Gujarat High Court
Chandibhamar Abhay Sanjaykumar vs State Of Gujarat on 9 August, 2023
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
NEUTRAL CITATION
C/SCA/13177/2023 JUDGMENT DATED: 09/08/2023
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 13177 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
==========================================================
1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
==========================================================
CHANDIBHAMAR ABHAY SANJAYKUMAR
Versus
STATE OF GUJARAT
==========================================================
Appearance:
MR DHAVAL DAVE, SR. ADVOCATE for MR JEET J BHATT(6154) for the
Petitioner(s) No. 1
NIGAM D SONI(9314) for the Petitioner(s) No. 1
MS MANISHA LAVKUMAR, GOVERNMENT PLEADER with MR SAHIL TRIVEDI,
AGP for the Respondent(s) No. 1,3
MR. KM ANTANI(6547) for the Respondent(s) No. 2
==========================================================
CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 09/08/2023
ORAL JUDGMENT
1. Heard learned Senior Advocate Mr. Dhaval Dave for learned Advocate Mr. Jeet J. Bhatt for the petitioner and learned Government Pleader Ms. Manisha Lavkumar with learned AGP Mr. Sahil Trivedi for the Page 1 of 26 Downloaded on : Sun Sep 17 00:48:11 IST 2023 NEUTRAL CITATION C/SCA/13177/2023 JUDGMENT DATED: 09/08/2023 undefined respondent No.1 and 3 and learned Advocate Mr. K.M. Antani for the respondent No.2.
2. By way of this petition, the petitioner has prayed for the following relief.
"34. Therefore, the petitioner prays before this Hon'ble Court that:
A. To kindly allow this petition.
B. Be pleased to issue a writ of mandamus or any other writ in the nature of mandamus or any other appropriate writ, order or direction declaring the impugned communication dt 24.07.2023 (Ann-A-Colly) issued by the respondent authorities as illegal, discriminatory and violative of Art 14 of Constitution of India and further quashing and setting the same and further directing that the petitioner may be considered eligible for NRI category seats for admission in PG medical course for academic year 2023-24 in State quota;
C. Be pleased to issue a writ of mandamus or any other writ in the nature of mandamus or any other appropriate writ, order or direction directing the respondent authorities to follow the definition of Ward as laid down by Hon'ble Supreme Court of India in the matter of Ruchin Bharat Patel Vs. Parents Association for the MD students and others and Consortium of Deemed Universities in Karnataka and another Vs. Union of India and in the alternative to issue guideline-instruction for the Wards who have NRI Guardians to apply in PG medical professional Courses in the State of Gujarat and till that time follow and comply with the definition of ward laid down by the Hon'ble Supreme Court in the matter of Ruchin Bharat Patel Vs. Parents Association for the MD students and others and Consortium of Deemed Universities in Karnataka and another Vs. Union of India.
D. Pending admission/final hearing of the present petition, Your Lordship may kindly be pleased to direct the Respondent No.2 Admission Committee to keep one seat vacant in MD Radiology/ MD Dermatology for the petitioner out of total approved seats for Private & Un-aided Medical Colleges in Ahmedabad District under NRI quota;
Page 2 of 26 Downloaded on : Sun Sep 17 00:48:11 IST 2023 NEUTRAL CITATION C/SCA/13177/2023 JUDGMENT DATED: 09/08/2023 undefined
E. To pass any other and further orders as may be deemed fit and proper."
3. It is the case of the petitioner that after completing his MBBS Course including one year compulsory internship, the petitioner had appeared in the NEET-PG-2023 Examination and cleared the same with All India Rank 77,569. It is the case of the petitioner that while the admission process to medical colleges for MBBS and PG Courses are regulated by the Gujarat Professional Medical Educational Colleges or Institutions (Regulation of Admission and Fixation of Fees) Act, 2007 (hereinafter to be referred to as "the Gujarat Medical Admission Act, 2007"), and whereas while the said Act contemplates reservation of 15% seats for NRIs, and whereas the definition of NRI seats as per the Act includes the term 'ward', yet, there is no definition prescribed in the Act as to who would constitute a ward of an NRI. The petitioner had preferred representation inter alia requesting that the meaning of the term 'ward' should be as per the broader meaning as observed by the Hon'ble Apex Court in an order dated 13.11.2006 rendered in case of Ruchin Bharat Patel Vs. Parents' Association for the MD Students and Others, reported in 2006 SCC Online SC 1437 as well as in an order of the Hon'ble Apex Court in case of Consortium of Deemed Universities in Karnataka (CODEUNIK) and Another Vs. Union of India and Others, reported in 2017 SCC Online SC 2110 and whereas the said representation Page 3 of 26 Downloaded on : Sun Sep 17 00:48:11 IST 2023 NEUTRAL CITATION C/SCA/13177/2023 JUDGMENT DATED: 09/08/2023 undefined begin rejected by the State inter alia observing that the meaning of the word 'ward' would be as per the definition under the Guardians and Wards Act, 1890. Being aggrieved by the said rejection of the representation and seeking for the prayers as reproduced hereinabove, the petitioner has preferred the present petition.
4. Learned Senior Advocate Mr. Dhaval Dave on behalf of the petitioner would submit that admission to medical colleges in the State of Gujarat for under-graduate and post-graduate courses are regulated by the Gujarat Medical Admission Act, 2007, and whereas originally the Act, inter alia defines Non-resident Indian seats as - "means 15% seats reserved for children or wards or the dependents for the education purpose of the Non- resident Indian, to whom admission is to be given in the professional educational colleges or institutions". It is submitted that while the said Act had been promulgated in the year 2007 with the extended definition as hereinabove, the State had issued an Ordinance on 10.06.2016 under the nomenclature Gujarat Provisional Medical Educational Colleges or Institutions (Regulation of Admission and Fixation of Fees) (Amendment) Ordinance, 2016, whereby the 15% NRI quota had been deleted. Learned Senior Advocate would submit that the said ordinance had been challenged before this Court and whereas vide judgment in case of Prati Shailesh Patel Vs. State of Gujarat, reported in 2016 SCC Online GUJ 1909, a Division Page 4 of 26 Downloaded on : Sun Sep 17 00:48:11 IST 2023 NEUTRAL CITATION C/SCA/13177/2023 JUDGMENT DATED: 09/08/2023 undefined Bench of this Court (Coram : Hon'ble the Chief Justice R. Subhash Reddy and Hon'ble Justice Vipul M. Pancholi) had set aside the said ordinance, more particularly having regard to the law laid down by the Hon'ble Apex Court in case of P.A. Inamdar Vs. State of Maharashtra, reported in 2005 (6) SCC 537. Learned Senior Advocate would submit that the State had thereafter deleted the words "or the dependents for the education purpose", thus restricting the admission to NRI seats specifically to children or wards of Non-resident Indians. Learned Advocate would submit that the term 'ward' has not been defined or explained in the Act.
4.1 It is further submitted that the Hon'ble Apex Court in order in case of Ruchin Bharat Patel (supra) had broadened the definition of the term 'NRI quota' by laying down the following categories :
(1) The students be admitted as NRIs in NRI quota as against 15% :
At least one of the parents of such students should be an NRI and shall ordinarily be residing abroad as an NRI;
(2) The person who sponsors the student for admission should be a first degree relation of the student and should be ordinarily residing abroad as an NRI;
(3) If the student has no parents or near relatives or taken as a ward Page 5 of 26 Downloaded on : Sun Sep 17 00:48:11 IST 2023 NEUTRAL CITATION C/SCA/13177/2023 JUDGMENT DATED: 09/08/2023 undefined by some other nearest relative such students also may be considered for admission provided the guardian has bona fide treated the student as a ward and such guardian shall file an affidavit indicating the interest shown in the affairs of the student and also his relationship with the student and such person also should be an NRI, and ordinarily residing abroad.
4.2 Learned Senior Advocate would further rely upon an order of the Hon'ble Apex Court in case of Consortium of Deemed Universities in Karnataka (supra) and would submit that the Hon'ble Apex Court had inter alia observed that the directions of a Division Bench of the High Court of Madhya Pradesh rendered in Anshul Tomar Vs. State of M.P. and Others (2008) 2 MPLJ 450, shall be followed. It would be relevant to mention here that in case of Anshul Tomar, the High Court of Madhya Pradesh had referred to guidelines drafted by Pravesh Niyantran Samiti (Medical Education), Mumbai, which lays down the broader criteria for admission in the NRI quota. Learned Senior Advocate referring to the order of the Hon'ble Apex Court in case of Consortium of Deemed Universities in Karnataka (supra) would submit that while the observations of the Hon'ble Apex Court in the said decision are with regard to the NRI seats available in the deemed universities whose admission is regulated by the Central Government and whereas it is submitted that the Directorate General of Health Services who regulates admissions in All India quota in NRI category Page 6 of 26 Downloaded on : Sun Sep 17 00:48:11 IST 2023 NEUTRAL CITATION C/SCA/13177/2023 JUDGMENT DATED: 09/08/2023 undefined for deemed universities, issues guidelines every year and whereas an Information Bulletin and Counselling Scheme has been laid down for the present year also and whereas the relationship of the NRI with the student is stated to be governed as per the order of the Hon'ble Apex Court in case of Consortium of Deemed Universities in Karnataka (supra). 4.3 Learned Senior Advocate would submit that since the term 'ward' has not been defined or explained in the Gujarat Medical Admission Act, 2007, and whereas since the Central Government has envisaged a broader guideline for admission to the NRI quota, the guideline of the Central Government would have primacy. Learned Senior Advocate would submit that under the 7th Schedule to the Constitution of India, more particularly in List I - Union List, Entry No. 66 states with regard to co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions. Learned Senior Advocate would submit that the Entry No. 25 in List III - Concurrent List, inter alia states with regard to education, including technical education, medical education and universities, subject to the provisions of entries 63, 64, 65 and 66 of List I; vocational and technical training of labour. Learned Senior Advocate would submit that since medical education is referred to in the Concurrent List and whereas the same is subject to entry No. 66 of List I, therefore the guidelines issued by the Central Government would have overriding effect.
Page 7 of 26 Downloaded on : Sun Sep 17 00:48:11 IST 2023 NEUTRAL CITATION C/SCA/13177/2023 JUDGMENT DATED: 09/08/2023 undefined
Learned Senior Advocate in support of his submissions would rely upon the decision in case of State of T.N. and Another Vs. Adhiyaman Educational & Research Institute and Others, reported in (1995) 4 SCC 104. 4.4 Learned Senior Advocate would further submit that an anomalous situation is created on account of restricted meaning of term 'ward' followed by the State Government, inasmuch as while the petitioner is declared as eligible for applying as an NRI in deemed universities situated in the State of Gujarat, the petitioner is not eligible to apply in the State quota as an NRI student in the NRI category.
4.5 Learned Senior Advocate would further submit that the law laid down by the Hon'ble Apex Court in case of Consortium of Deemed Universities in Karnataka (supra), is being relied upon in many other States for admission in NRI quota and whereas a restricted meaning of the term 'ward', in the Gujarat Medical Admission Act, 2007, is nothing but discrimination. Learned Senior Advocate would further submit that by following the restricted criteria, the State Government is creating a class within a class without any intangible differentia, more particularly without clarifying the purpose sought to be achieved by the classification. 4.6 Learned Senior Advocate would also rely upon the decision of the High Court of Himachal Pradesh in case of Maharishi Markandeshwar Page 8 of 26 Downloaded on : Sun Sep 17 00:48:11 IST 2023 NEUTRAL CITATION C/SCA/13177/2023 JUDGMENT DATED: 09/08/2023 undefined University and Another Vs. State of Himachal Pradesh and Others, reported in 2020 SCC Online HP 2495, whereby the High Court of Himachal Pradesh had inter alia laid down that principles as laid down in case of Consortium of Deemed Universities in Karnataka (supra), could not be stated to be applicable to the deemed universities only. 4.7 Learned Senior Advocate would thus submit that since the term 'ward' has not been defined or explained in the Gujarat Medical Admission Act, 2007, and whereas in reply to the representation preferred by the petitioner, it has been informed that the State interprets the term 'ward' as per the definition appearing in the Guardians and Wards Act. That on the other hand, there are two decisions of the Hon'ble Apex Court, which have been followed by the Central Government and whereas in view of Entry No. 25 in List III read with Entry No. 66 in List I of the 7 th Schedule, since the primacy is of the Central Government, therefore any provision to the contrary by the State would be of no consequence. Under such circumstances, it is requested by the learned Senior Advocate Mr. Dave that this Court may quash and set aside the order passed by the respondent No.3 and may direct the State to consider the meaning of the word 'ward' as per the explanation given by the Hon'ble Apex Court in case of Ruchin Bharat Patel (supra) as well as in case of Consortium of Deemed Universities in Karnataka (supra).
Page 9 of 26 Downloaded on : Sun Sep 17 00:48:11 IST 2023 NEUTRAL CITATION C/SCA/13177/2023 JUDGMENT DATED: 09/08/2023 undefined
5. This petition is vehemently objected to by the learned Government Pleader Ms. Manisha Lavkumar. Learned Government Pleader would submit that at the outset it would be required to be noted that the petitioner had been granted admission in the MBBS Course as per the pre-amended Gujarat Medical Admission Act, 2007, more particularly when the term 'NRI' also included 'dependants for education purpose'. Learned Government Pleader would refer to decisions of the Hon'ble Apex Court in case of Ruchin Bharat Patel (supra) and in case of Consortium of Deemed Universities in Karnataka (supra) and would submit that both the decisions would not lay down any binding precedent, more particularly according to the learned Government Pleader, the observations of the Hon'ble Apex Court were with regard to the facts of the said cases and only for a particular period. Learned Government Pleader would submit that as such, insofar as the decision in case of Consortium of Deemed Universities in Karnataka (supra) is concerned, it would appear that the said decision had been passed in context of a concession by the learned counsel appearing for the Union of India. Learned Government Pleader would submit that as such the decisions in question do not envisage their applicability beyond a particular year for which they had been passed.
5.1 It is further vehemently submitted by the learned Government Pleader that the observations of the Hon'ble Apex Court in both the Page 10 of 26 Downloaded on : Sun Sep 17 00:48:11 IST 2023 NEUTRAL CITATION C/SCA/13177/2023 JUDGMENT DATED: 09/08/2023 undefined decisions were not in context of meaning of the term 'ward' and whereas the said observations do not envisage a situation whereby a broader meaning could be taken as an exception to be eligibility criteria as prescribed in the Act.
5.2 Learned Government Pleader would further submit that the intent of the State is to ensure that benefit of admission under the NRI quota should be go to the genuine NRI candidates and whereas it is submitted that the same would be in consonance with the law laid down by the Hon'ble Apex Court in case of P.A. Inamdar (supra). Learned Government Pleader has referred to decision of the High Court of Punjab and Haryana at Chandigarh in case of Asmita Kaur Vs. State of Punjab and Others, reported in 2019 SCC Online P & H 937 and decision of the High Court of Madras in case of C.S. Shri Lakshmi Vs. State of Tamil Nadu, reported in 2020 SCC Online Mad 11797.
5.3 Learned Government Pleader would submit that undoubtedly in case of repugnancy between the legislation or even executive orders of the State as compared to the same issued by the Center, then the legislation or executive fiat issued by the Union Government with regard to subjects stated in Entry No. 25 of List III read with Entry No. 66 of List I of the 7 th Schedule, would have primacy and whereas in the instant case while there is Page 11 of 26 Downloaded on : Sun Sep 17 00:48:11 IST 2023 NEUTRAL CITATION C/SCA/13177/2023 JUDGMENT DATED: 09/08/2023 undefined a legislation of the State Government, there is neither any statute or an executive fiat issued by the Central Government and whereas under such circumstances, there cannot be any repugnancy in the legislation of the State.
5.4 Learned Government would further submit that there is no classification done which is discriminatory or not based on intangible differentia, more particularly with regard to the object sought to be achieved. Learned Government Pleader would submit that the underlying object behind the restricted meaning given to the term 'NRI quota' in the Gujarat Medical Admission Act, 2007, is with the object of ensuring that only genuine NRIs i.e. either the student himself is an NRI or children or wards of NRIs, get the benefit of the admission in NRI quota. Thus, submitting learned Government Pleader would request this Court not to entertain the present petition.
6. In rejoinder, it is submitted by learned Senior Advocate Mr. Dhaval Dave that when the Center has thought it fit to have a particular interpretation for the seats to be allocated in NRI quota, the State would have to follow suit and whereas Article 162 of the Constitution of India is being relied upon in support of such contention.
6.1 Learned Senior Advocate would further submit that the decisions Page 12 of 26 Downloaded on : Sun Sep 17 00:48:11 IST 2023 NEUTRAL CITATION C/SCA/13177/2023 JUDGMENT DATED: 09/08/2023 undefined
relied upon by the learned Government Pleader, both of the Punjab and Haryana High Court as well as the Madras High Court, are distinguishable on facts, more particularly since in both the decisions, the relevant criteria of the respective State Governments has been referred to and whereas in case of the Punjab criteria, the NRI seats are only available to children of NRI who originally belong to State of Punjab or children of NRI who originally belong to any Indian State other than Punjab and whereas the term 'ward' has not been used in the criteria of the said State. On the other hand, insofar as the Madras High Court judgment is concerned, it is submitted that the eligibility criteria as found in the prospectus, clearly states that the NRI seats would be available only to children and the NRI concerned should be legally declared as guardian of the candidate by the court as per the provision of the Guardians and Wards Act, 1890. Learned Senior Advocate would submit that since the Gujarat Medical Admission Act, 2007 does not interpret or explain the term 'ward', both the decisions would be distinguishable on facts.
6.2 Learned Senior Advocate would further submit that as such, insofar as the present year is concerned, in the prospectus for medical admission in the State of Tamil Nadu, the eligibility for admission to NRI quota has been prescribed as per the observations made by the Hon'ble Apex Court in case of Consortium of Deemed Universities in Karnataka (supra), and whereas Page 13 of 26 Downloaded on : Sun Sep 17 00:48:11 IST 2023 NEUTRAL CITATION C/SCA/13177/2023 JUDGMENT DATED: 09/08/2023 undefined the said eligibility is also followed for admission to NRI quota in the State of Haryana. Thus, submitting learned Senior Advocate Mr. Dave would request this Court to interfere and issue appropriate directions to the State Government.
7. Heard learned Senior Advocates for the respective parties who have not submitted anything further.
8. The issues for consideration of this Court are as under :
(1) Whether it was open for the State to restrict the definition of the term 'ward' appearing in the definition of the term 'NRI seats' in the Gujarat Medical Admission Act, 2007?
(2) Whether the State was required to follow the eligibility criteria for admission to NRI quota seat as followed by the Central Government for admission to NRI quota in deemed universities?
(3) Whether the State was required to follow the definition of the term 'ward' as laid down by the Hon'ble Apex Court in cases of Ruchin Bharat Patel (supra) and Consortium of Deemed Universities in Karnataka (supra)?
and/or (4) Whether the Hon'ble Apex Court in the decisions referred to Page 14 of 26 Downloaded on : Sun Sep 17 00:48:11 IST 2023 NEUTRAL CITATION C/SCA/13177/2023 JUDGMENT DATED: 09/08/2023 undefined hereinabove were explaining or interpreting the term 'ward' at all?
9. At the outset, for considering the above issues, it would be profitable to refer to paragraph No. 131 of the decision of the Hon'ble Apex Court in case of P.A. Idamdar (supra), which observations of the Hon'ble Apex Court is the genesis for granting of 15% reservation for NRIs in medical admission.
"131. Here itself we are inclined to deal with the question as to seats allocated for Non-Resident Indians ('NRI', for short) or NRI seats. It is common knowledge that some of the institutions grant admissions to certain number of students under such quota by charging a higher amount of fee. In fact, the term 'NRI' in relation to admissions is a misnomer. By and large, we have noticed in cases after cases coming to this Court, neither the students who get admissions under this category nor their parents are NRIs. In effect and reality, under this category, less meritorious students, but who can afford to bring more money, get admission. During the course of hearing, it was pointed out that a limited number of such seats should be made available as the money brought by such students admitted against NRI quota enables the educational institutions to strengthen its level of education and also to enlarge its educational activities. It was also pointed out that people of Indian origin, who have migrated to other countries, have a desire to bring back their children to their own country as they not only get education but also get reunited with Indian cultural ethos by virtue of being here. They also wish the money which they would be spending elsewhere on education of their children should rather reach their own motherland. A limited reservation of such seats, not exceeding 15%, in our opinion, may be made available to NRIs depending on the discretion of the management subject to two conditions. First, such seats should be utilized bona fide by the NRIs only and for their children or wards. Secondly, within this quota, the merit should not be given a complete go-by. The amount of money, in whatever form collected from such NRIs, should be utilized for benefiting students such as from economically weaker sections of the society, whom, on well defined Page 15 of 26 Downloaded on : Sun Sep 17 00:48:11 IST 2023 NEUTRAL CITATION C/SCA/13177/2023 JUDGMENT DATED: 09/08/2023 undefined criteria, the educational institution may admit on subsidized payment of their fee. To prevent misutilisation of such quota or any malpractice referable to NRI quota seats, suitable legislation or regulation needs to be framed. So long as the State does not do it, it will be for the Committees constituted pursuant to Islamic Academy's direction to regulate."
9.1 From the observations of the Hon'ble Apex Court as above, it would be discernible that two conditions were laid down by the Hon'ble Apex Court for reservation of 15% to be allocated to NRIs, the first and the primary condition being that the seats should be utilized for bona fidely by NRIs for their children or wards and secondly the merit should not been given a complete go-by. It could also be noted that the Hon'ble Apex Court was faced with the fact that institutions were granting admission to students under the State quota by charging a higher fee and whereas the Hon'ble Apex Court has noticed that in case of such admission, the term 'NRI' was in fact a misnomer, more particularly neither the students who get admissions under the said categories nor their parents were NRIs. In effect such a tendency was sought to be curbed and whereas on the other hand, the Hon'ble Apex Court has highlighted that NRIs would mean such persons who have migrated to other countries and who wish their children get education in their own country and thereby getting in sync with Indian culture and values.
9.2 Considering the observations of the Hon'ble Apex Court, it would Page 16 of 26 Downloaded on : Sun Sep 17 00:48:11 IST 2023 NEUTRAL CITATION C/SCA/13177/2023 JUDGMENT DATED: 09/08/2023 undefined
appear that the intent of the Hon'ble Apex Court in laying down conditions while carving out reservation for NRI seats was to ensure that only genuine NRIs get benefit of such reservation. It also clearly appears that the word 'bona fide' has been used, more particularly in context of backdoor NRI admissions being granted by institutions to persons who were either not NRI themselves or were not children of NRIs. The question therefore would be whether the intent of the Hon'ble Apex Court to ensure that only genuine NRIs get the benefit of admission could be sub-served by the legislation i.e. the Gujarat Medical Admission Act, 2007 and the meaning attributed and understood of the term 'ward' by the State Government and by necessary extension the Admission Committee. The said aspect would be addressed in the later part of the judgment.
10. It would also be pertinent to note here that both the decisions in case Ruchin Bharat Patel (supra) and in case of Consortium of Deemed Universities in Karnataka (supra), were absolutely interim arrangements, more particularly which arrangements would continue for the said year only. In case of the first decision i.e. in case of Ruchin Bharat Patel (supra), the Hon'ble Apex Court had clearly observed at paragraph No.6 that "in view of the peculiar circumstances of the case, for this year we are taking a practical view of the situation and we feel that the students to these colleges may be admitted under the following directions and we make it clear that Page 17 of 26 Downloaded on : Sun Sep 17 00:48:11 IST 2023 NEUTRAL CITATION C/SCA/13177/2023 JUDGMENT DATED: 09/08/2023 undefined this is exclusively for this year only as a one time arrangement because of the peculiar circumstances of the case."
10.1 The above quoted observation of the Hon'ble Apex Court, does not leave any element of doubt as regards applicability of the said directions i.e. the directions were issued exclusively for the particular year, as a one time arrangement on account of peculiar circumstances of the said case.
11. Again, as regard the decision in case of Consortium of Deemed Universities in Karnataka (supra), it would be relevant to mention that the principles set out by the High Court of Madhya Pradesh in Anshul Tomar case (supra), were directed to be followed, more particularly on account of the concession made by learned Additional Solicitor General requesting the Court to make an interim arrangement subject to final adjudication of the controversy. Again, it requires to be mentioned here that the direction concerned was to be made applicable to deemed universities only and to no other category of institution.
12. From the above, it would clearly appear that the decisions passed by the Hon'ble Apex Court where interim arrangements made in the facts of the case before the Hon'ble Apex Court. The said decisions did not lay down any binding precedent, more particularly neither any ratio could be deduced from the decisions nor any proposition of law being answered by Page 18 of 26 Downloaded on : Sun Sep 17 00:48:11 IST 2023 NEUTRAL CITATION C/SCA/13177/2023 JUDGMENT DATED: 09/08/2023 undefined the Hon'ble Apex Court. It also requires to be noted here that the Hon'ble Apex Court was not concerned in both the decisions as regard defining the term 'ward' nor the decisions would be read in any manner howsoever that the Hon'ble Apex Court was infact laying down an interpretation of the term 'ward' in context of NRI sets. It would also appear that in both the scenarios, there does not appear to be existence of any intervening legislation as in the present case. Thus, in the considered opinion of this Court, the observations of the Hon'ble Apex Court in the above orders may not advance the cause of the petitioner here.
13. Coming back to the issue of whether the term 'ward' could be given an extended meaning beyond the spirit of the directions of the Hon'ble Apex Court at Para 131 in case of P.A. Inamdar (supra), in the considered opinion of this Court, the answer would be an emphatic no.
14. As noticed hereinabove, it would appear that while carving out reservation to the extent of 15% for admission to medical colleges in favour of the NRIs, the Hon'ble Apex Court was concerned with a situation where under the guise of admission to NRI seats, admission was granted to students who were neither NRIs nor their parents were NRIs. It is in context of such a concerned that the Hon'ble Apex Court had observed that the seats in the State quota should be given only to bona fide NRIs or their Page 19 of 26 Downloaded on : Sun Sep 17 00:48:11 IST 2023 NEUTRAL CITATION C/SCA/13177/2023 JUDGMENT DATED: 09/08/2023 undefined children or wards. In the humble opinion of this Court, seeking to widen the scope of the term 'ward' beyond the term, would be doing violence to the spirit of the observations of the Hon'ble Apex Court while carving out reservation for NRIs.
15. The term 'ward' in its most elementary meaning as per the Oxford Dictionary would mean 'a child who is under the protection of a court of law, a child whose parents are dead and who is cared for by another adult (guardian)'. The Blacks Law Dictionary defines the word 'ward', as 'a person, usually minor, who is under a guardian's charge or protection'. In the considered opinion of this Court, the word 'ward' used by the Hon'ble Apex Court, has to be appreciated in the context of the normal-elementary meaning of the term 'ward' read with the spirit of the observations as referred to hereinabove. The Hon'ble Apex Court inter alia observed and has used the word 'ward' in the first condition whereby the Hon'ble Apex Court inter alia lays down that the seats should be utilized by genuine NRIs only for their children or wards. Thus, the idea was to ensure that in addition to the children of NRIs, if a child is a ward of a bona fide NRI, he should also be entitled to get the benefit of admission in NRI seats. Thus, in the considered opinion of this Court, the word 'ward' appearing in the decision of the Hon'ble Apex Court in case of P.A. Inamdar (supra), has to be viewed as describing a minor who is in the guardianship of a NRI.
Page 20 of 26 Downloaded on : Sun Sep 17 00:48:11 IST 2023 NEUTRAL CITATION C/SCA/13177/2023 JUDGMENT DATED: 09/08/2023 undefined
15.1 Furthermore, it would be relevant to observe that while the said decision itself envisages legislation to be framed, more particularly 'to prevent misutilization or malpractice referable to NRI Quota Seats' and therefore in the considered opinion of this Court, the word 'ward' used in the context of the legislation could also not extend beyond the plain meaning ascribed to the term. Again, in context of legislation, more particularly since the word 'ward' envisages a minor who is under the protection of an adult, the law which regulates such guardianship in the country being the Guardians and Wards Act, therefore the definition of the term 'ward' has rightly been attributed the same definition as found in the legislation governing such a relationship.
16. In the considered opinion of this Court, when the genesis of granting reservation to NRIs is on the basis of the observations of the Hon'ble Apex Court at Para No. 131 in case of P.A. Inamdar (supra), P.A. Inamdar (supra), where the Hon'ble Apex Court envisages grant of admission in the State quota to genuine NRIs and their children or wards and the said paragraphs also envisages a legislation to ensure mis-utilization or malpractice in the said quota and where a legislation is brought by the State Government inter alia defining NRI seats and whereas definition of the word 'ward' is attributed the same definition as the legislation which governs appointing of a guardian for a minor, then to this Court it would appear that Page 21 of 26 Downloaded on : Sun Sep 17 00:48:11 IST 2023 NEUTRAL CITATION C/SCA/13177/2023 JUDGMENT DATED: 09/08/2023 undefined the State has followed the spirit of the observations of the Hon'ble Apex Court in case of P.A. Inamdar (supra), and whereas by no stretch of imagination the State could be faulted in doing so.
17. Learned Senior Advocate on behalf of the petitioner has also raised the contention that the action on part of the State amounts creating a class within the class and whereas the classification is not founded on intelligible differentiate and it does not have any rational relation with the object sought to be achieved. In this regard, it would be pertinent to observe that by now it is a well settled principle that reasonable classification is permissible provided the classification has a rational basis and does not discriminate between persons who are similarly situated. In case of State of Gujarat versus Shri Ambika Mills Ltd. reported in 1974 (4) SCC, page 656, the Hon'ble Apex Court had inter-alia observed that a reasonable classification is one which includes all who are similarly situated and none who are not. The Hon'ble Apex Court had further observed that for understanding the true purport of the term 'similarly situated' one should look beyond the classification to the actual purpose of the law, concerned, that the purpose of a law could either be elimination of a public mischief or the achievement of some positive public good.
18. Considering the present issue from the viewpoint of the law laid Page 22 of 26 Downloaded on : Sun Sep 17 00:48:11 IST 2023 NEUTRAL CITATION C/SCA/13177/2023 JUDGMENT DATED: 09/08/2023 undefined down by the Hon'ble Apex Court, it would appear that the purpose of law is to ensure that only such students who fall in the category of bona fide NRIs and their children or wards are given admission in the seats reserved in NRI quota. The mischief intended to be rectified is the misuse of the said quota by non-genuine NRIs. In the considered opinion of this court, the classification made by the state to achieve the above objective could not be stated to be unreasonable classification more, particularly considering that such classification had a rational relation with the object sought to be achieved.
18.1 It also requires mention here that the similarity which is claimed by the petitioner is also illusory inasmuch as there does not appear to be any discrimination by the State of Gujarat as regards similarly situated persons rather the discrimination allegedly claimed by the petitioner is on the basis that persons with similar relation to NRIs as the petitioner being eligible for admission to the NRI category in deemed to be universities, which admission is being regulated by the central government whereas the petitioner is not eligible for getting admission in the State quota. In the considered opinion of this Court that does not appear to be any discrimination or classification by the State between two similarly situated persons and whereas, under such circumstances also, the contention by the learned Senior Advocate for the petitioner could not be countenanced.
Page 23 of 26 Downloaded on : Sun Sep 17 00:48:11 IST 2023 NEUTRAL CITATION C/SCA/13177/2023 JUDGMENT DATED: 09/08/2023 undefined
19. Insofar as the aspect of guidelines of the Central Government is concerned, having primacy over the legislation of the State, in the considered opinion of this Court, such a submission would only be countenanced, if two basic conditions are fulfilled namely there exists a legislation or an executive order of the Central Government and whereas the State Government has issued a legislation or even an executive order, which is repugnant to the legislation or the executive order of the Central Government. In the facts of the case, it would appear that the Medical Counselling Committee of the Central Government has issued an Information Bulletin and Counselling Scheme for NEET- PG Counselling 2023, which inter alia envisages a reservation policy for NRIs and the relationship of the NRI with the candidate would be as per the decision of the Hon'ble Apex Court in case of Consortium of Deemed Universities in Karnataka (supra), in the considered opinion of this Court, the Information Bulletin and Counselling Scheme would neither be termed as a legislation nor would be termed as an executive order. Insofar as the law laid down by the Hon'ble Apex Court in case of State of T.N. and Another Vs. Adhiyaman Educational & Research Institute and Others (supra), it does not appear that there is any Central legislation to which the present State legislation is in conflict with, therefore the law laid down by the Hon'ble Apex Court in the said decision would not advance the cause of the Page 24 of 26 Downloaded on : Sun Sep 17 00:48:11 IST 2023 NEUTRAL CITATION C/SCA/13177/2023 JUDGMENT DATED: 09/08/2023 undefined petitioner.
19.1 Moreover, as far as the State Government is concerned, the State Government has issued a legislation in form of the Gujarat Medical Admission Act, 2007, yet, the stand of the State that the definition of the term 'ward' in the legislation which governs appointing of guardian for a ward, would not be definition of the said term, would not by itself permit the petitioner to contend repugnancy. In the considered opinion of this Court, there being no similar legislation or executive instructions, there cannot be an aspect of repugnancy. The above observations would also apply mutatis mutandis to the submission with regard to the Article 162 of the Constitution of India.
20. Having regard to the above discussion, the questions as framed at Paragraph No.8 are answered as thus :
(1) It is well within the powers of the State to define the term 'ward' as per the definition as found in the Guardians and Wards Act, 1890 for the said term as appearing in the definition of the term 'NRI seats' in the Gujarat Medical Admission Act, 2007.
(2) The State on account of having its own legislation could follow its own eligibility criteria for admission to the NRI quota, since the State Page 25 of 26 Downloaded on : Sun Sep 17 00:48:11 IST 2023 NEUTRAL CITATION C/SCA/13177/2023 JUDGMENT DATED: 09/08/2023 undefined legislation is not repugnant to any central legislation.
(3) The Hon'ble Apex Court in cases of Ruchin Bharat Patel (supra) and Consortium of Deemed Universities in Karnataka (supra) was not defining or explaining or interpreting the term 'ward' and whereas since the orders were purely interim arrangements, the State Government was not required to follow the same.
21. In view of the above discussion, reasoning and conclusion, in the considered opinion of this Court, no arbitrariness could be attributed to the State in considering the definition of the term 'ward' in the Gujarat Medical Admission Act, 2007 as per the definition of the term 'ward' appearing in the Guardians and Wards Act, therefore no interference by this Court is called for. Hence, the present petition stands disposed of as rejected.
(NIKHIL S. KARIEL,J) BDSONGAR Page 26 of 26 Downloaded on : Sun Sep 17 00:48:11 IST 2023