WP(C) No. 2763/2008 Page 1 of 36 * IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment reserved on: 18.09.2008 + Judgment delivered on: 26.09.2008 %(1) W.P.(C) 2763/2008 KRISHNA ADIT AGARWAL ..... Petitioner Through: Dr. Aman Hingorani, Advocate versus GURU GOBIND SINGH INDRAPRASTHA UNIVERSITY & ANR. ..... Respondents Through: Mr. G.D. Goel & Mr. Sanjiv Goel, Advocates for respondent No.1. Mr. Vikas Singh, ASG with Mr. R. Balasubramaniam, Advocate for respondent no.2. Mr. Najmi Waziri, Advocate for respondent No.3. (2) W.P. (C) No.3313/2008 INDIAN MEDICAL ASSOCIATION & ANOTHER ..... Petitioners Through: Dr. Aman Hingorani, Advocate versus UNION OF INDIA & ORS. ..... Respondents Through: Mr. Chetan Chawla, Advocate for respondent no.1. Mr. Maninder Singh with Mr. T. Singh, Advocates for respondent no.2. Mr. G.D. Goel & Mr. Sanjiv Goel, Advocates for respondent No.3. Mr. Vikas Singh, ASG with Mr. R. Balasubramaniam, Advocate for respondent no.4 & 5. Mr. Najmi Waziri, Advocate for respondent No.6. (3) W.P. (C) No.4454/2008 ABHISHEK GUPTA & ORS. .... Petitioners Through: Dr. Aman Hingorani, Advocate versus WP(C) No. 2763/2008 Page 2 of 36 GURU GOBIND SINGH INDRAPRASTHA UNIVERSITY & ORS. ..... Respondents Through: Mr. G.D. Goel & Mr. Sanjiv Goel, Advocates for respondent No.1. Mr. Vikas Singh, ASG with Mr. R. Balasubramaniam, Advocate for respondent no.2 & 3. Mr. Najmi Waziri, Advocate for respondent No.4. (4) W.P.(C) 6484/2008 KUMAR HIMANSHU .... Petitioner Through: Dr. Aman Hingorani, Advocate versus GURU GOBIND SINGH INDRAPRASTHA UNIVERSITY & ORS. ..... Respondents Through: Mr. G.D. Goel & Mr. Sanjiv Goel, Advocates for respondent No.1. Mr. Vikas Singh, ASG with Mr. R. Balasubramaniam, Advocate for respondent no.2 & 3. Mr. Najmi Waziri, Advocate for respondent No.4. CORAM: HON'BLE MR. JUSTICE VIPIN SANGHI 1. Whether the Reporters of local papers Yes may be allowed to see the judgment? 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be Yes reported in the Digest? VIPIN SANGHI, J. 1. This batch of writ petitions under Article 226 of the Constitution of India (except WP(C) No.3313/2008 filed by Indian Medical Association and Anr.) primarily seeks to challenge the allocation of all the 100 seats for the wards of army personnel in the respondent No.2 institute, viz. Army College of Medical Science, Delhi WP(C) No. 2763/2008 Page 3 of 36 Cantonment, Delhi (hereinafter referred to as ACMS), which has been set up for offering the MBBS degree course. WP(C) No.3313/2008 has been filed to restrain the setting up of the Respondent ACMS without the approval of the Central Government under Section 10A of the Medical Council of India Act. It also seeks a mandamus to require the Respondent Nos.1 & 2 i.e. the Union of India and the MCI to require the ACMS to first fulfill the qualifying criteria, before it is granted the aforesaid permission. A mandamus is also sought against the Respondent Guru Gobind Singh Indraprastha University to withdraw the affiliation granted to ACMS unless it complies with the conditions therefor. I shall be dealing with the facts as appearing in W.P.(C) No.2763/2008 filed by Krishna Adit Agarwal. The petitioner Krishna Adit Agarwal filed the present writ petition being WP(C) No.2763/2008 in March/ April, 2008 with the grievance that he was not being permitted to submit the application form for admission to the ACMS for MBBS-PGME 2008-09 and he was not being provided with the prospectus by ACMS on the ground that he is not eligible as he is not a ward of an army personnel. 2. During the pendency of the aforesaid writ petitions the Govt. of NCT of Delhi took a Cabinet decision bearing No.1422 dated 14.7.2008 which was circulated vide file No.F.3/3/2004-GAD/CN-2868- 2879, whereby the Cabinet of the Govt. of NCT of Delhi sought to approve 100% admission for the wards of army personnel in the ACMS. The Govt. of NCT of Delhi followed up the aforesaid Cabinet decision by a notification dated 14.8.2008 bearing No.DHE- 4(33)/2008-09 purportedly issued in exercise of powers conferred by Clause(b) of sub-section (1) of Section 12 of the “The Delhi WP(C) No. 2763/2008 Page 4 of 36 Professional Colleges OR Institutions (Prohibition of Capitation Fee, Regulation Of Admission, Fixation Of Non Exploitative Fees And Other Measures To Ensure Equity And Excellence) Act, 2007” (referred as to “Delhi Act 80 of 2007” I may note that whereas in the Gazette Notification, the Act is numbered as “80 of 2007”, in the Notification dated 29.05.2007 placed on record, the same is numbered as “8 of 2007”). By the said notification, the Lieutenant Governor of NCT of Delhi has permitted the ACMS to allocate 100% seats in the said college for admission to the wards of army personnel in accordance with the policy followed by the Indian Army. 3. To challenge the aforesaid Cabinet Decision and the notification dated 14.08.2008, the petitioner sought the amendment of the writ petition by moving the CM No.12473/2008 in WP(C) No.2763/2008. This application was allowed by the Court on 8.9.2008. Since the issue is purely legal, no further counter affidavit has been filed by the respondents to the amended writ petition. Counter affidavits had been filed to the unamended writ petition by respondent No.1 Guru Gobind Singh Indraprastha University (hereinafter referred to as the GGSIPU) and by respondent No.2 ACMS. 4. Learned counsel for the petitioner submits that ACMS is an institution established entirely by the Central Government. The said institution has been leased land by the Government of India in Delhi Cantonment area, which is Government property. Moreover the hospital to which the ACMS is attached is the base hospital run by the WP(C) No. 2763/2008 Page 5 of 36 Army and is not owned or run by Army Welfare Education Society (AWES), which has set up ACMS. It is argued that it cannot be said that the ACMS is an unaided professional institution. It is a wholly Government funded enterprise. Therefore, it is a Central Educational Institution to which the Delhi Act 80 of 2007 is not applicable, since it cannot be said to be an unaided institution. The Delhi Act 80 of 2007, as per Section 2, applies to “unaided institutions” affiliated to a University imparting education in degree, diploma and certificate courses. “Institution” is defined to mean College or Institution aided or unaided, affiliated to a university imparting education, inter alia, in the discipline of medicine. 5. The alternative contention of the petitioner is that the allocation of 100% seats in the ACMS for wards of army personnel, ex- army personnel and war widows is in violation of Section 6 of the Guru Gobind Singh Indraprastha University Act (hereinafter referred to as the 1998 Act) and Article 15 of the Constitution of India. It is further submitted that Section 6(1) of the 1998 Act mandates that the University will be open to all persons. Section 6(2) permits the respondent University to make special provisions, inter alia, for admission of women, or of persons belonging to the weaker sections of the society and in particular of persons belonging to Scheduled Castes and Scheduled Tribes. Statute 24 of the respondent University deals with the aspect relating to the conditions under which colleges and institutions may be admitted to the privileges of the University and the conditions under which such privileges may be withdrawn. Clause 3 of the said Statute lays down the essential conditions of affiliation of colleges and institutions. It, inter alia, states that “No WP(C) No. 2763/2008 Page 6 of 36 college or institution shall be admitted to the privileges of the University unless” inter alia, “it undertakes to adhere to the provisions of the Act, the Statutes, the ordinances and the regulations of the University and to comply with the standing orders, directions and instructions of the University.” The petitioner submits that Ordinance-30 of the respondent University has been framed in keeping in view Article 15(5) of the Constitution of India read with Section 6(2) of the 1998 Act for making special provisions for advancement of weaker sections of the society, and in particular of persons belonging to the Scheduled Castes and the Scheduled Tribes by making special provision for their admission to self financing private institutions affiliated to respondent University. It, inter alia, states: - “1. Reservation of seats and procedure of filing the same in all the self-financing private institutions affiliated with Guro Gobind Singh Indraprastha University in respect of Delhi as well as Outside Delhi Category candidates would be as follows: (i) Scheduled Castes and Scheduled Tribes ……………….. (ii) Reservation for Defence Category: Five percent of seats are reserved for Defence Category in the following order of priority:- a) Widows/Wards of Defence personnel killed in action. b) Wards of serving Defence personnel and ex- servicemen disabled in action. c) Widows/wards of Defence personnel who died in peace-time with death attributable to military service. d) Wards of Defence Personnel disabled in peace- time with disability attributable to military service. WP(C) No. 2763/2008 Page 7 of 36 e) Wards of Defence ex-servicemen and serving personnel who are in receipt of Gallantry Award. (iii) Physically Handicapped …………………………………. (iv) Supernumerary Seats for Kashmiri Migrants ………………………………….. 2. This procedure for filling up of the reserved category seats would be the same as notified by the University in the Admission Brochures from time to time. 3. This Ordinance would be applicable on the self- financing private institutions other than the minority institutions referred to in Clause (1) of Article 30 of Constitution of India. 4. For reservations in the Government Institutions, the policy of the Government of the NCT of Delhi already in vogue will continue to apply. 5. This issues with the approval of the Competent Authority. 6. This ordinance has come into force with effect from the date of approval by the Board of the Management.” (emphasis supplied) 6. It is, therefore, argued by learned counsel for the petitioner that the respondent ACMS having sought affiliation with the respondent GGSIP University is bound to adhere to the provisions of 1998 Act, its Statutes and Ordinances which, inter alia, prescribed reservation for defence category only to the extent of 5% seats. The reservation of 100% seats of ACMS for the wards of serving and retired army personnel and war widows, and the resultant denial of admission to all other category of candidates is in the teeth of the 1998 Act, Statute 24 and Ordinance 30, as aforesaid. The petitions have relied upon various other decisions, reference whereto is made later in the judgment. WP(C) No. 2763/2008 Page 8 of 36 7. The stand of Respondent No.2 i.e. ACMS is that it has been established by the Army Welfare Education Society (AWES), a registered Society with the Registrar of Society, Delhi under the Societies Registration Act, 1860. The objective of AWES is to cater to the educational needs of the wards of serving army personnel, ex army personnel and war widows of the Army. There are about 11.3 lakhs serving army personnel and about 20 lakhs ex army personnel and war widows in the country. AWES is running approximately 123 army school and 12 professional colleges as a welfare measure for the wards of army personnel as tribute for the sacrifices and service being rendered by them for the nation. The stand of respondent No.2 is that the terms and conditions of service of army personnel are very harsh. Consequently army service is not attracting adequate talent for the protection of the country. The Indian Army is facing acute shortage of manpower which is adversely affecting its operational preparedness. It is stated that one of the core problems is that wards of army personnel suffer serious disadvantages in pursuing education for a number of reasons. Personnel serving in field/border areas cannot keep their families with them due to security reasons and lack of accommodation and education facilities, and at the places where the families are provided accommodation, educational facilities that are available may not be upto the desired standards. Consequently, service conditions of the parents-like deployment at the border; outposts in remote areas; having no or primitive educational facilities; tenure based postings affecting continuity; lack of married accommodation at military stations, and wherever available, lack of adequate facilities, results in frequent change of schools with WP(C) No. 2763/2008 Page 9 of 36 different medium of instructions for such children, leading to adjustment and other related problems, and; lack of supervision and guidance from the fathers, lead to the children of the army personnel/ex army personnel to suffer from disadvantages compared to those coming from civil background. Additionally, some of the States have laid down conditions such as number of years of studying in the State and domicile requirements as a pre condition for appearing in entrance examination for professional courses in the States concerned. For the aforesaid reasons children of the army personnel cannot compete with civilian children for admission to professional courses since they do not enjoy a level playing field when it comes to competition with their civilian counter parts. Since the education of children of army personnel is vital in maintaining the morale of army personnel, AWES was set up to raise and administer its own educational institutions for wards of serving army personnel, ex servicemen and war widows. 8. Respondent No.2 further submits that the Supreme Court has upheld the reservation in favour of wards of ex defence personnel in D.N. Chanchala vs. State of Mysore & Ors. 1971(2) SCC 293. The submission of respondent No.2 is that there is no medical college for the wards of army personnel in the country and seats reserved in some of the medical colleges are woefully inadequate to meet the requirements of approximately 60 lakh army children. So as to attract adequate talent to join the army, AWES has opened 12 professional colleges for the wards of army personnel. In line with the aforesaid decision, it was decided to establish Army College of Medical Sciences at New Delhi. It is submitted that respondent ACMS has WP(C) No. 2763/2008 Page 10 of 36 been set up through the Army Welfare Funds which are regimental funds and are not public funds. No public or Government fund or grants are used in running these educational institutions. The revenue expenditure in establishing and running the army professional colleges are made through regimental welfare funds in addition to tuition fee payable by the students. The management body of AWES comprises of senior serving army officers in ex officio and honorary basis. It is submitted that AWES and its educational institutions do not receive any financial aid or grant from the Central or State Governments and that AWES is a purely unaided educational society. There is no management quota in army professional colleges and admissions are made solely on the basis of merit, drawn on the basis of the written admission test. Fee structure is not aimed at commercial exploitation and there is total transparency in admission of eligible wards. 9. It is also argued that the purpose of establishing the respondent Institution would be wholly defeated if the seats are thrown open to the civilian candidates who are equipped to avail of all other opportunities as compared to wards of army personnel. 10. It is further submitted that the ACMS being an unaided professional college is entitled to maintain complete autonomy in its administration, which would include admission of students. It claims an unfettered fundamental right to choose students to be granted admission, provided the admission procedure is fair, transparent and non-exploitative. It is further argued that the restrictions on the source of selection to the wards of army personnel, ex army personnel WP(C) No. 2763/2008 Page 11 of 36 and war widows does not amount to reservation. It does not amount to discrimination against any citizen on the ground of religion, race or caste or sex or place of birth. Wards of all army personnel, ex- servicemen and war widows constitute a special class who, because of the extraordinary difficulties that they face, unlike their civilian counter parts, are in a disadvantaged position so far as their education is concerned and they are, therefore, entitled to be treated differently from the wards of civilians. 11. The respondent GGSIPU in its counter affidavit submits that for establishment of a medical college in NCT of Delhi, the institution requires permission under Section 10A of the Medical Council of India Act. It also requires an approval from the Medical Council of India and a No Objection Certificate from the Government of NCT of Delhi. The respondent GGSIPU further states that admission and fee etc in the unaided professional institutions in NCT of Delhi is regulated by the Delhi Act No.80 of 2007. The said Act was passed by Govt. of NCT of Delhi after amendment in Article 15 of the Constitution of India vide Constitution (93rd Amendment) Act, 2005 dated 28.1.2006. In the counter affidavit of the said University dated 17.5.2008, the respondent University stated that ACMS had not been granted affiliation by it till the filing of such affidavit. However, during the pendency of the writ petitions the respondent University has granted provisional affiliation to the ACMS of Medical Sciences vide communication dated 6.8.2008, which has been placed on record by the respondent University upon the Court requiring its production, after the judgment was reserved. WP(C) No. 2763/2008 Page 12 of 36 12. Therefore, it needs to be firstly ascertained whether ACMS can be said to be an “aided institution” or whether it is an “unaided institution”. The expression “Unaided Institution” has been defined in Delhi Act 80 of 2007. It reads ““unaided institution” means an institution other than an aided institution.” “Aided Institution” is defined to mean “an institution receiving recurring financial aid or grant-in-aid from any State, Union Territory, Central Government or the University Grants Commission, and includes a minority institution as may be specified by the Government.” In support of his submissions that ACMS is an aided, and not an unaided institution, the petitioner submits that the land for setting up the ACMS has been leased by the Ministry of Defence, Government of India. The Base Hospital is also not a hospital of the AWES. It is the Base Hospital of the Army. On the other hand, the learned ASG Mr. Vikas Singh has urged that AWES has been held as not being “a State” and that it has been held that the funds of the Army Welfare Fund are not government/public funds. He relies on Asha Vij & Ors. vs. the Chief of the Army Staff &Ors. 2002 (VI) AD (Delhi) 109 and Union of India & Anr. vs. Chotelal & Ors. JT 1998 (8) SCC 497. A similar body, namely, Army Welfare Housing Organisation (AWHO) has also been held not to be an instrumentality of the State in N.C. Rastogi v. Union of India AIR 1986 Delhi 128. He submits that the Base hospital of the army is being utilised by the ACMS only till such time as the hospital of the said institution is set up. 13. In my view, considering the definitions aforesaid of the expressions “aided institution” and “unaided institution” and the aforesaid decisions of the various courts including this Court, WP(C) No. 2763/2008 Page 13 of 36 whereby it has been held that AWES is not an instrumentality of the State and that the regimental funds, which have been used for the purpose of setting up, and for the purpose of meeting the recurring expenses of ACMS, do not constitute government/public funds, it cannot be said that ACMS is an aided institution. To be classified as an aided institution, I would assume that an overwhelming percentage of the day to day recurring running and maintenance expenses would have to be borne by the Government on a regular basis. That is how even an “aided school” is understood under the Delhi School Education Act. The petitioner has not produced any material on record to show that there is any commitment made by the Government to support the ACMS on a regular and recurring basis to meet a large percentage of its day to day running and maintenance expenses. Merely because, for the present, the ACMS is using the base hospital of the army for the purposes of clinical experience and education of the medical students, it does not mean that it is receiving any “aid”. So far as the land on which the ACMS has been set up is concerned, the same belongs to the Government. The same has been leased out to AWES initially for a period of 30 years, which could be raised to 99 years. Even other private unaided educational institutions have been allotted/leased land for setting up the institutions in the past by the Government (L&DO) and the DDA in Delhi. Merely because the same is paid for by such institution, does not make a difference. I, therefore, reject the submission of learned counsel for the petitioner that ACMS can be said to be an “aided institution” and not an “unaided institution”. WP(C) No. 2763/2008 Page 14 of 36 14. The fall out of the aforesaid finding is that the respondent institute is governed by the Delhi Act No.80 of 2007. Section 12 of the Said Act is relevant and the same reads as follows:- “12. Allocation and reservation of seats- (1) In every institution, except the minority institution- (a) subject to the provisions of this Act, ten per cent of the total seats in an unaided institution shall be allocated as management seats; (b) eighty five per cent of the total seats, except the management seats, shall be allocated for Delhi students and the remaining fifteen per cent seas for the outside Delhi students or such other allocation as the Government may by notification in the Official Gazette, direct; (c) supernumerary sets for non-resident Indians and any other category shall be as may be prescribed. (2) In the seats mentioned in sub-section (1), an institution shall reserve- (a) seventeen per cent seats for the candidates belonging to the Scheduled Castes category, one percent seats for the candidates belonging to the Scheduled Tribes category and such percentage of seats, for any other category including Other Backward Classes as may be prescribed; (b) for seats not mentioned as allocated for Delhi students in sub-section (1), fifteen per cent seats for candidates belonging to the Scheduled Castes category, seven and a half per cent seats for the candidates belonging to the Scheduled Tribes category and such percentage of seats, for any other category as may be prescribed. (c) subject to clause (a) and clause (b), three per cent seats for person with disabilities as provided in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (1 of 1996) and, such percentage of seats for the wards of defence personnel and any other category, as may be prescribed.” WP(C) No. 2763/2008 Page 15 of 36 15. The Govt. of NCT of Delhi in exercise of powers conferred by Section 23 of the Delhi Act 80 of 2007 framed “The Delhi Professional Colleges or Institutions (Prohibition of Capitation Fee, Regulation of Admission, Fixation of Non-Exploitative Fee and Other Measures to Ensure Equity and Excellence) Rule, 2007 (hereinafter referred to as the said Rules). Rule 8 of the said Rules deals with the allotment of seats. In so far as it is relevant states as follows: “8. Allotment of seats – (1) Allotment of seats in an un- aided professional college or institution shall be made college or institution-wise for each course. (2) Every institution other than a minority institution, shall provide for seats in respect of management quota, wards of defence personnel, persons with disability and others in the manner as described below:- (a) …… ………… (b) Wards of Defence Personnel – Five percent of the seats under each programme of study shall be reserved for widows/wards of personnel of Armed Forces in the order prescribed by the Rajya Sainik Board from time to time.”(emphasis supplied). 16. The submission of Dr. Hingorani, learned counsel for the petitioner