SCA/8785/2008 1/17 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 8785 of 2008 For Approval and Signature: HONOURABLE THE CHIEF JUSTICE MR. K.S.RADHAKRISHNAN HONOURABLE MR. JUSTICE MOHIT S. SHAH ====================================== KHUSBOO NAGINBHAI PATEL & 1 - Petitioner(s) Versus STATE OF GUJARAT & 4 - Respondent(s) ====================================== Appearance : MR AJ YAGNIK for Petitioner(s) : 1 - 2. MR KAMAL B. TRIVEDI, ADVOCATE GENERAL with MS. SANGITA VISHEN, ASSISTANT GOVERNMENT PLEADER for Respondent(s) : 1 - 2. RULE SERVED for Respondent(s) : 1 - 4. MR AMIT PANCHAL WITH JAL SOLI UNWALA for Respondent(s) : 5, None for Respondent(s) : 6, ====================================== CORAM : HONOURABLE THE CHIEF JUSTICE MR. K.S.RADHAKRISHNAN and HONOURABLE MR. JUSTICE MOHIT S. SHAH Date : 26/09/2008 CAV JUDGMENT (Per : HONOURABLE THE CHIEF JUSTICE MR. K.S.RADHAKRISHNAN) The petitioners are candidates who figure in the merit list prepared by the Centralized Medical Admission Committee, aspiring for admission to M.B.B.S in the various Medical Colleges in the State, including the unaided private professional colleges. Petitioners submit that their admission to the above mentioned colleges is governed by the SCA/8785/2008 2/17 JUDGMENT Gujarat Professional Medical Educational Colleges or Institutions (Regulation of Admission and Fixation of Fees) Act, 2007 [The Gujarat Act 3 of 2008] (for brevity “the Act”). Petitioners also submit that if the composite quota system introduced by the Act is done away with, they will get admission in the above mentioned colleges on the basis of their merit. It is also of the petitioners’ contention that the Act completely disregards the unfettered fundamental rights of the minority and non- minority unaided professional colleges and institutions guaranteed under Articles 19(1)(g), 26 and 30(1) of the Constitution of India, and hence unconstitutional. 2. Learned Advocate General entertained a doubt as to how the petitioner can espouse the cause of unaided professional colleges/institutions and on that sole ground, the petition has to be dismissed. Further, nobody from the management side has been impleaded in the above petition. Be it that may, we may examine and address ourselves to the various contentions urged by the petitioners against the vires and the constitutional validity of the various provisions of the Act. 3. The petitioners have approached this Court seeking a declaration that Sections 2(g), 2(h), 2(i), 2(n), 6, 8 and 9 of the Act of 2007 and Rules 8 and 9 of the Gujarat Professional Medical Educational Colleges or Institutions (Regulation of Admission and Fixation of Fees) Rules, 2008 as arbitrary, unreasonable, irrational, discriminatory and violative of Articles 14, 15(5), 19(1)(g), 21, 26 and 30(1) of the Constitution of India, and therefore, invalid and ultra-vires of the Constitution of India, and also for an further order to cancel all the admissions given in the unaided professional colleges for the year 2008-2009 as per the provisions of the Act and the Rules, and for other consequential relief. SCA/8785/2008 3/17 JUDGMENT 4. Gujarat Act No. 3 of 2008 has been enacted by the legislature for making special provision for admission and fixation of fees in the professional medical educational colleges or institutions in the State. Act received assent of the Governor on 7th March, 2008. Section 6 of the Act deals with admission to the Government seats and management seats. The said provision is extracted hereunder for easy reference. “6. 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; Provided also that where any management seat remains vacant, such seat shall be filled in from the Government seats.” SCA/8785/2008 4/17 JUDGMENT 5. The words “Government seats” are defined under Section 2(g) of the Act, which reads as under:- “2(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 per cent seats of the professional courses of the total approved seats in the unaided colleges or institutions.” 6. The words “management seats” are defined under Section 2(h), which reads as follows:- “2(h) - “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;” 7. The words “Non-Resident seats” are also defined under Section 2(i) of the Act, which reads as follows:- “2(i) – “Non-Resident Indian seats” means fifteen per cent seats reserved for children or wards or the dependents for the education purpose, of the Non-Resident Indian, to whom admission is to be given in the professional educational colleges or institutions;” 8. Section 8 of the Act deals with reservation in admission and the SCA/8785/2008 5/17 JUDGMENT same is also extracted hereunder for easy reference. “Sec. 8 - The admission against the Government seats in each course in each professional educational college or institution shall be made in accordance with the reservation policy of the State Government.” 9. Section 9 of the Act deals with constitution of Fee Regulatory Committee, which says that State Government shall, for the purpose of determining the fees for admission of students in the professional colleges or institutions, constitute a Fee Regulatory Committee. Section 11 says that the Regulatory Committee shall determine and fix the fees or fees to be charged by an unaided college or institution for admission of the students. Section 12 prohibits the charging or collection of capital fees by the unaided professional colleges or institutions. 10. The State Government, in exercise of the powers conferred by sub- section (1) of Section 20, read with Section 4 of the Gujarat Act No.3 of 2008, framed Gujarat Professional Medical, Educational Colleges or Institutions (Regulation of Admission and Payment of Fees) Rules, 2008 (for brevity “the Rules”). Rule 4A deals with the Government seats, which takes in seventy five per cent of the total sanctioned seats of the professional medical educational courses in the unaided colleges or institutions. Rule 4B deals with the management seats which says twenty five per cent seats of the total sanctioned seats of the professional medical educational seats in the unaided colleges or institutions of the State including fifteen per cent Non-Resident Indian seats. Rule 6 deals with eligibility criteria for Government seats and Rule 6B deals with eligibility criteria for management seats. Rule 6C deals with eligibility criteria for Non-Resident Indian seats, which says that students should be SCA/8785/2008 6/17 JUDGMENT Non-Resident or wards or the dependents of the Non-Resident Indians for education purposes. Rule 7A deals with admission to the Government seats, Rule 7B deals with admission to management seats, which states that the management seats shall be filled-up on the basis of inter-se merit list of the students who have applied and who figure in the merit list prepared by the Admission Committee. Rule 7C deals with Non Resident Indian seats, which also states that the Non-Resident Indian seats be filled up on the basis of inter-se merit list of students who have applied. Rule 8 deals with reservation of seats. Sub-rule (1) of Rule 8 reads as follows:- “For the purpose of admission, the seats shall be reserved for the candidate who are origin of Gujarat and falling under the following categories, namely:- (a) Scheduled Caste : 7% (b) Scheduled Tribe : 15% (c) Socially and Educationally : 27% Backward Class, including Widows and Orphan of any caste Rule 9 deals with physically disabled candidates, which says that three percent of the available seats in each category shall be reserved for physically disabled candidates. The above are the salient provisions of the Act and the Rules. Petitioners’ contention: SCA/8785/2008 7/17 JUDGMENT 11. Learned counsel appearing for the petitioners Shri A.J. Yagnik has submitted that Section 2(g) read with Section 6 of the Act, in so far as they provide 75% of the Government quota in the seats of unaided colleges and institutions, violates unfettered fundamental rights of unaided colleges and institutions guaranteed under Article 19(g) and 30(1) of the Constitution of India. Learned counsel submitted that the above mentioned provisions is intended to reintroduce the principle enunciated in Unnikrishnan’s case (1993) 1 SCC 645, which is already declared as unconstitutional by the Supreme Court in TMA Pai Foundation’s case (2002) 8 SCC 481. Learned counsel submitted that Section 2(g), 2(h), 2(i), Sections 6 and 8 read with Rules 8 and 9 provide scheme of composite quota within the seats of unaided professional colleges and institutions, which will collectively go beyond the maximum limit of 50%. Learned counsel submitted that 49% seats out of 75% Government seats in unaided professional college and 15% NRI seats on grid of 100, a part of management seats, cumulatively goes up beyond 50%. Learned counsel submitted that the State legislature cannot bring a legislation which appropriates 75% seats of private unaided professional colleges even when admissions are to be given on merits on payment of amount of fees that may be fixed by the Fee Committee. Learned counsel submitted that since total percentage of seats not available on merit goes beyond 50%, irrespective of the nomenclature of reservation, quota, concession or source, the total percentage of reservation exceeds 50% and the same would amount to nationalization of education, which is illegal and unconstitutional. In support of his contention, counsel placed reliance on the following decisions:- (iii) M.R Balaji Vs. State of Mysore – AIR 1963 SC 649 SCA/8785/2008 8/17 JUDGMENT (iv) Indra Swahany Vs. Union of India– AIR 1993 SC 477 (v) M Nagraj Vs. Union of India – (2006) 8 SCC 212 (vi) Ashok Kumar Thakur Vs. Union of India (2008) 6 SCC 1 Reference was also made to the judgment of the Division Bench of the Kerala High Court in the case of Chief Executive Trustee & ors – State of Kerala and The Commissioner for Entrance Examination – W.P (C) Nos. 17873 of 2006 and group (Annexure “E”). 12. Learned counsel also submitted that classification of NRI seats and the reservation of 15% has no rational nexus to the object of giving admission to the students on merit and the same is not in conformity with Article 14 of the Constitution of India. Learned counsel also pointed out that reservation of 15% for NRI students is not a horizontal reservation or an interlock reservation to be distributed within vertical reservation either proportionately or on an overall basis, and such a reservation policy along with reservation of SC/ST and OBC, would constitute more than 50% and hence, unconstitutional. Learned counsel also submitted that classification of NRI seats is not based on intelligible differentia looking to wide definition of NRI, which brings within its ambit bonafide as well as sponsored NRI. Referring to the definition of Non Resident Indians, learned counsel submitted that the definition of NRI seat is extremely wide and over-inclusive inasmuch as the legislation does not define who is NRI, and it includes children and ward of NRI as well as dependent of NRI for educational purposes and therefore, it looses the intelligible differentia between the NRI and Non-NRI students. 13. Learned counsel also pointed out that TMA Pai’s case (2002) 8 SCC 481 does not provide for reservation for NRI students, so also SCA/8785/2008 9/17 JUDGMENT Islamic Academy’s case (2003) 6 SCC 697. Counsel pointed out that the observation made by the Supreme Court in P.A Inamdar’s case (2005) 6 SCC 537 regarding NRI students does not lay down a law. Learned counsel submitted that the quota of NRI provided for legislation has to be in conformity with the Constitution of India, particularly Articles 14 and 15 of the Constitution of India. Learned counsel also pointed out that after 93rd Constitutional Amendment and insertion of Article 15(5), State can provide for reservation by legislation only for SC/ST/OBC and none-else in the unaided professional colleges. Learned counsel also pointed out that the Act completely disregards rights of minority institutions inasmuch as it does not exclude the provisions of reservations and other provisions to give right to the State to interfere with right of establishing and administering minority institutions. 14. Learned counsel also referred to Section 9 of the Act and advocated for the inclusion of students and parents in the Fee Regulatory Committee. Learned counsel also highlighted the necessity of adopting practice of having a single window system for granting admission to Government seats as well as management seats in unaided colleges at the same time so as to avoid inconvenience to the students who seek admission in unaided professional colleges. Learned counsel also submitted that there is no justification in excluding Deemed Universities from the definition of University under Section 2(n) of the Act. 15. Shri Amit M. Panchal, learned counsel appearing for 5th respondent also supported the arguments raised by the counsel for the petitioners. Learned counsel also referred to the decisions of the Apex Court dealing with the scope of Ninth Schedule in I.R Coelho (dead) by L.Rs Vs. State of Tamil Nadu & ors – (2007) 2 SCC 1, Ashok Kumar Thakur Vs. Union of India and ors (2008) 6 SCC 1. Learned counsel also SCA/8785/2008 10/17 JUDGMENT submitted that the impugned legislations are violative of the principle enunciated by the Apex Court in the above referred judgments as well as in the judgment in Ashok Kumar Thakur’s case (supra). State’s Contention: 16. Learned Advocate General Shri Kamal B. Trivedi, assisted by Ms. Sangita Vishen, Assistant Government Pleader, submitted that the provisions in question contained under the Act and the Rules are not violative of the provisions of Articles 19(1)(g) and 30(1) of the Constitution of India, and are in conformity with the provisions of Articles 15(5), 19(1)(g), 19(6), 21, 26 and 30(1) of the Constitution of India. It was pointed out that State Legislature has the competency to legislate matters which falls under Entry 25, List 3 of the Constitution of India and hence its validity cannot be assailed. Learned Advocate General also submitted that the provisions under the Act and the Rules are not in any manner violative of the law laid down by the Supreme Court in the case of P.A. Inamdar's case or TMA Pai Foundation’s case. Learned Advocate General also submitted that the provisions under the Act and the Rules allocating seats under the heads of “Government seats” and “Management seats” do not seek to create separate quota or reservation. Learned Advocate General also pointed out that the logic behind fixation of 75% seats in self-financed institutions as Government seats 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. Learned Advocate General also placed reliance on the decision of the Apex Court in State of M.P. Vs. Gopal D. Tirthani – AIR 2003 SC 2952 and submitted SCA/8785/2008 11/17 JUDGMENT that the allocation of seats in the form of fixation of quota is not to be equated with the usual form of communal reservation. It was further pointed out that allocation of 15% seats for admission of NRI students cannot and should not be branded as reservation at par with communal reservation or constitutional reservation in favour of backward classes, SC/ST etc. Further, it was also submitted that for allocation of 15% seats for NRI students, the reasonable classification has a laudable policy i.e. bringing funds to the self-financed institution by charging higher fees for the specific object for enabling them to strengthen the level of education and to enlarge their educational activities. Learned Advocate General also submitted that it is absolutely within the legislative competence of the State legislature to lay down suitable definition of NRI seats to widen its scope without sacrificing inter-se merit of the candidates. Referring to the decision of the Kerala High Court (Annexure “E”), learned Advocate General submitted that the Division Bench of Kerala High Court struck down certain provisions of the Kerala Act, since reservation exceeded 50% i.e. to the tune of 82% and that so far as the Gujarat legislation is concerned, learned Advocate General submitted that the constitutional reservation provided under the Act and the Rules does not exceed the limit of 50%. Learned Advocate General also highlighted the reason for exclusion of Deemed University from the provisions of the Act and the Rules, inasmuch as since Deemed Universities are governed by the Central Legislation, the State could not have exercised any powers over the admission procedure in case of deemed universities, since the same is fully occupied by Entry 66 of List- I. Judicial evaluation: SCA/8785/2008 12/17 JUDGMENT 17. Petitioners, we perceive, show an anxiety to espouse the cause of unaided minority and non-minority professional medical colleges and institutions in the garb of challenging the constitutional validity of certain provisions. Students who have been admitted in the merit quota or the management quota or the colleges or institutions (minority or non-minority), 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 inter-se 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 and unaided professional institutions. It must be borne in mind that unaided professional institutions are entitled to autonomy in their administration while SCA/8785/2008 13/17 JUDGMENT 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.” 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. SCA/8785/2008 14/17 JUDGMENT 19. Admission against Government seats, whether it is in a Government college or an unaided college or institution, has to be made in accordance with the reservation policy of the State Government. Rule 8 stipulates the percentage of reservation of seats for Scheduled Castes/Scheduled Tribes and SCBC. Provisions of the Act and the Rules allocating total seats of any unaided professional college or institution do not create separate quota or reservation. Reservation provided under the various provisions of the Act and Rules, in our view, does not go beyond 50%. Constitutional reservation provided under the Act and the Rules, that is 7% for Scheduled Castes, 15% for Scheduled Tribes and 27% for SEBC would constitute only 49% and hence does not exceed 50% so as to violate the principles laid down by the Apex Court in Balaji's case or Indra Swahany's case. Further it may be noted that quotas for physically handicapped persons upto 3% is not a separate reservation but available in cases of separate categories of SC, ST, SEBC and general. Further allocation of 15% seats for NRI, it may be noted, was the result of the ruling of the Apex Court in P.A Inamdar's case, and the remaining 10% seats described as management seats cannot be characterised as privilege quotas or reservation quotas. Division Bench of the Kerala High Court was dealing with a different fact and legal situation where the reservation exceeded 50% hence, some of the provisions were struck down. Contention that the fixation of quota exceeded 50% in the Gujarat Act 3 of 2008 and violates Art. 14 and Art. 15(4)(5) of the Constitution of India is unsustainable. The reservation made in the Act for Scheduled Castes, Scheduled Tribes, OBC and NRI, in our view, in no way violative of the law laid down by the Supreme Court in P.A. Inamdar’s case or in TMA Pai Foundation’s case. 20. The allocation of 15% seats for admission of NRI students cannot and should not be branded as reservation at par with communal SCA/8785/2008 15/17 JUDGMENT reservation or constitutional reservation in favour of backward classes like SC/ST/SCBC. The Supreme Court in P.A. Inamdar’s case has expressly referred to the NRI seats in paragraph 131. The Apex Court has stated that a limited reservation of seats, not exceeding 15% may be made available to NRIs depending upon the discretion of the management, subject to two conditions, first such seats should be utilized bonafide by NRIs only and for their children or wards, secondly within the quota, merit should not be given a complete go-bye. Therefore, reserving 15% seats for NRI, in our view, is legally permissible and which was upheld by the Supreme Court in P.A. Inamdar’s case. Contention was raised by the petitioners that the legislature has widened the scope of definition of “NRI”, which according to the learned Counsel, is impermissible. The above question came up for consideration before us in Special Civil Application No. 8747 of 2008 and 9623 of 2008, and we found no infirmity or illegality widening the definition of NRI which does not sacrifice merit. The contention of the petitioners that the reservation of seats for NRI and its classification is violative of Articles 14 and 15(5) is therefore, unsustainable. 21. We have found that reservation quota for NRI or physically handicapped students is