MEDICAL COUNCIL OF INDIA versus STATE OF KERALA & ORS.
[2018] 10 S.C.R. 213, Supreme Court of India, 2018
Outcome: Appeal(s) allowed (Granted)
Segment: Ratio
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MEDICAL COUNCIL OF INDIA
v.
STATE OF KERALA & ORS.
(Writ Petition (C) No. 231 of  2018)
SEPTEMBER 12, 2018
[ARUN MISHRA AND INDIRA BANERJEE, JJ.]
Constitution of India:
Articles 14, 50 and 213 (1) – Principle of ‘Separation of
Powers’ – Admission of 180 students to MBBS course were quashed
by Admission Supervisory Committee – The order was affirmed by
High Court as well as Supreme Court – State Government thereafter
notified Ordinance whereby it sought to regularise the admission of
those 180 students – Writ petition challenging the Ordinance on the
ground that the Ordinance amounted to nullifying the judgments/
orders of the Court – Held: The impugned Ordinance is clear
entrenchment upon the field of judicial review which is reserved for
judiciary – Provisions in the Ordinance were in violation of the
doctrine of separation of powers enshrined under Art. 50 –
Ordinance is not only impermissible and beyond legislative
competence of the State, it also had the effect of perpetuating
illegality and arbitrariness committed by the College in question in
not following the mandate of law laid down by the Court –
Independence of judiciary is fundamental to the rule of law – A
legislation can be invalidated on the basis of breach of separation
of judicial power since such breach is negation of equality provided
u/Art. 14 – There cannot be an attempt to interfere with the judicial
process – Law which interferes with the judicial process may be
invalidated – The
Ordinance is ultra vires  and entrenchment upon
the field earmarked for judiciary, as it sought to nullify judgments
of the Court.
Art. 141 – Judgment – Binding effect of – Held: If an Order
refusing to grant leave to appeal is by speaking order, it is a
declaration of law within the meaning of Art. 141 – Whatever is
stated in the order, other than law, are the findings of the Court
which would  bind the parties and also the Court, Tribunal or
Authority – Precedent.
   [2018] 10 S.C.R. 213
213
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Art. 142 – Power under – Scope of – Held: Power u/Art. 142
cannot be exercised by the court to nullify its own judgment and to
perpetuate illegality.
Allowing the Writ Petitions, the Court
HELD: 1.1 A bare reading of the Kerala Processional
Colleges (Regularisation of Admission in Medical Colleges)
Ordinances, 2017, makes it clear that the same aims at
regularisation of admissions of students during the academic year
2016-17 which were set aside by the Admission Supervisory
Committee (ASC), the High Court and by this Court to benefit
only two colleges and students in question. [Para 18] [223-E-F]
1.2 What has been done by the impugned Ordinance by the
State Government is clearly entrenching upon the field of judicial
review and it was obviously misadventure resorted to. It was not
at all permissible to the State Government to promulgate the
Ordinance/legislate in the matter. Not only the judgment of the
court is nullified and the arbitrariness committed in admissions
was 17 glaring, and the decision of the High Court which was
affirmed by this Court with respect to applications to be
entertained if they were online applications has been undone. It
was clearly an act of nullifying judgment and is violative of judicial
powers which vested in the judiciary. It was not open for the State
Government to nullify the judgment/orders passed by the  High
Court or by this Court. It was not a case of removal of a defect in
existing law. Various Constitution Bench decisions of this Court
have settled the principles of law governing the field. It passes
comprehension how the State Government has promulgated the
Ordinance in question. [Para 21] [229-G-H; 230-A-C]
1.3 Independence of the judiciary is fundamental to the rule
of law. A legislation can be invalidated on the basis of breach of
separation of judicial power since such breach is negation of
equality under Article 14. Law can be declared void if it is found
to have transgressed the constitutional limitations. The
legislature cannot declare any decision of a court of law to be
void or of no effect. It can remove the defects of the law pointed
out by the court or on coming to know of it aliunde; otherwise, a
court’s decision must always bind unless the conditions on which
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it is based are so fundamentally altered that the decision could
not have been given in such altered circumstances. The
legislature can make a validating law. Making validation as such,
it removes the defect which the court finds in the existing law.
There cannot be an attempt to interfere with the judicial process,
and such law may be invalidated. [Para 24] [234-F-H; 235-A-B]
1.4  The impugned Ordinance indicates that it is a blatant
attempt of regularisation of admissions made which were declared
to be invalid not only by the High Court but by this Court after
this Court had dealt with the order dated 14.11.2016 passed by
the ASC after hearing the matter for several days and the Court
had passed a reasoned order. While dismissing/disposing of the
matters, this Court directed the 30 students who were illegally
deprived of the admission, to be admitted in the next academic
session 2017-18. It was clearly not a dismissal of the case in limine
but a reasoned order. In the writ petitions filed by the colleges
and others, the validity and legality of the order dated 14.11.2016
was questioned. However, this Court has upheld the same.
Voluminous records were filed in this Court by both the medical
colleges. The students were also heard when the decision was
rendered. Thereafter also several petitions were filed which were
dismissed by this Court. Thus, when this Court has upheld the
order dated 14.11.2016 on the ground of illegality and
irregularities and not
following the due procedure, such
admissions could not have been regularised at all. The State
Government has exceeded its powers and has entrenched upon
the field reserved for the judiciary. It could not have nullified the
judgment. The online procedure was laid down by the judgment.
[Para 33] [251-G-H; 252-A-D]
1.5  What the State Government has done by way of
impugned Ordinance is not only impermissible and beyond
legislative competence it also has the effect of perpetuating
illegality and arbitrariness committed by the colleges in question
by not following the mandate of law laid down by the High Court
as affirmed by this Court. An effort has been made to cover up
the arbitrariness and illegality in an illegal and impermissible
manner for which the State Government had no competence. The
provisions made in the Ordinance are otherwise also quite illegal
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and arbitrary besides in violation of the doctrine of separation of
powers enshrined under Article 50 of the Constitution of India.
[Para 34] [252-F-H]
Janapada Sabha Chhindwara v. The Central Provinces
Syndicate Ltd. and Anr. (1970) 1 SCC 509 : [1970] 3
SCR 745 ; Re: Cauvery Water Disputes Tribunal
(1993) 1 Suppl. SCC 96 (II) : [1991] 2 Suppl. SCR
497 ; State of Tamil Nadu and Ors. v. State of Kerala
and Ors. (2014) 12 SCC 696 : [2014] 12 SCR 875
– followed.
S.R. Bhagwat and Ors. v. State of Mysore (1995) 6 SCC
16 : [1995] 3 Suppl. SCR 545 ; S.T. Sadiq v. State of
Kerala and Ors. (2015) 4 SCC 400 : [2015] 3 SCR
287  – relied on.
Belgaum Gardeners Cooperative Production Supply
and Sale Society Ltd. v. State of Karnataka
(1993) 1 Suppl. SCC 96 : [1991] 2 Suppl.  SCR  497;
State of Tamil  Nadu and Ors. v. State of Kerala and
Ors. (2014) 12 SCC 696 : [2014] 12 SCR 875 Cheviti
Venkanna Yadav v. State of Telangana & Ors. (2017) 1
SCC 283 : [2016] 7  SCR 689 ; Goa Foundation &
Anr. v. State of Goa & Anr. (2016) 6 SCC 602 :  [2016]
1 SCR 1025 ; Goa Glass Fibre Ltd. v. State of Goa &
Anr. (2010) 6 SCC 499 : [2010] 5 SCR 970 ; Tika Ram
& Ors. v. State of Uttar Pradesh & Ors. (2009) 10 SCC
689 : [2009] 14 SCR 905 – referred to.
2.1 Dismissal of a case by Supreme Court would remain a
dismissal by a non-speaking order where no reasons have been
assigned and no law has been declared by this Court. If an order
refusing to grant
leave to appeal by a speaking order gives reasons
for refusing the grant of leave, then the order has two
implications; firstly the statement of law contained in the order is
a declaration of law by this Court within the meaning of Article
141 of the Constitution; secondly, other than the declaration of
law, whatever is stated in the order are the findings recorded by
this Court which would bind the parties thereto and also the
Court,Tribunal or Authority. [Para 35] [256-B-D]
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2.2 In the present case, all the parties have filed the
pleadings while the order was passed by this Court. Counter
affidavits, rejoinder and various other applications for taking on
record the documents and plethora of documents were submitted
before this Court and it was argued for several days at length.
This Court has heard the matter and thereafter has expressed
the opinion and recording finding as to the legality of the order
dated 14.11.2016. The SLPs against the order passed by the High
Court were also dismissed and this Court had directed that 30
students be admitted in the next session. Independent directions
were issued which were not ordered by the High Court. This
Court directed that they are to be admitted to the academic
session 2017-18. Thus, it is not correct to contend that it was not
a decision on merits by this Court. [Para 36] [256-D-E; 257-A-B]
Dr. Preeti Srivastava & Anr. v. State of M.P. & Ors.
(1999) 7 SCC 120 : [1999] 1 Suppl. SCR 249 ; Anitta
Job & Ors. v. The State of Kerala 2018 (6) SCALE 174
– held inapplicable
Kunhayammed & Ors. v. State of Kerala & Anr. (2000)
6 SCC 359 : [2000] 1 Suppl.  SCR  538 – referred to.
3. In the present case, in view of the previous verdicts,
power u/Art. 142 of the Constitution cannot be exercised and
apart from that when the judgments have attained finality, they
are binding on all concerned including this Court. Power under
Article 142 cannot be exercised to nullify its own judgment and
to
perpetuate illegality. [Para 39] [259-G]
Case Law Reference
[1970] 3 SCR 745
     followed
Para 17
[1991] 2 Suppl. SCR 497   followed
Para 23
[2014] 12 SCR 875
     followed
Para 24
[1995] 3 Suppl. SCR 545   relied on
Para 25
[2015] 3 SCR 287
     relied on
Para 26
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[2016] 7 SCR 689
     referred to
Para 27
[2016] 1 SCR 1025
     referred to
Para 27
[2010] 5 SCR 970
     referred to
Para 29
[2009] 14 SCR 905
     referred to
Para 30
2018 (6) SCALE 174
     referred to
Para 31
[2000] 1 Suppl. SCR 538   referred to
Para 35
[1999] 1 Suppl. SCR 249   held inapplicable
Para 38
2018 (6) SCALE 174
    held inapplicable
Para 39
CIVIL ORIGINAL JURISDICTION:  Writ Petition (Civil)
No. 231 of 2018
Under Article 32 of the Constitution of India
WITH
Writ Petition (Civil ) No.178 of 2018.
Vikas Singh, Paramjit Singh Patwalia, Neeraj Kishan Kaul,
Kailasnath Pilla, Ms. M. Mohana, Ranjit Kr. Jaideep Gupta, Chander
Uday Singh, Sukumar Patjoshi, Vijay Hansaria, Sr. Advs., Raghavendra
S. Srivatva, Saurabh Agrawal, Anish R. Shah, Venkita Subramoniam
T.R., P. Sreekumar, Gaurav Sharma, Dhawal Mohan, Prateek Bhatia,
Abhishek, Ms. Deepika Kalia, Ms. Shristi Banerjee, Zulfiker Ali P.S.,
Faisal M. Aboobacker, Ms. Lakshmi Sree Puthenpurackal,
Ms. Divyanshu   Kumar   Srivastava,    Viren    Sibal, Ms. Vivekananda
B., Varun M., K. Gireesh Kumar, Alen Joseph, A. Karthik,   G. Prakash,
Jishnu M.L., Mrs. Priyanka Prakash, Mrs. Beena Prakash,
Ms. Nayantara Roy, Ms. Anne Mathew, R.R. Kumar, Ms. Manjula Gupta,
Deepak Prakash, Vishal Somany, Subhash Chandran K.R., Ms. Sree
Devi, Ms. Yanmi Phazang, Raneev Dahiya, Kunal Singh, Nachiketa
Vajpayee, Subhash Choudhary, C.K. Sasi, Haris Beeran, Mushtaq Salim,
Usman Ghani
Khan, Dev Prakash, Ms. Pallavi Pratap, Sumit Saurav,
Sachin Sharma, G.S. Makker, Advs. for the appearing parties.
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The Judgment of the Court was delivered by
ARUN MISHRA, J. 1. The question involved in the writ petition/
s is, whether the State of Kerala is competent to promulgate the Kerala
Professional Colleges (Regularisation of Admission in Medical Colleges)
Ordinance, 2017 (hereinafter referred to as “the Ordinance”) notified
on 20.10.2017, which is intended to nullify judgments and orders of this
Court and encroaches upon the power of the judiciary.
2. The State of Kerala has promulgated the impugned Ordinance
for regularising the admission of 180 students who were illegally admitted
in the Kannur Medical College and Karuna Medical College run by
Prestige Educational Trust and Safe Development Alms Trust
respectively. The students were admitted to the said medical colleges in
the academic year 2016-17. After enquiry, it was found by the Admission
Supervisory Committee of the professional colleges (in short “the ASC”)
that admissions were illegal. The decision was upheld by the High Court
of Kerala and by this Court.
3. The background facts are that on 28.4.2016, this Court in
Sankalp Charitable Trust v. Union of India & Ors. (2016) 7 SCC
487 directed that admissions to the MBBS/BDS courses shall be through
the National Eligibility-cum-Entrance Test (NEET). The ASC vide order
dated 4.8.2016 issued several directions to all the professional colleges
in the State of Kerala to conduct the admission process in compliance of
the directions laid down by this Court in
Sankalp Charitable Trust
(supra). On 9.8.2016,the Central Government directed all the States and
Union Territories to conduct the combined/centralised counselling for
the academic year 2016-17 for admission in MBBS course in the
respective States/Union Territories, in line with the judgment passed by
this Court in the case of Modern Dental College & Research Centre
& Anr. v. State of M.P. & Ors. (2016) 7 SCC 353.
4. The Government of Kerala vide order dated 23.8.2016 directed
all the medical colleges to admit only those students who were selected
through common counselling. Writ Petition [Civil] No.28041 of 2016 was
filed in the Kerala High Court challenging the order dated 23.8.2016.
The High Court vide order dated 26.8.2016 issued interim directions that
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the admissions in the MBBS course for the academic year 2016-17 shall
be conducted on the basis of the marks obtained in NEET, 2016 and all
applications will be made online to facilitate transparency with regard to
merit and identities of the applicants.
5. The ASC on 3.9.2016 after taking cognizance of the various
complaints received by it, issued directions to the private medical colleges
in Kerala to comply with the directions issued by it on 4.8.2016. It was
also mentioned that any student whose admission was made in
contravention of the directions issued by the ASC, will not be registered
by Kerala University of Health Sciences (KUHS). On 6.9.2016 and
9.9.2016, the ASC passed the orders with regard to the prospectus
submitted by Kannur and Karuna Medical Colleges approving the
prospectus subject to the exception that reservation of seats under the
management quota for the dependents of various trust associations was
unsustainable in law and could not be applied while admitting the students.
Questioning the same, said medical colleges filed W.P. No.30697/2016
and W.P. [C] No.30712/2016 in the Kerala High Court. The ASC vide
order dated 10.9.2016 observed that the explanation submitted by the
medical colleges was unsatisfactory and decided to revise the approval
of the prospectus and issued a revised admission schedule for the
aforesaid medical colleges whereby the date for submitting online
applications was
revised and extended till19.9.2016.
6. After conducting an enquiry, the ASC issued an order dated
15.9.2016 with respect to Kannur Medical College observing that the
medical college had not called online applications as directed by the
ASC by its order dated 10.9.2016 and directed that the admissions made,
if any, shall stand cancelled.
7. The ASC passed another order after holding an enquiry on
15.9.2016 with respect to Karuna Medical College and held that the
portal for online was closed on 6.9.2016 and there was a contravention
of the directions passed by it in the order dated 10.9.2016 wherein the
revised date for submitting online applications was up to 19.9.2016. On
17.9.2016 the ASC passed yet another order addressed to all the medical
colleges situated in Kerala State, the directions issued by it were reiterated
and it was also directed that the directions be placed on the website of
the medical colleges forthwith. On 19.9.2016 the ASC further directed
the colleges to conduct all admissions strictly in compliance with the
directions which were issued by it from time to time.
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8. The High Court of Kerala by its order dated 23.9.2016 passed
in aforesaid writ petitions filed by the medical colleges approved the
decision taken by the ASC in respect of de-reservation of the management
quota seats which were reserved for the dependants of various Trust
associations, and issued various interim directions, keeping the writ
petitions pending. The order dated 23.9.2016 was questioned in this Court
in SLP [C] CC.Nos.19387-88/2016 – State of Kerala v. Safe
Development Alms Melamuri & Ors. which were dismissed and this
Court requested the High Court to decide the main writ petition as
expeditiously as possible.
9. This Court vide order dated 28.9.2016 passed in C.A. No.9862/
2016 – Union of India v. Sree Narayana Institute of Medical Sciences
& Ors. set aside the interim direction passed by the Kerala High Court
which allowed private medical colleges in the State of Kerala to conduct
their own counselling and directed to conduct the centralised counselling
for admissions in MBBS course for the academic year 2016-17. As the
last date was closed, this Court on 30.9.2016 passed an order in CA
No.9862/2016 – Union of India v. Sree Narayana Institute of Medical
Sciences & Ors. (supra) and extended the last date for admissions in
MBBS course from 30th September to 7th October 2016 so as to comply
with the order.
10. On 2.10.2016 separate orders were passed by the ASC
wherein it was observed that the respondent-medical colleges have
deliberately
flouted the directions issued vide its orders dated 4.8.2016,
3.9.2016, 4.9.2016, 10.9.2016, 17.9.2016 and 19.9.2016. The ASC
cancelled all the admissions made by the respondent medical colleges in
the MBBS course for the academic year 2016-17. Aggrieved by the
order dated 2.10.2016 the respondent medical colleges filed W.P.
Nos.32186/2016 and 32185/2016 in the Kerala High Court. The Kerala
High Court vide its order dated 6.10.2016 was pleased to direct the
respondent medical colleges to place all the relevant records pertaining
to admission process before the Commissioner for Entrance Examination
(CEE) for verification. It was further directed that after verification of
the records the CEE shall finalise allotment of seats strictly on the basis
of interse merit and complete it by 7.10.2016.
11. On 7.10.2016, Kannur Medical College made a statement
before the Kerala High Court that no student turned up before the CEE
MEDICAL COUNCIL OF INDIA  v. STATE OF KERALA & ORS.
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seeking admission in their college. On 13.10.2016 the Commissioner for
Entrance Examination (CEE) submitted its report concluding that the
procedure followed by Karuna Medical College was flawed and there
were material irregularities committed by it while admitting 30 students.
So far as Kannur Medical College was concerned, the representative of
the said college appeared before the CEE on 7.10.2016 at about 11.30
a.m. and left by 12.10 p.m. after furnishing the records. No explanation
or clarification was furnished by the representatives of the medical college,
and the conduct was noted by the CEE. The person who claimed to be
the representative of the college left immediately when he was asked to
furnish the letter of authorisation from the college authorities.
12. The Kerala High Court vide judgment and final order dated
28.10.2016 cancelled as many as 150 admissions made by Kannur Medical
College and 30 admissions made by Karuna Medical College through
‘spot counselling’. The High Court of Kerala further directed the ASC
to decide the rival claims made by students of both the medical colleges
who had been admitted as well as the claims by other eligible students
who were parties before the court.
13. The ASC passed a reasoned order dated 14.11.2016 whereby
it quashed 150 admissions made in Kannur Medical College and ASC
has observed that applications were not received online:
“13. The ASC has scrutinized the
‘online application’ submitted
by the Medical College.  Even a cursory look of the application
show that they are not actual ‘online applications’.  The forms do
not show the name of the Medical College to which the applications
were made. It doesn’t carry photograph of the applicant.  There
is no signature of applicant, either digital or scanned.  There is no
application date.  On the whole, the submitted applications only
shows that they have been prepared for the purpose of submitting
before the ASC as an attempt to claim online application system.
Even the documents submitted before the CEE on 07.10.2016, as
per the interim order of the Hon’ble High Court, these applications
were not seen submitted for consideration, as reported by CEE…”
14. On 15.11.2016, aggrieved by the common judgment dated
28.10.2016 passed by the Kerala High Court in the case of respondent
medical colleges i.e. Karuna Medical College, as well as Kannur Medical
College and the trusts –Safe Development Alms Trust and Prestige
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Educational Trust, filed SLP [C] Nos.32580-81/2016 and 35374-75/2016
before this Court. The MCI also filed SLP [C] Nos. 3882/2017 and
3952/2017. The students also petitioned this Court against the judgment
and order passed by the Kerala High Court.In the matter which was
filed by the colleges and the students, the order dated 14.11.2016 by the
ASC was also questioned and this Court after hearing learned counsel
for the parties for days together and after perusing the record which
was adduced before it, did not find it appropriate to interfere with the
order dated 14.11.2016. The colleges produced even those documents
which they did not produce before the CEE/ASC and after examining
all the documents, this Court declined to interfere in the matter vide
order dated 22.3.2017. This Court further directed that the 30 students
who were found eligible but were deprived of the admissions in Karuna
Medical College, shall be adjusted in the next academic session i.e. 2017-
18 and the corresponding number of seats shall be reduced for the said
session for admissions. Review petitions were also filed which were
dismissed by this Court on 2.5.2017.
15. After the aforesaid controversy was set at rest by the judgment
of this Court, the State Government notified the impugned Ordinance on
20.10.2017 whereby admission of the students who were illegally admitted
in the MBBS course in the year 2016-17 in the said medical colleges,
were sought to be regularised. The
Ordinance promulgated by the
Government of Kerala is extracted hereunder:
“THE 
KERALA 
PROFESSIONAL 
COLLEGES
(REGULARISATION OF ADMISSION IN MEDICAL
COLLEGES) ORDINANCE, 2017)
Promulgated by the Governor of Kerala in the Sixty-eighth Year
of the Republic of India
   AN
        ORDINANCE
to provide for regularisation of admission of students in
certain medical colleges in the State during the academic year
2016-17
        Preamble- WHEREAS, the admission of certain students
in the discipline of medicine for the academic year 2016-17 was
MEDICAL COUNCIL OF INDIA  v. STATE OF KERALA & ORS.
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cancelled by the Admission Supervisory Committee of the State
for non-compliance of its orders by certain managements;
      AND WHEREAS, no fault was found on the part of any
student who got admission in such colleges;
       AND WHEREAS, the seats so cancelled are not allotted to
any other students;
        AND WHEREAS, it is expedient to provide for regularisation
of admission of students in such medical colleges in the State
during the academic year 2016-17;
     AND WHEREAS, the Legislative Assembly of the State of
Kerala is not in session and the Governor of Kerala is satisfied
that circumstances exist which render it necessary for him to
take immediate action;
NOW, THEREFORE, in exercise of the powers conferred by
clause (1) of Article 213 of the Constitution of India, the Governor
of Kerala is pleased to promulgate the following Ordinance: -
      BE it enacted in the Sixty-eighth Year of the Republic of India
as follows: -
I Short title and commencement-(1) This Ordinance may be called
the Kerala Professional Colleges (Regularisation of Admission in
Medical Colleges) Ordinance, 2017.
(2) It shall come into force at once.
2. Regularisation of admission in medical colleges.-
Notwithstanding anything contained in the Kerala Professional
Colleges or Institutions (Prohibition of Capitation Fee, Regulation
of Admission, Fixation of Non-exploitative Fee and other measures
to ensure equity and excellence in
Professional Education) Act,
2006 (19 of 2006) or in any judgment, decree, order or any
proceedings of any court or the Admission Supervisory Committee
constituted under section 4 of the said Act or any other authority
or in any agreement or instrument made under any law for the
time being in force, it shall be lawful for the Government to
regularise the admission of candidates who were qualified for
admission in the discipline of medicine in any medical college in
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the State during the academic year 2016-17, but their admission
was cancelled by any court or Admission Supervisory Committee,
irrespective of the mode of submission of application and the non-
production of any material before the Admission Supervisory
Committee, subject to such terms and conditions as the
Government may deem fit:
      Provided that such admission shall not be regularised unless
such candidate has duly attended the course during the said
academic year.
3. Procedure for regularisation.- (1) The managements of the
medical colleges who have admitted candidates as specified in
section 2 to the discipline of medicine in any medical college and
their admission was cancelled, may, within fifteen days from the
date of commencement of this Ordinance, apply for regularisation
of such admission.
(2) Every application for regularisation of admission under this
Ordinance shall be submitted to the Government through the
University concerned and the University shall, within seven days
of receipt of such application, forward the same to the Government
with a report containing its remarks on the following matters,
namely: -
   (i) whether the student who got admission is qualified and is
eligible as per the rank list prepared on the basis of the National
Eligibility cum Entrance Test, for admission in the discipline of
medicine as per laws and orders in force applicable for the
academic year 2016-17;
   (ii) whether the students as mentioned in the
application has
duly attended the course during the academic year 2016-17;
   (iii) whether the student is otherwise eligible to continue the
course.
(3) An officer not below the rank of a Secretary to Government,
as may be authorised by the Government by special order in this
behalf, shall be the Competent Authority to consider an application
under this Ordinance. The Competent Authority shall have the
power to summon any person or to call for any document for the
proper disposal of such application.
MEDICAL COUNCIL OF INDIA  v. STATE OF KERALA & ORS.
[ARUN MISHRA, J.]
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(4) On receipt of an application for regularisation under this section,
the Government shall call for a report on it from the Director of
Medical Education and after hearing the applicant and the
respondents or any other person concerned, if necessary, consider
the application and pass orders on it, including order for payment
of the regularisation fee payable under this Ordinance.
(5) Where the application is sanctioned by the Government, a
direction in this respect shall be issued to the University concerned
and notwithstanding anything contained in any University Act or
any statute or Ordinance made thereunder or in any other law for
the time being in force, the University shall issue orders necessary
for the enrolment of such students in the University and thereafter
such students shall be considered as regular students of the
discipline of medicine under the University with effect from the
academic year 2016-17 till the completion of their course in the
discipline.
Explanation. - For the purposes of this section, “University Act”
means an Act establishing a University, passed by the State
Legislature.
4. Matters for consideration of the Competent Authority. -
While considering an application for regularisation received under
Ordinance, the Competent Authority shall, -
(i) consider whether the student who got admission is qualified
and is eligible as per the rank list prepared on the basis of the
National
Eligibility cum Entrance Test, for admission in the discipline
of medicine as per laws and orders in force applicable for the
academic year 2016-17;
(ii)  confirm that no student is continuing in the college in violation
of any other law for the time being in force;
(iii)  not consider the mode of application submitted by the students;
(iv) not consider the non-production of any document or any
material before the Admission Supervisory Committee;
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(v)  ensure that no capitation fee was collected by the management;
(vi) ensure that there was no profiteering by the management.
5. Payment of regularisation fee: - (1) Where the Government
sanctions an application for regularisation of admission under this
Ordinance, the management of such medical college shall be liable
to pay a regularisation fee of three lakh rupees per student for
such regularisation:
    Provided that where any management collects such fee from
any student, such management shall be liable to pay a fine of six
lakh rupees per student.
(2) The competent authority under sub-section (3) of section 3
shall be competent to impose the fee as provided in sub-section
(1) and it shall be specified in the order issued under sub-section
(3) of section 3.
Date 20.10.2017
GOVERNOR”
16. Shri Vikas Singh, learned senior counsel appearing for the
MCI, urged that the Ordinance is ultra vires of the powers of the State
Government and is contrary to the various Constitution Bench decisions
of this Court which he has relied upon. He has further submitted that the
judgment has been nullified by the Ordinance. It is not that there was
any lacunae or flaw in the laws which has been removed. There is an
entrenchment by way of Ordinance upon the power of judicial review of
the court. This Court has adjudicated upon the legality of the order dated
14.11.2016 passed by the ASC which was questioned in this Court and
the entire material was filed in the Court
which was not even placed
before the ASC/CEE. This Court granted hearing for several days and
on being wholly unconvinced, dismissed the special leave petitions and
clearly observed that no case for interference in the order dated
14.11.2016 passed by ASC was made out and further directed the
admission of 30 students who were illegally deprived of their admission
to be made in the next academic session. The State has no legislative
power to nullify a judgment in view of the Constitution Bench judgments
of this Court in Janapada Sabha Chhindwara vs.  The Central
MEDICAL COUNCIL OF INDIA  v. STATE OF KERALA & ORS.
[ARUN MISHRA, J.]
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Provinces Syndicate Ltd. and Anr. (1970) 1 SCC 509, Belgaum
Gardeners Cooperative Production Supply and Sale Society Ltd. v.
State of Karnataka (1993) Supp. 1 SCC 96, and State of Tamil Nadu
and Ors. v. State of Kerala and Ors.(2014) 12 SCC 696.
17. A galaxy of learned senior counsel appearing on behalf of the
respondents has emphasised that the impugned Ordinance intends on
the admissions to be given on merits on the basis of performance in the
NEET examination. Thus, it was permissible to enact Ordinance to make
a scrutiny whether the candidates were eligible for admission on the
basis of their merit in the NEET examination. It was also contended that
the order of online applications passed by the Kerala High Court was
based upon the consent. Hence, it could not be termed to be an order
passed by the court in judicial review. The decision did not have the
effect of judicial precedent which could be said to be nullified by way of
the Ordinance. It was also contended that ultimately it was not the fault
of the students and if there was any procedural violation committed by
the medical colleges in question, the students could not have been made
a scapegoat or made to suffer for no fault of theirs. They were not
heard by the ASC or CEE. This Court may exercise power under Article
142 of the Constitution of India and no interference is required to be
made in the Ordinance as in the facts and circumstances,
regularisation
of the admissions was clearly permissible. It could not be said that the
State Government has tried to usurp the power of judicial review.
18.  A bare reading of the Ordinance makes it clear that the same
aims at regularisation of admissions of students during the academic
year 2016-17 which were set aside by the ASC, the High Court and by
this Court to benefit only two colleges and students in question. It is also
stated in it that the Legislative Assembly of the State of Kerala is not in
session and the Governor of Kerala is satisfied, the circumstances render
it necessary for him to take immediate action. In exercise of the power
conferred under clause (1) of Article 213 of the Constitution of India,
the Governor of Kerala is pleased to promulgate the impugned Ordinance.
19. It is provided in clause 2 of the Ordinance that notwithstanding
anything contained in the Kerala Professional Colleges or Institutions
(Prohibition of Capitation Fee, Regulation of Admission, Fixation of Non-
exploitative Fee and other measures to ensure equity and excellence in
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Professional Education) Act, 2006 or in any judgment, decree, order or
any proceeding of any court or the Admission Supervisory Committee
or any other authority or in any agreement or instrument made under
any law for the time being in force, it shall be lawful for the Government
to regularise the admission of  candidates who were qualified for
admission in the discipline of medicine in any medical college in the
State during the academic year in question, though their admissions had
been cancelled by any court or ASC, and irrespective of the mode of
submission of application and the non-production of any material before
the ASC.
20. Clause 3 of the impugned Ordinance contains the procedure
for regularisation. Under clause 3(1) the students can apply within 15
days from the commencement of the Ordinance for regularisation of
such admission. Under clause 3(2), the application shall be submitted to
the Government through the University with the remarks whether the
student was qualified, eligible as per the rank list prepared on the basis
of the NEET for admission in the discipline of medicine as per the laws
and orders in force for the academic year 2016-17; whether he has
attended the course during the academic year 2016-17 and whether the
student was otherwise eligible to continue the course. Clause 3(4) enables
the Government to consider the application and pass orders on it including
the order for payment of the regularisation fee payable under the
Ordinance and clause 3(5) provides that where the application is
sanctioned by the Government, the student shall be considered as regular
student w.e.f. the academic session 2016-17 till the completion of their
course in the discipline. Clause 3(4)(i) provides for consideration in case
the candidate was eligible as per the rank list prepared on the basis of
NEET, and no student was continuing in the college in violation of any
other law for the time being in force. Clause 4(iii) further provided for
regularisation notwithstanding the mode of submission of applications by
the students. Regularisation fee of Rs.3 lakhs was to be paid per student
for such regularisation.
21. What has been done by the impugned Ordinance by the State
Government is clearly entrenching upon the field of judicial review and it
was obviously misadventure resorted to. In our considered opinion, it
was not at all permissible to the State Government to promulgate the
Ordinance/legislate in the matter. Not only the judgment of the court is
MEDICAL COUNCIL OF INDIA  v. STATE OF KERALA & ORS.
[ARUN MISHRA, J.]
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nullified and the arbitrariness committed in admissions was glaring, and
the decision of the High Court of Kerala which was affirmed by this
Court with respect to applications to be entertained if they were online
applications has been undone. It was clearly an act of nullifying judgment
and is violative of judicial powers which vested in the judiciary. It was
not open for the State Government to nullify the judgment/orders passed
by the Kerala High Court or by this Court. It was not a case of removal
of a defect in existing law. Various Constitution Bench decisions of this
Court have settled the principles of law governing the field. It passes
comprehension how the State Government has promulgated the
Ordinance in question.
22. In Janapada Sabha Chhindwara vs. The Central Provinces
Syndicate Ltd. and Anr. 1970(1) SCC 509, a Constitution Bench of this
Court has observed that it is not open to legislation to render a judgment
ineffective. It is open to the Legislature within certain limits to amend
the provisions of an Act retrospectively and to declare what the law
shall be deemed to have been, but it is not open to the legislature to say
that the interpretation of the law shall be otherwise than as declared by
the Court. This Court has observed thus:
“10. The nature of the amendment made in Act 4 of 1920 has not
been indicated. Nor is there anything which enacts that the
notifications issued without the sanction of
the State Government
must be deemed to have been issued validly under Section 51(2)
without the sanction of the Local Government. On the words used
in the Act, it is plain that the Legislature attempted to overrule or
set aside the decision of this Court. That, in our judgment, is not
open to the Legislature to do under our Constitutional scheme. It
is open to the Legislature within certain limits to amend the
provisions of an Act retrospectively and to declare what the law
shall be deemed to have been, but it is not open to the Legislature
to say that a judgment of a Court properly constituted and rendered
in exercise of its powers in a matter brought before it shall be
deemed to be ineffective and the interpretation of the law shall be
otherwise than as declared by the Court.”
23. In the matter of Cauvery Water Disputes Tribunal(1993)
Supp. 1 SCC 96 (II), a Constitution Bench of this Court has observed
that it is open to change the law in general by changing the basis but it is
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not open to set aside an individual decision inter-partes and thus affect
their rights and liabilities alone. Such an act on the part of the legislature
amounts to exercising the judicial power. This Court quashed the
Ordinance and observed that by issuing the Ordinance the State of
Karnataka has sought to take the law in its own hand and tried to be
above the law. Such an act is an open invitation to lawlessness and
anarchy. There cannot be defiance to the decision of the judicial
authorities. This Court has observed thus:
     “76. The principle which emerges from these authorities is
that the legislature can change the basis on which a decision is
given by the Court and thus change the law in general, which will
affect a class of persons and events at large.  It cannot, however,
set aside an individual decision inter parties and affect their rights
and liabilities alone. Such an act on the part of the legislature
amounts to exercising the judicial power of the State and to
functioning as an appellate court or tribunal.
       77. The effect of the provisions of Section 11 of the present
Act, viz. the Inter-State Water Disputes Act read with Article
262 of the Constitution  is that the entire judicial power of the
State and, therefore of the courts including  that of the Supreme
Court to adjudicate upon original dispute or complaint with respect
to the use, distribution or control of the water of, or in any inter-
State river or river valleys has been
vested in the Tribunal appointed
under Section 4 of the said Act.  It is, therefore, not possible to
accept the submission that the question of grant of interim relief
falls outside the submission that the question of grant of interim
relief falls outside the purview of the said provisions and can be
agitated under Article 131 of the Constitution.  Hence any executive
order or a legislative enactment of a State which interferes with
the adjudicatory process and adjudication by such Tribunal is an
interference with the judicial power of the State.  In view of the
fact that the Ordinance in question seeks directly to nullify the
order of the Tribunal passed on June 25, 1991, it impinges upon
the judicial power of the State and is, therefore, ultra vires the
Constitution.
       78. Further, admittedly, the effect of the Ordinance is to affect
the flow of the waters of the river Cauvery into the territory of
MEDICAL COUNCIL OF INDIA  v. STATE OF KERALA & ORS.
[ARUN MISHRA, J.]
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Tamil Nadu and Pondicherry which are the lower riparian States.
The Ordinance has, therefore, an extra-territorial operation.  Hence
the Ordinance is on that account beyond the legislative competence
of the State and is ultra vires the provisions of Article 245(1) of
the Constitution.
      79. The Ordinance is also against the basic tenets of the rule
of law inasmuch as the State of Karnataka by issuing the
Ordinance has sought to take law in its own hand and to be above
the law.  Such an act is an invitation to lawlessness and anarchy,
inasmuch as the Ordinance is a manifestation of a desire on the
part of the State to be a judge in its own cause and to defy the
decisions of the judicial authorities.  The action forebodes evil
consequences to the federal structure under the Constitution and
open doors for each State to act in the way it desires disregarding
not only the rights of the other States, the orders passed by
instrumentalities constituted under an Act of Parliament but also
the provisions of the Constitution.  If the power of a State to issue
such an Ordinance is upheld it will lead to the breakdown of the
constitutional mechanism and affect the unity and integrity of the
nation.”
The Court has also observed in Re: Cauvery Water Disputes
Tribunal(supra) that if the exercise of the power of judicial review can
be set at naught by the State Government by overriding the decision
given against it, it would
sound the death knell of the rule of law. The
rule of law would be meaningless as it would be open to the State
Government to defy the law and yet get away with it.
24. Yet again a Constitution Bench of this Court in State of Tamil
Nadu v. State of Kerala and Anr. (2014) 12 SCC 696 has considered
the question of separation of powers doctrine under the Indian Constitution
and it observed:
“126. On deep reflection of the above discussion, in our opinion,
the constitutional principles in the context of Indian Constitution
relating to separation of powers between legislature, executive
and judiciary may, in brief, be summarized thus:
126.1 Even without express provision of the separation of powers,
the doctrine of separation of powers is an entrenched principle in
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the Constitution of India. The doctrine of separation of powers
informs the Indian constitutional structure and it is an essential
constituent of rule of law. In other words, the doctrine of separation
of power though not expressly engrafted in the Constitution, its
sweep, operation, and visibility are apparent from the scheme of
Indian Constitution. Constitution has made demarcation, without
drawing formal lines between the three organs- legislature,
executive, and judiciary. In that sense, even in the absence of
express provision for separation of powers, the separation of
powers between legislature, executive and judiciary is not different
from the Constitutions of the countries which contain express
provision for separation of powers.
126.2 Independence of courts from the executive and legislature
is fundamental to the rule of law and one of the basic tenets of
Indian Constitution. Separation of judicial power is a significant
constitutional principle under the Constitution of India.
126.3 Separation of powers between three organs – the legislature,
executive, and judiciary-is also nothing but a consequence of
principles of equality enshrined in Article 14 of the Constitution of
India. Accordingly, breach of separation of judicial power may
amount to negation of equality under Article 14. Stated thus, a
legislation can be invalidated on the basis of breach of the separation
of powers since such breach is negation of equality under Article
14 of the
Constitution.
126.4 The superior judiciary (High Courts and Supreme Court) is
empowered by the Constitution to declare a law made by the
legislature (Parliament and State Legislatures) void if it is found
to have transgressed the constitutional limitations or if it infringed
the rights enshrined in Part III of the Constitution.
126.5 The doctrine of separation of powers applies to the final
judgments of the courts.  The legislature cannot declare any
decision of a court of law to be void or of no effect. It can, however,
pass an amending Act to remedy the defects pointed out by a
court of law or on coming to know of it aliunde. In other words, a
court’s decision must always bind unless the conditions on which
it is based are so fundamentally altered that the decision could not
have been given in the altered circumstances.
MEDICAL COUNCIL OF INDIA  v. STATE OF KERALA & ORS.
[ARUN MISHRA, J.]
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126.6 If the legislature has the power over the subject-matter and
competence to make a validating law, it can at any time make
such a validating law and make it retrospective. The validity of a
validating law, therefore, depends upon whether the legislature
possesses the competence which it claims over the subject-matter
and whether in making the validation law it removes the defect
which the courts had found in the existing law.
126.7 The law enacted by the legislature may apparently seem to
be within its competence but yet in substance, if it is shown as an
attempt to interfere with the judicial process, such law may be
invalidated being in breach of doctrine of separation of powers.
In such situation, the legal effect of the law on a judgment or a
judicial proceeding must be examined closely, having regard to
legislative prescription or direction. The questions to be asked
are:
(i) Does the legislative prescription or legislative direction interfere
with the judicial functions?
(ii) Is the legislation targeted at the decided case or whether
impugned law requires its application to a case already finally
decided?
(iii) What are the terms of law; the issues with which it deals and
the nature of the judgment that has attained finality?
If the answer to Questions (i) and (ii) is in the affirmative and the
consideration of aspects noted in Question (iii) sufficiently
establishes that the impugned law interferes with
the judicial
functions, the Court may declare the law unconstitutional.”
This Court has observed that independence of the judiciary is
fundamental to the rule of law. A legislation can be invalidated on the
basis of breach of separation of judicial power since such breach is
negation of equality under Article 14. Law can be declared void if it is
found to have transgressed the constitutional limitations. The legislature
cannot declare any decision of a court of law to be void or of no effect.
It can remove the defects of the law pointed out by the court or on
coming to know of it aliunde; otherwise, a court’s decision must always
bind unless the conditions on which it is based are so fundamentally
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altered that the decision could not have been given in such altered
circumstances. The legislature can make a validating law. Making
validation as such, it removes the defect which the court finds in the
existing law. There cannot be an attempt to interfere with the judicial
process, and such law may be invalidated. The questions to be examined
are: whether the legislation targeted at the decided case, what are the
terms of law; the issues with which it deals and the nature of the judgment
that has attained finality? If law interferes with the judicial functions on
the aforesaid tests laid down in para 126.7, the Court may declare the
law as unconstitutional.
25. In S.R. Bhagwat and Ors. vs. State of Mysore(1995) 6 SCC
16, the provisions of Karnataka State Civil Services(Regulations of
Promotion, Pay & Pension) Act, 1973 came up for consideration of this
Court. Provisions were made in section 11 nullifying the judgments and
orders of this Court as had become final, and empowering the State to
review such judgments and orders was held to be interference with the
powers of the State legislature, and the Court struck down section 11(2)
as ultra vires of the legislative powers of the State and sections 4(2),
4(3) and 4(8) were read down which sought to deprive the petitioners of
the benefits of the judgment of the court which had become final. It was
further observed that once the judgment has attained finality and was
binding against the State, it cannot be
overruled by any legislative
measure. The Court observed that court’s judgments cannot be nullified
by the legislature:
“15. We may note at the very outset that in the present case the
High Court had not struck down any legislation which was sought
to be re-enacted after removing any defect retrospectively by the
impugned provisions. This is a case where on interpretation of
existing law, the High Court had given certain benefits to the
petitioners. That order of mandamus was sought to be nullified by
the enactment of the impugned provisions in a new statute. This
in our view would be clearly impermissible legislative exercise.
18. A mere look at sub-section (2) of Section 11 shows that the
respondent State of Karnataka, which was a party to the decision
of the Division Bench of the High Court against it had tried to get
out of the binding effect of the decision by resorting to its legislative
power. The judgments, decrees, and orders of any court or the
MEDICAL COUNCIL OF INDIA  v. STATE OF KERALA & ORS.
[ARUN MISHRA, J.]
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competent authority which had become final against the State
were sought to be done away with by enacting the impugned
provisions of sub-section (2) of Section 11. Such an attempt cannot
be said to be a permissible legislative exercise. Section 11(2),
therefore, must be held to be an attempt on the part of the State
Legislature to legislatively overrule binding decisions of competent
courts against the State. It is no doubt true that if any decision
was rendered against the State of Karnataka which was pending
in appeal and had not become final it could rely upon the relevant
provisions of the Act which were given retrospective effect by
sub-section (2) of Section 1 of the Act for whatever such reliance
was worth. But when such a decision had become final as in the
present case when the High Court clearly directed respondent-
State to give to the petitioners concerned deemed dates of
promotions if they were otherwise found fit and in that eventuality
to give all benefits consequential thereon including financial
benefits, the State could not invoke its legislative power to displace
such a judgment. Once this decision had become final and the
State of Karnataka had not thought it fit to challenge it before this
Court presumably because in identical other matters this Court
had upheld other decisions of the Karnataka High Court taking
the same view, it passes one’s comprehension how the legislative
power can be pressed
in service to undo the binding effects of
such mandamus. It is also pertinent to note that not only sub-
section (2) of Section 11 seeks to bypass and override the binding
effect of the judgments but also seeks to empower the State to
review such judgments and orders and pass fresh orders in
accordance with provisions of the impugned Act. The respondent-
State in the present case by enacting sub-section (2) of Section
11 of the impugned Act has clearly sought to nullify or abrogate
the binding decision of the High Court and has encroached upon
the judicial power entrusted to the various authorities functioning
under the relevant statutes and the Constitution. Such an exercise
of legislative power cannot be countenanced.
20. We, therefore, strike down Section 11 sub-section (2) as
unconstitutional, illegal and void. So far as the underlined impugned
portions of Section 4 sub-sections (2), (3) and (8) are concerned,
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they clearly conflict with the binding direction issued by the Division
Bench of the High Court against the respondent-State and in favour
of the petitioners. Once respondent-State had suffered the
mandamus to give consequential financial benefits to the allottees
like the petitioners on the basis of the deemed promotions such
binding direction about payment of consequential monetary benefits
cannot be nullified by the impugned provisions of Section 4.
Therefore, the underlined portions of sub-sections (2), (3) and (8)
of Section 4 will have to be read down in the light of orders of the
court which have become final against the respondent-State and
insofar as these provisions are inconsistent with these final orders
containing such directions of judicial authorities and competent
courts, these impugned provisions of Section 4 have to give way
and to the extent of such inconsistency must be treated to be
inoperative and ineffective. Accordingly the aforesaid provisions
are read down by observing that the statutory provisions contained
in sub-sections (2), (3) and (8) of Section 4 providing that such
persons who have been given deemed promotions shall not be
entitled to any arrears for the period prior to the date of their
actual promotion, shall not apply in cases where directions to the
contrary of competent courts against the respondent-State have
become final.”
26. On behalf of the respondents, certain decisions with respect
to legislative competence
have been referred. In S.T. Sadiq vs. State of
Kerala and Ors.(2015) 4 SCC 400, this Court has laid down that the
legislative function consists in “making” law and not in “declaring” what
the law shall be. The legislature can make a law retrospectively which
may alter the law as it stood when a decision was arrived at. It is in this
limited sphere, the legislature may alter the very basis of an earlier
decision given by the court. It cannot directly annul that final judgment
by a subsequent legislation. If its purpose is to annul a final judgment,
such act of legislature must be declared to be unconstitutional. The Court
has observed:
“13. It is settled law by a catena of decisions of this Court that the
legislature cannot directly annul a judgment of a court. The
legislative function consists in “making” law [see: Article 245 of
MEDICAL COUNCIL OF INDIA  v. STATE OF KERALA & ORS.
[ARUN MISHRA, J.]
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the Constitution] and not in “declaring” what the law shall be
[see: Article 141 of the Constitution]. If the legislature were at
liberty to annul judgments of courts, the ghost of bills of attainder
will revisit us to enable legislatures to pass legislative judgments
on matters which are inter-parties. Interestingly, in England, the
last such bill of attainder passing a legislative judgment against a
man called Fenwick was passed as far back as in 1696. A century
later, the US Constitution expressly outlawed bills of attainder
[see: Article 1 Section 9].
14. It is for this reason that our Constitution permits a legislature
to make laws retrospectively which may alter the law as it stood
when a decision was arrived at. It is in this limited circumstance
that a legislature may alter the very basis of a decision given by a
court, and if an appeal or other proceeding be pending, enable the
Court to apply the law retrospectively so made which would then
change the very basis of the earlier decision so that it would no
longer hold good. However, if such is not the case then legislation
which trenches upon the judicial power must necessarily be
declared to be unconstitutional.”
27. The decision in Cheviti Venkanna Yadav v. State of
Telangana & Ors. (2017) 1 SCC 283, was relied on behalf of the
respondents, wherein the Court considered the question of amendment
with retrospective effect after a provision of the Act is
struck down by
the court. When does it not amount to the statutory overruling of a
judgment by the legislature? This Court held that the legislature has the
power to legislate including the power to retrospectively amend the laws
and thereby removing causes of ineffectiveness or invalidity. Further,
when such correction is made, the purpose behind the same is not to
overrule the decision of the court or encroach upon the judicial turf, but
simply enact a fresh law with retrospective effect to alter the foundation
and meaning of the legislation and to remove the base on which the
judgment is founded. The order of the High Court, inter alia, holding that
the amended provisions did not usurp the judicial power was upheld and
the court also opined that there was no violation of Article 14 of the
Constitution. The Court observed:
“25. We shall deal first point first. The Reorganization Act came
into force on 02.06.2014. Submission is, prior to the said date, the
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legislature that was not in existence as an entity could not have
legislated relating to some aspect that covers the prior period.
The aforesaid submission should not detain us long. In M/s. Rattan
Lal and Co. and Anr. etc v. The Assessing Authority, Patiala, and
Anr. AIR 1970 SC 1742 the Court was dealing with the competence
of State of Haryana pertaining to a legislation enacted by the
State of Haryana by way of an amendment prior to the
reorganisation of the State. In that context the Court held:
“12. …It is argued that the reorganisation of the State took
place on November 1, 1966, and the amendment in some of its
parts seeks to amend the original Act from a date anterior to
this date. In other words, the legislature of one of the States
seeks to amend a law passed by the composite State. This
argument entirely misunderstands the position of the original
Act after the reorganisation. That Act applied now as an
independent Act to each of the areas and is subject to the
legislative competence of the legislature in that area. The Act
has been amended in the new States in relation to the area of
that State and it is inconceivable that this could not be within
the competence. If the argument were accepted then the Act
would remain unamendable unless the composite State came
into existence once more. The scheme of the States
Reorganization Acts makes the laws applicable to the new areas
until superseded, amended or altered by the appropriate
legislature in
the new States. This is what the legislature has
done and there is nothing that can be said against such
amendment.”
The aforesaid passage makes it clear as crystal that after the
legislature came into existence, it has the competence to enact
any law retrospectively or prospectively within the constitutional
parameters.
26. The second issue that emanates for consideration is whether
the base of the earlier judgment has really been removed. Before
stating the factual score, it is necessary to state how this Court
has viewed the said principle. In Shri Prithvi Cotton Mills Ltd. and
Anr. v. Broach Borough Municipality and Ors. (1969) 2 SCC 283,
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the Constitution Bench while dealing with the legislation which
intended to validate the tax declared by law to be illegal, opined
that when a Legislature sets out to validate a tax declared by a
court to be illegally collected under an ineffective or an invalid
law, the cause for ineffectiveness or invalidity must be removed
before validation can be said to take place effectively. The most
important condition, of course, is that the Legislature must possess
the power to impose the tax, for if it does not, the action must
ever remain ineffective and illegal. Granted legislative competence,
it is not sufficient to declare merely that the decision of the Court
shall not bind, for that tantamount to reversing the decision in
exercise of judicial power which the Legislature does not possess
or exercise. A court’s decision must always bind unless the
conditions on which it is based are so fundamentally altered that
the decision could not have been given in the altered circumstances.
Thereafter, the Court proceeded to state that validation of a tax
so declared illegal may be done only if the grounds of illegality or
invalidity are capable of being removed and are in fact removed
and the tax thus made legal. The legislature does it many a way.
One of the methods it may adopt is to give its own meaning and
interpretation of the law under which tax was collected and by
legislative fiat makes the new meaning binding upon
courts. On
such legislation being brought, it neutralizes the effect of the earlier
decision as a consequence of which it becomes ineffective. The
test of validity of a validating law depends upon whether the
Legislature possesses the competence which it claims over the
subject-matter and whether in making the validation it removes
the defect which the courts had found in the existing law and
makes adequate provisions in the validating law for a valid
imposition of the tax.
27. In Bhubaneshwar Singh and Anr. v. Union of India and Ors.
(1994) 6 SCC 77 in view of Section 3 of the Coking Coal Mines
(Emergency Provisions) Act, 1971 which was promulgated in the
year 1971 the Custodian being appointed by the Central
Government took over the management of Coking Coal Mines
and the said mines remained under the management of the Central
Government through the custodian during the period from
17.10.1971 to 30.04.1972. The Coking Coal Mines (Nationalisation)
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Act, 1972 came into force w.e.f. 1.5.1972, and the right, title and
interest of the owners in relation to Coking Coal Mines stood
transferred to and vested absolutely in the Central Government
free from all encumbrances. The provisions of the said Act were
challenged before this Court in the case of Tara Prasad Singh and
Ors. v. Union of India and Ors. (1980) 4 SCC 179 and the
Constitution Bench upheld the validity of the said Act. The writ
Petitioner before the High Court making a grievance that the
Custodian had debited the expenses for raising the coal while the
Coking Coal Mine was under the Management of the Custodian
but had not credited the price for the quantity of the coal raised,
which was lying in stock on the date prior to the date the said
Coal Mine vested under the Central Government. The High Court
allowed the writ petition and a direction was issued that account
be recast and payment be made to the Petitioner. The appeal
before this Court by special leave was dismissed, as this Court
was of the view that sale price of stock of extracted coal lying at
the commencement of the appointed date had to be taken into
account for determining the profit and loss during the period of
management of the mine by the Custodian. After the appeal
preferred by the Coal Fields was dismissed, Coal Mines
Nationalisation Laws (Amendment) Ordinance, 1986 was
promulgated and later on replaced by Coal Mines Nationalisation
Laws (Amendment) Act, 1986 came into
force. By Section 4 of
the Amendment Act, Sub-section (2) was introduced in Section
10 of the Coking Coal Mines (Nationalisation) Act, 1972. The
said provision declared that the amounts specified in the fifth column
of the First Schedule against any coking coal mines or group of
coking coal mine specified in the second column of the said
Schedule are required to be given by the Central Government to
its owner under Sub-section (1) shall be deemed to be included,
and deemed always to have included, the amount required to be
paid to such owner in respect of coal in stock or other assets
referred to in Clause (j) of Section 3 on the date immediately
before the appointed day and no other amount shall be paid to the
owner in respect of such coal or other assets. Section 19 was the
validating provision.
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28. The writ petition was filed questioning the validity of the said
ordinance primarily on the ground that it purported to nullify the
judgment rendered in the case of Central Coal Fields Ltd. v.
Bhubaneswar Singh and Ors. (1984) 4 SCC 429. The Court
referred to the provisions and opined that:
“13. ...if Sub-section (2) as introduced by the Coal Mines
Nationalisation Laws (Amendment) Act, 1986 in Section 10
had existed since the very inception, there was no occasion
for the High Court or this Court to issue a direction for taking
into account the price which was payable for the stock of coke
lying on the date before the appointed day. The authority to
introduce Sub-section (2) in Section 10 of the aforesaid Act
with retrospective effect cannot be questioned. Once the
amendment has been introduced retrospectively, courts have
to act on the basis that such provision was there since the
beginning. The role of the deeming provision need not be
emphasised in view of series of judgments of this Court. Hence
reading Sub-section (2) of Section 10 along with Section 19, it
has to be held that Respondents are not required to take into
account the stock of coke lying on the date prior to the appointed
day, for the purpose of accounting during the period when the
mine in question was under the management of the Central
Government, because it shall be deemed that the compensation
awarded to the Petitioner included the price for
such coal lying
in stock on the date prior to the appointed day. Neither any
compensation is to be paid for such stock of coal nor the price
thereof is to be taken into account for the purpose of Sub-
section (1) of Section 22 of the Coking Coal Mines
(Nationalisation) Act, 1972.”
Being of this view, the Court dismissed the writ petition.
29. In State of H.P. v. Narain Singh (2009) 13 SCC 165 while
dealing with the validation of statute the Court ruled that:
“26. It is therefore clear where there is a competent legislative
provision which retrospectively removes the substratum of
foundation of a judgment, the said exercise is a valid legislative
exercise provided it does not transgress any other constitutional
limitation.”
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To arrive at the said conclusion, the two-Judge Bench reproduced
from the decision in Constitution Bench in State of T.N. v. Arooran
Sugars Ltd. (1997) 1 SCC 326 which is to the following effect:
“28. … ’16. …It is open to the legislature to remove the defect
pointed out by the court or to amend the definition or any other
provision of the Act in question retrospectively. In this process,
it cannot be said that there has been an encroachment by the
legislature over the power of the judiciary. A court’s directive
must always bind unless the conditions on which it is based are
so fundamentally altered that under altered circumstances such
decisions could not have been given. This will include removal
of the defect in a statute pointed out in the judgment in question,
as well as alteration or substitution of provisions of the
enactment on which such judgment is based, with retrospective
effect.’
30. From the aforesaid authorities, it is settled that there is a
demarcation between legislative and judicial functions predicated
on the theory of separation of powers. The legislature has the
power to enact laws including the power to retrospectively amend
laws and thereby remove causes of ineffectiveness or invalidity.
When a law is enacted with retrospective effect, it is not considered
as an encroachment upon judicial power when the legislature does
not directly overrule or reverse a judicial dictum. The legislature
cannot, by way of an enactment, declare a
decision of the court
as erroneous or a nullity, but can amend the statute or the provision
so as to make it applicable to the past. The legislature has the
power to rectify, through an amendment, a defect in law noticed
in the enactment and even highlighted in the decision of the court.
This plenary power to bring the statute in conformity with the
legislative intent and correct the flaw pointed out by the court can
have a curative and neutralizing effect. When such a correction
is made, the purpose behind the same is not to overrule the decision
of the court or encroach upon the judicial turf, but simply enact a
fresh law with retrospective effect to alter the foundation and
meaning of the legislation and to remove the base on which the
judgment is founded. This does not amount to statutory overruling
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by the legislature. In this manner, the earlier decision of the court
becomes non-existent and unenforceable for interpretation of the
new legislation. No doubt, the new legislation can be tested and
challenged on its own merits and on the question whether the
legislature possesses the competence to legislate on the subject
matter in question, but not on the ground of over-reach or colourable
legislation.”
There is no dispute with the aforesaid proposition that the legislature
has the power to retrospectively amend the laws and thereby remove
the causes of in effectiveness or invalidity on which judgment is based,
and that would not be an encroachment upon judicial power when the
legislature does not directly overrule or reverse a judicial dictum.
28. Reliance has also been placed by the respondents on Goa
Foundation & Anr. v. State of Goa & Anr. (2016) 6 SCC 602 wherein
the Court has discussed the matter thus:
“24. The principles on which first question would require to be
answered are not in doubt. The power to invalidate a legislative
or executive act lies with the Court. A judicial pronouncement,
either declaratory or conferring rights on the citizens cannot be
set at naught by a subsequent legislative act for that would amount
to an encroachment on the judicial powers. However, the
legislature would be competent to pass an amending or a validating
act, if deemed fit, with retrospective effect removing the basis
of
the decision of the Court. Even in such a situation, the courts may
not approve a retrospective deprivation of accrued rights arising
from a judgment by means of a subsequent legislation [Madan
Mohan Pathak and Anr. v. Union of India and Ors. (1978) 2 SCC
50. However, where the Court’s judgment is purely declaratory,
the courts will lean in support of the legislative power to remove
the basis of a Court judgment even retrospectively, paving the
way for a restoration of the status quo ante. Though the
consequence may appear to be an exercise to overcome the judicial
pronouncement it is so only at first blush; a closer scrutiny would
confer legitimacy on such an exercise as the same is a normal
adjunct of the legislative power. The whole exercise is one of
viewing the different spheres of jurisdiction exercised by the two
bodies i.e. the judiciary and the legislature. The balancing act,
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delicate as it is, to the constitutional scheme, is guided by well-
defined values which have found succinct manifestation in the
views of this Court in Bhaktwar Trust and Ors. (supra).
26. If the above principles are to be applied to the present case
what follows is that Section 41(6) to (9) introduced in the Principal
Act by the Goa State Amendment renders ineffective Clause 4(viii)
of the Agreement executed by the parties Under Section 41 of
the Principal Act. With Clause 4(viii) being deleted the embargo
on constructions on the acquired land is removed. It is the aforesaid
Clause 4(viii) and its legal effect, in view of Section 42, that was
the basis of the Court’s decision dated 20th January 2009 holding
the construction raised by the third Respondent on the acquired
land to be illegal and contrary to the Principal Act. Once Clause
4(viii) is removed the basis of the earlier judgment stands
extinguished. In fact, it may be possible to say that if Clause 4(viii)
had not existed at all, the judgment of the Court dated 20th January
2009 would not have been forthcoming. It was therefore well
within the domain of the legislature to bring about the Amendment
Act with retrospective effect, the Legislative field also being in
the Concurrent List, namely, Entry No. 42 of List III (Acquisition
and Requisition of Property) of the Seventh Schedule to the
Constitution.”
The Court has re-emphasised that a judicial pronouncement, either
declaratory or conferring
rights on the citizens cannot be set at naught
by a subsequent legislative act. However, the legislature shall be
competent to pass an amending or a validating Act, if deemed fit, with
retrospective effect removing the basis of the decision of the Court by
amending the law. Thus, once the provisions in clause 4(viii) were
removed, the basis of the earlier judgment stood extinguished.
29. In Goa Glass Fibre Ltd. v. State of Goa & Anr. (2010) 6
SCC 499, a question arose whether under the Goa (Prohibition of Further
Payment and Recovery of Rebate Benefits) Act, 2002, sections 2, 3, 5
and 6 were unconstitutional. The contention was raised that the impugned
Act nullifies the judgment of the Court. The Court has observed:
“15. It is well settled that a Statute can be invalidated or held
unconstitutional on limited grounds viz., on the ground of the
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incompetence of the Legislature which enacts it and, on the
ground, that it breaches or violates any of the fundamental rights
or other Constitutional Rights and on no other grounds. (See State
of A.P. v. McDowell and Co. (1996) 3 SCC 709, Kuldip Nayar v.
Union of India and Ors. (2006) 7 SCC 1.
16. The scheme of the Act appears to be simple. The Act imposes
a Prohibition [under Section 2], requires recovery [under Section
3] and “extinguishes” all liabilities of the State that accrue or arise
from the Notifications dated 15.05.1996 and 01.08.1996.
17. From the language of the Act, it becomes clear that the Act is
not influenced by the outcome of the Judgment of the High Court
in Manohar Parrikar’s case. By the enactment, the Legislature
has imposed prohibition of further payments under the Notifications,
provides for recovery of rebate benefits from the beneficiaries
and extinguishes the State’s Liability under the Notifications
mentioned supra. This exercise by the Legislature is independent
of and dehors the results of the PIL of Manohar Parrikar and can
be said to be uninfluenced by the said judgment. It was well within
the Legislative power of the State to respond to the undisputed
and disturbing facts which had enormous financial implication on
the State’s Finances to enact the Law with an object of remedying
the unsatisfactory state of affairs which were known to the
Legislature.
18. That the object of the Act
is not to undo or reverse the
judgments of either this Court or that of the High Court. On a
reading of the Act as a whole, it does not appear that the Legislature
seeks to undo any judgment or any directions contained therein.
As observed earlier the Act imposes a Prohibition [under Section
2], requires recovery [under Section 3] and “extinguishes” all
liabilities of the State that accrue or arise from the Notifications
dated 15.05.1996 and 01.08.1996. Therefore, no exception can
be taken to the constitutionality of the Act impugned, on the ground,
that it seeks to undo or reverse any judgment. The Legislature in
its competence has enacted the Act to achieve the purposes
indicated therein and not to frustrate any judgment of any court
including that of this Court. It is to be noted that State Legislature
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was competent to enact the Act in its present form even before
the judgment of the High Court in the PIL and the fact that it has
come after the judgment in PIL does not render it unconstitutional
on the ground that it seeks to nullify the judgment of this Court in
the earlier proceedings.”
The liability of the State which accrued or arose from the
notifications referred to therein was sought to be extinguished. It was
held that it was not to undo the judgment. The legislature was held to be
competent to remove the basis.
30. In Tika Ram & Ors. v. State of Uttar Pradesh & Ors. (2009)
10 SCC 689, this Court considered the provisions of Land Acquisition
(U.P. Amendment & Validation Act, 1991, in particular sections 2 and 3
thereof adding proviso to section 17(4) of the Land Acquisition Act,
1894 and held the same to be constitutional.  The contention that the
U.P.  Amendment Act merely sought to overrule judgments in Kashmir
Singh’s case AIR 1987 All. 113 or State of U.P. v. Radhey Shyam
Nigam (1989) 1 SCC 591 and did not remove the basis or foundation
thereof and was, therefore, ultra vires Articles 245 and 246 was rejected.
The question arose regarding the constitutional validity of the Land
Acquisition (Amending) Act. Notification under section 4 read with
section 17(4) was issued on 4.12.1984 which was published in the Gazette
on 8.12.1984. Declaration under section 6 was made on 4.12.1984 and
published in the Gazette on 8.12.1984. It was found that
simultaneous
notifications under sections 4 and 6 could not be made and therefore the
acquisitions were bad as held in Kashmir Singh v. State of U.P. AIR
1987 All. 113 which was upheld by this Court. Thereafter, the Ordinance
was promulgated. The Statement of Objects and Reasons referred to
the judgment in Kashmir Singh’s case. It was decided to amend the Act
for validating the proceedings in respect of the Notification under section
4 published on or after 24.9.1984 but before 11.1.1989. Following provision
was inserted:
“55. The amendment of Section 17 was brought on the legal anvil
by way of a proviso to Sub-section (4) thereof which ran as under:
“Provided that where in case of any land notification under
Section 4(1) has been published in the official Gazette on or
after 24.09.1984 but before 11.1.1989 and the appropriate
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Government has under this Sub-section direction that proviso
of Section 5A was not applied, a declaration under Section 6 in
respect of the land may be made either simultaneously at a
time after the publication in the Official Gazette of the
notification under Section 4 sub-section (1).”
The Court in Tika Ram (supra) observed that the legislature had
no power to overrule the judgment. However, it has the power to suitably
amend the law to remove flaw pointed out by the Court. It was observed:
“57. This argument is completely answered in Meerut
Development Authority v. Satbir Singh reported in 1996 (11) SCC
462. This Court was considering this very proviso of Section 17(4)
inserted by Land Acquisition [U.P. Amendment and Validation
Act, 1991 [UP Act No. 5 of 1991] and relying upon the judgment
reported as GDA v. Jan Kalyan Samiti, Sheopuri reported in 1996
(2) SCC 365, the Court took the view in paragraph 10 that when
this Court had declared a particular statute to be invalid, the
Legislature had no power to overrule the judgment. However, it
has the power to suitably amend the law by use of proper
phraseology removing the defects pointed out by the Court and
by amending the law inconsistent with the law declared by the
Court so that the defects which were pointed out were never on
statute for enforcement of law. Such an exercise of power to
amend a statute is not an incursion on the judicial power of the
Court but as
a statutory exercise on the constituent power to
suitably amend the law and to validate the actions which have
been declared to be invalid.
69. Reliance was also placed on the judgment in Bakhtawar Trust
v. M.D. Narayan and Ors. reported in 2003 (5) SCC 298. Learned
Counsel for the appellant relied on paragraphs 14 to 16. In our
opinion, paragraph 14 was completely against the appellants
wherein the State Legislature’s power to make retrospective
legislation and thereby validating the prior executive and legislative
acts retrospectively is recognized. Of course, the same has to be
done only after curing the defects that led to the invalidation. We
respectfully agree with the propositions laid down in paragraphs
14, 15 and 16 thereof. In Shri Prithvi Cotton Mills Ltd. v. Broach
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Borough Municipality reported in 1969 (2) SCC 283, which is
referred to in paragraph 16 of the decision, it is stated that:
“the Legislature may follow any one method or all of them and
while it does so, it may neutralize the effect of earlier decision
of the Court which becomes ineffective after the change of
the law.”
It is further stated therein that the validity of the validating law,
therefore, depends upon whether the Legislature possesses the
competence which it claims over the subject matter and whether
in making the validation it removes the defect which the Courts
had found in the existing law. The Amending Act has clearly passed
these tests. All the relevant cases on this subject have been
considered in this judgment.”
The Court has observed that the State legislature has the power
to make retrospective legislation, thereby validating the prior executive
and legislative acts retrospectively, such power is recognised. Of course,
the same has to be done only after curing the defects that led to the
invalidation.
31. In the light of the exposition of the aforesaid principles of law
in the various judgments when we revert back to the scenario in the
instant matter, it is apparent that there was decision of the High Court of
Kerala on 26.8.2016 regarding admission in MBBS/BDS courses in 2016-
17 directing that all the colleges agree that the applications for admission
are received only through “on-line” and that the said process provides
transparency with regard to the merit as well as the identities of the
applicants. Such applications shall be uploaded for scrutiny of the
Admission Supervisory Committee also.
32. Against the said interim order which was of final nature, the
Union of India had filed an SLP. This Court set aside only that part of
condition No.1 wherein the respective colleges were allowed to conduct
the counselling and admit the students without going into the merits. This
Court has referred to the aforesaid order of the Kerala High Court in a
decision dated 28.9.2016 in CA No.9862/2016. In C.A. No.3874/2018,
(2018 (6) SCALE 174) – Anitta Job & Ors. v. The State of Kerala&
Ors. decided on 20.4.2018, this Court observed:
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“14. We have already noticed above that Kerala High Court has
passed interim order on 26.08.2016 under which the High Court
issued certain directions regarding admission in MBBS/BDS
Courses 2016-2017. Paragraph 9 of the judgment which is relevant
in this context is as follows:
“9. Accordingly, there shall be an interim stay of operation and
implementation of the impugned orders, G.O. (Rt) No. 2314/
2016/H&FWD dated 20.08.2016 and G.O. (Rt) No. 2336/2016/
H&FWD dated 23.08.2016, subject to the following conditions:
(i) Admissions to the MBBS/BDS courses shall be only on the
basis of the ranking of candidates in the rank list of NEET,
2016, on the basis of the inter-se merit among the candidates,
who have applied to the respective colleges.
(ii) All the colleges agree that the applications for admission
are received only through online and that, the said process
provides transparency with regard to the merit as well as the
identities of the applicants. Such applications shall, therefore,
be uploaded for the scrutiny of the Admission Supervisory
Committee also immediately on the expiry of the last date for
submission of applications.
(iii) Since the counsel for the Admission Supervisory Committee
has voiced a complaint that some of the colleges have not
obtained approval of the Admission Supervisory Committee,
for their Prospectus, the admission process shall be proceeded
with only on the basis of a Prospectus, for
which approval of
the Admission Supervisory Committee has been obtained.
(iv) The Admission Supervisory committee is directed to either
approve or disapprove the Prospectus, submitted to them for
approval, within three days of such submission.”
15. It is relevant that against the interim order of the Kerala High
Court dated 26.8.2016, Union of India has filed an SLP which
was disposed of by this Court on 28.9.2016 in C.A.No.9862 of
2016. This Court set aside only that part of Condition No.1 wherein
the respective Colleges are allowed to conduct the counselling
and admit the students without going into the merits. This Court,
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however, specifically observed that this Court is not interfering
with the admissions of students which have been done by the
respective Colleges as those were done after reaching arrangement
with the State Government. Last two paragraphs of this Court’s
order dated 28.9.2016 are as follows:
     “Having regard to the aforesaid facts as stated by the
learned Solicitor General as well as the counsel for the
respondents, we set aside that part of Condition No.1 wherein
the respective colleges are allowed to conduct the counselling
and admit the students without going into the merits.
        This issue shall be finally thrashed out and decided by
the High Court in the writ petitions which are pending before
it. However, we are not inclined to interfere with the admissions
of students which have been done by the respective colleges
as these are done after reaching arrangement with the State
Government. In that behalf, the conditions which are mentioned
in the impugned order shall continue to apply.
         The appeal stands disposed of in the aforesaid terms.”
It is apparent from the order passed by this Court as well as by
the High Court of Kerala that receiving online applications was mandatory
and it was laid down in the judgment for ensuring the fair process of
admissions, transparency as well as identities of the applicants. The
condition was the outcome of the judgment on the power of judicial
review passed by the Kerala High Court and affirmed by
this Court
also. Thus, the very same judgment is sought to be nullified by the
impugned Ordinance by making a provision to the contrary. Admissions
as per the Ordinance are to be regularised dehors the mode of submitting
the applications. It is not removing the defect in any existing law. The
Ordinance has clearly annulled a judgment of Court which was laid down
in order to ensure fair procedure.
33. We have anxiously read the entire impugned Ordinance and a
perusal thereof indicates that it is a blatant attempt of regularisation of
admissions made which were declared to be invalid not only by the High
Court of Kerala but by this Court after this Court had dealt with the
order dated 14.11.2016 passed by the ASC after hearing the matter for
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several days and the Court had passed a reasoned order.  While
dismissing/disposing of the matters, this Court directed the 30 students
who were illegally deprived of the admission, to be admitted in the next
academic session 2017-18. It was clearly not a dismissal of the case in
limine but a reasoned order. In the writ petitions filed by the colleges
and others, the validity and legality of the order dated 14.11.2016 was
questioned. However, this Court has upheld the same. We also note that
voluminous records were filed in this Court by both the medical colleges.
The students were also heard when the decision was rendered.
Thereafter also several petitions were filed which were dismissed by
this Court. Thus, when this Court has upheld the order dated 14.11.2016
on the ground of illegality and irregularities and not following the due
procedure, such admissions could not have been regularised at all. In
case such a power of covering up illegal action is given to the State
Government in individual cases of two colleges, the day is not far off
when every judgment can be annulled. It is crystal clear in the instant
case that the State Government has exceeded its powers and has
entrenched upon the field reserved for the judiciary. It could not have
nullified the judgment. The online procedure was laid down by the
judgment. The provision of any existing law framed by legislation has
not been changed by the State Government
by the impugned Ordinance
but illegalities found in the admissions were sought to be got rid of. What
was laid down in the judgment for ensuring the fair procedure which
was required to be followed was sought to be undone, it was nothing but
the wholly impermissible act of the State Government of sitting over the
judgment and it could not have promulgated the Ordinance setting at
naught the effect of the judgment.
34. It is also apparent that what the State Government has done
by way of impugned Ordinance is not only impermissible and beyond
legislative competence it also has the effect of perpetuating illegality
and arbitrariness committed by the colleges in question by not following
the mandate of law laid down by the High Court as affirmed by this
Court. An effort has been made to cover up the arbitrariness and illegality
in an illegal and impermissible manner for which the State Government
had no competence. The provisions made in the Ordinance are otherwise
also quite illegal and arbitrary besides in violation of the doctrine of
separation of powers enshrined under Article 50 of the Constitution of
India.
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35. Reliance has been placed by the respondents on a decision of
this Court in Kunhayammed & Ors. v. State of Kerala & Anr. (2000)
6 SCC 359 so as to contend that this Court has not dismissed the special
leave petition by a speaking order. Thus, it cannot be treated to be a
precedent. Reliance has been placed on the following observations made
by the Court:
“40. A petition seeking grant of special leave to appeal may be
rejected for several reasons. For example, it may be rejected (i)
as barred by time, or (ii) being a defective presentation, (iii) the
petitioner having no locus standi to file the petition, (iv) the conduct
of the petitioner disentitling him to any indulgence by the Court,
(iv) the question raised by the petitioner for consideration by this
Court being not fit for consideration or deserving being dealt with
by the apex court of the country and so on. The expression often
employed by this Court while disposing of such petitions are -
“heard and dismissed”, “dismissed”, “dismissed as barred by time”
and so on. Maybe that at the admission stage itself the opposite
party appears on caveat or on notice and offers contest to the
maintainability of the petition. The Court may apply its mind to the
merit worthiness of the petitioner’s prayer seeking leave to file an
appeal and having formed an opinion may say “dismissed on
merits”. Such an order may be passed even ex-parte, that is, in
the absence of the opposite party. In any case, the dismissal
would
remain a dismissal by a non-speaking order where no reasons
have been assigned and no law has been declared by the Supreme
Court. The dismissal is not of the appeal but of the special leave
petition. Even if the merits have been gone into, they are the merits
of the special leave petition only. In our opinion, neither doctrine
of merger nor Article 141 of the Constitution is attracted to such
an order. Grounds entitling exercise of review jurisdiction
conferred by Order 47 Rule 1 of the C.P.C. or any other statutory
provision or allowing review of an order passed in exercise of
writ or supervisory jurisdiction of the High Court (where also the
principles underlying or emerging from Order 47 Rule 1 of the
C.P.C. act as guidelines) are not necessarily the same on which
this Court exercises discretion to grant or not to grant special
leave to appeal while disposing of a petition for the purpose. Mere
rejection of special leave petition does not take away the jurisdiction
MEDICAL COUNCIL OF INDIA  v. STATE OF KERALA & ORS.
[ARUN MISHRA, J.]
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of the court, tribunal or forum whose order forms the subject
matter of petition for special leave to review its own order if
grounds for exercise of review jurisdiction are shown to exist.
Where the order rejecting an SLP is a speaking order, that is,
where reasons have been assigned by this Court for rejecting the
petition for special leave and are stated in the order still the order
remains the one rejecting prayer for the grant of leave to appeal.
The petitioner has been turned away at the threshold without having
been allowed to enter in the appellate jurisdiction of this Court.
Here also the doctrine of merger would not apply. But the law
stated or declared by this Court in its order shall attract applicability
of Article 141 of the Constitution. The reasons assigned by this
Court in its order expressing its adjudication (expressly or by
necessary implication) on point of fact or law shall take away the
jurisdiction of any other court, tribunal or authority to express any
opinion in conflict with or in departure from the view taken by this
Court because permitting to do so would be subversive of judicial
discipline and an affront to the order of this Court. However, this
would be so not by reference to the doctrine of merger.
44. To sum up our conclusions are:
(i) Where an appeal or revision is provided against an order passed
by a court, tribunal or any other authority before superior forum
and such superior
forum modifies, reverses or affirms the decision
put in issue before it, the decision by the subordinate forum merges
in the decision by the superior forum and it is the latter which
subsists, remains operative and is capable of enforcement in the
eye of law.
(ii) The jurisdiction conferred by Article 136 of the Constitution is
divisible into two stages. First stage is up to the disposal of prayer
for special leave to file an appeal. The second stage commences
if and when the leave to appeal is granted and special leave petition
is converted into an appeal.
(iii) Doctrine of merger is not a doctrine of universal or unlimited
application. It will depend on the nature of jurisdiction exercised
by the superior forum and the content or subject-matter of
challenge laid or capable of being laid shall be determinative of
the applicability of merger. The superior jurisdiction should be
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capable of reversing, modifying or affirming the order put in issue
before it. Under Article 136 of the Constitution, the Supreme Court
may reverse, modify or affirm the judgment-decree or order
appealed against while exercising its appellate jurisdiction and not
while exercising the discretionary jurisdiction disposing of petition
for special leave to appeal. The doctrine of merger can, therefore,
be applied to the former and not to the latter.
(iv) An order refusing special leave to appeal may be a non-
speaking order or a speaking one. In either case, it does not attract
the doctrine of merger. An order refusing special leave to appeal
does not stand substituted in place of the order under challenge.
All that it means is that the Court was not inclined to exercise its
discretion so as to allow the appeal being filed.
(v) If the order refusing leave to appeal is a speaking order, i.e.
gives reasons for refusing the grant of leave, then the order has
two implications. Firstly, the statement of law contained in the
order is a declaration of law by the Supreme Court within the
meaning of Article 141 of the Constitution. Secondly, other than
the declaration of law, whatever is stated in the order are the
findings recorded by the Supreme Court which would bind the
parties thereto and also the court, tribunal or authority in any
proceedings subsequent thereto by way of judicial discipline, the
Supreme Court being the apex court of the country. But, this does
not amount to saying that the order of the court, tribunal or authority
below has stood merged in the order of the Supreme Court
rejecting special leave petition or that the order of the Supreme
Court is the only order binding as res judicata in subsequent
proceedings between the parties,
(vi) Once leave to appeal has been granted and appellate
jurisdiction of Supreme Court has been invoked the order passed
in appeal would attract the doctrine of merger; the order may be
of reversal, modification or merely affirmation.
(vii) On an appeal having been preferred or a petition seeking
leave to appeal having been converted into an appeal before
Supreme Court the jurisdiction of High Court to entertain a review
petition is lost thereafter as provided by Sub-rule (1) of Rule (1)
of Order 47 of the C.P.C.”
MEDICAL COUNCIL OF INDIA  v. STATE OF KERALA & ORS.
[ARUN MISHRA, J.]
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This Court has considered the expressions often employed by this
Court while disposing of the special leave petition as “heard and
dismissed”, “dismissed”, “dismissed as barred by time”. Maybe that at
the admission stage itself, the opposite party appears on caveat or on
notice and offers a contest to the maintainability of the petition. Such an
order may be passed even ex parte i.e. in the absence of the opposite
party. In any case, the dismissal would remain a dismissal by a non-
speaking order where no reasons have been assigned and no law has
been declared by this Court. This Court has ultimately concluded that if
an order refusing to grant leave to appeal by a speaking order gives
reasons for refusing the grant of leave, then the order has two implications;
firstly the statement of law contained in the order is a declaration of law
by this Court within the meaning of Article 141 of the Constitution;
secondly, other than the declaration of law, whatever is stated in the
order are the findings recorded by this Court which would bind the parties
thereto and also the court, tribunal or authority.
36. When we read the order passed by this Court, all the parties
have filed the pleadings while the order was passed by this Court. Counter
affidavits, rejoinder and various other applications for taking on record
the documents and plethora of documents were submitted before this
Court and it was argued for several days at
length. This Court has heard
the matter and thereafter has expressed the opinion and recording finding
as to the legality of the order dated 14.11.2016 for the first time as the
order was not before High Court, vide the order passed on 22.3.2017
observing that:
“Heard learned counsel for the parties.
We do not find any ground to interfere in Order dated 14.11.2016.
   As 30 students have been found by ASC, in the case of Karuna
Medical College, who have been illegally deprived of their
admission in spite of being meritorious, we deem it proper to issue
direction to the college and all other concerned authorities to admit
them in the next academic session 2017-18 in Karuna Medical
College and the corresponding number of seats, available to it,
shall be reduced by 30 for the college in question for academic
session 2017-18.
  The Special Leave Petitions are, accordingly, dismissed.
  Pending applications stand disposed of.”
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It is apparent from the aforesaid order passed by this Court that
this Court did not find any ground to interfere with the order dated
14.11.2016. The SLPs. against the order passed by the High Court were
also dismissed and this Court had directed that 30 students be admitted
in the next session. Independent directions were issued which were not
ordered by the High Court. This Court directed that they are to be
admitted to the academic session 2017-18. Thus, it does not lie in the
mouth of the respondents to contend at all that it was not a decision on
merits by this Court. Submission is startling and in the negation of
stupendous effort made and time given by this Court while hearing the
matters before deciding them by the aforesaid order.
37. It was also contended on behalf of the respondents that NEET
merit is the fulcrum that has been adopted in the Ordinance; a student
who could have obtained admission otherwise, had the procedure been
followed, should not be deprived of admission in the course for no fault
on his part. The submission, though attractive, is hollow and cannot be
countenanced for assessment.  Firstly the matter stands adjudicated finally
and finally concluded up to this Court. Merit was the basis earlier too
when the admissions were to be made through NEET and required “on-
line” procedure was to be followed. It is not the change of the basis that
has been made by merit criteria. Apart from that, when once the basic
procedure laid down
in the judgment for receiving online applications
had not been followed, admissions that were cancelled on that ground,
could not have been validated at all. The colleges were unable to satisfy
this Court as to the fairness of the procedure adopted by them. As such,
this Court did not interfere with the judgment of the High Court as well
as the order dated 14.11.2016 of the ASC. When merit was the basis
earlier too, it cannot be said that the legislature has tried to introduce
something new. It cannot be said that any defect has now been removed
by the State legislature from the existing law.  In fact, what was the
judgment of the court, has been attempted to be nullified. It is nothing
but an attempt to nullify the judgment which the legislature cannot do, as
we have a well-defined field of separation of powers of the judiciary,
legislature and the executive.
38. The decision in Dr. Preeti Srivastava & Anr. v. State of M.P.
& Ors. (1999) 7 SCC 120 has been referred to by the respondents in
which the Court considered the question of the need for common entrance
examination for admission to postgraduate medical courses in a State
MEDICAL COUNCIL OF INDIA  v. STATE OF KERALA & ORS.
[ARUN MISHRA, J.]
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and observed that common entrance examination provides unique criteria
for judging the merits of all candidates who come from different
universities. The common entrance test alone will balance the competing
equities of having competent students for specialised education. This
Court has made the following observations:
“28. This argument ignores the reasons underlying the need for a
common entrance examination for post-graduate medical courses
in a State. There may be several Universities in a State which
conduct M.B.B.S. courses. The courses of study may not be
uniform. The quality of teaching may not be uniform. The standard
of assessment at the M.B.B.S. examination also may not be
uniform in the different universities. With the result that in some
of the better universities which apply more strict tests for evaluating
the performance of students, a higher standard of performance is
required for getting the passing marks in the M.B.B.S. examination.
Similarly, a higher standard of performance may be required for
getting higher marks than in other universities. Some universities
may assess the students liberally with the result that the candidates
with lesser knowledge may be above to secure passing marks in
the M.B.B.S. examination; while it may also be easier for
candidates to secure marks at the higher level. A common entrance
examination, therefore, provides a uniform criterion for judging
the merit of all
candidates who come from different universities.
Obviously, as soon as one concedes that there can be differing
standards of teaching and evaluation in different universities, one
cannot rule out the possibility that the candidates who have passed
the M.B.B.S. examination from a university which is liberal in
evaluating its students, would not, necessarily, have passed, had
they appeared in an examination where a more strict evaluation is
made. Similarly, candidates who have obtained very high marks
in the M.B.B.S. examination where evaluation is liberal would
have got lesser marks had they appeared for the examination of a
university where stricter standards were applied. Therefore, the
purpose of such a common entrance examination is not merely to
grade candidates for selection. The purposes is also to evaluate
all candidates by a common yardstick. One must, therefore, also
take into account the possibility that some of the candidates who
may have passed the M.B.B.S. examination from more “generous”
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universities, may not qualify at the entrance examination where a
better and uniform standard for judging all the candidates from
different universities is applied. In the interest of selecting suitable
candidates for specialised education, it is necessary that the
common entrance examination is of a certain standard and
qualifying marks are prescribed for passing that examination. This
alone will balance the competing equities of having competent
students for specialised education and the need to provide for
some room for the backward even at the stage of specialised
postgraduate education which is one step below the super
specialities.”
The observations are of no help for the aforestated reasons. The
State Government was not competent to promulgate the impugned
Ordinance as already held. The question cannot be agitated afresh who
could have obtained admission on the basis of the merit. There may be a
large number of other students who might have been deprived of their
right to obtain admission. Such kind of enquiry is impermissible to be
made now in the wake of the decisions which have attained finality and
are binding upon all concerned.
39. Reliance has been placed by the respondents on a decision of
this Court in Anitta Job & Ors. v. The State of Kerala decided on
20.4.2018 (supra) so as to contend that this Court did not interfere with
the admissions which were made without applying the mind as the students
had appeared in the NEET examination and
the college had admitted
other similar students also. This Court has passed the order under Article
142. In the instant case in view of the previous verdicts, such a power
cannot be exercised and apart from that when the judgments have attained
finality, they are binding on all concerned including this Court. Power
under Article 142 cannot be exercised to nullify its own judgment and to
perpetuate illegality. The question involved in the case is the power of
the State Government to promulgate the impugned Ordinance. It was
not the question in the said decision of Anitta Job (supra). The decision
is of no application to the instant case. The power under Article 142
cannot at all be exercised by this Court in view of the previous decisions
and also in view of the fact that it was not competent to enact the impugned
Ordinance by the State Government so as to perpetuate an illegality in
view of the pronouncements made earlier.
MEDICAL COUNCIL OF INDIA  v. STATE OF KERALA & ORS.
[ARUN MISHRA, J.]

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40. Resultantly, the writ petitions deserve to be allowed. The
impugned Ordinance is declared to be ultra vires and entrenching upon
the field earmarked for the judiciary as it sought to nullify the judgment
and order passed by the High Court and by this Court.
Kalpana  K. Tripathy
                                    Writ Petitions allowed.