Gujarat High Court
Soneri Shashank Doctor - As Minor ... vs State Of Gujarat & on 22 September, 2016
Author: R. Subhash Reddy
Bench: R.Subhash Reddy, Vipul M. Pancholi
C/SCA/14873/2016 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 14873 of 2016
With
SPECIAL CIVIL APPLICATION NO. 14909 of 2016
With
SPECIAL CIVIL APPLICATION NO. 14911 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
==========================================================
1 Whether Reporters of Local Papers may be
allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the
fair copy of the judgment ?
4 Whether this case involves a substantial
question of law as to the interpretation
of the Constitution of India or any order
made thereunder ?
==========================================================
SONERI SHASHANK DOCTOR - AS MINOR THROUGH FATHER &
2....Petitioner(s)
Versus
STATE OF GUJARAT & 10....Respondent(s)
==========================================================
Appearance:
Special Civil Application No.14873.2016
MR SN SHELAT, SENIOR COUNSEL WITH MR CJ GOGDA & VIKAS V
NAIR, ADVOCATES for the Petitioner(s) No. 1 - 3
MR KAMAL TRIVEDI, ADVOCATE GENERAL WITH MS SANGEETA
VISHEN, AGP for the Respondent(s) No. 1
MR AJ YAGNIK, ADVOCATE for the Respondent(s) No. 11
MR D.C.DAVE, SENIOR COUNSEL WITH MR JIGAR M PATEL,
ADVOCATE for the Respondent(s) No. 4 - 10
MS ML SHAH, GOVERNMENT PLEADER for the Respondent(s) No.
2
Page 1 of 96
HC-NIC Page 1 of 96 Created On Fri Sep 23 02:29:46 IST 2016
C/SCA/14873/2016 CAV JUDGMENT
Special Civil Application No.14909 2016
MR SHALIN MEHTA, SENIOR COUNSEL WITH MR VIKAS V NAIR & MR
C J GOGDA, ADVOCATES for the Petitioner
MR KAMAL TRIVEDI, ADVOCATE GENERAL WITH MS SANGEETA
VISHEN, AGP for the Respondent(s) No. 1
MS ML SHAH, GOVERNMENT PLEADER for the Respondent(s) No.2
MR D.C.DAVE, SENIOR COUNSEL WITH MR JIGAR M PATEL,
ADVOCATE for the Respondent(s) No. 4 - 10
Special Civil Application No.14911 2016
MR SP MAJMUDAR, ADVOCATE for the Petitioner(s) Nos. 1 - 6
MR NISHIT P GANDHI, ADVOCATE for the Petitioner(s) Nos.
1-6.
MR KAMAL TRIVEDI, ADVOCATE GENERAL WITH MS SANGEETA
VISEN, AGP for the Respondent(s) No. 1
MS ML SHAH, GOVERNMENT PLEADER for the Respondent(s) No.2
MR D.C.DAVE, SENIOR COUNSEL WITH MR JIGAR M PATEL,
ADVOCATE for the Respondent(s) No. 4 - 10
MR ZUBIN F. BHARDA, ADVOCATE for Respondent(s) No.11
=========================================================
CORAM: HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 22/09/2016
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI) 1 In all these petitions, the facts and questions of law involved are similar and therefore, the same are being taken up for hearing and are being disposed of with the consent of the learned advocates appearing for the parties.
2 For deciding the present group of petitions, the facts of Special Civil Application No.14873 of 2016 are recorded in this judgment.
3 The brief factual matrix of the case is as Page 2 of 96 HC-NIC Page 2 of 96 Created On Fri Sep 23 02:29:46 IST 2016 C/SCA/14873/2016 CAV JUDGMENT under:
3.1 The petitioners are the students who have appeared and cleared Higher Secondary 12th Standard Examination in science stream and thereafter appeared for the entrance examination as mandated for their admissions to the course of MBBS in the academic year 2015-16. It is the case of the petitioners that they are having bright academic career. Petitioners are going to apply for MBBS course for the academic year 2016-17 on management quota seats available in all self-
financed institutions including seven colleges of Gujarat Medical Education and Research Society (GMERS) - respondent Nos. 4 to 10 herein in the format as prescribed by the State Government. It is the case of the petitioners that they being desirous of seeking admission in MBBS course on management quota, have appeared in National Eligibility-cum-Entrance Test (NEET for short) after preparation for a period of four months and able to secure good rank in the same. As per the petitioners, to secure admission in the management quota, NEET is the criteria.
3.2 The Indian Medical Council (Amendment) Ordinance, 2016 being Ordinance No.4 of 2016 has been promulgated on 24.05.2016 by which now it has been mandated that the admission to all the Page 3 of 96 HC-NIC Page 3 of 96 Created On Fri Sep 23 02:29:46 IST 2016 C/SCA/14873/2016 CAV JUDGMENT medical educational institutions at the undergraduate level shall be by way of NEET provided that in respect of State Government seats the same is deferred for the year 2016-17.
3.3. It is the case of the petitioners that they appeared in the HSC examination in March 2016. However, thereafter the Hon'ble Apex Court passed an order on 28.04.2016 in a Writ Petition (C) No.261 of 2016, directing conduct of NEET for admission in First Year MBBS Course for the academic year 2016-17. On 01.05.2016, NEET part I came to be conducted and many of the petitioners appeared therein. Immediately thereafter on 10.05.2016, 'Gujarat Common Entrance Test' (GUJCET) came to be conducted where all the petitioners appeared. However, on representation made by number of State Government and parents, the Central Government came out with promulgation of Ordinance No.4 of 2016 by inserting Section 10(D) in the Indian Medical Council Act, 1956.
3.4 As per the petitioners, pursuant to the prevailing admission criteria and regulation, the respondent authority issued the press release for admission to all the Government seats and information booklet for the same was published and distributed and thereby from 05.07.2016 the admission process of MBBS and BDS Courses Page 4 of 96 HC-NIC Page 4 of 96 Created On Fri Sep 23 02:29:46 IST 2016 C/SCA/14873/2016 CAV JUDGMENT commenced. In the information booklet, the number of seats available for the Government quota seats and management quota seats are clearly demarcated.
3.5 Education Minister in a press release dated 26.08.2016 specifically stated that admission in management quota seats shall be on the basis of NEET examination. However, petitioners and other similarly situated students were shocked and surprised when they came to know from the concerned website as well as newspapers that respondent Nos. 4 to 10 colleges have surrendered their 105 management quota seats in Government quota seats reducing the management seats from 220 to 115. It is alleged that action of respondent colleges and the State Government in surrendering the seats from management quota to Government quota is with a view to override the rights of the meritorious students who have performed well in the NEET examination. As per the contention of the petitioners, surrender of management seats to the Government and converting them in Government seats as per the provisions of Rule 3(3) of the Gujarat Professional Medical Educational Courses (Regulation of Admission in Undergraduate Courses) Rules, 2016 ('Rules of 2016' for short) is an exercise which frustrate the very provisions of the said Rules and the Page 5 of 96 HC-NIC Page 5 of 96 Created On Fri Sep 23 02:29:46 IST 2016 C/SCA/14873/2016 CAV JUDGMENT admission procedure discarding the merit-list to be prepared on the basis of NEET and is with a view to frustrate the provisions of Ordinance No.4 of 2016 which provides admission to all the management quota seats as per the result of NEET. Thus, exercise of such powers of conversion of management quota seats to Government seats out of the scope of NEET examination is ultra vires the provisions of Ordinance 4 of 2016.
3.6 Petitioners have therefore filed these petitions under Article 226 of the Constitution of India wherein they have prayed for the following relief/s:
"A. YOUR LORDSHIPS may be pleased to admit and allow the present petition.
B. YOUR LORDSHIPS may be pleased to issue a writ of mandamus and/or any other writ in the nature of mandamus or any other writ or directions declaring the provisions of Rule 3(3) of the Gujarat Professional Medical Educational Courses (Regulation of Admission and Fixation of Fees) Rules, 2016 is ultra-vires to the Constitution of India and the provision of Indian Medical Council Act, 1956 to the effect the same permits the governing of admission to such transformed seats from management quota to government quota without relying on the merit of NEET examination;
C. YOUR LORDSHIPS may be pleased to issue a writ of mandamus and/or any other writ in the nature of mandamus or any other wirt or directions declaring the Page 6 of 96 HC-NIC Page 6 of 96 Created On Fri Sep 23 02:29:46 IST 2016 C/SCA/14873/2016 CAV JUDGMENT transformation of such 105 management quota seats from the 7 colleges of GMERS to Government Quota seats as illegal, arbitrary and without authority of law.
AND/OR D. YOUR LORDSHIPS may be pleased to issue a writ of mandamus and/or any other writ in the nature of mandamus or any other writ or directions directing the respondent authorities to fill the 105 transformed seats from the management quota of GMERS Colleges to Government quota on the basis of merit list of NEET examination only;
E. Pending the admission and final hearing of the present petition, YOUR LORDSHIPS may be pleased to restrain the respondents from granting admission to the transformed 105 seats of management quota in GMERS Colleges to government quota on the basis of any other merit list except NEET results;
F. Ad-interim relief in terms of para-E may kindly be granted;
G. Any other and further relief in the interest of justice may kindly be granted."
4. Heard learned Senior Counsel Mr.S.N.Shelat with learned advocate Mr.Vikas Nair, learned Senior Counsel Mr.Shalin Mehta with learned advocate Mr.C.J.Gogda, learned advocate Mr.S.P.Majmudar with learned advocate Mr.Nishit P. Gandhi for the petitioners in respective petitions and learned Advocate General Mr.Kamal Page 7 of 96 HC-NIC Page 7 of 96 Created On Fri Sep 23 02:29:46 IST 2016 C/SCA/14873/2016 CAV JUDGMENT Trivedi for respondent No.1, learned Government Pleader Ms.Manisha Lavkumar for respondent No.2, learned Senior Counsel Mr.D.C.Dave for respondent Nos. 4 to 10, learned advocate Mr.A.J.Yagnik for respondent No.11 and learned advocate Mr.Zubin F. Bharda for Respondent No.11 in Special Civil Application No.14911 of 2016.
5. Learned Senior Counsel Mr.S.N.Shelat appearing for the petitioners referred to the relevant provisions of Rules of 2016, Ordinance No. 4 of 2016 and relevant provisions of Gujarat Professional Medical Educational Colleges or Institutions (Regulation of Admission and Fixation of Fees) Act of 2007 (hereinafter referred to as the Act of 2007 for the sake of brevity). It is submitted that as per Section 2(g) of the Act of 2007, 75% seats of the professional courses of the total approved seats in unaided colleges or institutions are considered to be 'government seats'. Whereas, as per Section 2(h) of the Act of 2007, 'management seats' means 25% seats of the professional courses of the total approved seats in unaided colleges or institutions including 15% Non- Resident Indian seats.
5.1. It is further contended that on 21.12.2010, a Notification was issued by the Central Government amending Regulations on Graduate Medical Page 8 of 96 HC-NIC Page 8 of 96 Created On Fri Sep 23 02:29:46 IST 2016 C/SCA/14873/2016 CAV JUDGMENT Education, 1997, which is called Regulations on Graduate Medical Education (Amendment), 2010, (Part II) (hereinafter referred to as Regulation of 2010), wherein regulation 6 provides for holding of single eligibility-cum-entrance examination viz. NEET for admission to MBBS course in each academic year.
5.2. It is submitted that the said notification came to be challenged before the Hon'ble Supreme Court and the Hon'ble Supreme Court invalidate the said Rule 6 in the case of Christian Medical College, Vellore & Ors. V. Union of India & Ors., reported in (2014) 2 SCC 305.
5.3. It is submitted that the aforesaid order came to be recalled by the Hon'ble Supreme Court on 11.04.2016 and thereafter the Hon'ble Supreme Court passed an order in a Writ Petition (C) No.261 of 2016 in the case of Sankalp Charitable Trust & Anr., v. Union of India & Ors. to the effect that NEET shall be held for admission in the courses of MBBS and BDS. The Notification dated 21.12.2010 is in operation in view of recalling of the earlier order passed by the Hon'ble Supreme Court in the case of Christian Medical College, Vellore (supra).
5.4. Learned Senior Counsel Mr.Shelat has Page 9 of 96 HC-NIC Page 9 of 96 Created On Fri Sep 23 02:29:46 IST 2016 C/SCA/14873/2016 CAV JUDGMENT thereafter referred to Rule 3(3) of the Rules of 2016, which provides as under:
"3. Seats available for Admission-
xxx xxx xxx xxx xxx xxx (3) Before commencement of admission process, if any unaided College or Institution requests to fill up the Management Seats by the Admission Committee, such Management Seats shall also be considered as available government seats for giving admissions."
5.5. It is contended that in view of the above provisions of the Act, Rules, Ordinance and the order of the Hon'ble Supreme Court, the implementation of provision of Rule 3(3) of Rules of 2016 is in contravention to the provisions of Ordinance No.4 of 2016 governing the admission procedure of management quota seats through NEET examination only. Hence the same should be declared ultra-vires in view of conflict with the central legislation.
5.6. At this stage, it is urged that provision of Rule 3(3) of Rules of 2016 provides for such transformation prior to the commencement of admission process. In the present case, the admission process has already commenced on 03.07.2016 and the information booklets are also Page 10 of 96 HC-NIC Page 10 of 96 Created On Fri Sep 23 02:29:46 IST 2016 C/SCA/14873/2016 CAV JUDGMENT published with respect to the same with the publication of the number of seats available in the government seats and the management seats and therefore, surrendering of management seats by respondent Nos. 4 to 10 on 01.09.2016 is after the commencement of the admission process and therefore the same is nothing but an overreaching the provisions of ordinance 4 of 2016 governing the admission in management quota seats through NEET examination.
5.7. Learned Senior Counsel would contend that the action of transformation of the seats from management seats to government seats is an exercise in futility to the extent it overreaches the powers of Central Government to govern the admission process for such seats after commencement of the admission process.
5.8. Learned Senior Counsel would further submit that the action of respondent authorities is in violation of well settled principle that the rules of the game cannot be changed once the game has commenced. In the present case the notice for admission and counseling with the information booklet was well published on 05.07.2016 and the mock rounds for the same are already over with the prescribed number of seats and therefore, now such transformation of removal of seats from the Page 11 of 96 HC-NIC Page 11 of 96 Created On Fri Sep 23 02:29:46 IST 2016 C/SCA/14873/2016 CAV JUDGMENT management quota to the government quota itself is bad in law and also against the statutory rules governing the admission procedure.
5.9. Learned counsel Mr. Shelat urged that the decision of the respondents to convert 105 management quota seats for enabling only those who have passed GUJCET examination after the admission process for medical education for government seats commence, is arbitrary and in breach of Article 14 of the Constitution of India. The change in the admission criteria on 31.08.2016 is the post-haste decision. The respondent Government had on 26.08.2016 reiterated that admission shall be on the basis of NEET examination for management quota and therefore the decision to convert seats under Rule 3(3) of Rules of 2016 for grant of admission by the Admission Committee is in breach of ordinance 4 of 2016 and it is nothing but a colourable exercise of powers because the object is to grant admission to the students on the basis of GUJCET.
5.10.Lastly, learned counsel contended that the admission to the management quota is governed by the merit-list prepared on the basis of NEET examination, whereas the admission to the government seats is to be governed by the GUJCET Page 12 of 96 HC-NIC Page 12 of 96 Created On Fri Sep 23 02:29:46 IST 2016 C/SCA/14873/2016 CAV JUDGMENT examination and therefore surrender of management quota seats by the respondent Nos. 4 to 10 affects the legitimate rights and expectation of the petitioners who are expecting the admission in the management quota on the basis of their NEET result. Therefore, such demarcation or surrender of seats at such belated stage is arbitrary and in gross abuse of powers and therefore, this Court may grant the reliefs prayed for in this petition.
5.11.In support of his contention, learned Senior Counsel Mr.Shelat has placed reliance upon the following decisions:
(i) Hemani Malhotra v. High Court of Delhi [AIR 2008 SC 2103]
(ii)T. Nadu Computer SC B.Ed. G.T.Welf. Society v. Higher Sec. Scl. Computer Tech. Assn. & Ors., [2009 (3) GLH 42]
(iii) P. Mahendran and Ors., v State of Karnataka & Ors, [AIR 1990 SC 405]
(iv)Food Corporation of India v. M/s. Kamdhenu Cattle Feed Industries [AIR 1993 SC 1601]
(v) Union of India & Anr. v. International Trading Co. & Anr. [AIR 2003 SC 3983]
(vi)Dr. S.P.Kapoor v. State of H.P. & Ors. [AIR 1981 SC 2181] Page 13 of 96 HC-NIC Page 13 of 96 Created On Fri Sep 23 02:29:46 IST 2016 C/SCA/14873/2016 CAV JUDGMENT
6. Learned Senior Counsel Mr.Shalin Mehta appearing for some of the petitioners has supported the contentions raised by learned Senior Counsel Mr.Shelat. However, in addition to the same, he has submitted that rule 3(3) of Rules of 2016 is against the orders dated 28.04.2016 and 09.05.2016 passed by the Hon'ble Supreme Court in Writ Petition (C) No.261 of 2016 and Writ Petition (C) No. 293 of 2016. The order dated 09.05.2016 passed by the Hon'ble Supreme Court specifically provides that "only NEET would enable students to get admission to MBBS or BDS studies". Thus, the impugned rule allows bypassing of NEET examination for all management seats for all academic years by an easy method of surrendering of seats before the commencement of the admission process which is not permissible in view of the aforesaid orders passed by the Hon'ble Supreme Court.
6.1. At this stage, learned counsel Mr.Mehta contended that the orders passed by the Hon'ble Supreme Court are the law declared by the Hon'ble Supreme Court under Article 141 of the Constitution of India. Thus, the directions issued by the Hon'ble Supreme Court by way of the aforesaid two orders are required to be complied with by all. As per his submission, Article 144 requires all authorities civil and judicial to Page 14 of 96 HC-NIC Page 14 of 96 Created On Fri Sep 23 02:29:46 IST 2016 C/SCA/14873/2016 CAV JUDGMENT act in aid of the Supreme Court. The only way to override these directions is to remove their basis thereof by passing a validating Act. In the present case, no such validating Act has been passed till date.
6.2. Learned Senior Counsel Mr.Mehta thereafter would submit that Section 10D inserted by Act 39 of 2016 is the only permissible escape route for students seeking exemption from NEET for academic year 2016-17 in MBBS courses in respect of government seats. It is clarified by learned counsel that the validity of the amendment is challenged by filing another petition before the Hon'ble Supreme Court which is still pending.
6.3. Learned counsel Mr.Mehta thereafter urged that the impugned Rule 3(3) of Rules of 2016 is in conflict with Medical Council of India Notification dated 21.12.2010. If the state rule is in conflict with the central legislation, the same is required to be struck down. In the present case, the Medical Council of India Notification provides for NEET examination for admission to the courses of MBBS, whereas the impugned rule provides for GUJCET and therefore both cannot stand together.
6.4. Learned counsel Mr.Mehta thereafter contended Page 15 of 96 HC-NIC Page 15 of 96 Created On Fri Sep 23 02:29:46 IST 2016 C/SCA/14873/2016 CAV JUDGMENT that impugned rule is ultra-vires Sections 2(g), 2(h) and 20 of the Act of 2007. Learned counsel referred the aforesaid provisions contained in the Act of 2007 and submitted that statutory scheme maintains a clear distinction between government seats and management seats. There is no provision in the Act of 2007 which permits surrender or conversion of seats from management seats to government seats, whereas impugned rule permits conversion of management seats into government seats and therefore the same cannot be said to carrying out the purposes of the Act of 2007. Hence, impugned rule be declared ultra vires.
6.5. Learned counsel Mr.Mehta would submit that the impugned rule is also vague and there are no guidelines under the Rules of 2016 or the Act of 2007 to check the exercise of powers under the impugned rule. There are clear division between government seats and management seats. In spite of that the impugned rule allows fudging to the management for any reason. Thus, the power under the impugned rule is open to abuse as there is no check at all on the management for surrendering the management seats.
6.6. Learned Senior Counsel in the alternative submitted that even if impugned rule is valid, Page 16 of 96 HC-NIC Page 16 of 96 Created On Fri Sep 23 02:29:46 IST 2016 C/SCA/14873/2016 CAV JUDGMENT harmonious construction of all rules requires the respondent State Government to retain NEET for these converted or surrendered seats. Under the Act of 2007 and the Rules of 2016 there is a prescribed minimum for government seats as well as management seats. Learned counsel referred Rules 3, 4, 10 and 11 of the Rules of 2016 and submitted that harmonious reading of the aforesaid rules can be achieved by holding that even after surrender of management seats to government seats, the seats already surrendered shall not lose their character as such and the prescribed minimum applicable to the management seats would continue to apply for the admission process. It is thus, contended that what is surrendered by the respondent Nos. 4 to 10 is the power to fill up their quota without changing their character and therefore even after surrender of 105 management seats by respondent Nos. 4 to 10, the same be considered as management seats only.
6.7. Learned Senior Counsel Mr.Mehta thereafter urged that the action of respondent Nos. 4 to 10 of surrendering management quota seats at the last moment and that too after the commencement of the admission process is violative of the Rules of 2016 itself. Such seats can be surrendered before the commencement of the Page 17 of 96 HC-NIC Page 17 of 96 Created On Fri Sep 23 02:29:46 IST 2016 C/SCA/14873/2016 CAV JUDGMENT admission process even as per the Rules. In the present case, the admission process commenced on 03.07.2016, whereas the respondent Nos. 4 to 10 surrendered their seats only on 01.09.2016 which is not permissible in the eye of law.
6.8. Learned Senior Counsel alleged malafide on the part of respondent Nos. 4 to 10 as they have surrendered their management quota seats at the last minute. It is alleged that there is no reasoned decision taken on the file before surrendering the seats by the respondent Nos. 4 to 10 and such surrender is prompted by extraneous consideration. The idea behind last minute surrender is to circumvent the orders passed by the Hon'ble Supreme Court and such decision is taken to give the benefit to the local students of Gujarat. It is submitted that whole idea behind NEET examination was to ensure one uniform standard, whereas now Gujarat has closed the doors for better doctors from other states. It is therefore, urged that the relief/s prayed for in these petitions be granted and the petitions be allowed.
6.9. Learned counsel Mr.Mehta has placed reliance on the following decisions:
(i) Bihar State Govt. Sec. Scl. Teachers Assn. v.Page 18 of 96
HC-NIC Page 18 of 96 Created On Fri Sep 23 02:29:46 IST 2016 C/SCA/14873/2016 CAV JUDGMENT Ashok Kumar Sinha [(2014) 7 SCC 416]
(ii)State of Tamil Nadu v. State of Kerala [(2014) 12 SCC 696]
(iii)Bakhtawar Trust v. M.D.Narayan [(2003) 5 SCC 298]
(iv)Indian Aluminium Company Ltd. v. State of Kerala [(1996) 7 SCC 637]
(v) Kalyani Mathivanan v. K.V.Jeyaraj & Ors.
[(2015) 6 SCC 363]
7. Learned advocate Mr.Sharvil Majmudar appearing for the petitioners of Special Civil Application No.14911 of 2016 adopted the submissions canvassed on behalf of learned Senior Counsel Mr.Shelat as well as learned Senior Counsel Mr.Shalin Mehta. However, in addition to the same he submitted that the petitioners appeared in GUJCET in view of Rule 4(4) of Rules of 2016. Learned advocate referred to the said rule and submitted that NEET examination is required for MBBS and BDS courses, whereas the admission can be granted in other para-medical courses on the basis of GUJCET. Petitioners are also interested to take admission in para-medical courses if they will not get admission in MBBS or BDS courses. In support of his submissions, learned advocate Mr.Majmudar has placed reliance upon the following decisions:
Page 19 of 96HC-NIC Page 19 of 96 Created On Fri Sep 23 02:29:46 IST 2016 C/SCA/14873/2016 CAV JUDGMENT
(i) Mannalal Khetan & Ors. v. Kedar Nath Khetan & Ors. [(1977) 2 SCC 424]
(ii)Jaipur Development Authority & Ors. v. Vijay Kumar Data & Anr. [(2011) 12 SCC 94]
(iii)Union of India & Ors. v. S. Srinivasan [(2012) 7 SCC 683]
8. On the other hand, learned Advocate General Mr.Kamal Trivedi appearing for the respondent State would submit that Rule 3 of the Rules of 2016 is in the recognition of the fundamental right of the management to establish and administer an educational institution as per the pronouncement of judgments rendered by the Hon'ble Supreme Court in the case of T.M.A.Pai Foundation & Ors. V. State of Karnataka, reported in (2002) 8 SCC 481, Islamic Academy of Eduction & Anr. v. State of Karnataka & Ors., reported in (2003) 6 SCC 697 and P.A.Inamdar v. State of Maharashtra, reported in (2005) 6 SCC 537. Learned Advocate General referred to relevant observations made by the Hon'ble Supreme Court in the aforesaid cases and submitted that management is having fundamental right to establish and administer an educational institution which includes right to surrender its seats.
8.1. At this stage, it is submitted that the aforesaid rule has been incorporated in the Page 20 of 96 HC-NIC Page 20 of 96 Created On Fri Sep 23 02:29:46 IST 2016 C/SCA/14873/2016 CAV JUDGMENT concerned rules in the same language since 2008 i.e. from the date when Act of 2007 came to be enacted by the state legislature which is in fact in conformity with the law as declared by the Hon'ble Supreme Court in the aforesaid judgments.
8.2. It is further submitted that Rule 3(3)of Rules of 2016 is also in consonance with the objective of the Act of 2007. It is contended that as per Section 20 of the Act of 2007, the State Government is empowered to make the rules for carrying out the purposes of the Act. Hence, when Rule 3(3) of Rules of 2016 is for carrying out the purposes of the Act of 2007, it cannot be said that impugned rule is ultra-vires.
8.3. Learned Advocate General thereafter submitted that the Hon'ble Supreme Court in the order dated 28.04.2016 passed in Writ Petition (C) No. 261 of 2016 in the case of Sankalp Charitable Trust & Anr. (supra) declared to the effect that the concerned authorities would conduct NEET for admission to MBBS course throughout the country w.e.f. academic year 2016-17, notwithstanding any order passed by any Court earlier with regard to not holding NEET. It is submitted that the aforesaid order came to be passed more particularly in view of the fact that in majority of the States all over the country, there was Page 21 of 96 HC-NIC Page 21 of 96 Created On Fri Sep 23 02:29:46 IST 2016 C/SCA/14873/2016 CAV JUDGMENT more than one entrance examination being conducted for admission to first year MBBS course, which was burdensome for the student community. For the students aspiring admission to the first year MBBS course and other professional courses, the State Government in Gujarat keeping the students' interest in mind, was conducting one entrance examination viz. GUJCET. It is further submitted that the Hon'ble Supreme Court once again passed an order on 09.05.2016 by which it was clarified that only NEET would enable the students to get admission to MBBS or BDS studies. However, looking to the hardship, certain relaxations were given and students who could not appear in NEET 1 and those who had appeared but have apprehension that they had not prepared well, were permitted to appear in NEET-II on certain conditions. At this stage, it is urged that various representations were received by the Central Government and more particularly in the State of Gujarat one uniform entrance examination was being conducted since practically all self- financed institutions have chosen GUJCET as the entrance examination rather than devising their own independent entrance examination. Looking to the peculiar situation the ordinance No.4 of 2016 came to be promulgated on 24.05.2016. Subsequently, Section 10D has been incorporated in the Indian Medical Council Act by way of Act Page 22 of 96 HC-NIC Page 22 of 96 Created On Fri Sep 23 02:29:46 IST 2016 C/SCA/14873/2016 CAV JUDGMENT No.39 of 2016 on 04.08.2016. Learned Advocate General referred to the said Section and submitted that proviso to the said section specifically provides that provisions of the said Section shall not apply in respect of uniform entrance examination at the undergraduate level for the academic year 2016-17 conducted in accordance with any regulations made under the said Act in respect of the State Government seats.
8.4. Learned Advocate General therefore would contend that because of the promulgation of the ordinance and consequent insertion of Section 10D, it has been made possible and permissible to the State of Gujarat to continue with its uniform entrance examination i.e. GUJCET for the academic year 2016-17 with respect to government seats. Thus, it is contended that impugned rule 3(3) of Rules of 2016 is not violative of central legislation or the Act of 2007, as alleged by the petitioners and therefore, the petitioners are not entitled to get the relief of declaring Rule 3(3) of Rules of 2016 as ultra-vires.
8.5. Learned Advocate General submitted that when the self-financed institution has fundamental right to establish and administer the educational institution in its own manner, which also Page 23 of 96 HC-NIC Page 23 of 96 Created On Fri Sep 23 02:29:46 IST 2016 C/SCA/14873/2016 CAV JUDGMENT includes right to admit the students, the same has been recognized by the aforesaid decisions rendered by the Hon'ble Supreme Court and therefore there is no justification for imposing seat sharing quota by the State on any unaided private professional educational institution and therefore if any seat is to be surrendered by the management, the same has to be done on the basis of consensual arrangement which can be reached between such self-financed colleges and the State. It is submitted that the logic behind fixation of 75% seats in self-financed institutions as government seats under the Rules in the State, lay in a consensus having been arrived at between the State Government and the self-financed institutions, since they wanted to avoid hassle of devising their own common entrance test. Therefore, one cannot take an exception to such a consensual arrangement, which includes the right of the self-financed institutions to retain all the seats for the purpose of admission with the management.
8.6. At this stage, learned Advocate General further contended that ordinance inserting Section 10D under the Indian Medical Council Act of 1956 has been challenged before the Hon'ble Supreme Court. However, the Hon'ble Supreme Court has not stayed the said ordinance and therefore Page 24 of 96 HC-NIC Page 24 of 96 Created On Fri Sep 23 02:29:46 IST 2016 C/SCA/14873/2016 CAV JUDGMENT as on date the proviso to Section 10D is in force and therefore it cannot be said that Rule 3(3) is in conflict with the decision rendered by the Hon'ble Supreme Court.
8.7. It is further submitted that Rule 3(3) of the Rules of 2016 does not speak to apply GUJCET to the management seats but it speaks about eventuality relating to conversion of management seats into government seats. Application of GUJCET with reference to government seats is even otherwise contemplated by virtue of Section 10D of Medical Council Act, 1956. Thus, it is urged that by no stretch of imagination can it be said that the basis of the orders of the Hon'ble Supreme Court has been removed by Rule 3(3) of the Rules of 2016, inasmuch as the provisions of the said rule holding the field since 2008 are in furtherance of the fundamental right of the management to fill up the seats by adopting its own procedure or to surrender the same so as to make the same available as government seats to be filled in by the Admission Committee.
8.8. Learned Advocate General thereafter submitted that the petitioners having already decided to opt for medical education, started preparing for standard 11th and 12th examination as well as GUJCET examination right from June 2014. GUJCET Page 25 of 96 HC-NIC Page 25 of 96 Created On Fri Sep 23 02:29:46 IST 2016 C/SCA/14873/2016 CAV JUDGMENT was the only entrance examination in place at the relevant point of time when the judgment dated 18.07.2013 rendered by the Hon'ble Supreme Court in the case of Christian Medical College, Vellore (supra), was holding the field. Thus, right from the commencement of the academic year 2014-15 till 11.04.2016 when the aforesaid judgment was recalled by the Hon'ble Supreme Court, the petitioners were prepared themselves for GUJCET only. Even after recalling of the earlier judgment on 11.04.2016, the ordinance dated 24.05.2016 while incorporating Section 10D in the Indian Medical Council Act, recognized the conduct of GUJCET for the academic year 2016-17 as valid in respect of government seats. It is therefore submitted that there is no question of invocation of any doctrine of promissory estoppel or doctrine of legitimate expectation. The petitioners being the students aspiring to take admission in medical courses, are expected to do their best throughout their scholastic career, since highly meritorious students are being considered for admission to medical education, which ultimately deals with human lives.
8.9. Learned Advocate General further contended that the admission process can be said to have been started from the date of commencement of the counseling programme and not from the date of Page 26 of 96 HC-NIC Page 26 of 96 Created On Fri Sep 23 02:29:46 IST 2016 C/SCA/14873/2016 CAV JUDGMENT issuance of the advertisement in the newspapers. It is submitted that only on the commencement of the counseling programme by the Admission Committee, the available seats would be known to the students.
8.10.In the present case, the counseling programme was commenced only on 07.09.2016 and therefore before the commencement of the counseling programme as per Rule 3(3) of the Rules of 2016, management seats can be surrendered to the Admission Committee. Thus, in the present case, when the respondent Nos. 4 to 10 have surrendered their management seats to the Admission Committee on 01.09.2016, the same was before the commencement of the counseling programme.
8.11.At this stage, learned Advocate General would urge that when the management of respondent Nos. 4 to 10 surrendered their 105 management seats, they automatically become the available government seats. The respondent Nos. 4 to 10 are surrendering their management quota seats since 2011 and therefore it cannot be said that for the first time, with a view to bypass the orders passed by the Hon'ble Supreme Court, such management seats are surrendered. The petitioners are also not right in submitting that the said Page 27 of 96 HC-NIC Page 27 of 96 Created On Fri Sep 23 02:29:46 IST 2016 C/SCA/14873/2016 CAV JUDGMENT exercise was carried out with a view to override the rights of the petitioners who consider themselves as meritorious in view of their performance in NEET. Thus, when the management seats surrendered by the respondent Nos. 4 to 10 are considered to be government seats, while giving admission to the students on such government seats, result of the GUJCET is required to be considered.
8.12.At this stage, it is pointed out by learned Advocate General that the fees for management quota seat in respondent Nos. 4 to 10 institutions is Rs.7.86 lac per year, whereas fees for government seat is Rs.3 lac per year.
8.13.In view of the above, learned Advocate General submitted that there is no colourable exercise of powers by the State Government or by the respondent Nos. 4 to 10, as alleged by the petitioners and surrender of the seats by the respondent Nos. 4 to 10 was as per their past practice since more than 4 years and there is no post-haste, as alleged by the petitioners.
8.14.In support of his submissions, learned Advocate General has placed reliance upon the following decisions:
Page 28 of 96HC-NIC Page 28 of 96 Created On Fri Sep 23 02:29:46 IST 2016 C/SCA/14873/2016 CAV JUDGMENT
(i) T.M.A.Pai Foundation & Ors. V. State of Karnataka [(2002) 8 SCC 481]
(ii)Islamic Academy of Eduction & Anr. v. State of Karnataka & Ors.[(2003) 6 SCC 697]
(iii)P.A.Inamdar v. State of Maharashtra [(2005) 6 SCC 537]
(iv)Khusboo Naginbhai Patel & Anr. v. State of Gujarat & Ors. [2008 (3) GLH 409]
(v) St. Johns Teachers Training Institute v.
Regional Director, National Council For Teacher Education & Anr. [(2003) 3 SCC 321]
(vi)Dr. M.C.Gupta & Anr. v. Principal, G.S.V.M. Medical College, Kanpur & Ors, [AIR 1987 SC 400]
(vii)Thakkar Dharatiben Haribhai v. State of Gujarat [2000(0)GLHEL-HC-212998]
9. Learned Senior Counsel Mr. D.C.Dave appearing for the respondent Nos.4 to 10 submitted that Gujarat Medical Education and Research Society (GMERS) runs the medical colleges at various places and therefore the said medical colleges have been impleaded as respondent Nos. 4 to 10 in the present proceedings. At the outset, learned Senior Counsel submitted that for the purpose of regulating admission in the professional medical educational colleges in the State of Gujarat and for the purpose of fixation of fees in such colleges, the respondent State enacted the Act of Page 29 of 96 HC-NIC Page 29 of 96 Created On Fri Sep 23 02:29:46 IST 2016 C/SCA/14873/2016 CAV JUDGMENT 2007. Section 20 of the said Act empowers the respondent State to frame rules for carrying out the purposes of the Act. Accordingly, for the academic year 2016-17, rules of 2016 came to be framed by the respondent State for the purpose of regulating admissions in various professional medical educational courses. Learned Senior Counsel referred to Sections 2(g) and 2(h) of the Act of 2007 which provide for definition of 'government seats' and 'management seats' respectively. It is contended that the provision for management seats under the Act of 2007 is by way of recognition of the right of the management of the unaided professional colleges. Hence, if the management of the concerned unaided college desirous to exercise its right of admitting students, it can do so by confining itself to the 25% of total available seats in its set up. At this stage, learned Senior Counsel referred the decision rendered by the Hon'ble Supreme Court in the case of P.A.Inamdar (supra) wherein it has been provided that bifurcation of seats between the Government and the management in respect of an unaided professional college is the subject falling within the exclusive domain of the Government and the management of an unaided professional medical college. Therefore, the students aspiring for admission to an unaided professional college cannot intervene in the said Page 30 of 96 HC-NIC Page 30 of 96 Created On Fri Sep 23 02:29:46 IST 2016 C/SCA/14873/2016 CAV JUDGMENT process. It is therefore submitted that Rule 3(3) of Rules of 2016 providing for discretion to the unaided professional colleges to opt for surrender of its management seats is in furtherance of the object of the Act of 2007. Similar rule was in existence in past academic year also.
9.1. Learned Senior Counsel Mr. Dave would contend that at no point of time in the past the respondent Nos. 4 to 10 opted for filling up the seats qualifying as management seats under the Act in view of the similar provision contained in the earlier rules. Learned counsel referred to the relevant documents annexed with the reply affidavit in support of the aforesaid contention.
9.2. It is therefore contended that when the respondent nos.4 to 10 were consistently following the practice of surrendering the management seats to the Admission Committee since 2011, it cannot be said that for the current academic year such seats are surrendered to deviate the mandate of Section 10D of Indian Medical Council Act.
9.3. Learned Senior Counsel Mr. Dave thereafter referred to the notification dated 21.12.2010 issued by the Medical Council of India by which Page 31 of 96 HC-NIC Page 31 of 96 Created On Fri Sep 23 02:29:46 IST 2016 C/SCA/14873/2016 CAV JUDGMENT NEET examination came to be made compulsory for admission to MBBS and BDS courses across the nation. However, it is submitted that the said notification came to be struck down by the Hon'ble Supreme Court in the case of Christian Medical College, Vellore (supra). Thereafter, the said order was recalled by the Hon'ble Supreme Court on 11.04.2016. Learned counsel thereafter referred to the order dated 28.04.2016 passed by the Hon'ble Supreme Court in Writ Petition (C) No. 261 of 2016 and the order dated 09.05.2016 passed by the Hon'ble Supreme Court whereby it was observed that for taking admission in the medical as well as dental colleges, NEET is compulsory. However, it is submitted that various representations were made to the Central Government by various states and the students inter alia maintaining that though NEET is desirable it should be made applicable from the next academic year 2017-18 so that the students would have sufficient time to prepare for the same. With a view to mitigating the hardship caused to the students on account of sudden introduction of NEET, the Central Government came out with an ordinance No.4 of 2016 on 24.05.2016 by which Section 10D was inserted to the Indian Medical Council Act. Learned counsel referred to proviso to the said Section and submitted that for the current academic year State is permitted Page 32 of 96 HC-NIC Page 32 of 96 Created On Fri Sep 23 02:29:46 IST 2016 C/SCA/14873/2016 CAV JUDGMENT to take its own examination for the Government seats.
9.4. In view of the aforesaid contentions, learned counsel submitted that if Rule 3(3) of the Rules of 2016 is not permitted to hold the field, it would lead to a situation where the management of an unaided professional college shall have to compulsorily opt for management seats. It is submitted that management seats is part and parcel of the fundamental right exclusively available to the management of an unaided professional college under Article 19 (1)(g) of the Constitution of India. Thus, by opting for surrender of management seats which is nothing but surrender of the right of respondent Nos. 4 to 10 colleges for which the respondent Nos. 4 to 10 have not to gain anything unduly out of the same to their advantage so as to doubt their bonafide. Thus, the petitioners students aspiring for admission to such colleges have no right, much less a fundamental right to insist that the management shall opt for management seats. Hence, if the contention of the petitioners is accepted, it would virtually amount to forcing the management of an unaided professional college to opt for management seats as if it is the fundamental right of the students aspiring for admission.
Page 33 of 96HC-NIC Page 33 of 96 Created On Fri Sep 23 02:29:46 IST 2016 C/SCA/14873/2016 CAV JUDGMENT 9.5. Learned counsel Mr. Dave would further contend that at no point of time in past any assurance or promise was given to the students at large by any of Respondent Nos. 4 to 10 medical colleges that they would not be surrendering their management seats for the academic year 2016-17. As such, if at all any inference was possible based upon the past practice, it was leaning towards surrender of management seats by respondent Nos. 4 to 10. It is submitted that there could not be any estoppel against law and rule making authority as at no point of time it gave any assurance that there would not be a rule like Rule 3(3) of the Rule of 2016. Hence, there is no scope of either promissory estoppel or legitimate expectation to the facts of the present case.
9.6. It is further submitted that the admission process can be said to have started only when the counseling programme is commenced. In the present case, the counseling programme is commenced from 07.09.2016 before which on 01.09.2016 the respondent Nos. 4 to 10 have surrendered their seats to the Admission Committee. Learned counsel submitted that the decision was in fact taken on file on 23.08.2016 to surrender the management seats of respondent Nos. 4 to 10 to the Admission Committee as per past practice and the file was Page 34 of 96 HC-NIC Page 34 of 96 Created On Fri Sep 23 02:29:46 IST 2016 C/SCA/14873/2016 CAV JUDGMENT moved from one officer to other and ultimately decision was communicated on 01.09.2016 i.e. before the commencement of the counseling programme.
9.7. Learned Senior Counsel Mr. Dave has placed reliance upon the following decisions in support of his submissions:
(i) Prashant Pravinbhai Kanabar v. Gujarat University [1990 (2) GLR 1066]
(ii) Kumar Jayshree Chandrachud Dixit v. State of Gujarat [1979(1) GLR 614]
(iii)Aman Piyush Khanna, thro Father & Guardian Piyush Krishna & Ors. [2009(3)GLH 401]
(iv) State of Tamil Nadu & Ors. v. K. Shyam Sunder & Ors. [(2011) 8 SCC 737]
(v) Ramarao & Ors v. All India Backward Class Bank Employees Welfare Association & Ors.
[(2004) 2 SCC 76] 9.8. In view of the aforesaid submissions, learned counsel Mr. Dave requested that petitioners are not having any case and therefore all the petitions be dismissed.
10. Learned Government Pleader Ms.Manisha Lavkumar appearing for respondent No.2 - Admission Committee supported the arguments canvassed on behalf of learned Advocate General Page 35 of 96 HC-NIC Page 35 of 96 Created On Fri Sep 23 02:29:46 IST 2016 C/SCA/14873/2016 CAV JUDGMENT and learned Senior Counsel Mr.D.C.Dave appearing for respondent Nos. 4 to 10. However, additionally, learned Government Pleader submitted that similar provision to that of Rule 3(3) of Rules of 2016 has been incorporated in Gujarat Professional Technical Educational Colleges or Institutions (Regulation of Admission and Fixation of Fees) Act, 2007. Thus, from the very inception both the Act, 2007 as well as Gujarat Professional Technical Educational Colleges or Institutions (Regulation of Admission and Fixation of Fees) Act, 2007, have envisaged for surrender of management seats to be filled in by the respective Admission Committees as State quota seats. Learned Government Pleader has pointed out that for the current academic year several para-medical and nursing colleges have surrendered their management seats to be filled in by the Admission Committee, the details of which is given in the affidavit filed by the respondent No.2. Learned Government Pleader thereafter pointed out the standard procedure which is to be followed by the Admission Committee every year and so far as the current academic year is concerned, the details given in the affidavit in reply has been pointed out. Thereafter, learned Government Pleader submitted that since the students in the State of Gujarat had never in past 8 years ever filed any forms Page 36 of 96 HC-NIC Page 36 of 96 Created On Fri Sep 23 02:29:46 IST 2016 C/SCA/14873/2016 CAV JUDGMENT online nor had they appeared at an online counseling programme, conducting of mock rounds to appraise the students of the system was imperative. Therefore, the first mock round was conducted between 23.08.2016 to 27.08.2016 at which point of time 105 seats of GEMERS had already been included. On 02.09.2016, the self- finance colleges had published an advertisement in the daily newspaper publishing the details to be filled in by self-finance colleges in the management and NRI quota. Second mock round was conducted on 02.09.2016. Thereafter on 07.09.2016, first counseling and the admission process commenced.
11. Learned Government Pleader thereafter submitted that there was a mistake in what was displayed by way of notice on the website of the Admission Committee to the effect that "....choice filled in mock round 2 will be considered final." It is submitted that 'mock round' and 'finality of choice filled therein', cannot go together, because the mock round is not a final round. Having realized the said mistake, on 31.08.2016, the aforesaid notice was immediately removed from website and it was categorically notified that all the candidates must have to do new choice filling in first final round. Choices filled in mock round 1 and mock round 2 will not be considered. It is, therefore, Page 37 of 96 HC-NIC Page 37 of 96 Created On Fri Sep 23 02:29:46 IST 2016 C/SCA/14873/2016 CAV JUDGMENT submitted that no mala fides can be attributed to the Admission Committee by alleging that the Admission Committee is attempting by changing the display on website. It is, therefore, submitted that the petitions are devoid of any merits and therefore the same be dismissed.
12. Learned advocate Mr.A.J.Yagnik appearing for respondent No.11 also adopted the submissions canvassed on behalf of learned Advocate General as well as learned Senior Counsel Mr.D.C.Dave. However, he further submitted that after the Act of 2007 has been enacted, the management of self- finance colleges/institutions in the State of Gujarat are not conducting their own examination and they have adopted GUJCET. It is submitted that the management of self-finance colleges is having right to give admission as per the law laid down by the Hon'ble Supreme Court in various decisions which includes the right to surrender the management seats. At the same time, the management is not compromising with the merits. It is submitted that the Hon'ble Supreme Court has nowhere stated that the management cannot surrender its quota to the Government. In fact Section 20 of the Act of 2007 provides that the State Government may make rules for carrying out the purposes of the Act. Accordingly, the State Government has framed the Rules of 2016. It is submitted that the decisions relied upon by the Page 38 of 96 HC-NIC Page 38 of 96 Created On Fri Sep 23 02:29:46 IST 2016 C/SCA/14873/2016 CAV JUDGMENT learned advocates appearing for the petitioners cannot be applied in the facts and circumstances of the present case and it is submitted that surrender of seats by respondent Nos. 4 to 10 is in consonance with the fundamental right given to the management of self-finance medical colleges as stated by the Hon'ble Supreme Court in the case of T.M.A.Pai Foundation (supra) as well as Act of 2007. There is no colourable exercise of powers by the respondent Nos. 4 to 10 or the State Government, as alleged by the petitioners. Learned Advocate Mr.Yagnik has referred the decisions relied upon by the learned Senior Counsel appearing for the petitioners and distinguished the facts and thereafter submitted that the said decisions would not be applicable here. It is further contended that in the present academic year because of the peculiar situation which has arisen, the admission process has been delayed. In fact the Hon'ble Supreme Court passed an order on 28.04.2016 by which NEET was made compulsory for admission to the medical courses. However, thereafter on 24.05.2016, ordinance was promulgated by the Central Government. In the meantime, the ordinance promulgated by the State Government providing 10% reservation to economically weaker sections was challenged before this Court and matter went up to the Hon'ble Supreme Court after this Court pronounced Page 39 of 96 HC-NIC Page 39 of 96 Created On Fri Sep 23 02:29:46 IST 2016 C/SCA/14873/2016 CAV JUDGMENT the judgment. Similarly, the ordinance promulgated by the State Government abolishing the NRI quota was also challenged before this Court. In view of the above, now when the admission process has commenced on 7.9.2016, the same may be permitted to be completed as expeditiously as possible and in any case before 30.09.2016. He, therefore, requested that petitions be dismissed.
13. Learned Senior Counsel Mr.S.N.Shelat appearing for the petitioners in rejoinder mainly submitted that the respondents have wrongly placed reliance upon the decisions rendered by the Hon'ble Supreme Court in the case of T.M.A.Pai Foundation (supra), Islamic Academy of Eduction (supra) & P.A.Inamdar (supra). It is contended that the respondents have overlooked that the Act of 2007 is enacted by the State Government and therefore it is immaterial for the students to know that the seat sharing is by consensus or not. As per the Act of 2007, 25% seats of professional courses in unaided institutions are considered to be management seats. Even private medical colleges have no absolute right to make admission as per the law laid down by the Hon'ble Supreme Court in the case of Modern Dental College and Research Center and Ors. v. State of Madhya Pradesh, reported in AIR 2016 SC 2601.
Page 40 of 96HC-NIC Page 40 of 96 Created On Fri Sep 23 02:29:46 IST 2016 C/SCA/14873/2016 CAV JUDGMENT 13.1.It is thereafter contended that it is settled legal position that a statute can become, in the course of time, unreasonable or has to be read down in view of the subsequent parliamentary legislation and declaration of law by the Hon'ble Supreme Court. In the present case, in view of the orders passed by the Hon'ble Supreme Court on 28.04.2016 and 09.05.2016 and thereafter by introduction of Section 10D in Indian Medical Council Act, the legal position has changed and therefore it is immaterial that since last 8 years, legality of the impugned rule has not been challenged.
13.2.It is submitted that Rule 3(3) of the Rules of 2016 enables the institutions to fill up the management seats as government seats by the Admission Committee. If such management seats were to be filled in by the Admission Committee, the eligibility for the management seats as prescribed by the rules and the provisions of Indian Medical Council Act cannot be altered by the Admission Committee and the Admission Committee cannot grant admission on the basis of the state examination.
13.3.Learned Senior Counsel Mr. Shelat thereafter would submit that Rule 3(2) of the Rules of 2016 cannot be helpful to the respondents for determining the admission process. The said rule Page 41 of 96 HC-NIC Page 41 of 96 Created On Fri Sep 23 02:29:46 IST 2016 C/SCA/14873/2016 CAV JUDGMENT is with regard to the intimation received regarding newly sanctioned or reduction of seats because of de-recognition and therefore the said Rule cannot determine admission process as provided under Rule 3(3).
13.4.Learned Senior Counsel Mr. Shelat would thereafter contend that as per the notification dated 05.08.2016 issued by Medical Council of India amending the Regulation of Graduate Medical Education , 1997 wherein the time schedule for completion of admission process for the first MBBS course has been given. As per the said notification - Appendix F, the first stage of admission process is from the date on which NEET is conducted. Thus, the admission process does not commence from the stage of counseling as pleaded by the respondents. At this stage, it is submitted that even as per Clause 2.7 of the information booklet issued by the Admission Committee, the admission process commenced from the date of publication of detailed programme of admission which is before 23rd August 2016.
13.5.In support of the aforesaid contentions, learned Senior Counsel has placed reliance upon the following decisions:
(i) Priya Gupta v. State of Chhattisgarh & Ors., [(2012) 7 SCC 433].
(ii) State of Punjab & Anr. v. Dr. Viney Kumar Khullar & Ors., [(2010) 13 SCC 481] Page 42 of 96 HC-NIC Page 42 of 96 Created On Fri Sep 23 02:29:46 IST 2016 C/SCA/14873/2016 CAV JUDGMENT
(iii)Parmender Kumar & Ors. v. State of Haryana & Ors. [(2012) 1 SCC 177]
(iv) Saurabh Chaudri & Ors. v. Union of India & Ors. [(2004) 5 SCC 618] 13.6.Learned counsel therefore requested that the relief/s prayed for in these petitions be granted.
14. Learned Senior Counsel Mr. Shalin Mehta as well learned advocate Mr. Majmudar appearing for the concerned petitioners also supported the contentions raised by learned Senior Counsel Mr. Shelat.
15. We have considered the submissions advanced on behalf of learned counsel appearing for the parties. We have also gone through the material produced on record and the decisions cited at Bar by the learned counsel.
16. Learned counsel appearing for the petitioners have raised following main contentions:
(A) Rule 3(3) of the Rules of 2016 is in contravention of Ordinance 4 of 2016, Act of 2007 and in conflict with Notification dated 21.12.2010 issued by Medical Council of India and is nothing but overreaching the orders passed by the Hon'ble Supreme Court.
(B) The respondent Nos. 4 to 10 have surrendered the management seats after the Page 43 of 96 HC-NIC Page 43 of 96 Created On Fri Sep 23 02:29:46 IST 2016 C/SCA/14873/2016 CAV JUDGMENT admission process is commenced which is not permissible even under Rule 3(3) of the Rules of 2016.
(C) After surrender of management seats by the respondent Nos. 4 to 10 to the admission committee, the said management seats shall not lose their character as such and the same be considered as management seats only.
(D) It was the legitimate expectation of the petitioners that they will get the admission on management seats on the basis of their result of NEET examination.
Surrender of management seats by respondent Nos. 4 to 10 is a post-haste decision and is colourable exercise of powers.
(E) Rules of game cannot be changed once the game has started and therefore, once the admission process is started, the respondent cannot change the criteria for admission in MBBS course.
17. Before we deal with and discuss the aforesaid contentions, following factual aspects are relevant for deciding the said contentions:
On 21.12.2010, Notification came to be issued for amending the regulation on Graduate Medical Education, 1997 which Page 44 of 96 HC-NIC Page 44 of 96 Created On Fri Sep 23 02:29:46 IST 2016 C/SCA/14873/2016 CAV JUDGMENT has been called as the Regulation on Graduate Medical Education (Amendment), 2010, Part II. Clause No.6 of the same provided that there shall be a single Eligibility-cum-Entrance Examination viz. NEET for admission to MBBS course in each academic year.
The said notification came to be challenged before the Hon'ble Supreme Court and by an order dated 18.07.2013, the Hon'ble Supreme Court quashed and set aside the said regulation relating to the conduct of NEET examination in the case of Christian Medical College, Vellore (supra).
In the meantime, on 12.06.2013, Rule 11 of the Gujarat Professional Medical Educational Courses (Regulation of Admission in Undergraduate Courses) Rules, 2013, framed under the Act of 2007 provided the criteria for preparing the merit-list of the students aspiring admission in first year MBBS course, whereby, 60% of total marks obtained in three subjects in fourth semester i.e. Standards XI and XII and 40% of total marks obtained in three subjects in GUJCET are required to be considered. In June 2014, the petitioners got admission in standard XI with 'B' group or 'AB' group, so as to qualify for admission for the first year MBBS course and started preparing for not only the final examination of Standard XI, but also for GUJCET.
Thereafter, in June 2015, on clearing Standard XI, the petitioners got admission in Standard XII. At that time also they continued preparing themselves for GUJCET examination.
Page 45 of 96HC-NIC Page 45 of 96 Created On Fri Sep 23 02:29:46 IST 2016 C/SCA/14873/2016 CAV JUDGMENT On 11.04.2016, the Hon'ble Supreme Court recalled the order dated 18.07.2013 passed in the case of Christian Medical College, Vellore (supra).
Thereafter, on 28.04.2016, the Hon'ble Supreme Court passed an order in Writ Petition (C) No.261 of 2016, directing conduct of NEET for admission in first year MBBS course from current academic year 2016-17 and within a period of three days, NEET Part-1 came to be conducted on 01.05.2016.
On 09.05.2016, the Hon'ble Supreme Court passed another order whereby it has been clarified that NEET is compulsory for taking admission in first year MBBS course. However, one more chance was given to the students who did not appear in NEET-1 or though appeared but not performed well in NEET-1.
On 10.05.2016, GUJCET came to be
conducted where all the petitioners
appeared.
On 24.05.2016, on the basis of
representations received from various
States and students, the Central
Government promulgated Ordinance No.4 of 2016 by inserting Section 10D in the Indian Medical Council Act, 1956, whereby it has been made possible and permissible to the State to continue with its entrance examination for the academic year 2016-17 with respect to the Government seats.
On 23.06.2016, rules of 2016 came to be issued by the respondent State.
On 03.07.2016, advertisement was issued in two English and two Gujarati dailies inviting applications online for the first time for admission to first year of Page 46 of 96 HC-NIC Page 46 of 96 Created On Fri Sep 23 02:29:46 IST 2016 C/SCA/14873/2016 CAV JUDGMENT medical and para-medical courses on Government seats.
From 05.07.2016 to 15.07.2016, respondent
- Admission Committee started receiving applications online for admission to Government seats on 13 help centres. On 24.07.2016, NEET Part-2 came to be conducted so as to give an opportunity to those who could not appear in NEET Part-1 and also to give chance to those who though appeared in NEET Part-1 but could not perform well in NEET Part-1.
On 17.08.2016, result of NEET Part-I and Part-II examination came to be declared. From 23.08.2016 to 27.08.2016, first mock round with reference to Government seats was conducted for acquainting the students as regards filling up of their choice for the courses and college. On 26.08.2016, a press note was released by the State Government declaring about the management quota seats with all 15 medical self-financed colleges and 10 dental self-financed colleges so that their management quota seats may be filled up on the basis of the merit of NEET.
On 31.08.2016, the State Government took a decision not to implement 10% reservation meant for economically weaker sections with regard to admissions to medical and dental undergraduate courses, more particularly in view deadline of time limit of 30.09.2016 fixed by the Apex Court for completion of all such admissions.
On 01.09.2016, the management of respondent Nos. 4 to 10 surrendered their all 105 management seats by following Page 47 of 96 HC-NIC Page 47 of 96 Created On Fri Sep 23 02:29:46 IST 2016 C/SCA/14873/2016 CAV JUDGMENT their past practice of doing so right from the inception of the said medical colleges i.e. since the year 2011 onwards.
On 01.09.2016, the result of the first mock round was displayed with reference to the government seats including 105 management seats surrendered by the respondent Nos. 4 to 10.
On 02.09.2016, second mock round was started with a view to give an opportunity to further acquaint the students before they opt for final choice filling in counseling programme.
On 07.09.2016, counseling programme commenced.
18. First contention of the petitioners is that Rule 3(3) of the Rules of 2016 is in contravention of Ordinance 4 of 2016, Act of 2007 and in conflict with Notification dated 21.12.2010 issued by Medical Council of India and is nothing but overreaching the orders passed by the Hon'ble Supreme Court.
18.1. To appreciate this contention, the first aspect to be considered is, whether self-finance unaided professional colleges are having fundamental right to admit students and administer the educational institutions or not?
18.2. In the case of T.M.A.Pai Foundation (supra), the Hon'ble Supreme Court in para 50 held as under:
Page 48 of 96HC-NIC Page 48 of 96 Created On Fri Sep 23 02:29:46 IST 2016 C/SCA/14873/2016 CAV JUDGMENT "50. The right to establish and administer broadly comprises of the following rights:-
(a) to admit students:
(b) to set up a reasonable fee structure:
(c) to constitute a governing body;
(d) to appoint staff (teaching and non-teaching); and
(e) to take action if there is dereliction of duty on the part of any employees.
18.3. Thereafter, the Hon'ble Supreme Court in the case of Islamic Academy of Education & Anr. (supra), considered the question as to how the management of minority and non-minority professional colleges can admit the students in the quota allowed to them and thereafter direct the respective State Government to appoint a permanent committee which will ensure that the test conducted by the association of colleges is fair and transparent. For each State a separate committee was directed to be formed.
18.4. Once again, the Hon'ble Supreme Court in the case of P.A.Inamdar (supra) considered the right of unaided educational institutions and observed in paragraphs 125 to 129 as under:
"125. As per our understanding, neither in the judgment of Pai Foundation nor in the Constitution Bench decision in Kerala Education Bill, which was approved Page 49 of 96 HC-NIC Page 49 of 96 Created On Fri Sep 23 02:29:46 IST 2016 C/SCA/14873/2016 CAV JUDGMENT by Pai Foundation, there is anything which would allow the State to regulate or control admissions in the unaided professional educational institutions so as to compel them to give up a share of the available seats to the candidates chosen by the State, as if it was filling the seats available to be filled up at its discretion in such private institutions. This would amount to nationalization of seats which has been specifically disapproved in Pai Foundation. Such imposition of quota of State seats or enforcing reservation policy of the State on available seats in unaided professional institutions are acts constituting serious encroachment on the right and autonomy of private professional educational institutions. Such appropriation of seats can also not be held to be a regulatory measure in the interest of minority within the meaning of Article 30(1) or a reasonable restriction within the meaning of Article 19(6) of the Constitution. Merely because the resources of the State in providing professional education are limited, private educational institutions, which intend to provide better professional education, cannot be forced by the State to make admissions available on the basis of reservation policy to less meritorious candidate. Unaided institutions, as they are not deriving any aid from State funds, can have their own admissions if fair, transparent, non-exploitative and based on merit.
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 Page 50 of 96 HC-NIC Page 50 of 96 Created On Fri Sep 23 02:29:46 IST 2016 C/SCA/14873/2016 CAV JUDGMENT 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 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.
128.We make it clear that the observations in Pai Foundation in Page 51 of 96 HC-NIC Page 51 of 96 Created On Fri Sep 23 02:29:46 IST 2016 C/SCA/14873/2016 CAV JUDGMENT 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.
129. In Pai Foundation, it has been very clearly held at several places that unaided professional institutions should be given greater autonomy in determination of admission procedure and fee structure. State regulation should be minimal and only with a view to maintain fairness and transparency in admission procedure and to check exploitation of the students by charging exorbitant money or capitation fees."
18.5. Thus, from the aforesaid decisions rendered by the Hon'ble Supreme Court, it is clear that the management of unaided educational institutions imparting education in medical is having fundamental right to establish and administer an educational institution.
18.6. At this stage, relevant provisions of the Act of 2007 and Rules of 2016 are required to be referred to. The respondent State enacted the Act of 2007, wherein Section 2(g) provides for definition of 'Government seats' as under:
"(g) "Government seats" means,- (I) all the seats of the professional courses in the Government colleges or institutions and in the aided colleges or institutions; and
(ii) seventy-five percent seats of the Page 52 of 96 HC-NIC Page 52 of 96 Created On Fri Sep 23 02:29:46 IST 2016 C/SCA/14873/2016 CAV JUDGMENT professional courses of the total approved seats in the unaided colleges or institutions;"
18.7. Whereas, Section 2(h) of the Act of 2007 provides that:
"Management seats" means twenty-five per cent, seats of the professional courses of the total approved seats in the unaided colleges or institutions including fifteen per cent, Non-Resident Indian seats."
18.8. Section 6 of the Act of 2007 provides as under:
"Section 6 - Admission to Government seats and management seats 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:Page 53 of 96
HC-NIC Page 53 of 96 Created On Fri Sep 23 02:29:46 IST 2016 C/SCA/14873/2016 CAV JUDGMENT Provided also that where any management seat remains vacant, such seat shall be filled in from the Government seats."
18.9. Section 20 of the Act of 2007 provides as under:
"Section 20. Power of State Government to make rules:-
(1) The State Government may, by notification in the Official Gazette, make rules for carrying out the purposes of this Act.
(2) All rules made under this section shall be laid for not less than thirty days before the State Legislature as soon as possible after they are made and shall be subject to the rescission by the State Legislature or to such modification as the State Legislature may make during the session in which they are so laid or the session immediately following.
(3) Any rescission or modification so made by the State Legislature shall be published in the Official Gazette, and shall thereupon take effect."
18.10. From the record, it has emerged that the quota of 75% seats as government seats and 25% of management seats of total approved seats in the unaided colleges are provided in the Act on the basis of the consensus arrived at between the respondent - State and the consortium of medical colleges.
Page 54 of 96HC-NIC Page 54 of 96 Created On Fri Sep 23 02:29:46 IST 2016 C/SCA/14873/2016 CAV JUDGMENT 18.11. The respondent State in exercise of the powers conferred by Section 20 read with Section 4 of the Act of 2007, framed the Rules of 2016 in supersession of all the Rules framed by the Government earlier. Rule 2(b) defines the word 'admission' which reads as under:
"(b) "Admission" means admission of candidates to the first year of the degree in the Professional Medical Educational Courses;"
18.12. Rules 2(e), 2(h) and 2(j) of the Rules of 2016 provide as under:
"(e) Consortium" means an association of unaided colleges or institutions formed to facilitate admissions to management seats of such institutions;
(h) "Gujarat Common Entrance Test (GUJCET)" means the common entrance test conducted for relevant year by the Gujarat Board for the purpose of admissions to the professional courses;
(j) "NEET" means National Eligibility cum Entrance Test conducted by the designated authority under clause 10D of the Indian Medical Council (Amendment) Ordinance, 2016.
18.13. Rule 3 of the Rules of 2016 reads as under:
Page 55 of 96HC-NIC Page 55 of 96 Created On Fri Sep 23 02:29:46 IST 2016 C/SCA/14873/2016 CAV JUDGMENT "3. Seats Available for Admission-(1) For the purpose of admission to the first year Professional Medical Educational Courses, available seats shall include-
A. Government Seats-
(i) All the sanctioned seats of the
Professional Medical Courses in the
Government Colleges or Institutions of the
State excluding fifteen percent seats of
All India Quota in the MBBS and BDS
courses.
(ii) All the sanctioned seats of the Professional Medical Courses in the grant- in-aid Colleges or Institutions, and
(iii)Seventy-five percent of the total sanctioned seats of the Professional Medical Courses in the unaided Colleges or Institutions.
B. Management Seats-
Twenty-five percent seats of the total sanctioned seats of the Professional Medical Courses in the unaided Colleges or Institutions of the State.
(2) The intimation received, in respect of sanction of seats, by the Admission Committee three days prior to the commencement of the counseling programme, shall be considered as the total available seats.
(3) Before commencement of admission process, if any unaided College or Institution requests to fill up the Management Seats by the Admission Committee, such Management Seats shall also be considered as available government seats for giving admissions."
Page 56 of 96HC-NIC Page 56 of 96 Created On Fri Sep 23 02:29:46 IST 2016 C/SCA/14873/2016 CAV JUDGMENT 18.14. Thus, in view of the aforesaid provisions and in view of the law laid down by the Hon'ble Supreme Court in the aforesaid cases, it is clear that the respondent Nos. 4 to 10 are having right to admit students on 25% management seats as per the consensus arrived at with the Government. However, that does not mean that the petitioners students can insist that the respondent Nos. 4 to 10 shall admit the students on 25% of management seats. The respondent Nos. 4 to 10 are having right to manage their quota of management seats. They are also having right to surrender such seats as per the provisions contained in the rule.
18.15. It has also come on record that the similar rule, which is incorporated in Rule 3(3) of the Rules of 2016, was in existence since 2008 and the same is in furtherance of the fundamental right of the management to fill up the seats by adopting its own procedure or to surrender the same so as to make the same available to the government seats to be filled in by the admission committee. Such rule is in consonance with the law laid down by the Hon'ble Supreme Court as observed hereinabove. At this stage, it is relevant to note that by virtue of Entry 25 of List III of the Constitution of India, it is always permissible for the State to provide for something which is not inconsistent with the Page 57 of 96 HC-NIC Page 57 of 96 Created On Fri Sep 23 02:29:46 IST 2016 C/SCA/14873/2016 CAV JUDGMENT standards laid down for higher education by the central law. Inconsistency will prevail only when there is lowering down or militating the standards provided by the Central Government. It is not the case of the petitioners herein that admissions to the government seats are to be given on the basis of the marks obtained in Standard XI and XII examinations only. On the contrary, as observed hreinabove, the rules were framed in the year 2011 by which the merit-list is to be prepared on the basis of the combination of marks obtained in fourth semester in standard XI and XII examinations and marks obtained in GUJCET. Thus, the element of common entrance test remains intact.
18.16. The submission canvassed on behalf of learned counsel appearing for the petitioners that now in view of the order dated 28.04.2016 and 09.05.2016 passed by the Hon'ble Supreme Court, NEET is made compulsory for taking admission in first year MBBS course. However, thereafter, Ordinance No.4 of 2016 came to be promulgated on 24.05.2016 by which Section 10D has been inserted in the Indian Medical Council Act. Section 10D provides as under:
"10D. There shall be conducted a uniform entrance examination to all medical educational institutions at the undergraduate level and post-graduate level through such designated authority in Page 58 of 96 HC-NIC Page 58 of 96 Created On Fri Sep 23 02:29:46 IST 2016 C/SCA/14873/2016 CAV JUDGMENT Hindi, English and such other languages and in such manner as may be prescribed and the designated authority shall ensure the conduct of uniform entrance examination in the aforesaid manner. Provided that notwithstanding any judgment or order of any court, the provisions of this section shall not apply in relation to the uniform entrance examination at the undergraduate level for the academic year 2016-2017 conducted in accordance with any regulations made under this Act in respect of State Government seats (whether in Government medical college or in a private medical college) where such State has not opted for such examination."
18.17. Thus, by way of proviso to Section 10D, for the academic year 2016-17, NEET has not been made compulsory so far as government seats are concerned.
18.18. If Rule 3(3) of Rules of 2016 is carefully examined, the same does not seek to apply GUJCET to the management seats but speaks about the eventuality relating to conversion of management seats into government seats. The application of GUJCET with reference to government seats is even otherwise contemplated by virtue of Section 10D of Indian Medical Council Act. At this stage, it is also relevant to note that Section 10D of the Indian Medical Council Act is also challenged before the Hon'ble Supreme Court. However, the Hon'ble Supreme Court has not stayed the operation thereof despite Page 59 of 96 HC-NIC Page 59 of 96 Created On Fri Sep 23 02:29:46 IST 2016 C/SCA/14873/2016 CAV JUDGMENT having doubt about its validity in its order dated 14.07.2016. Thus, in view of the above surrender and consequent conversion of management seats into government seats, it cannot be said that Rule 3(3) indirectly allows bypassing of NEET for the management seats and therefore it is in violation of the orders passed by the Hon'ble Supreme Court passed on 28.04.2016 and 09.05.2016. Hence, the said argument of learned senior counsel appearing for the petitioners is misconceived.
18.19. As observed above, Act of 2007 has been enacted recognizing the fundamental right of the management of administering the admission and by virtue of proviso contained in Section 20 of the said Act, the State Government has framed the rules for carrying out the purposes of the said Act and thereby has filled up the gaps which were not provided by virtue of provisions contained under the Act of 2007.
18.20. The object for enactment of the Act of 2007 is to give effect of fundamental right to the management flowing from the provisions contained in Article 19(1)(g) of the Constitution of India and Rules of 2016 framed are in furtherance of achieving the said objects. By way of Rule 3(3), an exception is carved out in favour of the management enabling it to exercise Page 60 of 96 HC-NIC Page 60 of 96 Created On Fri Sep 23 02:29:46 IST 2016 C/SCA/14873/2016 CAV JUDGMENT the rights of choosing to fill up the seats or not to fill up the management seats as management seats. Hence, filling up of the seats is an exclusive right of the management and therefore it is a discretion of the management.
18.21. In the case of St. Johns Teachers Training Institute (supra), the question which was considered by the Hon'ble Supreme Court is whether regulation 5(e) and (f) framed by National Council of Teachers Education is ultra vires to the provisions of National Council of Teachers Education Act. The Hon'ble Supreme Court after considering the submissions, observed and held in paragraphs 10 to 12 as under:
"10. A Regulation is a rule or order prescribed by a superior for the management of some business and implies a rule for general course of action. Rules and Regulations are all comprised in delegated legislations. The power to make subordinate legislation is derived from the enabling Act and it is fundamental that the delegate on whom such a power is conferred has to act within the limits of authority conferred by the Act. Rules cannot be made to supplant the provisions of the enabling Act but to supplement it. What is permitted is the delegation of ancillary or subordinate legislative functions, or, what is fictionally called, a power to fill up details. The legislature may, after laying down the legislative policy confer discretion on an administrative agency as to the execution of the policy and leave it to the agency Page 61 of 96 HC-NIC Page 61 of 96 Created On Fri Sep 23 02:29:46 IST 2016 C/SCA/14873/2016 CAV JUDGMENT to work out the details within the frame work of policy. The need for delegated legislation is that they are framed with care and minuteness when the statutory authority making the Rule, after coming in to force of the Act, is in a better position to adapt the Act to special circumstances. Delegated legislation permits utilisation of experience and consultation with interests affected by the practical operation of statutes. Rules and Regulations made by reason of the specific power conferred by the Statutes to make Rules and Regulations establish the pattern of conduct to be followed. Regulations are in aid of enforcement of the provisions of the Statute. The process of legislation by departmental Regulations saves time and is intended to deal with local variations and the power to legislate by statutory instrument in the form of Rules and Regulations is conferred by Parliament. The main justification for delegated legislation is that the legislature being over burdened and the needs of the modern day society being complex it can not possibly foresee every administrative difficulty that may arise after the Statute has begun to operate. Delegated legislation fills those needs. The Regulations made under power conferred by the Statute are supporting legislation and have the force and affect, if validly made, as the Act passed by the competent legislature. (See Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi, AIR 1975 SC 1331.
11. It will be useful to reproduce here a passage from Administrative Law by Wade & Forsyth (Eighth Edition 2000 at page
839) :
"Administrative legislation is Page 62 of 96 HC-NIC Page 62 of 96 Created On Fri Sep 23 02:29:46 IST 2016 C/SCA/14873/2016 CAV JUDGMENT traditionally looked upon as a
necessary evil, an unfortunate but inevitable infringement of the separation of powers. But in reality it is no more difficult to justify it in theory than it is possible to do without it in practice. There is only a hazy borderline between legislation and administration, and the assumption that they are two fundamentally different forms of power is misleading. There are some obvious general differences. But the idea that a clean division can be made (as it can be more readily in the case of the judicial power) is a legacy from an older era of political theory. It is easy to see that legislative power is the power to lay down the law for people in general, whereas administrative power is the power to lay down the law for them, or apply the law to them, in some particular situation."
12.The question whether any particular legislation suffers from excessive delegation has to be decided having regard to the subject matter, the scheme, the provisions of the Statutes including its preamble and the facts and circumstances in the background of which the Statute is enacted. (See Registrar of Co-operative Societies v. K. Kanjabmu, AIR 1980 SC 350 and State of Nagaland v. Ratan Singh AIR 1967 SC 212). It is also well settled that in considering the vires of subordinate legislation one should start with the presumption that it is intra vires and if it is open to two constructions, one of which would make it valid and other invalid, the courts must adopt that Page 63 of 96 HC-NIC Page 63 of 96 Created On Fri Sep 23 02:29:46 IST 2016 C/SCA/14873/2016 CAV JUDGMENT construction which makes it valid and the legislation can also be read down to avoid its being declared ultra vires."
18.22. From the aforesaid decision rendered by the Hon'ble Supreme Court, it can be said that the main justification for delegated legislation is that the legislature being over burdened and the needs of the modern day society being complex it can not possibly foresee every administrative difficulty that may arise after the Statute has begun to operate. Delegated legislation fills those needs. The Regulations made under power conferred by the Statute are supporting legislation and have the force and effect, if validly made. It is well settled that in considering the vires of subordinate legislation one should start with the presumption that it is intra vires and if it is open to two constructions, one of which would make it valid and other invalid, the courts must adopt that construction which makes it valid.
18.23. The Division Bench of this Court in the case of Khusboo Naginbhai Patel (supra) has observed in para 17 and 18 as under:
"17.Petitioners, we perceive, show an anxiety to espouse the cause of unaided minority and nonminority professional medical colleges and institutions in the garb of challenging the constitutional validity of certain provisions. Students Page 64 of 96 HC-NIC Page 64 of 96 Created On Fri Sep 23 02:29:46 IST 2016 C/SCA/14873/2016 CAV JUDGMENT who have been admitted in the merit quota or the management quota or the colleges or institutions (minority or nonminority), have not been impleaded in this case. State legislature has the legislative competence to make laws with respect to any of the matters enumerated in List III of the Seventh Schedule.
Entry 25 of List III deals with education, including technical education, medical education and Universities subject to the provisions of Entries 63, 64, 65, 66 of List I, Vocational and Technical Training of Labour. Act was enacted to make special provision for regulation of admissions in the professional medical educational colleges and institutions in the State. Petitioners complain that the State Government has appropriated 75% seats of the private unaided professional colleges, thereby violated Article 15(5) of the Constitution. Legislature, in our view, tries to streamline the level of education, without sacrifice of merit, 75% seats of the professional courses of the total approved seats in unaided colleges or institutions is earmarked as Government seats. Rest 25% Management seats of the professional courses of the total approved seats in the unaided colleges or institutions, including 15% Non Resident Indians has to be filled up on the basis of interse merit.
18.The logic behind seats sharing is due to the consensus reached between the State and private unaided colleges. Reference may be made to para 68 of TMA Pai Fondation's case.
"68. It would be unfair to apply the same rules and regulations regulating admission to both aided Page 65 of 96 HC-NIC Page 65 of 96 Created On Fri Sep 23 02:29:46 IST 2016 C/SCA/14873/2016 CAV JUDGMENT and unaided professional institutions. It must be borne in mind that unaided professional institutions are entitled to autonomy in their administration while while, at the same time, they do not forego or discard the principle of merit. It would, therefore, be permissible for the university or the Government, at the time of granting recognition, to require a private unaided institution to provide for merit based selection while, at the same time, giving the management sufficient discretion in admitting students. This can be done through various methods. For instance, a certain percentage of the seats can be reserved for admission by the management out of those students who have passed the common entrance test held by itself or by the State/university and have applied to the college concerned for admission, while the rest of the seats may be filled up on the basis of counselling by the State agency. This will incidentally take care of poorer and backward sections of the society. The prescription of percentage for this purpose has to be done by the Government according to the local needs and different percentages can be fixed for minority unaided and nonminority unaided and professional colleges. The same principles may be applied to other nonprofessional but unaided educational institutions viz. Graduation and postgraduation nonprofessional colleges or institutes."Page 66 of 96
HC-NIC Page 66 of 96 Created On Fri Sep 23 02:29:46 IST 2016 C/SCA/14873/2016 CAV JUDGMENT This aspect was taken note of in P.A Inamdar's case. Para 128 is extracted below.
"128. We make it clear that the observations in Pai Foundation in para 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."
Petitioners, in our view, cannot take exception to that consensual arrangement arrived at between the unaided private professional institutions and the State.
Contention raised by the petitioners on that ground is only to be rejected."
18.24. It is further clear from the ordinance 4 of 2016 that now it is permissible and possible to the respondent State to continue with its uniform entrance examination i.e. GUJCET for the academic year 2016-17 with respect to the government seats. Hence, Rule 3(3) of Rules of 2016 is not in violation of the Central Legislation as contended by learned counsel appearing for the the petitioners. It is further clear that Rule 3(3) of the Rules of 2016 providing for discretion to the unaided professional colleges to opt for surrender of its management seats is in fact in furtherance of the Page 67 of 96 HC-NIC Page 67 of 96 Created On Fri Sep 23 02:29:46 IST 2016 C/SCA/14873/2016 CAV JUDGMENT object of the Act of 2007 and similar rule was in existence in past academic years also. Thus, it is not correct on the part of the petitioners to contend that the respondent Nos. 4 to 10 have surrendered the management seats to deviate the mandate of Section 10D of the Indian Medical Council Act. It is further clear that by opting for surrender of management seats which is nothing but surrender of the right of respondent Nos. 4 to 10 colleges for which the concerned respondents have not to gain anything unduly out of the same to their advantage and therefore their bona fide cannot be doubted. Thus, if the contention of the petitioners is accepted, it would virtually amounting to forcing the respondent management of unaided professional colleges to opt for the management seats as if it is the fundamental right of the students aspiring for the admission.
18.25. Thus, keeping in mind the aforesaid decisions and in view of the aforesaid discussion, we are of the view that Rule 3(3) of Rules of 2016 is not ultra vires to Section 10D of Ordinance 4 of 2016 or the Act of 2007 or in conflict with Notification dated 21.12.2010 issued by the Medical Council of India or in any way in violation of the orders passed by the Hon'ble Supreme Court on 28.04.2016 and 09.05.2016, as contended by learned counsels Page 68 of 96 HC-NIC Page 68 of 96 Created On Fri Sep 23 02:29:46 IST 2016 C/SCA/14873/2016 CAV JUDGMENT appearing for the petitioners. Thus, the first contention raised by the learned counsel appearing for the petitioners is rejected.
19. Second contention raised by the learned counsel appearing for the petitioners is that the respondent Nos.4 to 10 have surrendered management seats on 01.09.2016 to the admission committee after the admission process has been started by the admission committee on 03.07.2016 which is not permissible even as per Rule 3(3) of the Rules of 2016.
19.1. With regard to this contention, it has emerged from the record that on 03.07.2016, advertisement was issued in the concerned newspaper inviting applications online for the admission to first year of medical and para- medical courses on government seats. Thereafter from 05.07.2016 to 15.07.2016, the respondent - admission committee started receiving applications online for admission on such government seats. As per the order dated 09.05.2016 passed by the Hon'ble Supreme Court, NEET 2 came to be conducted on 24.07.2016 and result thereof was declared on 17.08.2016. First mock round with reference to government seats for acquainting the students as regards filling up of their choice was conducted from 23.08.2016 to 27.08.2016. Thereafter, on 1.9.2016 the Page 69 of 96 HC-NIC Page 69 of 96 Created On Fri Sep 23 02:29:46 IST 2016 C/SCA/14873/2016 CAV JUDGMENT management of respondent Nos. 4 to 10 surrendered their 105 management seats as per their past practice which they adopted from inception i.e. from 2011 onwards. On 01.09.2016, result of the first mock round was displayed with reference to the government seats including 105 management seats surrendered by respondent Nos. 4 to 10. However, on 02.09.2016, second mock round was started with a view to further acquaint the students before they opt for final choice filling in counseling programme. Thereafter, counseling programme commenced on 07.09.2016.
19.2. In view of the aforesaid factual aspects of the matter, the case of the petitioners is that the admission process commenced on 03.07.2016. However, the respondents have contended that the admission process can be said to have started when the counseling programme commenced, on 07.09.2016.
19.3. With a view to decide the aforesaid controversy, the following relevant provisions are required to be kept in mind.
19.4.Rule 2(b) of Rules of 2016 provides that 'Admission' means admission of candidates to the first year of the degree in the Professional Medical Educational Courses.
Page 70 of 96HC-NIC Page 70 of 96 Created On Fri Sep 23 02:29:46 IST 2016 C/SCA/14873/2016 CAV JUDGMENT 19.5. Rule 3(2) of Rules of 2016 provides that the intimation received, in respect of sanction of seats, by the Admission Committee three days prior to the commencement of the counseling programme, shall be considered as the total available seats. Thus, from the aforesaid provisions, it can be said that steps prior to counseling programme is tentative only to facilitate the students to acquaint themselves with the online admission programme introduced for the first time this academic year and with a view to avoid any hassle on their part. The respondent Nos. 4 to 10 have been consistently surrendering the management seats since 2011 and every year such management seats have been surrendered prior to commencement of counseling programme by the admission committee so that such management seats can be considered as government seats for the purpose of admission in first year MBBS course. At this stage, it is also relevant to note that the admission committee has filed the affidavit-in-reply wherein the standard procedure which is being followed by the admission committee every year is stated in detail. It is specifically stated in the affidavit that since the students in the State had never in all the past 8 years ever filled-in any forms online nor had they appeared at an online counseling programme, conducting of mock Page 71 of 96 HC-NIC Page 71 of 96 Created On Fri Sep 23 02:29:46 IST 2016 C/SCA/14873/2016 CAV JUDGMENT rounds to appraise the students of the system, was imperative. It is further stated that the first mock round was conducted between 23.08.2016 to 27.08.2016. It is further stated that on 02.09.2016, the self-financed colleges have published an advertisement in the daily newspaper publishing details to be filled in by the self- financed colleges in the management and NRI quota.
19.6. Thus, it is clear that the admission committee for the first time introduced online admission and therefore different date was fixed for collecting pin number, filling-in online form and conducting mock rounds. It is further made clear that the students were not aware about the total available government seats even at the time of mock round. Thus, in the facts and circumstances of the present case and from the provisions of the Rules referred to hereinabove, it is clear that the admission process is said to have commenced on 07.09.2016 i.e. the date on which counseling programme commenced.
19.7. As per the submission canvassed by learned counsel Mr. Dave appearing for respondent Nos. 4 to 10, the decision was in fact taken on file on 23.08.2016 to surrender the management seats of such colleges to the admission committee Page 72 of 96 HC-NIC Page 72 of 96 Created On Fri Sep 23 02:29:46 IST 2016 C/SCA/14873/2016 CAV JUDGMENT as per the past practice and thereafter the file was moved from one officer to another and ultimately decision was communicated on 01.09.2016 before the commencement of counseling programme.
19.8. The contention of learned counsel Mr. Shelat appearing for the petitioners that Rule 3(2) of the Rules of 2016 is with regard to intimation received regarding newly sanctioned or reduction of seats because of de-recognition and therefore the said Rule cannot determine admission process as provided under Rule 3(3) of Rules of 2016, is misconceived.
19.9. The decisions relied upon by the learned counsel appearing for the petitioners with regard to the date of commencement of the admission process would not be applicable in the peculiar facts of the present case as this year after the orders dated 28.04.2016 and 09.05.2016 passed by the Hon'ble Supreme Court, as observed hereinabove, NEET was made compulsory. Accordingly, NEET-2 came to be conducted only on 24.07.2016 and result of NEET-1 and NEET-2 came to be declared on 17.08.2016. Only because the online process introduced for the first time, mock rounds were conducted.
Page 73 of 96HC-NIC Page 73 of 96 Created On Fri Sep 23 02:29:46 IST 2016 C/SCA/14873/2016 CAV JUDGMENT 19.10. The submission canvassed by learned Senior Counsel Mr. Shelat is that as per the Appendix-F of Regulation on Graduate Medical Education, 2016 which has been added in Regulation on Medical Education, 1997, the admission process for the first MBBS course is said to have started from the date of conduct of NEET-1 and NEET-2 examination, which was held on 01.05.2016 and 24.07.2016 respectively. However, the said submission is misconceived. If the Appendix-F is carefully seen, the heading of the same provides 'time schedule for completion of admission process for first year MBBS course' (emphasis supplied). In the said schedule, the dates of examination and result of examination of NEET have been mentioned. However, no reference with regard to issuance of admission forms, filling-up the admission forms and submission thereof to the admission committee is made. On the contrary the third column in the said Appendix specifically provides that first round of counseling/admission - from 3rd September to 5th September 2016. Thus, in our view the said schedule would be helpful to the respondent State in support of their contention that admission process can be said to have started from first round of counseling/admission. In the present case, such counseling was commenced on 07.09.2016 before which the respondent Nos. 4 to 10 have Page 74 of 96 HC-NIC Page 74 of 96 Created On Fri Sep 23 02:29:46 IST 2016 C/SCA/14873/2016 CAV JUDGMENT surrendered their management seats to the admission committee on 01.09.2016. In our view admission process cannot start from the date of examination or even before result of such examination.
19.11. In view of the aforesaid decision and the discussion, 2nd contention of the learned counsel appearing for the petitioners is not accepted.
20. The third contention of the learned counsel appearing for the petitioners is that even after the surrender of the management seats to the admission committee, the said seats would remain as management seats only in view of the orders dated 28.04.2016 and 09.05.2016 passed by the Hon'ble Supreme Court as well as in view of ordinance No. 4 of 2016.
20.1. With regard to the said contention, it is to be observed that the eventuality relating to exercise of right by the management to surrender its management seats in favour of the Government and consequent conversion thereof into government seats is provided under Rule 3(3) of the Rules of 2016 itself and even after issuance of ordinance No.4 of 2016 the same has not been prohibited for this year. The question of the Page 75 of 96 HC-NIC Page 75 of 96 Created On Fri Sep 23 02:29:46 IST 2016 C/SCA/14873/2016 CAV JUDGMENT State Government to retain NEET for converted or surrendered seats does not arise, since upon surrendering of the management seats by the management, the said seats partake the character of the government seats and thereby lose the feature of management seats. From the provision contained in the said Rule it is clear that provision governing the admission to the government seats will be applicable to the surrendered management seats. From overall reading of the provisions contained in Rules of 2016, it is clear that rule 3(3) of the Rules of 2016 is independent of the other rules contained in the said Rules which provide for respective admission procedure to be adopted by the admission committee and the management. At this stage, it is also to be noted that the respondent Nos. 4 to 10 have in past surrendered their management seats since 2011 which were considered as government seats by the admission committee. It is also required to be noted that the fees for management seats in respondent nos. 4 to 10 is around Rs.7.80 lakhs, whereas fees for government seats in the said institutions is Rs.3 lakhs. During the course of the arguments, it has been revealed that when the admission committee would give admission to the concerned students on such 105 seats which are surrendered by the respondent Nos.4 to 10, the respondent Nos. 4 to 10 would Page 76 of 96 HC-NIC Page 76 of 96 Created On Fri Sep 23 02:29:46 IST 2016 C/SCA/14873/2016 CAV JUDGMENT charge Rs.3 lakhs from the concerned students as if the same is government seats. At this stage, it is to be noted that admission in MBBS course has been granted on the basis of the result of the GUJCET conducted by the respondent authorities since last number of years and hence when the management seats are surrendered and the same are treated as government seats by the admission committee for the purpose of grant of admission, admission would be given on merits on the basis of the result of the GUJCET. Thus, it is difficult to accept the contention of the petitioners that even after surrender of management seats to the admission committee, the same should be treated as management seats only. Hence, the said contention is also not accepted.
21. The fourth contention of the petitioners is that the admission to the management quota is governed by the merit-list prepared on the basis of the NEET examination and therefore if the seats surrendered by the respondent Nos. 4 to 10 to the admission committee are considered as government seats, it will affect the legitimate right and expectation of the petitioners. It was the legitimate expectation of the petitioners that they will get the admission on management seats on the basis of their result of NEET examination.
Page 77 of 96HC-NIC Page 77 of 96 Created On Fri Sep 23 02:29:46 IST 2016 C/SCA/14873/2016 CAV JUDGMENT 21.1.It has transpired from the record that at no point of time in the past the respondent Nos. 4 to 10 opted for filling-up the management seats in view of similar provisions contained in the earlier rules. Necessary documents are produced by the respondent Nos. 4 to 10 with their affidavit with regard to the same. Thus, respondent Nos. 4 to 10 have been consistently following the practice of surrendering their management seats to the admission committee since 2011. At no point of time in past any assurance or promise was given to the students by the respondent Nos. 4 to 10 that they would not surrender their management seats for the academic year 2016-17 and if at all any inference was possible based upon the past practice, it was leaning towards surrender of their management seats by respondent Nos. 4 to 10.
21.2. At this stage, it is also relevant to note that the petitioners appeared in GUJCET which was conducted on 10.05.2016 as well as NEET. It has also come on record that there are other 7 self-financed colleges in which there are 115 management seats. Similarly, there are government seats in government colleges or self- financed and unaided colleges. Hence, the case of the petitioners would be considered on the basis of their NEET result for 115 management seats, whereas their cases would be considered on the Page 78 of 96 HC-NIC Page 78 of 96 Created On Fri Sep 23 02:29:46 IST 2016 C/SCA/14873/2016 CAV JUDGMENT basis of GUJCET result for government seats. Thus, in the facts of the present case, the right of the petitioners to be considered on the basis of their result has not been affected, as contended by learned counsel for the petitioners. Petitioners are not totally deprived from competing with other students on the basis of their result of NEET or the GUJCET, as the case may be.
21.3. In the case of Thakkar Dhartiben Haribhai (supra), the Division Bench of this Court in para 19 and 20 observed as under:
"19. So far as the reliance on 'Doctrine of Legitimate Expectation and Doctrine of 'Promissory Estoppel' is concerned, same can justifiably be rejected by borrowing the reasonings of full bench decision of Bombay High Court in case of ASHWIN PRFULLA PIMPALWAR AND ETC. VS. STATE OF MAHARASHTRA AND OTHERS, A.I.R. 1992 (BOM.) 233, where similar plea was repelled by making following observations.
" 31. The extreme position that a Prospectus once issued by the Government, cannot be altered at all at a subsequent stage has not been canvassed by anyone so far. It would not be correct to lay down such an absolute rule. The Government which has the competence to issue rules or regulations, has, as a corollary, powers to amend or alter or even repeal and reissue such rules and regulations.Page 79 of 96
HC-NIC Page 79 of 96 Created On Fri Sep 23 02:29:46 IST 2016 C/SCA/14873/2016 CAV JUDGMENT
20. Does the rule of promissory estoppel operate so that the admission rules once issued could not be altered subsequently by the Government ? It is assumed in some decisions that a student preparing for the qualifying examination on the basis of the Prospectus relating to postgraduate courses prevailing at that particular point of time is entitled to continue to receive benefits or advantages arising therefrom and consequently no change can be made to his prejudice. It is difficult to accept such a broad proposition. Students entering educational institutions with the ultimate aim of completing their scholastic career at the peak are expected to strive for academic excellence, and accordingly, it cannot be assumed that a student would only look at a GR operating at or about the time when he intensifies the preparation for the qualifying examination and regulating admission to post-
graduate courses. Then again, a student
is indeed expected to do
his best throughout his
scholastic career. The heights are
reached not by a sudden
flight. They are reached by those
who toil upwards in the night
while their companions
slept (The borrowing from the lines of Longfellow is acknowledged). In a highly competitive examination there is a neck to neck race even among those who spare no pains or times to achieve the Page 80 of 96 HC-NIC Page 80 of 96 Created On Fri Sep 23 02:29:46 IST 2016 C/SCA/14873/2016 CAV JUDGMENT coveted goal. Quite often, imponderable factors or fortuitous circumstances may affect the fact. Under such circumstances, it would be unrealistic to posit a theory of promissory estoppel based on the elusive concept of the preparation time for the qualifying examination."
21.4. In the case of Prashant Pravinbhai Kanabar (supra), the Division Bench of this Court in para 9, 11 and 13 observed as under:
"9. In order to appreciate these rival contentions, it would be necessary to examine the nature of the right which is claimed by the petitioners and disputed by the University. The Supreme Court in Dr. Muneeb Ui Rehman Haroon v. Govt., of Jammu & Kashmir State AIR 1984 SC 1585, did not accept the contention that such a right is a fundamental right under Art. 19 of the Constitution. The learned counsel, appearing for the petitioners, were unable to point out any provision of law under which the right claimed by them can be regarded as a legal right. Obviously, the 'only right which the petitioners can claim is the one which is available to them under Art. 14 of the Constitution. This Court in Kumari Jayshree v. State of Gujarat (1979) 20 Guj LR 614, while, considering the rules for admission to First M.B.B.S. course, observed that, "till admissions are given, no rights are acquired". As pointed out in that case, the protection available to such candidates is under Art. 14 of the Constitution. As the petitioners cannot be said to have Page 81 of 96 HC-NIC Page 81 of 96 Created On Fri Sep 23 02:29:46 IST 2016 C/SCA/14873/2016 CAV JUDGMENT acquired any right as claimed on their admission to First M.B.B.S. course, or when they passed the Final M.B.B.S. Examination, the question of taking away their right really does not arise and, therefore, the contention that new rules are violation of Art. 14 of the Constitution inasmuch as they are made retrospective in operation, as they are made applicable to candidates like the petitioners, with retrospective, operation must be rejected. This Court further pointed out in that case that rules with retrospective operation can be made unless the exercise of such power is found to be violative of Art. 14 of the Constitution. Though such a question had not directly arisen before the Supreme Court in University of Mysore v. Gopala Gowda, AIR 1965 SC 1932, it observed, while interpreting the Regulations framed by the Academic Council, that the power conf erred on it by the Mysore University Act to control and generally regulate teaching courses, of studies to be pursued and maintenance of the standards thereof, is extended not merely to prescribing minimum qualifications for admission, course of study and minimum attendence at an Institution, which may qualify a student for admission to examination, but also conferred an authority to refuse to grant a degree/ diploma certificate or other academic distinction to students who fail to satisfy the examiners at the final examination and to direct that a student who is proved not to have the ability or the aptitude to complete the course within a reasonable time to discontinue the course. This decision of the Supreme Court in a way supports the view that even in respect of students, who can be said to be midstream in, a sense, rules Page 82 of 96 HC-NIC Page 82 of 96 Created On Fri Sep 23 02:29:46 IST 2016 C/SCA/14873/2016 CAV JUDGMENT can be made which can affect their chances or even make them ineligible for further higher studies.
xx xx xx
11. Realising the difficulty in pitching their case so high, the learned counsel, in the alternative, submitted that on the principle of promissory estoppel the University is estopped from making such variation in the criteria for admission to post-graduate studies with respect to the petitioners and other similarly situated students who prosecuted their studies relying on the then existing practice and the rules. It was submitted that the petitioners and students similarly situated relied upon the existing practice and the rules and had, therefore, either taken more drops at the First and Second M.B.B.S. Examinations with a view to prepare themselves in a better manner, or had not put in their best at the First and Second M.B.B.S. Examination. They had all the while proceeded on the basis that only the performance at the final M.B.B.S. Examination would be considered for the purpose of judging their eligibility and merit for the purpose of prosecuting postgraduate medical courses. If they had been told that the criterion for judging their competence and eligibility was likely to be changed, and that the performance even at H.S.C., First M.B.B.S. and Second M.B.B.S. Examinations was also likely to be taken into consideration, they would have put in their best at those examinations, and would not have taken more drops at the First or Second M.B.B.S. Examination and Page 83 of 96 HC-NIC Page 83 of 96 Created On Fri Sep 23 02:29:46 IST 2016 C/SCA/14873/2016 CAV JUDGMENT avoided the disqualification or ineligibility in prosecuting post- graduate studies. It was urged that when the petitioners appeared at the First and Second M.B.B.S. Examinations, they anticipated that only the marks obtained at the Final M.B.B.S Examination would be considered for the purpose of evaluating their merits for post-graduate medical studies. It was submitted that relying upon the rules, as they existed then, the petitioners and students similarly situated conducted themselves and pursued their studies in a particular manner and, therefore, qua them the University should not be permitted to change the rules and apply new rules to them.
xx xx xx
13. It is difficult to appreciate how the principle of promissory estoppel can be applied to the facts of these cases. While the petitioner and similarly situated students were admitted to First M.B.B.S. course, no promise can be said to have been made by the University that the same rules which were then governing the admissions to postgraduate medical courses would continue to apply to them. It is also difficult to believe that the petitioners and others like them joined M.B.B.S. course because the rules governing admission to post-graduate medical courses provided that only the marks obtained at the final M.B.B.S. Examination would be taken into consideration for judging their merits, and that they would not have joined the medical course if those rules were going to be changed by the University. It is also not possible to accept that when Page 84 of 96 HC-NIC Page 84 of 96 Created On Fri Sep 23 02:29:46 IST 2016 C/SCA/14873/2016 CAV JUDGMENT they joined the medical course all of them had done so with a view to prosecute postgraduate medical course also. No such case has been pleaded specifically, nor is it possible to accept the same. As pointed out above, the Gujarat University framed the Rules for the first time in 1985. Till then, the criterion which was fixed by the State Government from time to time was applied. The University framed the Rules in exercise of its statutory powers. For that reason also the principle of promissory estoppel cannot be applied. Suitable amendments were made therein from time to time."
21.5. Learned Senior Counsel Mr. Shelat has placed reliance upon the decision rendered by the Hon'ble Supreme Court in the case of Food Corporation of India (supra) on the point of legitimate expectation. There is no dispute with regard to the proposition of law laid down by the Hon'ble Supreme Court in the said case. In the said decision, it has been held that in the State action, the State and its instrumentalities have to conform to Article 14 of the Constitution of India of which non-arbitrariness is a significant facet. This impose the duty to act fairly and to adopt a procedure which is fair play in action. However, the Hon'ble Supreme Court further observed that whether the expectation of the claimant is reasonable or legitimate in the context is a question of fact in each case. It is also observed that whenever the question arises, it is to be determined not according to the Page 85 of 96 HC-NIC Page 85 of 96 Created On Fri Sep 23 02:29:46 IST 2016 C/SCA/14873/2016 CAV JUDGMENT claimant's perception but in larger public interest. A bona fide decision of the public authority reached in this manner would satisfy the requirement of non-arbitrariness and withstand judicial scrutiny.
21.6. In the present case, we are of the opinion that the respondent authorities have not acted arbitrarily as alleged and the respondent Nos. 4 to 10 have acted as per their past practice of surrendering the management seats to the admission committee. Even such decision is in larger public interest, i.e. in the interest of the students because the management seats would be considered as government seats and the fees would be reduced from Rs.7.80 lakhs to Rs. 3 lakhs.
21.7. The learned Senior Counsel Mr. Shelat also placed reliance upon the decision rendered by the Hon'ble Supreme Court in the case of International Trading Company & Anr. (supra) in support of his submission with regard to legitimate expectation. However, in the said decision itself the Hon'ble Supreme Court held and observed in para 13 and 21 as under:
"13. Doctrines of promissory estoppel and legitimate expectation cannot came in the way of public interest. Indisputably, Page 86 of 96 HC-NIC Page 86 of 96 Created On Fri Sep 23 02:29:46 IST 2016 C/SCA/14873/2016 CAV JUDGMENT public interest has to prevail over private interest. The case at hand shows that a conscious policy decision has been taken and there is no statutory compulsion to act contrary. In that context, it cannot be said that respondents have acquired any right for renewal. The High Court was not justified in observing that the policy decision was contrary to statute and for that reason direction for consideration of the application for renewal was necessary. Had the High Court not recorded any finding on the merits of respective stands, direction for consideration in accordance with law would have been proper and there would not have been any difficulty in accepting the plea of the learned counsel for the respondents. But having practically foreclosed any consideration by the findings recorded, consideration of the application would have been mere formality and grant of renewal would have been the inevitable result, though it may be against the policy decision. That renders the High Court judgment indefensible.
xx xx xx
21. As was observed in Punjab
Communications Ltd. v. Union of India and Ors. (AIR 1999 SC 1801), the change in policy can defeat a substantive legitimate expectation if it can be justified on "Wednesbury reasonableness".
The decision maker has the choice in the balancing of the pros and cons relevant to the change in policy. It is, therefore, clear that the choice of policy is for the decision maker and not the Court. The legitimate substantive expectation merely permits the Court to find out if the change of policy which is Page 87 of 96 HC-NIC Page 87 of 96 Created On Fri Sep 23 02:29:46 IST 2016 C/SCA/14873/2016 CAV JUDGMENT the cause for defeating the legitimate expectation is irrational or perverse or one which no reasonable person could have made. A claim based on merely legitimate extension without anything more cannot ipso facto give a right. Its uniqueness lies in the fact that it covers the entire span of time: present, past and future. How significant is the statement that today is tomorrows' yesterday. The present is an we experience it, the past is a present memory and future is a present expectation. For legal purposes, expectation is not same anticipation. Legitimacy of an expectation can be inferred only if it is founded on the sanction of law."
22. The last contention of learned advocates appearing for the petitioners is that the rules of game cannot be changed once the game is commenced and therefore, in the present case, respondent Nos. 4 to 10 cannot surrender the management seats to the admission committee and the cases of the petitioners be considered on the basis of their result of NEET for such management seats.
22.1. With regard to this contention, it is required to be noted that the petitioners decided to opt for medical education and preparing for standard 11th and 12th examinations as well as GUJCET examination right from June 2014. At the relevant time, GUJCET was the only entrance examination, when the judgment dated 18.07.2013 Page 88 of 96 HC-NIC Page 88 of 96 Created On Fri Sep 23 02:29:46 IST 2016 C/SCA/14873/2016 CAV JUDGMENT rendered by the Hon'ble Supreme Court in the case of Christian Medical College, Vellore (supra) was holding the field and the said decision was recalled only on 11.04.2016 by the Hon'ble Supreme Court and till the order dated 28.04.2016 was passed by the Hon'ble Supreme Court directing that NEET is compulsory for taking admission in MBBS course. Even thereafter, as discussed hereinabove, on 24.05.2016, Section 10D has been incorporated in the Indian Medical Council Act by promulgating Ordinance 4 of 2016, whereby conduct of GUJCET for the academic year 2016-17 was recognized as valid in respect of government seats.
22.2. The Division Bench of this court in the case of Aman Piyush Khanna, thro' father & Guardian Piyush Krishna & Ors., (supra) has observed in para 9.1 and 9.2 as under:
"9.1 The decision of the Government to provide for two separate lists for students from Central Board and CISCE respectively would thus be in consonance with the observations noted here-in- above, and would be more in tune with the requirement of fair and common yard stick for admission. To that extent even the Counsel for the petitioners did not join issue. His main contention however, as noted earlier was that such a policy change was made at a highly belated stage, thus jeopardizing the prospects of Page 89 of 96 HC-NIC Page 89 of 96 Created On Fri Sep 23 02:29:46 IST 2016 C/SCA/14873/2016 CAV JUDGMENT students of CISCE. It is true that this change was made by the Government in the present admission process. It is equally true that such a change was made fairly late. However, only on that count, rules cannot be held to be ultra vires. In fact, the rules bring the procedure in tune with the requirement of common yardstick for students coming from common stream. Clubbing Central Board student with CISCE students, did not strictly fulfill this requirement. The rules thus are in tune with Article 14 of the Constitution of India and also fulfill the requirement of not equating the students from different background without any modulation. The Government has in its reply highlighted the requirement for preparing separate list. They pointed out that past experience has shown that CISCE students were cornering larger share of the seats compared to their total strength out of the seats earmarked for other Boards. When we find that these rules are valid and further the principle of equality and fairness in admission process, it would not be appropriate on our part to strike down the same, simply because previously somewhat different procedure was being followed and that the present change is affected at a late stage.
9.2 Nowhere, have the petitioners pointed out that Government publicized that there will be no change insofar as this particular aspect is concerned or any assurance was given that previous policy of preparing select list of the Central Board students and CISCE students would continue. Therefore, quite apart from the principle of no estoppal against statute, we find that arguments of Page 90 of 96 HC-NIC Page 90 of 96 Created On Fri Sep 23 02:29:46 IST 2016 C/SCA/14873/2016 CAV JUDGMENT promissory estoppal or legitimate expectation cannot stand. The petitioners have also not demonstrated how they had varied their position to their disadvantage on the basis of any such promise held out by the Government. It is too far fetched to expect that if the Government had published such a policy few months earlier, the petitioners and other students of CISCE would have shifted to some other Board or State where they would have had better prospects. This petition therefore, must fail."
22.3. The Division Bench of this court in the case of Kumar Jayshree Chandrachud Dixit v. State of Gujarat (supra) has observed in para 21 and 22 as under:
"21. So far as the contention that Rule 5.2(A) is retrospective in its operation is concerned I am afraid the argument is somewhat misconceived. It is true that the Rule was enacted after the last date for applications for admission to the Government Medical Colleges had expired. However that circumstance by itself would not make it retrospective ill operation. It requires to be noted that at the point of time when the State Government appears to have taken the decision to introduce Rule 5.2 on or about June 21 1978 intimations were not given individually to any of the applicants with regard to their admission nor had anyone of such applicants paid fees and was enrolled as a student. In other words admissions had not been finalized when Rule 5.2(A) was enacted. The Rule would therefore operate Page 91 of 96 HC-NIC Page 91 of 96 Created On Fri Sep 23 02:29:46 IST 2016 C/SCA/14873/2016 CAV JUDGMENT prospectively that is to say at the time finalizing the selection which was yet to arrive. Therefore the rule cannot be said to operate retrospectively nor could it be said that it operates in such a manner as to affect or alter settled rights. The admissions are given no rights are acquired. Even assuming however that the rule is retrospective in operation and it takes away the right to be considered for admission on the basis of the policy declared before the last date of submission of application forms the question still is whether the State Government could have enacted such a rule in the facts and circumstances of this case. Rule 15 undoubtedly reserves to the Government the right to introduce any new rule or to make change in any of the existing rules at any time without prior notice. That provision in the Rules by itself may not however absolve the Government from the necessity of justifying the subsequent introduction of any Rule if the challenge is that the very investment of such power is contrary to the rule of law or that in any case the exercise of such power in the instant case is ultra vires.
22. Against this background let us consider the question of the validity of the Rule. In this connection it requires to be borne in mind in the first place that by the enactment of Rule 5.2(A) the basic criteria for eligibility for admission such as the qualifying examination are not changed. None of the students who had applied for admission on the basis of the existing eligibility criteria will be denied admission on account of the subsequent change nor is any other class of students who was not Page 92 of 96 HC-NIC Page 92 of 96 Created On Fri Sep 23 02:29:46 IST 2016 C/SCA/14873/2016 CAV JUDGMENT otherwise eligible for admission given an opportunity to apply for admission. All that is provide by the enactment of Rule 5.2(A) is that in determining the merit order of the students who had already applied credit of five marks shall be given not only to a class of students who is covered by Rule 5.2 but also to another category of students who were similarly situate. It cannot therefore be said that by subsequent enactment of Rule 5.2 (A) such a basic chance is introduced that it should have the effect of disqualifying or enabling student from applying for admission. In the next place as earlier pointed out Rule 5.2 conferred the benefit of credit marks only on a section of the students. It left out many other similarly situate students who had passed equivalent examinations prior to the qualifying examination and obtained high marks at such examinations at first attempt. In such a situation Rule 5.2 standing by itself would have been possibly exposed to a challenge based on the ground of discrimination. It is legitimate to assume that the State Government having been informed of this position it acted in good faith to make suitable provision in the Rules so as to shut out any such challenge and to give fair and equal treatment to all students similarly situate. In such circumstances even if an amendment in the Rules is made which operates retrospectively in such a limited field no exception can possibly be taken. In my opinion having regard to these circumstances so far as the present case is concerned it cannot be successfully contended that retrospective operation if any of the impugned Rule violates the basis concept of the rule of law and that in that manner it violates Art. 14. Under the circumstances in my Page 93 of 96 HC-NIC Page 93 of 96 Created On Fri Sep 23 02:29:46 IST 2016 C/SCA/14873/2016 CAV JUDGMENT opinion even the third challenge has no merit."
22.4. The respondent Nos. 4 to 10 in past have surrendered their management seats since 2011 to the admission committee and such seats were considered as government seats for the purpose of admission in the MBBS course. Even Rule 3(3) of Rules of 2016 permits such surrender of seats to the admission committee. Similar rule was in existence since 2008. As discussed hereinabove, the admission process commenced on 07.09.2016 before which management seats are surrendered by respondent Nos. 4 to 10. Thus, in the facts of the present case, it cannot be said that the respondents have changed the rules after the game is started. Therefore, said submission is misconceived and is not accepted.
23. The learned Senior Counsel Mr. Shelat has placed reliance upon various decisions rendered by the Hon'ble Supreme Court on the aforesaid point. However, there is no dispute with regard to the proposition of law laid down by the Hon'ble Supreme Court in the said cases. However, in the facts of the present case, as discussed hereinabove, said decisions would not render any assistance to him.
24. We have also gone through the decisions relied on by learned counsel appearing for the Page 94 of 96 HC-NIC Page 94 of 96 Created On Fri Sep 23 02:29:46 IST 2016 C/SCA/14873/2016 CAV JUDGMENT petitioners on the aforesaid different contentions raised by them. However, in view of the aforesaid discussion and in the facts of the present case the said decisions would not be helpful to the learned counsel appearing for the petitioners.
25. In view of the discussion made hereinabove, we are of the considered opinion that Rule 3(3) of the Rules of 2016 is not in conflict with Section 10D of the Indian Medical Council Act or Act of 2007 or notification dated 21.12.2010 issued by Medical Council of India. The said rule is not framed with a view to overreach the orders passed by the Hon'ble Supreme Court, as alleged by the petitioners. The respondent Nos. 4 to 10 have surrendered their quota of management seats to the admission committee on 01.09.2016 i.e. prior to the commencement of the admission process which was started on commencement of counseling programme i.e. on 07.09.2016. Surrender of such seats by respondent Nos. 4 to 10 cannot be said to be a colourable exercise of powers, as alleged by the petitioners in the facts of the present case as recorded by us hereinabove. Rules of the game are not changed by the respondent authorities after the game is started, as alleged by the petitioners and the principle of legitimate Page 95 of 96 HC-NIC Page 95 of 96 Created On Fri Sep 23 02:29:46 IST 2016 C/SCA/14873/2016 CAV JUDGMENT expectation would not be attracted in the facts and circumstances of the present case, as recorded by us.
26. In view of the findings recorded by us, petitioners are not entitled to claim any reliefs as prayed for in the petitions. Accordingly, all the petitions are dismissed.
(R. SUBHASH REDDY, CJ) (VIPUL M. PANCHOLI, J.) Jani Page 96 of 96 HC-NIC Page 96 of 96 Created On Fri Sep 23 02:29:46 IST 2016