IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 4187 of 2004 For Approval and Signature: HON'BLE MR.JUSTICE K.M.MEHTA ============================================================ 1. Whether Reporters of Local Papers may be allowed : NO to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO 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 concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- SHAIKH ASIABIBI USMANGANI Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 4187 of 2004 Mr. P.M. Thakkar, Senior Advocate, with MR PRADEEP PATEL for Petitioner No. 1-5 Miss. Mita S. Panchal, Assistant Government Pleader, for Respondent No. 1-2 MR MITUL K SHELAT for Respondent No. 3 MR AR MAJMUDAR for Respondent No. 4 -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE K.M.MEHTA Date of decision: 06/07/2004 C.A.V. JUDGEMENT 1. Shaikh Asiabibi Usmangani and others, petitioners, have filed this petition before this Court under Article 226 of the Constitution of India with a prayer that this Court may issue a writ, order or direction in the nature of mandamus quashing and setting aside the communication dated 8.8.2003 issued by the Assistant Director, Indian Medical & Homeopathy Board, Gandhinagar, which is at Annexure "F" to the petition. By the impugned communication, the respondent No.1 stated that the admission of the petitioners in the Degree Course in Homeopathy known as Bachelor of Homeopathy Medicine and Surgery ('B.H.M.S') with the respondent No.4-College for the Academic Year 2002-03, on NRI (Non-Resident Indian) seats or NRI sponsored seats, is cancelled as their admission is contrary to the instructions issued by the Government earlier in this behalf. It is the case of the petitioners that the impugned order dated 8.8.2003 is contrary to the judgment of the Supreme Court in T.M.A. Pai Foundation vs State of Karnataka reported in [2002] 8 SCC p.481. The petitioners have, therefore, prayed that the impugned action of the respondents-Authorities be declared as illegal, mala fide, arbitrary and violative of Article 14 of the Constitution of India. The petitioners have further prayed that this Court may be pleased to direct the Registrar, North Gujarat University, to enroll the petitioners as students of North Gujarat University, Patan, take their examination and, thereafter, declare the results of B.H.M.S. Degree Court of the petitioners who are given admission in the respondent No.4-College on NRI/NRI sponsored seats for the Academic Year 2002-2003. The petitioners have further submitted that the resolution dated 8.8.2003 is also violative of rules of natural justice. 2. The facts giving rise to the present writ petition are as under: 2.1 The petitioners are students in the age group of 18 to 19 years who on aspiring to pursue five and half years degree course in Homeopathy known as B.H.M.S., applied to Baroda Homeopathy Medical College, to grant them admission on successfully clearing their 12th Standard Higher Secondary Certificate Examination conducted in the month of March/April 2002. It is the case of the petitioners that the Baroda Homeopathy Medical College is recognized by the Central Council of Homeopathy, New Delhi, and affiliated to the North Gujarat University, Patan. It is the case of the petitioners that the petitioners were admitted to the course on seats reserved for NRI or NRI sponsored candidates where the concerned Management was having exclusive right to grant admission to the students. The petitioners have annexed a statement in which it has been indicated that the petitioners are pursuing their studies since 18.11.2002. The petitioners have applied to the respondent No.4-College and they were given admission in the first year degree course during October 2002 and the academic term of course in which the petitioners are admitted commenced from 18.11.2002 and out of 5.1/2 years duration, period of one and half years is already completed making them entitled to take annual examination starting from 7.4.2004. The petitioners have prosecuted their studies in the first year degree course and all of them have required number of days of attendance. The respondent No.4-College forwarded the names of the petitioners to the respondent No.3-University for the purpose of enrolment with the University. However, the respondent No.3-University has refused to enrol the names of the petitioners and returned the forms to the respondent No.4-College saying that, admissions given to the petitioners are not as per the rules according to the Government communication dated 8.8.2003. 3. The petitioners submitted that, in an identical matter, this Court (Coram: A.R.Dave, J.), in Special Civil Application No.4687 of 2003, in the case of Soni Daxesh Ashwinbhai vs. State of Gujarat, by order dated 21.4.2003, admitted the said writ petition and granted interim relief to the students who are similarly situated. The petitioners have relied upon the aforesaid order. 4 The petitioners have contended that the resolution dated 8.8.2003, by which the petitioners were denied admission in the course of B.H.M.S. in the respondent No.4-College, refers to the earlier resolution dated 7.12.1999 and another resolution dated 5.9.2002. The resolution . dated 7.12.1999 stipulates two conditions for grant of admission by the college management on NRI seats, namely: (1) Management will be entitled to charge only US 2000 (two thousand) dollars from the student seeking admission on NRI seat, and (2) the decision to give admission on NRI or NRI sponsored student will be taken by three member committee consisting of (a) Principal of the College concerned, (b) Trustee of the Trust and (c) Director of the Indian System of Medicine and Homeopathy. 4.1 It may be noted that, while passing the resolution dated 7.12.1999, the Government relied upon the the judgment of the Apex Court in the case of Unni Krishnan J.P. vs. State of AP, reported in AIR 1993 Supreme Court 2178, and the order dated 15.12.1998 passed by this Court (Coram: K.R. Vyas, J.) in Special Civil Application No.9942 of 1998 in the case of Parul Arya Seva Mandli vs. State of Gujarat. 4.2 It is the case of the petitioners that the judgment of the Apex Court in Unni Krishnan (supra) has been overruled by the larger bench of the Supreme Court in the case of T.M.A. Pai Foundation (supra) and the same has been again followed by the Supreme Court in Islamic Academy of Education and another vs. State of Karnataka and others, reported in (2003) 6 Supreme Court Cases 697 and, therefore, the whole basis of the resolutions dated 7.12.1991 and 8.8.2003 vanishes and, therefore, the impugned action of the Government is bad in law. 4.3 In this view of the matter and in view of the order dated 21.4.2003 passed by this Court (Coram: A.R.Dave, J.), in Special Civil Application No.4687 of 2003, in the case of Soni Daxesh Ashwinbhai vs. State of Gujarat, this Court has admitted the matter and granted interim relief. 5 The petitioners have filed an amendment on 4.5.2004. In the said amendment, the petitioners have also raised contention that the impugned order dated 8.8.2003 passed by the Government is bad in law on the ground that the Government has not afforded an opportunity of hearing to the petitioners as well as College authorities. They have relied upon the judgment of the Supreme Court in the case of D.K.Yadav vs. J.M. A. Industries Limited, reported in 1993 (3) SCC 259 and other judgments in this behalf. The petitioners have also contended that the impugned order passed by the Government does not give any reasons and therefore it is vitiated. The petitioners have also relied upon various judgments in this behalf. The said amendment is granted by this Court and the petitioners have carried out the said amendment. The State Government has not filed any reply to the amendment filed by the petitioners. The State Government has also not submitted any written submission against the written submission tendered by the petitioners. 6. Learned Senior Advocate, Mr. P.M.Thakker, appearing on behalf of learned advocate Mr. Pradeep Patel, for the petitioners, has made following submissions and invited the Court's attention to certain salient features in this behalf. 6.1 It is the case of the petitioners that the Government of Gujarat pursuant to the judgment of the Apex Court in the case of Unni Krishnan (supra) decided to regulate the procedure of admission by appointing three member separate committee for each college consisting of (i) Principal of the College concerned (ii) Managing Trustee of the Trust running the college and (iii) officer appointed by the State Government. The advertisement used to be given in the newspapers inviting applications from all the students of science stream who are meeting with the eligibility criteria fixed by the Central Council of Homeopathy, New Delhi, being the apex body authorized to lay down the eligibility criteria for admission in the first year degree course in Homeopathy Science. 6.2. The learned advocate for the petitioners has submitted that, after release of the advertisement and receipt of application forms from the 12th pass students, provisional admission as per eligibility used to be given to the students in respective self finance Homeopathy Colleges subject to the approval of the three member committee for each college. It is the case of the petitioners that the constitution of the committee was delayed every year due to late nomination of a member by the State Government. However, the fact remains that every year three member committee in each college used to finalise the admission given in Homeopathy Medical College according to the merit of marks obtained by each student. 6.3 Learned advocate for the petitioners submitted that a Public Interest Litigation, being Special Civil Application No.4087 of 1997, in the case of National Students Union of India vs. State of Gujarat, was filed before this Court. In that case, the Division Bench of this Court (Coram: the Acting CJ R.A. Mehta and Mr. Justice N.N. Mathur), by order dated 8.7.1997, in paragraph 4, directed that the admissions will be granted only by the Committee comprising of three members as appointed and only the candidates selected by the said Committee shall be admitted. The learned advocate for the petitioners submitted that this order was confined only to 85% of seats and not for 15% NRI seats as per the order of this Court (Coram: K.R.Vyas, J.). It is further submitted that a Government Resolution was also issued on 7.12.1999, wherein, a Committee of three members was appointed in this behalf. 7. The petitioners submit that, until 1998, no management of any self finance college thought it necessary to fill up few seats from amongst NRI or NRI sponsored students charging different amount of fee as per the decision of the Supreme Court. It is the case of the petitioners that even otherwise so many seats used to remain vacant on charging regular fee prescribed by the State Government for free seats and payment seats. However, a petition came to be filed by the Homeopathy College Management before this Court being Special Civil Application No.9942 of 1998 praying before this Court to direct the respondent-State Government to allocate and allow the management of Homeopathy College to fill up 15% seats of total intake capacity as was done in case of other faculties in higher education pursuant to the decision of the Apex Court in the case of Unni Krishnan (supra) and further interim orders passed in the case of T.M.A. Pai Foundation (supra). 7.1 The petitioners submit that, accordingly, this Court (Coram: K.R. Vyas, J.) passed an order on 15.12.1998 in Special Civil Application No.9942 of 1998 in the case of Parul Arya Seva Mandli vs. State of Gujarat. The learned single Judge of this Court, relying upon the judgment of the Apex Court in the case of Unni Krishnan (supra) and further interim orders passed by the Apex Court on 14.5.1993 in this behalf, has observed in page 3 as under: 7.1.A. "In view of this direction, it is clear that the management of the institution is required to admit the NRI students by fixing the quota for that at 15%.There is no dispute to the fact that the main petition is pending in the Supreme Court and even for the subsequent year also, the management have complied with the direction of the Supreme Court by fixing 15% quota to the NRI students. In this view of the matter, the petitioner is justified in making reservation of 15% seats for NRI students or NRI Sponsored seats in the colleges run by the petitioner." 7.2 After referring to the judgment of the Supreme Court in Unni Krishnan (supra) and also above judgment of this Court in other matters, the State Government issued a G.R. dated 7.12.1999 stipulating two conditions for grant of admission by the college management on NRI seats which I have already referred to above. 7.3 The petitioners submit that, in case of giving admission to the students on NRI seats, the advertisement was given in the newspaper by the respective management inviting application from students willing to take admission on NRI or NRI sponsored seats. The college managements used to give provisional admission to the students subject to approval of the three member committee. In no case, where admissions were given on NRI seats, the committee could be constituted before one year to finalise admissions. It is the case of the petitioners that delay used to occur due to late nomination of a member by the State Government. However, the fact remains that, all the admissions given in Homeopathy College until 2001 on NRI or NRI sponsored seats were sanctioned by the three member committee. 7.4 The petitioners submit that because of the orders passed by this Court in two writ petitions under different subject matters, from the year 1999, all Homeopathy Colleges were included under centralized admission system for the purpose of giving admission in the Homeopathy Medical Colleges. The State Government decided to keep 50% seats as free seats and 50% seats as payment seats out of total seats sanctioned by the Central Council of Homeopathy for giving admission in the first year degree course. The State Government, however, continued to allot every Homeopathy College 15% seats out of 50% seats earmarked as payment seats depending upon the intake capacity of each college. The permission was granted to the Homeopathy Colleges as per GR dated 7.12.1999 for filling up 15% seats from NRI or NRI sponsored students and the same was extended till further order vide GR dated 3.6.2000. 7.5 The petitioners submit that Homeopathy Colleges were required to follow same procedure as prescribed in GR dated 7.12.1999 for the purpose of giving admission on NRI seats as per the eligibility criteria fixed by the State Government. After adoption of centralized admission system for the purpose of giving admission to the students in Homeopathy Colleges along with other faculties, the college management used to give advertisement in newspaper inviting applications from the students seeking admission on NRI or NRI sponsored seats. In the present case also, the college management gave advertisement in the newspaper for giving admission on NRI or NRI sponsored seats, and, pursuant thereto, the petitioners applied for admission in the college and the same was granted to them. 7.6 The petitioners submit that prior to completion of one year or at time more, that the Committee could not be constituted to finalise the admission given on NRI seats. The delay if any in constitution of three member committee was due to inaction on the part of the State Government to nominate one member for the committee of three members according to condition No.2 of GR dated 7.12.1999. However, the fact remains that even after including the Homeopathy Colleges under centralized admission system, the three member committee sanctioned and finalized all provisional admissions given on NRI seats by respective college managements for the purpose of enrolment of the students with the concerned University. 7.7 The petitioners submit that after 1999 and until 2001, 85% seats of each college were filled under centralized admissions system and 15% seats were filled by the Management as NRI quota seats and that, Homeopathy College in which the petitioners are given admission was included in the scheme. The State Government has not framed any separate rules for giving admission to the students in the faculty of Homeopathy Science and, hence, as per the resolution of the Government, the admission process was undertaken. 7.8 The petitioners submit that the admission procedure for giving admission on 85 seats (as intake capacity of the college in which the petitioners are given admission is 100 seats) started somewhere in the month of September 2002 and completed in the month of January 2003. On remaining 15% NRI or NRI sponsored seats, the petitioners took admission in the Baroda Homeopathy Medical College and, since then, the petitioners are regularly prosecuting their studies. 7.9 The petitioners submit that, as per the prevalent practice in each Homeopathy Medical College for taking decision to give admission on NRI seats, a Committee was required to be constituted for approving the provisional admission given by the college. The college management forwarded a list containing the names of the petitioners who were given admission on NRI seats, as required by the State Government. The Director of Education requested the College to forward the list as per the format attached to the said letter. Pursuant to that, the Principal of the college also addressed a letter to the Director of Education dated 31.12.2003 giving details of admission for the year 2002-03. A copy of the said letter dated 31.12.2002 is at Annexure "E" to the petition. 7.10 The petitioners submit that, in view of these correspondence, the matter was closely pursued by the college management to finalise the admission given to the petitioners. Neither name nor member to represent the State Government on the committee as member according to GR of 1999 was conveyed to the Institution and the issue remained unfinalised. 7.11 The petitioners were shocked and surprised when the Director of Education addressed communication dated 8.8.2003 and directed the College to communicate the decision to the petitioners. It may be noted that, by the said communication, the State Government took decision not to approve admission given to the petitioners. The concerned North Gujarat University was also asked not to enrol the names of the petitioners with the University and, accordingly, the University has also refused to enroll the name of the petitioners with the University. A copy of the said letter dated 8.8.2003 is at Annexure "F" to the petition. Being aggrieved by the impugned order/communication dated 8.8.2003, Annexure "F", the petitioners have filed the present petition before this Court challenging the said communication. 8. The learned Senior Advocate, Mr. P.M.Thakker, for the petitioners, has contended that the impugned order dated 8.8.2003 is bad in the eye of law because it is violative of principles of natural justice. 8.1. It is further submitted that the impugned communication/order dated 8.8.2003 is passed without giving any opportunity of hearing to the petitioners who are vitally affected persons. In support of the same, the petitioners relied upon the judgment of the Supreme Court in the case of D.K.Yadav vs. J.M. A. Industries Limited, reported in 1993 (3) SCC 259 and the principle laid down therein has been reiterated in other decisions in the case of Bhagwan Shukla vs. Union of India and others, reported in AIR 1994 SC 2480, in the case of State Bank of Patiala vs. K. Sharma, reported in AIR 1996 SC 1669, in the case of Canara Bank and others vs. Debasis Das and others, reported in (2003) 4 SCC 557, and in the case of Union of India and another vs. GTC Industries Limited, Mumbai, reported in (2003) 5 SCC 106. 8.1.A The Supreme Court in the case of D.K. Yadav (supra), in paragraph 12, page 269, observed as under: "12. Therefore, fair play in action requires that the procedure adopted must be just, fair and reasonable. The manner of exercise of the power and its impact on the rights of the person affected would be in conformity with the principles of natural justice. Article 21 clubs life with liberty, dignity of person with means of livelihood without which the glorious content of dignity of person would be reduced to animal existence. When it is interpreted that the colour and content of procedure established by law must be in conformity with the minimum fairness and processual justice, it would relieve legislative callousness, despising opportunity of being heard and fair opportunities of defence. Article 14 has a pervasive processual potency and versatile quality, equalitarian in its soul and allergic to discriminatory dictates. Equality is the antithesis of arbitrariness. It is, thereby, conclusively held by this Court that the principles of natural justice are part of Article 14 and the procedure prescribed by law must be just, fair and reasonable." 8.1.B The Supreme Court in the case of Canara Bank and others vs. Debasis Das and others, reported in (2003) 4 SCC 557, in paragraphs 13, 14, and 19, observed as under: 8.1.B.(i) "13. Natural justice is another name for common-sense justice. Rules of natural justice are not codified canons. But they are principles ingrained into the conscience of man. Natural justice is the administration of justice in a common-sense liberal way. Justice is based substantially on natural ideals and human values. The administration of justice is to be freed from the narrow and restricted considerations which are usually associated with a formulated law involving linguistic technicalities and grammatical niceties. It is the substance of justice which has to determine its form. 8.1.B.(ii) 14. The expressions 'natural justice' and 'legal justice' do not present a watertight classification. It is the substance of justice which is to be secured by both, and whenever legal justice fails to achieve this solemn purpose, natural justice is called in aid of legal justice. Natural justice relieves legal justice from unnecessary technicality, grammatical pedantry or logical prevarication. It supplies the omissions of a formulated law. As Lord Buckmaster said, no form or procedure should ever be permitted to exclude the presentation of a litigant's defence. 18.1.B.(iii) 9. Concept of natural justice has undergone a great deal of change in recent years. Rules of natural justice are not rules embodied always expressly in a statute or in rules framed thereunder. They may be implied from the nature of the duty to be performed under a statute. What particular rule of natural justice should be implied and what its context should be in a given case must depend to a great extent on the facts and circumstances of that case, the framework of the statute under which the enquiry is held. The old distinction between a judicial act and an administrative act has withered away. Even an administrative order which involves civil consequences must be consistent with the rules of natural justice. The expression 'civil consequences' encompasses infraction of not merely property or personal rights but of civil liberties, material deprivations and non-pecuniary damages. In its wide umbrella comes everything that affects a citizen in his civil life." 8.1.C It is submitted that the aforesaid principle has also been reiterated by this Court in the judgments in the case of Shankerlal Nagardas Patel vs. Taluka Development Officer, reported in 1997 (1) GLR 793 and in the case of Indrajit Ratilal Shah vs. Jambusar Nagar Panchayat and others, reported in 1998 (1) GCD 730. It is submitted that the impugned order/communication dated 8.8.2003 is passed by the respondent No.1 without authority of law, statute, rule or any enactment framed by the State Government. The impugned order is purported to have been passed under the Government Resolution dated 7.12.1999. Clause 2 of the Government Resolution stipulates action to be taken by three member committee. The impugned order is not passed by three member committee but the same is passed by a single member of the committee in