IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 5819 of 1998 For Approval and Signature: Hon'ble MR.JUSTICE M.S.PARIKH ============================================================ 1. Whether Reporters of Local Papers may be allowed to see the judgements? 2. To be referred to the Reporter or not? 3. Whether Their Lordships wish to see the fair copy of the judgement? 4. Whether this case involves a substantial question 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 Civil Judge? -------------------------------------------------------------- SHAH DIMPLE JAYENDRAKUMAR Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: MR BHASKAR TANNA, Sr. Counsel with MR DC DAVE for Petitioners MR PG DESAI, LD. GP. for Respondent No. 1 & 2 MR HAROOBHAI MEHTA, Ld. Sr. Counsel as Intervener MR DA BAMBHANIA For Respondent No.4 MR AH MEHTA with MR KV SHELAT for respondent no.5 NOTICE SERVED to Respondent No.3. -------------------------------------------------------- CORAM : MR.JUSTICE M.S.PARIKH Date of decision: 08/09/98 JUDGEMENT Rule. Service of rule waived by the Mr. P.G. Desai, Ld. G.P. for the respodnent-State and the learned advocates appearing for other respondents. 2. In the interest of the students at large this petition is taken up for final disposal at the admission stage. Even the learned advocates and the Ld. G.P. appearing for the parties as well as Mr. Haroobhai Mehta, learned senior counsel, who has been permitted to intervene, have argued the matter at length. Having heard them I now proceed to dictate this judgment. 3. In this petition under Article 226 read with Articles 14, 21, 15(4) and 16(4) of the Constitution of India the petitioners have prayed for following reliefs :- "(A) That this Hon'ble Court be pleased to issue a writ of mandamus and/or any other appropriate writ, order or direction commanding the respondents to implement the provisions embodied in Rule 6 of the said Rules, which, inter-alia, figure at Exh. 'B' to the petition; (B) That this Hon'ble Court be pleased to issue a writ of mandamus and/or any other appropriate writ, order or direction commanding to the State of Gujarat not to implement reservation to the extent of 27% in favour of S.E.B.C. and thereupon, to confine the same to the extent of 10% to the total available seats in respect of various disciplines without creating additional seats in the form of supernumerary seats in respect of various disciplines to the extent of 17%,as assured vide the Government Resolution of the date 23rd February, 1994, appearing at Exh. 'E' to the petition; (C) That this Hon'ble Court be pleased to issue a writ of mandamus and/or any other appropriate writ, order or direction commanding to the respondents to exclude seats reserved for NRI quota at Pramukh Swami Medical College, Karamsad while computing seats to be reserved for various categories referred to in Rule 2 of the said Rules at Exh 'B' to the petition and, thereupon be pleased to declare the portion of the said Rule 2 of the said Rules, which speaks about inclusion of seats reserved for NRI quota while computing total seats to be reserved for reserved category at Pramukh Swami Medical College, Karamsad; (D) That this Hon'ble Court be pleased to issue a writ of mandamus and/or any other appropriate writ, order or direction commanding to the State of Gujarat to comply with the provisions embodied in Rule 2.5 of the said Rules at Exh. 'B' to the petition stricto sensu without earmarking seats, which are not filled in from S.T. category for Nomadic Tribe and Denotified Tribe and, thereupon, be pleased to declare the Government Resolution dated 29th May, 1998 at Exh. 'H' to the petition as null and void; (E) That this Hon'ble Court be pleased to issue a writ of mandamus and/or any other appropriate writ, order or direction commanding to the State of Gujarat to implement the relevant rules in the discipline of of Engineering and Pharmacy, which are pari materia to the Rules referred to hereinabove as per the directions imparted by this Hon'ble Court with reference to the said Rules at Exh. 'B' to the petition; The petitioners have claimed for interim relief to implement Rule 6 and in the alternative to command to the respondents to follow the formula evolved by this Court vide its order dated 31/8/1995. 4. At the out set it might be noted that all the aforesaid reliefs revolve round Rule 6 concerning reservation of 27% seats for admission to 1st M.B.B.S., 1st B.D.S. Course and 1st Physio Pherapy course at the Government medical college, P.S. Medical College, Government Dental Colleges, school of Physio Therapy in the Gujarat State. It would, therefore, be appropriate to reproduce Rule 6 as it stood before what transpired before this Court in respect of the said rule : '6. The difference between the marks obtained by the socially and educationally backward classes students including widows/orphan children seeking admission against reserved seats and those obtained by students seeking admission by the open merit list should not be more than 5% at each college. Only those marks which are considered for determining merit order of the candidate will be considered for determining under the rule." The aforesaid rule which stood as approved vide G.R. No. (MCG/1097/4234/J/ Dt.25-5-1998) would also consist of the following note below the rule and the same also might be reproduced since as can be seen hereafter, part of the reliefs would also relate to the note as appended to rule 6 in the aforesaid Rules : "Note - The admission of candidates of socially and economically backward classes on 27% reserved seats shall be made as per the interim order of Hon. High Court of Gujarat dated 31/7/1996 in SCA No. 5484/96 until disposal of LPA No. 712/95." 5. The second part of the reliefs might be stated as arising from the amendment in the petition. It relates to the Government Notification dated 10/7/1998 concerning the aforesaid rules for the year 1998-99. It refers to Government Resolution, Health and Family Welfare Department No. MCG/1097/4234/J dated 25/5/1998 and the oral order of the Division Bench in L.P.A. No. 712/1995 in S.C.A. No. 5258/1995 dated 20/6/1998. Rule 6 as it stood coupled with the note as stated above, has been deleted while accepting the decision dated 5/8/1995 of this Court (Coram : S.M. Soni, J.) holding Rule 6 as stood originally and without the note as ultra vires and striking down the said rule. Reference has also been made to the disposal of the aforesaid L.P.A. wherein interim arrangement by order dated 31/8/1995 to fill up the seats reserved for S.E.B.C. candidates was arrived at and continued vide the L.P.A. Court's order dated 31/8/1995 till the final disposal of the said L.P.A. It has been recited that the said L.P.A. has been disposed of on 20/6/1998 as having become infructuous. The Government accepted the decision of the learned Single Judge referred to hereinabove and resolved to delete Rule 6 alongwith the note from the Rules for admission to 1st M.B.B.S., 1st B.D.S. course, 1st Bachlor of Physio -therapy course at Government Medical Colleges, P.S. Medical College, Government Dental Colleges, School of Physio Therapy in the State of Gujarat for the year 1998-99. The last line after para. 2 on page 1 of the aforesaid admission rules "Please see note below Rule 6 on page 3" is also deleted by the said notification. Thus, second part of the relief seeks to continue the aforesaid Rule 6 coupled with the note referring to the interim arrangement devised as per the concensus amongst the parties by the Division Bench in the aforesaid Letters Patent Appeal for the current year as the notification should be held not to apply retrospectively and that it should be held to have prospective operation, that any attempt to attribute retrospective operation to the said resolution would have the ultimate effect of rendering the said Government Resolution as unconstitutional in nature, that Rule 6 with the aforesaid note remained in force without any kind of modification till the last date of submission of forms for admission, namely 22/6/1998, that in any case Rule 6 alongwith the note remained in existence when the Rules came to be published for the academic year 1998-99, that the students were specifically and categorically guided by such rule with the note to fill up the forms for admission based upon a clear understanding about the existence of rule alongwith note and with full expectation that the admission forms would be processed accordingly. KEEPING IN MIND the aforesaid reliefs the submissions made by the learned counsels, and learned Government Pleader might be considered : I 6. It would not only be appropriate but be just and proper as well as in public interest to deal with the second part of the reliefs quoted hereinabove in the first instance. Not only for that purpose, but also for all purposes reference first will have to be made to what transpired in 1995 when reservation for Socially and Educationally Backward Classes (for short 'S.E.B.C.') to the extent of 27% in place of 10% was introduced. Rule 6 as a consequence of the reservation was introduced in the aforesaid Rules by Government Notification. Rule 6 was then without the note appended thereto. One minor Arpita J. Bamania through her guardian Jitendra Bamania, challenged the said rule under Article 226 of the Constitution of India before this Court in Special Civil Application No. 5258 of 1995. She sought declaration about the rule to be ultra-vires, arbitrary, illegal, unconstitutional, null and void and prayed for preparing the merit list of the candidates belonging to the reserved category. There was no challenge to any other rule of the Rules except rule 6 in the said petition. The submission before this Court was that when policy of reservation for S.E.B.C. was accepted and 27% seats were reserved, making provision of rule 6 would amount to adding further qualification or dis-qualification in contravention of the reservation for S.E.B.C. so made. In reply it was submitted that there was already report of Baxi Commission appointed by the Government of Gujarat to make recommendations in respect of socially and educationally backward classes and S.E.B.C.s did not have anything in common with the candidates belonging to scheduled castes and scheduled tribes. It was submitted that if rule 6 was held ultra-vires, rule 2 of the aforesaid Rules should also go on the principle of non-severability of the two rules. Reference was made to a decision of the Hon'ble Supreme Court in the case of Indra Sawhney v/s. Union of India reported in AIR 1993 SC 477, popularly known as Mandal case and hereinafter referred to as 'Indra Sawhney's case. Rules 2, 2.4, 2.5, 4, 4.1(a), 4.1(b), 4.1(c) and 6 were quoted for the purpose of appreciating the submissions canvassed on behalf of the rival parties. Observations of the Hon'ble Supreme Court in Indra Sawhney's case (supra) appearing at paras. 87 and 88 were excerpted. Reference was also made to a decision of the Apex Court in the case of State of Andhra Pradesh v/s. U.S.V. Balaram reported in AIR 1972 SC 1375. Paras. 79 and 80 of the said decision were quoted for observing that for the purpose of deciding whether the particular community would fall within the bracket of S.E.B.C., they need not be exactly similar in all respects to that of Scheduled Castes and Scheduled Tribes. Reference was then made to one more decision of the Apex Court in the case of Janki Prasad Parimoo & ors. v/s. State of Jammu and Kashmir & ors. reported in AIR 1973 SC 930 for the purpose of noting the test how to include a particular community in S.E.B.C. For that purpose para. 22 of the decision in that case was reproduced. Reference has then been made to Indra Sawhney's case (supra), which has in turn over-ruled the aforesaid decision in Janki Prasad's case. Reference in that connection was made to para. 121 (3) (a) to (d) of the decision of Indra Sawhney's case (supra). It has been observed that as per the decision in Indra Sawhney's case, it was not necessary for a class to be designated as a backward class and that it was situated similarly to the scheduled castes and scheduled tribes. Therefore, though the candidates of S.E.B.C. are comparable with scheduled castes and schedules tribes, they were discriminated by providing rule 6, whereby a further dis-qualification was put for admission in the professional course. Reference was made to the report of Baxi Panch at length and once-again reference was made to Indra Sawhney's case (supra) and from the observations quoted from the said decision and while referring to Articles 15(4) and 29(2) of the Constitution of India and dealing with the decision in the case of Miss Rita Kumar v/s. Union of India reported in AIR 1973 SC 1050, it was held that purpose of reservation to bring about real equality stood intercepted by the qualifications contained in rule 6. This Court quoted : "Vidya Dadhati Vinayam : is learning gives modesty Vinayat Yati Patradham : is worthiness by modesty and observed that worthiness would mean capacity to sit with, stand by and equiate with the persons of unreserved category. It has been held that rule 6 cannot be said to be either concession or relaxation or exemption, but was contrary to that and, therefore, instead of enhancing the purpose of reservation for bringing about real equality it would destroy the very purpose of reservation. Observations appearing in para. 111 of the Indra Sawhney's case (supra) were quoted. This Court then proceeded to consider the submissions made in defence that rule 6 was framed in view of the policy of the Government reservation based on the report of Baxi Commission and this Court ought not to interfere with the same. In support of the defence reference was made to decisions in the case of State of Rajasthan v/s. Sevanivatra Karmachari Hitkari Samiti reported in 1995 (1) J.T. 315, Sitaram Sugara v/s. Union of India reported in AIR 1990 SC 1277 and para. 300 of Indra Sawhney's case (supra). This Court once again observed that when rule 6 had not rational with the reservation policy of the State it would appear to be arbitrary, capricious and whimsical as even report of Baxi Commission would not disclose any reason why difference of 5% marks was provided for. Considering the arguments revolving round Article 15(4) of the Constitution of India and dealing with the submissions made in defence, this Court held as under :- "It may be stated that in view of the fact that high percentage of marks are obtained by the students of the open merit seats and there is likelihood of vast difference of percentage of marks with the students of reserved category, the State to maintain standard of education and raise merits, may, keeping in mind the present raised standard raise reasonably the percentage of minimum qualifying marks which is 45% for SCs and STs and 55% for all other categories which includes SEBC vide Rule 4.1(a), (b) and (c). In the result, the petition is allowed. Rule 6 of the Rules for admission to 1st M.B.B.S./1st B.D.S./1st B.Physio course at the Government Medical Colleges - P.S. Medical College, Karamsad - Govt. Dental Colleges Schools of Physiotherapy in the Gujarat State, 1995-96 is held ultravires Article 14 of the Constitution of India and is declared null and void and is hereby struck down. The respondents are directed not to implement the said Rule 6 for considering admission in 1st M.B.B.S. course. Rule is made absolute with costs." Relevant propositions find place in the report of the decision contained in 1995 (2) G.L.R. p. 1487. It appears that Civil Application No. 1636 of 1995 was moved by two of the students from the general category and since learned counsel appearing for the said students was heard as an intervener the said Civil Application was disposed as having become infructuous as per order dated 7/8/1995 when the aforesaid decision was rendered by this Court. The above decision of the learned Single Judge was taken in Letters Patent Appeal bearing L.P.A. No. 712/1995. Following interim order was passed in Civil Application No. 1868 of 1995 in L.P.A. No. 712/1995 on 31/8/1995 (Coram : B.N. Kirpal, C.J. and R.K. Abichandani, J. - Per B.N. Kirpal, C.J., as His Lordship then was) :- "We heard the counsel for the parties at length. We have also heard Mr. Girish Patel, learned counsel appearing on behalf of some of the interveners as well as Mr. Haroobhai Mehta, Senior Standing Counsel for the Union of India. By way of an interim arrangement and the consensus amongst the learned Advocates representing the diverse interests, they invite this Court to pass an order which will have the following effect : There are 213 SEBC seats on the basis of 27% reservations. out of this, 79 seats will be filled in from SEBC candidates by invoking Rule 6. 134 seats remain which, as per the judgment of the learned Single Judge, are to be filled in from the SEBC candidates. The consensus amongst the counsel on which the order of the Court is invited, is that 50% seats out of the above 134 seats, namely 67 will be filled in by open merit and the remaining 67 seats (in addition to the above 79 seats) will be filled in by SEBC candidates without applying Rule 6. Shri S.N. Shelat, learned Additional Advocate General appearing for the State Government, states that it will regulate the admission as per the above agreements and direction. Order accordingly. A similar formula, it is agreed, will be applicable with regard to the seats in the Dental Colleges as well as in the Physiotherapy Colleges and accordingly, as agreed by all the counsel, 26 seats in Dental Colleges will be filed in by SEBC candidates and 11 seats will be filled in by SEBC in Physiotherapy. The aforesaid seats are to be filled in against the reserved seats for SEBC. The quota of S.C./S.T. is no way diluted or disturbed. This arrangement will be applicable for the academic year beginning 1995-96. Appeal and the connected matters are directed to be listed for final hearing after the Diwali vacation." Then, in Special Civil Application 5484 of 1996 the Division Bench consisting of G.D. Kamat, C.J. and C.K. Thakkar, J. had the occasion of passing following order on 31/7/1996 which finds its place in the note to Rule 6 quoted above : "We have heard learned counsel for the parties on admission and interim relief. Rule- Mr. Raval, AGP waives service of rule on behalf of the respondents. It is agreed that by way of interim arrangement, the order made on 31st August, 1995 in Civil Application No. 1868 of 1995 in Letters Patent Appeal No. 712/1995 be made in the present case. Accordingly, it is open to the respondents to fill up seats in Medical, Dental, Pharmacy and Physiotherapy Colleges in the ratio as follows :- 18.50% for S.E.B.C. and 8.50% for open general category. However, it is clarified that 10% out of 18.50% shall be by invocation of Rule 6 of the Admission Rules. Needless to say that this arrangement is until disposal of L.P.A. No. 712/1995 and the present Special Civil Application to be heard with L.P.A. No. 712/1995." It has been submitted that after the disposal of the L.P.A. on 20/6/1998 the Government issued notification dated 10/7/1998 whereas the students passing the H.S.C. examination had filled in the forms on the basis of Rule 6 read with the note as aforesaid. The admission process already stood initiated on the basis of the existing rules. There was therefore, legitimate expectation for the students at large to apply for admissions in the aforesaid medical and allied courses. The notification therefore, could not be validly issued so as to apply retrospectively. In reply, it has been submitted from the relevant dates noted above that, the merit list was not prepared, the admission process was not completed and therefore, the notification could not be said to be not validly issued particularly when the life of interim arrangement reflected in the note to Rule 6 was till the L.P.A. was disposed off. Now it must be noted with care that the interim arrangement was not only arrived at by general consensus, but the L.P.A. Bench also appeared to have found it to be in the interest of students at large seeking admission in the above courses. The arrangement successfully worked for three consecutive years with peace in both the sections of students. Thus, it could be submitted that public interest attached with its operation concerning students at large who applied for admission on the basis of the arrangement reflected in the note to Rule 6. There has been clearly an adverse effect on their settled rights. Added to this is the disposal of the L.P.A. as having been sought to have become infructuous and not on merits. In my opinion, for all these reasons the principle noted in para. 20 of Kumari Jayshree v/s. State reported in 1979 (20) G.L.R. p. 614 needs to be applied. The applicant in that case filed petition for admission to one of the Government Medical Colleges challenging validity of Rule 5.2(A) added on 1st July, 1978 in the rules for Admission to First M.B.B.S. course. One of the grounds of challenge to the introduction of rule was that it was introduced after the last date for filing applications for admission had expired and therefore, it could not have been validly enacted more so because it altered the position in such a manner as it affected and altered settled rights by retrospective operation. In that respect this Court observed as under :- ".......... Now, it might be clarified at the outset that though the State Government has every right to frame rules regulating admission to Government Colleges based on certain rational policy and to amend them, if occasion arises, to remove any defect or lacuna, it would be always desirable to formulate and finalise such rules with precision well in advance and to make the rules relating to admission known to the intending applicants at a point of time reasonably anterior to the last date of admission. In a society governed by the rule of law, certain basic principles must be observed. One of such principles is that enactments or orders governing public rights and duties must be open and adequately published and that they should be relatively stable. If such an enactment or order is to guide the people, they must be able to find out what it is and it should not be changed too often. An ambiguous, vague, obscure or imprecise enactment or order is likely to misguide or confuse those who are to be guided by it and too frequent changes would make it well-nigh difficult, if not impossible, for the people to make long term planning and decisions (see Joseph Raz on "The Rule of Law and its Virtue", The Law Quarterly Review, Vol. 93, page 195). Indeed, F.A. Hayek's definition of the rule of law is : "....... this means that Government in all its actions is bound by rules fixed and announced beforehand-rules which make it possible to foresee with fair certainty how the authority will use its powers in given circumstances and to plan one's individual affairs on the basis of this knowledge" (See "The Road to Serfdom." p.54). In this connection, it would be worthwhile to recall the observations made by the Supreme Court in Jaisinghani v. Union of India, AIR 1967 S.C. 1427 at page 1431. It was there pointed out that the absence of arbitrary power is the first essential of the rule of law upon which our whole constitutional system is based. In a system governed by rule of law, discretion, when conferred upon executive authorities, must be confined within clearly defined limits.