SCA/1675/2007 1/34 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 1675 of 2007 To SPECIAL CIVIL APPLICATION No. 1693 of 2007 For Approval and Signature: HONOURABLE THE CHIEF JUSTICE Y.R.MEENA HONOURABLE MR.JUSTICE A.S.DAVE ====================================== SHAH FORUM UMESHBHAI (MINOR) Versus JUSTICE R J SHAH (RETD.) ADMISSION COMMITTEE(MEDICAL) & others ====================================== Appearance : Mr. Dhaval C. Dave for the petitioners Mr. B.P. Tanna, Senior Advocate, with Mr. Mahrook Kerawala for respondent No.1 Mr. A.J. Shastri for respondent No.2 Mr. A.J. Yagnik for respondent No.3 ====================================== CORAM : HONOURABLE THE CHIEF JUSTICE Y.R.MEENA and HONOURABLE MR.JUSTICE A.S.DAVE Date : 24/04/2007 C.A.V. COMMON JUDGMENT (Per : HONOURABLE MR.JUSTICE A.S.DAVE) SCA/1675/2007 2/34 JUDGMENT 1 This group of cognate petitions involves issue as to whether each of the petitioners falls within the concept 'NRI' for the purpose of seeking admission to self-financed unaided institutions [hereinafter to be referred to as 'SFI'] conducting Medical, Dental and other such professional courses, pursuant to the order passed by Their Lordships on 8th January 2007 in I.A Nos. 16-18, 19-21 in Civil Appeal No. 4480 of 2006 & I.A. Nos. 22-25 in I.A. Nos.16-18 in Civil Appeal No.4480 of 2006 with I.A. Nos.11-14 in Civil Appeal No.4482 of 2006. 2 Thereafter, all the matters were listed before the learned Single Judge {Coram: D.A. Mehta, J.} on 17th January 2007 and, by order dated 17th January 2007, the learned Single Judge has observed as under: “1. This petition and the group of cognate petitions involve the issue as to whether each of the petitioners fall within the concept of “NRI” for the purpose of seeking admission to self-financed unaided institutions conducting medical, dental and other such professional courses. 2. Vide order dated 13th November, 2006 made in interlocutory applications Nos. 9-10 and 11-12 in Civil Appeal No. 4480/06, the Apex Court has specified the following three categories to be treated as being eligible for the purpose of seeking admission in the NRI quota in the self-financed institutions. 1] The students be admitted as NRIs in NRI quota as against 15%: At least one of the parents of such students should be an NRI and shall ordinarily be residing abroad as an NRI; 2] The person who sponsors the student for admission should be a first degree relation of the student and should be ordinarily residing abroad as an NRI; 3] If the student has no parents or near relatives or taken as a ward by some other nearest relative such students also may be considered for admission SCA/1675/2007 3/34 JUDGMENT provided the guardian has bona fide treated the student as a ward and such guardian shall file an affidavit indicating the interest shown in the affairs of the student and also his relationship with the student and such person also should be an NRI, and ordinarily residing abroad. 3. There is no dispute between the parties in relation to first two categories. In relation to the third category this Court has already taken a view that there can be a guardian of a ward only in a case where either parent is not alive. The petitioners and respondent No.1-Committee are reading the third category as enunciated by the Apex Court to mean that there could be a guardian even in a case where either parent is alive. 4. In the case of Vishal Nilesh Mandlewala v. Justice R.J.Shah (Retd.) & Ors. in Special Civil Application No. 20819 of 2006 vide judgment dated 10th November, 2006, I have stated as under: “23. Thus on a conjoint reading of the scheme under the Guardians Act and the scheme under the Hindu Minority Act (bearing in mind that the latter Act is supplemental to the Act of 1890) the position in law is that in case of a Hindu minor during existence of a natural guardian the Court is not authorized to appoint any other person as a Guardian and if any such order is made the same would be bad in law. The only exception being, where the Court finds that the natural guardian is not fit to continue as a guardian of the minor. 24. The father of a child is the first person to be a natural guardian followed by the mother. Only in absence of the natural parents can the question arise as to appointment of any other person, including a relative, as a guardian. Once it is found that a natural guardian is alive, and is otherwise not unfit legally to act as a guardian, no Court can exercise power to appoint any other person as a guardian. If a Court established in India is not so empowered no foreign Court can be stated to have any such power”. 5. The aforesaid Category No.3 laid down by the Apex Court SCA/1675/2007 4/34 JUDGMENT specifically opens with the phrase “if the student has no parents or near relatives.........”. The submission on behalf of the petitioners is that this phrase need not be read to mean that a student can be permitted to fall in the Category No.3 only in absence of either parents. In light of the view that I have already taken in the case of Vishal Nilesh Mandlewala (supra), it would be in the fitness of things if the present group of petitions are placed before another bench or a larger bench, considering the fact that Letters Patent Appeal being L.P.A. No.1538/06 is pending before Division Bench. 6. The registry is, therefore, directed to place the matters before Hon'ble the Chief Justice for appropriate orders.” 2.1 In view of the above order, the matters were placed by the office before the Honourable the Chief Justice on administrative side for appropriate orders and, accordingly, the matters are listed before this Court on 24th January 2007. 2.2 On 24th January 2007, when the matters came up for hearing, Shri B.P.Tanna, learned Senior Advocate appearing for Justice R.J. Shah Committee, sought time to file affidavit-in-reply in the Registry. Accordingly, the matters were listed for hearing on 31st January 2007. On 31st January 2007, Shri A.J. Yagnik, learned counsel appearing for the students admitted on merits from the State list, prayed for time to file an application for impleading them as party-respondents. Thereafter, the matters were placed for hearing on 8th February 2007 along with Civil Application No.2020 of 2007 filed for impleading party, which came to be allowed on the same day. Then, the matters were adjourned to 12th February 2007. By order dated 21st February 2007, the learned SCA/1675/2007 5/34 JUDGMENT counsel appearing for the petitioners being not fully prepared with the facts, was directed to give relevant dates in sequence of happening from the date of application for admission. Since the original affidavits given by the NRIs were not on record, the learned counsel for Justice R.J. Shah Committee was also directed to place affidavits and necessary materials on record and, lastly, all the requirements on facts for scrutiny of affidavits filed by the NRIs are made available to this Court and, after service of notice to all the SFIs and respondent No.2 herein, the matters were taken up for final disposal. 3 That pivotal issue, which is to be considered by this Court, is with regard to concept of “NRI', as laid down by Their Lordships in the order dated 13th November 2006 by way of pro-tempore paradigm, by which, three categories of NRIs considered legal and valid for filling up of seats of 15% NRI quota by the SFI for admission to various professional courses in the State of Gujarat for this Academic Year 2006-2007 only. So far as Category Nos. 1 and 2 are concerned, they are about either of parents NRI and first Degree relationship and there is no dispute between the parties. The only issue remains with regard to Category 3 and, as per this category, who can be said to be eligible student for admission in NRI quota. Category 3 begins with the phrase, 'if the student has no parents or near relatives or taken as a ward by some SCA/1675/2007 6/34 JUDGMENT other nearest relatives, such students also may be considered for admission provided the guardian has bona fide treated the student as a ward and such guardian shall file an affidavit indicating the interest shown in the affairs of the student and also his relationship with the student and such person also should be an NRI, and ordinarily residing abroad. 4 The petitioners have challenged the order dated 26th December 2006 passed by the Justice R.J. Shah Committee cancelling their admissions in NRI quota as contrary to the directions contained in the order dated 13th November 2006 passed by Their Lordships. 5 It is not in dispute that, by order dated 12th October 2006 in Civil Appeal No.4480 of 2006, Their Lordships have earmarked 15% seats to be admitted by the SFIS from the quota reserved for NRI candidates, in view of the judgment of the Apex Court in the case of P.A. Inamdar vs. State of Maharashtra, reported in [2005] 2 SCC 537. 5.1 By an order of 13th November 2006, Their Lordships issued certain directions for regulating admission of 15% NRI quota and, for the sake of convenience, the order is reproduced hereinbelow: “I.A. Nos.3-4 & 5-10 in C.A. No.4482/2006: Applications for impleadment are allowed. Application for exemption from filing O.T. are allowed. In P.A. Inamdar & Ors vs. State of Maharashtra & Ors, reported in 2005(6) SCC p.537, this Court permitted the Medical SCA/1675/2007 7/34 JUDGMENT college/professional colleges to admit the students of Non-Resident Indians. In paragraph 131 of the judgment, this Court observed:- “131. Here itself we are inclined to deal with the question as to seats allocated for Non-Resident Indians ('NRI', for short) or NRI seats. It is common knowledge that some of the Institutions grant admissions to certain number of students under such quota by charging a higher amount of fee. In fact, the term 'NRI' in relation to admissions is a misnomer. By and large, we have noticed in cases after cases coming to this Court, neither the students who get admissions under this category nor their parents are NRIs. In effect and reality, under this category, less meritorious students, but who can afford to bring more money, get admission. During the course of hearing, it was pointed out that a limited number of such seats should be made available as the money brought by such students admitted against NRI quota enables the educational institutions to strengthen its level of education and also to enlarge its educational activities. It was also pointed out that people of Indian origin, who have migrated to other countries, have a desire to bring back their children to their own country as they not only get education but also get reunited with Indian cultural ethos by virtue of being here. They also wish the money which they would be spending elsewhere on education of their children should rather reach their own motherland. A limited reservation of such seats, not exceeding 15%, in our opinion, may be made available to NRIs depending on the discretion of the management subject to two conditions. First, such seats should be utilized bona fide by the NRIs only and for their children or wards. Secondly, within this quota, the merit should not be given a complete go-by. The amount of money, in whatever form collected from such NRIs, should be utilized for benefiting students such as from economically weaker sections of the society, whom, on well defined criteria, the educational institution may admit on subsidized payment of their fee. To prevent misutilisation of such quota or any malpractice referable to NRI quota seats, suitable legislation or regulation needs to be framed. So long as the State does not do it, it will be for the Committees constituted pursuant to the direction in Islamic Academy to regulate.” In the State of Gujarat there was a dispute regarding admission to the medical colleges for the academic year 2006-07 and this Court, by an order dated 12th October,2006, permitted these colleges to admit 15% of their seats by candidates from the NRI quota. We also made it clear that Justice Shah Committee appointed in this regard would be at liberty to go in to the objections and pass appropriate orders and in case there is any difficulty, the candidates would be at liberty to approach this Court. Subsequent to this order, the admissions were made by these colleges and the matter was placed before Justice Shah Committee. Justice Shah Committee had formulated certain admission procedure to carry out admission in NRI quota. It may be noted that as stated in paragraph 131 of Inamdar's judgment (supra) no suitable legislation or regulation have SCA/1675/2007 8/34 JUDGMENT been framed by the State or Medical Council of India. The admissions made by these colleges were scrutinized by the Committee on the basis of the admission procedure laid down by the committee itself and the students who have been admitted under the NRI quota had been found ineligible by the Committee. The present interlocutory applications have been filed by the colleges against the directions given by Justice Shah Committee. The petitioners/applicants allege that in view of the direction given by Justice Shah Committee, the colleges are not in a position to fill up the NRI quota. From the Committee's guidelines we see that the definition of NRI itself is to be strictly construed as 'NRI' as defined under the Income Tax Act, 1961. It is also made clear by the Committee that the parents of the candidates should be permanently residing abroad and wards of NRIs shall be person adopted by a guardian should be testamentary, certified, natural or even de-fecto and an officer from the Income Tax Department shall verify the documents at the time of admission with regard to status of NRI. These directions are challenged before us. Of course, these guidelines have been fixed for the purposed [sic] to be admitted by the colleges and because of pending proceedings the same could not be finalised. Normally, the admissions to the medical colleges should have been finally concluded before 30th September. This year's admission is long overdue and if this 15% of the students are not allowed to be admitted under NRI quota, there may be financial loss to these colleges and the seats shall also go waste. In view of the peculiar circumstances of the case, for this year, we are taking a practical view of the situation and feel that the students to these colleges may be admitted under the following directions and we make it clear that this is exclusively for this year only as a one time arrangement because of the peculiar circumstances of the case: 1] The students be admitted as NRIs in NRI quota as against 15%: At least one of the parents of such students should be ordinarily residing abroad as an NRI; 2] The person who sponsors the student for admission should be a first degree relation to the student and should be ordinarily residing abroad as an NRI: 3] If the student has no parents or near relatives or taken as a ward by some other nearest relative such students also may be considered for admission provided the guardian has bona fide treated the student as a ward and such guardian shall file an affidavit indicating the interest shown in the affairs of the student and also his relationship with the student and such person also should be an NRI, and ordinarily residing abroad. Even if these parameters are applied and sufficient number of students are not available for this year as against admission to 15% quota, the college would be at liberty to fill up the remaining seats from the State list and if the number of candidates admitted as against 15% quota is SCA/1675/2007 9/34 JUDGMENT very much less and the colleges are unable to raise sufficient funds they would be at liberty to approach the Committee to restructure the fees. It is clarified that the students who will be admitted against the NRI quota should have the basic qualification fixed by the Medical Council of India/Dental Council of India for admission in Medical/Dental graduate courses. In view of the above directions, the admissions for this year shall be completed within 10 days and on the 11th day the same shall be placed before Justice Shah Committee for the action if any as indicated in our previous order. The I.A.s are disposed of accordingly. In view of the order passed above, the remaining interlocutory applications except I.A. Nos. 11-12 in C.A. No.4480/06 and I.A. Nos. 3-5 in C.A. No.4480/2006 are disposed of. “I.A. Nos.11-12 in C.A. No.4480/2006 & I.A. Nos.3-5 in C.A. No.4481/2006: Issue notice. Post the applications on next Friday i.e. 24th November 2006.” 5.2 The Apex Court, in the order dated 13th November 2006, referred to paragraph 131 of P.A. Inamdar judgment (supra) and factual scenario about the dispute in the next paragraph and criteria laid down by Justice R.J. Shah Committee to construe the definition of “NRI”. In third paragraph, it is observed that admission in medical colleges normally should have been finally concluded before 30th September, and in the academic year 2006-2007, it is long over-due and, if 15% of students are not allowed to be admitted under NRI quota, there may be financial loss to those colleges and the seats would go waste and, therefore, in view of peculiar facts and circumstances of the case, in this year only, Their Lordships took a practical view of the situation and felt that the students to such colleges may be admitted under three categories of NRI SCA/1675/2007 10/34 JUDGMENT laid down thereafter and, in the same paragraph, it was made clear that the above pro-tempore paradigm was exclusive for the Academic Year 2006-2007 as one time arrangement because of the peculiar facts and circumstances. Besides, SFI's were given liberty to fill up the remaining NRI quota from the State list, in case, even if the above parameters are applied and sufficient number of students are not available and, lastly, if the candidates are much less in NRI quota, then to approach the Committee to restructure fees. 5.3 Thus, Their Lordships have taken into consideration paragraph 131 in the judgment of P.A. Inamdar [supra], which mandates that seats for NRI quota should be utilized by NRI bona fide only for their children or wards and, normally, in the quota of NRI, merit should not be given a complete go-by. However, after considering the difficulties faced by the students and colleges alike and interpretation of “NRI”, as defined under the Income Tax Act,1961, considered by Justice R.J. Shah Committee stricto-sensu, Their Lordships have given certain directions in the order dated 13th November 2006 and, there being no dispute with regard to Category Nos. 1 and 2 of the above order, the only dispute is with regard to category 3, for which arguments have been canvassed by the learned advocates at length after referring to various orders passed by Their Lordships in the Interlocutory and Intervention Applications, the kind of relationship of NRI sponsoring students with such students, ground for SCA/1675/2007 11/34 JUDGMENT rejection of such affidavits by Justice R.J. Shah Committee and also the statement made by the learned Additional Solicitor General before the Apex Court and also kind of requirement to file such affidavits, as per direction of Their Lordships. 5.4 The above dispute regarding admission to Medical Colleges for the Academic Year 2006-2007 in the State of Gujarat, was resolved substantially by the order dated 12th October 2006 and Justice R.J. Shah Committee was given liberty to go into the objections and pass appropriate orders with regard to admission granted by the SFIs to admit 15% seats to the candidates from NRI quota. Therefore, when the criteria were laid down by Justice R.J. Shah Committee subsequently to determine category of NRI, the students aggrieved by the decision of Justice R.J. Shah Committee approached the Apex Court in I.A Nos.3-5 in Civil Appeal No.4481 of 2006, with I.A. No.13 in C.A. No.4480 of 2006 with I.A. Nos. 3-4 & 5-10, in C.A No.4482 of 2006, and an order came to be passed only in I.A. Nos. 3-5 in C.A. No.4481 of 2006 and I.A. Nos.11-12 in C.A. No.4480 of 2006 and IA No.13 in C.A. No.4480 of 2006. 5.5 It is to be noted that IA Nos.6-7 filed by Justice R.J. Shah Committee for clarification of Category 3 of order dated 13th November 2006 was rejected by order dated 24th November 2006, which reads as under: SCA/1675/2007 12/34 JUDGMENT “I.A. Nos.6-7 in C.A. No.4481/2006 No clarification is required in view of the order passed by this Court on 13th November 2006. I.A. is disposed of accordingly. I.A. Nos.3-5 in C.A. No.4481/2006 These applications are disposed of in terms of the order passed by this Court on 13th November 2006. I.A. Nos.11-12 in C.A. No.4480/2006 As regards respondent No.4-college, counsel for the applicant/petitioner prays for withdrawal of the application with liberty to file a fresh application. Permission granted for doing so. As regards respondent No.3 - The Committee will take appropriate action to fill up the remaining seats within a period of 10 days in terms of the order passed by this Court on 13th November 2006. I.A.s are disposed of accordingly. I.A. No.13 in C.A. No.4480/2006 By order dated 12th October, 2006, this Court had permitted the professional/self-financing colleges in the State of Gujarat to fill up 15% of the NRI seats on the basis of the observations made by this Court in the case of P.A. Inamdar & Ors Vs. State of Maharashtra & Ors., 2005 (6) SCC p.587. It is alleged by the petitioner – three in number, that they had secured admission in the Dental Colleges pursuant to the order of this Court on 12th October, 2006 but by the subsequent order passed by this Court on 13th November 2006, these petitioners have been denied admission. In the order passed on 13th November, 2006 we had indicated certain criteria on which the admission of the 15% NRI quota was to be regulated. Following the order passed on 13th November, 2006, all admissions are over and the colleges have already submitted the details of the admissions to the Committee. As regards admissions, Justice Shah Committee has to take a decision. In case any seats are still vacant the claim of the petitioners shall be considered by the Committee and appropriate directions shall be passed. This may be done within a period of 10 days. I.A. is disposed of accordingly.” 5.6 Later on, order dated 15th December 2006 came to be passed, where Their Lordships have ratified 67 admissions in the NRI quota and rest of the applicants were directed to approach this Court. The order dated 15th December 2006 is reproduced hereinbelow: SCA/1675/2007 13/34 JUDGMENT “Heard both sides. As regards the 9 private unaided medical colleges in the State of Gujarat, 120 applications were received under the NRI quota and out of the same 54 candidates were found eligible by the Shah Committee. Learned Addl. Solicitor General submits that four more candidates are eligible to be accommodated; another five candidates have submitted their applications beyond the period of time allotted, yet their applications could be considered for admission; four other candidates who have not submitted proper documents have been asked to file fresh documents and their admission would also be considered in accordance with the earlier order passed by this Court on 13th November 2006. For these 67 candidates, admissions are likely to be approved by the Shah Committee. We ratify the same. As regards the rest of the candidates, they would be at liberty to take appropriate action before the High Court. The applicants/their parents herein are at liberty to produce the documents before the Committee within 3 days and the Committee would be at liberty to take a final decision within 10 days.” 5.7 Therefore, the scope