SCA/9053/2002 1/22 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 9053 of 2002 With SPECIAL CIVIL APPLICATION No. 9542 of 2002 With SPECIAL CIVIL APPLICATION No. 9716 of 2002 With SPECIAL CIVIL APPLICATION No. 7792 of 2002 With SPECIAL CIVIL APPLICATION No. 8462 of 2002 With SPECIAL CIVIL APPLICATION No. 3679 of 2003 With SPECIAL CIVIL APPLICATION No. 3690 of 2003 With SPECIAL CIVIL APPLICATION No. 4687 of 2003 For Approval and Signature: HONOURABLE MR.JUSTICE JAYANT PATEL ========================================= = 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================= = SONI SWETA N. AND OTHERS Versus STATE OF GUJARAT AND OTHERS ========================================= =Appearance in SCA No. 9053 of 2002: MR AMIT M PANCHAL for the Petitioners MR SHIVANG SHUKLA,ASSTT GOVERNMENT PLEADER for Respondent Nos.1 & 2 MR AD OZA for Respondent No. 3 MR KG PANDIT for Respondent No.4 MR AR THACKER for Respondent No. 5 Appearance in SCA No. 9542 of 2002: SCA/9053/2002 2/22 JUDGMENT MR PRADEEP PATEL for the Petitioners MR SHIVANG SHUKLA,ASSTT GOVERNMENT PLEADER for the Respondents Appearance in SCA No. 9716 of 2002: MR PRADEEP PATEL for the Petitioners MR SHIVANG SHUKLA,ASSTT GOVERNMENT PLEADER for the Respondents Appearance in SCA No. 7792 of 2002: MR PRADEEP PATEL for the Petitioner MR SHIVANG SHUKLA,ASSTT GOVERNMENT PLEADER for the Respondents Appearance in SCA No. 8462 of 2002: MR PRADEEP PATEL for the Petitioner MR SHIVANG SHUKLA,ASSTT GOVERNMENT PLEADER for Respondent Nos. ! & 2 MR AR THACKAR for Respondent No.3 MR SUNIL PARIKH for Respondent No.4 Appearance in SCA No. 3679 of 2003: MR PRADEEP PATEL for the Petitioners MR SHIVANG SHUKLA,ASSTT GOVERNMENT PLEADER for Respondent Nos.1 & 2 MR AD OZA for Respondent No. 3 Appearance in SCA No. 3690 of 2003: MR PRADEEP PATEL for the Petitioners MR SHIVANG SHUKLA,ASSTT GOVERNMENT PLEADER for Respondent Nos.1 & 2 MR SUNIL B PARIKH for Respondent No. 3 Appearance in SCA No. 4687 of 2003: MR MR PRADEEP PATEL for the Petitioners MR SHIVANG SHUKLA,ASSTT GOVERNMENT PLEADER for Respondent Nos.1 & 2 MR AD OZA for for Respondent No. 3 MR AR MAJMUDAR for Respondent No.4 ========================================= = CORAM : HONOURABLE MR.JUSTICE JAYANT PATEL Date : 16/04/2008 COMMON ORAL JUDGMENT 1. As in all the petitions common questions arise for consideration and, therefore, they are being considered by this common judgment. 2. Special Civil Application No. 9053 of 2002 is preferred by the students aspirant to study in the college of Homeopathy with the prayer to quash and set aside the communicate Annexure-C dated 1.4.2002/1.5.2002 issued by respondent No. 2 to respondent No. 5 intimating that for the academic year of 2001-2002, the proposal for SCA/9053/2002 3/22 JUDGMENT allotment of the seats of NRI quota is not accepted and for the academic year of 2001-2002 admission granted in NRI quota are cancelled. 3. It appears that, as per the aforesaid, the petitioners, they were granted admission by the college/management on the NRI quota, and it is the contention of the petitioners that, as per the decision of the Apex Court in case of TMA Pai foundation v. State of Karantataka and others reported at (2002) 8 SCC 481, the Government, in any case, even if was to consider the question of grant of approval or otherwise on the management quota, could not have exercised the power without giving opportunity of hearing to the petitioners. 4. When this Court considered the matter at the admission stage on 30th October, 2002 following order was passed in the present petition: “Rule. 2. Considering the facts and circumstances of the case, since the petitioners are already admitted and are studying since about more than 11 months, I am of the view that the petitioners-students should be allowed to prosecute their studies without any interference by the Govt. However, at the same time, it also, primafacie, appears that the college authorities, namely, respondent No.5 herein has granted admission to students by commiting the breach of the policy of the State Govt for the purpose of giving admission to NRIs and therefore I am inclined to pass the following order: "(i) By way of interim relief it is directed that the petitioners shall be allowed to prosecute their studies and no interference shall be made by the respondents on the ground that prior approval is not obtained and the operation of order dated 1.4.02 qua the petitioners only shall remain stayed. However, this order is passed without prejudice to the action which may be taken by the court against the respondent No.5 herein for committing breach of the admission process settled by the State Govt SCA/9053/2002 4/22 JUDGMENT (ii) Therefore, the respondent No.5 shall show cause as to why prosecution be not launched against the responsible persons in the management of respondent No.5 college for committing breach of admission process and playing with the career of students and shall further show cause as to why the compensation should not be awarded to the students. (iii) Such affidavit shall be filed on or before 22.11.02 and the matter shall be put up on 2.12.02." 5. It appears that there after this Court (Coram: M.S. Shah, J.) subsequently directed the trustees to remain present and they are also present. On 21.4.2003 following order was passed by this Court (Coram: A.R. Dave,J.): “This petition had been admitted on 30.10.2002. After hearing the learned advocates, this court had granted interim relief. In view of the fact that interim relief has already been granted in favour of the petitioners, in my opinion, nothing further is required to be done. It has been requested by the learned advocates that the matter should be fixed for final hearing at an early date. At the request of the learned advocates, the matter is ordered to be notified for final hearing on 25.6.2003. Learned Government Pleader Shri A.D. Oza has cited the following two judgments for consideration of this court so as to get the interim relief vacated : 1. Council for Indian School Certificate Examination v. Isha Mittal and anr., (2000) 7 SCC 521 2. C.B.S.E. & anr v. P. Sunil Kumar and ors., (1998) 5 SCC 377 Learned advocate Shri Amit Panchal has also referred to several judgments. I need not refer to or deal with all those judgments in view of the fact that interim relief had already been granted after hearing the learned advocates. It would be open to the learned advocates to argue the matter at length at the time of final hearing.” SCA/9053/2002 5/22 JUDGMENT 6. As a result thereof, in view of the aforesaid orders and development, the decision of the State Government came to be stayed but the same was without prejudice to the action, which may be taken by the Court against respondent No. 5 for committing breach of the admission process settled by the State Government. 7. Special Civil Application No. 9542 of 2002 has been preferred by Shri Mahalaxmi Homeopathy Medical College for challenging the resolution of the State Government dated 6.9.2001 to fill-up of the sanctioned seats, and it is also prayed to quash and set aside the resolution of the Government that all vacancies after the admission granted by the Centralised Admission Committee, namely that of NRI seats or payments seats be filled-up in a particular manner and the seat shall stand lapse and the other directives are also issued for regulating admission on NRI quota by the Government. 8. The principal grievance in the present petition appears to be that even if the Government/Centralised Admission Committee is enabled to fill-up the seats, the same would lapse and further on the NRI seats or NRI sponsored seats the institution will be entitled to fill-up such seats and therefore the challenge. 9. This Court when considered the matter at the admission stage on 30th October, 2002 had passed the following order: “Heard Mr.Patel for petitioners and Ms.Manisha Shah and Mr.Gori, Ld.AGPs for respondent Nos 1 & 2 in Spl.C.A.Nos 9542 & 9716 and 7792/02 respectively. 2. The contention of the petitioners is that so far as Medical, Physiotherapy and Engineering is concerned the State Govt has allowed the filling up of seats in NRI quota by leaving to the management and procedure required is only that the same will be subject to the approval of the State Govt. Whereas so far the petitioner Homeopathy colleges are concerned, the separate committee is constituted and separate method is provided for the purpose of regulating the admission even for NRI quota. The Ld. AGPs have SCA/9053/2002 6/22 JUDGMENT contended that the complaints are filed against the Homeopathy colleges that the extraneous demands are made and they have further submitted that in the said committee there will be one person from the management, the principal of the college and a Govt officer. It has been submitted on behalf of the Govt that the intention is to have transparency in the admission process of NRI seats. Therefore, whether the petitioners- colleges are discriminated or not is a question which will be decided by this court finally and in the mean time if the petitioners-colleges are allowed to give admission by putting at par with the other Govt colleges in Medical, Physiotherapy and Engineering, it would result into nullifying the effect and are allowing the petitions at this stage. At the same time, if the proper orders are not passed it may happen that the college authorities may not follow the admission process and as a result thereof the career of students may be put at stake. I have taken note of the orders passed in SCA Nos 9253/02 and 8462/02 in which it has come on record of the court that the admissions have been granted by the college authorities by committing the breach of said procedure for admissions and as a result thereof the students are made to suffer and the situation is created which would make whole position irreversible and the students are compelled to file petitions. Therefore, I am of the view that the larger interest of the students is also required to be protected and until Govt takes final decision if the respondents are allowed to process the admission as per the present resolution no prejudice can be said to have been caused to the college authorities since instead of management the Committee shall decide to grant prior approval for admission. Therefore, I am inclined to pass the following order: (i) Rule. (ii) By way of interim relief it is directed that the petitioners colleges shall not give any admission unless prior approval is granted for admission by the committee which is constituted pursuant to resolution. It is also made clear that the said admission process which may be undertaken by the committee shall be subject to further orders which may be passed by this court finally. 3. It is further directed that if the forms are collected by the petitioners colleges and are forwarded to the committee, the same shall be submitted for approval of the committee, which will be constituted by the concerned authority within a period of one week from the date of receipt SCA/9053/2002 7/22 JUDGMENT of intimation for such purpose from the petitioners colleges and the committee shall consider the same for the purpose of giving approval for admission. However, under no circumstances the petitioners colleges shall give admission to any student for whom prior approval is not granted by the committee. 4. If any admissions are granted by the petitioners colleges without prior approval of the committee it will be open to the concerned authority to take steps against the managements in accordance with law. 5. Final hearing of these petitions is fixed on 24.12.02. Put up the matters on 24.12.02 for further orders,.” 10. Therefore, in view of the aforesaid interim order, the petitioner colleges were restrained from giving any admission unless prior approval was granted by the committee constituted pursuant to the resolution of the Government, and the process was also laid down for regulating admission as per the direction given hereinabove including that if the admission granted by the petitioner colleges without prior approval of the committee, it will be open to the concerned authority to take step against management in accordance with law. 11. Special Civil Application No. 9716 of 2002 is preferred by Ahmedabad Homeopathy Medical College for the relief inter alia to challenge the Government resolution dated 6.9.2001 for filling-up of the payment seats and NRI seats through Centralised Admission Committee and also for challenging the very resolution and the action taken. When this petition came to be considered for the admission, the aforesaid order dated 30th October, 2002 was passed even in the present petition. Thereafter, this petition was taken up with Special Civil Application No. 8462 of 2002 and allied matters and the following order was passed by this Court (Coram: M.S. Shah, J.) on 26.12.2002. SCA/9053/2002 8/22 JUDGMENT “Having heard the learned counsel for the parties, it appears to the Court that after giving admission to the student who was at Sr. No.1621 through the Centralised Admission Committee on 17-1-2002, the admission process was closed and only the name of one Scheduled Caste candidate Mr Prakash V Dabhi was forwarded by the Centralised Admission Committee on 21-1-2002 so as to fill in all the 85 seats in First Year Homeopathy course at respondent No.3 - College. It appears that Mr Prakash V Dabhi did not join the College pursuant to the said admission. Pursuant to the inquiries made by the petitioner himself - as the College itself does not claim to have written any letter to the candidates at Sr. Nos. 1622, 1623 and 1624 in the merit list - the College granted admission to the petitioner in Special Civil Application No. 8462 of 2002 on the seat lying vacant. 2. According to the State Government, no admissions could have been granted after the Centralised Admission Committee closed the admission process and strong reliance is placed on the Government Resolution dated 6-9- 2001 wherein it is mentioned that if any seats remain vacant after Centralised Admission Committee completes the admission process, such seats shall remain vacant for the rest of the academic year. According to the Government, therefore, the College management committed breach of the instructions contained in Government Resolution dated 6-9-2001. 3. Having regard to the fact that the petitioner in Special Civil Application No. 8462 of 2002 was already admitted to the payment seat before the end of April, 2002, Rule returnable on 3rd February, 2003. It is clarified that respondents No.1 and 2 will be at liberty to take action against respondent No.3 -College for breach of the instructions contained in Government Resolution dated 6-9-2001 after giving the College management an opportunity of being heard. It is also clarified that this Court has not expressed any opinion on the validity or otherwise of the Government Resolution dated 6-9-2001 which is already challenged by a College Management in Special Civil Application No.9716 of 2002. 4. As regards the interim relief being sought for by Mr Pradeep Patel for the petitioner against the University, it will be open to the petitioner to move this Court after the University is served with the notice of Rule.” SCA/9053/2002 9/22 JUDGMENT 12. Therefore, in view of the aforesaid order, the Court did not conclude on the validity of the Government Resolution dated 6.9.2001, which was subject matter of challenge in the present petition. 13. Special Civil Application No. 7792 of 2002 has been preferred by Shri Mahalaxmi Mahila Medical College for the relief inter alia for challenging the communications dated 1.4.2002 and 19.7.2002 intimating to the petitioner that the proposal of the petitioner for NRI seats has not been accepted and therefore, for the academic year 2001-2002 the admission granted on NRI seats be cancelled and the communication be made to the students concerned. The prayer is also made by the petitioner in the present petition to direct the respondent to accept the proposal of the petitioner for admission granted on NRI sponsored seats by approving the said list. 14. Special Civil Application No. 8462 of 2002 has been preferred by one of the student studying in Rajkot Homeopathy college for challenging the communication Annexure-A of the academic officers of the University for not accepting the enrollment forum and the admission granted by the college, since the same were not approved by the Centralised Admission Committee. This Court when considered the matter on 11.9.2002 had passed the following order: “1. Pursuant to the Notice of this Court Mr. Prakash Patel who is the Head Clerk of the respondent no.3 college is personally present before this court and states that they have not to engage any lawyer. Prima-facie, it appears that the college administration knowing fully well that without permission of the Centralised Committee, admission cannot be granted to the student, have granted admission which results into playing with the carrier of the student. It has been stated that Dr. Jayesh Patel is managing the affairs of the respondent no.3. It is therefore, directed that Dr.Jayesh Patel or respondent no.3 to explain as to why prosecution should be not ordered against him and SCA/9053/2002 10/22 JUDGMENT other responsible person of respondent no.3 and why compensation should not be fixed for playing with the career of the student. Such explanation to be submitted before this court on or before 20.9.2002. 2. Dr. J.S. Patel is directed to remain personally present before this court on 25.9.2002. If he does not remain present before this court on 25.9.2002, failing which the court shall be constrained to secure presence by passing coercive process. 3. It will be open to respondent no.3 to engage a lawyer if he so chooses.” 15. Thereafter, on 25.9.2002 following order was passed: “1. Pursuant to the order dated 11-9-2002, the Managing Trustee of respondent No.3 College, Dr.Jayesh Patel is personally present, who is identified by Mr.J.R.Nanavati, learned Counsel appearing on his behalf. Mr.Nanavati states that the affidavit is filed pursuant to the order dated 11-9-2002 and since he is appearing on his behalf, the presence of Dr.Jayesh Patel may be dispensed with. 2. In view of the above, Dr.Jayesh Patel may not be required to be present, since Mr.Nanavati is appearing. Put up on 8-10-2002.” 16. Subsequently on 26.12.2002 the petition was heard with the Special Civil Application No. 9716 of 2002 and following order was passed: “Having heard the learned counsel for the parties, it appears to the Court that after giving admission to the student who was at Sr. No.1621 through the Centralised Admission Committee on 17-1-2002, the admission process was closed and only the name of one Scheduled Caste candidate Mr Prakash V Dabhi was forwarded by the Centralised Admission Committee on 21-1-2002 so as to fill in all the 85 seats in First Year Homeopathy course at respondent No.3 - College. It appears that Mr Prakash V Dabhi did not join the College pursuant to the said admission. Pursuant to the inquiries made by the petitioner himself - as the College itself does not claim to SCA/9053/2002 11/22 JUDGMENT have written any letter to the candidates at Sr. Nos. 1622, 1623 and 1624 in the merit list - the College granted admission to the petitioner in Special Civil Application No. 8462 of 2002 on the seat lying vacant. 2. According to the State Government, no admissions could have been granted after the Centralised Admission Committee closed the admission process and strong reliance is placed on the Government Resolution dated 6-9- 2001 wherein it is mentioned that if any seats remain vacant after Centralised Admission Committee completes the admission process, such seats shall remain vacant for the rest of the academic year. According to the Government, therefore, the College management committed breach of the instructions contained in Government Resolution dated 6-9-2001. 3. Having regard to the fact that the petitioner in Special Civil Application No. 8462 of 2002 was already admitted to the payment seat before the end of April, 2002, Rule returnable on 3rd February, 2003. It is clarified that respondents No.1 and 2 will be at liberty to take action against respondent No.3 -College for breach of the instructions contained in Government Resolution dated 6-9-2001 after giving the College management an opportunity of being heard. It is also clarified that this Court has not expressed any opinion on the validity or otherwise of the Government Resolution dated 6-9-2001 which is already challenged by a College Management in Special Civil Application No.9716 of 2002. 4. As regards the interim relief being sought for by Mr Pradeep Patel for the petitioner against the University, it will be open to the petitioner to move this Court after the University is served with the notice of Rule.” 17. Special Civil Application No.3679 of 2003 is preferred by the students studying Ahmedabad Homeopathy College, who were granted admission in Ahmedabad Homeopathy College, challenging the action for not finalizing the admission granted to them by the authority. It is also prayed by the students concerned for finalizing the admission and consequently the enrollment by the University. In this petition, this Court (Coram: A.R. Dave, J.) on 9.4.2003, when SCA/9053/2002 12/22 JUDGMENT admitted the petition, had granted ad-interim relief in terms of para 21(c), whereby the direction was issued to respondent Nos. 1 and 2 to provisionally accept the forms sent by respondent No.4 College on 4.12.2001 and to approve the admissions and to grant enrollment and allow them to appear in the examination by acceptance of the examination forms, declaration of the result, etc. Thereafter, on 21.4.2003, following order came to be passed by this Court (Coram: A.R. Dave, J.): “The petitioners are students who were given admission to first year degree course of B.H.M.S.(Bachelor of Homeopathy Medicine and Surgery)by respondent no.4- Institution for academic year 2001-2002. 2. They have approached this Court with a grievance that respondent no.3- Saurashtra University, is not permitting the petitioners to appear at the examination which has already commenced today i.e. on 21st April,2003 at 11:00 a.m. 3. It is pertinent to note that by an ex-parte ad-interim order dated 9th April, 2003, respondent no.3 University was directed to provisionally accept the forms sent by respondent no.4 so that the petitioners can appear at the examination. Notice was issued by this Court on 1st April, 2003 which was made returnable on 8th April, 2003 and on 9th April, 2003 when the matter was heard, the learned A.G.P. had asked for time and therefore ad-interim relief was granted on that day. It has been submitted that the petitioners have already appeared at the examination today which commenced at 11:00 a.m. 4. It has been submitted on behalf of the petitioners as well as on behalf of respondent no.4 college that the petitioners had been given admission on the seats earmarked for NRI or NRI sponsored students and, therefore, as observed by the Hon'ble Supreme Court in the case of T.M.A. PAI FOUNDATION AND ORS. Vs STATE OF KARNATAKA AND ORS reported in (1994)4 Supreme Court Cases 728, it was open to the management to fill up the NRI quota as per discretion of the management as there was no application from NRI or NRI sponsored student. Learned advocates appearing for the petitioners as well respondent no. 4 have relied upon the following observation made in paragraph 3 of the said judgement; "We further make it clear that in case any seat in SCA/9053/2002 13/22 JUDGMENT the NRI quota remains unfilled, the same can be filled by the Management at its discretion." 5. It has been further submitted by the learned advocates appearing for the