SHUBHAM SUDHARKAR BIRAJDAR Vs. UNION OF INDIA

JUDGEMENT

(1.) The Petition discloses a very disturbing state of affairs. There is an attempt made to seek continued protection to the Petitioner's admission to the 3rd Respondent, Homeopathic Medical College in Solapur. The Petitioner claims to have passed his SCC in March 2019 with 90.80% and 12th standard HSC with 94.67%. But the Petition itself says in paragraph 4 that in the NEET examination for medical admissions, the Petitioner scorecard showed that he had managed to gain only 49 out of 720 marks. This is undisputed because it is part of the Petition itself as can be seen from Exhibit "F" which is at page 53 and the tabulation at page 54. This is therefore not a question of a regulation that raises the issue of a percentile although that might also apply. This is a question of whether the Petitioner meets a minimum qualifying level or standard at all on any metric. The Petitioner has not been allotted a seat at the 8th Respondent College through the usual process but has gained direct admission from the 8th Respondent College against apparently some vacancy. This was apparently done after all rounds of counselling and admission were over.

(2.) The fact that there is a vacancy, and this aspect of the law is also well settled by the Supreme Court, does not mean that students who do not meet a minimum standard can be admitted. Indeed, Supreme Court decisions indicate that the view preferred is that it is better to let a seat remain vacant rather than have it filled up at any cost. The attempted reliance by the Petitioner on decisions of the Karnataka High Court (Exhibit "L") and orders of the Delhi High Court (Exhibit "M") are of no avail. The Delhi High Court Division Bench order is an interim order and is not a judgment properly so called. The Karnataka High Court order is under challenge in a Special Leave Petition before the Supreme Court. The argument before the Division Bench in Karnataka High Court turned on a question of doctrine of proportionality and one of the submissions seems to have been (internal page 18, brief page 144) that the Petitioner should be allowed to be admitted on the basis of academic eligibility. Even decisions of the Supreme Court cited before and reflected in the Karnataka High Court judgment echo what we have said above, namely that while institutions have certain rights, they have corresponding responsibilities to select meritorious and suitable candidates.

(3.) For reasons that it set out, the Karnataka High Court held that the Ayush Ministry Guidelines dtd. 18/10/2022 and the Regulations framed by the National Commission for Homeopathy on 6/12/2022 would not apply to the admission process to Bachelor of Homeopathic Medicine and Surgery ("BHMS") undergraduate courses that had already commenced from 19/7/2022. Secondly, the Division Bench held that the Government Order of 13/12/2022 making the 2022 Regulations applicable to admissions to BHMS undergraduate courses for the academic session 2022-2023 were quashed.