SCA/874720/2008 1 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 8747 of 2008 With SPECIAL CIVIL APPLICATION No. 9623 of 2008 For Approval and Signature: HONOURABLE THE CHIEF JUSTICE MR. K.S.RADHAKRISHNAN and HONOURABLE MR. JUSTICE MOHIT S. SHAH ================================================= 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 ? ================================================= PARTH KEYUR PARIKH BEING A MINOR THROUGH HIS FATHER - Petitioner(s) Versus SMT NHL MUNICIPAL MEDICAL COLLEGE & 1 - Respondent(s) ================================================= Appearance : MR DC DAVE for Petitioner in SCA No.8747 of 2008 and MR ASIM PANDYA for HL PATEL ADVOCATES for Petitioner in SCA No.9623 of 2008. MR KB TRIVEDI AG with MR ABHISHEK MEHTA for M/S TRIVEDI & GUPTA for Respondent(s) : 1, MR K B TRIVEDI ADVOCATE GENERAL with MS SANGEETA VISHEN AGP for Respondent(s) : 2, ================================================= CORAM : HONOURABLE THE CHIEF JUSTICE MR. K.S.RADHAKRISHNAN and HONOURABLE MR. JUSTICE MOHIT S. SHAH Date : 22/09/2008 COMMON CAV JUDGMENT (Per : HONOURABLE MR JUSTICE MOHIT S. SHAH ) The petitioners herein, two in number, seeking admission to the NRI seats in respondent No.1 – NHL Municipal Medical College, Ahmedabad have raised questions about interpretation as SCA/874720/2008 2 JUDGMENT well as constitutional validity of the following definition of NRI seats in Section 2(i) of the Gujarat Professional Medical Educational Colleges or Institutions (Regulation of Admission and Fixation of Fees) Act, 2007 (hereinafter referred to as “the Act”) :- “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;” (emphasis supplied) 2. The thrust of the petitioners' contention is that the Legislature intended to give first preference to NRI students or children of NRIs, second preference to wards of NRIs and thereafter, if available, the remaining seats are to be given to dependents of NRIs for educational purpose. It is contended in the alternative that if this interpretation is not accepted, the above definition, in so far as it includes dependents of NRIs for education purpose is unconstitutional. 3. Before narrating the facts or enumerating the contentions, it would also be necessary to quote the provisions of Rule 7(C) of the Gujarat Professional Medical Educational Colleges or Institutions (Regulation of Admission and Payment of Fees) Rules 2008 (hereinafter referred to as “the Rules”) :- “7C. Non-Resident Indian Seats:- (1) The College or Institution shall issue advertisement in two English and two Gujarati leading newspapers inviting applications with details of the fees to be paid, eligibility criteria and number of seats available in Non-Resident Indian seats. (2) Candidates shall provide necessary documentary evidence of proof showing Non-Resident Indian Status of his own or parents or guardian of the wards or the person of whom he is dependent (for the education purpose); (3) Candidates passing qualifying examination from abroad, shall have to produce equivalence certificate from the Gujarat SCA/874720/2008 3 JUDGMENT Higher Secondary Education Board, Gandhinagar/Association of Indian Universities, New Delhi. (4) The Non-Resident Indian seats to be filled in by the management of the respective Professional Medical Educational College or Institution shall be on the basis of inter- se merit list of the students, who have applied, to be admitted against the Non-Resident Indian seats;” [emphasis supplied] 4. The case of the petitioner in Special Civil Application No. 8747 of 2008 – Parth Keyur Parikh is that he is a national and citizen of United States of America (USA), and that he was born in the USA. The petitioner appeared at the 12th Standard Examination in Science stream conducted by the Gujarat Secondary and Higher Secondary Education Board for the academic year 2007-2008. The petitioner obtained 81.66% marks in the subjects of Physics, Chemistry and Biology theory papers. The petitioner submitted an application to the respondent College for admission to the First M.B.B.S Course in Non-Resident Indian seats for the academic year 2008-2009. 5. The case of the petitioner in Special Civil Application No. 9623 of 2008 – Nishi Nikhil Patel is that she is a Non Resident Indian holding a green card of USA, that her parents are also NRIs holding green cards of USA and that the petitioner passed her qualifying examination from USA with 85.66% marks. 6. In the first petition which came to be filed on 30.6.2008, on the basis of the petitioner's apprehension that the authorities are not going to accept his interpretation of the Rules to give first preference to “genuine” NRI students or the children of NRI students, the petitioner prayed for interim relief against finalisation of the admission list. The learned Single Judge granted the ex- parte ad-interim injunction restraining the respondent – college from finalising the admission list. After hearing the learned counsel for the parties on the question of interim relief, this Court vacated SCA/874720/2008 4 JUDGMENT the ex-parte injunction by order dated 10.7.2008, which was challenged before the Hon'ble Supreme Court. The Special Leave Petition was disposed of with a request to this Court for taking up the petition for early final hearing. Both these petitions have accordingly been heard. Since they raise common questions of law, the petitions are being disposed of by this common judgment. Petitioners' Contentions 7. Mr Dhaval Dave and Mr Asim Pandya, learned counsel for the petitioners have submitted that there cannot be any reservation for Non-resident Indian students, except in accordance with the principles laid down by the Apex Court in paragraph 131 of the judgment in P.A. Inamdar and others Vs. State of Maharashtra and others – (2005) 6 SCC 537. It is submitted that since the Hon'ble Supreme Court considered only children or wards of NRIs as eligible for NRI seats, others cannot be considered eligible for NRI seats. It is also submitted that if at all students depending on NRIs for educational purpose are to be considered for NRI seats, such NRI - sponsored students can be considered only after giving first preference to NRI students and to children and wards of NRIs. The learned counsels have further submitted that as per the decision of the Apex Court in P.A. Inamdar case (supra), there can be quota for Non Resident Indian students for two valid reasons – (i) to enable the people of Indian origin who have migrated abroad to bring back their children to their own country for giving them education and also to inculcate the Indian culture and (ii) to help the institutions to generate funds. It is therefore, submitted that not giving preference to Non Resident Indian students like the petitioners will run counter to the principles laid down in the aforesaid judgment. SCA/874720/2008 5 JUDGMENT 8. It is submitted by Mr Pandya for the petitioner in Special Civil Application No.9623 of 2008 that the provisions of Section 2(i) of the Act completely annihilate the very concept of NRI. It means that a person bringing higher fees in recognized foreign currency whether he had his moorings in foreign country or not will be regarded as NRI which is violative of the semantics of the language. It is ex-facie contrary to the intention of the Hon'ble Supreme Court expressed in PA Inamdar case. It is also submitted that the disjunctive “or” in the definition provides for preferential treatment to the preceding category vis-a- vis the succeeding category. 9. Strong reliance is placed upon the judgment dated 24.7.2007 of the High Court of Punjab and Haryana in CWP No.10097 of 2007 (Sohrab Arora vs. State of Punjab) in support of the contention that admissions to NRI seats can only be given to NRIs who are themselves students or for NRIs whose children or wards are students and that even if the NRI sponsors are relatives of the students seeking admission, they cannot claim admissions to the NRI seats. Reliance is also placed on the decision dated 17.9.2007 of the Apex Court in Shikha Aggarwal vs State of Punjab arising from a decision of the Punjab and Haryana High Court in another petition. 10. Reliance is also placed upon the following decisions in support of their contention that the Court may read down the provisions in order to save the statutory provisions from being struck down :- 1. AIR 2000 SC 114 (Para 14) 2. AIR 1989 SC 558 (Para 11) 3. AIR 1980 SC 1042 (Para 111) 4. AIR 2003 SC 4278 (para 35) SCA/874720/2008 6 JUDGMENT Submissions on behalf of Respondents 11. On the other hand, Mr. Kamal Trivedi, learned Advocate General for the State of Gujarat and the respondent - College submitted that the definition of `Non Resident Indian seats' does not give any preference to NRI students or to children or wards of NRIs, and that students who are dependent on NRIs for educational purpose are also equally eligible for NRI seats. It is submitted that the legislature has not made any micro classification amongst applicants for NRI seats and, therefore, names of all students eligible for admission to NRI seats have to be arranged in the order of merit, as required by Rule 7(C)(4) of the Rules. 12. The learned Advocate General further submitted that the observations in para 131 of the judgment in PA Inamdar's case were to operate till the competent Legislature enacted a legislation on the subject. It is submitted that the State Legislature deriving powers from Articles 245 and 246 read with Entry 25 in the Concurrent List of the 7th Schedule has enacted the Gujarat Professional Medical Educational Colleges or Institutions (Regulation of Admission and Fixation of Fees) Act, 2007. Hence the constitutional validity of the definition of NRI seats cannot be challenged on the basis of the observations made by the Apex Court in a situation where there was no such legislation. It is submitted that what parameters should be laid down while defining NRI seats is a matter of legislative policy and such policy cannot be condemned as unconstitutional merely on the ground that the definition provided in the enactment appears to go beyond the observations made by the Apex Court prior to enactment of such legislation. The State Legislature derives its law making power from the provisions of the Constitution and not from the observations made in a judicial decision. SCA/874720/2008 7 JUDGMENT 13. Without prejudice to the above submission, the learned Advocate General has drawn our attention to the order dated 13.11.2006 of the Apex Court in I.A Nos. 9 to 12 in Civil Appeal No. 4480 of 2006 (Ruchin Bharat Patel Vs. Parents' Association) wherein the Apex Court gave following directions:- “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 provided the guardian has bonafide 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.” It is therefore, submitted that the definition of Non Resident Indian seats does not go beyond the parameters laid down by the Apex Court in the above decision. 14. The learned Advocate General has relied upon the following decisions in support of the submission that the provisions of a statute cannot be read down unless the Court first comes to the conclusion that the provisions would be unconstitutional, if not read down. 1980 (3) SCC 625 (Para 55) 2006 (6) SCC 522 (Paras 7, 8 and 10) 2002 (1) SCC 741 (Paras 6 & 7) 1999 (5) SCC 138 (Para 9) 15. The learned Advocate General has further submitted that the respondent College granted admissions to all the 23 NRI seats out SCA/874720/2008 8 JUDGMENT of total 150 seats in respondent No. 1 - College. Admissions to the NRI seats were given on the basis of the merit list of the applicants eligible for NRI seats. 141 eligible students had applied for 23 NRI seats under the respondent College. The student at Serial No. 23 of the said admission list secured 89.66 per cent marks at the qualifying examination. However, the petitioners in these petitions have secured only 81.66% and 85.66% marks respectively. It is, therefore, submitted that the petitioners are much lower down in the merit list. Thus the definition of NRI seats has subserved the merit principle. 16. The learned Advocate General has further submitted that - (i) the respondent – medical college has 150 seats in the First MBBS course, 75% of the said seats are earmarked as Government seats. Out of the remaining seats, 15% seats are earmarked as NRI seats and the balance 10% seats are earmarked as management seats. The fees for the 75% Government seats and 10% management seats are the same i.e. Rs.2.15 lakhs per annum per student and for the 15% NRI seats the fees are 15000 US $ per annum. It is stated all the 23 students were admitted to the NRI seats after this Court vacated the ex-parte ad-interim injunction on 10.7.2008 and each of them has paid 15000 US $. It is stated that the 23 students satisfy the eligibility criteria as provided in Section 2(i) of the Act. They are NRI students themselves or children or wards of NRIs or are dependents of NRIs for educational purpose. (ii) in the State of Gujarat there are four private unaided medical colleges including respondent No.1- college and the total intake of these four private unaided college is 450 in the first MBBS course. 15% thereof i.e. 68 seats are earmarked for NRIs. There were 600 applications for 68 seats and SCA/874720/2008 9 JUDGMENT admissions have been granted to these NRI seats on the basis of inter-se merit of the eligible applicants in the concerned College. Similarly, there are seven private unaided dental colleges with a total intake of 530 out of which 80 seats are earmarked for NRIs and the said seats have also been filled in by operating the statutory provisions. It is submitted that the affected NRI students are not joined as party - respondents and any interference by this Court at this stage would cause serious prejudice to such students who will not be able to secure admission to any other course, in case their admissions were to be cancelled at this stage. 17. In rejoinder, the learned counsel for the petitioners have submitted that since the petitioners are challenging constitutional validity of a statutory provision, if the petitioners succeed in their challenge, this Court would give the necessary declaration and the consequential reliefs. It is submitted that the petitions cannot be dismissed as not maintainable on the ground that the affected students are not joined as party respondents. In support of the said submission, strong reliance is placed on the decisions of the Apex Court in AIR 2007 SC 1503 (para 25), AIR 1974 SC 1755 (Para 20) and AIR 1983 SC 769 (Para 36). Discussion 18. We have given anxious consideration to the rival submissions. As far as the interpretation canvassed by the learned counsel for the petitioners is concerned, we are unable to accept their contention that the Legislature has made mini-classification amongst the students seeking admissions to NRI seats. Section 2(i) of the Act defines NRI seats as seats reserved for children or wards or dependents for the education purpose of the Non-Resident Indian. There is nothing in the Act or the Rules to indicate that the SCA/874720/2008 10 JUDGMENT Legislature or the Rule making authority has given any higher preference to students who are themselves NRIs or to children or wards of NRIs. The disjunctive “or” only indicates alternatives and not any preference. It is, therefore, not possible to read the provisions of Section 2(i) of the Act in the manner urged on behalf of the petitioners. 19. Coming to the constitutional validity of the above definition, the constitutional validity of a legislative provision can be challenged either on the ground of lack of legislative competence of the concerned Legislature or violation of any provision of the Constitution including the provisions contained in Part III of the Constitution. We find considerable substance in the submission made by the learned Advocate General on behalf of the State of Gujarat and the respondent – college that the source of the enactment is Articles 245 and 246 of the Constitution read with Entry 25 in the Concurrent list in the 7th Schedule to the Constitution, which reads as under :- “25. Education, including technical education, medical education and universities subject to the provisions of entries 63, 64, 65 and 66 of List I; vocational and technical training of labour.” There is no dispute about the fact that Entries 63 to 66 of List -I have no relevance to the present controversy. Since the State Legislature is admittedly competent to make a legislation on the subject of admissions to medical colleges and there is no Central legislation on the same subject, there is no question of lack of legislative competence or repugnancy. 20. The learned counsel for the petitioners would, however, urge that the definition of NRI seats is arbitrary and violative of the petitioners' fundamental right under Article 14 of the Constitution because the Apex Court held in PA Inamdar case who may be SCA/874720/2008 11 JUDGMENT considered eligible for admission to NRI seats. Since strong reliance has been placed on the observations made by the Apex Court in paragraph 131 of the judgment in PA Inamdar's case, the same are quoted verbatim :- “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 a certain number of students which 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 their level of education and also to enlarge their 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 the 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 utilised bonafide by NRIs only and for their children or wards. Secondly, within this quota, merit should not be given a complete go-by. The amount of money, in whatever form collected from such NRIs, should be utilised for benefiting students such as from economically weaker sections of the society, whom, on well-defined criteria, the educational institution may admit on subsidised 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 (Islamic Academy of Education vs. State of Karnataka (2003) 6 SCC 697) to regulate.” [emphasis supplied by us] SCA/874720/2008 12 JUDGMENT 21. The underlined observations clearly indicate that the Apex Court was really concerned about less meritorious students getting admissions into medical colleges and such other institutions of higher learning merely because they could afford to bring more money. An analysis of the above observations would show that the following factors were considered relevant by the Apex Court regarding allocation of seats for Non- Resident Indians :- (i) The money brought by students seeking admission to NRI seats enables the educational institutions to strengthen their level of education and also to enlarge their educational activities. (ii) The number of such seats in NRI quota shouldnot exceed 15%. (iii) NRI seats should be utilised bonafide by NRIs only and for their children or wards. (iv) Within the NRI quota, merit should not be given a complete go-by. (v) The amount of money, in whatever form collected from NRIs, should be utilised for benefiting students such as from economically weaker sections of the society, whom the education institution may admit on subsidised payment of fee. 22. Upon a further analysis it appears that what the Legislature has done while defining NRI seats is to give greater weightage to the merit factor. Hence, enlargement of eligibility for NRI seats by including the dependents of NRIs for education purpose has not weakened but strengthened the basic premise in PA Inamdar case that less meritorious students should not get admission merely because they can afford to bring more money. As the facts of the SCA/874720/2008 13 JUDGMENT instant case clearly demonstrate, the marks obtained by the 23 students admitted to NRI seats in the respondent- college range from 92.33% to 89.66% at the qualifying examination. If the definition of NRI seats in Section 2(i) were to be struck down as unconstitutional in so far as it includes “dependents for the education purpose” of NRIs, the consequence would be that the petitioners with 81.66% and 85.66% respectively would secure admission and more meritorious candidates dependent on NRIs for education purpose will be left out. It is not that the NRI students or children or wards of NRIs are kept out of the definition of NRI seats or the admission list. A perusal of the admission list of students admitted to the NRI seats in respondent No.1 – college clearly shows that out of 23 students, 7 students passed their qualifying examination from countries outside India and the remaining students passed their qualifying examination in India including NRI students or children/wards of NRIs who did their schooling in India. 23. When a student having done schooling in India, whose parents or guardians are residing abroad, is eligible for admission to an NRI seat, there is no question of his being reunited with the Indian culture because he is already a part of the Indian culture while studying in a school in India. No grievance can, therefore, be made against inclusion of the third category of students who are dependents on NRIs for education purpose, merely on the ground that such dependents have done their schooling in India. The petitioner in Special Civil Application No.8747 of 2008 himself has passed the qualifying exam conducted by the Gujarat Board. 24. It is certainly for the Legislature to consider what weightage or priority should be accorded to the factors which are already considered as relevant