Skip to content


Nachane Ashiwni Shivram and ors. Etc. Vs. State of Maharashtra and anr. Etc. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtMumbai High Court
Decided On
Case NumberWrit Petition Nos. 5410, 5443, 5539, 5541 to 5543 and 6025 and etc. etc.
Judge
Reported in1997(4)ALLMR602; 1997(3)BomCR680; (1997)4BOMLR556; 1998(2)MhLj234
ActsConstitution of India - Articles 14, 162, 226, 371 and 371(2); Bombay Municipal Corporation Act, 1888 - Sections 61, 63, 64, 461 and 463; Maharashtra Universities Act, 1994 - Sections 5(15), 5(60) and 65
AppellantNachane Ashiwni Shivram and ors. Etc.
RespondentState of Maharashtra and anr. Etc.
Appellant AdvocateM.M. Vashi, ;S.V. Sadavarte, ;G.B. Lohiya, ;A.V. Mohta, ;Pradeep Deshmukh, ;A.V. Anturkar, ;M.L. Patil, ;T.S. Ingole, ;R.S. Apte, ;C.S. Dharmadhikari, ;Sunil V. Manohar, ;E.P. Bharucha and ;M.B. Rao,
Respondent AdvocateC.J. Sawant, Adv. General, ;R.D. Rane, Addl. Govt. Pleader, ;Jugal Kishore and ;Gilda, Advs. for Vidarbha Development Board, ;S.S. Gokhale, Asst. Govt. Pleader, ;B.P. Apte, Addl. Govt. General, ;P.M.
Excerpt:
- - 1996 an order was passeddirecting issuance of notice to the chief secretaryand three other secretaries why contempt actionshould not be taken against them for failure torestructure the rule as per assurance given to thesupreme court. lacking such a reason, i must be logical just as i must be impartial, and upon like grounds. we thought it would be better if the state govt. the response of the solicitor general was positive but he stated that as the impugned order of the full bench mandates the state government to implement the order forthwith and there is an apprehension that any delay would entail contempt proceedings, he would like that this court gives the state govt. it is well known. therefore, in the absence of good data being available, it can very well be said that rule.....ashok agarwal, j.1. a division bench at bombay is not ad idem with the views expressed by similar benches, one at nagpur and the other at aurangabad. the honourable the chief justice has, in the circumstances, constituted the present full bench to resolve the difference.part-i :-- questions referred to this full bench 2. the difference relates to a vexed question relating to admission to the medical colleges, an issue which has now, almost become an annual feature.3. facts, which have given rise to the present controversy may be stated. the bombay municipal corporation (for short 'b.m.c.') is conducting three medical colleges and one dental college in the city of bombay. the three colleges have an intake capacity of 400 students per year. the b.m.c. is conducting these colleges according.....
Judgment:

Ashok Agarwal, J.

1. A Division Bench at Bombay is not ad idem with the views expressed by similar Benches, one at Nagpur and the other at Aurangabad. The Honourable the Chief Justice has, in the circumstances, constituted the present Full Bench to resolve the difference.

Part-I :-- Questions referred to this Full Bench

2. The difference relates to a vexed question relating to admission to the medical colleges, an issue which has now, almost become an annual feature.

3. Facts, which have given rise to the present controversy may be stated. The Bombay Municipal Corporation (for short 'B.M.C.') is conducting three medical colleges and one dental college in the city of Bombay. The three colleges have an intake capacity of 400 students per year. The B.M.C. is conducting these colleges according to rules framed by it. It has been controlling the admissions to its medical colleges. The State Government, however, by a resolution dated the 5th of May, 1994 and 15th of June, 1994 sought to include these four colleges in the admission process of the State Government for the year 1995-96 in accordance with Rules framed by the State, both for under-graduate and postgraduate courses. This led the B.M.C. to file Writ Petition No. 830 of 1995. By ad interim and interim orders passed on 5th of June, 1995 and, 9th of June, 1995 the State Government was restrained from applying its admission rules to colleges run by the B.M.C. The B.M.C. accordingly continued granting admissions to its colleges during the academic year 1995-96. Pending this petition, the State Government issued new rules for admission for the academic year 1996-97 in which the colleges run by the B.M.C. were excluded. A social worker Shri Govindbhai Shroff filed Writ Petition No. 3260 of 1996 before the Aurangabad Bench challenging the non-inclusion of the medical colleges run by B.M.C. in the pool of other medical colleges. By an interim order passed on 22nd of July, 1996 the Aurangabad Bench directed the inclusion of B.M.C. Colleges' seats in the general pool for admission.

4. After the above order was passed by the Aurangabad Bench, students from the Bombay University filed two writ petitions before the Bombay Bench being Writ Petition No. 1531 of 1996 and 1533 of 1996 challenging the rule in regard to distribution of seats. In view of the diversion in the interim orders passed by the Bombay Bench in Writ Petition No. 830 of 1995 and by the Aurangabad Bench in Writ Petition No. 3260 of 1996, the matter was referred to a Full Bench. The Full Bench consisting of M.B. Shah, C.J. Patankar and Patel, J. considered the validity of Rule 4.1.2.1 which dealt with distribution of seats and by their orders dated 29th August, 1996 (short order) and 14th Oct. 1996 (reported in : AIR1997Bom114 ) (detailed judgment) found that the rule was invalid. The Full Bench directed that the admissions be granted on the basis of rest of the rules.

5. The order passed by the Full Bench was carried to the Supreme Court. By an order passed by the Supreme Court on 26th of Sept. 1996 (Coram : Ahmadi, C.J.I. & Smt. Sujata Manohar, J.), the S.L. Ps. were permitted to be withdrawn after Shri Andhyarujina, learned Solicitor General appearing for the State of Maharashtra agreed to restructure the rule. Time of two weeks was granted for the purpose.

6. Since grant of admissions had been delayed, a Contempt petition bearing Contempt Motion No. 345 of 1996 was filed before the Division Bench at Bombay. By an order passed on 23rd Sept. 1996, on an assurance being given to comply with the direction immediately, the Court permitted the Motion to be withdrawn after expressing displeasure.

7. In the meanwhile, one student Ku. Shruti Malviya filed Writ Petition No. 2426 of 1996 before the Nagpur Bench. On 8th of Oct. 1996 an interim order was passed (Coram : A.A. Desai and S. Radhakrishnan, JJ.) staying the admission process commenced in compliance with the directions of the Full Bench. The Court further directed the Government not to take any steps in any manner, whatsoever, in the matter ofadmissions to M.B.B.S. course. On 11th of Oct.1996 notice was issued by the Nagpur Bench tothe Chief Secretary and three other Secretaries toremain present alongwith the record on 14th Oct.1996. On 14th Oct. 1996 an order was passeddirecting issuance of notice to the Chief Secretaryand three other Secretaries why contempt actionshould not be taken against them for failure torestructure the rule as per assurance given to theSupreme Court. It was made returnable on 18thof Oct. 1996.

8. The Government issued fresh Government Resolution on 23rd of Oct. 1996 incorporating fresh rule of distribution of seats based on the directions of the Full Bench and the earlier judgments of the Supreme Court. The said Division Bench at Nagpur in Writ Petition No. 2426 of 1996, by an order passed on 31st of Oct. 1996 directed the State Government to de novo determine number of seats of medical admissions as per University areawise on the strength of 1991 population census. It was directed that the surplus and deficient seats should be found out on that basis and the seats should be transferred from surplus area to the deficient areas from which students should be admitted in the surplus areas. It was directed that on that basis the State Government should restart the process of admission afresh after cancelling all the admissions granted throughout the State. The orders passed by the Nagpur Bench were followed by the Aurangabad Bench (B.N. Deshmukh and R. G. Deshpande, JJ.) on 1st Nov. 1996.

9. The Bombay students apprehending that their admissions would be cancelled on the strength of the orders passed by the Nagpur Bench filed Writ Petition No. 5410 of 1996 and 5443 of 1996. By a Judgment and order passed on 1st of Nov. 1996 a Division Bench at Bombay (A.V. Savant and D.K. Deshmukh JJ.) differed from the view expressed by the Nagpur and Aurangabad Benches and on a request being made, the Honourable Chief Justice has referred the matter to the present Full Bench. By further directions issued by the Chief Justice, several petitions having a bearing on the issues raised, were also transferred before the present Full Bench.

10. The Government, as per the directions of the Nagpur Bench dated 31st Oct. 1996, issued a fresh Government Resolution on 1st of Nov. 1996 incorporating a fresh rule regarding distribution of seats based on population. On 4th of Nov. 1996 the present Full Bench passed an ad interim order holding, prima facie, that the Government Resolution issued on 23rd Oct. 1996 was in consonance with the Judgment of the earlier Full Bench delivered on 29th Aug. 1996 and 14th Oct. 1996 (reported in : AIR1997Bom114 ) and was also in consonance with the Judgment of the Supreme Court in the case of 'Nidamarti Maheshkumar v. State of Maharashtra', : [1986]2SCR230 . It further found that the Government Resolution dated I st of Nov. 1996 which was issued in the teeth of the aforesaid orders of the Full Bench and the Supreme Court, deserved to be stayed as it had the effect of reviving the old Rule 4.1, 2.1 which had been struck down by the earlier Full Bench. We further directed that the interim orders passed by the Nagpur Bench on 31st of Oct. 1996 and by the Aurangabad Bench on the 1st of Nov. 1996 be stayed. We observed that it followed that the State Government will not be obliged to take steps in consonance with the orders passed by the Nagpur and Aurangabad Benches and admissions granted between 30th of Sept. 1996 and 31st of Oct. 1996 will not be cancelled.

11. By a further interim order passed on the 5th of Nov. 1996, after hearing the concerned parties, we directed that admissions granted from 30th Sept. 1996 onwards, which were in consonance with the decisions of the Supreme Court in : [1968]2SCR786 and : [1986]2SCR230 were in order and hence the Government was directed to complete the admission process and to commence the academic course. Petitions were adjourned to 12th of Dec. 1996 at the request of the parties.

12. On 12th Dec. 1996. the Advocate General made a statement that the report of the Committee of Members from the three Regional Development Boards was ready and it was submitted to the Honourable Governor and orders of the Governor under Article 371(2)(c) of the Constitution were awaited. He further stated that the Governor's orders were expected by 15th of January, 1997. On a motion made by the Advocate General, the matters were adjourned to 22nd of Jan. 1997.

13. On 22nd Jan. 1997 the Advocate General produced the directives issued by the Governor under Article 371(2)(c) of the Constitution and staled that on the basis of the Governor's directives the State Government will frame draft rules for admission to the medical course for the academic year 1997-98 and will place the same for our scrutiny. He agreed to publish the draft rules on or before the 11th of Feb. 1997. He assured the Court that due publicity will be given to those rules. In view of this statement made by the Advocate General, the matters were adjourned to 19th Feb. 1997. The Full Bench gave directions regarding wide publicity to be given to the said rules and objections to be invited from the students and all affected so that a decision could be given on the validity or otherwise of the new rule. This was done with a view to ensuring that admission process for the academic year 1997-98 will not similarly be delayed by later on raising challenges to the new Rule.

14. On 19th Feb. 1997 on a motion made by all the parties the matters were adjourned to 12th of March, 1997 to enable the State Government to frame the new Rules for admission for 1997-98. After new draft rules were framed and placed before us, the petitions are taken up for hearing and final disposal.

15. Questions which have been referred by the Division Bench at Bombay to this Full Bench are in the following terms :

(i) 'Whether in view of the raio of the SupremeCourt decision in the case NidamartiMaheshkumar v. State of Maharashtra, : [1986]2SCR230 and the ratio of the decision of theFull Bench of this Court in Writ Petition No.4252 of 1996 (reported in : AIR1997Bom114 )and other companion Petitions decided on 29thAugust, 1996, the two orders viz, (i) the Orderdated 31st Oct. 1996 passed by the Nagpur Benchin Writ Petition No. 2426 of 1996 and (ii) theOrder dated 1st Nov. 1996 passed by theAurangabad Bench jn Writ Petition Mo. 4549 of1996 and other companion petitions are 'perincuriam'.

(ii) Whether in view of the admitted fact that none of the students in the region other than Vidharbha and Marathwada, who were granted admissions to M.B.B.S./B.D.S. Courses even before Writ Petition No. 2426 of 1996 was filed a Nagpur Bench on 7th Oct. 1996 were given an opportunity of being heard the orders dated 31st Oct. 1996 passed by the Nagpur Bench in Writ Petition No. 2426 of 1996 and dated 1st Nov. 1996 passed by the Aurangabad Bench in Writ Petition No. 4549 of 1996 and other companion petitions are void abinitio being in controvention of the principle of 'audi alteram pattern' and should, therefore, be ignored?

16. Though the issues referred to the Full Bench are only as aforesaid, various other issues have arisen for our consideration on account of various petitions having a bearing on the said issues, being transferred to the present Full Bench. A reference to the various petitions, which are placed before us, can now be made.

17. Original Side Writ Petition No. 2118 of 1996 and O.S. Writ Petition No. 2243 of 1996 have been filed by the Bombay students and Appellate Side Writ Petitions being Writ Petition Nos. 5410 of 1996 and 5-143 of 1996 have been filed by students in other parts of the State outside the city of Bombay after the aforesaid interim orders were passed by the Nagpur Bench and the Aurangabad Bench on 31st of Oct. 1996 and 1st of Nov. 1996 fearing that their admissions would be cancelled on account of the aforesaid orders. The students have prayed that the same should not he cancelled. Writ Petition No. 2426 of 1996 and Writ Petition No. 4711 of 1996. which wore filed before the Nagpur Bench, wherein the aforesaid orders dated the 31st of Oct. 1996 were passed by the Nagpur Bench, have been transferred before this Court and have been renumbered as Writ Petition No. 5539 of 1996 and 5543 of 1996. Similarly, Writ Petition Nos. 4549 of 1996, 4640 of 1996 and 4908 of 1996, which were filed before the Aurangabad Bench have also been transferred to this court and have been renumbered as Writ Petition No. 5541 of 1996, 5542 of 1996 and 6025 of 1996 respectively. These petitions are the ones in which the Nagpur Bench and the Aurangabad Bench have passed interim orders on 31st of Oct. 1996 and 1st of Nov. 1996.

18. Just as Bombay Municipal Corporation is conducting medical college of its own, similarly, the Thane Municipal Corporation is conducting a medical college named 'Rajiv Gandhi Medical College'. Under the Rules which had been framed by the Government at the time of grant of permission to open the said college, admissions to the said college are being controlled by the Thane Municipal Corporation. The issue, whether the admissions to the said medical college should also be governed by the Rules framed by the Government and whether the Competent Authority formed by the State Government would be entitled to control the admission process, is raised in 'Writ Petition No. 4585 of 1996'.

19. Similarly, another medical college being the Bharti Vidhyapeeth's Medical College is being conducted at Pune. The same is being conducted by Bharti Vidyapeeth which has been conferred the status of 'deemed university' under the University Grants Commission Act, 1956. Admissions to the said college are being controlled by the aforesaid Bharti Vidyapeeth. Whether admissions to the said college are to be controlled by the Competent Authority under the Rules framed by the State Government is an issue which is the subject matter of Writ Petition No. 3238 of 1996.

20. Another medical college namely Mahatma Gandhi Institute of Medical Science, has been established by the Kasturba Health Society at Sewagram, District Wardha. The same is conducted by the private trust Kasturba Health Society. It has been founded by the Central Government to the extent of 507%, by the State Government to the extent of 25% and by the aforesaid society to the extent of 25%. Admissions to the aforesaid college are being controlled by the aforesaid society. Whether admissions to this college will now be governed by the Government Rules and whether the Competent Authority will be the exclusive authority to grant admissions is the subject matter of Writ Petition No. 338 of 1995 which, on transfer to this Court, is renumbered as Writ Petition No. 2108 of 1997.

21. Petitioner in Writ Petition No. 1321 of 1997 is a student from Pune who has passed his qualifying examination of XIIth Standard from Delhi. He has now migrated to Pune on account of transfer of the services of his father. He has been held inelegible for admission in view of the eligibility condition No. (III) (3) (c) of the Rules. By the aforesaid petition, he seeks a declaration that the aforesaid Rule is violative of Article 14 of the Constitution and is, therefore, liable to be struck down. He claims admission on the strength of declaration that the aforesaid rule is ultra vires.

22. Yet another petition being Writ Petition No. 1766 of 1997 is filed by students who have now appeared for the qualifying examination of XIIth standard and are awaiting results. They, in turn, seek to impugn new Rule 2(b) for admission framed by the Government on the '3rd of March, 1997 for the year 1997-98.

23. Before coming to the questions, which have been referred to the present Full Bench, it would be useful to make reference to certain judgments of the Apex Court. In the case of 'Mahadeolal Kanodia v. Administrator General of West Bengal' : [1960]3SCR578 the Supreme Court observed as under :

'We have noticed with some regret that the earlier decision of two Judges of the same High Court in Deorajin's case : AIR1954Cal119 was cited before the learned Judges who heard the present appeal they took on themselves to say that the previous decision was wrong, instead of following the usual procedure in case of difference of opinion with an earlier decision, of referring the question to a larger Bench. Judicial decorum no less than legal propriety forms the basis of judicial procedure. If one thing is more necessary in law than any other thing, it is the quality of certainty. That quality would totally disappear if Judges of coordinate jurisdiction in a High Court start overruling one another's decision.'

24. In the case of 'Lala Shri Bhagwan v. Ram Chand' : [1965]3SCR218 , the Supreme Court observed, as under:

'It is hardly necessary to emphasize that considerations of judicial propriety and decorum require that if a learned single Judge hearing a matter is inclined to take the view that the earlier decisions the High Court, whether of a Division Bench or of a single Judge, need to be reconsidered, he should not embark upon that enquiry sitting as a single Judge, but should refer the matter to a Division Bench or. in a proper case, place the relevant papers before the Chief Justice to enable him to constitute a larger Bench to examine the question. That is the proper and traditional way to deal with such matters and it is founded on healthy principles of judicial decorum and propriety. It is to be regretted that the learned single Judge departed from this traditional way in the present ease and chose to examine the question himself.'

25. In the case of 'Union of India v. Raghubir Singh : [1989]178ITR548(SC) , the Supreme Court held, as under :

'The doctrine of binding precedent has the merit of promoting a certainty and consistency in judicial decisions, and enables an organic development of the law, besides providing assurance to the individual as to the consequence of transactions forming part of his daily affairs. And, therefore, the need for a clear and consistent enunciation of legal principle in the decisions of a Court.'

Cardozo propounded a similar thought with more emphasis ;

'I am not to mar the symmetry of the legal structure by the introduction of inconsistencies and irrelevancies and artificial exceptions unless for some sufficient reason, which will commonly by some consideration of history or custom or policy of justice. Lacking such a reason, I must be logical just as I must be impartial, and upon like grounds. It will not do to decide the same question one way between one set of litigants and the opposite way between another' (The nature of the Judicial Process by Benjamin N. Cardozo p. 33).'

26. In the case of 'Sunderjas Kanyalal Bhatijiav. The Collector, Thane, Maharashtra' : [1990]183ITR130(SC) the Supreme Court noticed the aforesaid decisions and observed, as under (at p. 1899 of AIR) :

' 17. It would be difficult for us to appreciate the judgment of the High Court. One must remember that pursuit of the law, however, glamorous it is, has its own limitation on the Bench. In a multi Judge Court, the Judges are bound by precedents and procedure. They could use their discretion only when there is no declared principle to be found, no rule and no authority. The judicial decorum and legal propriety demand that where a learned single Judge of a Division Bench does not agree with the decision of a Bench of coordinate jurisdiction, the matter shall be referred to a larger Bench. It is a subversion of judicial process not to follow this procedure.'

The Court further proceeded to add (at pp. 1899 and 1900) of AIR) :

'21. In our system of judicial review which is a part of our constitutional scheme, we hold it to be the duty of Judges of superior Courts and Tribunals to make the law more predictable. The question of law directly arising in the case should not be dealt with apologetic approaches. The law must be made more effective as a guide to behaviour. It must be determined with reasons which carry convictions within the Courts,-profession and public. Otherwise, the lawyers would be in a predicament and would not know how to advise their clients. Subordinate Court would find themselves in an embarrassing position to chose between the conflicting opinions. The general public would be in dilemma to obey or not to obey such law and it ultimately falls into disrepute.'

27. The above observations of the Supreme Court are crucial. In the instant case, it is apparent that the Division Benches at Nagpur and Aurangabad have taken a view contrary to the view expressed by the earlier Full Bench without making reference to the said Judgment of the earlier Full Bench as also the Judgment rendered by the Supreme Court in the case of (i) 'P. Rajendran v. State of Madras', : [1968]2SCR786 , (ii) 'Dr. Jagdish Saran v. Union of India,' : [1980]2SCR831 ; (iii) 'Dr. Pradeep Jain v. Union of India', : (1984)IILLJ481SC and (vi) Nidamarti Maheshkumar v. State of Maharashtra', : [1986]2SCR230 .

28. We shall now point out how the aforesaid orders passed by the aforesaid Benches are 'per incuriam and are contrary to the aforesaid orders of the earlier Full Bench and the Supreme Court.

29. The Rules which fell for consideration before the earlier Full Bench are dated the 9th of June, 1996. Rule 4.1.2.1 which was under consideration provides, as under : AIR1997Bom114 :

'4.1.2.1. The Seats of 70 percent open category and the seats reserved for backward classes available in the State will be pooled together and will be equitably distributed amongst all the University regions in the State in the proportion of population. In the process of distribution of seats the percentage of constitutional reservation will be maintained as scrupulously as possible.'

The earlier Full Bench in respect of the validity or otherwise of the aforesaid Rule, in the order dated 29lh August, 1996, has observed : AIR1997Bom114 :

'9. In our view, the contention of the learned counsel for the petitioners that Rule 4.1.2.1 of the Rules for Selection to M.B.B.S./B.D.S./B.A.M.S./ B.H.M.S. Courses, 1996-97 is vague is required to be accepted. There is no clear guidelines to the competent authority for distributing medical seats on the basis of University regions in the State in the proportion of population. Nothing is mentioned as to whether the population of University area is to be taken into consideration or whether the population of the three different regions of the State i.e. Marathwada, Vidarbha and Western Maharashtra is to be taken into consideration. Further, nothing is mentioned as to whether the population of which year is to be taken into consideration. The Competent Authority has been left with unguided discretion which renders the said Rules as unfair for its operation.'

'10. By the impugned Rule, in addition to 70% reservation of seats on University-wise basis, the seats of medical colleges of the entire State is divided and allocated on the basis of population of particular University. The alleged object is to allot more seats to students from the so called backward regions. This is done without verification of so called backwardness of any particular area. ........'

'12. In the present case, 70% of seats are reserved on University-wise basis and thereafter further reservations for the students of certain universities on the basis of University, region population would certainly be more than 70 per cent because in their region the reservation would be 70 per cent plus certain more scats which would be reserved for them in other Universities. Further, the scheme adopted by the State Government of distributing seats on the basis of University-wise population , on the face of it, appears to be irrational which results in denial of equal opportunity to the meritorious students who have declared common qualifying H.S.C. examination held by State Education Board and is violative of Article 14 of the Constitution. .......'

30. It is material to note that the aforesaid ruling of the earlier Full Bench had been carried to the Supreme Court. On 26th ofSept. 1996 the Supreme Court permitted the withdrawal of the

S.L.P. and passed the following order :

ORDER

When these matters were called on forhearing, we suggested to the learned Solicitor General Shri T.R. Andhyarujina that it would be more appropria'te for the State Government to restructure Rule 4.1.2.1 which has been struck down by the Full Bench of the Bombay High Court for reasons stated in paragraph 9 of their order appended to the petition. We thought it would be better if the State Govt. looks into the difficulties so that the fate of the students does not hang in a balance for such time as this Court may take to dispose of the matter. We impressed upon the Solicitor General that since the ball is in the court of the State of Maharashtra, it would be most appropriate that the State looks into all the problem, that they have surfaced since the making of the rule and on the basis of statistical evidence available with it. it restructures the rule so that it operates in a just and reasonable manner so far as the large body of students population is concerned. The response of the Solicitor General was positive but he stated that as the impugned order of the Full Bench mandates the State Government to implement the order forthwith and there is an apprehension that any delay would entail contempt proceedings, he would like that this Court gives the State Govt. some time to restructure the rule. We appreciate this contention and we grant the State Govt. time of two weeks to do the needful in the matter.

In view of above, the learned Solicitor General seeks leave to withdraw the Petitions No. 18798-18801/96. So also, Mr. V.A. Mohta who appears for the petitioners in SLP(c) Nos. 16845/96 and 18158/96, seeks leave to withdraw the petitions.

These petitions will stand disposed of as withdrawn.

So far as SLP (c) Nos. 17810-17811/95 are concerned, in view of the State Govt. undertaking an exercise to re-structure the relevant rule, we do not see any reason to entertain these petitions but would only observe that while doing so, the grievance pointed out in these petitions may also be kept in view.

In view of the above, Mr. Mohta also seeks leave to withdraw these petitions. The petitions will stand disposed of as withdrawn.'

Thus, it is clear that the order of the earlier Full Bench dated 29th August, 1996 was not, in any manner, disturbed or diluted by the Supreme Court and the same very much holds the field and hence in our view the Nagpur and Aurangabad Benches were bound to follow the same.

31. The earlier Full Bench, by its Judgment and order delivered on the 14th of Oct. 1 996 (Reported in : AIR1997Bom114 , has proceeded to observe, as under :

'9. We have already pointed out that Hon'ble Governor has appointed a Committee of members from the three Development Boards and called for a Report to enable him to pass necessary orders. But so far the Committee has not submitted its final report and no order is passed. Therefore, at this stage there is no Report and there is no date and it cannot be said generally that all areas covered by one university are forward and by another university backward. It is well known. and judicial notice can be taken, that there is great disparity in economical development in areas that may be covered by one university. Secondly, the Boards are constituted region-wise (three regions) and not university-wise. Therefore, in the absence of good data being available, it can very well be said that Rule 4.1.2.1 based on division of seats population-wise gives a goby to the selection of the students on the basis of merit. It cannot be justified in the interest of State or on the ground of claim of backwardness of a particular region.

10. By the impugned Rule, seats in the medical colleges in the entire State are sought to be distributed on the basis of University-wise population. This criteria of distribution of seals on the University-wise population nowhere reflects that some more seats in medical colleges are given to the areas which are backward in medical facilities. It has no connection with the object of reserving more seats to the so-called, backward areas. As such, it is distribution of medical seats on the basis of population alone. Since seats in medical colleges have been distributed on university-wise population, the population basis has nothing to do with backwardness of a particular region. It cannot be said that by distribution of seats on population basis, the object of giving more educational facilities in educationally backward area is achieved. It only amounts to simplistic division of medical scats on pro rata basis of population.

11. Secondly, by this method, students who have passed common H.S.C. Examination would be differentiated wholly on the criteria of passing the H.S.C. Examination through a particular centre or university. This method of reservation of seats in other universities would wholly exclude meritorious students of those universities from competing. Not only this but by chance if a student passes examination from a particular university even though be may be a resident of Mumbai or Pune Cities, he would have an additional advantage of getting admission on reserved seats. As such, no criteria of domicile is laid down for giving more chance to the students coming from the so-called backward areas.

12. Thirdly, maximum reservation of 70% of seats for students who have passed examination from that university is already made. By the impugned Rule, what is sought to be done is that apart from the 70% reservation, additional seats are reserved in some university for the students of other universities by dividing the seats on the basis of university-wise population. This division of scats on the basis of university-wise population gives a total go-by to the merits in a State where common H.S.C. Examination is held. For this, there is no data to indicate that distribution of seats on university-wise population is based upon any study or report by any Committee that a particular region is backward and there are no educational facilities available in that region and to ameliorate the said condition something was done by the State.'

32. A perusal of the four Supreme Court Judgments referred to in para 27 above, shows that the basic rule for grant of admission is that the same should be purely on merit. This rule of merit can have certain exceptions, it can depart from the strict rule of merit and yet not fall foul of the principle of equality enunciated by Article 14 of the Constitution. In case a certain region or an area is found to be backward--economically, socially, educationally or in the medical field --certain reservations for such regions will be permissible. The outer limit of such reservation can extend up to 70% and no more. As far as the impugned Rule 4.1.2.1 is concerned the Full Bench has found that there was no data to come to a conclusion that certain University areas were backward as compared to other University areas. It further found that there was no justification in holding that a particular university area was backward as a whole as compared to another university area as a whole, as there could be disparities in the backwardness or forwardness in a particular university region. The Rule regarding distribution of seats was struck down on the ground that there was no data to justify the backwardness or forwardness of university areas to justify the grant of additional seats vis a vis other university areas. The Full Bench further found that the aforesaid rule sought to distribute seats on the basis of population. This it found, gave a go-by to the selection of students on the basis of merit and was, thus, violative of Article 14 of the Constitution. The Full Bench further found that the aforesaid rule reserved more than 70% of the seats to particular university regions which fell foul of the directions issued by the Supreme Court in the case of 'Nidamarti' : [1986]2SCR230 . As far as the order that is passed by the Nagpur Bench on 31st of October, 1996 is concerned, the same reads as under :

'The State Government is, therefore, directed to de novo determine the number of seats of medical education as per the university area-wise, on the strength of 1991 census population. Surplus seats as arrived from the existing seats would proportionately be allocated to the university areas, where there has been a deficiency. In this exercise actual transfer pf seats might not be practicable. However, we clarify that against those surplus seats, students of other university areas where there has been a deficiency, would been titled to be admitted...........The Government shall start the process of admission forthwith in terms of the directions as given.'

33. The above directions, we find, are totally contrary to the orders passed by the earlier Full Bench. Whereas Rule 4.1.2.1. had been struck down on the ground that distribution on the basis of population was not justified, the aforesaid order passed by the Nagpur Bench directs distribution to be made on the basis of population. Similarly, whereas the Rule was struck down on the ground that it gives more than 70% reservations for students of a particular region, the above directions would also have the effect of granting more than 70% reservation for students of particular regions. The above direction virtually revives Rule 4.1.2.1. which has been specifically struck down by the Full Bench. In the circumstances, we have no hesitation in holding that the aforesaid directions issued by the Nagpur Bench and followed by the Aurangabad Bench are per incuriam. In support of our conclusion, we may briefly, refer to some of the Supreme Court decisions.

34. In 'P. Rajendaran v. State of Madras' reported in : [1968]2SCR786 the Supreme Court was dealing with the validity of Rule 8 of the Rules promulgated by the State of Madras for selection of candidates for admission to the first year integrated M.B.B.S. Course. This is clear from the following observations appearing in para 2 of the Judgment, which reads as under :

(2) Rule 8, which is another rule under challenge, provides that the seats reserved in the general pool and the seats reserved for the socially and educationally backward classes will be allocated among the various districts on the basis of the ratio of the population of each district to the total population of the State..................'

35. Thereafter, in para 10 and 11 of the Judgment at page 1016 of the Report : [1968]2SCR786 , the Supreme Court has discussed the question whether the district-wise allocation of seals was violative of Article 14. The Court reiterated the fact that the object of selection was only to secure the best possible material for admission to colleges subject to the provisions of socially and educationally backward classes. Therefore, the Supreme Court has come to the conclusion that the allocation of seats district-wise had no reasonable relation with the object to be achieved. We may reproduce Paras 10 & 11, as under :--

'(10) In the alternative, it is urged that district-wise distribution violates Article 14 of the Constitution because it denies equality before the law or equal protection of the laws, inasmuch as such allocation of seats may result in candidates of inferior calibre being selected in one district while candidates of superior calibre cannot be selected in another district. It has not been denied on behalf of the State that such a thing cannot happen, though there are no statistics available in this behalf because the marks-sheets were all destroyed after the interviews.'

'(11) The question whether district-wise allocation is violative of Article 14 will depend on what is the object to be achieved in the matter of admission to medical colleges. Considering the fact that there is a large number of candidates than seats available, selection has got to be made. The object of selection can only be to secure the best possible material for admission to colleges subject to the provision for socially and educationally backward classes. Further whether selection is from the socially and educationally backward clases or from the general pool, the object of selection must be to secure the best possible talent from the two sources. If that is the object, it must necessarily follow that that object would be defeated if seats are allocated district bv district. It cannot be and has not been denied that the object of selection is to secure the best possible talent from the two sources so that the country may have the best possible doctors. If that is the object, the argument on behalf of the petitioners/appellant is that that object cannot possibly be served by allocating seats district-wise. It is true that Article 14 does not forbid classification, but the classification has to be justified on the basis of the nexus between the classification and the object to be achieved, even assuming that territorial classification may be a reasonable classification. The fact, however, that the classification by itself is reasonable is not enough to support if unless there is nexus between the classification and the object to be achieved. Therefore, as the object to be achieved in a ease of the kind with which we are concerned is to get the best talent for admission to professional colleges, the allocation of seats district-wise has no reasonable relation with the object to be achieved. If anything, such allocation will result in many cases in the object being destroyed, and if that is so, the classification, even if reasonable, would result in discrimination, inasmuch as better qualified candidates from one district may be rejected while less qualified candidates from other districts may be admitted from either of the two sources'.

36. In Dr. Jagdish Saran v. Union of India, : [1980]2SCR831 the Supreme Court was dealing with the question of admission to the post-graduate course in Dermatology in the University of Delhi. The petitioner had graduated from the Madras University, but his father -- an officer of the Central Government, was transferred to Delhi. Though the petitioner appeared for the Common Entrance Test and secured enough marks for admission, it was turned down because of a rule reserving 70% of the seats at the post-graduate level to Delhi graudatcs. Dealing with the rule of institutional preference, the Supreme Court observed that unless there was a vital nexus with equal opportunity, broad validation of university-based reservation cannot be built on the vague ground that all other universities are practising it. Universality of illegality, even if the artists of discrimination are universities, cannot convert such practice into constitutionality. The constitutionality of institutional reservation must be founded on facts of educational life and the social dynamics of equal opportunity. Political panic does not ipso facto make constitutional logic. It was then observed that University-wise preferential treatment may still be consistent with the rule of equality of opportunity where it is calculated to correct an imbalance or handicap and permit equality in the larger sense,

37. In Dr. Pradeep Jain v. Union of India, : (1984)IILLJ481SC ,whilcdcaling with the question of admission to Medical Colleges and reservation of seats for students of the State or the students of the same University, the Supreme Court reiterated that the scheme of admission to medical college may depart from the principle of selection based on merit where it is necessary to do so for the purpose of bringing about real equality of opportunity between those who are unequals. It was stated that two considerations have weighed with the Courts in justifying departure from the principle of merit-based selection, viz. (i) the claim of State interest in providing adequate medical services to the people of the State by imparting medical education to students who by reason of their residence in the State would be likely to settle down and serve the people of the State as doctors, and (ii) the region's claim of backwardness. In para 10 and 14 of its Judgment, Supreme Court has observed, as under :

'10. ................ The effort must, therefore, always be to select the best and must meritorious students for admission to technical institutions and medical colleges by providing equal opportunity to all citizens in the country and no citizen can legitimately, without serious detriment to the unity and integrity of the nation, be regarded as an outsider in our constitutional set-up. Moreover, it would be against national interest to admit in medical colleges or other institutions giving instruction in specialities, less meritorious students when more meritorious students are available, simply because the former are permanent residents or residents for a certain number of years in the State while the latter are not, though both categories are citizens of India. Exclusion of more meritorious students on the ground that they are not resident within the State would be likely to promote substandard candidates and bring about fall in medical competence, injurious in the long run to the very region. 'It is no blessing to inflict quacks and medical midgets on people by whole sale sacrifice of talent at the threshold. Nor can the very best be rejected from admission because that will be a national loss and the interests of no region can be higher than those of the nations.' The primary consideration in selection of candidates for admission to the medical colleges must, therefore, be merit. The object of any rules which may be made for regulating admissions to the medical colleges must be to secure the best and most meritorious students.'

'14. There are in the application of this principle, two considerations which appear to have weighed with the Courts in justifying departure from the principle of selection based on merit. One is what may be called State interest and the other is what may be described as a region's claim of backwardness. The legitimacy of claim of State interest was recognised explicitly in one of the early decisions of this Court in D. P. Joshi case. The rule impugned in this case was a rule made by the State of Madhya Bharat for admission to the Mahatma Gandhi Memorial Medical College, Indore providing that no capitation fee should be charged for students who are bona fide residents of Madhya Bharat but for other non/Madhya Bharat students, there should be a capitation fee of Rs. 1300 for nominees and Rs. 1500 for others. The expression 'bona fide resident' was defined for the purpose of this rule to mean inter alias citizen whose original domicile was in Madhya Bharat provided, he had not acquired domicile elsewhere or a citizen whose original domicile was not in Madhya Bharat but who had acquired a domicile in Madhya Bharat and had resided there for not less than five years at the date of the application for admission. The constitutional validity of this rule was challenged on the ground that if discriminated between students who were bona fide residents of Madhya Bharat and students who were not and since this discrimination was based on residence in the State of Madhya Bharat, it was violative of Article 14 of the Constitution. The Court by a majority of four against one held that the rule was not discriminatory as being in contravention of Article 14, because the classification between students who were bona fide residents of Madhya Bharat and those who were not was based on an intellegible differentia having national relation to the object of the rule. Venkatarama Ayyar, J. Speaking on behalf of the majority observed :

The object of the classification underlying the impugned rule was clearly to help to some extent students who are residents of Madhya Bharat in the prosecution of their studies, and it cannot be disputed that it is quite a legitimate and laudable objective for a State to encourage education within its borders. Education is a State subject,and pne of the directive principles declared in Part IV of the Constitution is that the State should make effective provisions for education within the limits of its economy. (Vide Article 41). The State has to contribute for the upkeep and the running of its educational institutions. We are in this petition concerned with a medical college, and it is well-know that it requires considerable finance to maintain such an institution. If the State has to spend money on it, is it unreasonable that it should so order the educational system that the advantage of it would to some extent at least enure for the benefit of the State A concession given to the residents of the State is the matter of fees is obviously calculated to serve that end, as presumably some of them might, after passing out of the college, settle down as doctors and serve the needs of the locality. The classification is thus based on a ground which has a reasonable relation to the subject-matter of the legislation, and is in consequence not open to attack. It has been held in State of Punjab v. Ajaib Singh that a classification might validly be made on a geographical basis. Such a classification would be eminently just and reasonable, where it relates to education which is the concern primarily of the State. The contention, therefore, that the rule imposing capitation fee is in contravention of Article 14 must be rejected.

It may be noted that here discrimination was based on residence within the State of Madhya Bharat and yet it was held justified on the ground that the object of the State in making the rules was to encourage students who were residents of Madhya Bharat to take up the medical course so that 'some of them might, after passing out from the college, settle down as doctors and serve the needs of the locality' and the classification made by the rule had rational relation to this object. This justification of the discrimination based on residence obviously rests on the assumption that those who were bona fide residents of Madhya Bharat would after becoming doctors settle down and serve the needs of the people in the State. We are not sure whether any facts were pleaded in the affidavits justifying this assumption but the judgment of Venkatarama Ayyar, J. shows that the decision of the majority Judges proceeded on this assumption and that was regarded as a valid ground justifying the discrimination made by the impugned rule.

38. Then in Nidamarti Maheshkumar v. State of Maharashtra : [1986]2SCR230 , the Supreme Court was considering Rule 8(2) of the Rules framed by the State Government, which stated that the qualification required Tor admission to M.B.B.S. Course in the State of Maharashtra was passing of the 12th standard examination held by the Maharashtra State Board of Secondary and Higher Secondary Education. The rule was challenged on the ground of Article 14 being violated and this Court had upheld the validity of the Rule. An appeal was preferred to the Supreme Court. The Supreme Court discussed its earlier Judgment in Dr. Pradeep Jain's case : (1984)IILLJ481SC (supra) in para 4 and referred to two factors mentioned above, which may justify departure from the principle of selection based on merit, viz. (i) the State interest; and (ii) Region's claim of backwardness. Then in para 6 of the Judgment at page 1367, the Court considered the argument viz. region-wise classification of admission to medical colleges being defended on the ground that Vidarbha and Marathwada regions are backward as compared to Pune and Bombay regions which were more advanced. The Court referred to the fact that there was no material placed before it to show that the entire region within the jurisdiction of the University in Vidarbha was backward or that the entire region within the Pune University jurisdiction was advanced and referred to the fact that there may quite possibly, in the Pune University jurisdiction, be rural areas which are backward and equally so, there may be, in the region within the jurisdiction of the University in Vidarbha areas which are not backward. Then in Para 7 of the Judgment, at pages 1369 and 1370, the Supreme Court observed as under :--

'7 But we would like to make it clear that it would not be unconstitutional for the State Government to provide for reservation or preference in respect of a certain percentage of scats in the medical college or colleges in each region in favour of those who have studied in schools or colleges within that region and even if the percentage stipulated by the State Government is on the higher side, it would not fall foul of the constitutional mandate of equality. There are two reasons why such reservation or preference would be constitutionally permissible. In the first place it would cause a considerable amount of hardship and inconvenience if students residing in the region of a particular university are compelled to move to the region of another University for medical education which they might have to do if selection for admission to the medical colleges in the entire State were to be based on merit without any reservation or preference region-wise. It must be remembered that there would be a large number of students who, if they do not get admission in the medical college near their residence and are assigned admission in a college in another region on the basis of relative merit, may not be able to go to such other medical college on account of lack of resources and facilities and in the result they would be effectively deprived of a real opportunity for pursuing the medical course even though on paper they would have got admission in the medical college. The opportunity for medical education provided to them would be illusory and not real because they would not be able to avail of it. Moreover some difficulty would also rise in case of girls because if they are not able to get admission in the medical college near the place where they reside they might find it difficult to pursue medical education in a medical college situated in another region where hostel facilities may not be available and even if hostel facilities are available, the parents may hesitate to send them to the hostels. We are therefore of the view that reservation or preference in respect of a certain percentage of seats may legitimately be made in favour of those who have studied in schools or colleges within the region of a particular university, in order to equalise opportunities for medical admission on broader basis and to bring about real and not formal, actual and not merely legal, equality. The only question is as to what should be the extent of such reservation or preference. But on this question we derive considerable light from the decision in Dr. Pradeep Jain's, : (1984)IILLJ481SC (supra) where we held that reservation based on residence requirement or institutional preference should not exceed the outer limit of 70 per cent of the total number of open seats after taking into account other kinds of reservations validly made and that the remaining 30 per cent of the open seats at the least should be made available for admission to students on All-India basis irrespective of the State or the University from which they come. We would adopt the same principle in case of region-wise reservation or preference and hold that not more than 70 per cent of the total number of open seats in the medical college or colleges situate within the area of jurisdiction of a particular University, after taking into account other kinds of reservations validly made, shall be reserved for students who have studied in schools or colleges situate within that region and at least 30 per cent of the open seals shall be available for admission to students who have studied in schools or colleges in other regions within the State.'

39. In the light of the above, it is clear to us that region-wise classification of seats in the absence of any material being placed before us to show that the entire region is backward or advanced would be impermissible. It was precisely on this ground that the earlier Full Bench held that Rule 4.1.2.1. of the Rules for the year 1996-97 was arbitrary and hence, violative of Article 14, We have already reproduced the relevant observations in the short order and the detailed Judgment of the earlier Full Bench. We have also reproduced the relevant observations of the Supreme Court in the aforesaid four eases. In view of the above, we are of the view that the Order dated 31st October 1996 passed by the Nagpur Bench in Writ Petition No. 2426 of 1996 and the Order dated 1st November, 1996 passed by the Aurangabad Bench in Writ Petition No. 4549 of 1996, with other companion Writ Petitions, are clearly 'per incuriam.' The first question referred to the Full Bench is answered accordingly.

40. In the light of our answer to the first question, the second question must also be answered in the affirmative. Apart from the said orders being 'per incuriam,' no opportunity of hearing was given to the students in the region other than Vidarbha and Marathwada. The admissions granted to them were cancelled behind their back. Writ Petition No. 2426 of 1996 was filed by a single student -- Shruti Malaviya -- at Nagpur as late as on 7th October, 1996, by which time the admission process had already substantially progressed and even the Waiting List was prepared on 7th October 1996. The students had exercised their options in favour of M.B.B.S./B.D.S. course and had abandoned other available choices in other specialities of medicines or other faculties and hence, in our view, it was not proper to cancel all the admissions in the entire State at the behest of one student Shruti Malaviya and that too without giving the other students an opportunity of being heard in the matter. Question No. 2 is, therefore, answered in the affirmative, viz. that (i) the Order dated 31-10-1996 passed by the Nagpur Bench in Writ Petition No. 2426 of 1996, and (ii) the Order dated 1st November, 1996 passed by the Aurangabad Bench in Writ Petition No. 4549 of 1996 and other companion Petitions are void ab-initio being in contravention of the principle of 'audi alteram partem' and should, therefore, be ignored.

41. It may be mentioned that the learned Advocate General Shri C.J. Sawant, Shri Bharucha and Smt. Wandrewala have contended that in view of the decisions of the Supreme Court and the decision of the earlier Full Bench of this Court referred to above, the aforesaid orders passed by the Nagpur Bench on 31st of October, 1996 and followed by the Aurangabad Bench on 1st of November, 1996, were clearly 'per incuriam'. On the other hand S/Shri Lohiya, Deshmukh, Mohta and Gilda have tried to support the said orders passed by the Nagpur and Aurangabad Bench contending that the same were valid and were not in contravention of the law laid down either by the Supreme Court or by the earlier Full Bench.

42. In the light of the above findings, it is necessary for us to give further directions that all the admissions which were granted provisionally pursuant to our interim orders dated 4th and 5th November, 1996 are hereby declared to be the final admissions for the academic year 1996-97. We further direct that whatever admissions were granted prior to the ad-interim and interim orders passed by this Full Bench, though initially intended to be provisional, are hereby regularised and declared to be final. The State Government, the concerned Universities and the Medical Colleges where such admissions were granted will proceed on the footing that the admissions are final.

Part II : Validity of new Draft Rule 2 (b) for the academic year 1997-98

A.V. Savant, J.

43. This brings us to the next question about the validity of Rule 2(b) of the Draft Rules framed for the academic year 1997-98. The said rule dealing with distribution of seats for the academic year 1997-98 reads as under :--

'(VI) DISTRIBUTION OF SEATS

The seats available for admission will be distributed in the following manner :

1(a) ALL INDIA ENTRANCEEXAMINATION SEATS

15% of seats at all Government Medical and Government Dental Colleges, recognized by the Medical Council of India, and. Dental Council of India, respectively, are reserved for candidates of All India Entrance Examination, nominated by the Director General, Health Services, Government of India, New Delhi.

(b) NRI Seats-- Not more than 15% of total seats of Private Medical and Dental Colleges are permitted to be filled in on the basis of merit by Private Colleges by sons and daughters of NRIs/ Foreign Nationals. These 15% seats will be provided in 'payment' seats category.

(c) Scats for nominees of Government of India will be filled up in the manner provided in Annexure-F.

2. BREAK-UP

After excluding the seats as provided in (a), (b) and (c) above, the remaining seats will be at the disposal of the Competent Authority available for applicants of the State for admission in the manner hereinafter provided :--

(a) Out of the seats at the disposal of the Competent Authority, 30% of such seats in Colleges will be made available for applicants from the State and these seats will be filled on the basis of State level merit. There will be constitutional reservations is these seats as per rules.

(b) After the exclusion of the State Level seats mentioned in Rule 3(a) above the remaining 70% seats in the Government Colleges, Private Unaided Colleges, from the Colleges of the Municipal Corporations will be pooled together and the number of seats out of the pooled seats allocable to the applicants from the areas of different Development Boards i.e. Vidarbha, Marathwada and Rest of Maharashtra will be determined in proportion to the share of population of the respective region in the total population of the State, according to the 1991 Census. If the number of seats allocated in the above manner in 70 per cent category available within the area of particular Regional Development Board is less than the share of allocable seats determined in the manner indicated above, the deficit will be made good by providing the required number of seats from the Regions having a surplus.

(c) The distribution of seats at the disposal of Competent Authority will be made by taking into consideration the constitutional reservations and also the specified reservations as listed below :--

(i) Constitutional Reservations (B)

(Annexure --B)

(ii) Children of Defence personnel

(Annexure -- C)

(iii) Physically Handicapped (PH)

(Annexure -- D)

(iv) Maharashtra-Karnataka Disputed Border Area Residents (MKB)

(Annexure -- E)

The Specific reservations mentioned at (ii), (iii) of Rule 2(c) and (c) of Rule 1 of Chapter VI will be provided from 70% open category seats of Government Medical colleges. The seats remaining vacant from these categories will be reverted back to 70% open category seats.

(d) A seat will be earmarked for underage candidate in the college and in the category under which he would otherwise have been admitted. Such earmarked seat will be held valid for the first subsequent year in which such an applicant becomes elegible for the first time. This concession will automatically lapse if not availed of at an appropriate time. Earmarked seats will be appropriately deducted from the respective categories of available seats, before selection procedure commences.

(e) The seats at Dr. D.Y. Patil Women's Medical College will be filled by the female applicants only'.

44. Before we come to the validity of the said new draft Rule 2 (b), it is necessary to deal with the preliminary objection raised by the learned Advocate General and the learned Counsel for some of the respondents viz. Sarvashri Lohiya, Deshmukh, Mohta and Gilda on the ground of non justifiability of the said Rule. It was contended by them that in exercise of the powers conferred upon him by the President of India, under Article 371 of the Constitution, the Governor of Maharashtra had made an order on 30th of April, 1994 called 'The Development Boards For Vidarbha, Marathwada and the Rest of Maharashtra Order, 1994'. Three Regional Development Boards were constituted. Under Clause 11 of the said 1994 Order the Governor had made Rules called 'The Development Boards for Vidharbha. Marathwada and the Rest of Maharashtra Rules, 1994. Rule 8 of the said Rules provides for the Technical Education Department conducting a bench mark survey and preparing the statistical information in available opportunities in Technical Education and Vocational Training in the areas under each Board. After this was done, the Governor may take a view on the levels of development in this sector and determine the backlog, if any, with reference to average indicators of such opportunities in the State as a whole. A report prepared by the Joint Committee of Development Boards on Technical Education and Vocational Training was submitted to the Governor pursuant to which the Government gave directives on 15th of January, 1997 with regard to his special responsibility regarding an equitable arrangement providing for technical education and vocational training under Article 371(2)(c) of the Constitution. As far as medical admissions are concerned the directives are to be found in para C. (4) and the same are as under :

'(4) M.B.B.S.

(a) 30% of the seats in M.B.B.S. courses available for students from the State, in every institution in the State should be filled on the basis of State level merit with due reservation for S.C./S.T./N.T./O.B.C. etc.

(b) The remaining seats (i.e. 70% available for students from the State in all the institutions in the State should be pooled together and the number of seats out of the pooled seats allocable to candidates from the areas of different Development Boards should be determined in proportion to the share of the areas of the respective Development Boards in the total population of the State according to the latest census. If the number of seats (i .e seats in the 70% category) available within the area of a particular Development Board is less than the share of allocable seats determined in the manner indicated above, the deficit should be made good by providing the required number of seats in the region (s) having a surplus.

(c) While filling up the seats in the 70% category allocable to students from the area of different Development Boards due reservations should be made for S.C./S.T./N.T./O.B.C. etc.' At the end of the directives, in para D, it is provided, as under :

'D. Implementation of the Governor's directives.

The Governor is pleased to further direct that the directives given above should be made applicable to all the seats, which are available for students from the State in the relevant courses after subtracting the number of seats required to be reserved for the All India quota, N.R.I, quota etc. in all the institutions in the State having such courses, including Government, Government aided, Municipal Corporation and un-aided private institutions from the academic year 1997-98 onwards after rules in this regard are duly framed by the concerned departments of the State Government.

By order and in the name of the Governor of Maharashtra.

Date : 15th Jan., 1997.'

It is in pursuance of the said directives that the State Government has now framed the Rules for admission to the Medical and Dental Courses for the academic year 1997-98.

45. It is no doubt true that the preamble of the said draft rules refers to the various Court decisions including the Supreme Court decisions in the case of Dr. Pradeep Jain v. Union of India, : (1984)IILLJ481SC ; 'Nidamarti Maheshkumar v. State of Maharashtra', : [1986]2SCR230 and 'Unni Krishnan, J.P. v. State of Andhra Pradesh', : [1993]1SCR594 . It also refers to the directives of the Government under Clause (c) of Article 371(2) of the Constitution. In our view the said Rules have been framed in exercise of the executive power of the State under Article 162 of the Constitution. Article 162 of the Constitution reads as under :

' 162. Extent of executive power of State. --Subject to the provisions of this Constitution, the executive power of a State shall extend to the matters with respect to which the Legislature of the State has power to make laws : Provided that in any matter with respect to which the Legislature of a State and Parliament have power to make laws, the executive power of the State shall be subject to, and limited by, the executive power expressly conferred by this Constitution or by any law made by Parliament upon the Union or authorities thereof.'

46. The preliminary objection raised by the learned Advocate General and other learned Counsel mentioned above is that having regard to the non obstante clause appearing at the beginning of Clause (2) of Article 371 of the Constitution, this Court has no jurisdiction even in exercise of its powers under Article 226 of the Constitution to examine the validity of the new rule. Article 371 of the Constitution reads as under :

'371. Special provision with respect to the State of (***) Maharashtra and Gujarat. -- (***)

(2) Notwithstanding anything in this Constitution the President may bv order made with respect to (the State of Maharashtra or Gujarat), provide for any special responsibility of the Government for--

(a) the establishment of separate development Boards for Vidarbha, Marathwada, (and the rest of Maharashtra or, as the case may be) Saurashtra, Kutch and the rest of Gujarat with the provision that a report on the working of each of these boards will be placed each year before the State Legislative Assembly;

(b) the equitable allocation of funds for developmental expenditure over the said areas, subject to the requirements of the State as a whole; and

(c) an equitable arrangement providing adequate facilities for technical education and vocational training, and adequate opportunities for employment in services under the control of the State Government, in respect of all the said areas, subject to the requirements of the State as a whole.)

47. What is contended before us is that, since the opening words of Clause (2) start with 'notwithstanding anything in this Constitution, the President may by order made with respect to ...............'.even a rule made by the State Government in exercise of its powers under Article 162 of the Constitution is immune from judicial scrutiny even on the touchstone of Article 14 of the Constitution. On the other hand, it is contended by the contesting petitioners that the non obstante clause at the beginning of Clause (2) cannot insulate a rule framed by the State Government from scrutiny by this Court in exercise of its powers of judicial review particularly on the touchstone of Article 14 of the Constitution. We will presently deal with this preliminary objection before going into the validity of the Rule.

48. In 'Smt. Indira Nehru Gandhi v. Raj Narain', : [1976]2SCR347 the Supreme Court has unequivocally held that the preamble of our Constitution guarantees equality of status and of opportunity and that rule of law is the basic structure of the Constitution. The concept of equality which is the basic rule of law and that which is regarded as the most fundamental postulate of republicanism are both embodied in Article 14 of the Constitution. In paras 336 and 337 of the judgment at page 2384 of the report the Supreme Court has observed as under :

'336. Equality is a multicolored concept incapable of a single definition. It is a notion of many shades and connotations. The preamble of the Constitution guarantees equality of status and of opportunity. They are nebulous concepts. And I am not sure whether they can provide a solid foundation to rear a basic structure. I think the types of equality which our democratic republic guarantees are all subsumed under specific articles of the Constitution like Articles 14, 15, 16, 17, 25 etc., and there is no other principle of equality which is an essential feature of our democratic polity.

337. In the opinion of Some of the Judges constituting the majority in Bharati's case, : AIR1973SC1461 Rule of Law is a basic structure of the Constitution apart from democracy.'

The above observations leave no doubt in our mind that the doctrine of equality enshrined in Article 14 of the Constitution, which is the basis of the Rule of Law is the basic feature of our Constitution.

49. In 'P. Sambamurty v. State of Andhra Pradesh', : (1987)ILLJ221SC the Supreme Court was considering the validity of Clause (5) of Article 371-D dealing with the special provisions with respect to the State of Andhra Pradesh. Under the said Clause (5) it was provided that the order of the Administrative Tribunal finally disposing any case was to become effective only upon its confirmation by the State Government or on the expiry of three months from the date on which the order was made, whichever was earlier. The proviso to Clause (5) also empowered the Government to modify or annul any order made by the Administrative Tribunal before it became effective. Clause (10) of Article 371-D reads as under :

'371 -D (10) The provisions of this article and of any order made by the President thereunder shall have effect notwithstanding anything in any other provision of this Constitution or in any other law for the time being in force.'

Relying upon the non obstante clause in Article 371-D(10) it was contended that the provisions of Clause (5) were immuned from judicial scrutiny. Reliance was placed on the earlier Supreme Court decision in S.P. Sampath Kumar v. Union of India, : (1987)ILLJ128SC . In para 5 of the judgment, at pages 369 and 370 (of : (1987)ILLJ221SC of the report, the Supreme Court came to the conclusion that the power of judicial review vesting in the High Court under Articles 226 and 227, did not suffer from any infirmity of the character which the order of the Administrative Tribunal suffered in view of the provisions of Clause (5) of Article 371-D inasmuch as whatever the High Court decided was binding on the State Government subject, of course, to right of appeal to the Apex Court and the State Government cannot, for any reason, set at naught the decision of the High Court. However, the power of judicial review conferred on the Administrative Tribunal was, by reason of the proviso to Clause (5) of Article 371-D, subject to the veto of the State Government. In the result the Supreme Court came to the conclusion that the proviso to Clause (5) of Article 371-D by which, power has been conferred on the State Government to modify or annul the final order of the Administrative Tribunal, is violative of the basic structure doctrine since it is that which makes the Administrative Tribunal a less effective and efficacious institutional mechanism or authority for judicial review and it is only by striking down that provision as being outside the constituent power of Parliament that Clauses (3) to (8) of Article 371-D can be sustained. In the result, the Supreme Court held that the proviso to Clause (5) of Article 371-D was unconstitutional as being ultra vires the amending power of Parliament.

50. The matter is further clarified by the decision of the Supreme Court in 'R.C. Poudyal v. Union of India', : [1993]1SCR891 . This was a case dealing with the non obstante clause in Article 371-F dealing with the special provisions with respect to the State of Sikkim. The Constitution bench was called upon to consider the validity of the provisions of Clause (f) of Article 371-F of the constitution and two constitutional questions of vital importance arose before the Apex Court (i) whether a seat can be earmarked at all in the Legislature of a State after its complete merger in India for a representative of a group of religious institutions to be elected by them, and (ii) whether seats can be reserved in favour of a particular tribe far in excess of its population. Dealing with the non obstante clause appearing at the beginning of Article 371-F, the Supreme Court observed that the power of the Parliament under Article 2 of the Constitution was limited by the fundamentals of the Indian constitutionalism and those terms and conditions which the Parliament may deem fit to impose cannot be inconsistent and irreconcilable with the foundational principles of the Constitution and cannot violate or subvert the constitutional scheme. It was held that the non obstante clause at the beginning of Article 371-F cannot be construed as taking Clause (f) of Article 371-F outside the limitations on the amending power itself. The provisions of Clause (f) of Article 371-F and Article 2 have to be construed harmoniously consistent with the foundational principles and basic features of the Constitution. It was held that whether Clause (f) has the effect of destroying a basic feature of the Constitution depends, in turn, on the question whether reservation of seats in the legislature based on ethnic group is itself destructive of democratic principle. But whatever be the merits of the contentions, the Apex Court said that it cannot be said the issues raised are non-justiciable. The plea of non-justifiability was, therefore, rejected. We find it convenient to reproduce para 70 of the said decision which appears at pages 1845 and 1846 of the report, as under :

'70. It is urged for the respondents that Article 2 of the Constitution empowers the Parliament, by law, to admit into the Union new States 'on such terms and conditions as it finds fit' and that these considerations involve complex questions of political policy and expedience; of international relations; of security and defence of the realm etc. which do not possess and present judicially manageable standards. Judicial response to these questions, it is urged, is judicial restraint.

The validity of Clause (f) of Article 371-F introduced by the Constitution (36th Amendment) Act, 1975 is assailed on the ground that the said clause provides for a reservation which violates 'one person one vote' rule which is essential to democracy which latter is itself a basic feature of the Constitution. The power to admit new States into the Union under Article 2 is, no doubt, in the very nature of the power, very wide and its exercise necessarily guided by political issues of considerable complexity many of which may not be judicially manageable. But for that reason, it cannot be predicated that Article 2 confers on the Parliament an unpredictable and unfettered power immune from judicial scrutiny. The power is limited by the fundamentals of the Indian constitutionalism and those terms and conditions which the Parliament may deem fit to impose cannot be inconsistent and irreconcilable with the foundational principles of the Constitution and cannot violate or subvert the constitutional scheme. This is not to say that the conditions * subject to which a new State or territory is admitted into the Union ought exactly be the same as those that govern all other States as at the time of the commencement of the Constitution.'

It is, however, urged that Article 371-F starts with a non obstante clause and therefore the other provisions of the Constitution do not limit the power to impose conditions. But Article 371-F cannot transgress the basic features of the Constitution. The non obstante clause cannot be construed as taking Clause (f) of Article 371-F outside the limitations on the amending power itself. The provisions of Clause (f) of Article 371-F and Article 2 have to be construed harmoniously consistent with the foundational principles and basic features of the Constitution. Whether Clause (f) has the effect of destroying a basic feature of the Constitution depends, in turn, on the question whether reservation of seats in the legislature based on ethnic group is itself destructive of democratic principle. Whatever the merits of the contentions be. it cannot be said the issues raised are non-justiciable.

In Mangal Singh v. Union of India, : [1967]2SCR109 this Court said :

'............. Power with which the Parliament is invested by Articles 2 and 3, is power to admit, establish, or form new States which conform to the democratic pattern envisaged by the Constitution; and the power which the Parliament may exercise by law is supplemental, incidental or consequential to the admission, establishment or formation of a State as contemplated by the Constitution, and is not power to override the constitutional scheme.'

Even if Clause (f) of Article 371-F is valid, if the terms and conditions stipulated in a law made under Article 2 read with Clause (f) of Article 371-F go beyond the constitutionally permissible latitudes, that law can be questioned as to its validity. The contention that the vires of the provisions and effects of such a law are non-justiciable cannot be accepted.

51. Finally, in 'L. Chandra Kumar v. The Union of India', : [1997]228ITR725(SC) the constitution Bench of seven learned Judges came to the conclusion that the power of judicial review over legislative action, which power was vested in High Courts under Article 226 and the Supreme Court under Article 32 of the Constitution, was an integral and essential feature of the Constitution, constituting part of its basic structure. Ordinarily, therefore, this power of the High Courts and the Supreme Court 'to test the constitutional validity of legislations can never be ousted or excluded, said the Apex Court. The Apex Court was dealing with the validity of Clause (2)(d) of Article 323-A as also the validity of Clause (3)(d) of Article 323-B of the Constitution seeking to exclude the jurisdiction of all Courts except the jurisdiction of the Supreme Court under Article 136 of the Constitution with respect to certain matters before the Administrative Tribunals. On behalf of the respondent Union of India, reliance was placed on the earlier decision of the Supreme Court in Sampat Kumar's case : 1986(23)ELT5(SC) (supra). However, on a reconsideration of the ratio of the earlier constitution bench decision in Sampat Kumar's case, the Supreme Court came to the conclusion, as under, in para 79 at page 628 and 629 (of J.T.) : (Para 78, at Pp. 1372-1373 of AIR SCW) of the report.

'79. The legitimacy of the power of Courts within constitutional democracies or review legislative action has been questioned since the time it was first conceived. The Constitution of India, being alive to such criticism has, while conferring such power upon the higher judiciary, incorporated important safeguards. An analysis of the manner in which the framers of our Constitution incorporated provisions relating to the judiciary would indicate that they were very greatly concerned with securing the independence of thejudiciary. These attempts were directed at ensuring that the judiciary would be capable of effectively discharging its wide powers of judicial review. While the Constitution confers the power to strike down laws upon the High Courts and the Supreme Court, it also contains elaborate provisions dealing with the tenure, salaries, allowances, retirement age of Judges as well as the mechanism for selecting Judges to the superior Courts. The inclusion of such elaborate provisions appears to have been occasioned by the belief that, armed by such provisions, the superior Courts would be insulated from any executive or legislative attempt to interfere with the making of their decisions. The Judges of the superior Courts have been entrusted with the task of upholding the Constitution and to this end, have been conferred the power to interpret it. It is they who have to ensure that the balance of power envisaged by the Constitution is maintained and that the legislature and the executive do not, in the discharge of their functions, transgress constitutional limitations. It is equally their duty to oversee that the judicial decisions rendered by those who man the subordinate Courts and tribunals do not fall foul of strict standards of legal correctness and judicial independence. The constitutional safeguards which ensure the independence of the Judges of the superior judiciary are not available to the Judges of the subordinate judiciary or to those who man Tribunals created by ordinary legislations. Consequently, Judges of the latter category can never be considered full and effective substitutes for the superior judiciary in discharging the function of constitutional interpretation. We. therefore, hold that the power of judicial review over legislative action vested in the High Courts under Article 226 and in this Court under Article 32 of the Constitution is an integral and essential feature of the Constitution, constituting part of its basic structure. Ordinarily, therefore, the power of High Courts and the Supreme Court to test the constitutional validity of legislations can never be ousted or excluded.'

In conclusion, the Supreme Court, in para 101, at pages 638, 639 (of JT (SC)) : (Para 99, at p. 1380 of AIR SCW) of the report, held as under :

' 101. In view of the reasoning adopted by us, we hold that Clause 2(d) of Article 323-A and Clause 3(d) of Article 323-B. to the extent they exclude the jurisdiction of the High Courts and the Supreme Court under Articles 226/227 and 32 of the Constitution, are unconstitutional. Section 28 of the Act and the 'exclusion of jurisdiction' clauses in all other legislations enacted under the aegis of Articles 323-A and 323-B would, to the same extent, be unconstitutional. The jurisdiction conferred upon the High Courts under Article 226/227 and upon the Supreme Court under Article 32 of the Constitution is part of the inviolable basic structure of our Constitution.'

52. In the light of the above decisions, we have no hesitation, whatsoever, in holding that the power of judicial review vested in the High Courts under Article 226 of the Constitution is a part of the basic and essential feature of the Constitution constituting part of its basic structure. By virtue of the non obstante clause appearing at the beginning of Article 371 of the Constitution, this Court is not precluded from considering the validity of a rule made by the State Government in exercise of its power under Article 162 of the Constitution; may be, that the rule has been made pursuant to the directives issued by the Governor under Article 371(2)(c) of the Constitution.

53. It appears to us that the non obstante clause is qua the President of India making an order with respect to the State of Maharashtra or Gujarat providing for any special responsibility of the Government for certain matters. It is true that the executive power of the State vests in the Governor as per Article 154 of the Constitution and has to be exercised by him either directly or through officers subordinate to him in accordance with the Constitution. Article 160 appearing in Part VI dealing with 'The States' provides for the President making such provision as he thinks fit for the discharge of the functions of the Governor of a State in any contingencies not provided in the said Chapter. Under Article 163 there has to be a Council of Ministers at the head to aid and advise the Governor in exercise of his function except in so far as he is by or under this Constitution required to exercise his functions of any of them in his discretion. In our view, the non obstante clause at the beginning of Article 371 of the Constitution applies only qua the President exercising the power of passing an order providing for any special responsibility of the Governor with respect to the State of Maharashtra and Gujarat. Such a non obstante clause, in our view, cannot insulate a rule made by the State Government in exercise of its powers under Article 162, may be on the directives issued by the Governor under Article 371(2)(c) from judicial review on the touchstone of Article 14 of the Constitution. Since both, the doctrine of rule of law enshrined in the equality clause under Article 14 and the power of judicial review of the High Courts under Article 226 of the Constitution have been held by the Supreme Court to be the integral parts of the basic structure of the Constitution, the non obstante clause, in our view, will not preclude this Court from exercising its powers of judicial review qua Rule 2 (b) of the Draft Rules of admission for the academic year 1997-98. Preliminary objection of non-justifiability of the rule is accordingly overruled.

54. Having thus, dealt with the preliminary objection raised by the Advocate General, we will now proceed to examine the validity of Rule 2(b) of the Draft Rules for 1997-98. It may be recalled that relying upon the various Supreme Court decisions particularly (i) : [1968]2SCR786 , (ii) : [1980]2SCR831 , (iii), : (1984)IILLJ481SC and (iv) : [1986]2SCR230 the earlier Full Bench had struck down Rule 4.1.2.1. For the sake of comparison, we may reproduce the Rules that have been framed from time to time in the recent past :

(A) The distribution rule for 1996-97 which has been held to be ultra vires Article 14 by the earlier Full Bench of M. B. Shah. C. J.. Patankar and Patel. JJ.

4.1.2.1. The Seats of 70 per cent open category and the seats reserved for backward classes available in the State will be pooled together and will be equitably distributed amongst all the University regions in the State in the proportion of population. In the process of distribution of seats the percentage of unconstitutional reservation will be maintained as scrupulously as possible.

(B) The distribution rule which was amended by the Government by issuing 'Government Resolution dated 23rd October, 1996 which was produced before the Nagpur Bench and which was not approved by the Nagpur Bench which directed the State Govt. to frame a new rule, reads as under :

'4.1.2.1. The open category seats for the University areas shall be 70% except that in the University areas where there are surplus seats available as compared to the other University areas the open category seats in such University areas shall be reduced to 60%. The total number of seats from the 70% open category and the seats reserved for 'backward' classes shall be divided in proportion to the population (as per 1991 census) in the University areas. The difference between the so calculated seats and the number of seats available, under 70% open category and backward class reservations shall be the basis for determining the surplus University areas.' (C) Distribution Rule which was framed vide notification dated 1st November, 1996 as per the directions issued by the Nagpur Bench on 31st October, 1996.

'4.1.2.1. The number of seats of various Medical Courses in the University areas i.e. 70% open category seats and seats reserved for backward classes shall be determined on the basis of the strength of 1991 census of population of University areas. In each of the University areas the surplus seats as arrived from the existing seats in a particular University area shall be allocated proportionately to the university area where there has been a deficiency. Against the surplus seats so determined, the students of other university areas where there is deficiencies would be entitled to be admitted, according to normal rules. While carrying the process of admission as far as practicable, due regard shall be given to the geographical proximity. The other rules relating to the reservation or allocation of seats to the category would be applicable to these admissions.' (D) The present distribution rule namely Draft Rule 2 (b) for the academic year 1997-98.

Rule 2(b) reads as under :

'2. BREAK-UP

After excluding the seats as provided in (a), (b) and (c) above, the remaining seats will be at the disposal of the Competent Authority and available for applicants of the State for admission in the manner hereinafter provided :--

(a) ... ..

(b) After the exclusion of the State Level seats mentioned in Rule 3(a) above the remaining 70% seats in the Government Colleges, Private Unaided Colleges from the Colleges of the Municipal Corporations will be pooled together and the number of seats out of the pooled seats allocable to the applicants from the areas of different Development Boards i.e. Vidarbha, Marathwada and rest of Maharashtra will be determined in proportion to the share of population of the respective region in the total population of the State, according to the 1991 Census. If the number of seats allocated in the above manner in 70 per cent category available within the area of particular Regional Development Board is less than the share of allocable seats determined in the manner indicated above, the deficit will be made good by providing the required number of seats from the Regions having a surplus.

55. As we have already indicated, the earlier Full Bench categorically held that Rule 4.1.2.1. for the academic year 1996-97 was violative of the equality clause enshrined under Article 14 of the Constitution. It has been specifically observed in para 9 of the detailed judgment of the earlier Full Bench delivered on 14th October, 1996, that no material was placed before the Court with regard to the regions of Vidarbha, and Marathwada being backward or underdeveloped. The distribution of seats was on the basis of population alone and what was done was to simply divide the medical seats pro rata on the basis of population. The only difference that we find in Rule 4.1.2.1. for the academic year 1996-97 and Rule 2(b) for the academic year 1997-98 is that as against university regions the distribution now is in three regions namely in each of the development Board regions of Vidarbha, Marathwada and rest of Maharashtra. The distribution is again on the basis of the share of the population of the respective regions in the total population of the State according to the 1991 census. What has been done again is a simple calculation of the total number of seats available in the State; deducting 15% for All India Reservation on the basis of All India Entrance Test, find out the balance of seats available; find out the seats per lac of population in the State and try to make uniform reservation all over the State namely in the three regions of Marathwada, Vidharbha and rest of Maharashtra on the basis of population alone. This is clear from the table printed at page 30 of the Rules which is Annexure K to the Draft Rules for the year 1997-98 as under :

Development Board.PopulationTotal seatsSeats per Lakh populationSeats RequiredSeats Existing(+) Surplus

(--) Deficit

Marathwada128,0104001.86316238--78Rest of Maharashtra487.37622552.7612031347+ 144Vidarbha173.9896102.08429363-- 66Total768.37532652.4719481948+ 144

We have compared the above table with the table that was placed before the earlier Full Bench to demonstrate the working of the old Rule 4.1.2.1, and we are satisfied that there is no difference in the basic approach namely; find out the total seats available in the State, arrive at the seats per lac of population and ensure that the seats are divided equally in proportion to the population of each of the three regions. While, in the rule of the last year the division was university regionwise, this year the division is development Board regionwise. A larger area has been identified which basis itself is doubtful. The Supreme Court has already indicated in para 6 of the Judgment in Nidamarti's case AIR 1986 SCC 1362 that there was no material to show that a particular region was in its entirety backward and particular region in its entirety advanced. We repeatedly asked the learned Advocate General as to what was the fresh material or data that was placed before the State Government while making the new rules. Our attention was invited to the report of the Dandekar Committee which had gone into the question of regional imbalance. That report is of April, 1984 and was already available with the Government when the Rules for 1996-97 were made. Our attention was invited to two charts forming part of the report of the Dandekar Committee, one dealing with the statistical data as far as healthservices are concerned and the other dealing with the statistical data as far as the educational services are concerned. The chart regarding health services merely indicates the number of M.B.B.S. seats, nursing seats, hospital-beds, per lac of population, health assistants, multi purpose workers, compounders and pharmacists, library and X-ray technicians, number of primary health centres etc. per lac of population based on the 1983-84 statistics whereas we are dealing with the rules for the academic year 1997-98. Even the data in the matter of educational services dealing with the number of primary schools, secondary schools, high schools, degree colleges, is based on 1983-84 statistics.

56. Our attention was then invited to a chart showing the indicators used by the Study group of Planning Board to determine backward districts of Maharashtra. The statistics mentioned in the said chart are of 1-1-1993. Emphasis was led on the figures appearing in Column 7 of the said chart dealing with dispensaries, public health units and public health centres per lac of population as on 1-1-1993. Obviously this material was available to the State Government when it framed the Rules for the last year. The figures worked out per lac of population, as far as dispensaries, public health units and public health centres are concerned, indicate that in Konkan area it was 22.71 including greater Bombay whereas excluding greater Bombay it was 22.39. For Nasik Division it was 13.76, for rest of Maharashtra excluding greater Bombay namely Pune Division, it was 14.21. For the Aurangabad Division it was 10.97; for the Amrawati Division it was 17.17 and for the Nagpur Division it was 15.29. The overall average for the State worked out to 14.97 and excluding greater Bombay it worked out to 14.10. It is difficult to appreciate how such a chart dealing with the number of dispensaries, public health units and public health centres per lac of population as on 1-1-1993 can furnish a valid basis for the new rule for 1997-98. We may refer to the Order passed by the Supreme Court on 26th September, 1996 in the SLP filed against the decision of the earlier Full Bench, which SLP was permitted to be withdrawn. The Supreme Court has categorically stated as under :--

'We impressed upon the Solicitor General that since the bail is in the court of the State of Maharashtra, it would be most appropriate that the State looks into all the problems that have surfaced since the making of the rule and on the basis of statistical evidence available with it. it restructure the rule so that it operates in a just and reasonable manner so far as the large body of students' population is concerned'

57. In this behalf, we wish to refer to the report of the Joint Committee of Development Boards on technical education and vocational training, which committee was set up by the Governor in exercise of his powers under Article 371 of the Constitution. At page 3 of the report it has been categorically observed that for ensuring equitable access to technical education students from different regions, there was no escape from creating proportionate facilities in the respective regions in the shortest time span. The relevant observations are as under :

'This, in effect, means that for ensuring equitable access to technical education to students from different regions, there is no escape from creating proportionate facilities in the respective regions in the shortest time span.'

'While agreeing entirely, the representative of the Development Board for the rest of Maharashtra felt that justice could be provided to the deficit Regions by creating additional seats in those regions rather than by taking away seats from the surplus Regions thereby causing discontent amongst the students in those Regions.'

Thereafter dealing with medical education in particular it has been observed in para 7.4 at page 9 of the report as under :

'The Committee takes note of the difficulties involved in creating additional seats in medical courses. Nevertheless, looking at the importance of medical education, the Committee, therefore, recommends that the Government be pleased to issue a directive to the Government to make special efforts for removing this backlog by creating additional seats in the respective Regions during next years.'

Then coming to the recommendations in para 10 of the report, at page 15, it has been categorically stated, in recommendation No. 3, that the backlog in respect of seats in medical education be removed over a period of next three years and the Government be directed to earmark Rs. 40 crores for this purpose over and above the normal plan allocation for the next three years. In para 4 the further recommendation is that the medical and engineering seats at the post graduate level throughout the State should be pooled together by the respective Directors and Authorities named by them. They should, thereafter hold respective common entrance test and fill up these seats strictly on the basis of results of these seats. Recommendation 7 says that while creating new seats for removal of backlog, the concerned department should consult the respective Development Boards regarding type of courses to be introduced and the location of new institutions. We may, for the purpose of proper appreciation, reproduce all the 10 recommendations verbatim, as under :

'10.0 RECOMMENDATIONS

To summarise, the committee recommends that the Governor of Maharashtra kindly consider issuing directives under Article 371(2) to the Government along the following lines :

(1) On the lines of the system of admissions already being followed by the Government for private professional colleges, 30% seats in all Government, Government aided and University conducted degree colleges be filled up on the State lever competitive merit while reserving 70% seats for the students belonging to the universities in whose areas of operations these institutions are located. 85% seats of Dr. BabasahebAmbedkar Technological University, Lonere, District Raigad be filled up on State level competitive merit while reserving 15% seats for the Konkan districts of Ratnagiri, Raigad, Sindhudurg and non-corporation area of Thane district by way of special dispensation.

(2) The Government should remove the backlog in respect of degree education in Engineering, Pharmacy and Architecture during 1997-98 and that in respect of Polytechnics and Industrial Training Institutes over the next 3 years. Since the removal of this backlog is expected to cost Rs. 250 crores, Government be directed under Article 371(2) to earmark the amount in its Plan budget over and above the normal plan allocation over the next 3 years.

(3) The backlog in respect of seats in Medical Education be removed over a period of next 3 years and the Government be directed to earmark Rs. 40 crores for this purpose over and above the normal plan allocation over the next 3 years.

(4) The available Medical and Engineering seats at the post graduate level throughout the State should be pooled together by the respective Directorates or Authorities named by them. They should thereafter hold respective Common Entrance Tests and fill up these seats strictly on the basis of the results of these tests.

(5) The backlog in respect of agriculture related courses be removed during the next 3 years and the Government be directed to earmarked Rs. 50.0 crores for this purpose over and above the normal plan allocation.

(6) While sanctioning new private self financing institutions of the types discussed in this report the Government should invariably see that the opening of new additional institutions leads to reducing the backlog rather than increasing it.

(7) While creating new seats, for removal of backlog the concerned department should consult the respective development boards regarding type of courses to be introduced and the location of new institutions.

(8) For improving the quality of technical education in engineering sector, the Government should set up one Technical Teachers Training Institute in each of the three Regions.

(9) The same principles regarding removal of backlog should apply to all professional courses conducted or supervised by any of the departments of the Government which may have been left out from this report.

(10) The concerned departments should send annual report to the Governor regarding the backlog of seats existing as on 1st of July of that year in comparison with the bench-mark figures mentioned in the Statistical tables included in this report.'

A perusal of the above report and the recommendations in particular would show that what was really contemplated was that the backlog in respect of the seats in medical education, if any, should be removed over a period of next three years and the Government was directed to earmark, Rs. 40 crores. A common entrance test was to be held to fill up the seats strictly on the basis of merit. It is specifically stated at page 3 that justice could be provided to the deficit region by creating additional seats in those regions rather than by taking away seats from the surplus regions thereby causing discontent amongst the students in those regions. In view of the above, we do not find anything in the Draft New Rules towards complying with these recommendations.

58. Apart from New rule 2(b) being violative of Article 14 of the Constitution, for the same reasons for which old Rule 4.1.2.1 was held to be bad by the earlier Full Bench, we find that in the actual distribution of scats, the maximum limit of 70% for a region has not been adhered to. If one reverts to the table given in Annexure-K on printed page 30 of the Rules (reproduced in para 55 above) it will transpire that for Marathwada Region, out of total 400 scats, 15% will go to All India Entrance Test. This means, deducting 60 seats out of 400, 340 will be the seats available in the Marathwada Region. The seats existing are 238. If the seats are raised to 316, as proposed, by admitting 78 students from Marathwada region in the rest of Maharashtra region, to achieve the bench mark of 2.47 seats per lac of population, 316 seats would be about 93% of 340 seats, which is far in excess of 70% permissible as per the Rule enunciated in Nidamarti's case : [1986]2SCR230 . The seats existing today in Marathwada region namely 238 are 70% of 340 seats. As far as Vidarbha Region is concerned, the total seats are 610. Deducting 15% for All India Entrance Test, namely 91 seats, the balance available is 519 seats. The existing seats namely 70% of 519, are 363 seats. However, to achieve the bench mark of 2.47 seats per lac of population it is proposed to raise the Vidarbha region seats by 66 to make it 429 as mentioned in the table. 429 seats would be 83% of 519 sweats. This is impermissible in view of the 70% rule laid down in Nidamarti's case. It was contended before us by the learned Advocate General that while in Marathwada only 238 seats are available the alleged deficit of 78 would be made up by admitting those 78 students in the colleges, not in the Marathwada Region, but in the rest of Maharashtra region. Similarly, while in the Vidarbha region the seats available are only 363, the alleged deficit of 66 seats would be made up by admitting 66 students from Vidarbha region not, in the Vidarbha region, but in the rest of the Maharashtra region. This is exactly contrary to what has been recommended in the Report of the Joint Committee of the Development Boards reproduced in Para 57 above.

59. The above table forms part of the draft rules for admission for the academic year 1997-98 as per the Notification issued on 3rd March, 1997. However, as a result of addition of some seats in some Colleges and reduction of certain seats in some other Colleges, the table has undergone a change and during the course of the arguments before us, the learned Advocate-General has made available to us the revised table which reads as under :--

STATEMENT SHOWING DISTRIBUTION OF SEATS OF MEDICAL COLLEGES-

GOVERNMENT + PRIVATE + MUMBAI MUNICIPAL CORPORATION COLLEGES.

Development Board.PopulationTotal seatsSeats per Lakh populationSeats Requir.Seats Exist:(+) Surp.

(--) Def.

Marathwada128,0104502.09305267(--)38Rest of Maharashtra487,37621052.5811621257(+)95Vidarbha173,9896002.05414357(--) 57789,37531552.2418811881(+) 95

(--) 95

It would be evident from the table that out of 450 seats of Marathwada Region, deducting 15% seats for All India Entrance Test, the balance available would be 382. The seats existing viz. 267 are 70% of 382. However, it is proposed to raise the seats for Marathwada Region to 305 by admitting 38 students from Marathwada Region in the Rest of Maharashtra Region. This would take the tally of Marathwada seats to 305, which is 79.8% of the total available seats of 382. This, in our view, is wholly impermissible in view of the law laid down by the Supreme Court in Nidamarti's case : [1986]2SCR230 (supra) and followed by the earlier Full Bench. Similarly, coming to the Vidarbha Region, the revised table shows that the total seats available are 600. Deducting 15% for All India Entrance Test, the balance seats available would be 510. The seats existing are 357 which works out to 70% of 510. However, it is proposed to allot 414 seats to the Vidarbha Region by admitting 57 students from the Vidarbha Region in the Rest of Maharashtra Region. This tally of 414 seats is 81% of 510 seats. Since it is in excess of the permissible limit of 70%, 'it would fall foul of the ratio of the Supreme Court decision in Nidamarti's case, followed by the earlier Full Bench. Conversely, for the Rest of Maharashtra Region, the seats . available as per revised table are 2105. Deducting 15% for the All India Entrance Test, the balance of seats available would be 1789. The seats existing are 1257, which works out to 70% of 1789. However, as a result of 38 students from Marathwada Region and 57 students from Vidarbha Region being admitted in the Rest of Maharashtra Region, the Rest of Maharashtra seats will be reduced by 95 and, thus, as against the existing seats of 1257 for the Rest of Maharashtra Region, the total would come down to 1162. This figure of 1162 is barely 64.9% of 1789. Such an exercise, in our view, is wholly impermissible and has been held to be so by the earlier Full Bench in its short order dated 29th August, 1996 reproduced above as also in para 12 of the detailed judgment dated 14th October, 1996 delivered by the earlier Full Bench reproduced above. It has been held by the earlier Full Bench in Para 12of the short order that under the old Rule 4.1.2.1 for 1996-97,70% seats were reserved on university-wise basis and, thereafter, further reservation for the students of certain university on the basis of university-region population would certainly be more than 70% because (i) in their own region the reservation would be 70% plus (ii) certain more seats which would be reserved for them in other universities would carry the reservation beyond 70%. This was held to be impermissible in view of the ratio in Nidamarti's case. Similar observations are to be found in para 12 of the detailed judgment dated 14th October, 1996 of the earlier Full Bench wherein it was observed that the maximum reservation of 70% of seats for students who have passed examination from that university was also made by the impugned Rule (last year's rule). What was sought to be done was that apart from. 70% reservation, additional seats were reserved in some universities for students of other universities. The earlier Full Bench also observed in para 12 that there was no data to indicate that distribution of seats on university-wise population was based on any study or report of any committee that a particular region was backward and that there were no educational facilities available in that region and to ameliorate the said condition something was done by the State. Thus, in our view, the new Rule 2(b) suffers from the same vice as the earlier Rule 4.1.2.1 suffered. By merely mentioning that the population would be the population based on the 1991 census, the arbitrariness in the rule has not been removed. Indeed, before the earlier Full Bench, the learned Additional Advocate General had placed another chart demonstrating that the bench mark was arrived at on the basis of the population as per the 1991 census and taking the said figure of population for dividing the seats. Treating that as the bench mark, seats were distributed in all the university areas. This year they have been distributed in the three regions on the same basis namely population. Admittedly, the basis is only population of a particular region. No other data is placed before us.

60. We are, thus, if the view that New Draft Rule 2(b) violates Article 14, the ratio of the Supreme Court decision in Nidamarti's case : [1986]2SCR230 , as also the ratio of the earlier Full Bench decision which decision is binding upon us.

61. Indeed, if a smaller area like the university area was held to be incapable of being identified as wholly backward or wholly forward, as per the observations in para 6 of the judgment in Nidamarti's case : [1986]2SCR230 it is difficult to see how a larger region of a Development Board can be classified as wholly backward or wholly advanced.

62. It was contended by Shri A.V. Anturkar and Shri M.I. Patil that as far as admission to medical colleges and the field of medical education is concerned, the directives given by the Governor purporting to act in exercise of his powers under Article 371(2)(c) are wholly ultra vires the said provisions. The argument is that Sub-clause (c) of Clause 2 of Article 371 deals with 'an equitable arrangement providing adequate facilities for technical education and vocational training, and adequate opportunities for employment in service under the control of the State Government, in respect of all the said areas, subject to the requirements of the State as a whole'. Our attention was then invited to the wording of Entry 25 in List III concurrent list in 27lh Schedule to the Constitution dealing with the distribution of legislative powers between the Parliament and legislatures of the States. The said Entry 25 reads as under :

''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.'

What has been emphasised before us is that the words 'technical education' in Entry 25 clearly distinguish medical education from it. The words are 'education including technical education, medical education and universities'. It is, therefore, contended that if medical education has been treated as a separate subject from technical education for legislation in the concurrent list, the words 'technical education' appearing in Article 371(2)(c) can by no stretch of imagination include 'medical education'. Similarly, it is contended that the words vocational training appearing in Article 371(2)(c) can have no reference to the medical education with which the impugned Draft rules are concerned. Reliance was also placed on the definition of the words 'technical education' appearing in Clause (g) of Section 2 of the All India Council for Technical Education Act, 1987. An attempt was further made to rely upon the principles of interpretation of statutes to contend that in construing an Act, the question is not what was supposed to have been intended but what has been actually said.

63. In reply to the aforesaid contentions, the Advocate General and Shri Mohta contended that the words 'technical education' used in Article 371(2)(c) must, in the context, be deemed to include medical education. In our view, it is well settled that the words must be given their natural meaning unless they are words of art specially defined in the statute. The Constitution does not contain a definition of the words 'technical education'. It is no doubt true that in Entry 25 of List III the words used are 'education including technical education, medical education and universities'. However, this contention need not detain us any longer since it is clear from the observations of the Supreme Court in the following cases that the words 'technical education' would include 'medical education' in its sweep.

64. In D.N. Chanchala v. State of Mysore, : AIR1971SC1762 at the end of Para 22, at page 302 (of SCC) : (at p. 1770 of AIR) of the Report, the Supreme Court has observed as under :--

'Such a classification has a reasonable nexus with the object of the rules, namely, to cater to the needs of candidates who would naturally look to their own university to advance their training in technical studies, such as medical studies. In our opinion, the rules cannot justly be attacked on the ground of hostile discrimination or as being otherwise in breach of Article 14.'

The above observations have been reiterated in Dr. Pradeep Jain v. Union of India, : (1984)IILLJ481SC corresponding to : (1984)IILLJ481SC . In Para 17 of the judgment in Dr. Pradeep Jain's case at pages 681 to 684 of SCC (at Pp. 1435 to 1437 of AIR). Supreme Court has quoted with approval its observations in D. N. Chanchala's case referred to above. Indeed, Para 22 of the Judgment in D. N. Chanchala's case at pages 301 to 302 of SCC (at Pp. 1769 and 1770 of AIR), has been reproduced with approval in Dr. Pradeep Jain's case.

65. Again, recently, in Anant Madaan v. State of Haryand, : AIR1995SC955 , the Supreme Court was considering the validity of the eligibility criteria for the year 1994 for the entrance test to be conducted by the State of Haryana for the purpose of admission to the Medical and Dental colleges in the State of Haryana. In para 9 of the judgment, at page 957 of the report, the Supreme Court considered its earlier view in the case of Jagdish Saran v. Union of India, : [1980]2SCR831 and observed as under :

'9. In the case of Jagdish Saran v. Union of India, : [1980]2SCR831 , this Court reiterated that regional preference or preference on the ground of residence in granting admission to medical colleges was not arbitrary or unreasonable so long as it was not a wholesale reservation on this basis. This Court referred to various 'reasons why such preference may be required. Forexample. the residents of particular region may have very limited opportunities for technical education while the region may require such technically qualified persons. Candidates who were residents of that region were more likely to remain in the region and serve their region if they were preferred for admission to technical institutions in the State, particularly medical colleges.

In view of the above decisions of the Supreme Court, we have no hesitation in rejecting the contention of Shri Anturkar and Shri Patil that the words 'technical education' used in Article 371(2)(c) cannot include 'medical education'.

66. In me fight of the above discussion, we are of the view that the new Draft Rule 2(b) for the academic-year 1997-98 suffers from the same vice as the bid Rule 4.1.2.1 for the academic year 1996-97 suffered viz. (i) arbitrariness; being violative of Article 14 of the Constitution, (ii) falling foul of the ratio of the Supreme Court decision in Nidamarti's case : [1986]2SCR230 (supra) and (iii) being contrary to the ratio of the decision of the earlier Full Bench of this Court (supra). We, accordingly, strike down Rule 2(b) of the Draft Rules for the academic year 1997-98 as unconstitutional.

67. Since we have struck down Rule 2(b) in the draft Rules for the academic year 1997-98, having regard to the urgency of the matter, for which we have undertaken the exercise of having the Draft Rules placed before us for consideration so that the students seeking admission for the year 1997-98 do not suffer in the same manner as the students of the last academic year have suffered, we direct the State Government to frame appropriate rule in place of draft Rule 2(b) within a period of three weeks from today.

PART III

Whether the Medical and Dental Colleges conducted by the Bombay Municipal Corporation and the Thane Municipal Corporation are governed by the Rules of Admission framed by the State Government in exercise of its powers under Article 162 of the Constitution.

A.V. Savant, J.

68. Writ Petition No. 830 of 1995 has been filed by the Municipal Corporation of Greater Bombay for relief that the Government Resolution dated 5th May, 1994 incorporating the rules for admission to the Medical and Dental Colleges to the extent the same applies to the Colleges run by the Municipal Corporation of Greater Bombay is illegal and void. When this Petition was initially heard, the Division Bench had issued Rule on 5th June, 1995 and interim relief in terms of prayer (c) was granted restraining the State of Maharashtra from applying the Resolution dated 5th May, 1994 insofar as the Colleges conducted by the Municipal Corporation were concerned. Later on, however, in Writ Petition No. 3260 of 1996 filed by a freedom fighter Shri Govindbhai Shroff at Aurangabad, the Aurangabad Bench passed an order dated 22nd July, 1996 directing that the 400 seats in the Medical Colleges run by the Bombay Municipal Corporation were liable to be included in the poor of seats. We are now concerned with the Notification issued on 3rd March, 1997 notifying the admission rules for the academic year 1997-98. Rule 2(b) reproduced above specifically says that 'after the exclusion of the State Level seats mentioned in Rule 3(a) above the remaining 70% seats in the Government Colleges, Private Unaided Colleges from the Colleges of the Municipal Corporations will be pooled together. . . .' The contention raised before us on behalf of the Petitioner-Corporation is that 400 seats in the Municipal Medical and Dental Colleges cannot be pooled together for admission to the Medical Colleges in the State.

69. Shri Bharucha, learned Counsel for the Petitioner has invited our attention to the scheme of the provisions of the Bombay Municipal Corporation Act, 1888. He contended that the Municipal Corporation is an autonomous body and has all along been framing its rules and guidelines for admission to the Medical Colleges and Dental College. In support of the contention that the Bombay Municipal Corporation is an autonomous body entitled to frame rules for admission to its Medical Colleges, our attention has been invited to the provisions of Section 5 of the Corporation Act which lays down that the Corporation consists of elected and nominated councillors and has been incorporated as a body corporate with perpetual succession and common seal. Corporation, he submits, is not a department of the Government. Reliance was then placed on the provisions of Section 61 of the said Act setting out the mandatory duties. Clause (gg) of Section 61 deals with establishing and maintaining public hospitals and dispensaries and carrying out other measures necessary for public medical relief. Under Section 63(b), he points out, the Corporation may, in its discretion, provide for the furtherance of educational objects other than primary education. Relying upon this provision, it was suggested that the Petitioner-Corporation runs the Medical Colleges as a part of the discretionary duties of the Corporation. It was then contended that Section 62BB reserves the powers in the State Government to give to the Corporation all such directions as it considers necessary in respect of subjects, curricula, text books and standards of teaching in primary schools vesting wholly or partly in the Corporation and the Corporation is obliged to comply with such directions. Relying upon the provisions of Section 64(3) of the Corporation Act, it was contended that the rules for admission had been framed in pursuance of the executive power of the Commissioner under Sub-section (3) of Section 64 of the Act. Our attention was also invited to the provisions of Sections 79, 80 and 87 to contend that the Corporation has complete autonomy in respect of the subjects mentioned therein such as its officers and servants, restriction of employment of permanent officers and servants and powers of the Corporation as to acquisition of property. It was finally contended that the Corporation manages its affairs from out of its own funds raised essentially from the taxes levied by the Corporation and that it does not get any grant from the Government.

70. As against this, Shri B.P. Apte the learned Additional Advocate General contended that the funding of the Medical Colleges by the Corporation is entirely irrelevant to the question as to whether the rules framed by the State Government under Article 162 should apply or not. His contention is that there is no power in the Municipal Commissioner to frame rules under Section 64(3) of the Act and the Corporation could only frame bye-laws in the manner prescribed in Section 461 of the Corporation Act. He further contended that in view of the provisions of Section 463, no bye-law shall have any validity unless and until it is confirmed (in the case of a bye-law made under Clause (s) of Section 461, by the Central Government, and in the case of any other bye-law by the State Government). Admittedly, no such bye-laws regulating admission to the Medical Colleges have been made and no such sanction has been obtained under Section 463 of the Act. It was further contended that the rules framed by the State Government in exercise of its powers under Article 162 of the Constitution will govern the field and must override the guidelines issued by the Corporation.

71. In reply to the contention raised on the provisions of Section 61(gg), it was contended that Clause (gg) of Section 61 has no relevance to imparting medical education and it only deals with the duty of the Corporation to establish and maintain public hospitals and dispensaries and carrying out other measures necessary for public medical relief.

72. We will first deal with the judgments on which Shri Bharucha sought to place reliance in support of his contentions. In Writ Petition No. 2761 of 1987, Sujata Chour v. Municipal Corporation of Greater Bombay decided by a learned single Judge of this Court on 8th July, 1988, the question which arose for consideration was whether the Petitioner who had not passed H.S.C. Examination from an institution located within the academic jurisdiction of the University of Bombay could get admission to the Medical Colleges run by the Bombay Municipal Corporation. The Petitioner's application was turned down since she had passed H.S.C. Examination from Nashik in the academic year 1986-87. On behalf of the Corporation, it was contended that it was primarily interested in providing education facilities to local inhabitants. The rule requiring a student passing H.S.C. Examination from an institution located within the academic jurisdiction of the Bombay University was held to be not violative of Article 14 of the Constitution. In this view of the matter, the Writ Petition was dismissed. In our view, the question that has been canvassed before us as to the primacy of the rules framed by the State Government in exercise of its powers under Article 162 of the Constitution was never raised in W.P. No. 2761 of 1987 and no such question was decided. The learned Judge was only called upon to consider the validity of the rule requiring that a student seeking admission in the Colleges run by the Bombay Municipal Corporation ought to have passed the qualifying examination from an institution located within the academic jurisdiction of the Bombay University. The contentions that have been canvassed before us did not arise and hence, in our view, the judgment dated 8th July, 1988 in W.P. No. 2761 of 1987 is of no assistance to Shri Bharucha.

73. Our attention was then invited, to a judgment dated 1st February, 1990 by a learned single Judge of this Court in Writ Petition No. 220 of 1990. The challenge in that petition was to the rules dated 6th January, 1990 framed by the Corporation for admission to the Post-graduate Medical Courses, It is true that the contention was raised that the rules framed by the State Government dated 10th April, 1989 were binding on the Bombay Municipal Corporation. It was contended on behalf of the petitioner that the rules framed by the Government had the force of law since they were made in exercise of the powers under Article 162 of the Constitution of India and the Bombay Municipal Corporation was an instrumentality of State within the meaning of Article 12 of the Constitution. It was contended that the rules of admission framed by the State Government under Article 162 of the Constitution were binding on the Corporation. Reliance was placed by the Petitioner on the judgment of the Supreme Court in Raj Sahib Ram Jawaya Kapur v. The State of Punjab, : [1955]2SCR225 and V. R. Potdar v. State of Maharashtra, : AIR1983Bom76 (FB). However, the learned Judge disposed of the contention in the following words :--

'In my opinion, there is much substance in the contention raised by Mr. Bharucha and the rules framed by the State Government need not be followed by the Bombay Municipal Corporation.'

In our view, the contentions that have been raised before us were not raised before the learned single Judge who had, therefore, no occasion to consider the matter in the light of what has been brought to our notice. It is true that in W.P. No. 436 of 1990 decided by the same learned single Judge on February 20, 1990, he preferred to follow his earlier view in W.P. No. 220 of 1990 and dismissed the petition. We do not think that the judgment in Writ Petition No. 220 of 1990 or W.P. No. 436 of 1990 support the Petitioner's contention in the light of the precise arguments that have been advanced before us.

74. Shri Bharucha also sought assistance from the judgment of the Supreme Court in the matter of Municipal Corporation of Greater Bombay v. Kalpana Kamble, : (1989)IILLJ1SC . This was access where the Government had passed Resolution on 23rd May, 1974 indicating policy for its employees regarding reservation of posts for backward classes while making promotions. The Corporation had passed a resolution on 12th September, 1975 adopting the said policy for its employees with effect from 23rd May, 1974. However, the Corporation decided that the policy in the Government Resolution dated 23rd May, 1974 cannot have any effect on the promotions which had already been made prior to 12th September, 1975 because those promotions had been made in accordance with the prevalent rules and were not subject to any future resolution which the Corporation would make. It was in these circumstances that the Supreme Court held that the resolution would apply to the Municipal employees only from the date on which it was adopted by the Corporation for its own employees. We do not think that the ratio of the Supreme Court decision in Kalpana Ramble's case can be of any assistance to the Petitioner.

75. Turning to the provisions of Chapter III, of the B. M. C. Act, it is not possible for us to accept the contention that conducting Medical Colleges and imparting medical education would form part of the obligatory duties of the Corporation enunciated in Clause (gg) of Section 61 of the Act. 'Carrying out necessary measures for public medical relief may for instance, include establishing primary health Centres and running of ambulances. But, in our view, the clause is not wide enough to include imparting of medical education. It is true that under Section 63(b), the Corporation has a discretionary duty to provide for matters such as 'furtherance of educational objects' but in the face of specific rules framed by the Government under Article 162 of the Constitution, it is not possible for us to hold that the Rules or guidelines issued by the Corporation would fall under Clause (b) of Section 63 of the Corporation Act. In our view, the rules framed by the Government in exercise of its powers under Article 162 of the Constitution would override any such guidelines issued by the Corporation in furtherance of its discretionary duty, even assuming that imparting of medical education fell within the ambit of Clause (b) of Section 63 of the Act.

76. It cannot be forgotten that the Governor had given directives in exercise of his powers under Article 371(2)(c) of the Constitution. It was in pursuance of the said directives that the State Government has framed rules for admission under Article 162 of the Constitution. We do not find anything in the provisions of Sub-section (3) of Section 64 empowering the Municipal Commissioner to frame rules which can override the rules framed by the State Government in exercise of its powers under Article 162 of the Constitution. As indicated earlier, the Corporation could possibly have resorted to making bye-laws under Section 461 and obtained sanction of the Government under Section 463. No such procedure has been followed by the Corporation in the matter of making bye-laws governing admission to the Medical Colleges conducted by it. In the absence of any bye-laws having the sanction of Section 461 read with Section 463 of the Corporation Act, we are of the view that the rules framed by the State Government under Article 162 would hold the field.

77. In our view, the matter is no longer res integra, in view of the observations of the Supreme Court in the case of Dr. Dinesh Kumar v. Motilal Nehru Medical College, Allahabad, : AIR1985SC1415 . The directions issued by the Supreme Court in the case of Dr, Pradip Jain v. Union of India, : (1984)IILLJ481SC and the earlier decision in the case of Dr. Dinesh Kumar, : AIR1985SC1059 were sought to be clarified. In this case while issuing necessary clarification the Supreme Court considered the arguments advanced by Shri Damania on behalf of the Bombay Municipal Corporation and the contention that the earlier judgment of the Supreme Court in Pradeep Jain, : (1984)IILLJ481SC and in the earlier case of Dr. Dinesh Kumar, : AIR1985SC1059 was not binding on the Medical Colleges run by Bombay Municipal Corporation was in terms rejected by the Supreme Court with the following observations in para 3 at page 1416 of the report.

para 3 :

'3. Mr. Damania appearing on behalf of the applicants in CPM No. 24472/35 has sought clarification from the Court whether the directions given by us earlier in our judgment are also binding on the Medical Colleges run by the Municipal Corporations. every Municipal Corporation is a local authority and hence a State within the meaning of Article 12 of the Constitution and therefore Medical Colleges run by Municipal Corporation are bound by the directions given by us.'

(Emphasis provided)

In view of the above, there is no doubt that the Bombay Municipal Corporation is a State within the meaning of Article 12 of the Constitution as held by the Supreme Court. The statutory rules framed by the State Government in exercise of its powers under Article 162 of the Constitution must, therefore, hold the field. The guidelines issued by the Commissioner cannot override such statutory rules in their application to the Medical Colleges run by the Corporation. Accordingly, the Petitioner's contention that it is entitled to frame its own rules and is not bound by the Rules framed by the State Government under Article 162 is rejected.

78. One more aspect of the matter may be mentioned. In the scheme framed by the Supreme Court in Unni Krishnan, J.P. v. State of Andhra Pradesh, : [1993]1SCR594 , it has been provided in para 170(4) at page 2248 as under :--

'4. No professional college shall call for applications for admission separately or individually. All the applications for admission to all the seats available in such colleges shall be called for by the competent authority alone, along with applications for admission to Government University colleges of similar nature. For example, there shall be only one notification by the competent authority calling for applications for all the medical colleges in the State--and one notification for all the engineering colleges in the State and so on. The application forms for admission shall be issued by the competent authority (from such offices, centres and places as he may direct). The application form shall contain a column or a separate part wherein an applicant can indicate whether he wishes to be admitted against a payment seal and the order of preference, up to three professional colleges.'

It is true that the scheme in its entirely as framed by the Supreme Court in Unni Krishnan's case was applicable to the private colleges which were profiteering out of medical education and had made business out of it. The Court was concerned with such private educational institutions which were receiving large amounts by way of capitation fees without providing for the necessary infrastructure. The essence of the judgment in Unni Krishnan's case has been summed up by the Supreme Court itself in a subsequent decision viz. Institute of Human Resources Development v. T.R. Rameshkumar, : AIR1995SC1587 in one sentence: 'The essence of Unni Krishnan case can be summed up in one sentence viz. There should be no commercialisation or profit making by private educational institutions.' However, the above quoted para 170(4) shows that as far as application of the scheme is concerned, it would not apply to the Government Colleges or University Colleges. But as far as the process of admission is concerned, there can be no objection to their being included in the admission process since it contemplates pooling together of admission seats for the purpose of centralised admissions. Thus apart from the observation of the Supreme Court in Dincshkumar's Case reproduced above, we are of the view that para 170(4) of the scheme framed by the Supreme Court in Unni Krishnan's case : [1993]1SCR594 militates against Shri Bharucha's contention that the rules framed by the State Government in exercise of its powers under Article 162 can have no application to the medical colleges conducted by the Municipal Corporation.

79. Having dealt with the case of BombayMunicipal Corporation we will turn to the ThaneMunicipal Corporation which is the Petitioner inWrit Petition No. 4585 of 1996. It runs onemedical college at Thane, viz. 'Rajiv GandhiMedical College', Thane. Shri R.S. Apteappearing for the Petitioner adopted the argumentsof Shri Bharucha which we have already dealtwith above. There is, however, one additionalfeature of the medical college run by the ThaneMunicipal Corporation which clearly indicatesthat the rules framed by the State Governmentunder Article 162 will be binding on the ThaneMunicipal Corporation. In the letter dated 9-6-1992 issued by the State Government grantingpermission to the Thane Municipal Corporationfor opening the said medical college certainconditions such as number of scats, eligibilitycriteria, standard of instructions, etc. have beenlaid down. Condition 5(c) specifically stales thatwhatever be the rules in the matter of medicaleducation, the same would be binding to theThane Municipal Corporation. The copy of theletter in Marathi has been annexed to the petitionat Exh. A. We may reproduce a free translation ofthe relevant Clause 5(c) as under :-

'Whatever be the rules in the matter of medical education and whatever rules would come into force in future, it would be obligatory on the part of the medical college to enforce them.'

Thus, there is no scope for the Thane Municipal Corporation to contend that the rules framed by the State Government under Article 162 would not be binding on it. Accordingly, we reject the contention of Shri R.S. Apte.

PART IV

Whether the Medical College and Dental College conducted by Bharati Vidyapeeth, Pune is governed by the rules of admission framed by the State Government in exercise of its powers under Article 162 of the Constitution.

P.S. Patankar, J.

80. Writ Petition No. 3238 of 1996 is filed by Bharati Vidyapeeth which is conducting several colleges, which include Bharati Vidyapeeth's Medical College, Pune and Bharti Vidyapeeth's Dental College and Hospital, Pune. The aforesaid two colleges and certain other colleges conducted by the aforesaid Bharati Vidyapeeth namely College of Ayurved, Homeopathy Medical College and College of Nursing, by a notification dated 26th of April, 1996, issued by the Ministry of Human Resources Development (Department of Education), Government of India, have been conferred with the status of 'deemed university' under Section 3 of the University Grants Commission Act, 1956.

81. As noted the State Government has framed rules for admission to Medical and Dental Colleges for the year 1996-97whereby the aforesaid colleges run by Bharati Vidyapeeth were included in the admission process to be controlled by the Competent Authority. By the present petition, petitioner, Bharati Vidyapeeth has taken exception to its inclusion in the admission process to be controlled by the Competent Authority established by the State Government. By an interim order passed on the 15th of July, 1996, inclusion of the aforesaid colleges in the admission process of the State Government was stayed. The State Government, in the draft rules for admission for the academic year 1997-98 has once again included the aforesaid colleges in the admission process of the State Government.

82. Shri Anturkar, the learned counsel appearing for the petitioner, has submitted that the colleges conducted by the petitioner have been conferred the status of 'deemed university'. The State Government, in the circumstances, cannot arrogate to itself the function of regulating admissions as the same can be done only by framing rules under Section 65 of the Maharashtra Universities Act, 1994. Section 65 of the said Act empowers the State of Maharashtra to frame rules and recourse cannot be had to the general power emanating from Article 162 of the Constitution. Reliance is placed on the provisions of Section 5(15) of the said Act, 1994. Section 5 provides for the powers and duties of the Universities. Sub-section (15) of Section 5 provides that the university shall have the power to supervise, control and regulate admissions of students for various courses of study in university departments conducted and affiliated colleges, institutions, schools and recognised institutions. Reliance is further placed on Section 65 of the Act which deals with admissions. The same provides, as follows :

'65. In accordance with the reservation policy of the State Government for the weaker sections of society, admissions to all courses in the university departments and affiliated colleges shall be made on the basis of competitive merit in accordance with the rules, if any, made by the State Government and published in the official Gazette, or by the university and published in the university gazette by the University :

Provided that, where model rules have been framed by the State Government in the interest of students throughout the State, the University shall adopt the same and such rules shall be published in the university gazette or the official Gazette as the case may be, at least six months before the start of any academic session which shall begin not later than first August every year :

Provided further that, having regard to the maintenance of discipline, the authority concerned shall have the power to refuse admission to a student.'

83. The aforesaid provisions, according to Shri Auturkar, do not contemplate pooling of seats throughout the State as is sought to the done by 1996-97 or 1997-98 rules. The provision speaks about the reservation policy of the State Government for the weaker section of the society. He has submitted that the State Government can only evolve a formula or a basis for grant of admissions in conformity with Section 65 and the Judgments of the Supreme Court. This can be done only on the basis of university-wise area and not on the basis of Regional Development Boards' area as is sought to be done by the 1997- 98 rules. He has pointed out that Section 53 provides for passing of ordinances by the Management Council. Under Clause (i) of Section 53, such ordinances can provide for conditions under which students shall be admitted to courses of study for degree diplomas, certificates and other academic distinctions. The Management Council, he points out, consists of well qualified personnel, which are mentioned in Section 27. They include the Vice Chancellor, a Pro Vice Chancellor, a Dean etc. The University, in the circumstances, is well qualified and well equipped for dealing with the admission process. The subject of grant of admissions is, therefore, fully covered by the Maharashtra Universities Act, 1994 and, hence, the Rule framed under Article 162 of the Constitution will not override the provisions of the Maharashtra Universities Act as the same would be an occupied field.

84. As against this, the learned Advocate General has submitted that Section 65 of the Maharashtra Universities Act only deals with framing of rules for Universities. The same confers power of framing rules in respect of a University on the State Government. Under the proviso to Section 65, Model Rules can be framed by the State Government in the interest of students throughout the State, Once the same are framed, the university is bound to adopt the same. He has further submitted that Section 5 (60) enjoins upon the university to comply with and carry out any directives issued by the State Government from time to time with reference to the powers, duties and responsibilities of the University enumerated in the earlier sub-sections. He has further submitted the fact that, the Management Council can make ordinances under Section 53(1) is not at all relevant as rules framed by the State Government will apply to all the universities in the State.

85. In this context, we find that Section 65 confers power on the State Government to frame rules in respect of a university taking into consideration the reservation policy of the State Government for the weaker sections of the society. The first proviso to Section 65 confers power on the State Government to frame model rules in the interest of students to be applicable throughout the State. On such model rules being framed, the university is obliged to adopt the same. Section 5 deals with the powers and duties of University. Section 5(15) and (60) provide, as under :

'5. The university shall have the following powers and duties, namely :--

.....

(15) to supervise, control and regulate admission of students for various courses of study in university departments, conducted and affiliated colleges, institutions, schools and recognised institutions :...

(60) to comely with and carry out any directives issued by the State Government from time to time, with reference to above powers, duties and responsibilities of the university.'

86. Section 27 provides for the formation of Management Council. It provides for different personnel who shall constitute the Management Council. The Management Council consists of eminent persons and educationists. Section 53 (1) confers power on the Management Council to frame ordinances for providing conditions under which students shall be admitted to courses of studies of degrees, diplomas, certificate and other academic distinctions. The said provision empowers the Management Council to frame Ordinance for a particular university.

87. If one has regard to the aforesaid provisions, it would be clear that if the State Government frames rules for admission, they would supersede the Ordinances framed by university for admissions. The State in the instant case has framed rules under Article 162 of the Constitution governing admissions in regard to all the universities in the State. In the circumstances, the rules which are framed by the Government in exercise of the power conferred under Article 162 will hold the field. Rules framed by the State Government cannot be said to have been framed under Section 65 of the Maharashtra Universities Act but can justifiably be said to have been framed under Article 162 of the Constitution.

88. Shri Anturkar has, however, submitted that the petitioner is not one of the universities which have been included in the schedule annexed to the Maharashtra Universities Act. Hence, the provisions of the Maharashtra Universities Act, 1994 will be inapplicable to the petitioner. In the circumstances, the said Rules, which according to him, have been framed under Section 65, are not applicable to the petitioner. As already pointed out, the said Rules have been framed not under Section 65 of the Maharashtra Universities Act but under Article 162 of the Constitution and, hence, this contention is liable to be rejected.

89. Shri Anturkar next contended that the present rules can be framed under Article 162 if and only if the field is not occupied by any other legislation. In this context, he has drawn our attention to Entry 25 of List III which deals with education including technical education, medical education and universities subject to provisions of Entries 63, 64, 65 and 66 of List I, Vocational and technical training of labour. The aforesaid entry, he points out, will operate subject to the provisions of Entries 63, 64, 65 and 66 of List I. Entry 66 of List I deals with coordination and determination of standards in institution for higher education or research and scientific and technical institutions. The parliament, in exercise of the aforesaid power under Entry 66 of List I, has enacted the University Grants Commission Act, 1956 and Indian Medical Council Act, 1956. The State Government, in the circumstances, is not entitled, under Entry 25 of List III, to legislate in respect of a field which is already occupied by the aforesaid Entry.

90. It is the contention of the learned Advocate General, on the other hand, that the Rules regarding admission, fall under Entry 25 of List III and not under Entry 66 of List I, According to him as far as admissions to medical colleges are concerned, the same has not been dealt with either by the University Grants Commission Act or by the Indian Medical Council Act or any other parliamentary legislation. The field regarding medical admissions is, therefore, not occupied by any legislation enacted by the Parliament. In this context, the learned Advocate General first relied upon the case of 'State of Madhya Pradesh v. Kumari Nevidita Jain : [1982]1SCR759 . In this case, Rule 20 of Rules for admissions to Medical, Dental and Ayurved Colleges in Madhya Pradesh provided that the minimum qualifying marks for admission to the aforesaid colleges, shall be fifty percent in the aggregate and thirty three per cent in each subject subject separately. In regard to Scheduled Caste and Scheduled Tribe candidates, the minimum qualifying marks were fixed at 40% in the aggregate and 30% in each subject. Note appended to the rule provided that the State Government has the power to relax the conditions of minimum qualifying marks in case of Scheduled Caste and Scheduled Tribe candidates. Since candidates belonging to Scheduled Caste and Scheduled Tribes possessing the aforesaid minimum qualifying marks were not available, the State Government, by an order, passed on the 19th of Sept. 1980, removed the said condition of minimum qualification. This removal was challenged on the ground that the regulations had been framed by the medical council with the previous sanction of the Central! Government under Section 33 of the Indian Medical Council Act, 1956. Hence, it was contended that the minimum qualifications prescribed by Regulations for Scheduled Caste and Scheduled Tribes candidates would prevail and the order issued by the State Government on 9th of Sept. 1980 was illegal and unconstitutional. Under the regulations minimum qualifying marks for admission for S.C. and S.T. candidates was fixed at 40% in the aggregate. If candidates from the S.C. and S.T. having the requisite marks, were not available, then vacant seats were liable to be filled in from the combined merit list. This relaxation was challenged by the petitioner in the aforesaid case as she belonged to the combined merit list. In this context, the Supreme Court considered the provisions of Section 33(j)(k)(1)(m) and (n) of the Indian Medical Council Act and found that Regulation 2, which provided for the selection of candidates, was merely of a recommendatory nature. The said Regulation 2 was out side the purview of Section 33 of the Indian Medical Council Act. The same, therefore, has no statutory force in the aforesaid case. It was held that the authority of the Council extended to the sphere of maintaining proper medical standards in the medical colleges or institutions necessary for obtaining a recognised medical qualifications. It was open to the Council to lay down the minimum educational qualifications required of a student for getting admissions into a medical college. In other words, the eligibility of a candidate who may seek to get admission into a medical college for obtaining recognised medical qualifications may he prescribed by the Council. But how t he selection was to be made out of the elegible candidates for admission into the medical college was a matter which had necessarily to depend on circumstances and conditions in a particular State. The Supreme Court further observed as under (Paras 21 and 23) :

'22. Entry 66 in List I (Union List) of the Seventh Schedule to the Constitution relates to 'coordination and determination of standard in institutions for higher education or research and scientific and technical institutions.' This entry by itself does not have any bearing on the question of selection of candidates to the Medical Colleges from amongst candidates who are elegible for such admission. On the other hand, Entry 25 in List III (Concurrent List) of the same Schedule speaks of -- 'education, including technical education, medical education in Universities, subject to Entries 63, 64, 65 and 66 of List I...... vocational and technical training of Labour.' This entry is wide enough to include within its ambit the question of selection of candidates to Medical Colleges and there is nothing in the Entries 63, 64 and 65 of List 1 to suggest to the contrary. We are, therefore, of the opinion that Regulation II of the Council which is merely directory and in the nature of a recommendation has no such statutory force as to render the order in question which contravenes the said Regulation, illegal, invalid and unconstitutional.'

'24. Under Article 162 of the Constitution the executive power of a State, therefore, extends to the matter with regard to which the legislature of a State has power to make laws. As there is no legislation covering the field of selection of candidates for admission to Medical Colleges, the State Government would, undoubtedly, be competent to pass executive orders in this regards.'

The contention raised on behalf of the State was accepted by the Supreme Court in the aforesaid case.

91. The second case relied upon the learned Advocate General is Ambesh Kumarv. Principal ILRM Medical College, Meerut, : [1987]1SCR661 . This case related to admissions to post graduate course in M.D., M.S. and other disciplines. Under Section 33 of the Indian Medical Council) Act, 1956 the Medical Council with the previous sanction of the Central Government made regulations laying down the criteria or standards for admitting candidates to various disciplines in the Medical Colleges of the State. The State Government issued an order dated 15th Dec. 1982 and put one additional condition that a candidate shall not be elegible for post graduate degrees and diplomas courses, who has obtained less than 55% and 52% marks respectively for the two courses (degree and diploma). This was challenged on the ground that the State Government is not competent to lay down or prescribe the qualifications as the same would encroach upon the power of the Central! Government provided by Entry 66, List I of the seventh Schedule. It was contended that Entry 25 of List III of the seventh Schedule is subject to the provisions of Entry 66 of List I. Therefore, the order issued by the State Government was repugnant to the regulations made under the Indian Medical Council Act, 1956. This contention was negatived by the Supreme Court in the following terms.

' 19. The State Government can in exercise of its executive power make an order relating to matters referred to in Entry 25 of the Concurrent List in the absence of any law made by the State Legislature .........'

'20. The only question to be considered is whether the impugned order is repugnant to or encroaches upon or is in conflict with the power of the Central Legislature to make laws in respect of matters specified in Fin try 66 of List I of the Seventh Schedule to the Constitution. ........'

'21. The impugned Government Order dated Dec. 15, 1982 lays down the criteria or eligibility qualification i.e. obtaining of 55 per cent marks by the candidates seeking admission in the postgraduate degree course and obtaining of 52 per cent marks by candidates seeking admission to postgraduate diploma course for being considered for selection. Entry 25 confers on the State Government as well as the State legislature the powers to make orders in respect of matters mentioned in Entry 25 of List III of the Seventh Schedule to the Constitution i.e. with regard to medical education the only limitation being that such order of the State legislature will be subject to the provisions of Entry 66 of List I, i.e. Coordination and determination of standards in institution Cor higher education or research and scientific and technical institutions. The order in question merely specifics further eligibility qualification for being considered for selection for admission to the Post graduate courses (decree and diploma) in the Medical Colleges in the State in accordance with the criteria laid down by Indian Medical Council. This does not in any way encroach upon the Regulations that have been framed under the provisions of Section 33 of the Indian Medical Council Act. On the other hand in order to promote and further the determination of standards in institutions for higher education, the State Government who runs these colleges provide an additional, (sic)

92. The next case relied upon by the learned Advocate General is : [1994]3SCR57 Ajay Kumar Singh v. State of Bihar. The case also related to admissions to post graduate medical course. The Apex Court relied upon its Judgment in the matter of 'State of Madhya Pradesh v. Nevidita Jain' : [1982]1SCR759 (Cited supra). The observations made in that case, in para 22, were reiterated and it was observed as follows :

'22. We are inclined to agree with the above statement. The power to regulate admission to the courses of study in medicine is traceable to Entry 25 in List III, (Entry 11 in list II, it may be remembered, was deleted by the 42nd Amendment to the Constitution and Entry 25 of List III substituted). The States, which establish and maintain these institutions have the power to regulate all aspects and affairs of the institutions except to the extent provided for by Entries 63 to 66 of List I. Shri Salve contended that the determination and coordination of standards of higher education in Entry 66 of List (takes, in all incidental or ancillary matters, that Regulation of admission to courses of higher education is a matter incidental to the determination of standards and if so, the said subject matter falls outside the field reserved to the States. He submits that by virtue of Entry 66, List I, which overrides Entry 25 of List. III, the State are denuded of all and every power to determine and coordinate the standards of higher education, which must necessarily take in regulating the admission to these courses. Even if the Act made by Parliament does not regulate the admission to these courses, the States have no power to provide for the same for the reason that the said subject matter falls outside their purview. Accordingly, it must be held, says Shri Salve, that the provision made by the State Government reserving certain percentage of seats under Article 15(4) is wholly incompetent and outside the purview of the field reserved to the States under the Constitution. We cannot agree. While Regulation of admission to these medical courses may be incidental to the power under Entry 66, List I, it is integral to the power contained in Entry 25, List III. The State which have established and is maintaining these institutions out of public funds must be held to possess the power to regulate the admission policy consistent with Article 14. Such power is an integral component of the power to maintain and administer these institutions. Be that as it may, since we have held, agreeing with the holding in Nevidita Jain that Entry 66 in List I does not take in the selection of candidates or regulation of admission to institutions of higher education, the argument of Shri Salve becomes out of place. The States must be held perfectly competent to provide for such reservations.'

93. The next Judgment relied upon by the learned Advocate General is : (1995)4SCC104 State of Tamil Nadu v. Adhiyaman Educational and Research Institute. In the said case it was inter alia held as follows (at p 2200 of AIR SCW) :

'41 (ii) To the extent that the State legislation is in conflict with the Central legislation though the former is purported to have been made under Entry 25 of the Concurrent List but in effect encroaches upon legislation including subordinate legislation made by the Centre under Entry 25 of the Concurrent List or to give effect to Entry 66 of the Union List it would be void and inoperative.'

(iv) Whether the State law encroaches upon Entry 66 of the Union List or is repugnant to the law made by the Centre under Entry 25 of the Concurrent List, will have to be determined by the examination of the two laws and will depend upon the facts of each case.'

94. The learned Advocate General contended that even assuming that Entry 66 of List I also confers power of granting admissions, there is no Parliamentary legislation made which conflicts with the exercise of power by the State Government under Entry 25, List III read with Article 162 of the Constitution.

95. Shri Anturkar, the learned Counsel for the petitioner on the other hand has placed reliance on Sections 10A, 19A and 33 of the Indian Medical Council Act, 1956 and the Regulations framed thereunder. Section 10A deals with permission for establishment of new medical college etc. and provides that this can only be done with the previous permission of the Central Government obtained in accordance with the said Act. The Medical Council is required to consider first the scheme submitted and make recommendations to the Central Government to the conclusion that the field of admissions. Thus Section 10A lays down the procedural requirements for establishing a new medical college and inter alia requires Medical Council to consider the scheme submitted and prior permission of the Central Government. Merely because petitioner was ready to follow the procedure under Section 10A for establishing medical college the same would not mean that the field is occupied as regards admissions are concerned. Further, under Section 19A the Medical Council of India can prescribe the minimum standards of medical education required for granting recognised medical qualifications by Universities or medical institutions in India. This also has nothing to do with the admission process. Under Section 33 regulations can be framed. The learned counsel for the petitioner has relied upon Regulations 1 and 2, framed under Section 33(j),(k),(1) and (n). The regulations are the same which were considered by the Supreme Court in the case of Nevidita Jain : [1982]1SCR759 (supra). Section 33(j), (k), (1) and (n) provide as under :

'33. Power to make regulations The Council may, with the previous sanction of the Central Government, make regulations generally to carry out the purposes of this Act, and, without prejudice to the generality of this power, such regulations may provide for--

(j) the courses and period of study and of practical training to be undertaken the subjects of examination and the standards of proficiency therein to be obtained, in Universities of medical institutions for grant of recognised medical qualifications :

(k) the standards of staff, equipment, accommodation, training and other facilities for medical education;

(1) the conduct of professional examinations, qualifications of examiners and the conditions of admission to such examinations;

(n) any matter for which under this Act provision may be be made by regulations,'

96. The Apex Court in Nevidita Jain case : [1982]1SCR759 (cited supra) has held that Section 33(j), (k), and (1) of Indian Medical Council Act has no application so far as the admission process is concerned and Section 33(n) is also of no assistance as the Indian Medical Council Act is not concerned with the question of selection of students from out of elegible candidates or admission to medical colleges. Therefore, it cannot be said that the field of admissions is occupied in view of the provisions of the Indian Medical Council Act, 1956.

97. Shri Anturkar next relied upon the provisions of the University Grants Commission Act, 1956. He has emphasised that the petitioner has been granted the status of deemed university' under Section 3 of the University Grants Commission Act, 1956. The said Section 3 reads as under :

'3. Application of Act to institutions for higher studies other than Universities -- The Central Government may, on the advice of the Commission, declared by notification in the Official Gazette, that any institution for higher education, other than a University, shall be deemed to be a University for the purposes of this Act, and on such a declaration bei ng made, all the provisions of this Act shall apply to such institution as if it were a University within the meaning of Clause (f) of Section 2.'

Section 2(f) defines 'university' as follows : 2(f) 'University' means a University established or incorporated by or under a Central Act, a Provincial Act or a State Act, and includes any such institution as may, in consultation with the University concerned, be recognised by the Commission in accordance with the regulations made in this behalf under this Act.'

Therefore, petitioner is no doubt a university. Section 25 of the University Grants Commission Act gives power to the Central Government to make rules Section 25(1), 2(f), (i) and (k), provide as under :

'25. Power to make rules -- (1) The Central Government may, by notification in the Official Gazette, make rules to carry out the purposes of this Act.

(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all of any of the following matters namely :--

(f) the returns and information which are to be furnished by Universities in respect of their financial position or standards of teaching and examination maintained therein;

(i) the manner in which the accounts of the Commission are to be maintained :

(k) any other matter which has to be, or may be, prescribed.'

The learned counsel placed reliance upon a notification issued by the Central Government on 18-1-1979 under Clauses (i) read with (f) and (k) of Sub-section (2) of Section 25. Rule 2 thereof deals with returns and information to be furnished by every university. Rule 2(d) provides, as under :

'2. Returns and Information to be furnished : Every university shall, on or before the date specified by the University Grants Commission every year in this behalf, furnish the following returns and information to the Commission, namely --

(d) where there are admission tests, a note indicating the minimum criteria laid down along with admission policy and variations, if any, from the basis specified for admission;'

98. The aforesaid provisions, in our view merely call upon the concerned University to furnish information in regard to criteria of admissions and the admission policy if the same has been laid down. Aforesaid Rules do not by themselves lay down criteria or policy of admissions. The Central Government has not legislated in the field of admission process and hence it cannot be said that the field of admission process has been covered by the aforesaid notification.

99. Section 26 of the University Grants Commission Act confers power to frame regulations. Shri Anturkar has relied upon a notification dated 25th of Nov. 1985 which was issued by the University Grants Commission by exercising power conferred under Clause (f) of Sub-section (1) of Section 26 of the said Act. Regulations 1(1) reads, as follows :

'I. Short title, application and commencement :--

(1) These regulations may be called the Universities Grants Commission (the minimum standards of instructions for the grant of the first degree through non-formal/distance education in the faculties of Arts, Humanities, Fine Arts, Music, Social Sciences, Commerce and Sciences) Regulations, 1985.'

The aforesaid regulation, in our view, does cover the field of admissions to medical colleges. The same has no application to admission to M.B.B.S. or Dental Courses. It is also clear from Regulation 2(3), that the Regulations deal with awarding of degrees B.A., B.Sc. and B.Com. The same has no application to M.B.B.S. or dental courses. Further merely because right is conferred upon the petitioner to confer degrees on the students under Section 22 of the University Grants Commission Act it does not follow that the field of admissions is occupied by the aforesaid provisions.

100. Shri Anturkar next relied upon a notification dated 21-12-1985 issued by the University Grants Commission framing regulations under Clause (h) of Sub-section (1) of Section 26. Section 26(1)(h) reads, as follows :

'26. Power to make regulations --

(1) The Commission may, by notification in the Official Gazette, make regulations consistent with this Act and the rules made thereunder,--

(h) regulating the establishment of institutions referred to in Clause (ccc) of Section 12 and other matters relating to such institutions;'

101. Shri Anturkar however submitted that the petitioner can be said to have been 'caused to be established' by the University Grants Commission. The learned Advocate General however submitted that this is not so as the petitioner has not been established by the University Grants Commission or has not been caused to be established by it. It has only been given 'adeemed university' status under Section 3 of the said Act.

102. Shri Anturkar further relied upon Regulation 2(iii) of the notification dated 21st Dec. 1985 framing regulations, which provides for preparation of memorandum of association and the rules providing for objects of the institution and functions and powers of the Board of Management and other concerned bodies. The learned counsel submitted that this has been done by the petitioner and hence the field is covered.

103. We find that under Section 26(1)(h) the Regulation covers institutions which are established or caused to be established by the University Grants Commission under Section 12(ccc). Section 12(ccc) reads as follows :

'Established, in accordance with the regulations made under this Act, institutions for providing common facilities, services and programmes for a group of universities or for the universities in general and maintain such institutions or provide for their maintenances by allocating and disbursing out of the Fund of the Commission such grants as the Commission may deem necessary.'

The aforesaid provision cover institutions which are established directly or caused to be established by the University Grants Commission. In the present case, Central Government has moved the University Grants Commission. The University Grants Commission has advised the Central Government and deemed university status has been granted to the petitioners institutions under Section 3 Section 12 deals with functions of the Commission, Section 12(0 and (g), provide as under :

' 12. Functions of the Commission -- It shall be the general duly of the Commission to take in consultation with the Universities or other bodies concerned, all such steps as it may think fit for the promotion and co-ordination of University education and for the determination and maintenance of standards of teaching examination and research in Universities, and for the purpose of performing its functions under this Act, the Commission may --

(f) advise any authority if such advise is asked for on the establishment of a new University or on proposals connected with the expenses of the activities of any Universities;

(g) advise the Central Government or any State Government or University on any question which may be referred to the Commission by the Central Government or the State Government or the University, as the case may be ;'

The petitioner's Counsel has submitted that the petitioner has submitted a memorandum of association and rules for getting 'deemed university' status and it has been granted the said status. We however find that Article 4 of memorandum of association deals with the powers and functions of Vidyapeeth. Article 4(10) provides, as under : 'to supervise, control and regulate admissions of students for various courses of studies.'

104. Similarly, Article 5(a) of the Rules deals with powers of the Board of Management. Clause xxxiii thereof provides, as follows :

'xxxiii To conduct examinations of tests for to conduct examinations for Degrees and Diplomas and to declare the results of such examinations and test and to confer, grant or award Degrees, Diplomas, Certificates and other academic titles and distinctions.'

However, in our view, this memorandum of association or the rules cannot have statutory force. They are only for the internal management or governance of the institutions even though approved under the University Grants Commission Act. Hence all it cannot be said that there is any legislation made by the Parliament which occupies the field of admissions. Therefore, the rules which are framed by the State Government, by exercising power under Article 162 coupled with Entry 25 of List III of the seventh schedule will operate and hence it cannot be said that the seats in the medical and dental colleges run by the petitioner cannot be brought under the purview of the rules framed by the State Government.

105. Moreover, we find that the petitioner is clearly covered under the scheme enunciated by the Supreme Court in the case of 'Unni Krishnan : [1993]1SCR594 (cited supra). It is a private institution charging capitation fee or very high fees. The prospectus for 1996-97 shows that the fees prescribed annually are to the tune of Rs. 75.000/- for M.B.B.S. and Rs. 50,000/- for B.D.S. This is also made liable to change. In addition, students are required to pay some deposits and other fees in cash. This is, many times, higher than what is charged as fees by the Government or Bombay Municipal Corporation colleges. There are 15% NRI seats and 85% general seats. Moreover, the Petitioner does not observe any constitutional reservations for backward class candidates. We, in the circumstances, find no unique features in the petitioner, though it conducts its own all India entrance examinations and admissions are given on merit basis. In the circumstances, we hold that the Bharati Vidyapceth's Medical College and Bharati Vidyapeeth's Dental College and Hospital in Pune will be governed by the Rules framed by the State of Maharashtra in the matter of grant of admissions. Rule in Writ Petition No. 3238 of 1996 is accordingly discharged. PART V

Whether the Medical College conducted by the Mahatma Gandhi Institute of Medical Sciences, Sewagram, is governed by the Rules of Admission framed by the State Government in exercise of its powers under Article 162 of the Constitution.

A.C. Agarwal, J.

106. Writ Petition No. 2108 of 1997 has been filed by Mahatma Gandhi Institute of Medical Sciences, Sewagram. A question which arises for our consideration in the above petition is, whether admissions to the said medical college can be controlled by the State Government under the rules framed by it and whether the seats of the aforesaid medical college are required to be included in the common pool for grant of admissions by the Competent Authority constituted by the State Government. The said college is conducted by a private trust known as Kasturba Health Society. The aforesaid medical college, we find, is unique in nature. There are 64 seats in the said college. 58 seats are liable to be filled in by holding an alt India competitive entrance test and 6 are filled in by nominations, 2 to be made by the State Government and 4 by the Government of India. Seals to be filled in by nomination are also filled in on the basis of merit. The said college is funded by the Government of India to the extent of 50%, by the State Government to the extent of 25% and by Kasturba Health Society, 25%. Fifty per cent of the seats are reserved for students from the State of Maharashtra and fifty per cent students are drawn from outside Maharashlra. The seats are filled in on all India Competitive Entrance Test. There is one subject on Gandhian thought which is prescribed for the entrance test. After admissions, students are required to undergo an orientation training course for a fortnight on the subject of Gandhian thought and way of life. If any student is unable to adjust to the orientation training course, his admission is liable to be cancelled. Students are required to lead simple life, wear Khadi clothes and consume vegetarian meals, eschew smoking and other intoxicants. They are required to participate in common prayers and Shramdan. Residence in hostels is made compulsory. After completing the medical course, they are required to serve in rural areas for three years and a security deposit of Rs. 15,000/- is required to be given to ensure rural service. The same is made returnable only after satisfactorily completing rural service. No capitation fee is charged. The Board of Directors includes nominees of Government of India, State Government and Zilla Parishad. The college is commenced since 1969 and no complaints are received in regard to any irregularities.

107. In the case of Miss Nidhikumar v. State of Maharashtra, : AIR1990Bom390 , decided by a learned single Judge of this Court Smt. Sujata Manohar, J. (as she then was), a question arose, whether the present college can frame a rule prohibiting migration to some other college after a student was admitted. Admission rule provided that no application for migration to another medical college will be entertained from students admitted to the said institute. This rule was challenged as being violative of Article 14 of the Constitution on the ground that migration or transfer of students was permitted in other medical colleges under their respective rules. The challenge was negatived and it was held that having regard to the unique character of the institute the petitioner was entitled to frame a rule prohibiting migration in the middle of the course to any oilier medical college as the same had nexus with the object sought to be achieved. This was done on the ground that the petitioner was considered as a class by itself.

108. In (1993) 4 SCC 112 Shahal H. Musalier v. State of Kerala, the question involved was relating to admissions in certain minority educational institutions and whether they were liable to follow the scheme for admission framed by the State Government. In para 14, the Apex Court considered that the colleges run by the petitioner institution did not charge any capitation fee from any student, that the fees charged by it in its colleges was not more than the fee charged in the Government colleges and that admissions are granted on the basis of all India common entrance test separately conducted by the colleges strictly on merit. In para 15, the Apex Court considered the case of medical college at Vellore in the State of Tamil Nadu. It was a well reputed institution. The Admissions were given on the basis of all India entrance test conducted by the institution. The admissions were on the basis of merit. No capitation fee was charged. The fee charged was not more than the fee chargeable in similar Governmental institutions. There was no complaint about the working of the said college at any time. Considering these factors, the Apex Court held that the institutions under consideration were having unique features or characteristics and permitted them to admit the students to their colleges on the basis of entrance lest conducted by them. This was done by imposing a certain condition namely that those institutions shall furnish full particulars of the students admitted, categories, if any, whereunder they are admitted and all other particulars relating to their admissions. Information was to be submitted to the competent Authority, to the University to which such colleges were affiliated and to the Secretary, Education Department, as the authorities were to verify the correctness of the information supplied.

109. In : (1995)0SCC0 Larsen and Tubro Institute of Technology v. All India Council for Technical Education the Petitioner was running a technical institution, a polytechnic having diploma courses. It was meant for the children of employees of the company who had put in minimum five years' confirmed service. The object was to train the students keeping the requirements of the company in view so as to absorb them in company service to the extent feasible. No fees were charged for admission or imparting instructions. Admissions were made exclusively on merit with reference toMarks in qualifying Examinations. Government rule regarding reservation of 34% of seats for backward class was followed. The Apex Court considered these unique features of the petitioner and held that the petitioner was exempt from its judgment in Unni Krishnan's case : [1993]1SCR594 and the regulations framed under All India Council of Technical Education Act, 1987 i.e. AICTE (Applicants and guidelines for fees and guidelines for admissions in professional colleges) Regulations, 1994 and AICTE (grant of approval for starting new technical institutions, introduction of courses or programmes and approval of intake capacity of seats for the courses or programme), Regulations 1994. The Petitioner was allowed to grant admissions as per its own rules.

110. If one applies the ratio of the aforesaid decisions to the petitioner at hand, it would follow that the petitioner will also be entitled to control its admissions in accordance with rules framed by it. Petitioner, we find, is a unique institution. Fifty per cent of the admissions are granted to students from the State of Maharashtra, whereas fifty percent to students from outside Maharashtra. Admissions are granted purely on merit. The institute observes constitutional reservations for backward classes. No capitation fees is charged and fees charged are not in excess of those charged by Government Colleges. The institute believes in the Gandhian School of thought and way of life. It ensures rural services on completion of the medical course. Petitioner, in the circumstances, can be said to be a class of its own. In the circumstances, we hold that the admissions to the aforesaid institution cannot be put in the common pool. Petitioner would, therefore, be entitled to grant admissions. The admissions to the aforesaid institution will, therefore, not be governed by the rules-framed by the State Government and, therefore, will not be liable to be controlled by the competent Authority constituted by the Government. It will be entitled to control admissions in accordance with the rules framed by it. This will however be on terms.

111. We would impose similar conditions that were imposed by the Supreme Court in the case of Shahal H. Musalier, 1993 (4) SCC 112 (supra), Petitioner is permitted to admit students to its College on the basis of entrance test conducted by it. However, after completing admissions, petitioner shall furnish full particulars of the students admitted, the categories, if any, whereunder they are admitted and all other particulars relating to their admissions. This information should be furnished to the Competent Authority, to the University i.e. Nagpur University to which it is affiliated and to the Secretary, Education Department, Government of Maharashtra. The aforesaid Authorities shall verify whether admissions have been made by the petitioner in accordance with the Rules framed by it. In case of irregularity, any of the said Authorities shall be entitled to call upon the petitioner to rectify the said irregularity. It shall also be open to the Competent Authority, University and the Government of Maharashtra to bring any such irregularity to the notice of this Court by way of an application for appropriate orders in that behalf. Rule in Writ Petition No. 2108 of 1997 is made absolute accordingly.

ORDER

Agarwal, J.

112. In the result our conclusions can be summed up as under :--

(I) Questions referred by the Division Bench to the Full Bench are answered as under :--

(i) The two orders viz. (a) the order dated 31st October, 1996 passed by the Nagpur Bench in Writ Petition No. 2426 of 1996 and (b) the order dated 1st November, 1996 passed by the Aurangabad Bench in Writ Petition No. 4549 of 1996. (which on transfer to the Bombay Bench has been re-numbered as Writ Petition No. 5541 of 1996) and other companion petitions, i .e. Writ Petitions Nos. 5542 of 1996, 5543 of 1996 and 6025 of 1996, 5543 of 1996 and 6025 of 1996 are 'per incuriam' in view of the ratio of the Supreme Court decision in the case of Nidamarti Maheshkumar v. The State of Maharashtra, : [1986]2SCR230 and other decisions noted in the foregoing paragraphs of this judgment as also the ratio of the decision of the earlier Full Bench of this Court in Writ Petition No. 4252 of .1996 and other companion petitions decided on 29th August, 1996 (short order) and 14th October, 1996 (reported in AIR 1996 Bom 117 (detailed judgment). '

(ii) Aforesaid orders of the Nagpur Bench and Aurangabad Bench are void ab initio being in contravention of the principle of 'audi alteram pertem' and should, therefore be ignored as none of the students in regions other than Vidarbha and Marathwada, who were granted admissions to the M.B.B.S./B.D.S. Courses even before Writ Petition No. 2426 of 1996 was filed before the Nagpur Bench on 7th October, 1996 , (which on transfer to the Bombay Bench has been renumbered as Writ Petition No.5539 of 1996) were given an opportunity of being heard.

(II) Provisional admissions granted to the M.B.B.S./B.D.S Courses for the academic year 1996-97 pursuant to our ad interim and interim orders passed on 4th November, 1996, 5th November, 1996 are regularised and the same are directed to be confirmed.

Rule in Original Side Writ Petition No. 2118 of 1996, Original Side Writ Petition No. 2243 of 1996, Appellate Side Writ Petition No. 5410 of 1996 and Appellate Side Writ Petition No. 5443 of 1996 is made absolute with no order as to costs.

(III) Admissions to (i) the three Medical Colleges and one Dental College conducted by the Bombay Municipal Corporation, (ii) the Medical College conducted by the Thane Municipal Corporation and (iii) the Medical College and Dental College at Pune conducted by Bharati Vidyapeeth will be governed by the rules framed by the State Government and will be controlled by the Competent Authority appointed by the State Government for the said purpose.

Rule in Original Side Writ Petition No. 830 of 1995, Appellate Side Writ Petition No. 4585 of 1996 and Appellate Side Writ Petition No. 3238 of 1996 is discharged with no orders as to costs.

(IV) Admissions to Mahatma Gandhi Institute of Medical Science at Sevagram will not be governed by the rules framed by the Government and the said Institute will be entitled to grant admissions on the basis of rules framed by it. This will be on terms and conditions mentioned in the foregoing paragraph 112.

Rules in Writ Petition No. 338 of 1995 of the Nagpur Bench, which on transfer to Bombay Bench has been re-numbered as Writ Petition No. 2108 of 1997, is accordingly made absolute with no order as to costs.

(V) Rules for admission to the M.B.B.S./ B.D.of the Course framed by the State Government pursuant to the directives under Article 371(2)(c) of the Constitution of India are justiciable and are not immune from judicial scrutiny under Article 226 of the Constitution.

(VI) Rule 4.1.2.1. of Government Resolution dated 1st November, 1996 and Draft Rule (VI) (2) (b) dated 3rd March, 1997 dealing with distribution of seats to M.B.B.S./B.D.S. course are invalid and are accordingly struck down on the ground that they fall foul of the ratio of the various judgments of the Supreme Court in : (1984)IILLJ481SC , as also the judgment and order passed by the earlier Full Bench of this Court, M.B. Shah, C.J., P. S. Patankar and J.N. Patel, JJ. on 29th August, 1996 and 14th October, 1996.

State Government is directed to issue a fresh rule for admission in the light of the observations contained in the foregoing paragraphs of this judgment and give publicity to the same. This be done expeditiously and within a period of three weeks.

Rule in Appellate Side Writ Petition No. 1766 of 1997 filed by the students study i ng XII standard is disposed of with no orders as to costs.

(VIII) Appellate side Writ Petition No. 1321 of 1997 seeks a declaration that Eligibility Condition No. III (3)(c) is invalid as violative of Article 14 of the Constitution and impugns the denial of admission on the ground that petitioner's son does not fit in with the conditions stipulated therein. Issues raised in this petition are distinct and have no relevance to the issues raised in the rest of the petitions. Appellate side Writ Petition No. 1321 of 1997 is accordingly delinked and referred back to the Registry for being placed before a Division Bench.

113. We conclude with vote of thanks to all the learned Counsel who gave immense assistance to us.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //