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Saturday, October 1, 2016

We are reminded of the words of the Chief Justice Marshall that life of law is not logic but the experience. We also clarify that this order is passed in exercise of powers under Article 142 of the Constitution. Insofar as admission process of subsequent years is concerned, it shall depend upon the outcome of the central issue raised in the writ petitions. Having regard to the fact that the issue raised is of seminal importance and shall arise every year, we request the High Court to decide the writ petitions of the respondents on merits, as expeditiously as possible, and it would not allow the respondents to withdraw the writ petitions. Since September 29, 2016 is the date fixed for this purpose by the High Court, we hope that the final hearing would start on that date and would proceed on a day-to-day basis.

                                                              NON-REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 9835 OF 2016
                 (ARISING OUT OF SLP (C) NO. 26558 OF 2016)


|STATE OF MAHARASHTRA & ORS.                |.....APPELLANT(S)            |
|VERSUS                                     |                             |
|DR. D.Y. PATIL VIDYAPEETH & ORS.           |.....RESPONDENT(S)           |

                                   W I T H
                        CIVIL APPEAL NO. 9836 OF 2016
                 (ARISING OUT OF SLP (C) NO. 26572 OF 2016)

                        CIVIL APPEAL NO. 9837 OF 2016
                 (ARISING OUT OF SLP (C) NO. 26567 OF 2016)

                                    A N D

                     CIVIL APPEAL NOS. 9838-9839 OF 2016
              (ARISING OUT OF SLP (C) NOS. 27918-27919 OF 2016)



                               J U D G M E N T

BY THE COURT:
                 Leave granted

All these appeals arise out of  the  common  order  dated  August  30,  2015
passed by the High Court of Judicature  at  Bombay  in  the  writ  petitions
filed by the respondents herein.  In the said writ petitions, Rule has  been
issued and during the course of arguments we are  informed  that  these  are
now listed for final hearing on September 29, 2016.

Subject matter of challenge in these appeals is the interim order  which  is
passed by the High Court granting stay  of  Letter  dated  August  09,  2016
issued by the Government of India through the Ministry of Health and  Family
Welfare, the Government Resolution dated  August  20,  2016  passed  by  the
State of Maharashtra and the consequential Notice dated August 21,  2016  of
the State of Maharashtra.

Respondents herein are the deemed universities established under  Section  3
of the University Grants Commission Act, 1956 (hereinafter  referred  to  as
the 'UGC Act').   The  issue  pertains  to  the  admission  of  students  in
MBBS/BDS   courses.    An    All    India    Test    known    as    National
Eligibility–cum–Entrance Test (NEET) has been conducted  in  order  to  have
the centralised admission process.  This NEET  has  been  conducted  by  the
Central Board of Secondary Education, Delhi, on the  basis  of  which  Merit
List  showing  All  Indian  Ranking  has  been  drawn  of   the   successful
candidates.  It is the common case of the parties that admission  is  to  be
given on the basis of the said Merit List by the  educational  institutions.
However, the process of admission  is  to  be  preceded  by  counselling  of
eligible candidates/students.  It is this counselling which has  become  the
bone of contention.

Vide the aforementioned Letter and Resolution, which  have  been  stayed  by
the High  Court,  a  decision  is  taken  by  the  Central  Government/State
Government that the centralised counselling shall be conducted by the  State
Government.   For  this  purpose,  the  appellants,  i.e.   the   State   of
Maharashtra, supported by the Union of India, relied upon  the  Constitution
Bench judgment of this Court in Modern Dental College and Research Centre  &
Ors. v. State of Madhya Pradesh & Ors.[1] and some other Constitution  Bench
judgments including the orders passed in Sankalp Charitable Trust & Anr.  v.
Union of India & Ors.[2] whereby system of NEET  is  restored  coupled  with
centralised counselling.  On the other  hand,  the  respondent  universities
maintain that being deemed universities, they  are  autonomous  bodies  and,
therefore, it is their right to undertake the counselling  process  and  the
only rider is that they are supposed to admit the  students  only  from  the
Merit List drawn from the NEET and that too on merit.   According  to  them,
the impugned orders issued by the Central and State Governments  are  ultra-
vires as the State Government has sought to exercise its  powers  under  the
Maharashtra Act No. XXVIII of 2015  which  does  not  apply  to  the  deemed
universities, nay, specifically excludes the institution declared  to  be  a
deemed university under Section 3 of the UGC Act, as per the  definition  of
'Private Professional Educational Institution' provided under Section  2(q),
to which institutions the said Act applies, regulating their  admission  and
fees.  It is also argued that right to admit  students  is  the  fundamental
right of these deemed universities guaranteed under Article 19(1)(g) of  the
Act as per the eleven Judge Bench decision  of  this  Court  in  T.M.A.  Pai
Foundation  v.  State  of  Karnataka[3]  and  any  reasonable   restrictions
thereupon can be imposed only by 'law'.  It is,  thus,  submitted  that  the
impugned decisions and communications which are  administrative  in  nature,
having  no  force  of  law,  cannot  take  away  the  right  of  the  deemed
universities to admit the students.
            This is the main issue which is to be adjudicated  upon  and  to
be  decided  by  the  High  Court  in  the  writ  petitions  filed  by   the
respondents.

In the impugned interim  order,  the  High  Court  has  taken  note  of  the
provisions of the University Grants Commission (The Institutions  Deemed  To
Be Universities) Regulation, 2016 and  other  statutory  provisions  on  the
basis of which  it  has  come  to  the  prima  facie  view  that  the  State
Government cannot transgress  the  powers  of  the  deemed  universities  by
issuing Government Resolution, when the field  of  holding  the  counselling
and right to admit the students is occupied by the Central legislation  like
the Amendment Notification dated August  05,  2016  issued  by  the  Medical
Council of India under Section 33 of the Indian Medical  Council  Act,  1956
and the aforementioned Regulation, 2016. Sustenance is also drawn  from  the
judgment of this Court in Modern Dental College and Research Centre case  on
the basis of which it is observed by the High  Court  that  right  to  admit
students is conferred upon educational institutions.   The  High  Court  has
also extensively quoted similar interim order  passed  by  the  Kerala  High
Court on August 26, 2016 in the writ petitions which are  filed  by  private
unaided educational institutions in the State of Kerala. While  issuing  the
interim stay of the impugned orders certain conditions are also imposed,  as
can be seen from paras 10 and 11 of the order of the High Court, which  read
as under:
“10.  Having considered the aforesaid statutory provisions, we  are  of  the
view that the universities coming under the purview of  Deemed  Universities
under Clause 2.11 of Regulation 2016 are entitled to admit the  students  as
per the merit list drawn on the basis of All India ranking of NEET.  In  our
prima facie view in view of the statutory  provisions  as  extracted  above,
the  State  Government  cannot  transgress  the   powers   of   the   Deemed
Universities by issuing Government Resolution.  When the  field  of  holding
the counselling and right to admit the students is occupied by  the  central
legislation  like  Amendment  Notification  2016  and  Regulation  2016  the
Government Resolution cannot override  the  said  statutory  provision.   We
also find that the Hon'ble Supreme  Court  in  the  case  of  Modern  Dental
College (supra) has categorically held the rights which encompass the  right
to occupation  of  educational  institutions  includes  “a  right  to  admit
students”.  We also find that in identical  circumstances  the  Kerala  High
Court  vide  order  dated  26th  August,  2016  has  stayed  the  Government
Resolution issued by the State of Kerala by observing at para 9  and  10  as
under:

“9.  We have given our anxious consideration to the  respective  contentions
advanced before us.  It is contended by the learned  Advocate  General  that
the impugned orders are issued to ensure that students are admitted only  on
the basis of merit as per the ranking in NEET,  2016.   However,  we  notice
that the admission process itself has  been  directed  to  be  done  by  the
Commissioner for Entrance Examinations which is not permissible.  Though  it
is contended that it is for  the  respective  colleges  to  furnish  to  the
Commissioner for  Entrance  Examinations  the  list  of  students  who  have
applied to their colleges, and that it would be only on the  basis  of  such
list that students would be admitted, we are not  satisfied  that  the  said
arrangement is in accordance with the dicta laid down by the Apex  Court  in
T.M.A. Pai Foundation case (supra) and P.A. Inamdar case  (supra).   In  the
said decisions, the Apex Court has clearly laid  down  that,  the  right  to
make admissions forms as integral part of the right of  the  Self  Financing
Institutions to establish and administer the same. By the  impugned  orders,
the power of  admitting  students  is  conferred  on  the  Commissioner  for
Entrance Examinations. Though we had put a pointed question to  the  learned
Advocate General as to what was the  source  of  the  power  that  has  been
exercised by the State, we have not been able to get an answer.  It  is  one
thing to say that the  admission  procedure  should  be  fair,  transparent,
nonexploitative and merit based. It is a  totally  different  thing  to  say
that in order to ensure the  same,  the  allotment  would  be  made  by  the
Commissioner for Entrance Examinations. The limited  power  that  the  State
has been conceded, extends only  to  ensuring  that  the  admission  process
satisfies the criteria  laid  down  by  the  Supreme  Court  in  T.M.A.  Pai
Foundation case (supra) and P.A. Inamdar  case  (supra).  Prima  Facie,  the
impugned  orders  by  conferring  the  power  to  admit  students   on   the
Commissioner for Entrance Examinations has impinged upon the  right  of  the
Petitioners to admit students. Therefore, we are satisfied that  an  interim
order of stay of the impugned orders is necessary to  be  granted.  However,
we are conscious at the same time  that,  it  is  necessary  to  ensure  the
admission process to be fair, transparent, nonexploitative and merit  based.
Therefore, the interim stay shall be subject to appropriate conditions.

10.  Accordingly,  there  shall   be   interim   stay   of   operation   and
implementation of the impugned orders, G.O. (Rt.) No.  2314/2016/H&FD  dated
20.08.2016, subject to the following conditions:

(i) Admissions to the MBBS/BDS Courses shall be only on  the  basis  of  the
ranking of candidates in the rank list of NEET, 2016 on  the  basis  of  the
interse merit among the candidates,  who  have  applied  to  the  respective
colleges.

(ii) All the  colleges  agree  that,  the  applications  for  admission  are
received  only  through  online  and  that,  the   said   process   provides
transparency with regard to the merit as  well  as  the  identities  of  the
applicants. Such applications shall therefore be uploaded for  the  scrutiny
of the Admission Supervisory Committee also immediately  on  the  expiry  of
the last date for submission of applications.

(iii) Since the counsel for the Admission Supervisory Committee  has  voiced
a complaint that some of the colleges have  not  obtained  approval  of  the
Admission Supervisory Committee, for their prospects, the admission  process
shall be proceeded with  only  on  the  basis  of  a  prospects,  for  which
approval of the Admission Supervisory Committee has been obtained.

(iv) The Admission Supervisory Committee is directed to  either  approve  or
disapprove the Prospectus submitted to them for approval, within three  days
of such submission.

11.  Having regard to the aforesaid, we are of the view  that  the  impugned
letter dated 9th August, 2016 issued by the Government of India through  the
Ministry of Health and Family Welfare, the Government Resolution dated  20th
August, 2016 issued by State of Maharashtra and the consequential notice  of
the Government of Maharashtra dated 21st August, 2016  deserves  to  be  and
are hereby stayed.  However, it is made clear that the admission as  may  be
given by the Petitioners shall be strictly by abiding the Clause 6.4 of  the
Regulation 2016 and the Petitioners shall admit  the  students  strictly  on
the basis of ranking of the candidates in the list of NEET on the  basis  of
inter se merit amongst the students who have  applied  to  the  Petitioner's
institution.”

We may point out at this stage that the learned counsel appearing on  either
side had argued the matter in great detail, touching upon the main  question
of law as well which is raised in the writ petitions.  It was the  endeavour
of Mr. Shyam Diwan, learned  senior  counsel  appearing  for  the  State  of
Maharashtra, and Mr. Ranjit Kumar, learned Solicitor General  appearing  for
the Union of India, that the aforesaid reasons given by the  High  Court  in
coming to its prima facie conclusion were patently erroneous.  On the  other
hand, Mr. P. Chidambaran and Dr. A.M. Singhvi, learned senior  counsel,  and
other learned counsel appearing  in  the  matters,  supported  the  impugned
order and also advanced arguments to the effect that the  present  case  had
to be tested having regard to the provisions of the Maharashtra  Act  XXVIII
of 2015 which excluded deemed universities.

We are not reproducing the submissions of counsel for both sides  in  detail
as these questions of law are to be determined by  the  High  Court  in  the
writ petitions filed by the respondents herein. We, therefore, do  not  want
to make any comments on the arguments raised by both  sides  so  as  not  to
influence the decision making process  of  the  High  Court.   However,  few
comments are required to be made at this stage, which are as follows:
(i)   Insofar as judgment of the Constitution Bench of this Court in  Modern
Dental College and Research Centre case is concerned, it does not  help  the
respondent universities at all.  On the contrary, it is held by  this  Court
in the said  case  that  the  process  of  admission  encompasses  not  only
Centralised Entrance Test (CET), but counselling  as  well.   This  is  made
abundantly clear by  the  Constitution  Bench  in  its  recent  order  dated
September 22, 2016 in the case of State  of  Madhya  Pradesh  v.  Jainarayan
Chouksey & Ors.[4]  It is amazing that  it  is  the  respondents  which  had
taken shelter under the aforesaid judgment  in  Modern  Dental  College  and
Research Centre  case,  before  us  this  argument  was  abandoned  and  the
respondents tried to  distinguish  this  judgment,  whereas  the  appellants
heavily relied upon the said judgment.
            The question, however, is as to whether  the  said  judgment  is
applicable to the deemed universities having regard  to  the  provisions  of
the Maharashtra Act XXVIII of 2015, which aspect has to be  decided  by  the
High Court.

(ii)  Reliance upon the order dated August 26, 2016  passed  by  the  Kerala
High Court is also misconceived as the order  passed  pertained  to  private
unaided medical institutions and not  deemed  universities.   Since  special
leave  petitions  are  preferred  by  the  Union  of   India   against   the
aforementioned order passed by the Kerala High Court, which are  yet  to  be
heard, we refrain ourselves from making any further comments.

We are,  however,  confronted  by  a  different  situation  altogether.  The
central issue highlighted above needs to be considered by  the  High  Court.
In the meantime, pursuant to the impugned orders passed by the  High  Court,
the respondent universities, which had invited the successful students  from
the Merit List drawn on the basis of  NEET  to  register  for  admission  in
their respective universities, went ahead  with  the  counselling  of  those
students who applied for admissions to them and a statement  was  also  made
at the Bar that even admissions have also been done on the  basis  of  first
counselling. So much so, classes have started and  those  admitted  students
are attending  the  course.   We  were  informed  that  second  and  further
counselling would be needed as many such  students  admitted  in  particular
courses change their discipline of  study  and/or  get  admission  in  other
medical institutions, thereby resulting into vacating the seats occupied  by
them. Last date for admission in MBBS/BDS courses  is  September  30,  2016.
It was also argued by the learned  counsel  appearing  for  the  respondents
that admission was done  strictly  in  accordance  with  the  merit  of  the
successful  candidates  of  NEET  who  had  applied  in   their   respective
universities.

On the other hand, Mr. Diwan had made valiant  effort  to  demonstrate  that
had there been a centralised counselling, many students who  are  higher  in
Merit could have got admission and they are  deprived  of  their  admission.
It was  pointed  out  that  approximately  15,000  students  had  registered
themselves with the State Government for taking  admissions  in  the  deemed
universities of the State of  Maharashtra  on  the  understanding  that  the
State would be conducting the counselling.  A chart was  submitted  to  show
that had the list been prepared in respect of such  students,  the  scenario
would have been totally different in contrast with the admissions  given  by
the respondents.  In nutshell, it was contended that admission was given  to
many students whose ranking is much below in the Merit List and,  therefore,
admissions given by the deemed universities do not meet the triple  test  of
'Fair, Transparent and Non-exploitative'.  The  respondents,  on  the  other
hand, countered the aforesaid argument by contending  that  the  list  which
was prepared by the State Government in respect of the  candidates  who  had
registered with them was on the basis of applications received  and  it  may
not reflect the desire of such students to take admission in the  respondent
institutions.  It was argued  that  the  fee  structure  of  the  respondent
universities was much higher than the Government colleges and  even  private
unaided medical institutions and, therefore,  those  students  who  are  not
able to afford the fee may not be serious in  getting  admissions  in  their
institutions.  It  was  submitted  that  many  of  those  students  who  got
themselves registered with the State Government may have taken admission  in
Government colleges and other  educational  institutions  not  only  of  the
State of Maharashtra but other such medical institutions  spread  throughout
the country.  In nutshell, their submission was that the  exercise  done  by
the appellants did not filter the aforesaid factors.

This Court is conscious of the fact that it  is  dealing  with  the  interim
order passed by the High Court and the effect of the  stay  order  given  is
that the respondent universities are permitted to  do  the  counselling  and
admit the students.   Having  considered  the  respective  submissions,  our
endeavour is to bring about an equitable solution  in  the  context  of  the
respondents, who are deemed  universities  and  also  keeping  in  mind  the
developments which have ensued.

We, therefore, feel that  following  arrangement  shall  meet  the  ends  of
justice insofar as this academic year is concerned:
(i)   The stay order granted by the  High  Court  shall  stand  vacated  and
shall not continue for future years.

(ii)  This, however, will not disturb the admissions  already  made  by  the
respondent universities.  This direction  is  given  keeping  in  view  that
respondents are deemed universities.

(iii) Insofar as second or third counselling is concerned, that shall  be  a
joint exercise which means that it shall be done by  the  Committee  of  the
State Government which shall include  one  representative  each  from  these
universities.  The respondent universities shall nominate  their  respective
representatives forthwith.  It would be a centralised  counselling  for  all
the deemed universities and not university-wise counselling.  In the  second
or third counselling, students will be taken by making a  combined  list  of
those who got themselves registered with the State  Government  as  well  as
the respondent universities.  This shall ensure admission of those  who  are
more meritorious but left out but are interested in taking admission in  the
respondent universities (as contended by Mr. Diwan).  In  this  process,  it
will also be known as to which students are in fact  interested  in  getting
admission to the respondent universities.

(iv)  In order to undertake the counselling, all the  admission  records  of
the  respondent  universities  shall   be   handed   over   to   the   State
Government/Committee forthwith.

(v)   Since it may not be possible to complete the process of  admission  by
September 30, 2016, we extend the time to complete the admission by  October
7, 2016.

(vi)  The appellant State as well as respondent  universities  shall  ensure
that all seats are filled and there is no vacant seat.
      We make it clear once again that the aforesaid  directions  are  given
in the peculiar situation that has arisen.  We are reminded of the words  of
the  Chief  Justice  Marshall  that  life  of  law  is  not  logic  but  the
experience.  We also clarify that  this  order  is  passed  in  exercise  of
powers under Article 142 of the Constitution.
      Insofar as admission process of  subsequent  years  is  concerned,  it
shall depend upon the outcome of  the  central  issue  raised  in  the  writ
petitions.

Having regard to the fact that the issue raised  is  of  seminal  importance
and shall arise every year, we request the High Court  to  decide  the  writ
petitions of the respondents on merits, as expeditiously  as  possible,  and
it would not allow the respondents to withdraw the  writ  petitions.   Since
September 29, 2016 is the date fixed for this purpose by the High Court,  we
hope that the final hearing would start on that date and would proceed on  a
day-to-day basis.

The civil appeals are disposed of in the aforesaid terms.


                             .............................................J.
                                                                (A.K. SIKRI)



                             .............................................J.
                                                          (L. NAGESWARA RAO)

NEW DELHI;
SEPTEMBER 28, 2016.
-----------------------
[1]   (2016) 7 SCC 353
[2]   (2016) 7 SCC 487
[3]   (2002) 8 SCC 481
[4]   Contempt Petition (C) No. 584 of 2016 in Civil Appeal No. 4060 of
2009.

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