Gujarat High Court
Prati Shailesh Patel vs State Of Gujarat on 16 August, 2016
Equivalent citations: AIR 2016 (NOC) 695 (GUJ.)
Author: R. Subhash Reddy
Bench: R.Subhash Reddy, Vipul M. Pancholi
C/SCA/9915/2016 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 9915 of 2016
With
SPECIAL CIVIL APPLICATION NO. 10005 of 2016
With
SPECIAL CIVIL APPLICATION NO. 10740 of 2016
With
SPECIAL CIVIL APPLICATION NO. 10210 of 2016
With
SPECIAL CIVIL APPLICATION NO. 10561 of 2016
With
SPECIAL CIVIL APPLICATION NO. 12718 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
==========================================================
1 Whether Reporters of Local Papers may be
allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the
fair copy of the judgment ?
4 Whether this case involves a substantial
question of law as to the interpretation
of the Constitution of India or any order
made thereunder ?
==========================================================
PRATI SHAILESH PATEL....Petitioner(s)
Versus
STATE OF GUJARAT....Respondent(s)
==========================================================
Appearance in SCA 9915 OF 2016:
MR DC DAVE, SENIOR ADVOCATE WITH MR. JIGAR M PATEL,
ADVOCATE for the Petitioner(s) No. 1
MR KAMAL TRIVEDI, ADVOCATE GENERAL with MS SANGEETA
VISHEN, AGP for the Respondent(s) No. 1
Appearance in SCA 10005 OF 2016:
MR ND NANAVATI, SENIOR ADVOCATE WITH MR.MITUL K. SHELAT,
Page 1 of 103
HC-NIC Page 1 of 103 Created On Wed Aug 17 02:57:12 IST 2016
C/SCA/9915/2016 CAV JUDGMENT
ADVOCATE for the Petitioner(s) No. 1
MR KAMAL TRIVEDI, ADVOCATE GENERAL with MS SANGEETA
VISHEN, AGP for the Respondent(s) No. 1
Appearance in SCA 10210 OF 2016:
MR SN SHELAT, SENIOR ADVOCATE WITH MR. GUNVANT R THAKAR,
ADVOCATE for the Petitioner(s) No. 1
MR KAMAL TRIVEDI, ADVOCATE GENERAL with MS SANGEETA
VISHEN, AGP for the Respondent(s) No. 1
Appearance in SCA 10740 OF 2016:
MR. TEJAS P SATTA, ADVOCATE for the Petitioner(s) No. 1
MR KAMAL TRIVEDI, ADVOCATE GENERAL with MS SANGEETA
VISHEN, AGP for the Respondent(s) No. 1
Appearance in SCA 10561 OF 2016:
MS SALONI M. SHAH, ADVOCATE for the Petitioner(s) No. 1
MR KAMAL TRIVEDI, ADVOCATE GENERAL with MS SANGEETA
VISHEN, AGP for the Respondent(s) No. 1
Appearance in SCA 12718 OF 2016:
MR DC DAVE, SENIOR ADVOCATE WITH MR. JIGAR M PATEL,
ADVOCATE for the Petitioner(s) No. 1
MR KAMAL TRIVEDI, ADVOCATE GENERAL with MS SANGEETA
VISHEN, AGP for the Respondent(s) No. 1
==========================================================
CORAM: HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 16/08/2016
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI)
1. In all these petitions the issue involved is common and therefore the same are taken up for hearing together with the consent of the learned advocates for the parties and are disposed of by this common judgment.
2. In all these petitions, the concerned petitioners have challenged the ordinance No.2 of 2016 promulgated on 10.06.2016 under the nomenclature of the Gujarat Professional Medical Educational Colleges or Institutions (Regulation Page 2 of 103 HC-NIC Page 2 of 103 Created On Wed Aug 17 02:57:12 IST 2016 C/SCA/9915/2016 CAV JUDGMENT of Admission and Fixation of Fees) (Amendment) Ordinance, 2016 (hereinafter referred to as the Ordinance 2 of 2016). It is prayed that the said ordinance be declared as ultra vires and the same be quashed and set aside.
3. Petition being Special Civil Application No.10005 of 2016 is filed by consortium of self- financed dental colleges whereas all the other petitions are filed by the students through their guardian.
Special Civil Application No.9915 of 2016
4. The petitioner, though Indian by origin, is the citizen of United States of America. Petitioner is having her permanent residence with her parents in the United States and therefore qualifies as Non-Resident Indian (NRI)for all purpose. Petitioner has studied all throughout in the United States of America till the petitioner graduated from High School in the month of May 2016. It is the case of the petitioner that the parents of the petitioner made an inquiry about the prospects of the petitioner for further studies in the State of Gujarat in the discipline of Medicine upon completion of her High School Graduation from United States of America in the academic year 2015-2016. At that time, it was revealed that petitioner would be eligible for Page 3 of 103 HC-NIC Page 3 of 103 Created On Wed Aug 17 02:57:12 IST 2016 C/SCA/9915/2016 CAV JUDGMENT admission in the order of merit in the academic year 2016-2017 in 15% of the total available seats at the colleges earmarked for NRI as unaided colleges under the provisions of Gujarat Professional Medical Educational Colleges or Institutions (Regulation of Admission and Fixation of Fees) Act, 2007 (hereinafter referred to as the Act of 2007) for the concerned course in the discipline of Medicine.
4.1. Learned Senior Counsel Mr.D.C.Dave referred to the provisions contained in the Act of 2007 for NRI seats and the genesis thereof. Learned counsel submitted that the Hon'ble Supreme Court in its decision rendered in the case of P.A.Inamdar v. State of Maharashtra, reported in (2005) 6 SCC 537 observed in para 131 as under:
"131. Here itself we are inclined to deal with the question as to seats allocated for Non-Resident Indians ('NRI', for short) or NRI seats. It is common knowledge that some of the institutions grant admissions to certain number of students under such quota by charging a higher amount of fee. In fact, the term 'NRI' in relation to admissions is a misnomer. By and large, we have noticed in cases after cases coming to this Court, neither the students who get admissions under this category nor their parents are NRIs. In effect and reality, under this category, less meritorious students, but who can afford to bring more money, get admission. During the course of hearing, it was pointed out that a limited number of such seats should be made available as Page 4 of 103 HC-NIC Page 4 of 103 Created On Wed Aug 17 02:57:12 IST 2016 C/SCA/9915/2016 CAV JUDGMENT the money brought by such students admitted against NRI quota enables the educational institutions to strengthen its level of education and also to enlarge its educational activities. It was also pointed out that people of Indian origin, who have migrated to other countries, have a desire to bring back their children to their own country as they not only get education but also get reunited with Indian cultural ethos by virtue of being here. They also wish the money which they would be spending elsewhere on education of their children should rather reach their own motherland. A limited reservation of such seats, not exceeding 15%, in our opinion, may be made available to NRIs depending on the discretion of the management subject to two conditions. First, such seats should be utilized bona fide by the NRIs only and for their children or wards. Secondly, within this quota, the merit should not be given a complete go-by. The amount of money, in whatever form collected from such NRIs, should be utilized for benefiting students such as from economically weaker sections of the society, whom, on well defined criteria, the educational institution may admit on subsidized payment of their fee. To prevent misutilisation of such quota or any malpractice referable to NRI quota seats, suitable legislation or regulation needs to be framed. So long as the State does not do it, it will be for the Committees constituted pursuant to Islamic Academy's direction to regulate."
4.2. It is contended that with effect from the academic year 2005-2006, in the State of Gujarat in all unaided colleges imparting education in Page 5 of 103 HC-NIC Page 5 of 103 Created On Wed Aug 17 02:57:12 IST 2016 C/SCA/9915/2016 CAV JUDGMENT the professional courses in various discipline at various levels including medicine, seats to the extent of 15% of total available seats came to be reserved for NRI. Thereafter, the Act of 2007 was enacted by the state legislature wherein also Section 2(h) and 2(i) of the Act referred to NRI seats. By way of the said provision, 15% quota was earmarked for NRI seats from 25% quota of management seats.
4.3. It is contended that now the impugned ordinance 2 of 2016 has been promulgated by His Excellency Governor of Gujarat while exercising powers conferred under Article 213(1) of Constitution of India, whereby from the Act of 2007, 15% NRI quota has been deleted. Learned counsel has referred to the impugned ordinance.
4.4. Learned senior counsel Mr. Dave assailed the ordinance mainly on the following grounds:
4.5. When the provision of earmarking of 15% seats of NRI was there prior to the Act of 2007 as desired by the management of the concerned colleges in view of the declaration of law made by the Hon'ble Supreme Court in the case of P.A.Inamdar (supra) and when the same arrangement continued thereafter under the Act of 2007 without any interruption, it is not possible to comprehend and appreciate the existence of Page 6 of 103 HC-NIC Page 6 of 103 Created On Wed Aug 17 02:57:12 IST 2016 C/SCA/9915/2016 CAV JUDGMENT special circumstance warranting the impugned ordinance at a stage when the process for admission for the academic year 2016-17 is about to commence. At this stage, it is further contended that similar provision in same words contained in the parallel statute, viz. Gujarat Professional Technical Educational Colleges or Institutions (Regulation of Admission and Fixation of Fees) Act, 2007 governing the field of admission to the technical colleges, is still continuing. Thus, the impugned ordinance 2 of 2016 would be applicable to medical, dental and para-medical courses only from where 15% NRI quota has been deleted, whereas in other technical branches like engineering, pharmacy, law, management, etc. such quota is kept as it is. It is further contended that all the colleges and institutions across the nation engaged in imparting education on the pattern of self financing as the unaided colleges and institutions in various disciplines at various levels for the concerned courses qualifying as professional courses in generic sense form one homogeneous class or group. Thus, by segregating the medical and other professional colleges and institutions falling under the purview of Act of 2007 from the provision for creation of quota of seats for NRI, amounts to creating a class within a class without any intelligible differentia Page 7 of 103 HC-NIC Page 7 of 103 Created On Wed Aug 17 02:57:12 IST 2016 C/SCA/9915/2016 CAV JUDGMENT having any nexus with the object sought to be achieved. Thus, the impugned ordinance is hit by mandate of Article 14 of the Constitution of India.
4.6. Learned counsel Mr. Dave thereafter urged that the provision for the quota of seats for NRI in the Act of 2007 is having its genesis in the declaration of law laid down by the Hon'ble Supreme Court in the case of P.A.Inamdar (supra).
The declaration so made by the Hon'ble Supreme Court falls under Article 142 of the Constitution of India and hence the same is required to be respected, followed and complied with till a suitable legislation in terms thereof is passed. Thus, such declaration under Article 142 of the Hon'ble Supreme Court operates as central legislation and the State Government has no competence or power to come out with the ordinance and wipe out the NRI quota. Thus, the impugned ordinance qualifies as the legislation aimed at defeating or destroying the legislation already introduced in the form of the provision as per the Act of 2007 for implementing such declaration.
4.7. Learned counsel Mr. Dave for the petitioner would contend that barring the State of Gujarat no other State has deleted NRI quota which was made available pursuant to the declaration made Page 8 of 103 HC-NIC Page 8 of 103 Created On Wed Aug 17 02:57:12 IST 2016 C/SCA/9915/2016 CAV JUDGMENT by the Hon'ble Supreme Court in the case of P.A.Inamdar (supra) and therefore there is no justification for the respondent State Government for deletion of NRI quota.
4.8. Learned counsel Mr. Dave thereafter referred to the statement and object for issuance of impugned ordinance 2 of 2016. After referring to the same, learned counsel submitted that mainly three reasons are assigned for issuance of such ordinance viz. (i) it has been experienced for quite some time that insofar as the NRI seats are concerned, the benefit of the said seats is not fully taken by the NRIs and most of the seats are filled in by those who are sponsored by such NRIs. Thus, the purpose for which the NRI seats are earmarked is not fully served, (ii) it has been experienced that those students who complete their course on the NRI seats do not stay back to serve in the rural areas of the State where there is an acute shortage of medical practitioners and
(iii) as such in order that more seats become available to the local students and the rural areas of the State get the services of more medical practitioners, it is considered necessary to do away with the NRI seats in the professional medical educational colleges or institutions. Therefore, provision with regard to NRI seats are deleted to achieve the purpose. Learned counsel submitted that all the three objects for which Page 9 of 103 HC-NIC Page 9 of 103 Created On Wed Aug 17 02:57:12 IST 2016 C/SCA/9915/2016 CAV JUDGMENT the NRI quota is deleted are arbitrary, unreasonable and there is total non-application of mind on the part of the respondent Government.
4.9. It is contended that in Section 2(i) of the Act of 2007 itself it is provided that NRI seats means 15% seats reserved for children or wards or the dependents for the education purpose of the NRI to whom admission is to be given in the professional educational colleges or institutions. Thus, when the word 'dependents' itself mentioned in the definition, the reason given by the respondent State is nothing but non- application of mind. At this stage, it is contended that at the most the respondent State could have deleted the word 'dependents' from the said definition but entire NRI quota could not have been deleted.
4.10. It is further submitted that proviso to Section 6 of the Act of 2007 provides that where any NRI seat remains vacant, such seat shall be filled in from the management seats. Thus, the reason given in the statement while issuing ordinance is a non-application of mind. It is further submitted that there is no obligation on the part of any of the student who is taking admission on the quota of management seats to give bond that they will serve in the rural area for stipulated time. Such bond is required only Page 10 of 103 HC-NIC Page 10 of 103 Created On Wed Aug 17 02:57:12 IST 2016 C/SCA/9915/2016 CAV JUDGMENT in Government colleges or for Government seats. Therefore, the question of students admitted on the quota meant for NRI not serving at rural area does not arise at all. Besides this, the students passing out from Government and aided colleges and institutions are permitted to get out of their obligation to serve the rural areas for the specified year on account of the provision for the same made in the concerned bond which provides for discharge of such obligation on payment of the specified amount.
4.11. Thus, deletion of quota meant for NRI is not going to solve the issue complained of. Hence, there is non-application of mind on the part of the respondent State for deletion of NRI quota on the grounds mentioned in the statement. Hence, the impugned ordinance 2 of 2016 be quashed and set aside.
4.12. Learned counsel thereafter submitted that deletion of NRI quota is not permissible. Learned counsel has placed reliance upon the decision rendered by the Hon'ble Supreme Court in the case of S.T.Sadiq v. State of Kerala and others, reported in 2015(4) SCC 400, wherein the Hon'ble Supreme Court has observed in para 13 as under:
Page 11 of 103HC-NIC Page 11 of 103 Created On Wed Aug 17 02:57:12 IST 2016 C/SCA/9915/2016 CAV JUDGMENT "13. It is settled law by a catena of de-
cisions of this Court that the legislature cannot directly annul a judgment of a court. The legislative function consists in "making" law [see: Article 245 of the Constitution] and not in "declaring" what the law shall be [see: Article 141 of the Constitution]. If the legislature were at liberty to annul judgments of courts, the ghost of bills of attainder will revisit us to enable legislatures to pass legis- lative judgments on matters which are inter-parties. Interestingly, in England, the last such bill of attainder passing a legislative judgment against a man called Fenwick was passed as far back as in 1696. A century later, the US Constitution ex- pressly outlawed bills of attainder [see:
Article 1 Section 9]."
4.13. Learned counsel Mr. Dave thereafter referred to the affidavit-in-reply filed by the State Government and more particularly para 7 thereof wherein it has been stated that during last three years, out of total 826 NRI seats, only 220 genuine NRIs have taken the admission, whereas 606 sponsored NRIs have taken admission on such seats in the self financed medical colleges. He, therefore, submitted that if 220 genuine NRIs have taken admission on the NRI quota, the respondent State ought to have permitted such quota for genuine NRIs. At this stage, learned counsel referred to the affidavit-
in-rejoinder filed by the petitioner and more particularly para 17 thereof and pointed out that petitioner has collected necessary data in this Page 12 of 103 HC-NIC Page 12 of 103 Created On Wed Aug 17 02:57:12 IST 2016 C/SCA/9915/2016 CAV JUDGMENT regard from the concerned college i.e. college situated at Karamsad. As per the information, during the period between 2006-07 to 2015-16, in all 128 students secured admission in the quota of seats meant for NRI. Out of 128 students, in all 60 were the students falling in the category of genuine NRI. He, therefore, submitted that respondent State has without application of mind issued the impugned ordinance and therefore the same be quashed and set aside.
4.14. Learned counsel Mr. Dave thereafter referred to paragraph 10 of the affidavit-in- reply filed by the respondent State wherein it has been stated that by deleting quota of NRI seats, a liberty is given to the management to fill in all 25% seats on their own in order of merit. It is further submitted that by earmarking 15% seats for admission to NRIs, the institutions would get the financial aid from the NRIs who would like to get their children, wards admitted in medical colleges on NRI quota. With a view to taking care of the situation, State is determined to see that such institutions are allowed to increase the fees on pro rata basis with respect to all of their management seats in such a fashion that thereby the differential amount which they were used to receive from the NRIs can be taken care of. Learned counsel Mr. Dave therefore submitted that if the management is Page 13 of 103 HC-NIC Page 13 of 103 Created On Wed Aug 17 02:57:12 IST 2016 C/SCA/9915/2016 CAV JUDGMENT allowed to charge higher fees on management seats, it would amount to capitation fees. Charging of capitation fees is absolutely impermissible in law. At this stage, learned counsel referred to Section 12 of the Act of 2007 which prohibits charging of capitation fees.
4.15. Learned counsel submitted that Hon'ble Supreme Court permitted charging of higher fees in respect of NRI seats in its pronouncement in the case of P.A.Inamdar (supra) and even prior thereto vide its concerned pronouncements on the subject mainly on two grounds (1) NRIs form a class by themselves and they have inner desire to bring back their children to India so that while receiving education in India, they can reunite in India with its culture of which they are otherwise deprived of and (2) the money which they would be spending on foreign land for the education of their children is brought back to India in foreign currency to augment the resources of educational institutions in India. Thus, it is contended that charging of higher fees was with a rationale having a nexus with the well defined and permissible object to be achieved. As against this, permitting higher fee in respect of the seats becoming simple management seats on account of abolition of NRI seats by the impugned ordinance will have the Page 14 of 103 HC-NIC Page 14 of 103 Created On Wed Aug 17 02:57:12 IST 2016 C/SCA/9915/2016 CAV JUDGMENT effect of creating a class within the Indians who can afford higher fee simply on the basis of their economic strength. Thus, it will amount to giving preferential treatment to those who are economically powerful. Thus, charging of higher fees is nothing but capitation fees and therefore on this count also the impugned ordinance 2 of 2016 be quashed and set aside.
4.16. Learned Senior Counsel Mr. Dave further submitted that because of the policy prevailing in the State of Gujarat pursuant to the Act of 2007, petitioner had not taken admission in USA and the petitioner was legitimately expected that the admission will be given to her on the quota of NRI seat. It is therefore, contended that without prejudice to the aforesaid contentions, for the current academic year the impugned ordinance may not be implemented and the impugned ordinance be read down and can be made applicable to NRI dependents only.
4.17. Learned counsel Mr. Dave submitted that petitioner who has completed her study at USA has not taken admission at USA or elsewhere under the expectation that in view of the prevailing policy of the State of Gujarat of giving admission on NRI seats. Hence, the respondent State be directed not to implement the ordinance 2 of 2016 from this academic year because of legitimate Page 15 of 103 HC-NIC Page 15 of 103 Created On Wed Aug 17 02:57:12 IST 2016 C/SCA/9915/2016 CAV JUDGMENT expectation of the petitioner. In support of contention, learned counsel has placed reliance upon the decision rendered by the Hon'ble Supreme Court in the case of Maharshi Mahesh Yogi Vedic Vishwavidyalaya v. State of M.P. & Ors, reported in (2013) 15 SCC 677.
4.18. Learned counsel has referred to concept of reading down and reading into as per the observations made by the Hon'ble Supreme Court in the case Namit Sharma v. Union of India, reported in (2013) 1 SCC 745, more particularly observations made in para 51 and 61. Learned counsel has also placed reliance upon the judgment dated 27.08.2013 rendered by the Division Bench of this Court in Special Civil Application No.12255 of 2013 and the decision of this Court in the case of Shah Forum Umeshbhai (Minor) v. Justice R.J.Shah (Retd.) Admission Committee (Medical), reported in 2007(0) GLHEL-HC 228821, the decisions of Hon'ble Supreme Court in the case of Laxmidas Morarji (Dead) by Lrs. V. Behrose Darab Madan, reported in (2009) 10 SCC 425, in the case of S.R.Bhagwat & Ors. V. State of Mysore, reported in (1995) 6 SCC 16, in the case of State of Himachal Pradesh v. Narain Singh, reported in (2009) 13 SCC 165.
Special Civil Application No.10005 of 2016 Page 16 of 103 HC-NIC Page 16 of 103 Created On Wed Aug 17 02:57:12 IST 2016 C/SCA/9915/2016 CAV JUDGMENT
5. This petition is filed by a consortium of unaided dental colleges and institutions imparting education in graduate and postgraduates professional dental courses in the State of Gujarat. The members of petitioner are affiliated with different statutory universities in the State of Gujarat. None of the member college receives any aid from the State Government and each of the member college is unaided private institution and falls within the definition of 'unaided college or institution' as defined under Section 2(m) of the Act of 2007.
5.1. Learned Senior Counsel Mr. N.D.Nanavati appearing with learned advocate Mr. Mitul Shelat for the petitioner at the outset referred the decision rendered by the Hon'ble Supreme Court in the case of Islamic Academy of Education & Anr. v. State of Karnataka & Ors., reported in (2003) 6 SCC 697 and submitted that in unaided professional institutions there will be full autonomy in their administration. However, the principle of merit cannot be sacrificed. The management can have quota for admitting students at its discretion but subject to satisfying the test of merit based admissions which can be achieved by allowing management to pick up students of their own choice from out of those who have passed the common entrance test conducted by a centralized mechanism. The Page 17 of 103 HC-NIC Page 17 of 103 Created On Wed Aug 17 02:57:12 IST 2016 C/SCA/9915/2016 CAV JUDGMENT prescription for percentage of seats that is allotment of different quotas such as management seats, government seats appropriated by the State for allotment to reserved categories etc. has to be done by the State in accordance with the local needs.
5.2. Thereafter, learned counsel referred to the decision rendered by the Hon'ble Supreme Court in the case of P.A.Inamdar (supra) and submitted that the decision rendered in the case of Islamic Academy of Education & Anr. (supra) has been overruled. Learned counsel referred paragraph 126 to 130 and 131 of the decision in the case of P.A.Inamdar (supra) wherein the Hon'ble Supreme Court has held as under:
"I. To grant admission has been held to be a fundamental right of the unaided private professional educational institutions.
II. It has been held that the State Government has no power to insist or provide for seat sharing in unaided private professional educational institutions by fixing a quota of seats between the management and the State.
III. The scheme evolved in Islamic Academy to the extent it allowed the states to fix quota for seats between the management and the States has been disapproved.
IV A limited reservation of seats, not exceeding 15%, was recognised for NRIs depending on the discretion of the Page 18 of 103 HC-NIC Page 18 of 103 Created On Wed Aug 17 02:57:12 IST 2016 C/SCA/9915/2016 CAV JUDGMENT management subject to two conditions, First, such seats should be utilized bona fide by the NRIs only and for their children or wards. Secondly, within this quota, the merit should not be given a complete go-by.
5.3. Thus, the petitioner is having fundamental right to run the college as well as admit the students subject to reasonable check by the State Government.
5.4. Learned counsel thereafter submitted that the State had provided for a State quota in each of the college of the petitioner consortium without the consensus of the petitioner and therefore such action of the State Government was challenged by the petitioner by filing petition being Special Civil Application No.18234 of 2011 before this Court. During the hearing of the said petition, consensus was arrived at between the State and the petitioner bifurcating the seats at the level of graduation at 75:25 and at the level of post graduation 50:50 between the State and the management. The said petition was accordingly disposed of by an order dated 30.03.2012 recording such consensus. Learned counsel referred to the said order which is produced at page 44 of the compilation.
5.5. Learned Senior Counsel Mr. Nanavati thereafter submitted that the said settlement was Page 19 of 103 HC-NIC Page 19 of 103 Created On Wed Aug 17 02:57:12 IST 2016 C/SCA/9915/2016 CAV JUDGMENT challenged by the students by filing Special Civil Application No.4953 of 2012 and Special Civil Application No.7475 of 2012. The Division Bench of this Court, by an order dated 23.08.2012, set aside the aforesaid settlement.
5.6. At this stage, it is submitted that the order dated 23.08.2012 passed by the Division Bench of this Court is challenged by filing Special Leave Petition No.25699, 25670 and allied matters of 2012 before the Hon'ble Supreme Court. The Hon'ble Supreme Court has granted stay initially for a period of 10 days and thereafter it has been confirmed. Thus, the settlement arrived at between the petitioner and the State Government is, in force. It is further submitted that aforesaid SLPs are still pending before the Hon'ble Supreme Court. Learned Senior Counsel therefore would contend that when the settlement arrived at between the petitioner and State is in force, it is not proper on the part of the respondent State to issue impugned ordinance 2 of 2016 without taking permission of the Hon'ble Supreme Court or without seeking clarification from the Hon'ble Supreme Court or from this Court and therefore on this count also the impugned ordinance be quashed and set aside.
5.7. Learned Senior Counsel thereafter contended that by amending the Act of 2007 by promulgating Page 20 of 103 HC-NIC Page 20 of 103 Created On Wed Aug 17 02:57:12 IST 2016 C/SCA/9915/2016 CAV JUDGMENT impugned ordinance, the State Government is seeking to prevent admission of NRI and their wards in unaided colleges which is in effect interfering in the source of admission and the State is not competent to do so in view of the declaration made by the Hon'ble Supreme Court under Article 142 of the Constitution of India in the case of P.A.Inamdar (supra).
5.8. It is next contended that the impugned ordinance seeks to abolish the NRI seats in professional medical and dental colleges run by unaided educational institutions and thereby imposed the selection policy of the State upon unaided colleges. Such imposition in the admission policy is declared to be an unreasonable restriction upon the fundamental right guaranteed under Article 19(1)(g) of the Constitution of India and therefore on this ground also the impugned ordinance be quashed and set aside.
5.9. Learned Senior Counsel thereafter urged that the respondent State has permitted to continue NRI quota in all faculties except medical, dental and para-medical faculties in the State of Gujarat. Such NRI quota is available in engineering, architecture programmes, courses offered by Gujarat National Law University and other management courses and therefore the Page 21 of 103 HC-NIC Page 21 of 103 Created On Wed Aug 17 02:57:12 IST 2016 C/SCA/9915/2016 CAV JUDGMENT impugned ordinance is violative of Article 14 of the Constitution of India.
5.10. Learned Senior Counsel thereafter urged that the statement of object while issuing the impugned ordinance is unreasonable and total non- application of mind on the part of the respondent State. It is contended that in the dental colleges, there is no question of serving in the rural areas of State. It is further submitted that by observing that more seats become available to the local students, such ordinance is issued, learned Senior Counsel has referred to the observations made by the Hon'ble Supreme Court in the case of P.A.Inamdar (supra) in para 130 and submitted that local needs cannot be the criteria for granting the admission. The wholesale reservation is not permissible and not approved by this Court as well as the Hon'ble Supreme Court. Learned counsel has placed reliance upon the decision rendered by the Hon'ble Supreme Court in the case of Pradeep Jain v Union of India, reported in (1984) 3 SCC 654 and the decision in the case of Priyanka Verma C/O Vishambhar Nath Verma v. State of Gujarat, reported in 2012 (3) G.L.R. 1880 (F.B.).
5.11. Learned counsel thereafter referred to the decision rendered by this Court in the case of Kolasani Sai Yashwanth Reddy v. State of Page 22 of 103 HC-NIC Page 22 of 103 Created On Wed Aug 17 02:57:12 IST 2016 C/SCA/9915/2016 CAV JUDGMENT Gujarat, reported in AIR 2015 Gujarat 188 and submitted that impugned ordinance is promulgated with a view to nullify the effect of the aforesaid judgment rendered by this Court.
5.12. Learned counsel has also placed reliance upon the decisions rendered by the Hon'ble Supreme Court in the case of State of Tamil Nadu & Ors. V. K Shyam Snder & Ors., reported in (2011) 8 SCC 737 and in case of S.T.Sadiq (supra) in support of his contentions. Learned Senior Counsel has also relied upon the decision of Hon'ble Supreme Court in case of T.M.A. Pai Foundation v. State of Karnataka, reported in (2002) 8 SCC 481, decision of Andhra Pradesh High Court in the case of Joseph Sriharsha and Mary Indraja Educational Society v. State of A.P., reported in AIR 2013 Andhra Pradesh 168, decision of Hon'ble Supreme Court in the case of Islamic Academy of Education and Anr. V. State of Karnataka and Ors., reported in 2006 AIR SCW 4061, the decision rendered by the Bombay High Court in the case of Association of Management of Unaided Private Medical College & Dental Colleges v. Pravesh Niyantran Samiti in Writ Petition (L) No.621 of 2015.
5.13. Learned Senior Counsel lastly submitted that the respondent State has filed an affidavit- in-sur-rejoinder wherein it has been stated that Page 23 of 103 HC-NIC Page 23 of 103 Created On Wed Aug 17 02:57:12 IST 2016 C/SCA/9915/2016 CAV JUDGMENT on 4th June 2016 all self financed professional institutions covered under the Act of 2007 were requested to attend the meeting convened on 06.06.2016 under the Chairmanship of Hon'ble Health Minister for discussing the proposed move on the part of the State Government in doing away with 15% of NRI quota seats and convert the same into management seats by effecting amendment in the Act of 2007. It is also stated in the said sur-rejoinder that in the meeting the concerned representatives of all self financed colleges i.e. medical and dental colleges were remained present where the said issue has been discussed. However, learned counsel submitted that no consensus is arrived at in the meeting and representatives of some of the members have not participated. There is no such reference in the impugned ordinance with regard to the consensus arrived at in the said meeting. It is submitted that even if there is consensus arrived at between the parties, they have to approach before the Hon'ble Supreme Court for necessary clarification.
5.14. Alternatively, learned counsel has submitted that the impugned ordinance may not be made applicable qua dental colleges and to that effect the same be quashed and set aside.
Case of the petitioners in Special Civil Page 24 of 103 HC-NIC Page 24 of 103 Created On Wed Aug 17 02:57:12 IST 2016 C/SCA/9915/2016 CAV JUDGMENT Application No.10210 of 2016
6. Learned Senior Counsel Mr. S.N. Shelat appearing with learned advocate Mr.G.R.Thaker for the petitioner in Special Civil Application No.10210 of 2016 mainly submitted that the petitioners of this petition are genuine NRI or NRI proper, the details of which are given in the petition. Learned counsel adopted the submissions canvassed on behalf of learned counsel Mr. D.C.Dave appearing in Special Civil Application No.9915 of 2016. However, in furtherance of such submissions, it is contended that the rule of law is one of the fundamental rights enshrined by the constitutional maker and is engrafted under Article 14 of the Constitution of India. The rule of law implies; (a) any enactment governing public rights and duties is required to be kept open, (b) it should be adequately published, (c) it should be relatively stable and enforceable and (d) rule of law enables the people to make long term planning of their decision on one's individual affairs, more particularly when the Government frames its education policy. The education policy should be relatively stable.
6.1. It is further urged that the parents plan the educational career of their ward, when the ward enters 11th and 12th standard at the High School as to which discipline he should seek Page 25 of 103 HC-NIC Page 25 of 103 Created On Wed Aug 17 02:57:12 IST 2016 C/SCA/9915/2016 CAV JUDGMENT admission and put in study and industry to achieve the same. In the present case, the legislature enacted the Act of 2007 which provides for 15% NRI seats. The parents having relied upon the said provision for NRI may have arranged and planned the career of their wards to seek admission under the said quota. The students having cleared higher secondary examination seek admission at the educational institutions at U.S., Australia, etc. and even seek citizenship of the foreign country. However, in view of the impugned ordinance which delete seats for NRI cannot operate for the academic year 2016-17 in view of the parents having acted under the Act of 2007 for the benefit of their ward.
6.2. Learned counsel Mr. Shelat thereafter submitted that it has been held that law will not permit an unconscionable departure by one party from the subject matter of an assumption which has been adopted by the other party as the basis of some relationship, course of conduct, act or omission which would operate to that other party's detriment if the assumption be not adhered to for the purposes of the litigation.
6.3. At this stage, it is submitted that the assumption may be of fact or law, present or future. That is to say, it may be about the present or future existence of a fact or state of Page 26 of 103 HC-NIC Page 26 of 103 Created On Wed Aug 17 02:57:12 IST 2016 C/SCA/9915/2016 CAV JUDGMENT affairs (including the state of the law or the existence of a legal right, interest or relationship or the content of future conduct).
6.4. Learned counsel therefore submitted that the provision of the Act of 2007 prior to issuance of ordinance for NRI quota may continue to operate for the year 2016-17 having regard to the consequences and legal relationship established and acted under the said Act.
6.5. Learned counsel Mr. Shelat thereafter placed reliance upon Section 7(b) of the Bombay/Gujarat General Clauses Act, which provides as under:
"The effect of repeal:
Repeal shall not affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder."
6.6. In support of the aforesaid submissions, learned counsel Mr. Shelat has placed reliance upon the following decisions rendered by the Hon'ble Supreme Court as well as this Court:
(1) In the case of Kumari Jayshree Chandrachud Dixit v State of Gujarat, reported in 1979 GLR 614 (2) In the case of State of Punjab v. Nestle India Ltd., reported in 2004(6) SCC 465 Page 27 of 103 HC-NIC Page 27 of 103 Created On Wed Aug 17 02:57:12 IST 2016 C/SCA/9915/2016 CAV JUDGMENT (3) In the case of M/s. Manuelsons Hotels Private Limited v. State of Kerala & Ors, reported in JT 2016(5) SC 96 (4) In the case of M/s. Universal Imports Agency and another v. The Chief Controller of Imports and Exports and others, reported in AIR 1961 SC 41 (5) In the case of Neel, Niranjan Majumdar v. the State of W.B., reported in AIR 1972 SC 2066. (6) In the case of State of Punjab v. Nestle India Ltd., reported in 2004 (6) SCC 465.
7. The other petitions are filed by the students and since the facts are similar and learned advocates appearing for the petitioners in those petitions have adopted the arguments as advanced by learned Senior Counsels Mr. Dave, Mr. Nanavati and Mr. Shelat as aforesaid, we would not like to discuss more in this regard.
Submissions of learned Advocate General:
8. On the other hand, learned Advocate General referred to the provisions of the Act of 2007 and thereafter referred to the impugned ordinance and submitted that the State Legislature enacted the Act of 2007 in view of source of power flowing from Article 245 and 246 of the Constitution of India read with entry 25 in the concurrent list in 7th Schedule to the Constitution. It is Page 28 of 103 HC-NIC Page 28 of 103 Created On Wed Aug 17 02:57:12 IST 2016 C/SCA/9915/2016 CAV JUDGMENT submitted that in past, when no sufficient number of Medical and Dental Colleges were there in the State, therefore, very conscious and strenuous attempts were made by the State Government to see that more and more Medical and Dental Colleges establish in the State so that the students of the State may not have to go to other states for pursuing their further study in such colleges. As a result of the said efforts, today there are in all 21 medical colleges under different setups in the State with total number of seats to the tune of 3330. Learned Advocate General referred the details of such medical as well as dental colleges established in the State.
8.1. Learned Advocate General thereafter submitted that it has been the experience of the State Authorities that though self financed medical and dental colleges were allowed to fill in 15% of their total seats by way of NRI students, sufficient number of genuine NRIs were not coming to India for being admitted to such colleges. Most of the students being admitted under the NRI quota have been the local students who have been sponsored under one or the other methods for bringing fees in US dollars. Such sponsored NRI students were also found less meritorious to be admitted in the Medical and Dental Courses. It is pointed out that during Page 29 of 103 HC-NIC Page 29 of 103 Created On Wed Aug 17 02:57:12 IST 2016 C/SCA/9915/2016 CAV JUDGMENT last three academic years, out of 826 total seats in self financed medical colleges, only 220 genuine NRIs have taken the admission, whereas 606 sponsored NRIs were admitted in such colleges. Certain irregularities were also found by the admission committee while giving admission to the students on NRI quota.
8.2. Learned Advocate General thereafter would contend that the ordinance in question came to be promulgated to see that quota of NRI seats is totally deleted from the provisions of the Act of 2007 with a liberty to the management to fill-in all 25% of the said seats on their own in order of merit which will be now as per the performance of the students in NEET examinations. It is contended that the self financed medical and dental colleges were granting admission on 15% seats to NRIs. However, now because of deletion of NRI quota, the State is determined to see that such institutions are allowed to increase the fees on pro rata basis with respect to all of their management seats i.e. 25% seats in such a way that thereby the differential amount which they were used to receive from NRI admissions can be taken care of.
8.3. Learned Advocate General thereafter submitted that the legislature understands and correctly appreciates the need of the society and Page 30 of 103 HC-NIC Page 30 of 103 Created On Wed Aug 17 02:57:12 IST 2016 C/SCA/9915/2016 CAV JUDGMENT that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds. It is always permissible to legislature to recognize degrees of harm and may confine its restrictions to those cases where the need is deemed to be the clearest.
8.4. It is further contended that the Hon'ble Supreme Court in the case of P.A. Inamdar (supra) has made certain observations and suggestions with regard to quota of NRI seats. However, the same cannot be said to be subjected to the discretion of the management of the concerned colleges or the institutions. The decision of the Hon'ble Supreme Court in the aforesaid case does not create any embargo against the State legislature in putting an end to a particular system which was suggested by the Supreme Court, and more particularly, when the State Government comes across various ills in the working of the said system and it is competent to do so in the same manner in which it is competent to enact law in that behalf.
8.5. At this stage, it is submitted that suggestion of creation of NRI seats made by the Hon'ble Supreme Court in the case of P.A.Inamdar (supra) cannot be said to be by way of exercise of powers conferred by Article 142 of the Page 31 of 103 HC-NIC Page 31 of 103 Created On Wed Aug 17 02:57:12 IST 2016 C/SCA/9915/2016 CAV JUDGMENT Constitution as submitted by learned counsel appearing for the petitioners.
8.6. Learned Advocate General thereafter contended that merely because the arrangement for reservation of 15% seats as NRI seats for the children and wards of NRIs continued without there being any interruption since inception of the Act, it cannot be contended that the State legislature has no competence to effect the amendment therein. It is further submitted that medical and dental courses cannot be compared with the engineering course or any other courses like pharmacy, management, law, etc. Therefore, merely because such an amendment is not carried out in Gujarat Professional Technical Educational Colleges or Institutions (Regulation of Admission and Fixation of Fees) Act, 2007, governing the field of admission to the technical colleges, the amendment carried out by the impugned ordinance under the provisions of the Act of 2007 cannot be ipso facto become illegal and result into injustice. It cannot be said that impugned ordinance is violative of Article 14 of the Constitution of India 8.7. Learned Advocate General thereafter submitted that vide communication dated 04.06.2016 all self financed professional institutions covered under the Act of 2007 were Page 32 of 103 HC-NIC Page 32 of 103 Created On Wed Aug 17 02:57:12 IST 2016 C/SCA/9915/2016 CAV JUDGMENT requested to attend the meeting convened on 06.06.2016 under the Chairmanship of Hon'ble Health Minister for discussing the proposed move on the part of the State Government in deleting 15% of NRI quota seats and convert the same into management seats by effecting amendment in the Act of 2007. The said meeting was convened on 06.06.2016 which was attended by the Hon'ble Minister of Health, Additional Chief Secretary of Health, Commissioner of Health and the concerned representatives of all respective self financed educational institutions i.e. medical and dental colleges in the State. Learned Advocate General referred to the attendance-sheet containing the names, designation and mobile numbers along with signature of the representatives of the respective self-financed professional educational institutions who remained present in the said meeting.
8.8. The said meeting was convened to sensitize all the concerned about the proposed ordinance which was to be promulgated with reference to NRI admissions to medical, dental and other para-medical courses run by the colleges of the State, more particularly when the said NRI seats are not being filled-up by genuine NRI. In the said meeting various aspects were discussed. During the course of the said meeting a concern was voiced that the professional Page 33 of 103 HC-NIC Page 33 of 103 Created On Wed Aug 17 02:57:12 IST 2016 C/SCA/9915/2016 CAV JUDGMENT institutions running the aforesaid courses would be deprived of receiving higher amount of fees by way of NRI admission, if the said NRI admission is given a go-bye. To dispel the doubt of said institutions, a unanimous decision is taken to see that the Fee Regulatory Committee immediately undertakes the proceedings pursuant to the request of all the self-financed medical and para-medical colleges for increasing the fees in respect of all the management seats on pro rata basis. This was so decided so that differential amount of fees which the said colleges used to receive from NRI admissions can be taken care of. It is submitted that the representatives of all the self-financed medical and dental colleges of the State including 8 dental colleges, stated to be the members of the petitioner consortium of Special Civil Application No.10005 of 2016, agreed for the elimination of NRI admissions and in place thereof, to have management seats to be filled-up with higher amount of fees which may be approved by the Fee Regulatory Committee under the Act and for that purpose, to have the consortium consisting of the representatives of the respective institutions. Thus, only after reaching a consensus in the meeting of giving a go-bye to the NRI admissions with the management, the ordinance was brought in effect from 10.06.2016. Thus, it is not fair on the part of Page 34 of 103 HC-NIC Page 34 of 103 Created On Wed Aug 17 02:57:12 IST 2016 C/SCA/9915/2016 CAV JUDGMENT the petitioner consortium or any other individual colleges to challenge the validity of the ordinance in question.
8.9. Learned Advocate General thereafter referred to the order dated 30.03.2012 passed by the Division Bench of this Court upon which the reliance is placed by learned counsel Mr. Nanavati appearing for the petitioner and submitted that there is no breach of settlement as alleged by the learned counsel of the petitioner. In fact, as agreed between the parties, 25% seats are kept for management quota.
8.10. Learned Advocate General would thereafter contend that Statement of Reasons or the object of the legislation may be unreasonable or there may be a non-application of mind in such reasons but on that count the legislation cannot be held ultra vires. The Act or the Legislation can be held ultra vires only on two grounds; (1) the legislature has no power to enact the law and (2) it is violative of the provisions of the Constitution.
8.11. In the present case, it is contended that the petitioners have failed to demonstrate that His Excellency Governor is not empowered to issue the ordinance in question or the State Legislature is not having any power to issue such Page 35 of 103 HC-NIC Page 35 of 103 Created On Wed Aug 17 02:57:12 IST 2016 C/SCA/9915/2016 CAV JUDGMENT legislation and/or the provisions of the ordinance are violative of the Constitution of India. Thus, merely because some of the objects stated in the Statement of Reasons are unreasonable as per the say of the petitioners, the impugned ordinance cannot be held to be ultra vires only on that ground.
8.12. Learned Advocate General thereafter submitted that if the legislature is competent to enact the law then it can also have the competence to amend the law. Thus, when the State legislature has enacted the Act of 2007, the said Act can also be amended by the legislature.
8.13. In response to the submissions canvassed on behalf of learned counsel appearing for the petitioners with regard to applicability of the principle of promissory estoppel, it is submitted by learned Advocate General that the principle of promissory estoppel would not be applicable to the plenary legislation but same can be applied to subordinate legislation and in administrative sphere. The decisions upon which the reliance is placed by the learned counsel for the petitioners are not applicable as per the submissions of learned Advocate General because such decisions were rendered by the Hon'ble Supreme Court in the case of administrative action.
Page 36 of 103HC-NIC Page 36 of 103 Created On Wed Aug 17 02:57:12 IST 2016 C/SCA/9915/2016 CAV JUDGMENT 8.14. It is further submitted that there is no applicability of General Clauses Act in the facts of the present case as submitted by learned counsel for the petitioners.
8.15. Learned Advocate General has placed reliance upon the following decisions in support of all the aforesaid contentions:
1. In the case of Islamic Academy of Education v. State of Karnataka (Supra)
2. State of Gujarat & Others v. Vali Mohd.
Dosabhai Sindhi, reported in (2006) 6 SCC 537
3. In the case of Supreme Court Bar Association v. Union of India and another, reported in AIR 1998 SC 1895
4. In the case of State of Punjab v. Rafiq Masih (White Washer), reported in (2014) 8 SCC 883
5. In the case of Parth Keyur Parikh Being a minor Through his father Dr.Keyur Harshadrai Parikh v. Smt. N.H.L.Municipal Medical College, reported in 2008(5)GLR 4513
6. In the case of Bhavi Vipulkumar Shah v.
State of Gujarat, reported in 2010(5)GLR 3774
7. In the case of Vrushali Hiren Shah v. Smt. N.H.L.Municipal Medical College, reported in 2011(3)GLR 2075
8. In the case of Christian Medical College Vellore & Ors. V. Union of India and Ors., Page 37 of 103 HC-NIC Page 37 of 103 Created On Wed Aug 17 02:57:12 IST 2016 C/SCA/9915/2016 CAV JUDGMENT reported in (2014) 2 SCC 305
9. In the case of Modern Dental College and Research Centre & Ors., v. State of Madhya Pradesh & Ors, reported in 2016 SCC On line 373
10. In the case of Sri Lakshmindra Theertha Swamiar of Sri Shirur Mutt and another v.
the Commissioner, Hindu Religious Endowments, Madras and ors., reported in AIR 1952 MADRAS 613
11. In the case of Sakhawant Ali v. State of Orissa, reported in AIR 1955 SC 166
12. In the case of State of A.P. and others v.
Mcdowell & Co. and ors., reported in (1996) 3 SCC 709
13. In the case of State of Madhya Pradesh v.
Rakesh Kohli and another, reported in (2012) 6 SCC 312
14. Rajbala and others v. State of Haryana and Ors., reported in(2016) 2 SCC 445
15. In the case of State of Kerala and Anr. V. The Gwalior Rayon Silk Manufacturing (WVG) Co. Ltd., Etc., reported in (1973) 2 SCC 713
16. In the case of M/s. Motilal Padampat Sugar Mills Co. Ltd. V. State of Uttar Pradesh & Ors., reported in (1979) 2 SCC 409
17. In the case of Bangalore Development Authority and Ors. V. R. Hanumaiah and others, reported in (2005) 12 SCC 508 Page 38 of 103 HC-NIC Page 38 of 103 Created On Wed Aug 17 02:57:12 IST 2016 C/SCA/9915/2016 CAV JUDGMENT
18. In the case of State of Himachal Pradesh v.
Himachal Pradesh Nizi Vyavsayik Prishikshan Kendra Sangh, reported in (2011) 6 SCC 597
19. In the case of M/s. United Motor Works, Madras v. State of Madras, reported in AIR 1969 Madras 322
20. In the case of Jharkhand State Electricity Board v. Laxmi Business and Cement Company Private Ltd., reported in (2014) 5 SCC 236
21. In the case of Aswini Kumar Ghosh v.
Arabinda Bose, reported in AIR 1952 SC 369
22. In the case of M/s. Khandelwal Metal and Engineering Works and Anr. V. Union of India & Ors., reported in (1985) 3 SCC 630
23. In the case of Gurudevdatta Vksss Maryadit v. State of Maharashtra and others, reported in(2001) 4 SCC 534.
9. We have considered the submissions canvassed on behalf of the learned counsel appearing for the parties. We have gone through the material produced on record as well as the decisions upon which the reliance is placed by the learned counsel appearing for the parties. From the submissions canvassed on behalf of the learned counsel, the following main questions arise for our consideration in these petitions.
1. Whether the direction given/observation made by the Hon'ble Page 39 of 103 HC-NIC Page 39 of 103 Created On Wed Aug 17 02:57:12 IST 2016 C/SCA/9915/2016 CAV JUDGMENT Supreme Court in paragraph 131 in case of P.A.Inamdar (supra) can be said to be a law declared by the Hon'ble Supreme Court under Article 142 of Constitution of India?
2. Whether the statement of reasons and object mentioned in the impugned ordinance can be said to be unreasonable and/or irrelevant?
3. Whether the impugned ordinance is violative of Article 14 of the Constitution, as by way of the said ordinance, NRI quota from medical, dental and para-medical courses has been deleted, whereas such quota is continued in other professional courses viz. engineering, pharmacy, management, law, etc.?
9.2. The other ancillary issues were also raised for our consideration i.e. (A) Whether the State Government can go beyond the consensus arrived at with consortium of unaided dental colleges and institutions - petitioner of Special Civil Application No.10005 of 2016 and (B) Whether principle of promissory estoppel and/or legitimate expectation would be applicable to the facts Page 40 of 103 HC-NIC Page 40 of 103 Created On Wed Aug 17 02:57:12 IST 2016 C/SCA/9915/2016 CAV JUDGMENT of the present case?
Question No.1 Whether the direction given by the Hon'ble Supreme Court in paragraph 131 in case of P.A.Inamdar (supra) can be said to be a law declared by the Hon'ble Supreme Court under Article 142 of Constitution of India?
10. For consideration of this question, we would like to refer to historical backdrop of NRI seats. In the case of Unni Krishnan v. State of Andhra Pradesh, reported in (1993) 1 SCC 645, the Hon'ble Supreme Court framed scheme for regulating admission to the professional courses in unaided colleges. This scheme had no provision for NRI seats. However, thereafter, realizing the need for NRI seats in professional courses, orders were passed by the Hon'ble Supreme Court introducing the concept of NRI seats in Unni Krishnan Scheme. However, with the scrapping of Unni Krishnan Scheme in T.M.A. Pai (supra), NRI seats went into oblivion with effect from the academic year 2003-2004. However, following what the Hon'ble Supreme Court declared and directed vide paragraph 131 in the case of P.A.Inamdar (supra), NRI seats resurfaced on the scene in professional courses w.e.f. the academic year Page 41 of 103 HC-NIC Page 41 of 103 Created On Wed Aug 17 02:57:12 IST 2016 C/SCA/9915/2016 CAV JUDGMENT 2006-2007.
10.1. It is clear from the law laid down by the Hon'ble Supreme Court in the case of T.M.A.Pai Foundation (supra), Islamic Academy of Education (supra) and P.A.Inamdar (supra) that in private unaided medical and dental colleges, role of the Government is limited only to see that admissions are made on merit basis and in transparent manner. In absence of any aid from the Government, the State Government has no authority to retain a portion of seats as Government seats and therefore, the concept of Government seats and Management seats (including NRI seats) has came into force by way of consensual arrangement between the association of the collages and the State. By virtue of such consensual arrangement only, the ratio of 75% Government Seats and 25% Management Seats which include 15% NRI seats was brought into Act of 2007.
10.2. In paragraph 124 of the judgment in case of P.A.Inamdar (supra), the Hon'ble Supreme Court has held that so far as appropriation of quota by the State and enforcement of its reservation policy is concerned, the States have no power to insist on seat sharing in unaided private professional educational institutions by fixing a quota of seats between the management and the State. It is categorically held that the State Page 42 of 103 HC-NIC Page 42 of 103 Created On Wed Aug 17 02:57:12 IST 2016 C/SCA/9915/2016 CAV JUDGMENT cannot insist on private educational institutions which receive no aid from the State to implement the State's policies. It is also specifically observed by the Hon'ble Supreme Court that imposition of quota of State seats or enforcing reservation policy of the State on available seats in unaided professional institutions are acts constituting serious encroachment on the right and autonomy of private professional educational institutions. It is further observed that unaided institutions, as they are not deriving any aid from the State funds, can have their own admissions if fair, transparent, non- exploitative and based on merit.
10.3. In the case of P.A.Inamdar (supra), the Hon'ble Supreme Court has declared the law as under:
(i) Unaided institutions have an unfettered fundamental right to choose the students to be allowed admissions in their educational institutions.
(ii) State Government has no competence to provide for seats sharing (providing for state quota and management quota) save and except with the consent of the management. Any imposition of state quota on any ground including on the ground of local needs is illegal and unconstitutional and beyond the competence of the State Government.
(iii) The discretion to grant admission to NRI's, their children and wards has been conferred solely upon the management and a limited duty is cast upon the State Page 43 of 103 HC-NIC Page 43 of 103 Created On Wed Aug 17 02:57:12 IST 2016 C/SCA/9915/2016 CAV JUDGMENT to regulate the same to avoid malpractice.
(iv) State regulation should be minimal and only with a view to maintain fairness and transparency in admission procedure.
10.4. At this stage, it would be relevant to refer to the observations and findings given by the Hon'ble Supreme Court in the case of P.A.Inamdar in para 124, 127 to 130 and 131 as under:
124. So far as appropriation of quota by the State and enforcement of its reservation policy is concerned, we do not see much of difference between non-minority and minority unaided educational institutions. We find great force in the submission made on behalf of the petitioners that the States have no power to insist on seat sharing in the un-
aided private professional educational insti- tutions by fixing a quota of seats between the management and the State. The State can- not insist on private educational institu- tions which receive no aid from the State to implement State's policy on reservation for granting admission on lesser percentage of marks, i.e. on any criterion except merit.
xxx xxx xxx
127. Nowhere in Pai Foundation, either in the majority or in the minority opinion, have we found any justification for imposing seat sharing quota by the State on unaided private professional educational institutions and re- servation policy of the State or State quota seats or management seats.
128. We make it clear that the observations in Pai Foundation in paragraph 68 and other Page 44 of 103 HC-NIC Page 44 of 103 Created On Wed Aug 17 02:57:12 IST 2016 C/SCA/9915/2016 CAV JUDGMENT paragraphs mentioning fixation of percentage of quota are to be read and understood as possible consensual arrangements which can be reached between unaided private professional institutions and the State.
129. In Pai Foundation, it has been very clearly held at several places that unaided professional institutions should be given greater autonomy in determination of admis- sion procedure and fee structure. State regu- lation should be minimal and only with a view to maintain fairness and transparency in ad- mission procedure and to check exploitation of the students by charging exorbitant money or capitation fees.
130. For the aforesaid reasons, we cannot approve of the scheme evolved in Islamic Academy to the extent it allows States to fix quota for seat sharing between manage- ment and the States on the basis of local needs of each State, in the unaided private educational institutions of both minority and non-minority categories. That part of the judgment in Islamic Academy, in our considered opinion, does not lay down the correct law and runs counter to Pai Foundation.
131. Here itself we are inclined to deal with the question as to seats allocated for Non-Resident Indians ('NRI', for short) or NRI seats. It is common know- ledge that some of the institutions grant admissions to certain number of students under such quota by charging a higher amount of fee. In fact, the term 'NRI' in relation to admissions is a misnomer. By and large, we have noticed in cases after cases coming to this Court, neither the students who get admissions under this category nor their parents are NRIs. In effect and reality, under this category, Page 45 of 103 HC-NIC Page 45 of 103 Created On Wed Aug 17 02:57:12 IST 2016 C/SCA/9915/2016 CAV JUDGMENT less meritorious students, but who can af- ford to bring more money, get admission. During the course of hearing, it was poin- ted out that a limited number of such seats should be made available as the money brought by such students admitted against NRI quota enables the educational institutions to strengthen its level of education and also to enlarge its educa- tional activities. It was also pointed out that people of Indian origin, who have mi- grated to other countries, have a desire to bring back their children to their own country as they not only get education but also get reunited with Indian cultural ethos by virtue of being here. They also wish the money which they would be spend- ing elsewhere on education of their chil- dren should rather reach their own mother- land. A limited reservation of such seats, not exceeding 15%, in our opinion, may be made available to NRIs depending on the discretion of the management subject to two conditions. First, such seats should be utilized bona fide by the NRIs only and for their children or wards. Secondly, within this quota, the merit should not be given a complete go-by. The amount of money, in whatever form collected from such NRIs, should be utilized for benefit- ing students such as from economically weaker sections of the society, whom, on well defined criteria, the educational in- stitution may admit on subsidized payment of their fee. To prevent misutilisation of such quota or any malpractice referable to NRI quota seats, suitable legislation or regulation needs to be framed. So long as the State does not do it, it will be for the Committees constituted pursuant to Is- lamic Academy's direction to regulate.
10.5. It is not in dispute that apropos the Page 46 of 103 HC-NIC Page 46 of 103 Created On Wed Aug 17 02:57:12 IST 2016 C/SCA/9915/2016 CAV JUDGMENT judgment of the Hon'ble Supreme Court in the case of T.M.A Pai Foundation (supra), Islamic Academy of Education (supra) and P.A.Inamdar (supra), the Act of 2007 came to be enacted in the year 2007 which came into effect from 15.05.2008, inter alia, for various purpose including for the purpose of providing fixation of percentage of quota for government seats and management seats on the basis of consensual arrangement between the State Government and the self-financed professional educational institutions as observed in para 68 in the case of T.M.A. Pai Foundation (supra). In the case of T.M.A. Pai Foundation (supra), the Hon'ble Supreme Court has observed in para 68 as under:
"68. It would be unfair to apply the same rules and regulations regulating admission to both aided and unaided professional institutions. It must be borne in mind that unaided professional institutions are entitled to autonomy in their administration while, at the same time, they do not forgo or discard the principle of merit. It would, therefore, be permissible for the university or the government, at the time of granting recognition, to require a private unaided institution to provide for merit-based selection while, at the same time, giving the Management sufficient discretion in admitting students. This can be done through various methods. For instance, a certain percentage of the seats can be reserved for admission by the Management out of those students who have passed the common entrance test held by itself or by Page 47 of 103 HC-NIC Page 47 of 103 Created On Wed Aug 17 02:57:12 IST 2016 C/SCA/9915/2016 CAV JUDGMENT the State/University and have applied to the college concerned for admission, while the rest of the seats may be filled up on the basis of counselling by the state agency. This will incidentally take care of poorer and backward sections of the society. The prescription of percentage for this purpose has to be done by the government according to the local needs and different percentage can be fixed for minority unaided and non-minority unaided and professional colleges. The same principles may be applied to other non- professional but unaided educational institutions viz., graduation and post- graduation non-professional colleges or institutes."
10.6. It is revealed from the record that prior to the enactment of the Act, it was conveyed by all the self-financed professional medical and dental colleges that since they wanted to avoid the hassle of devising their own common entrance test, they would be rest content with seats to the tune of 25% as being management quota seats with 75% of the available seats would remain with the State Government and as a result of a necessary consensus between the parties in that behalf, corresponding provisions, more particularly, in Section 2(g) defining the term 'Government seats' and Section 2(h) defining the term 'Management seats' came to be incorporated.
10.7. At this stage, it is also relevant to note that Act of 2007 is enacted to make special provision for regulation of admissions in Page 48 of 103 HC-NIC Page 48 of 103 Created On Wed Aug 17 02:57:12 IST 2016 C/SCA/9915/2016 CAV JUDGMENT professional medical educational colleges and institutions in the State and for fixation of fee of such colleges or institutions. In the Statement of Objects and Reasons of Act of 2007, the judgment of the Hon'ble Supreme Court in the case of P.A.Inamdar (supra) is referred. Thus, from the Statement of Objects and Reasons, it is clear that Act of 2007 is enacted in view of the observations and directions made by the Hon'ble Supreme Court in the aforesaid case. It is also clear from the Statement of Objects and Reasons that the Act of 2007 is enacted mainly to ensure fair, transparent and non-exploitative procedure for admission to ensure merit-based admission into the unaided professional medical educational colleges.
10.8. Thus, in view of the aforesaid facts and circumstances of the case, the contention of learned counsels appearing for the petitioners is that para 131 of judgment in the case of P.A.Inamdar (supra) is by way of declaration and direction under Article 142 of the Constitution of India which applies to the entire nation. Such direction issued under Article 142 operates as if the same is a central legislation occupying the whole field, whereby the State will not have any competence to enact the law to abolish NRI quota. In support of the said contention, learned counsels for the petitioners have placed reliance upon the decision rendered by the Hon'ble Supreme Page 49 of 103 HC-NIC Page 49 of 103 Created On Wed Aug 17 02:57:12 IST 2016 C/SCA/9915/2016 CAV JUDGMENT Court in the case of Islamic Academy of Education and Anr (supra). In the said case, the Hon'ble Supreme Court has held as under:
"In view of the law laid down by this Court in P.A.Inamdar and Ors. V. State of Maharashtra & Ors., (Civil Appeal No.5041 of 2005), it is not necessary to make any observation at this stage, except that the admissions made would be in terms thereof. Admissions under the N.R.I. quota hereinafter shall be made in terms of the law laid down in P.A. Inamdar (supra). The Colleges will intimate by 10th October, 2005, the State Government about the particulars of the persons admitted, details as to their status of being N.R.I. and the fee charged from them."
10.9. In the decision rendered in the case of Association of Management of Unaided Private Medical College and Dental Colleges in Writ Petition (L) No.621 of 2015, the High Court of Bombay observed and held as under:
"5. In paragraph 131 the Apex Court had clearly observed that the seats should be utilized bona fide by NRIs only and for their children or wards. The said observations cannot be construed in such a way that only NRI students would be entitled to get admissions since it is clearly observed that the utilization of the seats should be by NRIs only and for their children or wards (emphasis supplied). The decision taken by the Committee, therefore, clearly is contrary to the decision of the Apex Court in the case of P.A. Inamdar and Ors. (supra). The impugned order of Pravesh Niyantran Samiti Page 50 of 103 HC-NIC Page 50 of 103 Created On Wed Aug 17 02:57:12 IST 2016 C/SCA/9915/2016 CAV JUDGMENT is, therefore, stayed."
10.10. In the case of Joseph Sriharsha and Mary Indraja Educational Society (supra), the A.P. High Court had held in para 67 to 69 as under:
"67. However, Rule 6 (ii) sub-rule (1) clause (ii) provides that the reservation of NRI seats should not exceed 5% of the sanctioned in-take in the course. The reduction of NRI quota from 15% to 5%, in our view, is not justified as the same cannot be reduced unilaterally by the Government in the name of regulatory measure. The aforesaid stipulation, as rightly contended by the learned Senior Counsels for the petitioners, is in substance contrary to the decision of the Supreme Court in case of P.A. INAMDAR (supra). In paragraph-131 of the report, the Supreme Court has clearly mentioned as follows:
"In effect and reality, under this category, less meritorious students, but who can afford to bring more money, get admission. During the course of hearing, it was pointed out that a limited number of such seats should be made available as the money brought by such students admitted against NRI quota enables the educational institutions to strengthen their level of education and also to enlarge their educational activities. It was also pointed out that people of Indian origin, who have migrated to other countries, have a desire to bring back their children to their own country as they not only get education but also get reunited with the Indian cultural ethos by virtue of being here. They also wish the Page 51 of 103 HC-NIC Page 51 of 103 Created On Wed Aug 17 02:57:12 IST 2016 C/SCA/9915/2016 CAV JUDGMENT money which they would be spending elsewhere on education of their children should rather reach their own motherland. A limited reservation of such seats, not exceeding 15%, in our opinion, may be made available to NRIs depending on the discretion of the management subject to two conditions. First, such seats should be utilised bona fide by NRIs only and for their children or wards. Secondly, within this quota, merit should not be given a complete go-by. The amount of money, in whatever form collected from such NRIs, should be utilized for benefiting students such as from economically weaker sections of the society, whom, on well-defined criteria, the educational institution may admit on subsidised payment of their fee. To prevent misutilisation of such quota or any malpractice referable to NRI quota seats, suitable legislation or regulation needs to be framed."
68. To our mind, by the above decision discretion is left with management not with government to reduce quota. In any event, no reason has been assigned why the aforesaid NRI quota has been reduced to 5%. We think that it has been done without having any legally entertainable complaint not to speak of enquiry as regards mala fide utilisation of the funds collected from the NRI candidates or total regardless of merit. It has to be understood clearly that these unaided educational institutions are depending upon the tuition fees and the funds made available by the candidates alone. Therefore, consideration of survival and sustenance of the educational institution has also to be kept in mind. Further, undoubtedly the NRI quota is a substantial source of fund. Payment of commensurate salary to the teaching faculty and staff, Page 52 of 103 HC-NIC Page 52 of 103 Created On Wed Aug 17 02:57:12 IST 2016 C/SCA/9915/2016 CAV JUDGMENT providing good infrastructural facilities including hostel accommodation require a large amount of fund and the State Government is not coming forward to inject any fund to support the educational institutions. It requires reasonable degree of leverage as envisaged by the Supreme Court. This, in our view, presuming for argument sake the State has say in this regard, should not have been reduced without proper deliberation and discussion with the educational institutions and without understanding the difficulty. Accordingly, we hold and declare that the aforesaid reduction of the seats to 5% from 15% is unjustified and unfounded and the same is accordingly struck down and we restore the NRI quota to 15%.
69. For the aforesaid reasons, Rule 6 (ii) as amended by G.O.Ms.Nos.66 and 67, dated 3.9.2012, except the portion reducing percentage of NRI seats to 5% from 15%, cannot be held to be unconstitutional or contrary to the dicta laid down in T.M.A. PAI FOUNDATION'S case (6 supra) and P.A. INAMDAR'S case (1 supra).Hence, the petitioners are not entitled to the relief sought for."
10.11. Learned Advocate General submitted that the observations made by the Hon'ble Supreme Court in para 131 in the case of P.A.Inamdar (supra) is neither a declaration nor a direction under Article 142 of the Constitution but it is merely an opinion or suggestion. In the said paragraph the Hon'ble Supreme Court has used the words 'may be' or 'should be' as used in succession in the latter part of para 131 of the Page 53 of 103 HC-NIC Page 53 of 103 Created On Wed Aug 17 02:57:12 IST 2016 C/SCA/9915/2016 CAV JUDGMENT judgment then in that case, it becomes abundantly clear that para 131 does not contain any direction of the Hon'ble Supreme Court. Learned Advocate General has placed reliance upon certain observations made by the Hon'ble Supreme Court in the case of Islamic Academy of Education (supra).
10.12. It is contended by learned Advocate General that reliance placed by the counsel for the petitioners in the aforesaid judgments rendered by the Hon'ble Supreme Court as well as different High Courts is misconceived. It is contended that as regards the scope of Article 142 of Constitution, the Apex Court has observed in the case of Supreme Court Bar Association v. Union of India and another, reported in AIR 1998 SC 1895 as under:
"......It must be remembered that wider the amplitude of its power under Article 142, the greater is the need of care for this Court to see that the power is used with restraint without pushing back the limits of the Constitution........it is not permissible for the Court to 'take over' the role of the statutory bodies and other organs of the State and 'perform' their functions." (emphasis supplied).
10.13. Learned Advocate General has placed reliance upon the decision by the Hon'ble Supreme Court in the case of State of Punjab & Ors. v. Rafiq Masih (White Washer), reported in (2014) 8 SCC 883 and more particularly para 9 and 10 which reads as under:Page 54 of 103
HC-NIC Page 54 of 103 Created On Wed Aug 17 02:57:12 IST 2016 C/SCA/9915/2016 CAV JUDGMENT "9. In our view, the law laid down in Chandi Prasad Uniyal's case, no way conflicts with the observations made by this Court in the other two cases. In those decisions, directions were issued in exercise of the powers of this Court under Article 142 of the Constitution, but in the subsequent decision this Court under Article 136 of the Constitution, in laying down the law had dismissed the petition of the employee. This Court in a number of cases had battled with tracing the contours of the provision in Article 136 and 142 of the Constitution of India.
Distinctively, although the words employed under the two aforesaid provision speak of the powers of this Court, the former vest a plenary jurisdiction in supreme court in the matter of entertaining and hearing of appeals by granting special leave against any judgment or order made by a Court or Tribunal in any cause or matter. The powers are plenary to the extent that they are paramount to the limitations under the specific provisions for appeal contained in the Constitution or other laws. Article 142 of the Constitution of India, on the other hand is a step ahead of the powers envisaged under Article 136 of the Constitution of India. It is the exercise of jurisdiction to pass such enforceable decree or order as is necessary for doing 'complete justice' in any cause or matter. The word 'complete justice' was fraught with uncertainty until Article 142 of the Constitution received its first interpretation in Prem Chand Garg v. Excise Commissioner, U.P., AIR (1963) SC 996 which added a rider to the exercise of wide extraordinary powers by laying down that though the powers are wide, the same is an ancillary power and can be used when Page 55 of 103 HC-NIC Page 55 of 103 Created On Wed Aug 17 02:57:12 IST 2016 C/SCA/9915/2016 CAV JUDGMENT not expressly in conflict with the substantive provisions of law. This view was endorsed by a Nine-Judges Bench in Naresh Shridhar Mirajkar v. State of Maharashtra, (1966) 3 SCR 744 reiterated by a Seven Judge Bench in A.R. Antulay v. R.S. Nayak, (1988) 2 SCC 602 and finally settled in the Supreme Court Bar Association v. Union of India, (1998) 4 SCC 409.
10. Article 136 of the Constitution of India, confers a wide discretionary power on the Supreme Court to interfere in suitable cases. Article 136 is a special jurisdiction and can be best described in the words of this Court in Ramakant Rai v. Madab Rai, (2003) 12 SCC 395, "It is a residuary power, it is extraordinary in its amplitude, its limits when it chases injustice, is the sky itself". Article 136 of the Constitution of India was legislatively intended to be exercised by the Highest Court of the Land, with scrupulous adherence to the settled judicial principle well established by precedents in our jurisprudence. Article 136 of the Constitution is a corrective jurisdiction that vest a discretion in the Supreme Court to settle the law clear and as forthrightly forwarded in the case of Union of India v. Karnail Singh, (1995) 2 SCC 728, it makes the law operational to make it a binding precedent for the future instead of keeping it vague. In short, it declares the law, as under Article 141 of the Constitution."
10.14. Learned Advocate General thereafter submitted that the impugned ordinance is a competent legislation within the meaning of entry Page 56 of 103 HC-NIC Page 56 of 103 Created On Wed Aug 17 02:57:12 IST 2016 C/SCA/9915/2016 CAV JUDGMENT 25 of the Concurrent List in the 7th Schedule of the Constitution of India read with Articles 245 and 246 of the Constitution of India and therefore the source of power of the State Legislature to enact the Act relating to NRI quota is traceable to Entry 25 of the List III of 7th Schedule of the Constitution and therefore it cannot be said that the field is occupied by Central Legislature as submitted by learned counsel appearing for the petitioner. Learned Advocate General has placed reliance upon the decision rendered by this Court in the case of Parth Keyur Parikh Being a minor Through his father Dr.Keyur Harshadrai Parikh (supra) 10.15. Keeping in mind the aforesaid decisions rendered by the Hon'ble Supreme Court, this Court as well as various High Courts on the aforesaid point, we are of the opinion that the concept of NRI quota has been introduced by way of declaration made by the Hon'ble Supreme Court in the case of P.A.Inamdar (supra), more particularly in para 131 of the said decision. The Hon'ble Supreme Court as well as this Court and various High Courts have observed that the observations made in para 131 is declaration of law. The observations and directions permitting the unaided educational institutions seats not exceeding 15% to allot to the NRIs is a declaration of law traceable to power under Article 142 of the Constitution of India. By way Page 57 of 103 HC-NIC Page 57 of 103 Created On Wed Aug 17 02:57:12 IST 2016 C/SCA/9915/2016 CAV JUDGMENT of the said declaration, the Hon'ble Supreme Court permitted limited reservation to such seats not exceeding 15% to NRI depending on the discretion of the management subject to two conditions; (1) such seat should be utilized by bona fide NRIs only for their children and wards and (2) within this quota, merit should not be given a complete go bye. The observations and directions made in the said judgment are taken as a basis for enactment of the Act of 2007 by the respondent -State.
10.16.It is contended by learned counsel for the petitioners that the Supreme Court has given a direction in para 131 of the judgment in the case of P.A.Inamdar (supra) under Article 142 of the Constitution of India, the same cannot be wiped out or obliterated by the State legislation. Learned counsels for the petitioners have placed reliance upon the decision rendered by the Hon'ble Supreme Court in the case of S.T.Sadiq (supra) and more particularly the observations made in para 13, 15, 17 and 21 in the said case and in the case of Narain Singh (Supra) and more particularly Head Note A. 10.17. At this stage, it is also to be noted that after the declaration of law made by the Page 58 of 103 HC-NIC Page 58 of 103 Created On Wed Aug 17 02:57:12 IST 2016 C/SCA/9915/2016 CAV JUDGMENT Hon'ble Supreme Court in the case of P.A.Inamdar (supra), initially committees constituted pursuant to Islamic Academy's direction regulated the NRI quota till the suitable legislations were framed by the concerned State. It is reported that most of the States have enacted the law incorporating the NRI quota in the professional courses. The respondent State has also enacted the law pursuant to such direction in the year 2007. It is informed that till today in other states NRI quota is still in existence in such professional courses, whereas the respondent State has by way of the impugned ordinance deleted such quota only from medical, dental and para-medical courses.
10.18. In the case of Shah Forum Umeshbhai (Minor), wherein it has been observed by the Division Bench that taking into consideration para 131 in the judgment of P.A.Inamdar (supra) which mandates that seats for NRI quota should be utilized by NRI bonafide for their children or wards and normally in the quota of NRI merit should not be given a complete go bye. It has been further observed by the Division Bench that as noted by their Lordships in the order dated 13.11.2006, paragraph 131 of P.A.Inamdar (supra) is the dictate under Article 142 of the Constitution of India till appropriate legislation in this regard is enacted by the parliament.
Page 59 of 103HC-NIC Page 59 of 103 Created On Wed Aug 17 02:57:12 IST 2016 C/SCA/9915/2016 CAV JUDGMENT It is observed by the Hon'ble Supreme Court in the case of Islamic Academy of Education and Anr. V. State of Karnataka & Ors, reported in 2006 AIR SCW 4061 that, 'in view of the law laid down by this Court in P.A.Inamdar and others v. State of Maharashtra, it is not necessary to make any observation at this stage except that the admissions made would be in terms thereof. Admissions under the NRI quota hereinafter shall be made in terms of the law laid down in terms of P.A.Inamdar (supra).........' 10.19. Thus, from the aforesaid discussion, we are not having any doubt that the observations and declaration made in para 131 of P.A.Inamdar's case is declaration of law declared by the Hon'ble supreme Court under Article 142 of the Constitution of India. We answer the question No.1 accordingly.
Question No.2.
Whether the statement of reasons and object mentioned in the impugned ordinance can be said to be unreasonable and/or irrelevant?
11. Learned counsel appearing for the petitioners contended that the Statement of Object and Reasons for issuance of impugned ordinance of 2016 are unreasonable, arbitrary and total non-
Page 60 of 103HC-NIC Page 60 of 103 Created On Wed Aug 17 02:57:12 IST 2016 C/SCA/9915/2016 CAV JUDGMENT application of mind on the part of the respondent
- State. Mainly three reasons are assigned for issuance of the impugned ordinance viz. (i) it has been experienced for quite some time that insofar as the NRI seats are concerned, the benefit of the said seats is not fully taken by the NRIs and most of the seats are filled in by those who are sponsored by such NRIs. Thus, the purpose for which the NRI seats are earmarked is not fully served, (ii) it has been experienced that those students who complete their course on the NRI seats do not stay back to serve in the rural areas of the State where there is an acute shortage of medical practitioners and (iii) as such in order that more seats become available to the local students and the rural areas of the State get the services of more medical practitioners, it is considered necessary to do away with the NRI seats in the professional medical educational colleges or institutions.
11.1. If we consider the provisions contained in Section 2(i) of the Act of 2007, it provides that 'Non-Resident seats' means fifteen percent seats reserved for children or wards or the dependents for the education purpose, of the Non- Resident Indian, to whom admission is to be given in the professional educational colleges or institutions. Thus, in the definition itself the word 'dependents' is mentioned. Thus, the State cannot be permitted to say that the NRI quota has Page 61 of 103 HC-NIC Page 61 of 103 Created On Wed Aug 17 02:57:12 IST 2016 C/SCA/9915/2016 CAV JUDGMENT been misused by the dependents of NRI. Further, there is no obligation on the part of any of the students who is taking admission on the quota of management seats to give bond that they will serve in the rural area for stipulated time. Such bond is required only in Government colleges or for Government seats. Therefore, the question of students admitted on the quota meant for NRI not serving at rural area does not arise. Even for the students taking admission in the dental colleges, there is no such requirement of giving bond for serving the rural area.
11.2. In view of the aforesaid facts, the decision upon which reliance is placed by the learned counsel appearing for the parties are required to be examined.
11.3. In the case of State of Tamil Nadu & Ors. v. K Shyam Sunder & Ors., reported in (2011) 8 SCC 733, the Hon'ble Supreme Court has observed in para 52 and 53 as under:
"52. The Statement of Objects and Reasons appended to the Bill is not admissible as an aid to the construction of the Act to be passed, but it can be used for limited purpose for ascertaining the conditions which prevailed at that time which necessitated the making of the law, and the extent and urgency of the evil, which it sought to remedy. The Statement of Objects and Reasons may be relevant to find out what is the objective of any given statute passed by the legislature.Page 62 of 103
HC-NIC Page 62 of 103 Created On Wed Aug 17 02:57:12 IST 2016 C/SCA/9915/2016 CAV JUDGMENT It may provide for the reasons which induced the legislature to enact the statute. "For the purpose of deciphering the objects and purport of the Act, the court can look to the Statement of Objects and Reasons thereof". (Vide: Kavalappara Kottarathil Kochuni @ Moopil Nayar v. The States of Madras and Kerala & Ors., AIR 1960 SC 1080; and Tata Power Company Ltd. v. Reliance Energy Ltd. & Ors., (2009) 16 SCC 659).
53. In A. Manjula Bhashini & Ors. (Supra), this Court held as under:
"The proposition which can be culled out from the aforementioned judgments is that although the Statement of Objects and Reasons contained in the Bill leading to enactment of the particular Act cannot be made the sole basis for construing the provisions contained therein, the same can be referred to for understanding the background, the antecedent state of affairs and the mischief sought to be remedied by the statute. The Statement of Objects and Reasons can also be looked into as an external aid for appreciating the true intent of the legislature and/or the object sought to be achieved by enactment of the particular Act or for judging reasonableness of the classification made by such Act."
(Emphasis added) 11.4. In the case of Maharshi Mahesh Yogi Vedic Vishwavidyalaya (supra), the Hon'ble Supreme Court has observed in para 51 to 53 and 112 as under:
Page 63 of 103HC-NIC Page 63 of 103 Created On Wed Aug 17 02:57:12 IST 2016 C/SCA/9915/2016 CAV JUDGMENT
51. Mr. Nageshwar Rao, learned senior counsel in his submissions took pains to contend that by reading the un-amended Section4(1) by virtue of the word 'and' prior to the set of expressions "for the advancement" and "dissemination of know-
ledge", the learned senior counsel conten- ded that the whole idea and purpose, whileestablishing the appellant University was for the cause of advancement and preading of knowledge in a wide spectrum and not by restricting it to the field of Vedic learning alone. To reinforce his submissions, the learned senior counsel vehemently contended that Section 4(1), apart from providing scope for Vedic learning and practices, including Darshan, Agam Tantra, Itihas, Puranas and Upvedas also used the expression "Gyan-Vigyan"
which is nothing but science and techno- logy. The learned senior Civil Appeal No.6736 of 2004 counsel therefore, conten- ded that apart from spreading the process of learning in the field of Vedas, the es- tablishment of the appellant University was also in other fields such as, science and technology and other vocational courses, by way of dissemination of know- ledge. The learned senior counsel there- fore, contended that by bringing out the amendment to Section 4(1), by way of an addition to the expressions "only" and "in the above fields and in these fields may...", the State Government has violated the Constitutional right of the appellant in the field of education, thereby con- flicting with Articles 14, 19 and 21 of the Constitution.
52. The learned senior counsel further contended that the State Legislature lacks competence, in as much as education is a subject contained in Entry-66 of List-I and is already governed by the Page 64 of 103 HC-NIC Page 64 of 103 Created On Wed Aug 17 02:57:12 IST 2016 C/SCA/9915/2016 CAV JUDGMENT central legislation viz., the University Grants Commission Act, 1956 and therefore, the State was incompetent to restrict the scope of education in various fields by bringing out an amendment, as has been made in Act 5 of 2000.
53. To support the above submission, the learned senior counsel by referring to the Preamble of 1995 Act contended that the Act was enacted to provide for education primarily and prosecution of Civil Appeal No.6736 of 2004 research in Vedic learning and practices, apart from providing for matters connected therewith or incidental thereto. The submissions of the learned senior counsel was that going by the Pre- amble to the enactment, the purport of the legislation was to provide education in all fields in the forefront, apart from prosecution of research in Vedic learning and practices. The learned senior counsel would contend that the said submission was rejected by the Division Bench by re- stricting the consideration to the words preceding the expression "dissemination of knowledge" and by applying the principle Noscitur A Sociis. The learned senior counsel would contend that such an ap- proach of the Division Bench was not jus- tified and relied upon the decisions re- ported in (2011) 3 SCC 436 (State of Orissa and Anr. Vs. Mamata Mohanty), (2012) 1 SCC 762 (Ramesh Rout Vs. Rabindra Nath Rout), AIR 1963 SC 1323 (State of Ra-
jasthan and Anr. Vs. Sripal Jain), (2001) 4 SCC 286 (M/s. Shriram Vinyl and Chemical Industries Vs. Commissioner of Customs, Mumbai) and (2002) 7 SCC 273 (Union of In- dia (UOI) and Anr. Vs. Hansoli Devi and Ors.).
xxx xxx xxx Page 65 of 103 HC-NIC Page 65 of 103 Created On Wed Aug 17 02:57:12 IST 2016 C/SCA/9915/2016 CAV JUDGMENT
112. With this, we come to the last part of the submission made on behalf of the appellant, which related to the amendment to Section 9(2) of the 1995 Act. Under the un-amended provision, after the first Chancellor viz., Maharshi Mahesh Yogi, the Board of Management was empowered to appoint the Chancellor from among the persons of eminence and renowned scholar of Vedic education who can hold office for a term of five years and who would be eligible for reappointment. Under the amended Section 9(2), it was stipulated that after the first Chancellor, the Board of Management should prepare and submit a panel of three persons to the State Government and out of the panel, one person should be appointed as Chancellor by the Board of Management, after obtaining the approval of the State Government. As far as the period of holding office was concerned, there was no change in its terms. The Division Bench while considering the said amendment introduced under Act 5 of 2000, has held that even after the amendment, the Management had the power of recommendation and they can recommend a person of eminence and renowned scholar of Vedic education and even if the ultimate appointment is to be made with the approval of the State Government, since any such appointment can be only from the panel prepared by the Board of management, such a stipulation contained in the amendment does not in any way impinge upon any right, much less the Constitutional Right or Fundamental Right of the appellant University.
11.5. Learned Advocate General submitted that both the aforesaid decision are not applicable to Page 66 of 103 HC-NIC Page 66 of 103 Created On Wed Aug 17 02:57:12 IST 2016 C/SCA/9915/2016 CAV JUDGMENT the facts of the present case and are distinguishable.
11.6. Learned Advocate General submitted that the legislation cannot be struck down as ultra vires on the ground that it is arbitrary and unreasonable. The said ground is available for striking down any subordinate legislation. However, the legislation can be struck down only on the two grounds viz. (1) it is not competent legislation and (2) it violates any of the constitutional provisions. In support of the aforesaid contention, learned Advocate General has placed reliance upon the observations made by the Hon'ble Supreme Court in the following decisions:
11.7. In the case of State of A.P. v. Mcdowell & Co., reported in (1996) 3 SCC 709, the Hon'ble Supreme Court observed as under:
"43. Shri Rohinton Nariman submitted that inasmuch as a large number of persons falling within the exempted categories are allowed to consume intoxicating liquors in the State of Andhra Pradesh, the total prohibition of manufacture and production of these liquors is "arbitrary" and the amending Act is liable to be struck down on this ground alone. Support for this proposition is sought from a judgment of this Court in State of Tamil Nadu & Ors. v. Ananthi Ammal & Ors. (1995 (1) S.C.C.519). Before, however, we refer to the holding in ourselves of certain basic Page 67 of 103 HC-NIC Page 67 of 103 Created On Wed Aug 17 02:57:12 IST 2016 C/SCA/9915/2016 CAV JUDGMENT propositions in this behalf. In the United Kingdom, the Parliament is supreme. There are no limitations upon the power of the Parliament. No Court in the United Kingdom can strike down an Act made by the Parlia- ment on any ground. As against this, the United States of America has a Federal Constitution where the power of the Con- gress and the State Legislatures to make laws is limited in two ways, viz., the di- vision of legislative powers between the States and the federal government and the fundamental rights (Bill of Rights) incor- porated in the Constitution. In India, the position is similar to the United States of America. The power of the Parliament or for that matter, the State Legislatures is restricted in two ways. A law made by the Parliament or the Legislature can be struck down by courts on two grounds and two grounds alone, viz., (1) lack of le- gislative competence and (2) violation of any of the fundamental rights guaranteed in Part-III of the Constitution or of any other constitutional provision. There is no third ground. We do not with to enter into a discussion of the concepts of pro- cedural unreasonableness and substantive unreasonableness - concepts inspired by the decisions of United States Supreme Court. Even in U.S.A., these concepts and in particular the concept of substantive due process have proved to be of unending controversy, the latest thinking tending towards a severe curtailment of this ground (substantive due process). The main criticism against the ground of substant- ive due process being that it seeks to set up the courts as arbiters of the wisdom of the Legislature in enacting the particular piece of legislation. It is enough for us to say that by whatever name it is charac- terized, the ground of invalidation must fall within the four corners of the two Page 68 of 103 HC-NIC Page 68 of 103 Created On Wed Aug 17 02:57:12 IST 2016 C/SCA/9915/2016 CAV JUDGMENT grounds mentioned above. In other words, say, if an enactment challenged as violat- ive of Article 14, it can be struck down only if it is found that it is violative of the equality clause/equal protection clause enshrined therein Similarly, if an enactment is challenged as violative of any of the fundamental rights guaranteed by clauses (a) to (g) of Article 19(1), it can be struck down only if it is found not saved by any of the clauses struck down by just saying that it is arbitrary** or un- reasonable. Some or other constitutional infirmity has to be found before invalid- ating an Act. An expression used widely and rather indiscriminately - an expres- sion of inherently imprecise import. The extensive use of this expression, in India reminds one of what Frankfurter,J. said in Attil Mac Tiller v. Atlantic Coast - line Ranbroad Company (87 L.Ed. 610). "The phrase begins life as a literary expres- sion; its felicity leads to its lazy repe- tition and repetition soon establishes it as a legal formula, undiscriminatingly used to express different and sometimes contradictory idea", said the learned Judge. enactment cannot be struck down on the ground that Court thinks it unjusti- fied. The Parliament and the Legislatures, composed as they are of the representat- ives of the people, are supposed to know and be aware of the needs of the people and what is good and bad for them. The Court cannot sit in judgment over their wisdom. In this connection, it should be remembered that even in the case of admin- istrative action, the scope of judicial review is limited to three grounds, viz.,
(i) unreasonableness, which can more ap-
propriately be called irrationality, (ii) illegality and (iii) procedural impropri- ety [See Council of Civil Services Union v. Minister for the Services (1985 Page 69 of 103 HC-NIC Page 69 of 103 Created On Wed Aug 17 02:57:12 IST 2016 C/SCA/9915/2016 CAV JUDGMENT A.C.374) which decision has been accepted by this Court as well]. The applicability of doctrine of proportionality even in ad- ministrative law sphere is yet a debatable issue. [See the opinions of Lords Lowry and Ackner in R.v. Secretary of State for the Home Department Ex-parte (1991 A.C.696 at 766-7 and 762]. It would be rather odd if an enactment were to be struck down by applying the said principle when its ap- plicability even in administrative law sphere is not fully and finally settled. It is one thing to say that a restriction imposed upon a fundamental right can be struck down if it is disproportionate, ex- cessive or unreasonable and quite another thing to say that the Court can strike down enactment if it thinks it unreason- able, unnecessary or unwarranted. Now, coming to the decision in Ananthi Ammal, we are of the opinion that it does not lay down a different proposition. It was an appeal from the decision of the Madras High Court striking down the Tamil Nadu Acquisition of Land for Harijan Welfare Schemes Acts 1978 as violative of Articles 14, 19 and 300A of the Constitution. On a review of the provisions of the Act, this Court found that it provided a procedure which was substantially unfair to the own- ers of the land as compared to the proced- ure prescribed by the Land Acquisition Act, insofar as Section 11 of the Act provided for payment of compensation in instalments if it exceeded Rupees two thousand. After noticing the several fea- tures of the Act including the one men- tioned above, this Court observed:
"7. When a statute is impugned under Article 14 what the court has to decide is whether the statute is so arbitrary or unreasonable that it must be struck down. At best, a statute upon a similar subject Page 70 of 103 HC-NIC Page 70 of 103 Created On Wed Aug 17 02:57:12 IST 2016 C/SCA/9915/2016 CAV JUDGMENT which derives its authority from another source can be referred to, if its provisions have been held to be reasonable or have stood the test of time, only for the purpose of indicating what may be said to be reasonable in the context. We proceed to examine the provisions of the said Act upon this basis."
44. It is this paragraph which is strongly relied upon by Sri Nariman. We are, how- ever, of the opinion that the observations in the said paragraph must be understood in the totality of the decision. The use of the word "arbitrary" in Para-7 was used in the sence of being discriminatory, as the reading of the very paragraph in its entirety discloses. The provisions of the Tamil Nadu Act were contrasted with the provision of the Land Acquisition Act and ultimately it was found that Section 11 insofar as it provided for payment of com- pensation in instalments was invalid. The ground of invalidation is clearly one of discrimination. It must be remembered that an Act which is discriminatory is liable to be labelled as arbitrary. It is in this sense that the expression "arbitrary" was used in Para-7.
11.8. In the case of State of Madhya Pradesh v. Rakesh Kohli And Another, reported in (2012) 6 SCC 312, the Hon'ble Supreme Court observed as under:
16. The statute enacted by Parliament or a State Legislature cannot be declared unconstitutional lightly. The court must be able to hold beyond any iota of doubt that the violation of the constitutional provisions was so Page 71 of 103 HC-NIC Page 71 of 103 Created On Wed Aug 17 02:57:12 IST 2016 C/SCA/9915/2016 CAV JUDGMENT glaring that the legislative provision under challenge cannot stand. Sans flagrant violation of the constitutional provisions, the law made by Parliament or a State Legislature is not declared bad.
17.This Court has repeatedly stated that legislative enactment can be struck down by Court only on two grounds, namely
(i), that the appropriate Legislature does not have competency to make the law and (ii), that it does not take away or abridge any of the fundamental rights enumerated in Part - III of the Constitution or any other constitutional provisions. In Mcdowell and Co.2 while dealing with the challenge to an enactment based on Article 14, this Court stated in paragraph 43 of the Report as follows (SCC pg.737-38):
"........A law made by Parliament or the legislature can be struck down by courts on two grounds and two grounds alone, viz., (1) lack of legislative competence and (2) violation of any of the fundamental rights guaranteed in Part III of the Constitution or of any other constitutional provision. There is no third ground.......... if an enactment is challenged as violative of Article 14, it can be struck down only if it is found that it is violative of the equality clause/equal protection clause enshrined therein. Similarly, if an enactment is challenged as violative of any of the fundamental rights guaranteed by clauses (a) to (g) of Article 19(1), it can be struck down only if it is found not saved by any of the clauses (2) to (6) of Article 19 and so on. No enactment can be struck down by just saying that it is arbitrary or Page 72 of 103 HC-NIC Page 72 of 103 Created On Wed Aug 17 02:57:12 IST 2016 C/SCA/9915/2016 CAV JUDGMENT unreasonable. Some or other Constitutional infirmity has to be found before invalidating an Act. An enactment cannot be struck down on the ground that court thinks it unjustified. Parliament and the legislatures, composed as they are of the representatives of the people, are supposed to know and be aware of the needs of the people and what is good and bad for them. The court cannot sit in judgment over their wisdom......."
(Emphasis supplied)
18. Then dealing with the decision of this Court in State of T.N. and others v. Ananthi Ammal and others[10], a three-
Judge Bench in Mcdowell and Co.
observed in paragraphs 43 and 44 [at pg.
739) of the Report as under:
"......Now, coming to the decision in Ananthi Ammal, we are of the opinion that it does not lay down a different proposition. It was an appeal from the decision of the Madras High Court striking down the Tamil Nadu Acquisition of Land for Harijan Welfare Schemes Act, 1978 as violative of Articles 14, 19 and 300-A of the Constitution. On a review of the provisions of the Act, this Court found that it provided a procedure which was substantially unfair to the owners of the land as compared to the procedure prescribed by the Land Acquisition Act, 1894, insofar as Section 11 of the Act provided for payment of compensation in instalments if it exceeded rupees two thousand. After noticing the several features of the Act including the one mentioned above, this Court observed: (SCC p. 526, para 7) Page 73 of 103 HC-NIC Page 73 of 103 Created On Wed Aug 17 02:57:12 IST 2016 C/SCA/9915/2016 CAV JUDGMENT "7. When a statute is impugned under Article 14 what the court has to decide is whether the statute is so arbitrary or unreasonable that it must be struck down. At best, a statute upon a similar subject which derives its authority from another source can be referred to, if its provisions have been held to be reasonable or have stood the test of time, only for the purpose of indicating what may be said to be reasonable in the context. We proceed to examine the provisions of the said Act upon this basis."
44. It is this paragraph which is strongly relied upon by Shri Nariman. We are, however, of the opinion that the observations in the said paragraph must be understood in the totality of the decision. The use of the word 'arbitrary' in para 7 was used in the sense of being discriminatory, as the reading of the very paragraph in its entirety discloses. The provisions of the Tamil Nadu Act were contrasted with the provisions of the Land Acquisition Act and ultimately it was found that Section 11 insofar as it provided for payment of compensation in instalments was invalid. The ground of invalidation is clearly one of discrimination. It must be remembered that an Act which is discriminatory is liable to be labelled as arbitrary. It is in this sense that the expression 'arbitrary' was used in para 7."
19. The High Court has not given any reason as to why the provision contained in clause (d) was arbitrary, unreasonable or irrational. The basis of such conclusion is not discernible from the judgment. The High Court has not Page 74 of 103 HC-NIC Page 74 of 103 Created On Wed Aug 17 02:57:12 IST 2016 C/SCA/9915/2016 CAV JUDGMENT held that the provision was discriminatory. When the provision enacted by the State Legislature has not been found to be discriminatory, we are afraid that such enactment could not have been struck down on the ground that it was arbitrary or irrational."
11.9. In the case of Rajbala and other (supra), the Hon'ble Supreme Court observed as under:
58. We are of the opinion that in view of the conclusion recorded by the Court that the rule is beyond the competence of Bar Council of India, it was not really necessary to make any further scrutiny whether the rule was unreasonable and arbitrary. Apart from that, in view of the conclusion recorded that the rule was clearly discriminatory, the inquiry whether the choice of the upper age limit of 45 years is arbitrary or not is once again not necessary for the determination of the case. At any rate, the declaration made by this Court in the said case with regard to a piece of subordinate legislation, in our view, cannot be an authority for the proposition that a statute could be declared unconstitutional on the ground that in the opinion of the Court the Act is arbitrary.
xxx xxx xxx
63. The Learned Attorney General heavily relied upon para 43 of the State of Andhra Pradesh & Others v. McDowell & Co. (1996) 3 SCC 709 which dealt with the question of Page 75 of 103 HC-NIC Page 75 of 103 Created On Wed Aug 17 02:57:12 IST 2016 C/SCA/9915/2016 CAV JUDGMENT declaring a statute unconstitutional on the ground it is arbitrary.
"43. Sri Rohinton Nariman submitted that inasmuch as a large number of persons falling within the exempted categories are allowed to consume intoxicating liquors in the State of Andhra Pradesh, the total prohibition of manufacture and production of these liquors is "arbitrary" and the amending Act is liable to be struck down on this ground alone. Support for this proposition is sought from a judgment of this Court in State of Tamil Nadu & Ors. v. Ananthi Ammal & Others [(1995) 1 SCC 519]. Before, however, we refer to the holding in the said decision, it would be appropriate to remind ourselves of certain basic propositions in this behalf. In the United Kingdom, Parliament is supreme. There are no limitations upon the power of Parliament. No Court in the United Kingdom can strike down an Act made by Parliament on any ground. As against this, the United States of America has a Federal Constitution where the power of the Congress and the State Legislatures to make laws is limited in two ways, viz., the division of legislative powers between the States and the federal government and the fundamental rights (Bill of Rights) incorporated in the Constitution. In India, the position is similar to the United States of America. The power of the Parliament or for that matter, the State Legislatures is restricted in two ways. A law made by the Parliament or the Legislature can be struck down by courts on two grounds and two grounds alone , viz., (1) lack of legislative competence and (2) violation of any of the fundamental rights guaranteed in Part-III of the Constitution or of any other Page 76 of 103 HC-NIC Page 76 of 103 Created On Wed Aug 17 02:57:12 IST 2016 C/SCA/9915/2016 CAV JUDGMENT constitutional provision. There is no third ground. We do not wish to enter into a discussion of the concepts of procedural unreasonableness and substantive unreasonableness - concepts inspired by the decisions of United States Supreme Court. Even in U.S.A., these concepts and in particular the concept of substantive due process have proved to be of unending controversy, the latest thinking tending towards a severe curtailment of this ground (substantive due process). The main criticism against the ground of substantive due process being that it seeks to set up the courts as arbiters of the wisdom of the Legislature in enacting the particular piece of legislation. It is enough for us to say that by whatever name it is characterized, the ground of invalidation must fall within the four corners of the two grounds mentioned above. In other words, say, if an enactment challenged as violative of Article 14, it can be struck down only if it is found that it is violative of the equality clause/equal protection clause enshrined therein. Similarly, if an enactment is challenged as violative of any of the fundamental rights guaranteed by clauses (a) to (g) of Article 19(1), it can be struck down only if it is found not saved by any of the clauses (2) to (6) of Article 19 and so on. No enactment can be struck down by just saying that it is arbitrary or unreasonable. Some or other constitutional infirmity has to be found before invalidating an Act. An enactment cannot be struck down on the ground that Court thinks it unjustified. The Parliament and the Legislatures, composed as they are of the representatives of the people, are supposed to know and be aware of the needs of the people and what is good and bad for them. The Court cannot Page 77 of 103 HC-NIC Page 77 of 103 Created On Wed Aug 17 02:57:12 IST 2016 C/SCA/9915/2016 CAV JUDGMENT sit in judgment over their wisdom. In this connection, it should be remembered that even in the case of administrative action, the scope of judicial review is limited to three grounds, viz., (i) unreasonableness, which can more appropriately be called irrationality, (ii) illegality and (iii) procedural impropriety [See Council of Civil Services Union v. Minister for Civil Services (1985 A.C.374) which decision has been accepted by this Court as well]. The applicability of doctrine of proportionality even in administrative law sphere is yet a debatable issue. [See the opinions of Lords Lowry and Ackner in R. v. Secretary of State for Home Department ex p Brind, [1991 AC 696 at 766-67 and 762]. It would be rather odd if an enactment were to be struck down by applying the said principle when its applicability even in administrative law sphere is not fully and finally settled. It is one thing to say that a restriction imposed upon a fundamental right can be struck down if it is disproportionate, excessive or unreasonable and quite another thing to say that the Court can strike down enactment if it thinks it unreasonable, unnecessary or unwarranted. Now, coming to the decision in Ananthi Ammal, we are of the opinion that it does not lay down a different proposition. It was an appeal from the decision of the Madras High Court striking down the Tamil Nadu Acquisition of Land for Harijan Welfare Schemes Acts 1978 as violative of Articles 14, 19 and 300A of the Constitution. On a review of the provisions of the Act, this Court found that it provided a procedure which was substantially unfair to the owners of the land as compared to the procedure prescribed by the Land Acquisition Act, insofar as Section 11 of the Act provided Page 78 of 103 HC-NIC Page 78 of 103 Created On Wed Aug 17 02:57:12 IST 2016 C/SCA/9915/2016 CAV JUDGMENT for payment of compensation in instalments if it exceeded Rupees two thousand. After noticing the several features of the Act including the one mentioned above, this Court observed:
"7. When a statute is impugned under Article 14 hat the court has to decide is whether the statute is so arbitrary or unreasonable that it must be struck down. At best, a statute upon a similar subject which derives its authority from another source can be referred to, if its provisions have been held to be reasonable or have stood the test of time, only for the purpose of indicating what may be said to be reasonable in the context. We proceed to examine the provisions of the said Act upon this basis."
44. It is this paragraph which is strongly relied upon by Shri Nariman. We are, however, of the opinion that the observations in the said paragraph must be understood in the totality of the decision. The use of the word 'arbitrary' in para 7 was used in the sense of being discriminatory, as the reading of the very paragraph in its entirety discloses. The provisions of the Tamil Nadu Act were contrasted with the provisions of the Land Acquisition Act and ultimately it was found that Section 11 insofar as it provided for payment of compensation in instalments was invalid. The ground of invalidation is clearly one of discrimination. It must be remembered that an Act which is discriminatory is liable to be labeled as arbitrary. It is in this sense that the expression 'arbitrary' was used in para 7."
64. From the above extract it is clear that courts in this country do not Page 79 of 103 HC-NIC Page 79 of 103 Created On Wed Aug 17 02:57:12 IST 2016 C/SCA/9915/2016 CAV JUDGMENT undertake the task of eclaring a piece of legislation unconstitutional on the ground that the legislation is "arbitrary" since such an exercise implies a value judgment and courts do not examine the wisdom of legislative choices unless the legislation is otherwise violative of some specific provision of the Constitution. To undertake such an examination would amount to virtually importing the doctrine of "substantive due process" employed by the American Supreme Court at an earlier point of time while examining the constitutionality of Indian legislation. As pointed out in the above extract, even in United States the doctrine is currently of doubtful legitimacy. This court long back in A.S. Krishna & Others v. State of Madras, AIR 1957 SC 297 declared that the doctrine of due process has no application under the Indian Constitution.
As pointed out by Frankfurter, J., arbitrariness became a mantra.
65. For the above reasons, we are of the opinion that it is not permissible for this Court to declare a statute unconstitutional on the ground that it is "arbitrary".
11.10. Relying upon the aforesaid decisions, the learned Advocate General submitted that the impugned ordinance is the law being part of the Act and the same is competent legislation and does not contravene any constitutional provisions and therefore the impugned ordinance cannot be Page 80 of 103 HC-NIC Page 80 of 103 Created On Wed Aug 17 02:57:12 IST 2016 C/SCA/9915/2016 CAV JUDGMENT quashed and set aside as ultra vires.
11.11. After considering the submissions of the parties and the facts and circumstances of the present case as well as the decisions relied upon by the learned advocates, we are of the opinion that the Statement of Object and Reasons is important for considering the fact that why the Act is enacted and therefore the Statement of Object and Reasons assumes importance. The Statement of Object and Reasons can be looked into as an external aid for appreciating the true intent of the legislature and/or the object sought to be achieved by judging reasonableness of the classification made by such Act. However, it is also true that legislation cannot be struck down only on the ground that it's Statement of Object and Reasons are unreasonable or irrelevant. In the present case, as observed hereinabove, all the three reasons stated in the Statement of the impugned ordinance are irrelevant as the same are unreasonable. There is no reasonable nexus with the object sought to be achieved by promulgating the ordinance in question.
11.12. In view of the aforesaid discussion, we are of the view that the Statement of Object and Reasons mentioned in the impugned ordinance are unreasonable and irrelevant. However, we are of Page 81 of 103 HC-NIC Page 81 of 103 Created On Wed Aug 17 02:57:12 IST 2016 C/SCA/9915/2016 CAV JUDGMENT the opinion that the impugned ordinance cannot be struck down only on the ground that its Statement of Object and Reasons are unreasonable and irrelevant.
Question No.3.
Whether the impugned ordinance is
violative of Article 14 of the
Constitution, as by way of the said
ordinance, NRI quota from medical,
dental and para-medical courses has been deleted, whereas such quota is continued in other professional courses viz. engineering, pharmacy, management, law, etc.?
12. It has been contended by learned advocate appearing for the petitioners that the impugned ordinance is violative of Article 14 of the Constitution of India. In Paragraph Nos. 26 and 104 of the decision in the case of P.A.Inamdar (supra), the Hon'ble Supreme Court referred to one homogeneous class of institutions imparting professional education, meaning thereby, courses like, engineering, pharmacy, law, management, etc. are also included therein along with medical, dental and para-medical courses. The deletion of NRI quota only in medical, dental and para-medical courses would amount to creating a Page 82 of 103 HC-NIC Page 82 of 103 Created On Wed Aug 17 02:57:12 IST 2016 C/SCA/9915/2016 CAV JUDGMENT class within a class without there being any nexus with the object sought to be achieved. Therefore, the ordinance in question is violative of Article 14 of the Constitution, inasmuch as para 131 of the aforesaid judgment in the case of P.A.Inamdar (supra) refers to creation of NRI quota in all professional courses.
12.1. On the other hand, learned Advocate General submitted that merely because some observations are made by the Hon'ble Supreme Court in the case of P.A.Inamdar (supra) which referred to one general classification between the professional educational institutions on one hand and non-professional educational institutions on the other, it cannot be concluded that further classification between medical and dental courses/branches on the one hand and other courses/branches like engineering, pharmacy, law, management, etc on the other, is not permissible, inasmuch as all the said courses/branches have different characteristics, features and the set of circumstances and the major difference being the fact that medical and dental courses deal with human lives, which is not the case with reference to other courses. It is further submitted that in future, State may delete NRI quota from other branches also and this may be the beginning. Learned Advocate General has placed reliance upon the decision rendered in the Page 83 of 103 HC-NIC Page 83 of 103 Created On Wed Aug 17 02:57:12 IST 2016 C/SCA/9915/2016 CAV JUDGMENT case of Sri Lakshmindra Theertha Swamiar of Sri Shirur Mutt and another (supra). In the said decision, the Hon'ble Supreme Court observed in para 29 as under:
"29. The conditions, the violation of which would bring a given legislation within the mischief of Article 14, have now been authoritatively settled by two decisions of the Supreme Court by which we are bound viz., 'CHARANJIT LAL v. THE UNION OF INDIA', 1951 SCJ 29 and THE STATE OF BOMBAY v. BALSARA', 1951 SCJ 478. In the second of these cases, the principles to be borne in mind when applying Article 14 have been analysed and stated in the form of propositions by Fazl Ali J. at page 491 as follows:
"(1) The presumption is always in favour of the Constitutionality of an enactment, since it must be assumed that the Legis-
lature understands and correctly appreci- ates the needs of its own people, that its laws are directed to problems made mani- fest by experience and its discriminations are based on adequate grounds.
(2) The presumption may be rebutted in certain eases by showing that on the face of the statute there is no classification at all and no difference peculiar to any individual or class and not applicable to any other individual or class, and yet the law hits only a particular individual or class.
(3) The principle of equality does not mean that every law must have universal application for all persons who are not by Page 84 of 103 HC-NIC Page 84 of 103 Created On Wed Aug 17 02:57:12 IST 2016 C/SCA/9915/2016 CAV JUDGMENT nature, attainment or circumstances in the same position, and the varying needs of different classes of persons often require separate treatment.
(4) The principle does not take away from the State the power of classifying persons for legitimate purposes.
(5) Every classification is in some degree likely to produce some inequality, and mere production of inequality is not enough.
(6) If a law deals equally with members of a well defined class, it is not obnoxious and it is not open to the charge of denial of equal protection on the ground that it has no application to other persons. (7) While reasonable classification is permissible such classification must be based upon some real ' and substantial distinction bearing a reasonable and just relation to the object sought to be at- tained and the classification cannot be made arbitrarily and without any substan- tial basis."
In view of this clear pronouncement of the highest authority, it is needless to refer to the authorities so copiously cited at the bar to illustrate one or the other of the principles enunciated above. The gravamen of the charge is that while the Christian and Muhammadan religious and charitable institutions and endowments were excluded, Hindu religious and charit- able endowments and institutions alone were selected for special treatment and that such a discrimination is unwarranted, unreasonable and unjust. The classifica- tion of institutions and endowments based on religion, Hindu, Muhammadan or Christi- an, cannot be said to be either arbitrary or unreasonable having regard to the ob-
Page 85 of 103HC-NIC Page 85 of 103 Created On Wed Aug 17 02:57:12 IST 2016 C/SCA/9915/2016 CAV JUDGMENT ject sought to be attained viz, the better administration and management of such in- stitutions. It is not a classification or division made for the first time by the State Legislature. The distinction existed for nearly a century. As the incidents and the nature of the institutions and endow- ments of different religions differ in several respects, it cannot be said that the classification is based solely on re- ligion as the institutions included in the classification are religious as well as secular and having regard to the object in view, the institutions having several com- mon features are rightly classified, under one group. Article 14 does not prevent the legislature from taking up one set of in- stitutions for legislative consideration at one time and enacting laws in respect of them I reserving the other types of in- stitutions for I consideration to a future date. It is impossible to accept the con- tention that the impugned Act violates either Article 14 or Article 15.
12.2. Learned Advocate General has also placed reliance upon the observations made by the Hon'ble Supreme Court in the case of Sakhawant Ali (supra), wherein in para 10, the Hon'ble Supreme Court has observed as under:
"10. It was however urged that besides this category there are also other categories where there would be a possibility of conflict between interest and duty and that in so far as they were not covered by the disqualifications prescribed by section 16(1) of the Act the provision disqualifying the category to which the appellant belonged was discriminatory. It Page 86 of 103 HC-NIC Page 86 of 103 Created On Wed Aug 17 02:57:12 IST 2016 C/SCA/9915/2016 CAV JUDGMENT was particularly pointed out that a client who had a litigation against the Municipality was not prevented from standing as a candidate for election whereas the legal practitioner who held a brief against the Municipality was disqualified, though the ban against both these categories could be justified on ground of avoidance of conflict between interest and duty.
The simple answer to this contention is that legislation enacted for the achievement of a particular object or purpose need not be all embracing. It is for the Legislature to determine what categories it would embrace within the scope of legislation and merely because certain categories which would stand on the same footing as those which are covered by the legislation are left out would not render legislation which has been enacted in any manner discriminatory and violative of the fundamental right guaranteed by article 14 of the Constitution."
12.3 . At this stage, we would like to quote the observations made by the Hon'ble Supreme Court in the case of P.A.Inamdar in para 26 and 104 which reads as under:
"Reference for constituting a Bench of a coram higher than Constitution Bench
26. These matters have been directed to be placed for hearing before a Bench of seven Judges under Orders of the Chief Justice of India pursuant to Order dated July 15, 2004 in P.A. Inamdar and Ors. v. State of Page 87 of 103 HC-NIC Page 87 of 103 Created On Wed Aug 17 02:57:12 IST 2016 C/SCA/9915/2016 CAV JUDGMENT Maharashtra and Ors., (2004) 8 SCC 139 and Order dated July 29, 2004 in Pushpagiri Medical Society v. State of Kerala and Ors., (2004) 8 SCC 135. The aggrieved per- sons before us are again classifiable in one class, that is, unaided minority and non-minority institutions imparting pro- fessional education. The issues arising for decision before us are only three:
(i) the fixation of 'quota' of admis-
sions/students in respect of unaided professional institutions;
(ii) the holding of examinations for admissions to such colleges, that is, who will hold the entrance tests; and
(iii) the fee structure.
xxx xxx xxx
104. Article 30(1) speaks of 'educa- tional institutions' generally and so does Article 29(2). These Articles do not draw any distinction between an educational in- stitution dispensing theological education or professional or non-professional educa- tion. However, the terrain of thought as has developed through successive judicial pronouncements culminating in Pai Founda- tion is that looking at the concept of education, in the backdrop of constitu- tional provisions, the professional educa- tional institutions constitute a class by themselves as distinguished from the edu- cational institutions imparting non- pro- fessional education. It is not necessary for us to go deep into this aspect of the issue posed before us inasmuch as Pai Foundation has clarified that merit and excellence assume special significance in Page 88 of 103 HC-NIC Page 88 of 103 Created On Wed Aug 17 02:57:12 IST 2016 C/SCA/9915/2016 CAV JUDGMENT the context of professional studies. Though merit and excellence are not ana- thema to non-professional education, yet at that level and due to the nature of education which is more general, merit and excellence do not stand in need of that degree thereof, as is called for in the context of professional education."
12.4. It is clear from the observations made by the Hon'ble Supreme Court in the case of P.A.Inamdar (supra) in para 26 and 104 of the said judgment that institutions imparting professional education is one homogeneous class. Professional education includes courses like medical, dental, para-medical, engineering, pharmacy, management, law, etc. It has emerged from record that the respondent State has also enacted the Gujarat Professional Technical Educational Colleges or Institutions (Regulation of Admission and Fixation of Fees) Act, 2007, which governs the field of admission to the technical colleges. It is not in dispute that the respondent State has deleted NRI quota only from medical, dental and para-medical courses by way of impugned ordinance and such NRI quota is kept as it is in other professional courses and that too without any intelligible differentia having any nexus with the object sought to be achieved. It is reported that in other States also NRI Page 89 of 103 HC-NIC Page 89 of 103 Created On Wed Aug 17 02:57:12 IST 2016 C/SCA/9915/2016 CAV JUDGMENT quota has not been deleted from medical, dental and para-medical courses and therefore, the contention taken by the Respondent - State that such branches deal with human lives and is having different character and class cannot be accepted in view of the facts of the case. Therefore, in the facts of the present case, the decisions upon which the reliance is placed by the learned Advocate General would not render any assistance to him.
12.5. Thus, our answer to question No.3 is that the impugned ordinance is violative of Article 14 of the Constitution of India.
13. Now, we would like to deal with the incidental/ancillary questions.
Question No.A Whether the State Government can go beyond the consensus arrived at with consortium of unaided dental colleges and institutions - petitioner of Special Civil Application No.10005 of 2016?
13.1. It emerges from the record that apropos the judgment of the Hon'ble Supreme Court in the case of T.M.A.Pai Foundation (supra), Islamic Academy of Education (supra) and P.A.Inamdar (supra), the Act of 2007 came Page 90 of 103 HC-NIC Page 90 of 103 Created On Wed Aug 17 02:57:12 IST 2016 C/SCA/9915/2016 CAV JUDGMENT to be enacted in the year 2007 which came into effect from 15.05.2008, inter alia, for various purpose including for the purpose of providing fixation of percentage of quota for government seats and management seats on the basis of consensual arrangement between the State Government and the self-financed professional educational institutions. Prior to the enactment of the Act, it was conveyed by all self-financed professional medical and dental colleges that since they wanted to avoid the hassle of devising their own common entrance test, they would be rest content with seats to the tune of 25% as being management quota seats with 75% of the available seats would remain with the State Government and as a result of a necessary consensus between the parties in that behalf, corresponding provisions, more particularly, in Section 2(g) defining the term 'Government seats' and Section 2(h) defining the term 'Management seats' came to be incorporated. Section 2(g) of the Act of 2007 provides as under:
"(g) "Government seats" means,-
(i) all the seats of the professional
courses in the Government colleges or institutions and in the aided colleges or institutions; and Page 91 of 103 HC-NIC Page 91 of 103 Created On Wed Aug 17 02:57:12 IST 2016 C/SCA/9915/2016 CAV JUDGMENT
(ii) seventy-five percent seats of the professional courses of the total approved seats in the unaided colleges or institutions;
Whereas, Section 2(h) of the Act of 2007 provides that:
"Management seats" means twenty-five per cent, seats of the professional courses of the total approved seats in the unaided colleges or institutions including fifteen per cent, Non-Resident Indian seats."
13.2. Thus, from the aforesaid definition, it is clear that twenty-five percent management seats include fifteen percent NRI seats. However, dispute arose between the consortium of self- financed dental colleges and the State Government with regard to sharing of the seats in post graduation courses and a petition was filed before this Court by the association. During the pendency of the said petition, consensus was arrived at between the State and the petitioner bifurcating the seats at the level of graduation at 75:25 and at the level of post graduation at 50:50 between the State and the management. The said petition was accordingly disposed of on 30.03.2012 recording such consensus. It has come on record that the said arrangement was challenged by some of the students by filing a petition before this Court and the Division Bench Page 92 of 103 HC-NIC Page 92 of 103 Created On Wed Aug 17 02:57:12 IST 2016 C/SCA/9915/2016 CAV JUDGMENT of this Court, by an order dated 23.08.2012, set aside the said settlement against which the consortium of self-financed dental colleges have filed SLP before the Hon'ble Supreme Court, wherein the order dated 23.08.2012 passed by this Court has been stayed. The effect of the said order is that settlement arrived at between the State and the petitioner Consortium is in force. If the order dated 30.03.2012 passed in Special Civil Application No.18234 of 2011 recording consensus is examined, it is revealed that the parties have agreed for the bifurcation of the seats in ratio of 75:25 between the State quota and Management quota as prescribed by the Act. Thus, 25% quota of Management as prescribed by the Act means it includes 15% NRI quota.
13.3. Learned Advocate General has submitted that by way of the impugned ordinance, the State has not sought to appropriate any of the NRI seats, but to convert the same into 'Management seats' to be filled in by the Institutions, for which the State has also committed to see that the institutions are allowed to increase fees on pro rata basis in respect of the Management seats in such a fashion that thereby, the fees which the institutions used to receive from the NRI admissions, can be taken care of. It is contended that as per the settlement arrived at before this Court and as recorded in the order passed by this Court in Special Civil Application No.18234 of Page 93 of 103 HC-NIC Page 93 of 103 Created On Wed Aug 17 02:57:12 IST 2016 C/SCA/9915/2016 CAV JUDGMENT 2011, the State has not disturbed 25% management quota and hence the respondent State has not committed any breach of consensus arrived at, as alleged by the petitioner.
13.4. From the aforesaid submissions and from the material produced on record, we are of the opinion that the consensus was arrived at between the State and the petitioner Consortium of self- financed dental colleges for bifurcation of seats in ratio of 75:25 between the State quota and Management quota at graduation level as prescribed under the Act. Thus, such 25% management quota includes 15% NRI quota as per the declaration of law made by Hon'ble Supreme Court in para 131 of P.A.Inamdar's case (supra). Thus, our answer to aforesaid question is that the State cannot go beyond the consensus arrived at with the petitioner of SCA No. 10005 of 2016 is concerned so far as it relates to the NRI quota as prescribed by the Hon'ble Supreme Court in P.A.Inamdar's case (supra).
Question No.B Whether principle of promissory estoppel and/or legitimate expectation would be applicable to the facts of the present case?
14. Learned counsels appearing for the petitioners and the students submitted that the impugned ordinance should not be implemented at least for the current year, inasmuch as relying Page 94 of 103 HC-NIC Page 94 of 103 Created On Wed Aug 17 02:57:12 IST 2016 C/SCA/9915/2016 CAV JUDGMENT upon the practice of granting admission to genuine NRIs in 15% quota in past on continuous basis, rights have accrued in favour of such genuine NRIs, as they have altered the position to their detriment by having come from various counties to India and appeared in State Board's examination and prepared themselves for being admitted in NRI category. In support of the said contention, learned counsel have relied upon the decisions in the case of Nestle India Ltd. (supra), M/s. Manuelsons Hotels Private Limited (supra), M/s. Universal Imports Agency and another (supra) and Neel, Niranjan Majumdar (supra).
14.1. On the other hand, learned Advocate General urged that there can never be a promissory estoppel against the exercise of legislative power and that the legislature can never be precluded from exercising the legislative function by resort to the doctrine of promissory estoppel. It is contended that the decisions upon which the reliance is placed by the learned counsels appearing for the petitioners are in the realm of either administrative law or subordinate legislation with discretionary power to issue exemption, which is subject to the same test in administrative law, as is executive or administrative action. None of the judgments Page 95 of 103 HC-NIC Page 95 of 103 Created On Wed Aug 17 02:57:12 IST 2016 C/SCA/9915/2016 CAV JUDGMENT relied by the learned counsels appearing for the petitioners are with reference to application of doctrine of promissory estoppel against the legislature and its exercise. Learned Advocate General, therefore, urged that the impugned ordinance cannot be struck down on the ground that the State Legislature was estopped from undertaking its legislative exercise for abolishing NRI category under the Act of 2007 so as not to belie the hopes of some of the petitioners who are genuine NRIs from getting admission in NRI category at least in a current year since they, while relying upon the past practice in this behalf, have altered their position.
14.2. Learned Advocate General has placed reliance upon the decisions in case of M/s. Motilal Padampat Sugar Mills Co. Ltd. (supra), Bangalore Development Authority and Ors. (supra) and Himachal Pradesh Nizi Vyavsayik Prishikshan Kendra Sangh (supra) in support of his submission.
14.3. It is true that the petitioners students have altered their position relying upon the legislation enacted by the respondent State in the year 2007, wherein 15% NRI quota has been prescribed. They believed that this year also the respondent State would continue Page 96 of 103 HC-NIC Page 96 of 103 Created On Wed Aug 17 02:57:12 IST 2016 C/SCA/9915/2016 CAV JUDGMENT the said quota and therefore they have not taken admission elsewhere and from different countries they came to the State of Gujarat for taking admissions on such quota in medical and/or dental courses. However, we do not deem it proper to discuss this issue any further and leave it open to make such submission in appropriate case as we are inclined to interfere with the impugned ordinance on other grounds.
15. It is further urged that by way of impugned ordinance attempt is made to do away with various decisions rendered by the Hon'ble Supreme Court and directions contained in para 131 of the judgment in the case of P.A.Inamdar (supra) as well as consensus recorded by this Court in the order dated 30.03.2012 in Special Civil Application No.18234 of 2011 and the decision rendered by this Court in the case of Kolasani Sai Yashwanth Reddy (supra).
16. Learned Advocate General submitted that the aforesaid decision would not be helpful to the petitioners as the same was dealing with altogether a different controversy. In the said case, the controversy was to the effect that concept of domicile of the State is alien in the category of Non-Resident Indian seats and therefore, this aspect has nexus to do with one Page 97 of 103 HC-NIC Page 97 of 103 Created On Wed Aug 17 02:57:12 IST 2016 C/SCA/9915/2016 CAV JUDGMENT of the reasons indicated in Statement of Object and Reasons of the impugned ordinance.
17. In view of the discussions made hereinabove, we are of the view that the impugned ordinance is in violation of the directions issued and declaration made by the Hon'ble Supreme Court in the case of P.A.Inamdar (supra). The respondent State enacted the Act of 2007 pursuant to the direction and declaration of law made by the Hon'ble Supreme Court by which NRI quota has been included in the management seats. Thus, without making arrangement with the concerned management and the institutions, such 15% NRI quota could not have been deleted. Moreover, though there is no reference of NRI dependent in para 131 of the decision of Hon'ble Supreme Court in the case of P.A.Inamdar (supra), the respondent State thought it fit to include the word 'dependent' in the definition. Thus, when the Act of 2007 permitted the dependents of the NRI in NRI quota for the purpose of admission, there is no reason for the respondent State to submit that benefit of such seats are not fully taken by the NRI while it is open for the State to amend the law to bring in conformity with the judgment of the Hon'ble Supreme Court in the case of P.A.Inamdar (supra), by removing the term 'dependants' from the definition of Page 98 of 103 HC-NIC Page 98 of 103 Created On Wed Aug 17 02:57:12 IST 2016 C/SCA/9915/2016 CAV JUDGMENT Non-Resident Indian seats. But, at the same time, that itself is no reason at all to remove the NRI quota itself.
18. Learned Advocate General contended that the meeting was held before the ordinance was promulgated with the representatives of the concerned management/institutions of medical and dental colleges and thereafter it was decided to remove 15% NRI quota and to give 25% management quota to such institutions. It is also decided to increase the fees so far as management seats are concerned. However, we are of the opinion that even if some of the representatives of the institutions of medical and dental colleges have agreed for deletion of NRI quota and for increase in fees in entire 25% management quota, the same is not permissible in view of the declaration made by the Hon'ble Supreme Court in the case of P.A.Inamdar (supra). Even fee in 25% management seats is increased it would amount to a cross subsidy and the same can be termed as capitation fees which is specifically prohibited under Section 12 of the Act of 2007. Thus, we are of the opinion that charging of higher fees so far as NRI quota is concerned, as observed in para 131 of the P.A.Inamdar's case (supra) the same is a rationale having a nexus with the well defined and permissible Page 99 of 103 HC-NIC Page 99 of 103 Created On Wed Aug 17 02:57:12 IST 2016 C/SCA/9915/2016 CAV JUDGMENT object to be achieved. As against this permitting higher fees in respect of the seats which will be considered as management seats on account of abolition of NRI seats by the impugned ordinance will have the effect of creating a class within the Indians who can afford higher fees simply on the basis of their economic strength. Hence, it will amount to giving a preferential treatment to those who are economically powerful.
19. Thus, in view of the discussion made hereinabove, we make it further clear that the Hon'ble Supreme Court in para 131 of P.A.Inamdar (supra) has specifically observed that a limited reservation of such seats not exceeding 15% may be made available to NRI dependent on the discretion of the management subject to two conditions (1) such seats should be utilized bona fide by the NRIs only and their children and wards and (2) within this quota the merit should not be given a complete go bye. Thus, the Hon'ble Supreme Court has considered for reservation of seats for NRIs only and for their children and wards. There is no reference to dependent of NRI/sponsored NRI. However, while enacting Act of 2007, 'Non- Resident Indian seats' is defined to mean fifteen percent seats reserved for children or wards or the dependents for the education Page 100 of 103 HC-NIC Page 100 of 103 Created On Wed Aug 17 02:57:12 IST 2016 C/SCA/9915/2016 CAV JUDGMENT purpose, of the Non-Resident Indian, to whom admission is to be given in the professional educational colleges or institutions. By the aforesaid definition, the Act permitted to admit seats in NRI quota not only to children and wards of NRIs but also of dependents, for education purpose, of the NRI. The word 'dependents' introduced in the said definition runs contrary to the judgment of the Hon'ble Supreme Court.
20. At this stage, we once again reiterate that when the original Act of 2007 permitted the dependents of the NRIs under NRI quota for the purpose of admission, there is no reason for the respondent State to submit that benefit of such seats are not fully taken by the NRI while it is open for the State to amend the law to bring in conformity with the judgment of the Hon'ble Supreme Court in the case of P.A.Inamdar (supra), by removing the term 'dependants' from the definition of Non- Resident Indian seats. But, at the same time, that itself is no reason at all to remove the NRI quota itself.
21. It is required to be noted here that in the Act of 2007, relevant provisions of section 2(h) and (i) and second proviso to clause (ii) of Section 6 provide as under:
Page 101 of 103HC-NIC Page 101 of 103 Created On Wed Aug 17 02:57:12 IST 2016 C/SCA/9915/2016 CAV JUDGMENT (2)Definitions .-
xxx xxx xxx
(h) "Management seats" means twenty-five percent seats of the professional courses of the total approved seats in the unaided colleges or institutions including fifteen per cent, Non-Resident Indian seats."
(i) "Non-Resident Indian seats" means fifteen per cent seats reserved for children or wards or the dependents for the education purpose, of the Non-Resident Indian, to whom admission is to be given in the professional educational colleges or institutions."
xxx xxx xxx
6. Admission to Government seats and management seats.-
xxx xxx xxx Provided further that where any Non- Resident Indian seat remains vacant, such seat shall be filled in from the management seats:
21.1. However, by way of the impugned ordinance, following changes have been made:
"3. Amendment of section 2 of Guj. 3 of 2008.- In the principal Act, in section
2.-
(i) In Clause (h), the words "including Page 102 of 103 HC-NIC Page 102 of 103 Created On Wed Aug 17 02:57:12 IST 2016 C/SCA/9915/2016 CAV JUDGMENT fifteen per cent, Non-Resident Indian seats" shall be deleted'
(ii) clause (i) shall be deleted.
4. Amendment of Section 6 of Guj. 3 of 2008.- In the principal Act, in Section, 6 in clause (ii), second proviso thereto shall be deleted.
22. In view of the aforesaid discussions, the impugned ordinance No.2 of 2016 promulgated on 10.06.2016 under the nomenclature of the Gujarat Professional Medical Educational Colleges or Institutions (Regulation of Admission and Fixation of Fees) (Amendment) Ordinance, 2016 is set aside to the extent of genuine NRI/NRI proper i.e. children or wards of the Non-Resident Indian. However, it is made clear that this will not apply either to the NRI dependent or NRI sponsored. Writ petitions are partly allowed to the extent indicated above. No order as to cost.
(R. SUBHASH REDDY, CJ) (VIPUL M. PANCHOLI, J.) Jani Page 103 of 103 HC-NIC Page 103 of 103 Created On Wed Aug 17 02:57:12 IST 2016