IN THE HIGH COURT OF GUJARAT AT AHMEDABAD WRIT PETITION (PIL) NO. 20 of 2011 With WRIT PETITION (PIL) NO. 191 of 2012 FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA ================================================================
1 Whether Reporters of Local Papers may be allowed to see the judgment ?
Yes
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the No judgment ?
4 Whether this case involves a substantial question of law as No to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ? No ================================================================ ADAM B CHAKI Applicant(s) Versus GOVERNMENT OF INDIA THROUGH SECRETARY & 3 Opponent(s) ================================================================ Appearance in WP (PIL) No.20 of 2011:
MR EKRAMA QURESHI for MR HASHIM QURESHI, ADVOCATE for the Applicant(s) No. 1 MR KAMAL B TRIVEDI ADVOCATE GENERAL with MR PK JANI GOVERNMENT PLEADER with MS SANGEETA VISHEN AGP for the Opponent(s) No. 2 MR HRIDAY BUCH, ADVOCATE for the Opponent(s) No. 1 MR PS CHAMPANERI, ADVOCATE for the Opponent(s) No. 1 MR YN OZA SR. ADVOCATE with MS SRUSHTI A THULA, ADVOCATE for the Opponent(s) No. 3 – 4 APPEARANCE IN WP (PIL ) No. 191 of 2012 MR YN OZA SR. ADVOCATE with MS SRUSHTI A THULA, ADVOCATE for the Applicant(s) No. 1 – 2 MR PS CHAMPANERI, ADVOCATE for the Opponent(s) No. 1 MR KAMAL B TRIVEDI ADVOCATE GENERAL with MR PK JANI GOVERNMENT PLEADER with MS SANGEETA VISHEN AGP for the Opponent(s) No. 2 CORAM: HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA and
HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 20/02/2013 COMMON ORAL JUDGMENT (PER : HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA) Pursuant to the answer given by the Full Bench to our Reference dated October 8, 2012, the matters have been placed before us for final disposal.
2. By our reference, we referred the following two questions to the Full Bench :-
“(1) Whether the scheme in question violates Article 15(1) of the Constitution and a direction should be given to the State Government to implement the scheme.
(2) Whether the decision of the Division Bench of this Court in Special Civil Application No.2245 of 2008 (Vijay Harishchandra Patel vs. Union of India) disposed on March 20, 2010 lays down the correct proposition that the scheme in question does not violate Article 15 of the Constitution of India.”
3. The majority of the Full Bench has answered the question in the following way as it appears from paragraph 60 of the judgment delivered by the majority of the Full Bench:-
“60. In conclusion, we answer the questions referred to us in following manner :
(i) The Scheme in question does not violate Article 15(1) of the Constitution and that direction should be given for its implementation.
(ii) Decision of this Court in the case of Vijay H. Patel (supra) laid down the correct proposition of law.”
4. In view of the answer given by the Full Bench, we allow Writ Petition (PIL) No.20 of 2011 by issuing a writ of mandamus directing the respondent No.2- State of Gujarat to implement the scheme of Pre-matric Scholarship for students belonging to minority communities and to take immediate steps for implementation of the said scheme, which is Annexure-A to this writ-application.
5. We, consequently, dismiss the other writ-application being Writ Petition (PIL) No.191 of 2012 by holding that in view of the decision of the majority of the Full Bench, the said writ-application has no merit.
6. These two writ-applications are, thus disposed of.
7. After this order is passed, Mr Trivedi, the learned Advocate General and Mr Oza, the learned Senior Advocate appearing on behalf of Mr Shalin Mehta, Senior Advocate, pray for leave to grant certificate under Article 134A of the Constitution of India against the judgment passed by the majority of the Full Bench.
8. Mr Trivedi and Mr Oza submit that they prayed for similar relief when the Full Bench answered the Reference but, at that point of time, the Full Bench, in spite of holding that prima facie, the case involves a substantial question of law as to interpretation of Article 15 of the Constitution of India, did not consider that prayer as, in the opinion of the Full Bench, such request should be made before the Referring Bench once such petitions are disposed of.
9. After looking into the provisions of Article 134A of the Constitution of India, we are, however, of the view that the question of grant of leave against the judgment of majority of the Full Bench cannot be considered by the Referring Bench and on that ground alone, we do not consider such prayer. Such prayer is, in our opinion, not maintainable in law before us and we hold accordingly.
10. After this order is passed, both Mr Trivedi and Mr Oza pray for stay of operating part of our order delivered today by accepting the majority decision of the Full Bench.
11. Having regard to the nature of the final order passed based on the judgment of the majority of the Full Bench, we do not find any reason to stay the implementation of the same. We, accordingly, refuse such prayer.
(BHASKAR BHATTACHARYA, CJ.) zgs (J.B.PARDIWALA, J.)