sciences v. Union of India, 2016 SCC Online Ori.134."
8. Further, in Dental Council of India v. Dr. Hedgewar Smruti Rugna Seva Mandal Hingoli and Others (2017) 13 SCC 155, it was observed :-
"22. From the aforesaid authorities, it is perspicuous that the court should not pass such interim orders in the matters of admission, more so, when the institution had not been accorded approval. Such kind of interim orders are likely to cause chaos, anarchy and uncertainty. And, there is no reason for creating such situations. There is no justification or requirement. The High Court may feel that while exercising power under Article 226 of the Constitution, it can pass such orders with certain qualifiers as has been done by the impugned order, but it really does not save the situation. It is because an institution which has not been given approval for the course, gets a premium. That apart, by virtue of interim order, the Court grants approval in a way which is the subject-matter of final adjudication before it. The anxiety of the students to get admission reigns supreme as they feel that the institution is granting admission on the basis of an order passed by the High Court. The institution might be directed to inform the students that the matter is sub judice, but the career oriented students get into the college with the hope and aspiration that in the ultimate eventuate everything shall be correct for them and they will be saved. It can be thought of from another perspective, that is, the students had deliberately got into such a situation. But it is seemly to note that it is the institution that had approached the High Court and sought a relief of the present nature. By saying that the institution may give admission at its own risk invites further chaotic and unfortunate situations.
23. The High Court has to realise the nature of the lis or the controversy. It is quite different. It is not a construction which is built at the risk of a plaintiff or the defendant which can be demolished or redeemed by grant of compensation. It is a situation where the order has the potentiality to play with the career and life of young peoples. One may say, "... life is a foreign language; all mispronounce it", but it has to be borne in mind that artificial or contrived accident is not the goal of life. ......."
9. By the aforesaid orders the Supreme Court was pleased to hold that the High Court was not justified in passing the interim directions and permitting the students to go ahead with provisional admissions.
10. Similar view has been taken by the Supreme Court in the case of Medical Council of India Vs. N. C. Medical College and Hospital and others, 2018 (3) ESC 389 SC wherein the Court has observed that the High Court was not justified in passing the interim directions and permitting the respondents college to go ahead with provisional admissions. The paragraph 14 of the aforesaid judgement is quoted herein below:-
"14. In the backdrop of the law laid down by this Court, the High Court was not justified in passing interim directions and permitting the Respondent College to go ahead with provisional admissions for the Academic Session 2018-19. We, therefore, allow this appeal and set aside the order dated 29.05.2018 passed by the High Court."
11. In view of the law laid down by the Apex Court in the aforementioned cases, in our opinion it is not a fit case for grant of any interim protection to the petitioner. As regards the order of this Court passed at Lucknow is concerned, a perusal of the order shows that said order has been passed at the suggestion of the learned Advocate General. Since the said order is a consent order the parties are free to act upon said order. Our order will not cause any prejudice to the parties concerned.
12. Since the affidavits have already been exchanged, we direct the office to list this case for final disposal in the week commencing 21.1.2019.
Order Dated:-20.12.2018 M.A. Ansari/Pramod