Bombay High Court
Suresh Ramprasad Gupta vs State Of Maharashtra Through Chief ... on 3 July, 2019
Author: S. C. Dharmadhikari
Bench: S.C. Dharmadhikari, G.S. Patel
SURESH R GUPTA V STATE OF MAHARASHTRA & ORS
506-wp6762-J.doc
Shephali
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 6762 OF 2019
Suresh ramprasad gupta,
Adult, Aged 61 years,
Occ.: Retd. Chief General Manager, SEBI and
now Legal Practioner,
R/o. 502, Royal Resort, Building T-38, Shastri
Nagar, Andheri (W), Mumbai - 400 053. ... Petitioner
~ versus ~
1.state of maharashtra,
Through its Chief Secretary.
2. the secretary,
Department of Higher & Technical Education
Mumbai - 400 032.
3. maharashtra national law
university mumbai,
Through its Vice-Chancellor,
2nd & 6th Floor, CETTM-MTNL Building,
Hiranandani Gardens, Powai,
Mumbai - 400 076 ... respondents
A PPEARANCES PETITIONER IN PERSON Mr Suresh Ramprasad Gupta.
FOR RESPONDENT NOS. 1 Ms AA Purav, AGP. Page 1 of 17 3rd July 2019 ::: Uploaded on - 05/07/2019 ::: Downloaded on - 05/07/2019 22:20:57 :::
SURESH R GUPTA V STATE OF MAHARASHTRA & ORS 506-wp6762-J.doc AND 2.
FOR RESPONDENT NO. 3. Mr Shailendra S Kanetkar.
CORAM : S.C. DHARMADHIKARI & G.S. PATEL, JJ DATE : 3rd July 2019 P.C.: (Per GS Patel J)
1. When this Writ Petition was first mentioned before us on 14th June 2019, the sole Petitioner, who was present at the time, instructed his Counsel engaged at the time to convey to us an extremely disturbing state of affairs. Specifically, an impression was sought to be created that for the academic year 2019-20, after providing for Maharashtra State-specific reservation for admissions to the five year BA LLB degree programme at the Maharashtra National Law University, Mumbai, there were no seats available in the open category at all. We therefore placed the matter for urgent admission three days later on 17th June 2019. On that date, Mr Kanetkar accepted notice for the 3rd Respondent, Maharashtra National Law University Mumbai ("MNLUM"). Ms Purav, learned Page 2 of 17 3rd July 2019 ::: Uploaded on - 05/07/2019 ::: Downloaded on - 05/07/2019 22:20:57 ::: SURESH R GUPTA V STATE OF MAHARASHTRA & ORS 506-wp6762-J.doc AGP, also appeared for Respondents Nos. 1 and 2, the State of Maharashtra and the Secretary, Department of Higher & Technical Education, Mumbai. We asked Mr Kanetkar to take instructions and revert.
2. A few days later we heard learned Senior Counsel then engaged by the Petitioner on 20th June 2019. We passed the following order:
"1. This Petition projects that a Maharashtra domiciled student, seeking admission to the Maharashtra National Law University, situated either in Mumbai or Aurangabad and Nagpur, if he is not belonging to a reserved category, would get an open seat merely by virtue of his residence. In other words, Maharashtra domiciled could be a stipulation and lawfully and constitutionally permissible to be entered for the open category students. The arguments of Mr. Desai learned senior counsel is that such a stipulation is absent in the current year brochure.
2. Mr. Kanetkar appearing for the university, on instructions, states that firstly, the petition seeks to suggest that all the seats are reserved and there are no open seats. That is factually incorrect for the pattern that is followed is that apart from the seats reserved for Other Backward Class and Special Backward Class, all other seats are open. They can be taken by open category students drawn from the merit list.Page 3 of 17
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3. As far as the second aspect is concerned, Mr. Kanetkar says that presently his instructions are that the Maharashtra State student does not suffer nor is he prejudicially affected for it is a National level institution. By its mere location it would not be permitted to reserve seats for the local candidates. Else, it would be a State level institution. The best and the most meritorious students must be admitted to a National level university from wherever she or he has educated himself in India. However, Mr Kanetkar says that an affidavit would be filed dealing with the position insofar as the open seats are concerned and presently, there is no apprehension because there are rounds of admission and though one is scheduled tomorrow i.e. 21st June, 2019, the actual admission to such student, whose name is in the list, would be given only on 2nd July 2019. Therefore, this affidavit would be filed on or before that date and we may hear the matter on 1st July, 2019.
4. Stand over to 1st July, 2019."
3. We then listed the matter on 1st July 2019. By this time the Petitioner had discharged his Advocates and sought leave to appear in person. We granted that liberty, though reluctantly, and posted the matter on 2nd July 2019 for passing orders. We could not pass orders on that day on account of disruptions in the city due to exceptionally heavy monsoon rains and we then stood the matter over further.
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4. We regret to note that the impression that was first conveyed to us turns out on a closer examination to be entirely and perhaps deliberately misleading. We will set out the issue briefly at the forefront so that there is no ambiguity about what it is that the Petition seeks. It is true that for the academic year 2019-20 for the LLB course there is a reservation that reaches up to 69 out of 100 seats in various categories. These 69 seats are for various reservations applicable to the Maharashtra State. We will set these out in detail a little later. The remaining 31 seats are in the all India general category. What the Petitioner says, based on what we believe to be an inaccurate reading of the relevant provision, and, specifically, one clause of an amendment to the Maharashtra National Law University Act 2014 is that there ought to be an additional reservation for Maharashtra- domiciled students from the open category. Since there is no such specific reservation for students domiciled in Maharashtra, the Petitioner alleges discrimination and arbitrariness, a violation of a statutory provision brought in way by an amendment and, effectively, therefore seeks an additional reservation for such Maharashtra domiciled students. Page 5 of 17
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5. We are not persuaded that there is a slightest merit in this Petition under Article 226 of the Constitution of India which seeks the following reliefs.
"17(a) issue a Writ of Mandamus or Writ in the nature of Mandamus and/or any other appropriate writ, order or direction under Article 226 of the Constitution of India, directing the Respondent No.3 to follow the Government of Maharashtra's Order dated 05th December 2018 GO/BCC2018/P.K.581A/2018/16-B (Exhibit 'E') while giving admission process to Integrated BA LLB (Hons) 5 years degree programme for the Academic year 2019-20 conducted by the Respondent No.3, in the interest of justice and in view of peculiar facts and circumstances of the case;
17(b) Stay admission process to Integrated BA LLB (Hons) 5 years degree programme for the Academic Year 2019-20 conducted by the Respondent No.3, pending the hearing the final disposal of this Writ Petition, in the interest of justice and in view of peculiar facts and circumstances of the case;"
6. There is an Affidavit in Reply dated 28th June 2019 filed by one Vivek Gavhane, presently the Registrar of the MNLUM from pages 86 to 91 and we will summarise this shortly.
7. The Petitioner is himself not an aspiring student. He is a former Chief General Manager of the Securities and Exchange Page 6 of 17 3rd July 2019 ::: Uploaded on - 05/07/2019 ::: Downloaded on - 05/07/2019 22:20:57 ::: SURESH R GUPTA V STATE OF MAHARASHTRA & ORS 506-wp6762-J.doc Board of India. He says he now practices law. He also says that he wishes his son to pursue a carrier in law and wants his son to take admission. Whether his son wants to do this we do not know because the son himself says nothing at all. We do not know why, if the son was so very keen, he could not have brought this Petition in his own name. He is surely sentient enough to lend his name to such a Petition. Indeed we find it remarkable that the son's name is not mentioned anywhere in the Petition or its annexures. We are not even told that what rank he scored in the Common Law Admission Tests or CLAT. That information comes only in the Affidavit in Reply, where we are told that he placed in rank No.1076 out of about 56,000 students.
8. We will first notice the undisputed manner in which admissions to the National Law Universities are conducted. The MNLUM is one of these National Law Universities. There are two others in Maharashtra, in Aurangabad and Nagpur respectively. All the National Law Universities in India form a sort of integrated grid and from the very inception the intention was to foster excellence in Page 7 of 17 3rd July 2019 ::: Uploaded on - 05/07/2019 ::: Downloaded on - 05/07/2019 22:20:57 ::: SURESH R GUPTA V STATE OF MAHARASHTRA & ORS 506-wp6762-J.doc legal education and training. Several such National Law Universities now exist in various parts of the country. Many of them have gained enviable reputations even internationally.
9. The course is an integrated BA LLB (Hons) five year degree programme. There are in addition LLM degree programmes and Ph.D. programmes at one or more of these National Law Universities. We are not concerned with those. Admissions are on the basis of a Common Law Admission Test ("CLAT") that is administered all India. Each candidate receives a unique rank. No two candidates ever have the same rank. The top-ranked candidates naturally get their first preference of National Law Universities for enrolment or placement. Each University has a certain quota of reserved seats. The open or unreserved seats are available to all students across India who took the CLAT. Some Universities in some States may have a provision for giving preference to locally domiciled students but we are not concerned with any University other than MNLUM.
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10. As a general rule a candidate who has rank No. 1 and is in the open category will have his or her choice of University. The results of the CLAT all India ranking for 2019 and the subsequent placements show that from rank No.1 to rank No. 49 (and then a few ranks below), all students found placement in the University of their choice namely, the National Law School Bangalore. The rank holder at No. 50 opted for NALSAR at Hyderabad and was the first placement at that University. These placements were unrelated to any questions of domicile.
11. The Maharashtra National Law University was constituted and set up under a dedicated statute called the Maharashtra National Law University Act 2014 ("MNLU Act"). This Act establishes and incorporates Universities specifying their names and headquarters in a Schedule annexed to that Act. The State Government also has the power to constitute new universities. This is under Section 3 of the MNLU Act. The Schedule, referencing Section 3(1), establishes and incorporates three universities of Page 9 of 17 3rd July 2019 ::: Uploaded on - 05/07/2019 ::: Downloaded on - 05/07/2019 22:20:57 ::: SURESH R GUPTA V STATE OF MAHARASHTRA & ORS 506-wp6762-J.doc which Maharashtra National Law University Mumbai is one and the other two are at Aurangabad and Nagpur.
12. Section 2 contains definitions. Of these, the definition of University tells us that it means the Maharashtra National Law University specified in the Schedule and Academic Council means the Academic Council referred to in Section 21.
13. For our present purposes, Section 21 must be noted. This is what it says.
"21. The Academic Council shall be the academic body of the university and shall, subject to the provisions of this Act and the regulations, have power of control and general regulation of, and be responsible for, the maintenance of standards of instruction, education and examination of the university, and shall exercise such other powers and perform such other functions as may be conferred or imposed upon it by this Act or the regulations. It shall have the right to advise the Executive Council on all academic matters."
14. We turn immediately to Section 39 which reads thus:
"39. (1) No student, shall be eligible for admission to a course of study for a degree or diploma, unless he possesses such qualifications as may be prescribed by the regulations.Page 10 of 17
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15. According to the Petitioner, the MNLU Act underwent an amendment by the Maharashtra National Law University (Amendment Act) 2018. Section 39 of the Act was one of the many sections that was amended. The old sub-section (2) was substituted and a new sub-section (3) was added along with the proviso. A further sub-section (4) was also added.
16. Section 39 as amended reads thus:
"39. (1) No student, shall be eligible for admission to a course of study for a degree or diploma, unless he possesses such qualifications as may be prescribed by the regulations.
(2) The students shall be admitted on the basis of merit through such process as may be prescribed by the Regulations, from time to time.
(3) The university shall adopt the policy of the Government of Maharashtra and orders issued, from time to time, in regard to the reservation for Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Page 11 of 17 3rd July 2019 ::: Uploaded on - 05/07/2019 ::: Downloaded on - 05/07/2019 22:20:57 ::: SURESH R GUPTA V STATE OF MAHARASHTRA & ORS 506-wp6762-J.doc Nomadic Tribes and Other Backward Classes, for the purpose of admission of students:
Provided that, the university shall ensure that at least twenty-five per cent of the students admitted are domiciled in the State of Maharashtra.
(4) The university may admit Foreign Nationals or Non-Resident Indian or Non-Resident Indian sponsored candidate on the basis of merit through such process and on such terms and conditions, as may be prescribed by the Regulations, from time to time."
17. The Petition says that the online brochure of MNLUM bifurcates the total number of seats into two categories. There is the All India category and then there is the Maharashtra State category. For the previous academic year 2018-2019, the break up between All India category and the Maharashtra State category was roughly 50:50. For the academic year 2019-2020 this has changed. What is being pointed out is that the All India category now has 31 seats. The remaining 69 seats are in the Maharashtra State category but within the Maharashtra State category, there are No seats for the Maharashtra general category, and all 69 seats are taken up by one or the other of various specified reservations. The tabulation in Page 12 of 17 3rd July 2019 ::: Uploaded on - 05/07/2019 ::: Downloaded on - 05/07/2019 22:20:57 ::: SURESH R GUPTA V STATE OF MAHARASHTRA & ORS 506-wp6762-J.doc question included in paragraph 6 at page 7 of the Petition memo reads thus:
Sr. Category (no. of seats is 100) No. of
No. seats
1 All India Category [B] 31
2 Maharashtra State (MS) Category [A] 69
Sub-categories within [A]
Sr. Sub-category Distribution of
No. said 69 seats
a MS - General NIL
b MS - SC 13
c MS - ST 07
d MS - Denotified Jatis (A) 03
e MS - NT (B) 03
f MS - NT (C) 04
g MS - NT (D) 02
h Specially Backward Class 02
i MS - OBC 19
j MS - SCBC category 16
Sub - Total 69
Total 100
18. The challenge is to this deletion of the general category for Maharashtra or its reduction to Nil seats. In other words all State- specific seats are distributed amongst various reserved categories Page 13 of 17 3rd July 2019 ::: Uploaded on - 05/07/2019 ::: Downloaded on - 05/07/2019 22:20:57 ::: SURESH R GUPTA V STATE OF MAHARASHTRA & ORS 506-wp6762-J.doc and there is no seat that is available within the State-specific category in the open category.
19. The argument from the Petitioner is that this is arbitrary and unjust. Attention is drawn to the newly introduced proviso below Section 39(3) which says, as noted above, that at least 25% of students admitted to the Maharashtra National Law Universities (at Mumbai, Aurangabad and Nagpur) must be those domiciled in Maharashtra.
20. The Affidavit in Reply by Mr Gavhane, the Registrar of the MNLUM on behalf of the 3rd Respondent sets out that admissions are conducted on the CLAT basis by a consortium of National Law Universities. Section 6 of the MNLU Act requires the University to adopt the policy of the State Government that regard to the reservations for Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes and Other Backward Classes. That Section reads thus:
Page 14 of 17
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(2) The university shall adopt the general policy of the State Government in regard to the welfare of various categories of weaker sections of the society and minorities as directed by the State Government from time to time."
21. The Affidavit says that with the introduction of additional 16% reservation, the total reservation in Maharashtra went up to 68%. Maharashtra National Law University has only 100 seats for the five year LLB course. Thus 69 seats would come within the reservation. policy of the State in consonance with Section 6. The balance 31% are general seats available purely on merit to all students irrespective of domicile. It is also pointed out that in its 11th meeting the Academic Council resolved that 50% of the seats would be according to the State Government reservation policy and the balance would be filled in from all over India. With the introduction of the 2018 Socially and Economically Backward Classes, (SEBC Act) 2018 and an additional reservation for 16%, this 50% in the All India general Page 15 of 17 3rd July 2019 ::: Uploaded on - 05/07/2019 ::: Downloaded on - 05/07/2019 22:20:57 ::: SURESH R GUPTA V STATE OF MAHARASHTRA & ORS 506-wp6762-J.doc category was reduced. It is also stated in this Affidavit that the Petitioner's son at rank 1076 would thus have to compete with students from across India for admission.
22. We are not impressed by the argument that there has to be an additional reservation for domiciled students or that this is the mandate of amended Section 39. That requirement of 25% intake from domiciled students applies to the entire intake of 100 seats, that is to say that 25% of 100 seats must be filled by the students locally domiciled. There is no requirement in the statute or in logic for a further reservation or quota for locally domiciled students over and above as per the State policy for Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes and Other Backward Classes etc. What the Petitioner effectively seeking is a reservation within the All India open category. To put it differently the Petitioner's son claims to be entitled to compete all India for all other universities but for Maharashtra there must be a special reservation for Maharashtra-domiciled students to which students from other States and domiciled would not be eligible. It is Page 16 of 17 3rd July 2019 ::: Uploaded on - 05/07/2019 ::: Downloaded on - 05/07/2019 22:20:57 ::: SURESH R GUPTA V STATE OF MAHARASHTRA & ORS 506-wp6762-J.doc difficult to accept any such submission and we are unable to see how this can ever be said to be discriminatory, let alone arbitrary, if a Maharashtra-specific domiciled additional or super quota or reservation is not made. In all this, we cannot lose sight of the essential purpose of establishing and incorporating these National Law Universities. They are not meant to promote or foster regionalism or parochialism. Each University should be able to draw the best from the country. It is a matter of fact that those who rank highest choose universities according to their standing irrespective of domicile. Today the National Law School in Bangalore and NALSAR in Hyderabad enjoy the top two positions and are the most sought after.
23. In this view of the matter we are unable to find any merit in the Petition. The Petition is dismissed. There will be no order as to costs.
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