Gujarat High Court
Hardik vs State on 18 May, 2012
Author: M.R. Shah
Bench: M.R. Shah
Gujarat High Court Case Information System
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SCA/4953/2012 23/ 23 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 4953 of 2012
=========================================================
HARDIK
M PATEL & 9 - Petitioner(s)
Versus
STATE
OF GUJARAT & 43 - Respondent(s)
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Appearance
:
MR
AMIT PANCHAL WITH MR AJ YAGNIK
for
Petitioner(s) : 1 - 10,
MR PK JANI, GOVERNMENT PLEADER for
Respondent(s) : 1 - 2.
NOTICE SERVED BY DS for Respondent(s) : 1 -
3, 7, 27, 29,37 - 39,41 - 44.
MS VD
NANAVATI FOR for Respondent(s) : 3,
MS VD NANAVATI FOR MS MANISHA
LAVKUMAR for Respondent(s) : 4,
DS AFF.NOT FILED (N) for
Respondent(s) : 5,
MR DC DAVE WITH MR AA JADEJA for Respondent(s)
: 6, 8,
MR AJ SHASTRI for Respondent(s) : 9 - 26, 28,30 - 36,
40,
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CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 18/05/2012
ORAL
ORDER
1.00. At the outset it is required to be noted that looking to the controversy raised in the petition and the dispute is with respect to admission in Post Graduate in Dental and in the facts and circumstances of the case, and more particularly considering the fact that by and large the submissions on interim relief as well as final hearing of the present petition would be the same, this Court was of the opinion that the matter is to be finally heard and the Court was inclined to hear the matter finally, however, Mr.D.C. Dave, learned Senior Advocate appearing on behalf of the respondent Nos.6 to 8 - Self-Financed Dental Institutions has shown his reservation for final hearing of the matter and requested to consider the question with respect to interim relief only at this stage and therefore, this Court heard the learned advocates appearing on behalf of the respective parties at length qua interim relief only.
2.00. Heard Mr.Amit Panchal, learned advocate appearing with Mr.Anand Yagnik, learned advocate appearing on behalf of the petitioners; Mr.P.K. Jani, learned Government Pleader appearing on behalf of the respondent Nos.1 and 2 - State of Gujarat; Ms.V.D. Nanavti, learned advocate appearing on behalf of the respondent No.3 - Gujarat University; and Mr.A.A. Jadeja learned advocate appearing on behalf of the respondent Nos.6 to 8 - Consortium of Self-Financed Dental Institutions; Mr.A.J. Shastri, learned advocate appearing on behalf of the respective affected students - respondent Nos.9 to 44.
3.01. By way of tis petition under Article 226 of the Constitution of India, respective petitioners have prayed for the following reliefs in para 9 :-
"(A) To declare and hold that amicable settlement based on consensus reflected in the document at Annexure-A is illegal and unconstitutional;
(B) To declare and hold that PG Entrance Examination conducted on 5/2/2012 by respondent Nos.6, 7 and 8 is illegal and unconstitutional and be further pleased to direct the respondent Nos.6, 7 and 8 not to give admission into PG Dental Courses for the academic year 2012-13 on the basis of the very entrance examination;
(C) To direct the respondents to give admission into PG Dental Courses in the Colleges affiliated to the respondent Gujarat University including respondent nos.7 and 8 Colleges based on entrance examination conducted by the University on 29/1/2012 as per the Gujarat University Act and Rules and Regulations framed by the respondent University for admission into PG Dental Courses;
(D) To cancel the merit list prepared by respondent nos.6, 7 and 8 on the basis of entrance examination conducted by respondent No.6 on 5/2/2012 published vide Annexure-K;"
3.02. The respective petitioners have also prayed for the following interim relief in para 9 :-
"(E) During the pendency and/or final disposal of the present petition, be pleased to stay the counseling scheduled to be held by respondent nos.6, 7 and 8 for giving admission into PG Dental Courses on the basis of entrance examination held by respondent No.6 on 5/2/2012;
(F) During the pendency and/or final disposal of the present petition, be pleased to stay the admissions and admission process into respondent nos.7 and 8 Dental Colleges based on entrance examination conduced by respondent No.6 on 5/2/2012;"
3.03. The State Government has enacted Gujarat Professional Medical Educational Colleges or Institutions (Regulations of Admission and Fixation of Fees) Act, 2007 (hereinafter referred to as "the Act" for short) and Gujarat Professional Medical Educational Colleges on Institutions (Regulation of Admission and Fixation of Fees) (Amendment) Rules 2010 (hereinafter referred to as "the Rules, 2010" for short), which seeks to make specific provisions for regulations of admission in professional medical educational colleges or institutions and deal with fixation of fees in such colleges or institutions. It provides that unaided educational colleges or institutions are entitled to 25% of its intact capacity by way way of management quota. Thus, under the Act of 2007 and Rules of 2010, 75% of the seats of the total sanctioned seats of professional medical courses in unaided colleges are marked as Government Seats and admission thereto is to be granted by the Committee appointed by the Government.
3.04. The respondent No.6 herein are Consortium of Self-Financed Dental Institutions and respondent Nos.7 and 8 are Self-Financed Dental Institutions defined under section 2(m) of the Act of 2007 and admission at the graduation and post graduation in the aforesaid institutions are governed by the Act of 2007 and Regulations of 2010.
3.05. It appears that the constitutional validity of the provisions of Act of 2007 was challenged by way of Special Civil Application No. 8785 of 2008 and the Division Bench by the judgement and order dtd.26/9/2008 dismissed the said Special Civil Application and upheld the constitutional validity of sections 2(g), 2(h), 2(n), 6, 8 and 8 of the Act of 2007. It also appears that the judgement and order passed by the Division Bench of this Court in Special Civil Application No. 8785 of 2008 was challenged before the Hon'ble Supreme Court by way of Special Leave Petition which also came to be dismissed by the Hon'ble Supreme Court.
3.06. It also appears that respondent Nos.7 and 8 colleges challenged constitutional validity of sections 2(g)(ii) and section 6(i) of the Act of 2007 and Rules 3 to 12, 15, 16 and 23 of the Regulation of 2010 by way of Special Civil Application Nos. 4849 and 4693 of 2011 seeking directions / writ of mandamus against the respondent - Gujarat University not to fill up seats in respective colleges in Post Graduate Dental Courses for the academic year 2011-12. Both the aforesaid Special Civil Applications came to be dismissed on merits by the Division Bench of this Court vide judgement and order dtd.6/5/2011. It is to be noted that in the aforesaid Special Civil Applications Gujarat University was the only party respondent. That Being aggrieved by and dissatisfied with the Judgement and Order passed by the Division Bench of this Court in Special Civil Application Nos. 4849 and 4693 of 2011 dtd.6/5/2011, respondent Nos.7 and 8 colleges / institutions preferred Special Leave to Appeal (Civil) No.1405 of 2011 before the Hon'ble Supreme Court, however, the respondent Nos.7 and 8 withdrew the said SLP as well as Special Civil Application Nos. 4849 and 4693 of 2011 with a liberty to file fresh petitions before this Court for the academic session 2012-2013 and also challenge constitutional validity of the Act of 2007 and the Hon'ble Supreme Court disposed of the aforesaid SLP by permitting the respondent Nos.7 and 8 herein to withdraw the aforesaid SLP as well as aforesaid Special Civil Applications by further observing that if the petitioners therein (respondent Nos.7 and 8 herein) files Special Civil Application challenging the constitutional validity of the Act with a prayer to issue direction in the matter of admission for 2012-2013, the same shall be decided by the High Court without being influenced by the observations made by the Division Bench of this Court in Special Civil Application Nos. 4849 and 4693 of 2011 dtd.6/5/2011.
3.07. That thereafter respondent No.6 herein - Consortium of Self-Financed Dental Institutions preferred Special Civil Application No. 18234 of 2011 before this Court challenging the constitutional validity of section 6(i) read with section 2(g)(ii) of the Act of 2007 with a prayer to declare the same as ultra vires to Articles 14 and 19(1)(g) of the Constitution of India as well as challenging the constitutional validity of the Rules 3 to 12, 15, 16 and 23 of the Rules of 2010.
3.08. Similarly respondent Nos.7 and 8 - Self-Financed Institutions also preferred Special Civil Application No. 18254 of 2011 challenging the constitutional validity of section 6(i) read with section 2(g)(ii) of the Act of 2007 with a prayer to declare the same as ultra vires to Articles 14 and 19(1)(g) of the Constitution of India as well as challenging the constitutional validity of the Rules 3 to 12, 15, 16 and 23 of the Rules of 2010.
3.09. In the aforesaid Special Civil Applications it was the case on behalf of the petitioners therein that the aforesaid provisions of the Act and regulations keeping 75% of the intact capacity / seats with the State Government and 25% only for Self Financed Institutions imparting education in Graduate and Post Graduate Professional Dental Courses in the State of Gujarat is illegal and violative of their rights and contrary to the decisions of the Hon'ble Supreme Court in the case of T.M.A. Pai Foundation Versus State of Karnataka, reported in (2002) 8 SCC 481 as well As P.A. Inamdar Vs. State of Karnataka, reported in (2005) 6 SCC 537.
3.10. At this stage it is required to be noted that the respondent Gujarat University has adopted in exercise of its powers under Gujarat University Act and Rules framed thereunder, Act of 2007 for the purpose of percentage of seats and its sharing in the Self-financed Colleges on the NRI / Management Quota in particular. Therefore, professional medical educational institutions affiliated with the Gujarat University are bound to follow Gujarat University Act and the Rules so far as the admission in their respective colleges / institutions are concerned. For the academic year 2012-2013 respondent Gujarat University has framed Rules for admission in Post Graduate Dental Courses and as per Regulation 20A, for Self Financed Colleges / institutions, NRI / Management quota, seats are required to be filled up as per the Act of 2007.
3.11. It is to be noted that despite the above, while challenging the constitutional validity of the provisions of the Act of 2007 and Regulation of 2010, respondent Nos.6 herein - petitioner of Special Civil Application No. 18234 of 2011 did not join Gujarat University as party respondent and joined only State of Gujarat as party respondent.
3.12. It is to be noted that in the said Special Civil Application No. 18234 of 2011, State of Gujarat filed a reply affirmed by the Under-Secretary, Health and Family Welfare Department, Gandhinagar opposing the said Special Civil Application specifically submitting that the provisions contained in section 6(i) read with section 2(ii) of the Act providing for 75% of the seats of unaided colleges / institutions as Government Seats and remaining 25% seats to be filled in by Self-Financed Institutions, is just and proper and was provided after consultation with the respective institutions. Therefore, as such the State opposed the aforesaid Special Civil Applications by further submitting that as such the constitutional validity of the relevant provisions of the Act of 2007 have been upheld by the Division Bench vide judgement and order dtd.26/9/2008 in Special Civil Application No. 8785 of 2008.
3.13. It appears that the aforesaid Special Civil Applications came up for hearing before the Division Bench, consisting of Hon'ble the Acting Chief Justice and Hon'ble Mr.Justice J.B. Pardiwala and at the time of hearing of the aforesaid Special Civil Applications, the learned counsel appearing on behalf of the petitioners submitted that the parties have, by way of an amicable settlement in the light of decisions of the Hon'ble Supreme Court in the case of P.A. Inamdar (supra) and the Regulations framed by the Dental Council of India inter-alia providing for bifurcation of seats between the State quota and the management quota reached a consensus to the effect that with effect from the current academic year 2012-2013 and thereafter bifurcation of the seats for post graduate courses in the discipline of Dentistry shall be in the ratio of 50:50 between the State quota and management quota. It was also further submitted that it has been further agreed that for the purpose of working out this bifurcation of seats as per the order of the Hon'ble Supreme Court in the case of Modern Dental College and Research Centre and others Versus State of M.P. and others, reported in (2009) 7 SCC 751, NRI seats are to be excluded. It was also further submitted that the parties have further agreed that the Universities filling up the State quota for post graduate courses shall have to act accordingly.
In view of the above, Mr.Nanavati, learned counsel appearing on behalf of the petitioners did not press the aforesaid writ petitions by submitting that State Government has decided to act as per the above consensus. The Division Bench disposed of Special Civil Application No. 18234 of 2011 recording the above consensus by specifically observing that the Division Bench has otherwise not gone into the merits of the matter. It appears that at the time of disposing of the aforesaid Special Civil Applications, Mr.Nanavati, learned counsel appearing on behalf of the petitioners therein submitted a note reproducing the exact consensus arrived at between the parties and on the basis of the same, the Division Bench disposed of the aforesaid Special Civil Applications.
3.14. It appears that thereafter the respective respondents i.e. State of Gujarat and respondent Nos.6 to 8 have granted admission in Post Graduate Dental Courses in Self Financed unaided Institutions as per the aforesaid consensus in the ratio of 50:50 between the State quota and management quota and hence Being aggrieved by and dissatisfied with the aforesaid, the petitioners have preferred the present Special Civil Application for the aforesaid reliefs and interim reliefs.
4.00. Mr.Amit Panchal, learned advocate appearing on behalf of the petitioners has vehemently submitted that the action of the respondents in granting admission in post graduate dental courses in the respondents - Self-financed Institutions in the ratio of 50:50 and that too excluding 15% NRI Seats, is absolutely illegal and unlawful and contrary to the provisions of the Act of 2007 and Regulation of 2010.
4.01. Mr.Panchal, learned advocate appearing on behalf of the petitioners has further submitted that admissions in post graduate dental courses in the State are governed by the provisions of Act of 2007 and Regulation of 2010 as well as Gujarat University Act, which provide for admission in the ratio of 75:25, i.e. 75% Government quota and 25% Management Quota including 15% NRI Seats and even constitutional validity of th e aforesaid provisions have been upheld by the Division Bench of this Court and the said Judgement and Order of the the Division Bench of this Court has been confirmed by the Hon'ble Supreme Court and therefore, the so-called consensus / arrangement arrived at between the respondent Nos.6 to 8 and State of 50:50 between the management quota and State quata excluding 15% NRI Seats in the Post Graduate Dental Courses , is absolutely illegal and contrary to the provisions of the Act and regulations.
4.02. Mr.Panchal, learned advocate appearing on behalf of the petitioners has further submitted that any consensus / arrangement arrived at between the State Government and the Self-Financed Institutions cannot substitute statutory provisions. It is submitted that the concerned respondents are bound to act as per the rules and regulations which are statutory and cannot be permitted to act by consensus / arrangement contrary to the Act, rules and regulations.
4.03. Mr.Panchal, learned advocate appearing on behalf of the petitioners has further submitted that as such there is no consensus / arrangement in writing and only a statement was made before the Division Bench of this Court that there is consensus between the parties and it is agreed to grant admission in the post graduate dental courses in the ratio of 50:50 between the management quota and state quota excluding 15% NRI Seats. Therefore, it is submitted that the so-called arrangement / consensus arrived at between the State Government and the respondent Nos.6 to 8 herein and the admissions granted in the respondent Nos.6 to 8 institutions in Post Graduate Dental Courses, to the respondent Nos.9 to 44, is absolutely illegal and such a procedure is unknown to law.
4.04. Mr.Panchal, learned advocate appearing on behalf of the petitioners has further submitted that though the Gujarat University was not party to the aforesaid Special Civil Application Nos. 18234 and 18254 of 2011, still a statement was made before the Division Bench by Mr.Nanavati, learned counsel appearing on behalf of the respondent Nos.6 to 8 herein that it is agreed between the parties (respondent Nos.6 to 8 herein and State Government, who was the only party to the aforesaid Special Civil Applications) that the respondent universities filling up the State quota for the post graduate courses shall have to act accordingly. It is submitted that as the Gujarat University was not a party to the said Special Civil Application and/or even any consensus / arrangement recorded in the the order passed in the aforesaid Special Civil Application, the same is not binding to the Gujarat University.
4.05. Mr.Panchal, learned advocate appearing on behalf of the petitioners has further submitted that such a consensus / arrangement is contrary to the provisions of Gujarat University Act. It is further submitted that the entire exercise of granting admissions in the post graduate courses in the discipline of dentistry by the State Government as well as respondent Nos.6 to 8 in the ratio of 50:50 between the State quota and management quota and even excluding 15% NRI Seats and consequential admissions given to the respondent Nos.9 to 44, is absolutely illegal and contrary to the statutory provisions which deserves to be quashed and set aside and therefore, it is requested to grant interim relief as prayed for and grant interim relief restraining the respondent Nos.9 to 44 nto to pursue their further studies in post graduate dental courses.
4.06. Mr.Panchal, learned advocate appearing on behalf of the petitioners has further submitted that though the respondent Nos.9 to 44 are granted admissions in the post graduate dental courses, their names are not registered / enrolled by the Gujarat University yet and therefore, it is requested to grant interim relief restraining the Gujarat University from enrolling / registering the name of the students - respondent Nos.9 to 44 in the Post Graduate Dental Courses.
5.00. Present petition is opposed by Mr.D.C. Dave learned counsel appearing on behalf of the respondent Nos.6 to 8. It is submitted that as per the decisions of the Hon'ble Supreme Court in the case of T.M.A. Pai Foundation (supra) as well as P.A. Inamdar (supra).
Providing admissions in the professional institutions in the self financed institutions in the ratio of 75:25 in the State quota and management quota and that too including 15% NRI quota and the management quota was absolutely illegal. Therefore, to save the situation consensus has been arrived at between the State Government and the respondent Nos.6 to 8 providing for admission in the Post Graduate Dental Courses in the self-financed / unaided institutions in the State in the ratio of 50:50 and 15% NRI Seats to be excluded. It is submitted that the aforesaid consensus / arrangement is absolutely in accordance with the law laid down by the Hon'ble Supreme Court in the aforesaid two decisions. It is submitted that such a consensus / arrangement is permissible as held by the Hon'ble Supreme Court in the case of P.A. Inamdar (supra).
5.01. Mr.D.C. Dave, learned Counsel appearing on behalf of the respondent Nos.6 to 8 has further submitted that such consensus / arrangement entered into for sharing seats in the government unaided institutions is permissible as per the decision of the Hon'ble Supreme Court in the case of P.A. Inamdar (supra). Therefore, it is submitted that such arrangement / consensus which was recorded by the Division Bench in its judgement and order dtd.30/3/2012 passed in Special Civil Application No. 18234 of 2011, is absolutely just, legal and proper. In support of his above submission, Mr.Dave, learned counsel has relied upon the decision of the Hon'ble Supreme Court in the case of T.M.A. Pai (Supra) and P.A. Inamdar (supra).
5.02.
Mr.D.C. Dave, learned Counsel appearing on behalf of the respondent Nos.6 to 8 has further submitted that as the Division Bench has disposed of the aforesaid Special Civil Application Nos. 18234 and 18254 of 2011 recording consensus / arrangement entered into between the State and respondent Nos.6 to 8 herein, providing for admissions in the post graduate dental courses in the self-financed institutions i.e. respondent Nos.6 to 8 institutions and therefore, present Special Civil Application by the petitioners is not maintainable. It is submitted that as such the petitioners have either to prefer review application before the the Division Bench in the aforesaid Special Civil Application Nos. 18234 and 18254 of 2011 which disposed of the said writ petitions recording consensus / arrangement or the petitioners have to challenge the decision dtd.30/3/2012 of the Division Bench rendered in Special Civil Application Nos. 18234 and 18254 of 2011 before the Hon'ble Supreme Court. It is submitted that however, the present Special Civil Application shall not be maintainable. It is submitted by Mr.Dave, learned Counsel appearing on behalf of the respondent Nos.6 to 8 that to pass an order in the present Special Civil Application would tantamount to reviewing the order passed by the Division Bench in the aforesaid Special Civil Applications, which is not permissible. In support of his above submissions, Mr.Dave, learned counsel appearing on behalf of the respondent Nos.6 to 8 has heavily relied upon the decision of the Full Bench of this Court dtd.24/1/2001 rendered in Special Civil Application No. 7136 of 2001 and other allied Special Civil Applications.
5.03. Mr.D.C. Dave, learned Counsel appearing on behalf of the respondent Nos.6 to 8 has further submitted that as such in the State of Gujarat, self financed institutions affiliated with different universities were granting admissions differently i.e. in some self financed institutions admissions were granted in the ratio of 50:50 as per the regulations of the Dental Council, and in some of the institutions like respondent Nos.6 to 8 admissions were granted in the post graduation in dental courses in the ratio of 75:25 in the State quota and management quota and therefore, to have an uniformity in the State with respect to admission for the post of graduate by different universities / institutions, consensus / arrangement has been arrived at between the parties, which is recorded by the the Division Bench in its judgement and order dtd.30/3/2012 passed in Special Civil Application Nos. 18234 of 2011. Therefore, it is submitted that as such no illegality has been committed in arriving at the consensus / arrangement providing admission in post graduate dental in the respondent Nos.6 to 8 institutions in the ratio of 50:50 excluding NRI Seats.
5.04. Mr.D.C. Dave, learned Counsel appearing on behalf of the respondent Nos.6 to 8 has further submitted that Annexure-A to the present Special Civil Application is not a consensus / arrangement between the State and respondent Nos.6 to 8. It is submitted that it was only a note place before the Division Bench only to assist the Hon'ble Court to record consensus / arrangement arrived at between the parties as it is.
5.05. Mr.D.C. Dave, learned Counsel appearing on behalf of the respondent Nos.6 to 8 as well as Mr.A.J. Shastri, learned advocate for the respondent Nos.9 to 44 - students, who have already been granted admissions on the basis of the arrangement / consensus, that as such so far as the interim reliefs which are sought in the present Special Civil Application are concerned, they have become infructuous, as admissions have already been granted on the basis of the entrance examination held by the respondent No.6 on 5/2/2012, result of which has been declared on 13/4/2012 and actual admissions have been granted on 15/4/2012 i.e. much prior to the notice issued by the learned Single Judge of this court in the present Special Civil Application on 30/4/2012. Therefore, it is requested not to grant any interim relief.
6.00. Present Special Civil Application is also opposed by Mr.P.K. Jani, learned Government Pleader appearing on behalf of the respondent Nos.1 and 2. It is submitted that to save the situation a conscious decision has been taken by the State Government and consensus / arrangement has been arrived at between the State Government and respondent Nos.6 to 8 under which admissions for the post of Post Graduate Dental Courses are to be granted in the ratio of 50:50 in the State quota and management quota excluding 15% NRI seats. It is submitted that a decision has been taken at the highest level in the larger interest and to have uniformity in granting admissions in Post Graduate Dental Courses in the State of Gujarat. It is further submitted by Mr.P.K. Jani, learned Government Pleader appearing on behalf of the State that as such there is no consensus / arrangement between the State and the respondent Nos.6 to 8 in writing but consensus / arrangement has been recorded in the files and the noting is made in the file. Mr.Jani, learned Government Pleader has produced the entire original file before the Court for its perusal.
7.00. Petition is also opposed by Mr.A.J. Shastri, learned advocate appearing on behalf of the respondent Nos.9 to 44 (most of the students) who are granted admissions for Post Graduate Dental Courses in the respondent Nos.6 to 8 institutions. He has submitted that he adopts the submission made by Mr.D.C. Dave, learned advocate appearing on behalf of the respondent Nos.6 to 8 and Mr.P.K. Jani, learned Government Pleader appearing on behalf of the State of Gujarat has further submitted that as the admissions are already granted and counsellings process has been undertaken by the respondent Nos.6 to 8 on 15/4/2012, it is requested not to grant any interim relief, as the same has become infructuous.
8.00. Heard the learned advocates appearing on behalf of the respective parties at length on interim relief. As stated hereinabove, this Court was inclined to dispose of the present petition finally, however, the learned advocates appearing on behalf of the respondents did not agree with the same and therefore, this Court is required to consider the question with respect to interim relief only.
8.01. It is required to be noted that admissions in Post Graduate Dental Courses in the respondent Nos.6 to 8 institutions are governed by the provisions of the Act of 2007 and Regulation of 2010 as well as provisions of the Gujarat Universities Act, which provide that admissions in the State quota and management quota in unaided / self-financed institutions in the State, more particularly in the respondent Nos.6 to 8 institutions are to be granted in the ratio of 75:25 i.e. 25% management quota is including 15% NRI Seats. That the aforesaid Act of 2007 and Regulations of 2010 and even Gujarat University Act are having statutory force. It is also not in dispute that earlier vires of provisions of Act of 2007 were challenged before the Division Bench and the Division Bench has upheld the vires and SLP preferred against the said decision of the Division Bench in Special Civil Application No. 8785 of 2008 has been dismissed by the Hon'ble Supreme Court. It is also required to be noted that earlier the respondent Nos.7 and 8 preferred Special Civil Application No.4849 of 2011 against the Gujarat University making similar grievance and restraining the Gujarat University from filling up the seats at the level of Post Graduate and the said Special Civil Application came to be dismissed by the the Division Bench against which respondent Nos.7 and 8 preferred SLP before the Hon'ble Supreme Court, however, the respondent Nos.7 and 8 withdrew the said Special Leave to Appeal as well as main Special Civil Application No. 4849 of 2011 with a liberty to file a fresh petition for the academic year 2012-13 and thereafter respondent Nos.6 to 8 preferred Special Civil Application Nos. 18234 and 18254 of 2011. As stated above, in the said Special Civil Applications, the learned advocate appearing on behalf of the respondent Nos.6 to 8 made a statement before the the Division Bench that they do not press the aforesaid Special Civil Applications by submitting that a consensus / arrangement has been entered into between the State and the respondent Nos.6 to 8 herein under which the admissions in the Post Graduate Dental Courses in respondent Nos.6 to 8 shall be given in the ratio of 50:50 in the State quota and management quota and excluding 15% NRI seats. Recording the aforesaid statement, the Division Bench disposed of the aforesaid Special Civil Application without further entertaining into the merits of the case and specifically observing that the Division Bench has not entered into the merits of the matter. Therefore, short question which arises in the present petition for consideration of this Court is whether any consensus / arrangement arrived at between the Stat and the respondent Nos.6 to 8 (which is not even reduced in writing) can supersede and/or substitute the statutory provisions of the Act of 2005 and Regulations of 2010 and the provisions of the Gujarat University Act providing admissions in the Post Graduate Dental Courses in the ratio of 75:25 in the State quota and management quota including 15% NRI?
8.02. It cannot be disputed that the Act of 2007, regulation of 2010 and provisions of Gujarat University Act, providing for admission in Post Graduate Dental Courses have a statutory force and the same cannot be substituted by such arrangement / consensus arrived at between the State Government and the respondent Nos.6 to 8. This court is not considering on merits whether admission in the Post Graduate Dental Courses in the ratio of 50:50 excluding 15% NRI seats is justifiable or not. However, the question is whether can State and/or respondent Nos.6 to 8 ignore and/or by-pass statutory provisions of Act of 2007 and Regulations of 2010 and provisions of Gujarat University Act, which provide admissions in Post Graduate Dental Courses in unaided institutions in the ratio of 75:25 including 15% NRI seats. No consensus / arrangement can by-pass and/or substitute statutory provisions. As stated above and even it is admitted position that such a consensus / arrangement providing admissions in Post Graduate Dental Courses in the respondent Nos.6 to 8 in the ratio of 50:50 excluding 15% NRI Seats, is not even reduced in writing. Under the circumstances, it appears that such a consensus / arrangement providing admissions in the Post Graduate Dental Courses in the respondent Nos.6 to 8 in the ratio of 50:50 excluding 15% NRI Seats for the academic year 2012-2013 and even admissions given to the respondent Nos.9 to 44 on the basis of the aforesaid ratio is absolutely illegal and contrary to the provisions of the Act of 2007, regulation of 2010 and Gujarat University Act.
8.03. Now so far as the contention on behalf of the respondent Nos.6 to 8 with respect to maintainability of the present petition by submitting that as the the Division Bench disposed of Special Civil Application Nos.18234 and 18254 of 2011 recording consensus / arrangement arrived at between the State Government and the respondent Nos.6 to 8 herein and therefore, petitioner has to either file a review application in the aforesaid Special Civil Application or challenge the said decision dtd.30/3/2012 rendered in Special Civil Application No. 18234 of 2011 and reliance placed upon the decision of the Full Bench of this Court dtd.24/1/2001 rendered in Special Civil Application No. 7136 of 2001 and other allied Special Civil Applications, is concerned, the same has no substance. It is required to be noted that as such the present petition was initially placed before the very Division Bench which disposed of Special Civil Application No. 18234 of 2011 and thereafter the very the Division Bench sent the matter to the learned Single Judge vide order dtd.16/4/2012, on the ground that present mater is required to be heard by the Single Judge of this Court as the petitioners have not challenged vires of any Act. Even otherwise, it is required to be noted that while disposing the Special Civil Application Nos.
18234 and 18254 of 2011, the Division Bench has only recorded statement of the learned advocate appearing on behalf of the respondent No.6 to 8 herein that he does not press the aforesaid Special Civil Application and as such the Division Bench has not gone into the merits of the matters and has not expressed any opinion on merits, either with respect to the said matters or with respect to the legality and validity of such a consensus. Even while disposing of the aforesaid Special Civil Applications, the Division Bench has never directed the parties to act as per the consensus / arrangement arrived at between the State Government and the respondent Nos.6 to 8 herein.
8.04. Now, so far as the reliance placed upon the unreported decision of the Full Bench of this Court dtd.24/1/2001 rendered in Special Civil Application No. 7136 of 2001 and other allied Special Civil Applications, is concerned, the same shall not be applicable to the facts of the present case. In the case before the Full Bench, the Division Bench decided the Special Civil Application on merits and thereafter it was sought to be contended that the same is not binding and to that the Full Bench has held that the only remedy available to the aggrieved party is either to file a review application before the same Bench or to challenge the decision before the Hon'ble Supreme Court and Special Civil Application under Article 226 of the Constitution of India shall not be maintainable. As stated above, while disposing of the Special Civil Application Nos. 18234 and 18254 of 2011 vide judgement and orders dtd.30/3/2012, the Division Bench has not expressed any opinion on merits and has not gone into the merits of the matters and has not considered and decided and disposed of the said Special Civil Applications on merits and as stated above, the Division Bench recorded only the statements as stated hereinabove, made by the learned advocate appearing on behalf of the respondent Nos.6 to 8 herein. In view of the above, In view of the above, and in light of the above facts and circumstances, present Special Civil Application is required to be considered.
8.05. It is true that prior to issuance of the notice by the learned Single Judge of this Court in the present petition, on the basis of the consensus / arrangement entered into between the State Government and the respondent Nos.6 to 8, common entrance test came to be conducted by the respondent No.6 on 5/2/2012, and counsellings for admissions in Post Graduate Dental Courses has been conducted on 13/4/2012 and even admissions are granted to the respondent Nos.9 to 44 - students on 15/4/2012. Therefore, to that extent, with respect to the aforesaid interim relief, no interim relief can be granted. However, it is reported that after the admissions are granted to the respondent Nos.9 to 44, their names are still not registered / enrolled by the Gujarat University with whom respondent Nos.6 to 8 are affiliated and therefore, by way of interim relief, it is directed that admissions already granted in favour of the respondent Nos.9 to 44 shall be provisional and subject to ultimate outcome of the present Special Civil Application and it is further observed that respondent Nos.9 to 44 shall not claim any equity and as stated above,there admissions shall be subject to ultimate outcome of the present Special Civil Application.
Considering the fact that after the admissions, the names of the respondent Nos.9 to 44 are yet not registered / enrolled by the Gujarat University, by way of interim relief respondent No.3 - Gujarat University is hereby restrained from registering / enrolling the names of the respondent Nos.9 to 44.
8.06. In the facts and circumstances of the case, registry is directed to notify present petition on 25/6/2012 as already fixed earlier by the learned Single Judge of this Court vide order dtd.30/4/2012, however, for final hearing. As the question is with respect to admission in educational institutions, it will be open for the any of parties to move appropriate application for fixing early date of final hearing of the present petition even prior to 25/6/2012, which may be considered by the concerned Bench taking up such matters as per the roster, as per the convenience of the concerned Bench.
Direct Service is permitted.
[M.R. SHAH, J.] rafik Top