IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 4953 of 2012 With SPECIAL CIVIL APPLICATION No. 7475 of 2012 For Approval and Signature:
HONOURABLE MR.JUSTICE P.B.MAJMUDAR HONOURABLE MR.JUSTICE MOHINDER PAL ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
========================================================= HARDIK M PATEL & 9 - Petitioner(s) Versus STATE OF GUJARAT & 43 - Respondent(s) =========================================================
Appearance :
SCA NO.4953 OF 2012 MR AMIT PANCHAL WITH MR AJ YAGNIK for Petitioner(s) : 1 - 6,8 - 10.-
for Petitioner(s) : 7, MR PK JANI,GOVERNMENT PLEADER WITH MS KRINA CALLA for Respondent(s) : 1 - 2.
NOTICE SERVED BY DS for Respondent(s) : 1 - 2, 7, 27, 29,37 - 39,41 -
44.
MR SN SHELAT, Sr. Council WITH MS VD NANAVATI for Respondent(s) : 3, DELETED for Respondent(s) : 4, MR MRUGEN K PUROHIT for Respondent(s) : 5, MR DC DAVE, Sr. Counsel WITH MR PA JADEJA for Respondent(s) : 6, 8, MR AJ SHASTRI for Respondent(s) : 9 - 26, 28,30 - 36, 40, SCA NO.7475 OF 2012 MR SI NANAVATI, Sr. Counsel with Ms. ANUJA NANAVATI for Petitioners MR PK JANI,GOVERNMENT PLEADER WITH MS KRINA CALLA for Respondent(s) : 1.
MR NACHIKET DAVE FOR Respondent : 2 MR ND NANAVATI, Sr. Counsel with MR MITUL K SHELAT FOR Respondent No.3, Notice served by DS for Respondent Nos.4-13 MR MK PUROHIT for Respondent No.14 ========================================================= CORAM : HONOURABLE MR.JUSTICE P.B.MAJMUDAR and HONOURABLE MR.JUSTICE MOHINDER PAL Date : 23/08/2012 CAV JUDGMENT (Per : HONOURABLE MR.JUSTICE P.B.MAJMUDAR)
1. Commerce is at its best in the field of education. A long drawn legal battles are going on in the field of education, more particularly in connection with admission in higher education.
2. Challenge in both these petitions is to the settlement / arrangement entered into by the State with private unaided colleges in connection with seats sharing in the Postgraduate Dental Course (MDS).
3. Since most of the points are common in both these petitions, they are taken up for hearing together with the consent of learned counsel appearing in the matters and are being disposed of accordingly by this common judgment.
4. Initially, the matters were placed before the learned Single Judge. The learned Single Judge has already issued Rule by admitting SCA No.7475 of 2012. So far as SCA No.4953 of 2012 is concerned, it is ordered to be heard with SCA No.7475 of 2012. Accordingly, both the matters are heard together at great length for final hearing and are accordingly disposed of by this common judgment.
5. So far as SCA No.4953 of 2012 is concerned, the challenge is with regard to the settlement arrived at between the Consortium of Self-financing Colleges and the State Government, by which it is agreed by both of them in SCA No.18234 of 2011 that by way of amicable settlement in view of the decision of the Supreme Court in the case of P. A. Inamdar v. State of Maharashtra, reported in (2005) 6 SCC 537 and the Regulations framed by the Dental Council of India, providing for bifurcation of seats between the State quota and the Management quota, a consensus has been reached to the effect that with effect from current academic year 2012-13 and thereafter, the bifurcation of seats for post-graduate courses in the discipline of Dentistry shall be in the ratio of 50 : 50. It is also agreed by the parties in that writ petition that for the purpose of working out this bifurcation, the NRI seats are to be excluded in view of the order of the Supreme Court in the case of Modern Dental College & Research Center & Ors. v. State of MP & Ors., reported in (2009) 7 SCC 751. The amicable settlement reached accordingly by the Consortium of Self- financing Colleges and the State Government, is challenged in these SCAs, which are filed by the students, who could not secure the admission as per their choice in post graduate dental courses.
6. It is also prayed that PG Entrance Examination conducted on 5.2.2012 by respondent Nos.6, 7 and 8 may be treated as illegal and unconstitutional. It is also prayed that respondents may be directed to give admission into Postgraduate Dental Courses in the colleges affiliated to the Gujarat University based on entrance examination conducted by the University on 29.1.2012 as per the Gujarat University Act as well as on the basis of the Regulations framed by the Gujarat University in this behalf. Challenge is also made to the merit list prepared by the respondent Nos.6, 7 and 8 i.e. Consortium of Self-financing Colleges on the basis of the entrance examination conducted by respondent No.6 on 5.2.2012 which is at Annexure-K.
7. By way of amendment, the Regulations made by the Dental Council of India vide Notification dated 20.11.2007 under Section 20 of the Dentist Act,1948, is also challenged which provides 50% of total seats to the management of the Institution on the basis of merit. It is also prayed that the aforesaid Revised MDS Course Regulation,2007 may be held ultra vires as it has been framed without consultation with the State Government and it may be held that it is not be binding to the State Government.
8. So far as SCA No.7475 of 2012 is concerned, it is prayed that appropriate direction may be issued to the respondent No.2 – Hemachandracharya North Gujarat University and respondent No.3 – Narsinhbhai Patel Dental College and Hospital, Visnagar to enroll the students in the ratio of 75:25 (75% Government quota and 25% management quota) inclusive of 15% NRI seats. The Revised MDS Course Regulation,2007 is also challenged in this petition.
9. Accordingly, in both these petitions, the grievance of the concerned petitioners is that as per the provisions of the Gujarat Professional Medical Educational Colleges or Institutions (Regulations of Admission and Fixation of Fees) Act,2007 (for short “the State Act”) framed by the State Government, 75% of seats in the Postgraduate Dental Course (MDS) is to be filled in through the Government quota and 25% seats can be filled in through the management quota. According to the petitioners, by way of consensus, no agreement can be arrived at by the Consortium of Self- financing Colleges and the State Government by by- passing the said statutory requirements unless the Act is properly amended and it may amount to contracting out of Statute. The examination conducted by the Consortium of Self-financing Colleges is also attacked on various grounds which will be dealt with later on.
10. A writ petition being SCA No.18234 of 2011 was filed by the Consortium of Self-financing Colleges against the State Government. In the said petition, the vires of the Act i.e. Gujarat Professional Medical Educational Colleges or Institutions (Regulations of Admission and Fixation of Fees) Act,2007 was challenged on the ground that the provisions in the said Act, which permits 75% quota for the State and 25% quota for the management, is ultra vires to the Articles 14 and 19(1)(g) of the Constitution of India. It was prayed that the said provisions may be declared as unconstitutional. During the pendency of the said petition, counsel for the petitioner of that petition pointed out to the Court that there is an amicable settlement arrived at between the parties in view of the decision of the Supreme Court in the case of P. A. Inamdar (supra) and in view of the Regulations framed by the Dental Council of India providing bifurcation of seats between the State quota and the Management quota, a consensus is reached to the effect that from the current academic year 2012-13 and thereafter, a bifurcation of seats for post graduate courses in the discipline of Dentistry shall be in the ratio of 50:50 between the State quota and the Management quota and the NRI seats are to be excluded. The said writ petition was accordingly withdrawn, as the State Government by way of agreement decided to act in the aforesaid terms. The Division Bench accordingly disposed of the said writ petition and discharged the Rule. The order dated 30.3.2012 passed in SCA No.18234 of 2011 by the Division Bench is reproduced as under :
“ By this Special Civil Application, the writ-petitioner, which is a consortium of self-financed Dental Colleges of unaided Dental Colleges and Institutions imparting education in graduate and post-graduate professional Dental courses in the State of Gujarat, has prayed for issue of a writ of mandamus declaring Section 6(i) read with Section 2(g)(ii) of the Gujarat Professional Medical Educational Colleges or Institutions (Regulation of Admission and Fixation of Fees) Act, 2007 [the Act, for short, hereafter] as ultra vires the Article 14 and 19(1)(g) of the Constitution of India and at the same time, the rules framed under Section 20 of the Act, viz. Rules 3 to 12, 15, 16 and 23 of Gujarat Professional Medical Educational Colleges or Institutions (Regulation of Admission and Fixation of Fees) Rules, 2010 [the Rules, for short, hereafter] as unconstitutional.
However, after we entertained this writ- application, Mr. Nanavati, the learned Senior Advocate appearing on behalf of the petitioner submits that the parties have, by way of an amicable settlement in the light of the decision of the Supreme Court in the case of P.A. INAMDAR v/s STATE OF MAHARASHTRA reported in (2005) 6 SCC 537 and the Regulations framed by the Dental Council of India interalia providing for the bifurcation of seats between the State quota and the Management quota reached a consensus to the effect that with effect from the current academic year 2012-13 and thereafter, the bifurcation of seats for Post-Graduate courses in the discipline of Dentistry shall be in the ratio of 50 : 50 between the State quota and Management quota. It is also agreed that for the purpose of working out this bifurcation of seats as per the order of the Supreme Court in the case of MODERN DENTAL COLLEGE AND RESEARCH CENTRE AND ORS vs. STATE OF MP AND ORS reported in (2009) 7 SCC 751, the NRI seats are to be excluded.
The parties have further agreed that for the course in the discipline of Dentistry at the level of graduation, the bifurcation of seats in the ratio of 75 : 25 between the State quota and Management quota as prescribed by the Act is acceptable to all unaided Dental Colleges.
The parties have further agreed that the Universities filling up the State quota for Post-Graduate courses shall have to act accordingly.
Let it be recorded that the learned Advocate General appearing on behalf of the State-respondent has endorsed the aforesaid consensus arrived at between the parties.
In view of the above consensus, Mr. Nanavati submits that he is not pressing the writ-application as the State Government has decided to act in the above terms.
We make it clear that we have otherwise not gone into the merits of the matter.
The petition is disposed of accordingly.
Rule is discharged. No costs.”
11. The petitioners, who are the students, have challenged the said consensus arrived at between the Consortium of Self-financing Colleges and the State Government on various grounds. The petitioners - students are seeking admission to post graduate dental courses. As per the averments made in SCA No.4953 of 2012, the petitioners have passed their under graduate dental courses in the respondent Nos.7 and 8 self- financed colleges, which are affiliated to the Gujarat University. They secured their admission under graduate dental courses on the basis of the merits and marks obtained by them in GUJCET examination. It is also a case of the petitioners that for admission into medical, dental and other professional postgraduate courses is governed by the respective Universities Act in the State of Gujarat. The respondent Nos.7 and 8 affiliated to the Gujarat University and the admissions are accordingly governed by the Gujarat University Act and the Rules.
12. Learned counsel, Mr.Amit Panchal with learned counsel, Mr.A.J.Yagnik, appearing on behalf of the petitioners, vehemently argued that when the Division Bench has not struck down the State Act, no settlement can be arrived at de-hors the said statutory provisions and therefore, it is not open for the concerned college to have quota of 50% seats contrary to the statutory provisions in the said Act. It is submitted that the Division Bench, while disposing of the writ petition, has ultimately observed that, it has not gone in the merits of the case. It has merely recorded the consent terms submitted before the Court and disposed of the petition. It is submitted that even the Court has not stated that the settlement is accepted and the petition is allowed by granting prayers made in the petition on that basis. It is submitted that however, the Regulations framed by the Dental Council of India could not have provided seats sharing ratio in the Regulation and the said Regulation cannot have overriding effect so far as the State Act is concerned which is passed by the Legislature and which is on higher footing, as compared to subordinate Legislation i.e. the Regulation. It is also submitted that in any case, the Central Government can enact the law in connection with laying down standard of higher education as per Entry 62 of Schedule-1 of the Constitution and it cannot legislate in connection with providing seat ratio in a particular Institution. It is submitted that in any case, unless appropriate Act is framed by the Union Government in this behalf, the State Legislature will continue to hold the field in this behalf. It is also submitted that considering the Regulation of the said Act as well as considering the judgment of the Supreme Court in the case of P. A. Inamdar (supra), the Consortium of Self-financing Colleges could not have taken entrance examination, which is illegal and without proper publicity, entrance examination were undertaken. It is submitted that on this basis, appropriate writ and/or direction may be issued, as prayed for. Mr.Panchal relied upon decisions of the Supreme Court in the case of TMA Pie Foundation v. State of Karnataka, (2008) 8 SCC 467, Islamic Academy of Education v. State of Karnataka, (2003) 6 SCC 697, P.A.Inamdar v. State of Maharashtra, (2005) 6 SCC 537, State of T.N. & Anr. v. Adhiyaman Educational & Research Institute & Ors., 1995 (4) SCC 104, Dr.Preeti Shrivastava & Anr. v. State of M.P. & Ors., reported in (1999) 7 SCC 120, Veterinary Council of India v. Indian Council of Agricultural Research, 2001 (1) SCC 450, Annamalai University v. Secretary to Govt., Information & Tourism Dept. & Ors., 2009 (4) SCC 590, General Officer Commanding in Chief v. Subhash Chandra Yadav (Dr.), AIR 1988 SC 876, Commissioner of Central Excise and Customs v. Venis Castings (p) Ltd., AIR 2000 SC 1568.
13. In SCA No.7475 of 2012, learned Senior Counsel, Mr. S.I. Nanavati for the petitioners submitted that assuming that 50:50 seat sharing is permissible, then also NRI quota should be included in that 50% and not to be excluded. In that eventuality, petitioner of that petition will be entitled to get admission in the postgraduate dental courses. On behalf of the petitioners, a reference has been made to various judgments to substantiate their say regarding seats sharing between the State and the private unaided self-financed colleges. Mr.Nanavati relied upon various decisions of the Supreme Court as well as other High Courts i.e. P.A.Inamdar v. State of Maharashtra (Supra), Govt. of U.P. & Ors. v. P.Laxmi Devi (Smt), (2008) 4 SCC 720, Bharathi Sadan University v. AICTE, AIR 2001 SC 2861, Dai Ichi Karkaria Ltd. v. Union of India, AIR 2000 SC 1741, Puneet Gulati & Ors. v. State of Kerala & Ors., reported in (2011) 12 SCC 722, judgment rendered by this Court in SCA No.9831 of 2012, judgment rendered by the Bombay High Court in PIL No.80 of 2011.
14. Petitions have been opposed by the respondents. Learned Government Pleader, Mr.P.K. Jani appearing on behalf of the respondent Nos.1 and 2 submitted that consensus was arrived at in view of the direction of the Supreme Court in the case of P.A.Inamdar (supra) by which admissions to the Postgraduate students to be granted in ratio of 50:50 and 15% NRI seats to be excluded from the Management quota. According to him, the said decision was taken after considering the provision of the State Act as well as decision of the Supreme Court in the case of P.A.Inamdar (supra) and therefore, this Court may not entertain the writ petitions and may ignore the provisions in the State Legislature. Mr.Jani has placed the reliance upon the decisions reported in TMA Pie Foundation v. State of Karnataka & Ors., (Supra) and P.A.Inamdar v. State of Maharashtra (Supra).
15. Learned Senior Counsel, Mr.S.N.Shelat appearing with Ms.V.D.Nanavati on behalf of respondent no.3 University submitted that in view of the consensus arrived at between the parties in SCA No.18234 of 2011, the University has acted in compliance with the said consensus. Mr.Shelat, however, argued that since these petitions are pending before this Court, a merit list for remaining 25% seats has also been announced and it is specifically declared that their admission would be subject to the decision of this Court in the present proceedings. It is submitted by Mr.Shelat that Regulations framed by the Dental Council of India are subordinate legislation and that under Article 254 of the Constitution of India, said Regulations are subordinate legislation and it cannot have any overriding effect over the statutory enactment of the State Legislature under Entry-25 of the Concurrent List. It is also argued by Mr.Shelat that in case if any Act is enacted by the Parliament in this behalf, then, in such an eventuality, the Central Act may prevail over the State Act. Mr.Shelat has relied upon certain decisions in the case of Hukum Chand v. Union of India, reported in AIR 1972 SC 2427; Kerala State Electricity Board v. Indian Aluminum Co., reported in AIR 1976 SC 1031, Bharathidasan University v. All India Council for Technical Education, reported in AIR 2001 SC 2861, Dai Ichi Karkarai Ltd. v. Union of India, reported in AIR 2000 SC 1741, State of Kerala v. K.M. Charia Adbulla & Co., reported in AIR 1965 SC 1585, Prithi Pal Singh v. Union of India, reported in AIR 1982 SC 1413, General Officer Commanding in Chief & Anr. v. Dr.Subhash Chandra Yadav & Anr., reported in AIR 1988 SC 876 and J.K.Industries Ltd. & Anr. v. Union of India, reported in 2007 JT (12) 529.
16. Learned Counsel Mr. Mrugen Purohit appearing on behalf of respondent no.5 submitted that in view of the decisions of the Supreme Court in the case Mrudal Dhar v. Union of India (2005) 2 SCC 65 and Medical Council of India v. Madhu Sing, AIR 2002 SC 3230, no admission shall be provided after the cut off date as the academic session has commenced. It is also submitted that considering the Dental Council of India Revised MDS Regulation,2007, respondent no.5 is authorized to provide bifurcation of seats as condition of granting recognition to the unaided colleges. Mr. Purohit has also submitted that MDS Regulations 2007 passed is a step in furtherance to set uniformity in entire India and therefore bifurcation of seats to the extent of 50:50 is not de hors the State Act. Mr.Purohit has placed reliance upon the decisions of the Supreme Court reported in State of T.N. & Ors. v. Adhiyaman Educational & Research Institute and Ors., (Supra), Bharti Vidyapeeth v. State of Maharashtra, AIR 2004 SC 1943, Veneet Agarwal v. Union of India, (2007) 13 SCC 116, Peerless General Finance and Investment Co. Ltd. v. RBI, (1992) 2 SCC 343, Prof. Yashpal & Ors. v. State of Chatisgarh, (2005) 5 SCC 420 and Orissa Management Colleges Association v. State of Orissa, AIR 2007 Orissa 120.
17. Learned Senior Counsel, Mr.D.C.Dave with learned counsel, Mr.P.A.Jadeja appearing on behalf of respondent Nos.6 and 8 submitted that the consensus was arrived at between the State and the Consortium of Self-financing Colleges, keeping in mind the decision of the Supreme Court in the case of P. A. Inamdar (supra) as well as on the basis of Regulations framed by the Dental Council of India which clearly prescribed 50:50 seat sharing between the Government and the colleges. It is submitted that it is true that this Court has not struck down the provisions of the State Act but, according to learned counsel for the private colleges, the said State Act, on the face of it, is ultra vires the Constitution of India, as it is contrary to the law laid down by the Supreme Court in the case of P.A.Inamdar (supra) as well as in view of the Regulations framed by the Dental Council of India. It is submitted that the said Act, on the face of it, is unconstitutional by which quota of 75:25 between State and private self-financed college is provided, as it is the fundamental right of the management to impart higher education and their powers cannot be controlled in the matter of enrolling the students and even it can be said that the private institution has right to enroll 100% students and therefore, the seat sharing provided under the said Act, on the face of it, can be said to be illegal and unconstitutional, and this Court, therefore, may not exercise its powers under Article 226 of the Constitution of India by giving any relief to the petitioners. It is also vehemently submitted that even otherwise the petitions suffer from delay and latches. It is also submitted that the Regulations framed by the Dental Council of India is also approved by the Central Government and therefore, the said Regulations will have overriding effect over the State Act. Mr.Dave placed reliance upon the decisions of the Supreme Court reported in TMA Pie v. State of Karnataka (Supra), Islamic Academy v. State of Karnataka, (Supra), P.A.Inamdar v. State of Maharashtra (Supra), Bharathidsan University & Anr. v. All India Council for Technical Education & Ors. (Supra), Islamic Academy of Education & Anr. v. State of Karnataka & Ors., (Supra), Modern Dental College and Research Centre & Ors. V. State of MP & Ors., reported in (2009) 7 SCC 751, Secretary, State of Karnataka & Ors. v. Umadevi & Ors., 2006 (4) SCC 1, Mridul Dhar (Minor) & Anr. v. Union of India, 2005 (2) SCC 65, Annamalai University v. Secretary to Govt., Information & Tourism Dept. & Ors., (Supra), State of U.P. & Ors. v. Harish Chandra & Ors., 1996 (9) SCC 309, Vishal Properties (P) Ltd. v. State of U.P. & Ors., (2007) 11 SCC 172, Deep Chand v. State of U.P., AIR 1959 SC 648, Union of India v. S.P.Gupta, (1993) 4 SCC 441 and Modern Dental College, (2012) 4 SCC 707.
18. Learned Senior Counsel, Mr.N.D.Nanavati appearing with learned counsel, Mr.Mitul K. Shelat on behalf of respondent No.3 has argued that the petitioner of SCA No.7475 of 212 has completed is BDS course in a college affiliated to the Gujarat University and has not obtained admission in any of the postgraduate dental courses offered by colleges affiliated to the Gujarat University. The concerned college is affiliated to the North Gujarat University. The University constituted an admission committee and instructed that seat sharing ratio would be 50:50 and the committee of the college framed the Regulations for admission and the seats were bifurcated accordingly.
University Quota : 8 seats Management Quota : 7 seats NRI Quota : 3 seats
19. It is submitted that the admission process of the University was completed on 26.5.2012 and by the college on 28.5.2012 and the list of candidates was sent by the college to the University and the Dental Council on 30.5.2012 and 31.5.2012 and the students who have been admitted have commenced their education and have completed more than 2 and 1/2 months of their course. It is submitted that last date of admission in the PG Dental Course was 31.5.2012. The admission process for University Quota was completed on 26.5.2012 where the petitioner was not offered admission since he was lower on merit. The student, thereafter, approach this Court on 4.6.2012 after the admission process was over. It is also argued that bifurcation of seats was within the knowledge of the petitioner and the conclusion of the admission process, but has suppressed the material facts and false assertions were made to suggest that the admission process was in progress. It is also submitted that since the petitioner participated in the process of admission without protest, he now cannot make any grievance about the same. Learned Senior Counsel, Mr.Nanavati has relied upon certain decisions of the Supreme Court in the case of Medical Council of India v. Madhu Singh, reported in (2002) 7 SCC 258, P.A. Inamdar v. State of Maharashtra (Supra), Ahmedabad St. Xavier’s College Society v. State of Gujarat, reported in (1974) 1 SCC 717, Bharati Vidyaeeth v. State of Maharashtra, reported in (2004) 11 SCC 755, Medical Council of India v. State of Karnataka, reported in (1998) 6 SCC 131, Maharashtra University of Health Sciences v. Paryani Mukesh Jawaharlal, reported in (2007) 10 SCC 201, State of Maharashtra v. Sant Dnyaneshwar Shikshan Shastra
and in the decision of Full Bench of this Court in the case of Priyanka Verma v. State of Gujarat, reported in 2012 (2) GLH 517.
20. Learned counsel, Mr.A.J.Shastri appearing on behalf of respondent Nos.9 to 44 argued that there is a delay and latches in preferring the present petitions and therefore, same may not be entertained and requires to be rejected. Mr.Shastri placed reliance upon the decisions of the Supreme Court reported in 2011 (1) SCC 150, Union of India & ors. v.
S. Vinodh Kumar & ors., 2007 (8) SCC 100, Union of India v. Alok Kumar, AIR 2010 SC 2735 as well as decisions reported in 1997 (3) GLR 205 and Manibhai Vashrambhai Thakkar & Anr. v. State of Gujarat & ors., 2001 (1) GLH 353.
21. We have heard learned counsel appearing for the respective parties and gone through the judgments cited by the respective side. We have also gone through the various annexures and documents forming part of these petitions. We have also gone through the written arguments submitted by the learned counsel appearing for the respective parties.
22. The basic question which arises for our consideration is, as to whether the settlement arrived at between the Consortium of Self-financing Colleges and the State Government in SCA No.18234 of 2011 is in accordance with law or whether it is contrary to the statutory provisions of the State Act. The Court is also required to consider as to whether the NRI quota of 15% is to be included in the management quota or it is to be excluded while considering 50:50 quota, which is agreed to be shared by the State and the Consortium of Self-financing Colleges. The admission process conducted by the respondent No.7 – college, whether can be said to be in accordance with law and whether the petitions suffer from delay and latches and on that basis, whether any relief can be given to the petitioners.
23. While considering the aforesaid questions, a reference is required to be made to the various petitions filed in the past in this behalf before this Court. Earlier, a writ petition being SCA No.8785 of 2008 was filed before this Court wherein constitutional validity of the provisions of the State Act was challenged. The Division Bench by its order dated 26.9.2008 dismissed the said SCA and upheld the constitutional validity of Sections 2(g), 2(h), 2(i), 2(n), 6, 8 and 9 of the Act of 2007. A Special Leave Petition was filed against the said judgment, which came to be dismissed by the Supreme Court.
24. On behalf of Ahmedabad Dental College and Hospital as well as Karnavati School of Dentistry, which are part of consortium, two writ petitions were filed before this Court being SCA Nos.4693 & 4849 of 2011. In the said writ petitions, a challenge was made to the decision of the Gujarat University by which it permitted the said Institutions to fill up only 25% seats out of the management quota for the academic term 2011-12 and the Gujarat University wanted to fill up 75% quota from its own list. The said writ petitions were argued on the basis of decision of the Supreme Court in the case of P.A.Inamdar (supra) and it was prayed that the management is entitled to fill up 50% of the seats. On behalf of the Gujarat University, a stand was taken in that writ petitions that 75% of seats of the total approved seats in the unaided college cannot be filled up by the Institution, but can be filled up pursuant to the competitive test, as may be held on the recommendations of the Admission Committee constituted under Section 4 of the State Act. On behalf of the Gujarat University, further stand was taken that decision in the case of Modern Dental College and Research Centre & Ors. V. State of MP & Ors., (Supra) is not applicable so far as the aforesaid petitions were concerned. The Division Bench also considered the provisions of the Dental Council of India Revised MDS Course Regulations,2007. The Division Bench observed that the petitioners have not challenged the validity of the Gujarat Professional Medical Educational Colleges or Institutions (Regulations of Admission and Fixation of Fees) Act,2007. It was also found by the Division Bench that the State Act is applicable both in case of admission to undergraduate and postgraduate courses. The Division Bench also observed that even otherwise the petitioners cannot seek for direct admissions of students against their management seats and they can do so only after following the procedure of selection students of MDS course, as laid down under the Dental Council of India Revised MDS Course Regulations, 2007.
25. Against the aforesaid decision, the aforesaid colleges preferred SLP before the Supreme Court. Before the Supreme Court, a request was made on behalf of the aforesaid colleges that the petitioners may be permitted to withdraw the SLP as well as SCAs with a liberty to file fresh petitions before the High Court for the next academic year and also to challenge the constitutional validity of the Gujarat Professional Medical Educational Colleges or Institutions (Regulations of Admission and Fixation of Fees) Act,2007. The Supreme Court permitted the said colleges to withdraw the SLP as well as SCAs with a liberty to file SCA in terms of prayers made. The Supreme Court also observed that in case if the petitions are filed challenging the constitutional validity of the Act with a prayer for issue of direction in the matter of admission for 2012-13 session, same is to be decided by the High Court without being influenced by the observations made in the impugned order of the High Court. The order of the Division Bench, which we have referred above, therefore, no longer stands.
26. In view of the aforesaid order of the Supreme Court, by which a liberty was granted to the said Institutions to file fresh petitions, the concerned colleges filed SCA No.18234 of 2011 in which a settlement was arrived at regarding seat sharing between the Consortium of Self-financing Colleges and the State Government. It is not in dispute that the said matter was not heard and decided on merits. The State Act was not struck down by the Division Bench treating the State Act being ultra vires to the Constitution of India or is in violation of the law laid down by the Supreme Court in the case of P.A.Inamdar (supra). The State Act still holds the field as on today. As pointed out earlier, in the earlier writ petitions filed by the concerned colleges, the State Act was not under challenge, but the action of the University regarding seat sharing was under challenge in view of the judgment of the Supreme Court in the case of P.A.Inamdar (supra) as well as in view of the provisions of the Dental Council of India Revised MDS Regulation,2007. That petition was ultimately permitted to be withdrawn by the Supreme Court, as the said colleges wanted to challenge the State Act which virtually they challenged by way of said SCA No.18234 of 2011. If the challenge to the State Act succeeded, naturally the private unaided Institutions are entitled to enroll the students in the ratio of 50:50 by resorting to the provisions of the Dental Council of India Revised MDS Regulation,2007. However, without getting the dispute adjudicated, they resorted to short circuit method by placing agreed formula before the Court regarding seat sharing. Since the nature of so called agreement is not placed in the present proceedings and it was pointed out that it was placed in the original petition, we have called for the papers of original writ petition wherein a note is placed on record incorporating the factual aspect regarding consensus arrived at between the State and the aforesaid colleges. It seems that arrangement was worked out for seat sharing to the extent of 50:50 instead of 75:25 in view of the judgment of the Supreme Court in the case of P.A.Inamdar (supra) and the Dental Council of India Revised MDS Regulation,2007.
27. The question which requires consideration is as to whether the aforesaid arrangement / consensus can be said to be contrary to law or contrary to the State Act or whether the said agreement will have overriding effect over the State Act in view of the Dental Council of India Revised MDS Regulation,2007. At this stage, a reference is required to be made to Section 20 of the Dentists Act, 1948 which provides as under :
“20. Power to make regulations. (1) The Council may, with the approval of the Central Government, 1[by notification in the Official Gazette,] make regulations not inconsistent with the provisions of this Act to carry out the purposes of this Chapter.
(2) In particular and without prejudice to the generality of the foregoing power such regulations may-
(a) provide for the management of the property of the Council;
(b) prescribe the manner in which elections under this Chapter shall be conducted;
(c) provide for the summoning and holding of meetings of the Council and the Executive Committee, the times and places at which such meetings shall be held, the conduct of business thereat and the number of members necessary to constitute a quorum;
(d) prescribe the functions of the Executive Committee;
(e) prescribe the powers and duties of the President and Vice-President;
(f) prescribe the tenure of office and the powers and duties of the Secretary 3[and other officers and servants of the Council and Inspectors and Visitors appointed by the Council];
(fa) prescribe the form of the scheme, the particulars to be given in such scheme, the manner in which the scheme is to be preferred and the fee payable with the scheme under clause (b) of sub-section (2) of section 10A;
(fb)prescribe any other factors under clause
(g) of subsection (7) of section 10A;
(fc) prescribe the criteria for identifying a student who has been granted a dental qualification referred to in the Explanation to sub-section (3) of section 10B;]
(g) prescribe the standard curricula for the training of dentists and dental hygienists, and the conditions for admission to courses of such training;
(h) prescribe the standards of examinations and other requirements to be satisfied to secure for qualifications recognition under this Act;
(i) any other matter which is to be or may be prescribed under this Act :
Provided that regulations under clauses (g) and (h) shall be made after consultation with State Governments.
(3) To enable the Council to be first constituted, the Central Government may make regulations for the conduct of the elections to the Council, and any regulation so made may be altered or rescinded by the Council in exercise of its powers under this section.
[(4)Every regulation made under this section shall be laid, as soon as may be after it is made before each House of Parliament, while it is in sessions for a total period of thirty days which may be com- prised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the regulation or both Houses agree that the regulation should not be made, the regulation shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that regulation.]”
28. At this stage, a reference is required to be made to various decisions of the Supreme Court regarding enrolling the students under the postgraduate medical courses or in the higher education courses as well as the procedure for admission i.e. regarding entrance test etc. In the case of P. A. Inamdar v. State of Maharashtra,(Supra), the Supreme Court, after considering the ratio laid down in the case of TMA Pai Foundation v. State of Karnataka (Supra) and Islamic Academy of Education & Anr. v. State of Karnataka & Ors., (Supra), has laid down the proposition of law. Since the Supreme Court has already clarified the aspect about what is the ratio laid down in TMA Pai (supra), it is necessary to refer to the observations made by the Supreme Court in P.A.Inamdar’s case which explains the aspect about the law laid down by the Supreme Court in TMA Pai’s case. Ultimately, the law laid down by the Supreme Court in P.A.Inamdar’s case explains the ratio in the cases of TMA Pai as well as Islamic Academy of Education, which is in the field today. Relevant observations in the case of P.A.Inamdar (supra) are in Para.105 to 107, 124, 125 and 131 which reads as under :
“105. Dealing with unaided minority educational institutions, Pai Foundation holds that Article 30 does not come in the way of the State stepping in for the purpose of securing transparency and recognition of merit in the matter of admissions. Regulatory measures for ensuring educational standards and maintaining excellence thereof are no anathema to the protection conferred by Article 30(1). However, a distinction is to be drawn between unaided minority educational institution of the level of schools and undergraduate colleges on one side and the institutions of higher education, in particular, those imparting professional education on the other side. In the former, the scope for merit based selection is practically nil and hence may not call for regulation. But in the case of latter, transparency and merit have to be unavoidably taken care of and cannot be compromised. There could be regulatory measures for ensuring educational standards and maintaining excellence thereof. (See para 161, Answer to Q.4, in Pai Foundation). The source of this distinction between two types of educational institutions referred to hereinabove is to be found in the principle that right to administer does not include a right to mal-administer.
106. S.B. Sinha, J. has, in his separate opinion in Islamic Academy, described (in para 199) the situation as a pyramid like situation and suggested the right of minority to be read along with fundamental duty. Higher the level of education, lesser are the seats and higher weighs the consideration for merit. It will, necessarily, call for more State intervention and lesser say for minority.
107. Educational institutions imparting higher education, I.e. graduate level and above and in particular specialized education such as technical or professional, constitutes a separate class. While embarking upon resolving issues of constitutional significance, where the letter of the Constitution is not clear, we have to keep in view the spirit of the Constitution, as spelt out by its entire scheme. Education aimed at imparting professional or technical qualifications stand on a different footing from other educational instructions. Apart from other provisions, Article 19(6) is a clear indicator and so are clauses (h) and (j) of Article 51A. Education upto undergraduate level aims at imparting knowledge just to enrich mind and shape the personality of a student. Graduate level study is a doorway to admissions in educational institutions imparting professional or technical or other higher education and, therefore, at that level, the considerations akin to those relevant for professional or technical educational institutions step in and become relevant. This is in national interest and strengthening the national wealth, education included. Education up to undergraduate level on one hand and education at graduate and post-graduate levels and in professional and technical institutions on the other are to be treated on different levels inviting not identical considerations, is a proposition not open to any more debate after Pai Foundation. A number of legislations occupying the field of education whose constitutional validity has been tested and accepted suggest that while recognition or affiliation may not be a must for education up to undergraduate level or, even if required, may be granted as a matter of routine, recognition or affiliation is a must and subject to rigorous scrutiny when it comes to educational institutions awarding degrees, graduate or post-graduate, post-graduate diplomas and degrees in technical or professional disciplines. Some such legislations are found referred in paras 81 and 82 of S.B. Sinha, J’s opinion in Islamic Academy.
124. So far as appropriation of quota by the State and enforcement of its reservation policy is concerned, we do not see much of difference between non-minority and minority unaided educational institutions. We find great force in the submission made on behalf of the petitioners that the States have no power to insist on seat sharing in the unaided private professional educational institutions by fixing a quota of seats between the management and the State. The State cannot insist on private educational institutions which receive no aid from the State to implement State’s policy on reservation for granting admission on lesser percentage of marks, I.e. on any criterion except merit.
125. As per our understanding, neither in the judgment of Pai Foundation nor in the Constitution Bench decision in Kerala Education Bill, which was approved by Pai Foundation, there is anything which would allow the State to regulate or control admissions in the unaided professional educational institutions so as to compel them to give up a share of the available seats to the candidates chosen by the State, as if it was filling the seats available to be filled up at its discretion in such private institutions. This would amount to nationalization of seats which has been specifically disapproved in Pai Foundation. Such imposition of quota of State seats or enforcing reservation policy of the State on available seats in unaided professional institutions are acts constituting serious encroachment on the right and autonomy of private professional educational institutions. Such appropriation of seats can also not be held to be a regulatory measure in the interest of minority within the meaning of Article 30(1) or a reasonable restriction within the meaning of Article 19(6) of the Constitution. Merely because the resources of the State in providing professional education are limited, private educational institutions, which intend to provide better professional education, cannot be forced by the State to make admissions available on the basis of reservation policy to less meritorious candidate. Unaided institutions, as they are not deriving any aid from State funds, can have their own admissions if fair, transparent, non-exploitative and based on merit.
131. NRI seats Here itself we are inclined to deal with the question as to seats allocated for Non-Resident Indians (’NRI’, for short) or NRI seats. It is common knowledge that some of the institutions grant admissions to certain number of students under such quota by charging a higher amount of fee. In fact, the term ‘NRI’ in relation to admissions is a misnomer. By and large, we have noticed in cases after cases coming to this Court, neither the students who get admissions under this category nor their parents are NRIs. In effect and reality, under this category, less meritorious students, but who can afford to bring more money, get admission. During the course of hearing, it was pointed out that a limited number of such seats should be made available as the money brought by such students admitted against NRI quota enables the educational institutions to strengthen its level of education and also to enlarge its educational activities. It was also pointed out that people of Indian origin, who have migrated to other countries, have a desire to bring back their children to their own country as they not only get education but also get reunited with Indian cultural ethos by virtue of being here. They also wish the money which they would be spending elsewhere on education of their children should rather reach their own motherland. A limited reservation of such seats, not exceeding 15%, in our opinion, may be made available to NRIs depending on the discretion of the management subject to two conditions. First, such seats should be utilized bona fide by the NRIs only and for their children or wards. Secondly, within this quota, the merit should not be given a complete go-by. The amount of money, in whatever form collected from such NRIs, should be utilized for benefiting students such as from economically weaker sections of the society, whom, on well defined criteria, the educational institution may admit on subsidized payment of their fee. To prevent misutilisation of such quota or any malpractice referable to NRI quota seats, suitable legislation or regulation needs to be framed. So long as the State does not do it, it will be for the Committees constituted pursuant to Islamic Academy’s direction to regulate.”
29. The Dental Council of India Revised MDS Regulation,2007 provides for selection of postgraduate students. The provisions in the said Regulation for postgraduate students is reproduced hereinbelow :
“SELECTION OF POSTGRADUATE STUDENTS :
(1) Students for postgraduate dental courses (MDS) shall be selected strictly on the basis of their academic merit.
(2) For determining the academic merit, the university/institution may adopt any one of the following procedures both for P.G. Diploma and MDS degree courses:
(i) On the basis of merit as determined by a competitive test conducted by the State Government or by the competent authority appointed by the State Government or by the University/group of universities in the same state; or
(ii) On the basis of merit as determined by the centralized competitive test held at the national level; or
(iii) On the basis of individual cumulative performance at the first, second, third and Final BDS examinations, if such examinations have been passed from the same university; or
(iv) combination of (i) and (iii) Provided that wherever entrance test for postgraduate admissions is held by a State Government or a university or any other authorized examining body, the minimum percentage of marks for eligibility for admission to postgraduate dental course shall be 50% for general category candidates and 40% for candidates belonging to Scheduled Castes and Scheduled Tribes.
Provided further that in non- Governmental institutions fifty percent of the total seats shall be filled by the competent authority and the remaining fifty percent, by the management of the institution on the basis of merit.”
30. It is not in dispute that in the instant case, even the procedure prescribed by the Dental Council of India Revised MDS Regulation,2007 has not been followed so far as enrolling the students is concerned and the concerned institutions had taken their individual examination at their own without selecting the students from merit list of the common entrance conducted by the University.
31. Now, in order to examine whether it can be said that the State Act can still hold the field, a reference is required to be made to various Entries in connection with education in the 7th Schedule of the Constitution. So far as Union List is concerned, Entry-66 reads as under :
“Entry-66. Co-ordination and determination of standards in institutions for higher education or research and scientific and technical institution.”
32. As per the said Entry, the Parliament is empowered to enact the law in connection with determination of standards in institutions for higher education. So far as the concurrent list is concerned in the aforesaid Schedule, Entry-25 provides as under:
“Entry-25. Education including technical education, medical education and universities, subject to the provisions of Entries 63, 64, 65 and 66 of List-I; vocational and technical training of labour.”
33. Under the Concurrent List, therefore, the Parliament as well as the State Legislature both are competent to enact the laws including technical education, medical education and universities. So far as the provisions of seat sharing is concerned, as on today, the State Act holds the filed and the Parliament has not framed any Act in connection with Entry-25 in the concurrent list in this behalf. However, the Parliament has not framed any Act in connection with Entry-25 in the Concurrent List in this behalf. If there is any inconsistency between the Central Act and the State Act, in the given case, the Central Act may prevail over the State Act. So far as Entry-66 in Part-I under the Union List is concerned, it deals with coordination and determination regarding eligibility of students for admission, syllabus regarding the course, qualification of teachers, minimum standard of passing for the students for getting admission prescribed in particular course, teaching facilities etc. Such aspect can have impact on standard of education. However, it is not possible for us to hold that same would even include seat sharing ratio between private college and the Government college, as it is only concerned with standard of efficiency in the matter of higher education. The seat sharing has no basis so far as the matter regarding fixation of standard in the higher education is concerned. In this connection, a reference is required to be made to the judgment of the Supreme Court in the case of Dr.Preeti Shrivastava & Anr. v. State of M.P. & Ors. (Supra) and in the case of State of T.N. v. S.V. Bratheep, reported in (2004) 4 SCC 513. The Supreme Court, in the case of Dr.Preeti Shrivastava (Supra), has held that so far as the standards of education and admission criteria in the postgraduate medical education is concerned, same can be laid down under List-I Entry-66 and List III Entry-25 by Central Legislation. State's competence under List III Entry 25 to control or regulate higher education is subject to the standards so laid down by the Union of India. States have competence to prescribe rules for admission to postgraduate medical courses so long as they are not inconsistence with or do not adversely affect the standards laid down by the Union of India or its delegate. Once the minimum standards are laid down, States are competent to prescribe any further qualifications for selecting better students as that would not adversely affect the standards so laid down.
34. The Supreme Court, in the case of State of T.N. v. S.V.Bratheep (Supra), has held that the standards prescribed by the State Government should not be adverse to or lower than those prescribed by AICTE, but the State Government can prescribe standards higher or additional to those prescribed by AICTE.
35. In our view, Entry No.66 in the Union list, nowhere provides anything such as enrolling the students in a particular quota in the Government colleges or private unaided institutions providing seat sharing ratio in this behalf and it can never be said to be an aspect regarding co-ordination and determination of standards in institutions for higher education.
36. So far as Entry No.25 in the concurrent list is concerned, the language provided therein is worded in a wider sense as it takes care of the education itself. In view of the same, the Parliament and the State Legislature both are entitled to enact the law regarding education which may take care of even providing any seat sharing between the Government institutions and the private institutions. It is required to be noted that as on date, there is no enactment made by the Parliament in connection with Entry no.25 in the concurrent list. In that view of the matter, the State Act as on today holds the field as it is not struck down on the ground of arbitrariness, unreasonableness or violates the fundamental rights of the private institutions. In that view of the matter, unless the State Act is struck down on the ground of it being unconstitutional, seat sharing provided in the State Act holds the field and the University is bound to follow the said ratio prescribed in the State Act for the purpose of allocating the students.
37. It is required to be noted that so far as the Dental Council of India Revised MDS Regulation,2007 is concerned, it no doubt, provides the ratio of 50:50, but so far as the Regulations framed under Section 20 of the Dentist Act,1948 is concerned, said Regulations are subordinate legislation and even if there is any overlapping or conflict between the Regulations and the Act, the Act passed by the Legislature is required to be given supremacy.
38. In view of the same, when the State Act is still in force and unless it is struck down, no effect can be given to any private agreement or arrangement between the State and any institution which may amount to contracting out of the Statute.
39. At this stage, a reference is required to be made to the judgment of the co-ordinate Bench of this Court rendered in SCA No.9831 of 2012. In the said judgment, the Hon’ble Division Bench has considered the aspect regarding conflict between the Regulations enacted by virtue of delegated Legislation and the provisions in the State Legislature. In the aforesaid case, the Division Bench was concerned about UGC Regulations in connection with appointment of the Administrative Head of the University. The Division Bench has held in Para.16, 27 and 28 as under :
“16. Section 26 of the Act gives power to the UGC to enact Regulation in respect of the matters covered under Section 26. In our opinion, even if we assume for the sake of arguments that Section 26(1) (e) and (g) authorise the Commission to enact the qualification and procedure of appointment of the Administrative Head of the University for the purpose of having coordination among all the Universities in India, if those are in conflict with any other law enacted by a State Legislature on the subject, the same cannot have overriding effect over the law enacted by the State Legislature for the simple reason that it is not the Parliament which has enacted any such law but it is a delegated authority which has prescribed such qualification. At this stage, we may profitably refer to the Constitution Bench decision of the Supreme Court in the case of Tika Ramji & Ors. vs. State of UP & Ors. reported in AIR 1956 SC 676 relied upon both by Mr Trivedi and Mr Shelat where the Supreme Court in paragraph 41 of the judgment made the following observations:-
“41. There is also a further objection to which cl.7(1) of the Sugarcane Control Order, 1955 is open. The power of repeal, if any, was vested in Parliament and Parliament alone could exercise it by enacting an appropriate provision in regard thereto. Parliament could not delegate this power of repeal to any executive authority. Such delegation, if made, would be void and the Central Government had no power, therefore, to repeal any order made by the State Government in exercise of the powers conferred upon it by S.16 of the impugned Act.
The U.P. Sugarcane Regulation of Supply and Purchase Order, 1954, could not, therefore, be validly repealed by the Central Government as was purported to be done by cl.7 of the Sugarcane Control Order, 1955, and that repeal was of no effect with the result that the U.P. Sugarcane Regulation of Supply and Purchase Order, 1954 stood unaffected thereby.
The result, therefore, is that there was no repeal of the impugned Act or the U.P. Sugarcane Regulation of Supply and Purchase Order, 1954, by S.16 of Act 10 of 1955 or by Cl.7 of the Sugarcane Control Order, 1955 as contended by the petitioners.”
27. Therefore, the principles laid down in paragraph 41 of the judgment of Tika Ramji (supra), is not the subject matter of reference. Moreover, simply because a Three- Judge-Bench has disputed the correctness of a law laid down by a Five-Judge Bench and referred the matter to the Chief Justice of India, such fact does not weaken the binding effect of the precedent laid down by the Five-Judge-Bench so long as the said view is not actually upset by the larger Bench. We, thus, find that mere reference to a larger Bench disputing some of the points decided therein will not stand in our way in following the observations made in paragraph 41 of the judgment in the case of Tika Ramji (supra), quoted by us.
28. On consideration of the entire materials on record, we thus find that the Regulations enacted by virtue of delegated legislation cannot have overriding effect on Section 10 of the Act passed by the State Legislature and so long any provision similar to the one enacted in the Regulations is not enacted by Parliament in exercise of its plenary power which is in conflict with Section 10 of the Act, the latter will remain valid.”
40. The Division Bench, therefore, has clearly held that the Regulations enacted by virtue of delegated legislation cannot have overriding effect on the provisions of the State Legislature so long any provision similar to the one enacted by the Legislature and if there is a conflict of such Regulations with the Act passed by the State Legislature, the State Legislature will remain valid.
Being a co-ordinate Bench, this Court is bound by the said decision and in view of the same, it is clear that irrespective of the Dental Council of India Revised MDS Regulation,2007, the State Legislature will continue to operate the field unless it is struck down. Inspite of the said Regulation, the State Legislature will hold the field unless the same is set aside or declared as unconstitutional by the Court and as long as the provisions of the State Act is not struck down, it continues to operate and future admissions are required to be governed by the said State Act. Considering the same, it is not possible for us to accept the submission of learned Government Pleader, Mr.Jani, learned Senior Counsel, Mr.N.D. Nanavati and learned Senior Counsel, Mr.D.C. Dave that in view of Regulation,2007 as well as the observations made by the Supreme Court in the case of P.A. Inamdar (supra), the State Act is of no effect and cannot be said to be validly occupying the field. It is required to be noted that object for enacting the State Legislation itself clearly provides that in view of P.A.Inamdar’s judgment (supra), the Act has been enacted. In case if the Parliament, under the Dentists Act, itself frame any Act by which even seat sharing is also provided or the State Government amends the existing Act by providing ratio of 50:50, till then the seat sharing ratio provided under the State Act continues to prevail i.e. 75:25. It is interested to note that inspite of the fact the State having entered into compromise by way of settlement, the State has not deemed it proper to amend the State Act in accordance with law.
41. At this stage, a reference is required to be made to the decision of the Division Bench of the Bombay High Court rendered in Public Interest Litigation (Lodging) No.80 of 2011, wherein the issue was in connection with conflict between the State Legislature and the Regulations framed by the UGC. After considering various judgments on the point, the Division Bench of the Bombay High Court has considered Entry-25 in List-III. The Relevant observations made by the Division Bench of the Bombay High Court in Para.20 is reproduced as under:
“34. We also find considerable substance in the submission of the learned Advocate General that the assumption that the publication of a regulation will have an effect as if the regulation has become a part 1 (2091) 1 All ER 195of the Act and lose its character as a subordinate legislation is not justified. The position appears to be that the rules and regulation will not lose their character even after publication and they continue to be subordinate to the primary legislation. Though for interpretation they may be considered as part of the Act, their character as subordinate instrument is not lost. In Chief Inspector of Mines and another Vs Karam Chand Thapar :
"11. The whole foundation of the argument is the assumption that the necessary consequence of S.31(4) of the 1923 Act is that the regulations, on publication shall have effect as if enacted in the Act is that the Regulations became part and parcel of the Act. Is that assumption justified?
20. The true position appears to be that the Rules and Regulations do not lose their character as rules and regulations, even though they are to be of the same effect as if contained in the Act. They continue to be rules subordinate to the Act, and though for certain purposes, including the purpose of construction, they are to be treated as if contained in the Act, their true nature as subordinate rule is not lost."
35. The most important and relevant decision on the subject matter of the present controversy is the decision of the Constitution Bench of the Supreme Court in C.H. Tilakramji and others v. State of U.P.3 , dealt with the petitions under Article 32 of the Constitution challenging the validity of the U.P. Sugarcane (Regulation of Supply and Purchase) Act, 1953 and the U.P. Sugarcane Regulation of Supply and Purchase order and the notification 9-11- 1955 issued by the U.P. Government thereunder. The petitioners were sugarcane growers in different districts of the State of U.P. and the office bearers of the Co.operative societies. The impugned Order dated 27-9-1954 issued by the State Government in exercise of the powers under the above Act ordered that where not less than ¾ of the cane growers of the area under operation of a Cane Growers Co.operative Society were members of the society, the occupier of the factory for which the area is assigned shall not purchase or enter into agreement to purchase cane grown by a cane grower except through such Cane Growers Co- operative Society. The notification dated 9- 11-1955 under the same Act reserved or assigned to the sugar factories, the cane purchasing centres specified against them for the purpose of supply of sugarcane during the crushing period 1955-56. The writ petitioners, inter alia, challenged the Act on the ground that it was ultra vires powers of the State Legislature and also as being repugnant to Industries (Development and Regulation) Act 1951 and Essential Commodities Act, 1955. Section 3 of the 1955 Act empowered the Central Government to provide for regulating or prohibiting the production, supply and distribution thereof and the trade and commerce therein. Section 16 of the Act repealed (a) the Essential Commodities Ordinance, 1955; (b) any other law in force in any State immediately before the commencement of the Act in so far as such law controlled or authorised the control of the production etc. and trade and commence in any essential commodity.
In exercise of the aforesaid power under Section 3 of the 1955 Act, the Central Government promulgated on 27-8-1955 the Sugarcane Control Order, 1955. Clause 7 of this Central Government Order provided that any Orders made by the State Government or other authority regulating or prohibiting the production etc. of sugarcane and trade and commerce therein were thereby repealed as respect to things done or omitted to be done under any such order before the commencement of the said Central Government order.
36. The Petitioners contended that the impugned State Act of 1953 stood repealed to the extent that it was repealed by Section 16 of the Essential Commodities Act 1955 and by Clause 7 of the Sugarcane Control Order 1955 made in exercise of the powers conferred by Section 3 of the Essential Commodities Act.
The Supreme Court dealt with the said contention in paragraphs 37 to 41 of its judgment and particularly repelled the above contention in following words:
"41. There is also a further objection to which cl.7(1) of the Sugarcane Control Order, 1955 is open. The power of repeal, if any, was vested in Parliament and Parliament alone could exercise it by enacting an appropriate provision in regard thereto. Parliament could not delegate this power to repeal to any executive authority. Such delegation, if made, would be void and the Central Government had no power, therefore, to repeal any order made by the State Government in exercise of the powers conferred upon it by S.16 of the impugned Act.
The U.P.Sugarcane Regulation of Supply and Purchase Order 1954, could not, therefore, be validly repealed by the Central Government as was purported to be done by cl.7 of the Sugarcane Control Order, 1955, and that repeal was of no effect with the result that the U.P.Sugarcane Regulation of Supply and Purchase Order, 1954 stood unaffected thereby.
The result, therefore, is that there was no repeal of the impugned Act or the U.P. Sugarcane Regulation of Supply and Purchase Order, 1954 by S.16 of Act 10 of 1955 or by Cl.7 of the Sugarcane Control Order, 1955 as contended by the petitioners." (emphasis supplied)
37. If it were to be held that the UGC Regulation in question overrides the Section 12 of the MU Act enacted by the State Legislature then, it would be akin to a repeal of a State law. In the aforesaid Judgment the Supreme Court has laid down that the power of repeal cannot be delegated to any executive authority.
38. The above legal proposition has been reiterated by the Apex Court in several judgments. In Indian Express' newspaper (Bombay) Pvt.Ltd and another Vs. Union of India and others 4 , the Apex Court held as under:
"75. A piece of subordinate legislation does not carry the same degree of immunity which is enjoyed by a statute passed by a competent Legislature. Subordinate legislation may be questioned on any of the grounds on which plenary legislation is questioned. In addition it may also be questioned on the ground that it does not conform to the statute under which it is made. It may further be questioned on the ground that it is contrary to some other statute. That is because subordinate legislation must yield to plenary legislation. It may also be questioned on the ground that it is unreasonable, unreasonable not in the sense of not being reasonable, but in the sense that it is manifestly arbitrary. "
The, said decision is followed in J.K.Industries Vs Union of India5 , where the Apex Court held as under:
"127. ... ... ... as held in Indian Express Newspapers (Bombay) (P) Ltd. Vs. Union of India, (1985) 1 SCC 641 at P..689, subordinate legislation does not carry the same degree of immunity which is enjoyed by a statute passed by a competent legislature. Subordinate legislation may be questioned on any of the grounds on which plenary legislation is questioned. In addition, it may also be questioned on the ground that it does not conform to the statute under which it is made. It may further be questioned on the ground that it is inconsistent with the provisions of the Act or that it is contrary to some other statute applicable on the same subject-matter. Therefore, it has to yield to plenary legislation. ... ... ..." (emphasis supplied in both quotations)
39. The legal position has now been placed beyond any shadow of doubt in Kerala Samsthana Chethu Thozhilali Union v. State of Kerala and others,where the Apex Court categorically stated that a subordinate legislation cannot be violative of any plenary legislation made by State legislature. The Apex Court has held in emphatic terms as under:
"17. A rule is not only required to be made in conformity with the provisions of the Act whereunder it is made, but the same must be in conformity with the provisions of any other Act, as a subordinate legislation cannot be violative of any plenary legislation made by Parliament or the State Legislature." (emphasis supplied)
42. Considering the same, in our view, till the State Act is struck down on the ground that seat sharing ratio of 50:50 is unconstitutional or that it violates the fundamental rights of the management to secure more seats in admission, the same still operates the field. The petitioner having chosen the course of challenging the State Act, ultimately did not pursue the matter to its logical end and instead, entered into agreement with the State Government regarding seat sharing which agreement is clearly de- hors the statutory provisions enacted by the State Legislature.
43. As regards the submission about locus standi of the petitioners – students is concerned, it is required to be noted that ultimately the seat sharing quota in the Act is directly affects the chances of a students to get admission in a particular quota. The petitioners are entitled to ask for enforcement of statutory provisions regarding seat sharing ratio of 75:25 between the Government and the private colleges. The petitioners can, therefore, naturally ask for enforcement of their legal right as per the Statute on the basis of the provisions in the State Act. Since the vires of the University Act / Rules have not been challenged and the same is not struck down, it continues to hold the field. As per the provisions of the said State Act, 75% of the seats of the professional courses of the total approved seats in the unaided colleges or institutions cannot be filled in by the Institutions, but can be filled up pursuant to the competitive test as may be held on the recommendations of the Admission Committee constituted under Section 4 of the State Act. Section-4 of the State Act provided as under :
“Section-4. Constitution of Admission Committee.(1) The State Government shall, for the purpose of admission of students to the professional educational colleges and institutions, constitute one or more Admission Committees consisting of such number of members as may be prescribed. Different may be constituted for the different professional courses.
(2) The term of office and other conditions of the members of the Committee shall be such as may be prescribed.
(3) The Admission Committee shall guide, supervise and control the entire process of admission of students to the professional educational colleges or institutions.”
44. As per the selection procedure prescribed in the Dental Council of India Revised MDS Regulation,2007, a student for postgraduate dental courses (MDS) shall be selected strictly on the basis of their academic merit and for determining the academic merit, the university / institution may adopt any procedure prescribed in (i) to (iv). In order to find out the merits, the Institution intended to select postgraduate students on the basis of merit, has to enroll the students on the basis of the competitive test conducted by the State Government or by the appropriate authority appointed by the State Government or the University in the State.
45. In the instant case, the University has already undertaken that examination. In view of the same, so far as the management quota is concerned, it requires to give admission in the management quota on the basis of competitive test conducted by the State Government or by the University as stipulated in Clause-2(i) of the selection procedure or on the basis of the merit, as may be determined by the centalized competitive test held at the National level of the selection procedure.
46. In our view, the institutions at its own cannot have taken test for admission in connection with the seats in the management quota. Considering the same, an agreement arrived at between the Consortium of Self-financing Colleges and the State Government cannot be given any effect and the unaided private institutions are entitled to enroll the students only upto 25% out of 100% seats and 75% seats are to be filled in by the State as per the State Act. It is not possible for us to accept the argument of learned counsel for the respondents including the argument of learned Government Pleader, Mr.Jani that the State has arrived at the settlement in view of the direction of the Supreme Court in the case of P.A.Inamdar (supra), this Court may not entertain the writ petitions and may ignore the provisions in the State Legislature, which, in our view, we cannot, as it is not yet declared unconstitutional or it is not yet struck down by the Court. Considering the same, we uphold the arguments of the petitioners that the agreement or settlement arrived at between the parties in SCA No.18234 of 2011 is of no legal consequence and it will have no effect worth the name, as it is nothing but a compromise or agreement contrary to the Statute. Similarly, in our view, the Institutions are required to enroll the students on the basis of the competitive examination undertaken by the University. The admission in PG Dental Colleges are accordingly governed as per the provisions of the State Act,2007 and the Rules of 2010 in the ratio of 75:25. The State Legislature is competent to enact such law as per Entry-25 of Concurrent List-III of Schedule-7 of the Constitution of India. As per the provisions of the State Act, the management seats includes 15% NRI seats, in view of the same, the Institution cannot enroll the students in excess of the quota which is prescribed. If 15% NRI seats are to be excluded, it may extend the management quota from 50% to 65% or from 25% to 40%, as the case may be. In view of the same, the Institution cannot enroll the students in excess of the quota which is prescribed under the Act. Considering the fact that the State Act still holds the field, the NRI quota has to be included within the prescribed quota and 15% quota is, therefore, not to be excluded while counting the seat sharing quota.
47. So far as the judgment rendered by the Supreme Court in the case of Modern Dental College and Research Centre v. State of MP, reported in AIR 2009 SC 2432, the Supreme Court has observed in Para.33 as under :
“33. We make it clear that the solution we have arrived at may not be perfect, but we have tried to do our best to find out the best via media. Although this order is only for the academic year 2009-10, we recommend that it may also be considered for future sessions.”
The Supreme Court, therefore, has not laid down any law in this behalf and the observations made in the facts of a particular case, the Supreme Court has not laid down any ratio in this behalf.
48. In view of the same, as on today when the State Act holds the field, the management cannot derive any advantage on the basis of the observations made in the aforesaid case and the management is bound to follow the procedure prescribed under the law prevailing as on today and this Court cannot, therefore, allow the management to act de-hors the statutory provisions occupied in the field as on today.
49. It cannot be disputed that all throughout in the past, this 15% seats have already been included in the management quota and therefore, now said quota cannot be bifurcated or separated and the same is to be included within the prescribed quota of 25%. Accordingly, we hold that consensus or agreement arrived at in SCA No.18234 of 2011 has no legal effect as it is an agreement contrary to the statutory provisions and it may amount to contracting out of Statute. The admission procedure is to be carried out on the basis of merits and as per the entrance test undertaken by the University. The NRI quota is to be included in the management quota and not to be separately treated.
50. Over and above the same, it is also hold that present petitions cannot be thrown out on the basis of delay and latches as during the vacation, the vacation Judge has asked the parties to argue the matter finally, which was not agreeable to counsel for the private institutions and first petition was already filed before the admission procedure was completed.
51. At this stage, it is pointed out by learned Senior Counsel, Mr.S.I.Nanavati that as per the interim order passed by this Court and as per the affidavit of the University, the students who have been selected by respondent No.3 – Institution on management seats, have not been enrolled. According to him, that petition was filed on 4.6.2012 i.e. during the extension of dead line for allotment of postgraduate dental seats as per the letter issued by the Ministry of Health and Family Welfare, Government of India dated 16.5.2012, which provides that the admission process to be completed regarding PG seats by 30.6.2012. Mr.S.I.Nanavati has placed reliance upon the decision in the case of Puneet Gulati & Ors. v. State of Kerala & Ors., reported in (2011) 12 SCC 722. In the aforesaid decision, the Supreme Court has observed in Para.9, 10 and 11 as under :
“9. Having considered the judgment of the learned Single Judge and the Division Bench and the submissions made on behalf of the respective parties, we have no hesitation in upholding the decision of the learned Single Judge and the Division Bench as to the constitutional validity of the first and second prospectus reserving 100% of the seats in the said Super Speciality Courses for students from Kerala alone, but we are also convinced that since the appellant was not given admission to the aforesaid course, on the strength of an invalid policy, he deserves to be accommodated in the aforesaid course in some way.
10. By an interim order dated 20th July, 2011, we had stayed the admission process for the Super Speciality Courses for the year 2011-2012 in the Government Medical Colleges in Kerala. Subsequently, by order dated 22nd July, 2011, we had modified the said order on the prayer made on behalf of the State of Kerala by directing that the admission process could continue but 5 seats were to be set apart for the petitioners, 2 seats in the M.Ch.Genito Urinary Surgery Course, 1 seat in M.Ch. Neuro Surgery Course and 1 seat in the DM Cardiology Course.
11. Since, of the 5 seats reserved in terms of our order, 2 are available in the M.Ch. Genito Urinary Surgery Course, we direct that although the appellant, Dr.Mehta, did not sit for the entrance examination for the year 2011-2012, on the strength of his marks in the entrance examination for the year 2010- 2011, he should be given admission in one of the two seats in the M.Ch.Genito Urinary Surgery course, which has been kept vacant in terms of our order dated 22nd July, 2011.”
The Supreme Court has, accordingly, held that admission was denied to the general category candidate in the aforesaid case on the basis of invalid policy.
52. It is required to be noted that the Dental Council of India Revised MDS Regulation,2007, nowhere provides about bifurcation of seats of NRI students. However, the State Act provides that management seats are inclusive of 15% NRI seats. In view of the same, no effect can be given to any agreement contrary to such statutory provisions and NRI quota has to be included in the management quota as per the provisions of the State Act.
53. It is required to be noted that ultimately, there has to be a transparency in the matter of enrolling the students in any branch of the education. Even in the matter of higher education, the merit cannot be subjected to sacrifice. During the course of hearing, it is pointed out that there are institutions which are charging extra amount over and above the fees standard prescribed and the students, who cannot afford the same, though meritorious, are required to take back seat as compared to one, who may have less merit but because of better financial resources, such students may take front seat. Of course, we cannot take judicial notice of this aspect unless any material is placed on record in this behalf. Where the field is already occupied by particular Legislature which is in force today and it is not, as stated earlier, struck down on the ground that it provides excessive seat sharing ratio or it violates the fundamental rights of the Institution, we cannot uphold the agreement or settlement arrived at between the Consortium of Self-financing Colleges and the State Government, which is, on the face of it, de-hors the statutory provisions, which occupied the field.
54. However, on behalf of learned counsel for the respondents, it is argued that petitions suffer from delay and latches. The matter was initially placed before the vacation Judge on 18.5.2012. The vacation Judge observed in the order dated 18.5.2012, which is as under :
“… Considering the fact that after the ad- missions, the names of the respondent Nos.9 to 44 are yet not registered/enrolled by the Gujarat University, by way of interim relief respondent No.3 – Gujarat University is hereby restrained from registering / en- rolling the names of the respondent Nos.9 to 44. …”
55. Even the vacation Judge was inclined to de- cide the matter finally as observed in the order at that stage. The vacation Judge has observed in Para.8 as under :
“Heard the learned advocates appearing on be- half of the respective parties at length on interim relief. As stated hereinabove, this Court was inclined to dispose of the present petition finally, however, the learned advoc- ates appearing on behalf of the respondents did not agree with the same and therefore, this Court is required to consider the question with respect to interim relief only.”
56. Since the counsel for the private in- stitution was not inclined to proceed with the final hearing, ultimately the Court had passed the interim order.
57. It is not open for the respondents now there- fore to take advantage of the situation on the ground that the matter is delayed and no relief can be given to the petitioners. If the selection procedure adopted is contrary to law and Statute, no party should be allowed to take advantage of such situation simply because the Court could not dispose of the mat- ter immediately especially when in the meanwhile sum- mer vacation intervening. Even learned counsel, Mr.Shelat appearing on behalf of the University has pointed out that if the petitions are allowed, proper measures can be taken and cause of petitioners cannot be allowed to suffer. The self-financed in- stitutions were very much aware that earlier their writ petitions were rejected by the Division Bench wherein 25% seats were allocated to such institutions. Before the Supreme Court, the original writ petition was withdrawn with a view to challenge the State Act. In view of the same, before getting appropriate final decision about the challenge to the State Act, they resorted to out of Court settlement procedure, which, in our view, is not permissible when Statute is already in force. In view of the same, the petitioners who were otherwise legitimately entitled to get admis- sion in particular quota as per the subject of their choice, cannot be deprived the relief. The Court is required to do complete justice between the parties.
58. So far as argument of the respondents that this petitions are not maintainable in view of the decision rendered in SCA No.7136 of 2001 and other allied matters wherein the Full Bench of this Court by its order dated 24.10.2001 has held that the petition challenging the agreement is not maintainable. In the aforesaid matters before the Full Bench, on the basis of the settlement, ultimately an order was passed by the Court and under that circumstances, it was held that subsequent petition challenging the same is not maintainable. It is an admitted fact that in the present case, the Division Bench has never passed any order accepting the recording of the agreement between the parties and disposed of the petition. In fact, the Division Bench has even made it clear that it has not gone into the merits of the issue at all and has not expressed any opinion on merits. In a given case, if on the basis of agreement ultimately the petition is allowed and directions are issued, such order cannot be challenged by subsequent petition, as ultimately the party is bound by the decision given by the Court. In the instant case, the Court has not given any decision in any manner and in fact, disposed of the petition by recording agreement of both the sides.
59. It is unfortunate that at the time when admission process was under process, a statement was made in a pending petition as late as in March,2012 wherein the State Government entered into a settlement prescribing change in the existing pattern or providing seat sharing ratio which is prescribed under the statutory enactment. The concerned colleges could not have started the admission process, as at the relevant time the admissions were required to be governed by common entrance test and on the basis of the merit list prepared by the University or by the competent body.
60. It is required to be noted that those who have been given wrong benefit of admission either on the basis of NRI quota or in excess of 25% seats in the management quota, cannot claim equity against those who have been illegally deprived of their rights. The field of education is a very pious field and it affects the career of a student which has life time bearing. When upto this year, a particular policy was there and nobody knew that in the State, the quota in the higher education is 75:25 including postgraduate dental courses, entering into a settlement in such a hurried manner, was not proper and naturally, the students, who are likely to be affected by such agreement, never knew about such arrangement as ultimately they are required to be guided by the policy of the State as well as the Act prevailing at the relevant time. Nobody should be taken by surprise. The Government was expected to give appropriate publicity so that students may get advantage of such policy of the Government. In this connection, a reference is required to be made to the judgment of the learned Single Judge of this Court (Coram : P.D.Desai,J., as His Lordships then was) in the case of Kumari Jayshree Chandrachud Dixit v. State of Gujarat & Ors., reported in 1979 (20) GLR 614, wherein it has been observed by the learned Single Judge in Para.20 as under:
“20. The next ground of challenge is that since Rule 5.2(A) was enacted after the last date for filing applications for admission had expired, it could not have been validly enacted, more so because it altered the position as existing on such date and in that manner affected and altered settled rights by retrospective operation. Now, it might be clarified at the outset that though the State Government has every right to frame rules regulating admission to Government Colleges based on certain rational policy and to amend them, if occasion arises, to remove any defect or lacuna, it would be always desirable to formulate and finalise such rules with precision well in advance and to make the rules relating to admission known to the intending applicants at a point of time reasonably anterior to the last date of admission. In a society governed by the rule of law, certain basic principles must be observed. One of such principles is that enactments or orders governing public rights and duties must be open and adequately published and that they should be relatively stable. If such an enactment or order is to guide the people, they must be able to find out what it is and it should not be changed too often. An ambiguous, vague, obscure or imprecise enactment or order is likely to misguide or confuse those who are to be guided by it and to frequent changes would mike it well-nigh difficult, if not impossible, for the people to make long-term planning and decisions (See Joseph Raz on "The Rule of Law and its Virtue", The Law Quarterly Review, Vol. 93, page 195). Indeed, F.A. Hayek's definition of the rule of law is:
...this means that Government in all its actions is bound by rules fixed and announced beforehand-rules which make it possible to foresee with fair certainty how the authority will use its powers in given circumstances and to plan one's individual affairs on the basis of this knowledge" (See "The Road to Serfdom," p 54).
In this connection, it would be worthwhile to recall the observations made by the Supreme Court in Jaisinghani v. Union of India, AIR 1967 1427 at page 1434. It was there pointed out that the absence of arbitrary power is the first essential of the rule of law upon which our whole constitutional system is based. In a system governed by rule of law, discretion, when conferred upon executive authorities, must be confined within clearly defined limits. The rule of law from this point of view means that decisions should be made by the application of known principles and rules and, in general, such decisions should be predictable and the citizen should know where he is. If a decision is taken without any principle or without any rule it is unpredictable and such a decision is the antithesis of a decision taken in accordance with the rule of law. Law has reached its finest moments when it has freed man from the unlimited discretion of some ruler. Where discretion is absolute, man has always suffered. It is in this sense that the rule of law may be said to be the sworn enemy of caprice, Discretion means sound discretion guided by law. It must be governed by rule, not by humour, it must not be arbitrary, vague and fanciful. It would appear from the above observations that predictability even of the administrative decision is one of the essentials of rule of law which is the high policy of the Constitution embodied in Article 14. This principle would govern the framing of Rules for admission to the Government Medical Colleges because those institution are run out of public funds and the Government in framing its policy in regard to the admission to those Colleges must act with some predictability. Frequent changes made in the rules are likely to introduce uncertainty and, as experience has shown, result in plethora of litigation. The State Government would be well-advised, therefore, to consider all the relevant questions relating to its policy in the matter of admission to Government Colleges well in advance of the start of the academic year and to formulate rules based on such policy and make such rules known to the intending applicants by giving to it suitable publicity. No departure should ordinarily be made once such rules are published unless for compelling reasons it is necessary to do so in order to meet exigencies of the situation. Experience has shown that the rules are not framed after taking into account all possible contingencies, with the result that, on the one hand, the aggrieved students have to resort to the Court of law for seeking; redress and, on the other, the State Government itself is faced with many administrative and other problems arising on account of such litigation. Not only that, but even students who are not parties to the litigation are also sometimes put to considerable hardship on account of interim orders which are required to be made during the pendency of the litigation. To avoid such situation recurring from year to year, as has been the experience so far, it would be desirable for the State Government to give to these rules some permanency after taking into account all relevant facts and circumstances.
Besides, it would be desirable to get the rules examined by an independent Committee of experts which might consist not only of Government officials but also outsiders such as the Deans of the Medical Faculty of the Universities and representatives of the Indian Medical Council. Once such rules are framed, they should ordinarily be not amenable to change straightway by exercise of executive powers. Any such amendment, even if necessary, should only be made in consultation with such Committee. It would also be desirable to have the rules examined by the Legal Department of the State Government in order to ensure against possible litigation as also to cast them in suitable precise verbal formula so that interpretation of the rules on account of unhappy or equivocal expression does not raise problems not only for the students but also for the Court. This Court has had to deal expeditiously with many matters relating to admission to Government Colleges in the past decade and the inconvenience that it has caused not only to this Court but also to the Government and students is something which could have been avoided had these measures been taken earlier. It is hoped that the views herein expressed by this Court will not fall on deaf ears and that by the time the next academic year arrives, the State Government will have done all that is within its powers to implement the suggestions.”
61. In view of what is stated above, present petitions are allowed and it is held that,
i) The settlement arrived at between the Consortium of Self-financing Colleges and the State Government in Special Civil Application No.18234 of 2011 is held to be of no consequences as it is in violation of the provisions of the Gujarat Professional Medical Educational Colleges or Institutions (Regulations of Admission and Fixation of Fees) Act,2007.
ii) The admission to the Postgraduate Dental Courses shall be governed in the ratio of 75:25 which includes 15% NRI seats.
iii) The Gujarat Professional Medical Educational Colleges or Institutions (Regulations of Admission and Fixation of Fees) Act,2007 prevails over the Dental Council of India Revised MDS Regulation,2007 in connection with seat sharing ratio and the seat sharing ratio in the Gujarat Professional Medical Educational Colleges or Institutions (Regulations of Admission and Fixation of Fees) Act,2007 governs the field.
iv) The respondents are directed to prepare revised merit list on the basis of the observations made in this judgment in connection with giving admission in the PG Dental Courses in the colleges affiliated to the respondent – Gujarat University. The respondents are directed to act accordingly as per the observations made in this judgment.
v) The management quota is to be treated as 25% of total seats which includes NRI quota in the same.
Rule is made absolute accordingly.
(P.B.MAJMUDAR, J.)
(MOHINDER PAL, J.)
FURTHER ORDER
After the judgment is pronounced, on behalf of the respondents, a request is made for staying the judgment for some time on the ground that they would like to approach the Supreme Court.
The said request is vehemently opposed by the petitioners on the ground that respondents are aware that delay of each day is important and they may not take advantage of delay by pressing equity in their favour. It is also argued that the matter was moved in the month of May,2012 and with difficulty, it was circulated before the Vacation Judge and further delay will be dangerous and it may affect career of the petitioners and simply because the Court has taken some time in deciding the matter, no party should suffer.
We have considered the request made by learned counsel appearing for the respective parties.
We are conscious that the directions given are not required to be further delayed, as, as on today, as per the say of the University, the University can act as per the directions given by the Court in view of the stand taken earlier before the vacation Judge.
Learned Senior Counsel, Mr.Shelat for the University fairly states that the University can, however, approach the Dental Council of India for extension of date. Mr.Shelat also states that merit list is already prepared and now, the only question would be of counseling.
It will be open for the University to approach the Dental Council of India, if required under the law. Learned counsel for the North Gujarat University may also follow the same course.
Considering the same, the respondents should also be given a chance to challenge this order before the Supreme Court. We deem it proper to stay this judgment and order upto 31.8.2012. However, the argument of learned Senior Counsel, Mr.Shelat has been incorporated as he has stated that University can still act as per the directions given in this judgment and the matter itself may become infructuous on this ground.
Direct Service is permitted.
(P.B.MAJMUDAR,J.)
(MOHINDER PAL, J.)
(vipul)