upa 1 wp5575-10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 5575 OF 2010 ALONG WITH WRIT PETITION NO. 6857 OF 2010 WRIT PETITION NO. 5575 OF 2010 Neha Rajendra Panchal and others ).. Petitioners Versus Union of India and others ).. Respondents ALONG WITH WRIT PETITION NO. 6857 OF 2010 Raji Rajan Pillai and others ).. Petitioners Versus Union of India and others ).. Respondents Mr. V.M. Thorat a/w Mrs.Neeta Masurkar and Mrs.Minal Pankar for the Petitioners. Mr. A.J. Rana, Senior Advocate, with Mr. S.S. Deshmukh for Respondent Nos.3 and 4. Mr. M.P.S. Rao, Senior Advocate, with Mr.Sandeep R. Waghmare for Intervenors. CORAM : MOHIT S. SHAH, C.J. AND DR. D.Y. CHANDRACHUD, J. Tuesday, August 31, 2010 upa 2 wp5575-10 P. C. : Rule. The learned counsel for the contesting respondents waived service. On the request of the learned counsel and by consent, the petitions have been taken up for hearing and final disposal. 2. Six petitioners in these two Writ Petitions have challenged the order dated 14 July 2010 of the administration of Dadra & Nagar Haveli (Union Territory-Department of Education) Silvassa amending the rules for admission to the MBBS course more particularly for the reserved seats allotted to the Union Territory by the Government of India and the States. 3. Since the Union Territory does not have a medical college of its own, seats are reserved for students passing out the qualifying examination from schools situate in Dadra & Nagar Haveli. The seats are reserved in medical colleges all over the country. In all eight seats are reserved as per the impugned order. The consequence of the impugned order is that for the ensuing academic year five out of the eight seats are allotted to students who have passed their qualifying examination from the Gujarat Higher Secondary School Examination Board and three seats are allotted to students who have passed out the qualifying examination from the Central Board for Secondary Education (CBSE), New Delhi. The amendment to the rules is by inserting the following provisions providing for quota to the two streams of students :- “(II) The following paras in Rule (3), Mode of Selection be inserted before sub-rule 1 i.e. between 3 & 1. Para (E) will be include sub rule 1-VIII. upa 3 wp5575-10 A Candidates who have qualified examination from the Board of C.B.S.E., New Delhi & G.H.S.S.E., Gandhinagar from any institutions located in the U.T. Of Dadra and Nagar Haveli shall be considered for Nomination/Selection on Pro-rata basis. The Pro-rata distribution of reserved seats shall be calculated on the basis of the number of eligible applicants received from the U.T. Of Dadra and Nagar Haveli and who have passed from both the Boards (i.e. C.B.S.E., New Delhi & G.H.S.S.E. Gandhinagar) for the current year qualifying examination. A separate Merit list for the eligible applicants of General Category from both the Boards will be prepared. (In the event of any seat falling vacant due to non-availability of a suitable candidate in either of the Boards, the same will be transferred to the candidates of the other Board.).” 4. The above impugned order is challenged on the following two grounds :- (a) The advertisement inviting applications for reserved seats was published on 29 May 2010.1 It was specifically mentioned in the advertisement that applications will be considered on the basis of the the guidelines dated 9 July 1990. Therefore the respondent authorities are bound to consider the applications on the basis of the said guidelines dated 9 July 1990. As per the advertisement the applications were invited by 21 June 2010 and after the last date of receiving applications, the impugned order came to be passed on 14 July 2010 changing the entire basis of considering the applications. As per the guidelines dated 9 July 1990, the applications were required to be considered 1 Exhibit “G”, page 48 of Writ Petition No.5575/2010. upa 4 wp5575-10 on the basis of the inter se merit of students without considering the Board from which they pass the qualifying examinations. (b) It is also contended that in view of the decision of the Apex Court in the case of Dr.Pradeep Jain and others vs Union of India and others, (1984) 3 SCC 654 and the decision of this Court in the case of Viraj Maniar vs The State of Maharashtra and others (Writ Petition No.1086 of 2009 along with other Writ Petitions), it is not open to the respondents to make any discrimination between students who have passed the qualifying examination from CBSE Board and students who have passed qualifying examination from Gujarat State Higher Secondary Board. 5. On the other hand, learned counsel for respondent Nos.3 and 4 as well as the learned counsel for the intervenors who have passed the qualifying examination from Gujarat Board have opposed the petitions and submitted that the decision making process for amending the admission rules was initiated as far back as on 4 March 2009 and the decision was taken on 19 May 2010. It is further submitted that the present petitions were filed on 5 July 2010 before the impugned order was issued on 14 July 2010 and thereafter an amendment application was moved on 2 August 2010. It is submitted that having regard to the sequence of events, it cannot be said that the students did not know about the impending amendment to the rules which was formally made on 14 July 2010 but otherwise it was known to the student community at large that there will be a change in the admission rules. upa 5 wp5575-10 6. As regards the second contention, the learned counsel for the respondents attempted to distinguish the decisions relied upon the learned counsel for the petitioners and it is submitted that since the students from Gujarat Higher Secondary School Examination board were not getting admissions to the reserved seats earmarked for the Union Territory students, it was necessary to provide for a quota in order to ensure real equality amongst students and not imaginary equality which was prevailing prior to the amendment of the rules. 7. Having heard the learned counsel for the parties, we have given our anxious consideration to the rival submissions. Since we are inclined to allow the petitions by accepting the first contention canvassed on behalf of the petitioners, it will not be necessary to deal with the second contention on merits of the controversy between the parties. 8. There is no dispute about the fact that the advertisement dated 26 May 2010, Exhibit “G”, was published in the newspapers on 29 May 2010. The said advertisement read as under :- “Applications are invited from the eligible domicile candidates of Dadra & Nagar Haveli (Guidelines dated 09-07-1990) for admission to Degree/Diploma and Certificate level courses in Engineering Medical Pharmacy C.P.Ed. Diploma Agri Etc. against the seats allocated/likely to be allocated by Govt. of India and other states to the Dadra and Nagar Haveli for the year 2010-11 ......” (emphasis supplied) upa 6 wp5575-10 9. The respondent administration thus clearly informed the prospective candidates that applications were invited from eligible domiciled candidates of Dadra & Nagar Haveli on the basis of the guidelines dated 9 July 1990. There is also no dispute about the fact that the said guidelines dated 9 July 1990 did not provide for any quota system and all the students whether they have passed the qualifying examination from CBSE Board or from the Gujarat Higher Secondary Education Board, were eligible for admission to the specific course without any quota. The admissions process had already commenced on 26 May 2010 or atleast on the date of publication of the advertisement in the newspapers on 29 May 2910. What the respondent administration has done is to change the rules after the process has commenced by issuing an order dated 14 July 2010 amending the admission rules for providing a quota for students who have passed the examination from two different qualifying boards. The relevant portion of the amended rule reads as under :- “A Candidates who have qualified examination from the Board of C.B.S.E., New Delhi & G.H.S.S.E., Gandhinagar from any institutions located in the U.T. Of Dadra and Nagar Haveli shall be considered for Nomination/Selection on Pro-rata basis. The Pro-rata distribution of reserved seats shall be calculated on the basis of the number of eligible applicants received from the U.T. of Dadra and Nagar Haveli and who have passed from both the Boards (i.e. C.B.S.E., New Delhi & G.H.S.S.E., Gandhinagar) for the current year qualifying examination. A separate a Merit list for the eligible applicants of General Category from both the Boards will be prepared. (In the event of any seat falling vacant due to non-availability of a suitable candidate in either of the Boards, the same will be transferred to the candidates of the other Board.). upa 7 wp5575-10 B-I The basis of selection will be the Merit which shall be determined by the aggregate percentage of marks obtained by the candidates in the H.S.S.C.E. in the subject of Physics, Chemistry, Mathematics (including practical marks) out of 400/300 for Engineering and related courses for GHSE Board and CBSE Board respectively. B-II The basis of selection will be on Merit basis which shall be determined by aggregate percentage of marks obtained by the candidates in the H.S.S.C.E. in the subjects of Physics, Chemistry and Biology (including practical marks) out of 450/300 for Medical and related courses for GHSE Board and CBSE Board respectively.” 10. It is thus clear that the impugned order changes the entire method of selection by bifurcating the students into two groups (i) students who have passed their qualifying examination from the Gujarat Higher Secondary Education Board and (ii) students who have passed their qualifying examination conducted by CBSE Board, New Delhi. If no amendments had been made to the guidelines dated 9 July 1990, on the basis of which the advertisement was issued, the students who have passed their qualifying examination from the CBSE board were eligible to be considered for admission to all the seats reserved for the Union Territory, but the impugned order takes away their right to be considered for all the seats and they will be considered only for three seats out of the eight seats. The amendment, therefore, takes away the right of the students who were eligible for consideration for all the seats on the date of the advertisement. upa 8 wp5575-10 11. Having heard the learned counsel for the parties, we do not fine any justifiable reason to change the rules of admission with retrospective effect. On this short ground alone, we are inclined to allow the petitions and to hold that the respondents are bound to proceed with the admissions process on the basis of the guidelines dated 9 July 1990 which were operating when the advertisement was issued on 26/29 May 2010. 12. We may also indicate that when Writ Petition No.5575 of 2010 was moved for preliminary hearing on August 6, 2010, this Court had by an interim order directed the respondent administration to prepare two provisional merit lists. The interim directions read as under :- “14. Since it is brought to our notice that the admission process has already been commenced and, therefore, we permit the respondents to proceed with the admission process, however, we direct the respondents to prepare two provisional merit lists. The first merit list should be prepared on the basis of the marks obtained by the students in their respective subjects prescribed for admission to degree or diploma course by the concerned colleges in respect of all the students from Union Territory. The second merit list should be prepared of the C.B.S.E. candidates based on their inter se merit as per the new pattern and the third merit list of the candidates coming from Gujarat Board based on their inter se merit. The respondents, however, shall not finalise the admission unless prior permission in obtained from this Court.” 13. It is thus clear that the respondent administration has already made arrangements for the admission process on the basis of the guidelines dated 9 July 1990 also. It will, therefore, not cause any delay upa 9 wp5575-10 in the admissions process if at this stage we allow the petitions and direct the respondent administration to grant admission to the eight reserved seats on the basis of the guidelines dated 9 July 1990, without implementing the impugned order dated 14 July 2910 in so far as the same provides for a quota for admission to the reserved seats. Since no grievance is made against amendment of the other rules by the order dated 14 July 2010, we make it clear that it will be open to the respondents to implement the other amendments made by the statutory order dated 14 July 2010. 14. We again make it clear that we have not gone into the merits of the second contention raised on behalf of the petitioners about the constitutional validity of the quota system. 15. The Writ Petitions are disposed of in the above terms. No order as to costs. CHIEF JUSTICE DR. D.Y.CHANDRACHUD, J.