Vishwa Chandubhai Patel And Ors vs Union Of India Through Secretary
2021 Latest Caselaw 970 Bom

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Pdp

       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
               CIVIL APPELLATE JURISDICTION

          WRIT PETITION STAMP NO. 405 OF 2021

Vishwa Chandubhai Patel & Ors.                  .. Petitioners

            Versus

Union of India & Ors.                     .. Respondents

Mr. Rahul Walia for petitioners.
Mr. H. S. Venegaokar a/w Mr.             Saurabh    Kshirsagar    for
petitioners.

                        CORAM :- DIPANKAR DATTA, CJ &
                                 G. S. KULKARNI, J.

                        DATE :-       JANUARY 15, 2021


PC :

1. This writ petition dated January 6, 2021 is at the instance of three petitioners belonging to the Scheduled Tribe category (hereafter 'the ST category', for short). They allege wrongful denial of admission in Namo Medical Education and Research Institute, Silvassa for pursing the MBBS Course. The ground on which the petitioners have been denied admission is that although they may have obtained a 'Domicile Certifcate' of the requisite character, their ancestors had migrated to Dadra and Nagar Haveli and, therefore, having regard to the decision of the Supreme Court in Bir Singh vs. Delhi Jal Board & Ors., reported in (2018) 10 SCC 312, and a previous decision of the same Court in Marri Chandra Shekhar Rao vs. Dean, Seth G. S. Medical College, reported in (1990) 3 SCC 140, they cannot be regarded as ST candidates.

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2. The frst time we considered the writ petition on January 8, 2021, Mr. Walia, learned advocate for the petitioners had contended that the ground on which the petitioners were denied admission was precisely the ground on which one Mihir Dipak Patel, s/o Dipak Kumar Jagubhai Patel, was denied admission; and the father-son duo having approached this Court with a writ petition [bearing Writ Petition No. 10868 of 2019 : Dipak Kumar Jagubhai Patel & anr. vs. Union of India & ors.], in which a Division Bench referred to a decision of the Supreme Court of recent origin in Director, Transport Department, Union Territory Administration of Dadra and Nagar Haveli, Silvassa and Ors. vs. Abhinav Dipakbhai Patel, reported in (2019) 6 SCC 434. Relying on such decision, the Division Bench by its judgment and order dated November 18, 2019 proceeded to hold that the Union Territory Administration acted illegally in denying admission to the petitioner no.2, i.e., Mihir Dipak Patel. Accordingly, the respondents were directed to admit him in the MBBS course. The order of the Division Bench was challenged before the Supreme Court but the Special Leave Petition which came to be dismissed by an order dated November 16, 2020.

3. Mr. Walia, accordingly, was heard to contend that the issue being covered by the Division Bench decision of this Court in Dipak Kumar Jagubhai Patel (supra), the petitioners are entitled to similar treatment.

4. Mr. Venegaokar, learned advocate for the respondents, however, had submitted that the admission process, except for the Economically Weaker Section (EWS), has been closed on 31 st December, 2020 and no seats remain vacant where the petitioners can be accommodated. Such a submission was advanced, noticing

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that this Court was leaning in favour of grant of relief to the petitioners in view of the judgment and order in Dipak Kumar Jagubhai Patel (supra).

5. We, however, declined interim relief to the petitioners by our order dated January 8, 2021 but called upon the respondents 2 to 4 to support the statement of closure of admissions for the ST category made by Mr. Venegaokar by producing documentary evidence on the next date, i.e. January 11, 2021.

6. Documents produced before us by Mr. Venegaokar on January 11, 2021 did not conclusively establish that admissions for the ST category were closed by December 31, 2020. What were produced appeared to be lists pertaining to "Provisional Allocation of Seats". On perusal thereof, we observed that the process of admitting students belonging to the ST category was prima facie fawed and the contention advanced on behalf of the petitioners that they were wronged did impress us. We had, accordingly, expressed our opinion orally that the respondents need to undo the wrong by admitting the petitioners. It was then contended by Mr. Venegaokar that relief should not be granted in favour of the petitioners, since there are other candidates belonging to the ST category who had secured more marks than the petitioners in the National Eligibility- cum-Entrance Test (for short 'the NEET', hereafter), being the qualifying examination. Considering the submissions of the parties, and also appreciating the ground reality that the ST candidates, like the petitioners, have been given a raw deal, we had granted opportunity to the respondents to think over the issue and to come out with a plausible solution so as to secure justice to all. Granting the prayer of Mr. Venegaokar to allow the respondents 2 to 4 to fle an afdavit indicating the plan of action to mitigate the grievances of these petitioners as well as other ST category candidates

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similarly situate, we had adjourned hearing till January 14, 2021. The respondents 2 to 4 were granted liberty to take an appropriate decision and to incorporate the same in the afdavit.

7. Although by the last order an opportunity was granted to the respondents 2 to 4, as prayed for by Mr. Venegavkar on their behalf, to fle an afdavit indicating therein the plan of action the respondents 2 to 4 would choose to adopt for mitigating the hardship and/or inconvenience caused to the ST category candidates similarly situate like the petitioners, a stand completely at variance from the one taken earlier has been taken today by them on afdavit. The respondents 2 to 4 now contend that the decision of the Supreme Court in Abhinav Deepakbhai Patel (supra) is per incuriam and, a fortiori, the decision in Deepak Kumar Jagubhai Patel (supra) is also per incuriam; therefore, the respondents 2 to 4 are at liberty not to be guided either by Abhinav Deepakbhai Patel (supra) or Deepak Kumar Jagubhai Patel (supra). According to him, Abhinav Deepakbhai Patel (supra) has expressed a view which is contrary to the views expressed in larger Bench decisions in Bir Singh (supra) and Marri Chandra Shekhar Rao (supra). Reliance is placed by Mr. Venegaokar on the decision in Sundeep Kumar Bafna vs. State of Maharashtra & Ors., reported in (2014) 16 SCC 623, for the proposition that a decision or judgment can also be per incuriam if it is not possible to reconcile its ratio with that of a previously pronounced judgment of a co-equal or larger Bench.

8. Before we consider the other issues, it would be proftable to note what per incuriam connotes. A Constitution Bench of the Supreme Court in Punjab Land Development and Reclamation Corpn. Ltd. vs. Presiding Ofcer, Labour Court, reported in (1990) 3 SCC 682, held that a "decision can be said generally to be

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given per incuriam when this Court has acted in ignorance of a previous decision of its own or when a High Court has acted in ignorance of a decision of this Court". The Court then referred to the Constitution Bench decision referred to in Bengal Immunity Company Ltd. v. State of Bihar, reported in AIR 1955 SC 66, wherein it was held that the words of Article 141, "binding on all courts within the territory of India", though wide enough to include the Supreme Court, do not include the Supreme Court itself, and it is not bound by its own judgments but is free to reconsider them in appropriate cases. This is necessary for proper development of law and justice. The latter Constitution Bench did not disagree with such an observation. The two-Judge Bench in Sundeep Kumar Bafna (supra) was not referred to the Constitution Bench decisions in Bengal Immunity Company Ltd. (supra) and Punjab Land Development and Reclamation Corpn. Ltd. (supra) and we say no more.

9. Having perused the decision in Deepak Kumar Jagubhai Patel (supra), we fnd that the same argument, which is now raised before us, was raised before the co-ordinate Bench. Such an argument was considered in great depth by the co-ordinate Bench and thereafter overruled. It is indeed surprising as to how the respondents 2 to 4 can seek to deprive meritorious ST candidates from being admitted for the frst year of the MBBS Course on the basis of their own interpretation of the laws and giving a complete go-bye to the law laid down by a Division Bench of this Court, which has since been upheld by the Supreme Court. We are, prima facie, of the view that this is a clear case of contempt ~ civil as well as contempt ~ committed by the respondents 2 to 4 within the meaning of sections 2(b) and 2(c)(iii) of the Contempt of Courts Act, 1971. Such contempt has been aggravated by the stand taken in the afdavit. If the occasion arises, the situation would be dealt

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with in accordance with law. Be that as it may.

10. Mr. Venegaokar has also referred to the decision in Ranjana Kumari vs. State of Uttarakhand & ors. reported in (2019) 15 SCC 664. We fnd no reason to change the view expressed above based on such decision having regard to the eligibility criteria set out in the admission brochure which required an ST candidate to be a domicile of the Union Territory Administration and such qualifcation is duly possessed by all the petitioners. The submissions of Mr. Venegaokar clearly evince an attempt to go beyond the 'Domicile Certifcate', which has been issued in favour of the petitioners by the Administration.

11. Initially, although we were inclined to accept the submission of Mr. Venegaokar that all candidates similarly situate like the petitioners should be considered for admission according to their respective merit, the present stand compels us to consider the cases of the petitioners only, regard being had to the fact that the other ST candidates, more meritorious than the petitioners and whose cases were being espoused by Mr. Venegaokar on the earlier occasion, have not chosen to approach the Court with their grievances and to secure admission in preference to the petitioners.

12. We have also found that although the admission procedure refers to "Merit List" being published at regular intervals after the several rounds, the respondents 2 to 4 have not published any such merit list and not even adverted to the same in their afdavit; instead, what has been published from time to time are lists of "Provisional Allocation of Seats", the last of which was published on December 28, 2020 (excluding the names of the three petitioners) and without there being any indication of admissions

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being closed by the end of December, 2020. It has also been ascertained from Mr. Venegaokar that without publication of any such merit list, admissions have been efected in favour of the ST candidates based merely on the provisional allocation of seats. Whether the respondents 2 to 4 were at all justifed in doing so needs deeper examination once the pleadings are complete. However, at the present stage, we are inclined to reject the contention raised by Mr. Venegaokar to the efect that the decision of the Supreme Court in Abhinav Deepakbhai Patel (supra) is per incuriam on the ground that such decision runs contrary to the decisions in Marri Chandra Shekhar Rao (supra) and Bir Singh (supra); a fortiori, the decision in Dipak Kumar Jagubhai Patel (supra) is also per incuriam. We have noted from the decision in Abhinav Deepakbhai Patel (supra) that the decision in Marri Chandra Shekhar Rao (supra) and Bir Singh (supra) were duly considered, whereupon a decision was given which being binding on the co-ordinate Bench in Dipak Kumar Jagubhai Patel (supra) was duly followed.

13. We consider it appropriate at this stage to refer to a decision of a Division Bench of the Calcutta High Court in support of the view taken. In its decision in Commissioner of Income-tax, West Bengal-III vs. M/s. Oberoi Hotels (P) Ltd., reported in (2011) SCC OnLine Cal 718 : (2011) 4 CHN 552, the Division Bench indicated the line of approach that the High Court is required to adopt when, on a question of law, the decision of a Bench of lesser strength of the Supreme Court is found to have considered the decision of a larger strength of the Supreme Court and to have expressed view(s) which may not be absolutely in sync with the view(s) expressed by the larger Bench decision. We consider it appropriate to quote the relevant paragraph from the said decision reading as follows:

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" There is no dispute with the proposition of law that if there are confict of opinions between the two Benches of the Supreme Court on a question of law, the one declared by the larger Bench would prevail over the one pronounced by the other Bench. But if a Bench consisting of a smaller number of judges inter- prets a decision of a larger Bench of the Supreme Court in a diferent way which maybe apparently op- posed to the one taken by the larger Bench, a subse- quent co-ordinate Bench of the Supreme Court may refuse to follow the interpretation of the latter one on the ground that it proposed to follow the earlier view expressed by a larger Bench. But if the subsequent de- cision of the smaller Bench explaining the larger Bench is placed before a High Court, the latter is bound to fol- low the subsequent one by the smaller one which in- terprets the decision of the larger Bench because that is the interpretation of the larger Bench by a Bench of Supreme Court and the High Court cannot make a dif- ferent interpretation than the one made by the subse- quent decision of the Supreme Court which is binding upon it. The position, however, would be diferent if the subsequent smaller Bench of the Supreme Court in ignorance of the earlier larger Bench takes a contrary view from the one taken by the earlier larger Bench. In that situation, the High Court is entitled to reject the view of the latter smaller Bench of the Supreme Court as per incuriam.

(emphasis supplied)

14. We agree with the proposition of law as laid down in the aforesaid extract and hold that the co-ordinate Bench in Dipak Kumar Jagubhai Patel (supra) was right in accepting the proposition of law laid down in Abhinav Deepakbhai Patel (supra) upon consideration of the decisions in Marri Chandra Shekhar Rao (supra) and Bir Singh (supra).

15. Since it has been ascertained that out of 25 seats reserved for the ST candidates, only one seat remains vacant and there are three contenders being the three petitioners, it is obvious

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that two candidates who have secured admission, although not due, have to make way for two of the petitioners to be admitted in their place. The list dated December 28, 2020 titled as "Provisional Allocation of Seats" reveals that one Kurkutiya Anjuben Devubhai Patel and one Donke Vivek Vasant are the last two admitted ST candidates based on their NEET scores, which are obviously lower than the petitioners. Having regard to the decision of the Supreme Court in Ranjan Kumar & ors. vs. State of Bihar & ors., reported in (2014) 16 SCC 187, no order should be passed behind the back of such candidates.

16. In such view of the matter, we grant leave to the petitioners to implead the said Kurkutiya Anjuben Devubhai and Donke Vivek Vasant as additional respondents. Suitable amendment be carried out in the cause title of the writ petition immediately. Copies of the amended writ petition shall be served on the added respondents personally by tomorrow. In addition, as and by way of abundant caution, additional copies of the writ petition shall be forwarded by Mr. Walia to the e-mail address of Mr. Venegaokar to enable him share the same with the respondents 2 to 4 for them to efect service on the added respondents by tomorrow.

17. We are conscious that the admission process has been closed on 31st December, 2020 as submitted by Mr. Venegaokar. At the same time, we may also record that no document has been placed before us to demonstrate that the candidates who were likely to be admitted had been given information that December 31, 2020 was the last date therefor. We take note of the decision in S. Krishna Sradha Vs. the State of Andhra Pradesh & Ors., reported in AIR 2020 SC 47, where law has been laid down that if a candidate has approached the Court without wasting time and

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has set up a strong case that he was denied admission illegally to persuade the Court to direct grant of admission prior to the classes for the frst year having started, the Court may in exceptional cases make such direction. It is bearing in mind such decision that we propose to grant relief to the petitioners, subject to hearing the added respondents.

18. The writ petition shall be listed for further consideration on Monday next, January 18, 2021 (HOB), when we propose to pass further orders after hearing the added respondents, if they choose to so appear before us. We make it clear that the observations made on the merits of the petitioners' claim hereinabove are prima facie insofar as the added respondents are concerned and that they shall be free to raise such contentions permissible in law and/or facts as they may be advised for our de novo consideration.

                        (G. S. KULKARNI, J.)                           (CHIEF JUSTICE)


           Digitally
           signed by
           Prashant
Prashant   V. Rane
V. Rane    Date:
           2021.01.16
           15:57:33
           +0530