IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 1061 of 2004 For Approval and Signature: HON'BLE MR.JUSTICE K.M.MEHTA ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- MONPARA BRIJESHKUMAR VITHALBHAI Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 1061 of 2004 Mr. P.M. Thakkar, Senior Advocate, with MR PRADEEP PATEL for Petitioner No. 1-15 Miss. Mita S. Panchal, Assistant Government Pleader for Respondent No. 1-2 MR SP HASURKAR for Respondent No. 3 MR AR MAJMUDAR for Respondent No. 4 -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE K.M.MEHTA Date of decision: 06/07/2004 C.A.V. JUDGEMENT 1. Monpara Brijeshkumar Vithalbhai and others have filed this petition before this Court under Article 226 of the Constitution of India with a prayer that this Court may issue a writ, order or direction in the nature of mandamus quashing and setting aside the communication dated 8.8.2003 issued by the Director of Education, which is at Annexure "F" to the petition. By the impugned communication dated 8.8.2003, the Director stated that, as far as Rajkot Homeopathy Medical College, respondent No.4, is concerned, the admission given to the petitioners for the Academic Year 2002-2003 on NRI (Non-Resident Indian) seats or NRI sponsored seats is not as per the Government Regulations Nos. 1 and 2. In view of the same, the admission given by the Rajkot Homeopathy Medical College (hereinafter referred to as 'College') to the students is illegal and the College must inform the students accordingly. The petitioners have challenged the said action along with another Resolution issued by the Government of Gujarat on 7.12.1999. It is the case of the petitioners that the said Resolution is contrary to and inconsistent with the principles laid down by Honourable the Apex Court in T.M.A. Pai Foundation vs State of Karnataka reported in [2002] 8 SCC p.481. The petitioners have further prayed that this Court may direct the Registrar, Saurashtra University, respondent No.3, to enroll the petitioners as students of the Saurashtra University, Rajkot, to take their examination and declare the results of Bachelor of Homeopathy Medicine and Surgery [BHMS] Degree Course of the petitioners who are given admission in the College on NRI/NRI sponsored seats for the Academic Year 2002-2003. 2. The facts giving rise to the present writ petition are as under: 2.1 The petitioners are students in the age group of 18 to 19 years who on aspiring to pursue five and half years degree course in Homeopathy known as B.H.M.S., applied to Rajkot Homeopathy Medical College, Rajkot, to grant them admission on successfully clearing their 12th Standard Higher Secondary Certificate Examination. It is the case of the petitioners that the College is recognized by the Central Council of Homeopathy, New Delhi, and affiliated to the Saurashtra University, Rajkot. It is the case of the petitioners that the petitioners were admitted to the course on seats reserved for NRI or NRI sponsored candidates. The 1st year degree course in which the petitioners are admitted commenced from 18.11.2002 and out of its 5.1/2 years duration, period of over one year is already completed. The names of the petitioners are shown in the statement at Annexure "B" to the petition. It is the case of the petitioners that the petitioners have prosecuted their studies in the first year degree course and all of them have required number of days of attendance. The College forwarded the names of the petitioners to the University for the purpose of enrolment with the University. The University has refused to enroll the names of the petitioners saying that the admission given to the petitioners is not as per the Rules and the Government communication dated 8.8.2003. 3 When the matter was placed before this Court for hearing, the learned advocate for the petitioners has relied upon the judgment of the Apex Court in the case of T.M.A. Pai Foundation (supra) and also the judgment of the Apex Court in the case of Islamic Academy of Education and another vs. State of Karnataka and others, reported in (2003) 6 Supreme Court Cases 697, and also the judgment and order dated 21.4.2003 passed by this Court (Coram: A.R. Dave, J.), in Special Civil Application No.4687 of 2003, in the case of Soni R. Ashwinbhai vs. State of Gujarat, wherein, in identical situtation, the Court (Coram: A.R. Dave, J.) had admitted the matter and granted interim relief. Relying upon the same, this Court has admitted the matter and granted interim relief. 3.1. This Court passed orders from time to time, namely, orders dated 27.1.2004, 29.1.2004, 26.2.2004, and other orders, by which the petitioners have been protected during pendency of the writ petition. 4. The petitioners have made following submissions and invited the Court's attention to certain salient features in this behalf. 4.1 The Government of Gujarat pursuant to the judgment of the Apex Court in the case of Unni Krishnan J.P. vs. State of AP, reported in AIR 1993 Supreme Court 2178, decided to regulate the procedure of admission by appointing three member committee consisting of (i) Principal of the College concerned (ii) Managing Trustee of the Trust running the college and (iii) officer appointed by the State Government. The advertisement used to be given in the newspaper inviting application from all the students of science stream who are meeting with the eligibility criteria fixed by the Central Council of Homeopathy, New Delhi, being the apex body authorized to lay down the eligibility criteria for admission in the first year degree course in Homeopathy Science. 4.2. After release of the advertisement and receipt of application forms from the 12th pass students, provisional admission as per eligibility used to be given to the students in respective self finance Homeopathy Colleges subject to the approval of the three member committee for each college. It is the case of the petitioners that the constitution of the committee was delayed every year due to late nomination of a member by the State Government. However, the fact remains that every year three member committee in each college used to finalise the admission given in Homeopathy Medical College according to the merit of marks obtained by each student. 4.3 Learned advocate for the petitioners submitted that a Public Interest Litigation, being Special Civil Application No.4087 of 1997, in the case of National Students Union of India vs. State of Gujarat, was filed before this Court. In that case, the Division Bench of this Court (Coram: the Acting CJ R.A. Mehta and Mr. Justice N.N. Mathur), by order dated 8.7.1997, in paragraph 4, directed that the admissions will be granted only by the Committee comprising of three members as appointed and only the candidates selected by the said Committee shall be admitted. The learned advocate for the petitioners submitted that this order was confined only to 85% of seats and not for 15% NRI seats as per the order of this Court (Coram: K.R.Vyas, J.). It is further submitted that a Government Resolution was also issued on 7.12.1999, wherein, a Committee of three members was appointed in this behalf. PROCEDURE OF GIVING ADMISSION ON NRI SEATS IN EACH OF THE HOMEOPATHY MEDICAL COLLEGES. 5. The petitioners submit that, until 1998, no management of any self finance college thought it necessary to fill up few seats from amongst NRI or NRI sponsored students charging different amount of fee as per the decision of the Supreme Court. It is the case of the petitioners that even otherwise so many seats used to remain vacant on charging regular fee prescribed by the State Government for free seats and payment seats. However, a petition came to be filed by the Homeopathy College Management being Special Civil Application No.9942 of 1998 praying before this Court to direct the respondent-State Government to allow the management of Homeopathy College to fill up 15% seats of total intake capacity as was done in case of other faculties in higher education pursuant to the decision of the Apex Court in the case of Unni Krishnan (supra) and further interim orders passed in the case of T.M.A. Pai Foundation (supra). 5.1 The petitioners submit that, accordingly, this Court (Coram: K.R. Vyas, J.) passed an order on 15.12.1998 in Special Civil Application No.9942 of 1998 in the case of Parul Arya Seva Mandli vs. State of Gujarat. The learned single Judge of this Court, relying upon the judgment of the Apex Court in the case of Unni Krishnan (supra) and further interim orders passed by the Apex Court on 14.5.1993 in this behalf, has observed in page 3 as under: 5.1.(i) "In view of this direction, it is clear that the management of the institution is required to admit the NRI students by fixing the quota for that at 15%.There is no dispute to the fact that the main petition is pending in the Supreme Court and even for the subsequent year also, the management have complied with the direction of the Supreme Court by fixing 15% quota to the NRI students. In this view of the matter, the petitioner is justified in making reservation of 15% seats for NRI students or NRI Sponsored seats in the colleges run by the petitioner." 5.2 After referring to the judgment of the Supreme Court in Unni Krishnan (supra) and also above judgment of this Court in other matters, the State Government issued a G.R. dated 7.12.1999 stipulating two conditions for grant of admission by the college management on NRI seats, namely: (1) Management will be entitled to charge only US 2000 (two thousand) dollars from the student seeking admission on NRI seat and (2) the decision to give admission on NRI or NRI sponsored student will be taken by three member committee consisting of (a) Principal of the College concerned, (b) Trustee of the Trust and (c) Director of the Indian System of Medicine and Homeopathy. A copy of the Resolution is at Annexure "C" to the petition. 5.3 The petitioners submit that, in case of giving admission to the students on NRI seats, an advertisement was given in the newspaper by the respective management inviting application from students willing to take admission on NRI or NRI sponsored seats. The college managements used to give provisional admission to the students subject to approval of the three member committee. In no case, where admissions were given on NRI seats, the committee could be constituted before one year to finalise admissions. It is the case of the petitioners that delay used to occur due to late nomination of a member by the State Government. However, the fact remains that, all the admissions given in Homeopathy College until 2001 on NRI or NRI sponsored seats were sanctioned by the three member committee. 5.4 The petitioners submit that because of the orders passed by this Court in two writ petitions under different subject matters, from the year 1999, all Homeopathy Colleges were included under centralized admission system for the purpose of giving admission in the Homeopathy Medical Colleges. The State Government decided to keep 50% seats as free seats and 50% seats as payment seats out of total seats sanctioned by the Central Council of Homeopathy for giving admission in the first year degree course. The State Government, however, continued to allot every Homeopathy College 15% seats out of 50% seats earmarked as payment seats depending upon the intake capacity of each college. The permission was granted to the Homeopathy Colleges as per GR dated 7.12.1999 for filling up 15% seats from NRI or NRI sponsored students and the same was extended till further order vide GR dated 3.6.2000. 5.5 The petitioners submit that Homeopathy Colleges were required to follow same procedure as prescribed in GR dated 7.12.1999 for the purpose of giving admission on NRI seats as per the eligibility criteria fixed by the State Government. After adoption of centralized admission system for the purpose of giving admission to the students in Homeopathy Colleges along with other faculties, the college management used to give advertisement in newspaper inviting applications from the students seeking admission on NRI or NRI sponsored seats. In the present case also, the college management gave advertisement in the newspaper for giving admission on NRI or NRI sponsored seats, and, pursuant thereto, the petitioners applied for admission in the college and the same was granted to them. 5.6 The petitioners submit that prior to completion of one year or at time more, that the Committee could be constituted to finalise the admission given on NRI seats. The delay if any in constitution of three member committee was due to inaction on the part of the State Government to nominate one member for the committee of three members according to condition No.2 of GR dated 7.12.1999. However, the fact remains that even after including the Homeopathy Colleges under centralized admission system, the three member committee sanctioned and finalized all provisional admissions given on NRI seats by respective college managements for the purpose of enrolment of the students with the concerned University. 5.7 The petitioners submit that after 1999 and until 2001, 85% seats of each college were filled under centralized admissions system and 15% seats were filled by the management as NRI quota seats and that, Homeopathy College in which the petitioners are given admission was included in the scheme. The State Government has not framed any separate rules for giving admission to the students in the faculty of Homeopathy Science and, hence, as per the resolution of the Government, the admission process was undertaken. 5.8 The petitioners submit that the admission procedure for giving admission on 85 seats (as intake capacity of the college in which the petitioners are given admission is 100 seats) started somewhere in the month of September 2002 and completed in the month of January 2003. On remaining 15% NRI or NRI sponsored seats, the petitioners took admission in the Rajkot Homeopathy Medical College and, since then, the petitioners are regularly prosecuting their studies. 5.9 The petitioners submit that, as per the prevalent practice in each Homeopathy Medical College for taking decision to give admission on NRI seats, a Committee was required to be constituted for approving the provisional admission given by the college. The college management forwarded a list containing the names of the petitioners who were given admission on NRI seats, as required by the State Government by letter dated 4.12.2002. A copy of the said letter dated 4.12.2002 is at Annexure "D" to the petition. Again by letter dated 17.11.2003, the Director of Education requested the College to forward the list as per the format attached to the said letter. Pursuant to that, the Principal of the college also addressed a letter to the Director of Education dated 21.11.2003 giving details of admission for the year 2002-03. A copy of the said letter dated 21.11.2002 is at Annexure "E" to the petition. 5.10 The petitioners submit that, in view of these correspondence, the matter was closely pursued by the college management to finalise the admission given to the petitioners. Neither name nor member to represent the State Government on the committee as member according to GR of 1999 was conveyed to the Institution and the issue remained unfinalised. 5.11 The petitioners were shocked and surprised when the Director of Education addressed communication dated 8.8.2003 and directed the College to communicate the decision to the petitioners. It may be noted that, by the said communication, the State Government took decision not to approve admission given to the petitioners. The concerned Saurashtra University was also asked not to enrol the names of the petitioners with the University and, accordingly, the University has also refused to enroll the name of the petitioners with the University. A copy of the said letter dated 8.8.2003 is at Annexure "F" to the petition. Being aggrieved by the impugned order/communication dated 8.8.2003, Annexure "F", the petitioners have filed the present petition before this Court challenging the said communication. 6. The aforesaid action of the State Government has been challenged by the petitioners on various grounds. It is the case of the petitioners that the impugned decision is based on the earlier resolution dated 7.12.1999 as well as 5.9.2002. It may be noted that 7.12.1999 resolution specifically refers to the judgment of the Apex Court in the case of Unni Krishnan (supra) as well as the judgment of this Court in Special Civil Application No.9942 of 1998 in the case of Parul Arya Seva Mandli (supra) which I have referred earlier in this behalf. It is the case of the petitioners that each college imparting higher education in the field of science and technology is provided 15% seats of its total intake capacity. The college of the petitioners was sanctioned 100 seats for the year 2002-2003 by the Central Council of Homeopathy, New Delhi, and, accordingly, the petitioners' college was entitled to fill up 15 seats on NRI or NRI sponsored seats. 6.1 The petitioners submitted that the decision of the Apex Court in the case of Unni Krishnan (supra) provides fee structure as well as admission procedure in private recognized/affiliated educational institutions. The said decision also provides principles of right to education, right to establish educational institutions and impart education and right to recognition/affiliation. The decision of the Apex Court also indicated that in the professional colleges 50% seats should be 'free seats' to be filled in on merit by the Government or the University and remaining 50% seats (payment seats) for candidates willing to pay the higher prescribed fee, allotment being on inter se merit. No quota for management/promoters is to be kept. The competent authority alone should conduct all admissions/common entrance examination for entire State. 6.2 The petitioners submitted that the ratio-decindi of the aforesaid judgment has been overruled by the eleven-Judge Bench of the Apex Court in the case of T.M.A. Pai Foundation (supra). The Apex Court in paragraph 36 observed as under: 6.2.(i) "36. The private unaided educational institutions impart education, and that cannot be the reason to take away their choice in matters, inter alia, of selection of students and fixation of fees. Affiliation and recognition has to be available to every institution that fulfils the conditions for grant of such affiliation and recognition. The private institutions are right in submitting that it is not open to the Court to insist that statutory authorities should impose the terms of the scheme as a condition for grant of affiliation or recognition; this completely destroys the institutional autonomy and the very objective of establishment of the institution." 6.2.A In paragraph 45, the Apex Court, in terms, did not approve the decision in Unni Krishnan case relating to the grant of admission and the fixing of the fee. In paragraphs 68 and 69, the Apex Court observed as under: 6.2.A(i) "68. It would be unfair to apply the same rules and regulations regulating admission to both aided and unaided professional institutions. It must be borne in mind that unaided professional institutions are entitled to autonomy in their administration 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 non-minority unaided and professional colleges. The same principles may be applied to other non-professional but unaided educational institutions viz. graduation and post graduation non-professional colleges or institutes. 6.2.A.(ii) 69. In such professional unaided institution, the management will have the right to select teachers as per the qualifications and eligibility conditions laid down by the State/University subject to adoption of a rational procedure of selection. A rational fee structure should be adopted by the management, which would not be entitled to charge a capitation fee. Appropriate machinery can be devised by the State or university to ensure that no capitation fee is charged and that there is no profiteering, though a reasonable surplus for the furtherance of education is permissible. Conditions granting recognition or affiliation can broadly cover academic and educational matters including the welfare of students and teachers." 6.3 The aforesaid judgment in the case of T.M.A. Pai Foundation (supra) has been followed and the same principle is reiterated by the Apex Court in the case of Islamic Academy of Education and another vs. State of Karnataka and others, reported in (2003) 6 Supreme Court Cases 697. The learned advocate for the petitioners has relied upon paragraph 21 (page 730), paragraph 70 (page 749), paragraph 4(ii) (page 750) [wherein the Apex Court has further observed that the decision in Unni Krishnan has been overruled], paragraph 73 (page 751), paragraph 86 (page 756), and paragraph 120 (page 764). 6.3.A. The learned counsel has also referred to paragraph 124 (page 765), paragraph 164 (page 775) [which provides for common entrance test and percentage of seats], paragraph 178 (page 779), paragraph 196 (page 783) [which provides that merit and merit alone should be the basis of selection for the candidates) and paragraph 218 (page 788) [wherein it is specifically stated that in T.M.A. Pai Foundation, this Court in no uncertain terms said that merit would be the first criterion for imparting professional education. It must be given full effect with the aid of these additional reasons). 6.4 In view of the aforesaid judgments of the Apex Court in the cases of T.M.A. Pai Foundation (supra) and Islamic Academy of Education (supra), the petitioners submitted that the judgment of the Apex Court in the case of Unni Krishnan (supra) is no longer good law. The petitioners, therefore, submitted that the basis of the resolution is the judgment of Unni Krishnan and, once that judgment has been overruled, the Government cannot now insist upon the enforcement of the said circular in this behalf. 6.4.A. The learned counsel has submitted that the impugned communication/order dated 8.8.2003 is passed without giving any opportunity of hearing to the petitioners who are vitally affected persons. In support of the same, the petitioners relied upon the judgment of the Supreme Court in the case of D.K.Yadav vs. J.M. A. Industries Limited, reported in 1993 (3) SCC 259 and the principle laid down therein has been reiterated in other decisions in the case of Bhagwan Shukla vs. Union of India and others, reported in AIR 1994 SC 2480, in the case of State Bank of Patiala vs. K. Sharma, reported in AIR 1996 SC 1669, in the case of Canara Bank and others vs. Debasis Das and others, reported in (2003) 4 SCC 557, and in the case of Union of India and another vs. GTC Industries Limited, Mumbai, reported in (2003) 5 SCC 106. 6.4.B The Supreme Court in the case of D.K. Yadav (supra), in paragraph 12, page 269, observed as under: 6.4.B(i) "12. Therefore, fair play in action requires that the procedure adopted must be just, fair and reasonable.