Gujarat High Court
Association Of Self Financed Ayurveda ... vs State Of Gujarat & on 2 August, 2017
Equivalent citations: AIR 2017 (NOC) 1130 (GUJ.)
Author: R. Subhash Reddy
Bench: R.Subhash Reddy, Vipul M. Pancholi
C/SCA/12829/2017 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 12829 of 2017
With
SPECIAL CIVIL APPLICATION NO. 12845 of 2017
With
SPECIAL CIVIL APPLICATION NO. 12848 of 2017
With
SPECIAL CIVIL APPLICATION NO. 12856 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE
MR. R.SUBHASH REDDY
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
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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 ?
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ASSOCIATION OF SELF FINANCED AYURVEDA COLLEGES OF
GUJARAT....Petitioner(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR DC DAVE, SENIOR ADVOCATE with MR UDIT VYAS & MR JIGAR M
PATEL, ADVOCATES for Petitioners
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C/SCA/12829/2017 CAV JUDGMENT
MR PRAKASH JANI, ADDITIONAL ADVOCATE GENERAL with MS MANISHA
L SHAH, GOVERNMENT PLEADER and MR KM ANTANI & MR BHARAT
VYAS, ASSISTANT GOVERNMENT PLEADERS for Respondents
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CORAM: HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH
REDDY
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 02/08/2017
CAV JUDGMENT
(PER : HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY)
1. In these four Special Civil Applications under Article 226 of the Constitution of India, validity of Rule 2(1)(i), Rule 7 and Rule 8 of Gujarat Professional Medical Educational Courses (Regulation of Admission in Undergraduate Courses) Rules, 2017, framed under the Gujarat Professional Medical Educational Colleges or Institutions (Regulation of Admission and Fixation of Fees) Act, 2007, is questioned, and therefore, they are heard together and disposed of by this common judgment. For the purpose of disposal, we draw facts from Special Civil Application No. 12829 of 2017.
2. Special Civil Application No. 12829 of 2017 is filed with the prayers, which read as under:
Page 2 of 58
HC-NIC Page 2 of 58 Created On Thu Aug 03 00:05:15 IST 2017 C/SCA/12829/2017 CAV JUDGMENT "a) That this Hon'ble Court may be pleased to declare Rule 2(1)(i), Rule 7 and Rule 8 of the Gujarat Professional Medical Educational Colleges Courses (Regulation of Admission in Undergraduate Courses) Rules, 2017 as ultra-vires to the extent the same are having the effect of depriving the management of self-financed colleges engaged in imparting education in the discipline of Ayurveda at the level of graduation from granting admissions in respect of Management Seats as provided in Section 6 of the Gujarat Professional, Medical, Educational Colleges or Institutions (Regulation of Admissions and Fixation of Fees) Act, 2007.
b) That pending admission, hearing and final disposal of the present petition, this Hon'ble Court may be pleased to stay the implementation and operation of Rule 2(1)(i), Rule 7 and Rule 8 of the Gujarat Professional Medical Educational Colleges Courses (Regulation of admission in Undergraduate Courses) Rules, 2017 to the extent the same are having the effect of depriving the management of self-financed colleges engaged in imparting education in the discipline of Ayurveda at the level of graduation from granting admissions in respect of Management Seats as provided in Section 6 of the Gujarat Professional, Medical, Educational Colleges or Institutions (Regulation of Admissions and Fixation of Fees) Act, 2007.
xxx xxx xxx"
3. In this petition, the petitioner is Association of Self-
financed Ayurveda Colleges of Gujarat. All the members of the petitioner Association are running Ayurveda colleges in the State of Gujarat imparting education in the discipline of Ayurveda at the level of graduation and post graduation leading to conferring of educational qualification of Bachelor of Ayurveda Medicine & Surgery Page 3 of 58 HC-NIC Page 3 of 58 Created On Thu Aug 03 00:05:15 IST 2017 C/SCA/12829/2017 CAV JUDGMENT (BAMS) and Doctor of Medicine (MD Ayu.). Respondent no.1 State, through its Health and Family Welfare Department, inter alia, looks after the field of education in the State of Gujarat. Admission Committee, respondent no.2 herein, is a body constituted under section 4 of the Gujarat Professional Medical Educational Colleges or Institutions (Regulation of Admissions and Fixation of Fees) Act, 2007. Respondent no.2 regulates the process of admission, inter alia, in respect of self-financed colleges in the State, engaged in imparting education in the discipline of Ayurveda at the level of graduation and Post graduation.
3.1. After the judgment in the case of P.A. Inamdar Vs. State of Maharashtra and others, reported in (2005) 6 Supreme Court Cases 537, the Gujarat Professional Medical Educational Colleges or Institutions (Regulation of Admission and Fixation of Fees) Act, 2007 was enacted in the State of Gujarat to make special provision for regulation of admissions in the professional medical educational colleges or institutions in the State and fixation of fees in such colleges or institutions in the State, which empowers Page 4 of 58 HC-NIC Page 4 of 58 Created On Thu Aug 03 00:05:15 IST 2017 C/SCA/12829/2017 CAV JUDGMENT the authorities to fix fees in such colleges or institutions and for matters connected therewith. The relevant provisions of the Gujarat Professional Medical Educational Colleges or Institutions (Regulation of Admission and Fixation of Fees) Act, 2007 reads as under:
2(a) "Admission Committee" means the Admission committee constituted in accordance with the provisions of section 4;
xxx xxx xxx 2(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
(ii) seventy-five per cent seats of the professional courses of the total approved seats in the unaided colleges or institutions;
2(h) "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;
xxx xxx xxx
2(k) "professional courses" means the courses
conducted in any of the following disciplines, namely:-
(i) Medicine, Dentistry, Ayurveda, Homeopathy, Physiotherapy and Nursing, and
(ii)such other courses as the State Government may, by notification in the Official Gazette, declare;Page 5 of 58
HC-NIC Page 5 of 58 Created On Thu Aug 03 00:05:15 IST 2017 C/SCA/12829/2017 CAV JUDGMENT xxx xxx xxx
4. (1) The State Government shall, for the purpose of admission of students to the professional educational colleges and institutions, constitute one or more Admission Committees consisting of such number of members as may be prescribed. Different Committees may be constituted for the different professional courses.
(2) The term of office and other conditions of the members of the Committee shall be such as may be prescribed.
(3) The Admission committee shall guide, supervise and control the entire process of admission of students to the professional educational colleges or institutions.
xxx xxx xxx
6. The admission of students in the professional educational colleges or institutions shall be given in the following manner, namely,:-
(i) all the Government seats shall be filled on the basis of merit list prepared by the Admission Committee; and
(ii) the management seats to be filled by the management of the respective professional educational college or institution shall be on the basis of inter-se merit list of the students to be admitted against the management seats:
Provided that no student shall be admitted against the management seat unless his name appears in the merit list prepared by the Admission Committee:
Provided further that where any Non-Resident Indian seat remains vacant, such seat shall be filled in from the management seats:
Provided also that where any management seat remains vacant, such seat shall be filled in Page 6 of 58 HC-NIC Page 6 of 58 Created On Thu Aug 03 00:05:15 IST 2017 C/SCA/12829/2017 CAV JUDGMENT from the Government seats.
xxx xxx xxx 3.2. Section 20 of the Gujarat Professional Medical Educational Colleges or Institutions (Regulation of Admission and Fixation of Fees) Act, 2007 empowers the State to make rules by notification in the Official Gazette for carrying out the purpose of the Act. 3.3. For every academic year, for the purpose of making admission to professional medical educational institutions in the State of Gujarat, rules were being notified every year. As per the rules framed earlier, up to the academic year 2016-17, Admission committee was making admissions to the Government quota of seats and managements of the respective institutions were making admission to the management quota seats as per section 6(ii) of the Gujarat Professional Medical Educational Colleges or Institutions (Regulation of Admission and Fixation of Fees) Act, 2007. For the current academic year 2017-18, impugned Rules, namely, Gujarat Professional Medical Educational Courses (Regulation of Admission in Undergraduate Courses) Rules, 2017 (hereafter Page 7 of 58 HC-NIC Page 7 of 58 Created On Thu Aug 03 00:05:15 IST 2017 C/SCA/12829/2017 CAV JUDGMENT referred to as "Rules of 2017") were framed by making provision for counseling by the Admission Committee for making admission to all the seats including the seats under the management quota. In the impugned Rules, the term "Counselling" is defined under Rule 2(1)(i). Rules 7 and 8 provide for procedure for conduct of admissions and application for admission. Rule 2(1)(i), Rule 7 and Rule 8 of the said Rules, which are questioned in this batch of petitions read as under:-
"2(1)(i) "Counselling" means the Counselling for all admissions to Professional Medical Courses in all Medical Educational Institutions in State established by the Central Government or the State Government, University established by an Act or State legislature or Parliament or Medical Institution or College run by a registered Trust or a Society or a Minority Educational Institutes, Corporations or a Company registered under the Companies Act, 2013 conducted by the Admission Committee under the overall superintendence, direction and control of the Government."
xxx xxx xxx "7. Conduct of Admissions.-
(i)The Admission Committee constituted under section 4 shall supervise and control the entire process of admission of students to Government seats, Management seats and NRI seats to the Professional Medical Educational Courses,Admission to Medical Educational Courses seats shall be made by centralized single window state common counselling by the admission committee to make it a one composite process. The private institutes may send their Page 8 of 58 HC-NIC Page 8 of 58 Created On Thu Aug 03 00:05:15 IST 2017 C/SCA/12829/2017 CAV JUDGMENT representative at the place of counselling.
(ii) There shall be only two rounds of common counselling, each conducted by the Admission Committee. Manual counselling for allotment of students shall be conducted by the Admission Committee to ascertain the number of seats that still remain vacant after the two rounds of online counselling. A list of students in order of merit shall be prepared by the Admission Committee so that in case of any stray vacancy arising in any college, the said seat shall be filled up from the merit list.
(iii) Admission Committee shall, by advertisement in the prominent newspapers widely circulated in the State and on its website and by such other means, as the Committee may consider necessary, publish the date of issue of admission forms, PIN and Information booklet, centers for submission of documents, last date for submission and such other information as may be necessary in this regards. The committee shall decide schedule of admission process, advertisement, preparation and display of merit list, details of fees to be paid, and all aspects pertinent to admission.
(iv) All the Seats shall be filled on the basis of merit list prepared by the Admission Committee.
8. Application for admission:-
(i) The Admission committee shall, by advertisement in the prominent newspapers widely circulated in the State, by web-site and by such other means as it may consider necessary, publish the date of registration, the list of Help centers, last date of submission of Registration Form, Courses offered and such other information as may be necessary in this regard.
(ii) For the purpose of registration, candidate shall be required to make payment of such sum towards the Registration fee, information booklet with PIN from designated centers as determined by the Admission committee.
(iii) A candidate seeking admission shall apply on-line on the website of admission committee for the Page 9 of 58 HC-NIC Page 9 of 58 Created On Thu Aug 03 00:05:15 IST 2017 C/SCA/12829/2017 CAV JUDGMENT registration of his candidature within the time limit specified by the Admission Committee.
(iv) If candidate has made more than one registration for same category of seats, the registration made at the later stage shall be taken into consideration for admission purpose and the other registrations shall be treated as cancelled.
(v) Candidate, who has registered himself online once and wants to correct/change his data, can do so at nearby Help center or Central Control Room at the office of admission committee. For making correction or change, he may approach at nearby help center and justify need of change with valid documentary evidence.
(vi) The receipt/confirmation can be obtained for the application received online. The applicant shall be given the registration number and date of his application in the receipt and the same shall be used as reference in all future correspondence and also used in the merit list."
3.4. In this case, it is mainly the case of the petitioners that the Hon'ble Supreme Court, in its ruling in the case of P.A. Inamdar Vs. State of Maharashtra and others, reported in (2005) 6 Supreme Court Cases 537, concluded that all the seats in respect of a self-financed colleges for the professional course would belong to the management of the concerned self-financed colleges and there could be bifurcation of seats between the State and the management only with the consensual arrangement by and between the State and the management of the concerned self- financed colleges. It is their case that in the aforesaid Page 10 of 58 HC-NIC Page 10 of 58 Created On Thu Aug 03 00:05:15 IST 2017 C/SCA/12829/2017 CAV JUDGMENT judgment, it is categorically held that management quota seats can be filled by consortium of self- financed colleges of a particular discipline by following a method which is fair, transparent and non- exploitative. It is pleaded in the petition that though there is no specific consensual arrangement, but such mechanism can be read into the provisions of the Gujarat Professional Medical Educational Colleges or Institutions (Regulation of Admission and Fixation of Fees) Act, 2007, which has made a provision for division of seats by separating 75% to the extent of Government seats and 25% to the extent of management seats. In the absence of any specific consensual arrangement, though such bifurcation has no legs to stand, but after the enactment of the Gujarat Professional Medical Educational Colleges or Institutions (Regulation of Admission and Fixation of Fees) Act, 2007, bifurcation of seats emanating from the said Act has remained in force with the implementation thereof without any kind of objection. Thus, it is their case that it is safely inferred that bifurcation of seats between the State seats and management seats is in the ratio of 75% and 25% Page 11 of 58 HC-NIC Page 11 of 58 Created On Thu Aug 03 00:05:15 IST 2017 C/SCA/12829/2017 CAV JUDGMENT respectively. It is pleaded that though section 20 of the Gujarat Professional Medical Educational Colleges or Institutions (Regulation of Admission and Fixation of Fees) Act, 2007 confers power upon the State to frame rules only for the purpose of implementation of the provisions of the Act, but the impugned Rules were framed traversing beyond the provisions of the Act. It is their allegation that under Rule 2(1)(i) of the Rules, the term "counselling" referred to in the Rules, 2017 shall embrace within its sweep a centralized counselling through respondent no.2 Admission Committee in respect of all the undergraduate courses falling within the purview of the Gujarat Professional Medical Educational Colleges or Institutions (Regulation of Admissions and Fixation of Fees) Act, 2007. Thus, it is pleaded that counselling to be undertaken by respondent no.2 is not confined to Government seats only as it was done in the past. Thus, in substance, a composite process of admission is provided by the Rules of 2017 for all the types of seats specified by the Gujarat Professional Medical Educational Colleges or Institutions (Regulation of Admissions and Fixation of Fees) Act, 2007. Rule 7 of Page 12 of 58 HC-NIC Page 12 of 58 Created On Thu Aug 03 00:05:15 IST 2017 C/SCA/12829/2017 CAV JUDGMENT Rules of 2017, which provides for conduct of admission states that Admission Committee constituted under section 4 of the Act shall supervise and control the entire process of admission of students to the Government seats, management seats and NRI seats to the Professional Medical Medical Educational Courses. Rule 8 of the Rules of 2017 under the heading of "Application for admission", inter alia, prescribes the procedure to be followed by students for making application seeking admission to various undergraduate courses falling under the purview of the Gujarat Professional Medical Educational Colleges or Institutions (Regulation of Admissions and Fixation of Fees) Act, 2007. As per the same, applications in respect of all the categories of seats carved out under the Act of 2007 are to be made to respondent no.2. 3.5. Thus, it is the case of the petitioners that a conjoint reading of Rule 2(1)(i) as well as Rules 7 and 8 of the Gujarat Professional Medical Educational Courses (Regulation of Admission in Undergraduate Courses) Rules, 2017 leads to the construction that as a departure from past practice in which admissions in Page 13 of 58 HC-NIC Page 13 of 58 Created On Thu Aug 03 00:05:15 IST 2017 C/SCA/12829/2017 CAV JUDGMENT respect of management seats as defined under the Gujarat Professional Medical Educational Colleges or Institutions (Regulation of Admissions and Fixation of Fees) Act, 2007 were granted by the Consortium of the management of self-financed colleges engaged in the field of imparting education in the discipline of Ayurveda at the level of graduation, the Admission Committee is empowered to make admissions even to such seats now. Thus, in substance, the right conferred upon the management of self-financed colleges under the Gujarat Professional Medical Educational Colleges or Institutions (Regulation of Admissions and Fixation of Fees) Act, 2007 for granting admissions in respect of management seats is absolutely done away with by the Rules of 2017. 3.6. The impugned Rules are mainly questioned on the ground that Rule 2(1)(i) as well as Rules 7 and 8 of the Rules of 2017 were framed in such a way that they travel beyond the provisions of the Act and are ultra vires the provisions of Section 6 of the Act. The impugned Rules are contrary to the genesis for bifurcating the Government seats and the Page 14 of 58 HC-NIC Page 14 of 58 Created On Thu Aug 03 00:05:15 IST 2017 C/SCA/12829/2017 CAV JUDGMENT management seats as provided in the decision of the Hon'ble Supreme Court in the case of P.A. Inamdar (supra). It is pleaded that substratum of the Gujarat Professional Medical Educational Colleges or Institutions (Regulation of Admissions and Fixation of Fees) Act, 2007 is based on consensual arrangement as observed in the judgment in the case of P.A.Inamdar (supra), and as such, the impugned rules are contrary to the provisions of the Gujarat Professional Medical Educational Colleges or Institutions (Regulation of Admissions and Fixation of Fees) Act, 2007 and the judgment in the case of P.A. Inamdar (supra). It is also pleaded that no valid reasons are assigned for departure for framing rules and such rules were framed without application of mind and are violative of the rights guaranteed under Articles 14 and 19(1)(g) of the Constitution of India. The petitioner has also pleaded discrimination in framing the impugned Rules. It is the case of the petitioners that so far as technical professional courses are concerned, there is also similar legislation under the nomenclature of "Gujarat Professional Technical Educational Colleges or Institutions Page 15 of 58 HC-NIC Page 15 of 58 Created On Thu Aug 03 00:05:15 IST 2017 C/SCA/12829/2017 CAV JUDGMENT (Regulation of Admission and Fixation of Fees) Act, 2007", which Act contains the provision in the form of section 6 which is pari materia with section 6 of the present Act of 2007. In spite of the same, so far as the technical institutions are concerned, consortium of colleges were given power to make admissions to management quota but so far as the medical professional colleges are concerned, a departure is made which amounts to creating a class within the class, without any intelligible differentia, having nexus with the object to be achieved.
4. Affidavit in reply is filed on behalf of respondent no.1. In the affidavit in reply, while stating that it was not until the new education policy of 1986 that the role of private institutions was officially recognized, it is stated that such role was recognized as State funds were not enough to promote higher education, and as such, need was felt to allow the private sector to assist in providing universal higher education.
4.1. While referring to the case law on the subject, reference is made to the judgments of the Hon'ble Page 16 of 58 HC-NIC Page 16 of 58 Created On Thu Aug 03 00:05:15 IST 2017 C/SCA/12829/2017 CAV JUDGMENT Supreme Court in the cases of Mohini Jain v. State of Karnataka, (1992) 3 Supreme Court Cases, 666; Unni Krishnan J.P. v. State of Andhra Pradesh, (1993) 1 Supreme Court Cases 645; TMA Pai Foundation v. State of Karnataka, (2002) 8 Supreme Court Cases 481 and P.A.Inamdar v. State of Maharashtra (2005) 6 Supreme Court Cases 537. It is categorically stated that most of the States including the State of Gujarat adopted the ratio laid down in P.A. Inamdar case, as a result of which, the Gujarat Professional Medical Educational Colleges or Institutions (Regulation of Admissions and Fixation of Fees) Act, 2007 came to be enacted. Referring to the circumstances under which National Eligibility cum Entrance Test (NEET) came to be devised by the Government and further relying on the decision of the Hon'ble Supreme Court in the case of Sankalp Charitable Trust v. Union of India, (2016) 7 Supreme Court Cases 487, it is stated in paragraphs 3.10 to 3.13 of the affidavit in reply as under:
"3.10 In consonance with the judgments in PA Page 17 of 58 HC-NIC Page 17 of 58 Created On Thu Aug 03 00:05:15 IST 2017 C/SCA/12829/2017 CAV JUDGMENT Inamdar and TMA Pai, and, with a view to streamline entrance procedure in all medical courses, the National Eligibility cum Entrance Test (NEET) came to be devised by the Government.
Though initially struck down in Christian Medical College v. Union of India, (2014) 2 SCC 305 on the ground that holding such a test violates the rights of private institutions, the NEET was restored in Sankalp Charitable Trust v. Union of India, (2016) 7 SCC 487.
3.11 Sankalp Charitable Trust Case shall assume importance in so far as the instant controversy is concerned, since, the contentions raised before the Hon'ble Apex Court by the Sankalp Trust with regards NEET were akin to those being voiced by the petitioner in the present petition with regards common eligibility test/single window entrance procedure depriving private institutions of their autonomy in admission procedure was overruled by the Hon'ble Apex Court. It was held by the Hon'ble Apex Court that NEET did not alter the number of seats offered by private medical colleges, instead it provided a common ranking to which the said private institutes may have to adhere while while providing admissions on management/institutional quota seats (Refer para 32). The NEET was defended in the said case by stating that the same was to introduce uniformity of standards and lessen the hardship of students to write multiple entrance examinations. While defending the NEET it was Page 18 of 58 HC-NIC Page 18 of 58 Created On Thu Aug 03 00:05:15 IST 2017 C/SCA/12829/2017 CAV JUDGMENT stated that neither Right of minority nor the autonomy of private institutions are abrogated as the institutes can chose successful minority and/or retain the option of offering seats to students of their community on the basis of merit list provided by NEET.
3.12 The dictum of Sankalp Charitable Trust was an echo of Modern Dental College & Research Centre v. State of M.P. (2016) 7 SCC 353 where the stand of private medical colleges that conducting of entrance test by the State violated the autonomy of colleges had been rejected.
3.13 Sankalp Charitable Trust Case and Modern Dental Case being the last amongst the continually evolving dictas of the Hon'ble Apex Court presently guide the regulatory mechanism in the arena of private professional educational courses. These authorities of the Hon'ble Apex Court seeks to achieve the necessary balance between the private interests of unaided institution and the character of 'education' as is guaranteed under the constitution."
4.2. While referring to various provisions of the Gujarat Professional Medical Educational Colleges or Institutions (Regulation of Admissions and Fixation of Fees) Act, 2007 and the rules made thereunder, it is Page 19 of 58 HC-NIC Page 19 of 58 Created On Thu Aug 03 00:05:15 IST 2017 C/SCA/12829/2017 CAV JUDGMENT stated that a reading of the provisions of the Gujarat Professional Medical Educational Colleges or Institutions (Regulation of Admissions and Fixation of Fees) Act, 2007 and the Rules of 2017, makes it clear that they provide for a regulatory mechanism for admissions to the professional medical educational institutes/colleges by providing a common entrance test for grant of admissions, that is, NEET. Reliance is placed by respondent no.1, on the decisions of the Hon'ble Supreme Court in the case of Modern Dental College (supra) and Sankalp Charitable Trust (supra) and it is stated that the impugned Rules were framed by providing common counselling having regard to the fact that common test NEET is approved in the aforesaid judgments for the purpose of making admission to professional medical educational courses. Further reference is also made to the communication of the Government of India through Ministry of Ayurved Yoga and Naturopathy Unani Sidha and Homeopathy (AYUSH) dated 25.1.2017 and it is stated that the State of Gujarat has discontinued the Gujarat Common Entrance Test and adopted NEET for all professional medical educational courses. The same Page 20 of 58 HC-NIC Page 20 of 58 Created On Thu Aug 03 00:05:15 IST 2017 C/SCA/12829/2017 CAV JUDGMENT was notified by notification published on 23rd March 2017, stating its intention to adopt common counselling for admission to all the available seats. In the affidavit in reply, it is further stated that mere prescription of common counselling does not per se violate the provisions of section 6 of the Act which stipulates admission to management and Government seats. As such, it is contended that the impugned Rules do not violate the provision of section 6 of the Gujarat Professional Medical Educational Colleges or Institutions (Regulation of Admissions and Fixation of Fees) Act, 2007.
4.3. It is also the case of respondent no.1 in the affidavit in reply that there were number of complaints pertaining to malpractices perpetrated by private unaided institutes and such complaints are testimony of failure of private institutions for triple test as stipulated by P.A. Inamdar case. Pleading that such Rules were framed to extend more benefits to the student community at large, it is pleaded that there is no infirmity in the Rules to invalidate the rules as sought by the petitioners.
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5. Affidavit in rejoinder is filed on behalf of the petitioners. While denying various averments in the affidavit in reply, it is stated that the respondents have placed reliance on the judgments of the Hon'ble Supreme Court in the cases of Modern Dental College and Research Centre and others, (2016) 7 Supreme Court Cases 353 and Sankalp Charitable Trust and another v. Union of India, (2016) 7 Supreme Court Cases 487 and also the communication addressed on behalf of the Union of India by the Ministry of Ayush. It is the case of the petitioner in the rejoinder that questions which fall for consideration in the present petitions were totally different from the one which arose before the Hon'ble Supreme Court in the case of Sankalp Charitable Trust (supra) and Modern Dental College (supra). Relying on the judgment of the Hon'ble Supreme Court in the case of Modern Dental College (supra), it is stated that Niji Vyavasayik Shikshan Sanstha (Pravesh Ka Viniyaman Avam Shulk Ka Nirdharan) Adhiniyam, 2007 prevalent in the State of M.P. and the Rules framed thereunder which fell for consideration before the Hon'ble Supreme Court in the case of Modern Dental College (supra), did not Page 22 of 58 HC-NIC Page 22 of 58 Created On Thu Aug 03 00:05:15 IST 2017 C/SCA/12829/2017 CAV JUDGMENT provide for bifurcation of seats between the Government and management. It is stated that in the said case, the State of M.P.brought a legislation taking away the right of self-financed colleges to conduct their own entrance tests for the purpose of admissions. It is pleaded that in the absence of any legislation similar to the Act of 2007 in the State of Gujarat, the judgment of the Hon'ble Supreme Court in the cases of Modern Dental College (supra) and Sankalp Charitable Trust (supra) will not have any assistance to support the case of the respondents. With reference to the communication dated 10.3.2017 issued by the Ministry of Health & Family Welfare, it is stated that same is of no help to the respondents as the same was issued confining to the courses of MBBS and BDS only. It is further pleaded in the rejoinder that in any event, Union of India also cannot issue such directive which will run contrary to the touchstone of Article 73 of the Constitution of India. It is stated that Union of India has no jurisdiction to issue an executive fiat on the subject falling under Entry-25 of List-III of Seventh Schedule to the Constitution of India. It is further pleaded that even the communications dated 25.1.2017 and 26.4.2017 addressed by the Ministry of AYUSH are of no Page 23 of 58 HC-NIC Page 23 of 58 Created On Thu Aug 03 00:05:15 IST 2017 C/SCA/12829/2017 CAV JUDGMENT avail. The said communications basically deal with the aspect whether NEET is required to be followed mandatorily by the respondents for admissions to the concerned courses in the discipline of Ayurveda and Homeopathy or not. With reference to complaints against the management as regards malpractices in admission, it is stated in the rejoinder that though initially some notices were issued to individual colleges, after the explanations given to such notices, no action was taken against any of the colleges under sections 13(2) and 4 of the Act of 2007 and as such, the respondents cannot take shelter to defend the impugned Rules under the guise of such complaints. It is further stated that the impugned Rules are also not placed before the Legislative Assembly as contemplated under section 20(2) of the Act, and therefore, they would not have any force as they run contrary to the provisions of the Act itself.
6. Additional affidavit is filed on behalf of respondent no.1. It is stated in the additional affidavit that the State Legislature has enacted Gujarat Professional Medical Educational Colleges or Institutions (Regulation of Page 24 of 58 HC-NIC Page 24 of 58 Created On Thu Aug 03 00:05:15 IST 2017 C/SCA/12829/2017 CAV JUDGMENT Admission and Fixation of Fees) Act, 2007 to make special provision for regulating admission in the professional medical educational colleges or institutions in the State and for fixation of fees in such colleges or institutions and for matters connected therewith. Section 2(k) of the Act of 2007 defines "professional courses" to mean the courses conducted in Medicine, Dentistry, Ayurveda, Homeopathy, Physiotherapy, Nursing and such other courses as the State Government may, by notification in the official gazette, declare. Thus, it is pleaded that the professional courses as defined under the Gujarat Professional Medical Educational Colleges or Institutions (Regulation of Admissions and Fixation of Fees) Act, 2007 include not only the course like MBBS and Dentistry, but also Ayurveda, Homeopathy, Physiotherapy, Nursing etc. The Act gives powers to the Admission Committee constituted by the State Government to supervise and control the entire process of admission of students. The Act further gives absolute power of supervising and controlling the entire process of admission of all the seats including the Government seats and the management seats. As per the provision of the Gujarat Professional Medical Educational Colleges or Page 25 of 58 HC-NIC Page 25 of 58 Created On Thu Aug 03 00:05:15 IST 2017 C/SCA/12829/2017 CAV JUDGMENT Institutions (Regulation of Admissions and Fixation of Fees) Act, 2007, management seats are required to be filled on the basis of inter-se merit list of the students whose names appear in the merit list prepared by the Admission Committee. It is pleaded that no private college management can give admission to a student unless his/her name appears in the merit list prepared by the Admission Committee. Even self-financed college management cannot deviate from the principles of inter- se merit. While referring to the impugned Rules framed under the Act of 2007, it is pleaded that the impugned rules would not take away the rights conferred under the Gujarat Professional Medical Educational Colleges or Institutions (Regulation of Admissions and Fixation of Fees) Act, 2007, and as such, the said Act gives overall power to the State Government for the purpose of giving admission to students in professional courses. A conjoint reading of Rules 7 and 8 of the impugned Rules of 2007 makes it clear that the said Rules only provide supervision and control of the entire process of admission of students to Government seats, management seats and NRI seats in all the professional medical educational institutions which are to be made by Centralized Single Page 26 of 58 HC-NIC Page 26 of 58 Created On Thu Aug 03 00:05:15 IST 2017 C/SCA/12829/2017 CAV JUDGMENT Window State Common Counselling by the Admission Committee. While referring to Rules 7 and 8 of the Rules of 2017, it is pleaded that the said Rules will not take away the right of the managements of self-financed colleges in any manner, even after the introduction of the process of common counselling for the purpose of admission. While referring to the fixation of fees to various courses and categories, it is stated that it is open for the managements to collect such fees even after the admissions are made in the management seats. Common counselling is not prohibited under the Act. Reference is also made to some complaints which were received earlier alleging that self-financed colleges granted admissions to students with less marks and lower merit under the guise of filling up management quota seats. The authority, which is constituted under the Act, has addressed letters to the State Government for conducting an inquiry stating that self-financed colleges have granted admissions ignoring the merit and depriving admissions to meritorious students. It is also suggested that Admission Committee may handle the management quota seats also. The courses in the subjects of Ayurveda, Homeopathy, Physiotherapy and Nursing are in Page 27 of 58 HC-NIC Page 27 of 58 Created On Thu Aug 03 00:05:15 IST 2017 C/SCA/12829/2017 CAV JUDGMENT huge demand in the State of Gujarat and as it was found that in the previous year 2016-17, self-financed colleges have engaged in all types of illegalities, common counselling in admissions to management quota seats cannot be said to be illegal. So far as technical course is concerned, it is stated that there are more than 20000 seats which have remained vacant in the State of Gujarat in the engineering courses and the same is not the position in medical courses. As such, the allegation of discrimination made by the petitioners is without any basis and substance. Referring to the impugned Rules of 2017, it is stated that rule-making authority wanted complete transparency and honesty in the entire admission process, and therefore, the impugned Rules were framed to have only one counselling which is not in conformity with the letters addressed by the Ministry of Ayurveda, Yoga, Naturopathy, Unani, Siddha and Homeopathy (AYUSH).
7. Heard Shri D.C.Dave, learned Senior Counsel appearing with Shri Udit N. Vyas and Shri Jigar M. Patel, learned counsel for petitioners and Shri Prakash K. Jani, learned Additional Advocate General, appearing with Ms M.L. Page 28 of 58 HC-NIC Page 28 of 58 Created On Thu Aug 03 00:05:15 IST 2017 C/SCA/12829/2017 CAV JUDGMENT Shah, learned Government Pleader, Shri K.M. Antani and Shri Bharat Vyas, learned Assistant Government Pleaders for Respondents.
8. Learned Senior Counsel Shri D.C.Dave, appearing for the petitioners, at the outset, submitted that the concept of seat sharing has come in view of the judgment of the Hon'ble Supreme Court in the case of P.A. Inamdar vs. State of Maharashtra and others, (2005) 6 Supreme Court Cases 537. In view of the aforesaid judgment only, the State has enacted Gujarat Professional Medical Educational Colleges or Institutions (Regulation of Admissions and Fixation of Fees) Act, 2007. Reading of the provisions of the said Act makes a clear distinction between the Government seats and the management seats. Section 6 of the Gujarat Professional Medical Educational Colleges or Institutions (Regulation of Admissions and Fixation of Fees) Act, 2007 provides procedure for admission of students in the professional medical educational colleges or institutions in the Government seats and the management seats. As per the said provision, management seats are to be filled by the management of the respective professional medical Page 29 of 58 HC-NIC Page 29 of 58 Created On Thu Aug 03 00:05:15 IST 2017 C/SCA/12829/2017 CAV JUDGMENT educational college or institution on the basis of inter-se merit list of the students to be admitted against the management seats. It is further submitted that Section 20 of the Act empowers the State Government to make rules for carrying out the purposes of the Act but the impugned rules are ex facie illegal and ultra vires the Section 6 of the parent Act. It is submitted that on this ground alone, the impugned Rules are fit to be quashed. 8.1. It is further argued that for the impugned Rules, concept of consensual arrangement which can be read into the provisions of the Act, is done away with. It is submitted that all throughout in the last academic year, managements were allowed to fill up the management seats by following inter-se merit of the students to be admitted in the quota and without any valid reasons, the respondents have deviated from the same by framing the impugned Rules. It is further submitted that there are similar provisions for technical courses and so far as the procedure under the Rules framed under the Act for filling up the seats in engineering courses in the management quota is concerned, the same procedure which was prevailing Page 30 of 58 HC-NIC Page 30 of 58 Created On Thu Aug 03 00:05:15 IST 2017 C/SCA/12829/2017 CAV JUDGMENT earlier is being continued. As such, the impugned Rules also suffer from the vice of discrimination by creating a class within the class. It is further submitted that the provisions of the Act and the Rules framed thereunder are to be laid before the State Legislature and they are subject to rescission or modification of the Legislature as contemplated under section 20(2) of the Gujarat Professional Medical Educational Colleges or Institutions (Regulation of Admissions and Fixation of Fees) Act, 2007, as the Rules were not laid before the State Legislature under sub-section (2) of section 20 of the Gujarat Professional Medical Educational Colleges or Institutions (Regulation of Admissions and Fixation of Fees) Act, 2007, they are not valid. In support of his arguments, the learned counsel has placed reliance on the following judgments.
a) P.A. Inamdar vs. State of Maharashtra and others, (2005) 6 Supreme Court Cases 537.
b)State of Karnataka and another vs. H. Ganesh Kamath and others, (1983) 2 Supreme Court Cases 402.
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c) Bhavnagar University vs. Palitana Sugar Mill (P) Ltd and others, (2003) 2 Supreme Court Cases 111.
d)Division Bench judgment of this High Court in the case of Hardik M. Patel & 9 others vs. State of Gujarat and 43 others, 2012 SCC Online Gujarat.
e)State of U.P. and others vs. Jeet S. Bisht and another, (2007) 6 Supreme Court Cases 586.
9. Per contra, learned Additional Advocate General Mr. Prakash Jani, appearing on behalf of the respondents strenuously contended that by common counselling for filling up the Government seats and the management seats, no right of the self-financed colleges is taken away. Provisions of the Act give power to the State Government to supervise and control the entire process of admission and in view of the complaints against the private self- financed colleges, Admission Committee constituted under the provisions of the Gujarat Professional Medical Educational Colleges or Institutions (Regulation of Admissions and Fixation of Fees) Act, 2007 made an inquiry and also submitted the report recommending Page 32 of 58 HC-NIC Page 32 of 58 Created On Thu Aug 03 00:05:15 IST 2017 C/SCA/12829/2017 CAV JUDGMENT common counselling to fill up the management quota seats also. It is submitted that even after the common counselling, it is open for the management to collect the fee as fixed by the regulatory authority for the management quota seats. It is submitted that counselling has nothing to do with the autonomy of the colleges to admit the students and the entire scheme of the Act is looked into and has considered the totality of circumstances and therefore, there is no illegality committed in framing the impugned Rules. It is further contended that in view of the introduction of NEET pursuant to the judgment of the Hon'ble Supreme Court in the case of Medical Council of India vs. Christian Medical College, Vellore and others, (2016) 4 Supreme Court Cases 342 and further in view of the judgments of the Hon'ble Supreme Court in the case of Modern Dental College & Research Centre v. State of M.P., reported in (2016) 7 SCC 353 and Sankalp Charitable Trust v. Union of India, (2016) 7 Supreme Court Cases 487, it is open for the State to frame Rules for common counselling to fill up the management quota seats also. It is also submitted that in view of the said judgments, no common test is conducted Page 33 of 58 HC-NIC Page 33 of 58 Created On Thu Aug 03 00:05:15 IST 2017 C/SCA/12829/2017 CAV JUDGMENT in the State of Gujarat except for Pharmacy, and as such, for the purpose of admission NEET ranking is considered. 9.1. It is further submitted that in view of the ratio laid down in the judgments of Modern Dental College & Research Centre v. State of M.P., reported in (2016) 7 SCC 353 and Sankalp Charitable Trust v. Union of India, (2016) 7 Supreme Court Cases 487, common counselling is permissible and such common counselling prescribed under the Rules in no way takes away the right of the private self-financed colleges to give admission to the students on the management quota seats. In support of his argument that it is always open for the State to frame such Rules, the learned Additional Advocate General placed reliance on the judgments of Hon'ble Supreme Court in the cases of Dr Ambesh Kumar vs. Principal, L.L.R.M. Medical College, Meerut and others, 1986 (Supp) Supreme Court Cases 543 and State of T.N. And another vs. S.V. Bratheep (Minor) and others, (2004) 4 Supreme Court Cases 513.
10. Having heard the learned counsel for the parties, Page 34 of 58 HC-NIC Page 34 of 58 Created On Thu Aug 03 00:05:15 IST 2017 C/SCA/12829/2017 CAV JUDGMENT we have also carefully perused the Rules which were invoked earlier and which are being followed for the purpose of admission in the management quota seats for the courses which are subject-matter of these petitions.
11. In the case of P.A. Inamdar vs. State of Maharashtra and others, (2005) 6 Supreme Court Cases 537, appropriation of quota of seats in the professional unaided (minority & non-minority) educational institutions is held to be impermissible. In the said judgment, it is held that by appropriating the quota by the State, even the reservation policy cannot be applied to such quota. In the said judgment, it is clearly held that State quota of seats in the private unaided professional educational institutions could be identified only by possible consensual arrangements, which could be reached between the said institutions and the State. It is made clear in the said judgment that unaided institutions would have their own admission procedure subject to condition that same is transparent, non- exploitative and based on merit. In the State of Gujarat, for the purpose of regulating admissions, Gujarat Professional Medical Educational Colleges or Institutions Page 35 of 58 HC-NIC Page 35 of 58 Created On Thu Aug 03 00:05:15 IST 2017 C/SCA/12829/2017 CAV JUDGMENT (Regulation of Admissions and Fixation of Fees) Act, 2007 was enacted. If we go through the objects and reasons of the Act, the said Act was enacted by referring to the judgment of the Hon'ble Supreme Court in the case of P.A. Inamdar (supra). Such enactment is made in the State of Gujarat in view of the power conferred under Entry 25 of List-III of Seventh Schedule to the Constitution of India.
11.1. Section 2(g) of the Gujarat Professional Medical Educational Colleges or Institutions (Regulation of Admissions and Fixation of Fees) Act, 2007 defines "Government seats", percentage of which is earmarked at 75% of total approved seats in unaided colleges or institutions. The term "Management seats" is defined under section 2(h) to mean 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. Though there is no specific consensual arrangement of 75% and 25%, by such earmarking of percentage of seats of Government and management seats in private unaided medical Page 36 of 58 HC-NIC Page 36 of 58 Created On Thu Aug 03 00:05:15 IST 2017 C/SCA/12829/2017 CAV JUDGMENT educational institutions, concept of consensual arrangement brought in by the judgment of P.A.Inamdar (supra) could be the basis for making such demarcation of seats in terms of percentage of admitted intake. Section 6 of the Act provides admission procedure. Under section 6(ii) of the Gujarat Professional Medical Educational Colleges or Institutions (Regulation of Admissions and Fixation of Fees) Act, 2007, management seats to be filled by the management of the respective professional educational college or institution shall be on the basis of inter-se merit list of the students to be admitted against the management seats. It is not disputed that till last year, managements were filling up the seats on the basis of inter-se merit list of the students. It is true that there were complaints against the private self- financed colleges or institutions, which complaints were made the basis in support of the arguments of the respondents. We will deal with such aspect of complaints a little later in this judgment but the fact remains that as contemplated under section 6(ii) of the Act, the managements are empowered to fill up the seats by admitting the students in the respective Page 37 of 58 HC-NIC Page 37 of 58 Created On Thu Aug 03 00:05:15 IST 2017 C/SCA/12829/2017 CAV JUDGMENT professional educational institutions on the basis of inter-se merit. As per proviso to section 6(ii) of the Act, no student shall be admitted against the management seat unless his name appears in the merit list prepared by the Admission Committee. Under section 20 of the Gujarat Professional Medical Educational Colleges or Institutions (Regulation of Admissions and Fixation of Fees) Act, 2007, the State Government is empowered to frame rules by notification in the official gazette for carrying out the purposes of the Act. Under sub- section (2) of section 20, all the rules are to be laid before the State Legislature and the same are subject to rescission or modification by the State Legislature. 11.2. Coming to the impugned Rules, under Rule 2(i) of the Rules, "counselling" is defined to mean the counselling for all admissions to professional medical courses in all medical educational institutions in State established by the Central Government or the State Government, University established by an Act of State Legislature or Parliament or Medical Institution or College run by a registered Trust or a Society or a Minority Educational Institutes, Corporations or a Page 38 of 58 HC-NIC Page 38 of 58 Created On Thu Aug 03 00:05:15 IST 2017 C/SCA/12829/2017 CAV JUDGMENT Company registered under the Companies Act, 2013 conducted by the Admission Committee under the overall superintendence, direction and control of the Government. Though under Rule 3 of the Rules of 2017, 25% seats are earmarked as management seats, but under Rule 7, Admission Committee, which is constituted under Section 4 of the Act, is empowered to make admission to all professional medical educational courses seats by centralized single window state common counselling by a composite process. Under Rule 8 of the Rules of 2017, Admission Committee is empowered by advertisement in the prominent newspapers widely circulated in the State, and on website to publish the date of registration, the list of Help centers, last date of submission of Registration Form etc. for all the seats including management quota seats.
11.3. A conjoint reading of the provisions under Rule 2(1)(i) and Rules 7 and 8 of the Rules of 2017 makes it clear that the Admission Committee constituted under the Gujarat Professional Medical Educational Colleges or Institutions (Regulation of Admissions and Fixation of Fees) Act, 2007 is empowered to fill up all the seats Page 39 of 58 HC-NIC Page 39 of 58 Created On Thu Aug 03 00:05:15 IST 2017 C/SCA/12829/2017 CAV JUDGMENT by holding common counselling including management quota seats. Whereas under section 6(ii) of the Act, management seats are to be filled up by the management of the respective professional educational college or institution on the basis of inter- se merit list of the students. At the same time, under the impugned rules, the Admission Committee is to hold common counselling for the purpose of admission for all the seats including the management quota seats. Though it is sought to be contended by the learned Additional Advocate General that counselling has nothing to do with the admission to be made in the private unaided professional medical educational institutions, we are unable to accept such argument. During the process of counselling, as per the choice of the student and having regard to the rank acquired in the NEET, admissions will be granted by the respondent no.2.
11.4. It is true that as per the Rules, there is one representative of the management in the Admission Committee but that will not cure the principal defect which is sought to be canvassed in this batch of petitions. By virtue of the impugned Rules, power of Page 40 of 58 HC-NIC Page 40 of 58 Created On Thu Aug 03 00:05:15 IST 2017 C/SCA/12829/2017 CAV JUDGMENT autonomy conferred on the private unaided professional medical educational institutions to admit students in management quota seats is totally taken away contrary to the plain language used in section 6 of the Gujarat Professional Medical Educational Colleges or Institutions (Regulation of Admissions and Fixation of Fees) Act, 2007. Rule making power conferred on the State under section 20 of the Act is only for the purpose of implementation of the provisions of the Act but such Rules framed in exercise of power under section 20 cannot travel beyond the substantive provisions of the Act itself. The impugned Rules are ultra vires the provisions of section 6 of the Act to the extent of management quota seats.
12. In the judgment of P.A. Inamdar (supra), the Hon'ble Supreme Court has not approved the scheme evolved by the judgment in the case of Islamic Academy of Education and another vs. State of Karnataka and others, reported in (2003) 6 Supreme Court Cases 697, to the extent it allows the State to fix the quota for seat sharing between the management and the States on the basis of local needs of each State, in the unaided Page 41 of 58 HC-NIC Page 41 of 58 Created On Thu Aug 03 00:05:15 IST 2017 C/SCA/12829/2017 CAV JUDGMENT private institutions of both minority and non-minority colleges. Paragraphs 124, 126, 127, 128 and 130 of the said judgment read 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 unaided private professional educational institutions by fixing a quota of seats between the management and the State. The State cannot insist on private educational institutions 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
126. The observations in paragraph 68 of the majority opinion in Pai Foundation, on which the learned counsel for the parties have been much at variance in their submissions, according to us, are not to be read disjointly from other parts of the main judgment. A few observations contained in certain paragraphs of the judgment in Pai Foundation, if read in isolation, appear conflicting or inconsistent with each other. But if the observations Page 42 of 58 HC-NIC Page 42 of 58 Created On Thu Aug 03 00:05:15 IST 2017 C/SCA/12829/2017 CAV JUDGMENT made and the conclusions derived are read as a whole, the judgment nowhere lays down that unaided private educational institutions of minorities and non-minorities can be forced to submit to seat sharing and reservation policy of the State. Reading relevant parts of the judgment on which learned counsel have made comments and counter comments and reading the whole judgment (in the light of previous judgments of this Court, which have been approved in Pai Foundation) in our considered opinion, observations in paragraph 68 merely permit unaided private institutions to maintain merit as the criterion of admission by voluntarily agreeing for seat sharing with the State or adopting selection based on common entrance test of the State. There are also observations saying that they may frame their own policy to give free- ships and scholarships to the needy and poor students or adopt a policy in line with the reservation policy of the state to cater to the educational needs of weaker and poorer sections of the society.
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 reservation policy of the State or State quota seats or management seats.Page 43 of 58
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128. We make it clear that the observations in Pai Foundation in paragraph 68 and other 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.
xxx xxx xxx
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 management 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."
13. In the judgment of the Hon'ble Supreme Court in the case of State of U.P. and others vs. Jeet S. Bisht and another, reported in (2007) 6 Supreme Court Cases 586, (one of the Hon'ble Judges in the judgment) has observed that by a judicial verdict, the Court cannot amend the law made by the Parliament or the State Legislature.
14. In the judgment of the Hon'ble Supreme Court Page 44 of 58 HC-NIC Page 44 of 58 Created On Thu Aug 03 00:05:15 IST 2017 C/SCA/12829/2017 CAV JUDGMENT relied upon by learned counsel for the petitioners in the case of State of Karnataka and another vs. H. Ganesh Kamath and others, reported in (1983) 2 Supreme Court Cases 402, the Hon'ble Supreme Court has held that conferment of rule-making power by an Act does not enable the rule-making authority to make a rule which travels beyond the scope of the enabling Act or which is inconsistent therewith or repugnant thereto.
15. Further, in the judgment of the Hon'ble Supreme Court in the case of Bhavnagar University vs. Palitana Sugar Mill (P) Ltd and others, reported in (2003) 2 Supreme Court Cases 111, while dealing with the provision under the Gujarat Town Planning & Urban Development Act, 1976, the Hon'ble Supreme Court has held that when a statutory authority is required to do a thing in particular manner, the same must be done in that manner only. It is further held that the State and other authorities while acting under the Act are only creature of statute and they must act within four corners thereof.
16. Further reliance is placed by the learned counsel for Page 45 of 58 HC-NIC Page 45 of 58 Created On Thu Aug 03 00:05:15 IST 2017 C/SCA/12829/2017 CAV JUDGMENT the petitioners on the judgment rendered in Special Civil Application No. 4953 of 2012, reported in 2012 SCC Online Gujarat. In the aforesaid Division Bench judgment, while dealing with admissions to post-graduate dental course, when it is noticed that regulations framed in the Dentist Act, 1948, are contrary to the provisions of the Act, this Court has held that the Act passed by the Legislature is required to be given suprimacy. It is further held in the said judgment that when the State Act is still in force and is not struck down, no effect can be given to any private agreement or arrangement between the State and any institution which may amount to contracting out of the Statute.
16.1. While referring to the ratio laid down in the aforesaid judgments, we are of the view that the aforesaid judgment fully supports the case of the petitioners, inasmuch as it is clear that in the parent Act provision made under section 6(ii) still holds good which empowers the management of institutions to make admissions. Further, if the said provision is considered with reference to the ratio of the judgment of the Hon'ble Supreme Court in the case of P.A. Page 46 of 58 HC-NIC Page 46 of 58 Created On Thu Aug 03 00:05:15 IST 2017 C/SCA/12829/2017 CAV JUDGMENT Inamdar (supra), it becomes clear that managements are empowered to fill up the management quota seats by following fair, transparent and non-exploitative procedure. In that view of the matter, by framing the rules under the guise of common counselling, without amending the provision of the Act, it is not open for the State to make such rules traversing beyond the scope of substantive provision under the Act itself. If the impugned rules are allowed to stand, it makes clear that they supplant the provisions of the Act but not to subserve the implementation of the provisions of the Act. In that view of the matter, the judgment relied upon by the learned counsel for the petitioners, as referred above, fully supports the case of the petitioners.
17. Learned Additional Advocate General, appearing on behalf of the respondents, has mainly focused his argument on the ground that under section 4 of the Act, the Admission Committee is entitled to supervise and control the entire process of admission of students to professional medical educational colleges or institutions. A distinction is sought to be made between counselling Page 47 of 58 HC-NIC Page 47 of 58 Created On Thu Aug 03 00:05:15 IST 2017 C/SCA/12829/2017 CAV JUDGMENT and admission but we are not in agreement with such submission of the learned Additional Advocate General. Counselling is contemplated only for the purpose of making admissions as per the priorities in the colleges with reference to ranks acquired in the NEET. The Admission Committee, while counselling, considers the applicant's claim for admission to the colleges as per his/her choice vis-a-vis rank acquired by him/her and give admission during the process of counselling. Merely because a representative of management is allowed to be present, it will not make any difference and the fact remains that the Admission Committee is admitting students in the management quota, which runs contrary to the plain language used in section 6(ii) of the Gujarat Professional Medical Educational Colleges or Institutions (Regulation of Admissions and Fixation of Fees) Act, 2007. We are of the considered opinion that keeping in mind the provisions of the parent Act under sections 6(i) and 6(ii), it is not open for the State to undertake counselling under the guise of supervision and control under section 4(3) of the Gujarat Professional Medical Educational Colleges or Institutions (Regulation of Admissions and Fixation of Fees) Act, 2007. Further, Page 48 of 58 HC-NIC Page 48 of 58 Created On Thu Aug 03 00:05:15 IST 2017 C/SCA/12829/2017 CAV JUDGMENT learned Additional Advocate General has placed reliance on the judgment of the Hon'ble Supreme Court in the case of Modern Dental College and Research Centre and others, vs. State of M.P. (2016) 7 Supreme Court Cases 353. But in the said judgment, the Hon'ble Supreme Court has considered common counselling contemplated under the provisions of Niji Vyavasayik Shikshan Sanstha (Pravesh Ka Viniyaman Avam Shulk Ka Nirdharan) Adhiniyam, 2007, where there is no provision for separate quota of Government seats and management seats. The issue which arise for consideration in this batch of cases did not fall for consideration in the aforesaid judgment, in the absence of any such demarcation of seats in the Niji Vyavasayik Shikshan Sanstha (Pravesh Ka Viniyaman Avam Shulk Ka Nirdharan) Adhiniyam, 2007. In the aforesaid judgment, while considering the right conferred under Article 19(1)
(g) of the Constitution, the Hon'ble Supreme Court has held that though private unaided minority and non- minority institutions have a right to occupation under Article 19(1), but the said right is not absolute and is subject to reasonable restriction. In the aforesaid judgment, it is held that for larger public interest of Page 49 of 58 HC-NIC Page 49 of 58 Created On Thu Aug 03 00:05:15 IST 2017 C/SCA/12829/2017 CAV JUDGMENT student community and to promote merit and excellence and to curb malpractice, it is open for the State to hold common entrance test by common counselling. In the absence of separate management quota seats in Niji Vyavasayik Shikshan Sanstha (Pravesh Ka Viniyaman Avam Shulk Ka Nirdharan) Adhiniyam, 2007, the issue in the present case did not fall for consideration in the aforesaid judgment. The validity of impugned Rules is to be tested in the light of the local legislation in the State of Gujarat as per the provisions of the Gujarat Professional Medical Educational Colleges or Institutions (Regulation of Admissions and Fixation of Fees) Act, 2007 vis-a-vis the rules framed thereunder.
18. Further reliance is also placed by the learned Additional Advocate General on the judgment of the Hon'ble Supreme Court in the case of Sankalp Charitable Trust v. Union of India, (2016) 7 Supreme Court Cases 487, in which it is held that no separate examination shall be permitted to be held for admissions to MBBS and BDS courses by any private college or association of any private colleges or deemed university. The aforesaid judgment confines to the Page 50 of 58 HC-NIC Page 50 of 58 Created On Thu Aug 03 00:05:15 IST 2017 C/SCA/12829/2017 CAV JUDGMENT courses of MBBS and BDS and further in view of the existing law in force in the State of Gujarat, we are also of the view that even the judgment in the case of Sankalp Charitable Trust(supra) would not render any assistance in support of the case of the respondents. When subject is covered by Entry 25 of List-III of 7th Schedule of the Constitution of India, the State and Parliament are empowered to enact the law on the subject and the law which is enacted by the State Legislature is still in force. In that view of the matter, the validity of the impugned Rule is to be considered with reference to the provisions of the Act which Act is in force as of now.
19. In the affidavit in reply as well as additional affidavit filed on behalf of respondent no.1, reference is made to the letters dated 25.1.2017 and 26.4.2017 addressed by Ministry of AYUSH but such letters are confined to conducting examination of NEET, and in any event, such letters, which are issued in exercise of executive power will not take away the right of the petitioners which run contrary to the provisions of the Gujarat Professional Medical Educational Colleges or Institutions (Regulation of Admissions and Fixation of Fees) Act, 2007. Page 51 of 58 HC-NIC Page 51 of 58 Created On Thu Aug 03 00:05:15 IST 2017 C/SCA/12829/2017 CAV JUDGMENT
20. On behalf of the petitioners, learned Senior Counsel Shri Dave also pleaded that the impugned Rules are fit to be struck down as they are discriminatory, inasmuch as under similar set of circumstances, Rules are framed so far as the technical educational institutions are concerned, empowering the managements to fill up the management seats by the respective institutions/consortiums/colleges. We do not find any force in such contention advanced by learned counsel for the petitioners. It is always permissible for the State Government to form different policies/rules of admission to different disciplines, viz. Medical and engineering, which are totally distinct owing to their different characteristics and hence, they are not comparable. Comparison of the rules of eligibility framed for admission to medical courses with the eligibility criteria provided in Bachelor of Engineering and Technology, is misplaced, inasmuch as both the streams and disciplines are distinct and different. Apart from this, one of the important factors which plays role in admissions to a particular discipline is demand and supply, inasmuch as there is more demand for admission in medical colleges as Page 52 of 58 HC-NIC Page 52 of 58 Created On Thu Aug 03 00:05:15 IST 2017 C/SCA/12829/2017 CAV JUDGMENT against the demand for admissions in engineering colleges with major difference in availability of number of seats in both the courses. In view of the same, we are not prepared to accept the contention advanced on behalf of the petitioners.
21. There is yet another submission made by learned counsel for the petitioners that as per sub-section (2) of section 20 of the Gujarat Professional Medical Educational Colleges or Institutions (Regulation of Admissions and Fixation of Fees) Act, 2007, the Rules, i.e. Gujarat Professional Medical Educational Courses (Regulation of Admission in Undergraduate Courses) Rules, 2017 framed thereunder are to be laid before the legislature and as the said Rules are not laid before the Legislature as contemplated under sub-section (2) of section 20, they are not valid.
22. Learned Assistant Advocate General, appearing on behalf of the respondents has placed reliance on the judgment of the Hon'ble Supreme Court in the case of Jan Mohammad Noor Mohamad Bagban v. The State of Gujarat and another, (AIR 1966 Supreme Page 53 of 58 HC-NIC Page 53 of 58 Created On Thu Aug 03 00:05:15 IST 2017 C/SCA/12829/2017 CAV JUDGMENT Court 385),. In the said case, while considering the validity of the rules in similar circumstances, it is held that laying of rules before the House of Legislature cannot be regarded as mandatory. Further, in the case of Atlas Cycle Industries Ltd and others vs. The State of Haryana, (1979) 2 Supreme Court Cases 196, the Hon'ble Supreme Court has held that whether direction to lay rules before the Legislature is mandatory or merely directory will depend on the circumstances of each case by considering whether laying is a condition precedent to their operation. As much as such provision, which prescribes laying of such rules before the Legislature is to be construed only for the purpose of supervision and control over the authorities and its instrumentalities, we are of the view that such laying clause is to be construed as directory having regard to the facts and circumstances of the case. We are not prepared to accept the ground of invalidation of impugned rules on the ground that they were not laid before the legislature as contemplated under sub-section (2) of section 20 of the Gujarat Professional Medical Educational Colleges or Institutions (Regulation of Admissions and Fixation of Fees) Act, 2007.
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23. As we have held that the impugned Rules are framed by traversing beyond the scope of Legislation and are ultra vires the provision of Rule 6(i) and (ii) of the Gujarat Professional Medical Educational Courses (Regulation of Admission in Undergraduate Courses) Rules, 2017, these writ-petitions are fit to be allowed by issuing appropriate directions.
24. For the foregoing reasons, these writ-petitions are required to be allowed and accordingly allowed with the directions as under:
(i) Impugned Rules, i.e. Rule 2(1)(i), Rule 7 and Rule 8 of the Gujarat Professional Medical Educational Courses (Regulation of Admission in Undergraduate Courses) Rules, 2017 qua admissions to management quota seats in the Bachelor of Ayurveda, Medicine & Surgery (BAMS), Bachelor of Homeopathic Medicine & Surgery (BHMS) Bachelor of Physiotherapy (BPT) and Bachelor of Science in Nursing (B.Sc. Nursing), are quashed and set aside.
(ii) For the purpose of filling up the management seats, Page 55 of 58 HC-NIC Page 55 of 58 Created On Thu Aug 03 00:05:15 IST 2017 C/SCA/12829/2017 CAV JUDGMENT members of the petitioners-Associations shall form a Consortium for admissions to different types of courses or one Consortium may work for more than one course.
(iii) The Consortium shall, by an advertisement in two English and two Gujarati leading newspapers widely circulated in the State of Gujarat, invite applications from eligible students for admission to Bachelor of Ayurveda, Medicine & Surgery (BAMS), Bachelor of Homeopathic Medicine & Surgery (BHMS) Bachelor of Physiotherapy (BPT) and Bachelor of Science in Nursing (B.Sc. Nursing) in the management quota seats. The advertisement shall specify the date of issue of application forms, centers from where application forms may be obtained and to be submitted, last date for submission of application forms, details of fees to be paid, eligibility criteria, number of seats available for admission in the management quota seats and such other information as may be necessary in this regard.
(iv) The Consortium shall also make necessary arrangements to issue and receive application forms for admission in the management quota seats in the office of Page 56 of 58 HC-NIC Page 56 of 58 Created On Thu Aug 03 00:05:15 IST 2017 C/SCA/12829/2017 CAV JUDGMENT the Admission Committee.
(v) All the management quota seats shall be filled up by Consortium by a single window system on the basis of inter-se merit list of the students to be admitted against management seats and whose names appear in the merit list prepared by the Admission Committee.
(vi) The management quota seats shall be filled strictly in accordance with the merit list prepared by the Admission Committee. If admissions are not made in the management quota seats in any college by not following the inter-se merit list of the students to be admitted against the management quota seats, it is open to such students to approach the competent authority for taking appropriate action against such colleges and in such event, it is open to the appropriate authority to take such steps against such colleges in accordance with law.
(R. SUBHASH REDDY, CJ) (VIPUL M. PANCHOLI, J.) Page 57 of 58 HC-NIC Page 57 of 58 Created On Thu Aug 03 00:05:15 IST 2017 C/SCA/12829/2017 CAV JUDGMENT pirzada Page 58 of 58 HC-NIC Page 58 of 58 Created On Thu Aug 03 00:05:15 IST 2017