Gujarat High Court
Chandibhamar Abhay Sanjaykumar vs State Of Gujarat on 9 August, 2023
Bench: Nikhil S. Kariel
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 13177 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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CHANDIBHAMAR ABHAY SANJAYKUMAR
Versus
STATE OF GUJARAT
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Appearance:
MR DHAVAL DAVE, SR. ADVOCATE for MR JEET J BHATT(6154) for the
Petitioner(s) No. 1
NIGAM D SONI(9314) for the Petitioner(s) No. 1
MS MANISHA LAVKUMAR, GOVERNMENT PLEADER with MR SAHIL TRIVEDI,
AGP for the Respondent(s) No. 1,3
MR. KM ANTANI(6547) for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 09/08/2023
ORAL JUDGMENT
1. Heard learned Senior Advocate Mr. Dhaval Dave for learned
Advocate Mr. Jeet J. Bhatt for the petitioner and learned Government
Pleader Ms. Manisha Lavkumar with learned AGP Mr. Sahil Trivedi for the
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respondent No.1 and 3 and learned Advocate Mr. K.M. Antani for the
respondent No.2.
2. By way of this petition, the petitioner has prayed for the following
relief.
"34. Therefore, the petitioner prays before this Hon'ble Court
that:
A. To kindly allow this petition.
B. Be pleased to issue a writ of mandamus or any other writ in
the nature of mandamus or any other appropriate writ, order
or direction declaring the impugned communication dt
24.07.2023 (Ann-A-Colly) issued by the respondent authorities
as illegal, discriminatory and violative of Art 14 of Constitution
of India and further quashing and setting the same and further
directing that the petitioner may be considered eligible for NRI
category seats for admission in PG medical course for
academic year 2023-24 in State quota;
C. Be pleased to issue a writ of mandamus or any other writ in
the nature of mandamus or any other appropriate writ, order
or direction directing the respondent authorities to follow the
definition of Ward as laid down by Hon'ble Supreme Court of
India in the matter of Ruchin Bharat Patel Vs. Parents
Association for the MD students and others and Consortium
of Deemed Universities in Karnataka and another Vs. Union
of India and in the alternative to issue guideline-instruction for
the Wards who have NRI Guardians to apply in PG medical
professional Courses in the State of Gujarat and till that time
follow and comply with the definition of ward laid down by
the Hon'ble Supreme Court in the matter of Ruchin Bharat
Patel Vs. Parents Association for the MD students and others
and Consortium of Deemed Universities in Karnataka and
another Vs. Union of India.
D. Pending admission/final hearing of the present petition,
Your Lordship may kindly be pleased to direct the Respondent
No.2 Admission Committee to keep one seat vacant in MD
Radiology/ MD Dermatology for the petitioner out of total
approved seats for Private & Un-aided Medical Colleges in
Ahmedabad District under NRI quota;
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E. To pass any other and further orders as may be deemed fit
and proper."
3. It is the case of the petitioner that after completing his MBBS Course
including one year compulsory internship, the petitioner had appeared in the
NEET-PG-2023 Examination and cleared the same with All India Rank
77,569. It is the case of the petitioner that while the admission process to
medical colleges for MBBS and PG Courses are regulated by the Gujarat
Professional Medical Educational Colleges or Institutions (Regulation of
Admission and Fixation of Fees) Act, 2007 (hereinafter to be referred to as
"the Gujarat Medical Admission Act, 2007"), and whereas while the said Act
contemplates reservation of 15% seats for NRIs, and whereas the definition
of NRI seats as per the Act includes the term 'ward', yet, there is no
definition prescribed in the Act as to who would constitute a ward of an
NRI. The petitioner had preferred representation inter alia requesting that
the meaning of the term 'ward' should be as per the broader meaning as
observed by the Hon'ble Apex Court in an order dated 13.11.2006 rendered
in case of Ruchin Bharat Patel Vs. Parents' Association for the MD Students
and Others, reported in 2006 SCC Online SC 1437 as well as in an order of
the Hon'ble Apex Court in case of Consortium of Deemed Universities in
Karnataka (CODEUNIK) and Another Vs. Union of India and Others,
reported in 2017 SCC Online SC 2110 and whereas the said representation
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begin rejected by the State inter alia observing that the meaning of the word
'ward' would be as per the definition under the Guardians and Wards Act,
1890. Being aggrieved by the said rejection of the representation and seeking
for the prayers as reproduced hereinabove, the petitioner has preferred the
present petition.
4. Learned Senior Advocate Mr. Dhaval Dave on behalf of the
petitioner would submit that admission to medical colleges in the State of
Gujarat for under-graduate and post-graduate courses are regulated by the
Gujarat Medical Admission Act, 2007, and whereas originally the Act, inter
alia defines Non-resident Indian seats as - "means 15% seats reserved for
children or wards or the dependents for the education purpose of the Non-
resident Indian, to whom admission is to be given in the professional
educational colleges or institutions". It is submitted that while the said Act
had been promulgated in the year 2007 with the extended definition as
hereinabove, the State had issued an Ordinance on 10.06.2016 under the
nomenclature Gujarat Provisional Medical Educational Colleges or
Institutions (Regulation of Admission and Fixation of Fees) (Amendment)
Ordinance, 2016, whereby the 15% NRI quota had been deleted. Learned
Senior Advocate would submit that the said ordinance had been challenged
before this Court and whereas vide judgment in case of Prati Shailesh Patel
Vs. State of Gujarat, reported in 2016 SCC Online GUJ 1909, a Division
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Bench of this Court (Coram : Hon'ble the Chief Justice R. Subhash Reddy
and Hon'ble Justice Vipul M. Pancholi) had set aside the said ordinance,
more particularly having regard to the law laid down by the Hon'ble Apex
Court in case of P.A. Inamdar Vs. State of Maharashtra, reported in 2005 (6)
SCC 537. Learned Senior Advocate would submit that the State had
thereafter deleted the words "or the dependents for the education purpose",
thus restricting the admission to NRI seats specifically to children or wards
of Non-resident Indians. Learned Advocate would submit that the term
'ward' has not been defined or explained in the Act.
4.1 It is further submitted that the Hon'ble Apex Court in order in case
of Ruchin Bharat Patel (supra) had broadened the definition of the term
'NRI quota' by laying down the following categories :
(1) The students be admitted as NRIs in NRI quota as against 15% :
At least one of the parents of such students should be an NRI and shall
ordinarily be residing abroad as an NRI;
(2) The person who sponsors the student for admission should be
a first degree relation of the student and should be ordinarily residing
abroad as an NRI;
(3) If the student has no parents or near relatives or taken as a ward
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by some other nearest relative such students also may be considered for
admission provided the guardian has bona fide treated the student as a ward
and such guardian shall file an affidavit indicating the interest shown in the
affairs of the student and also his relationship with the student and such
person also should be an NRI, and ordinarily residing abroad.
4.2 Learned Senior Advocate would further rely upon an order of the
Hon'ble Apex Court in case of Consortium of Deemed Universities in
Karnataka (supra) and would submit that the Hon'ble Apex Court had inter
alia observed that the directions of a Division Bench of the High Court of
Madhya Pradesh rendered in Anshul Tomar Vs. State of M.P. and Others
(2008) 2 MPLJ 450, shall be followed. It would be relevant to mention here
that in case of Anshul Tomar, the High Court of Madhya Pradesh had
referred to guidelines drafted by Pravesh Niyantran Samiti (Medical
Education), Mumbai, which lays down the broader criteria for admission in
the NRI quota. Learned Senior Advocate referring to the order of the
Hon'ble Apex Court in case of Consortium of Deemed Universities in
Karnataka (supra) would submit that while the observations of the Hon'ble
Apex Court in the said decision are with regard to the NRI seats available in
the deemed universities whose admission is regulated by the Central
Government and whereas it is submitted that the Directorate General of
Health Services who regulates admissions in All India quota in NRI category
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for deemed universities, issues guidelines every year and whereas an
Information Bulletin and Counselling Scheme has been laid down for the
present year also and whereas the relationship of the NRI with the student is
stated to be governed as per the order of the Hon'ble Apex Court in case of
Consortium of Deemed Universities in Karnataka (supra).
4.3 Learned Senior Advocate would submit that since the term 'ward' has
not been defined or explained in the Gujarat Medical Admission Act, 2007,
and whereas since the Central Government has envisaged a broader
guideline for admission to the NRI quota, the guideline of the Central
Government would have primacy. Learned Senior Advocate would submit
that under the 7th Schedule to the Constitution of India, more particularly in
List I - Union List, Entry No. 66 states with regard to co-ordination and
determination of standards in institutions for higher education or research
and scientific and technical institutions. Learned Senior Advocate would
submit that the Entry No. 25 in List III - Concurrent List, inter alia states
with regard to 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. Learned Senior Advocate
would submit that since medical education is referred to in the Concurrent
List and whereas the same is subject to entry No. 66 of List I, therefore the
guidelines issued by the Central Government would have overriding effect.
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Learned Senior Advocate in support of his submissions would rely upon the
decision in case of State of T.N. and Another Vs. Adhiyaman Educational &
Research Institute and Others, reported in (1995) 4 SCC 104.
4.4 Learned Senior Advocate would further submit that an anomalous
situation is created on account of restricted meaning of term 'ward' followed
by the State Government, inasmuch as while the petitioner is declared as
eligible for applying as an NRI in deemed universities situated in the State of
Gujarat, the petitioner is not eligible to apply in the State quota as an NRI
student in the NRI category.
4.5 Learned Senior Advocate would further submit that the law laid
down by the Hon'ble Apex Court in case of Consortium of Deemed
Universities in Karnataka (supra), is being relied upon in many other States
for admission in NRI quota and whereas a restricted meaning of the term
'ward', in the Gujarat Medical Admission Act, 2007, is nothing but
discrimination. Learned Senior Advocate would further submit that by
following the restricted criteria, the State Government is creating a class
within a class without any intangible differentia, more particularly without
clarifying the purpose sought to be achieved by the classification.
4.6 Learned Senior Advocate would also rely upon the decision of the
High Court of Himachal Pradesh in case of Maharishi Markandeshwar
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University and Another Vs. State of Himachal Pradesh and Others, reported
in 2020 SCC Online HP 2495, whereby the High Court of Himachal
Pradesh had inter alia laid down that principles as laid down in case of
Consortium of Deemed Universities in Karnataka (supra), could not be
stated to be applicable to the deemed universities only.
4.7 Learned Senior Advocate would thus submit that since the term
'ward' has not been defined or explained in the Gujarat Medical Admission
Act, 2007, and whereas in reply to the representation preferred by the
petitioner, it has been informed that the State interprets the term 'ward' as
per the definition appearing in the Guardians and Wards Act. That on the
other hand, there are two decisions of the Hon'ble Apex Court, which have
been followed by the Central Government and whereas in view of Entry
No. 25 in List III read with Entry No. 66 in List I of the 7 th Schedule, since
the primacy is of the Central Government, therefore any provision to the
contrary by the State would be of no consequence. Under such
circumstances, it is requested by the learned Senior Advocate Mr. Dave that
this Court may quash and set aside the order passed by the respondent No.3
and may direct the State to consider the meaning of the word 'ward' as per
the explanation given by the Hon'ble Apex Court in case of Ruchin Bharat
Patel (supra) as well as in case of Consortium of Deemed Universities in
Karnataka (supra).
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5. This petition is vehemently objected to by the learned Government
Pleader Ms. Manisha Lavkumar. Learned Government Pleader would
submit that at the outset it would be required to be noted that the petitioner
had been granted admission in the MBBS Course as per the pre-amended
Gujarat Medical Admission Act, 2007, more particularly when the term
'NRI' also included 'dependants for education purpose'. Learned
Government Pleader would refer to decisions of the Hon'ble Apex Court in
case of Ruchin Bharat Patel (supra) and in case of Consortium of Deemed
Universities in Karnataka (supra) and would submit that both the decisions
would not lay down any binding precedent, more particularly according to
the learned Government Pleader, the observations of the Hon'ble Apex
Court were with regard to the facts of the said cases and only for a particular
period. Learned Government Pleader would submit that as such, insofar as
the decision in case of Consortium of Deemed Universities in Karnataka
(supra) is concerned, it would appear that the said decision had been passed
in context of a concession by the learned counsel appearing for the Union
of India. Learned Government Pleader would submit that as such the
decisions in question do not envisage their applicability beyond a particular
year for which they had been passed.
5.1 It is further vehemently submitted by the learned Government
Pleader that the observations of the Hon'ble Apex Court in both the
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decisions were not in context of meaning of the term 'ward' and whereas the
said observations do not envisage a situation whereby a broader meaning
could be taken as an exception to be eligibility criteria as prescribed in the
Act.
5.2 Learned Government Pleader would further submit that the intent of
the State is to ensure that benefit of admission under the NRI quota should
be go to the genuine NRI candidates and whereas it is submitted that the
same would be in consonance with the law laid down by the Hon'ble Apex
Court in case of P.A. Inamdar (supra). Learned Government Pleader has
referred to decision of the High Court of Punjab and Haryana at
Chandigarh in case of Asmita Kaur Vs. State of Punjab and Others,
reported in 2019 SCC Online P & H 937 and decision of the High Court of
Madras in case of C.S. Shri Lakshmi Vs. State of Tamil Nadu, reported in
2020 SCC Online Mad 11797.
5.3 Learned Government Pleader would submit that undoubtedly in case
of repugnancy between the legislation or even executive orders of the State
as compared to the same issued by the Center, then the legislation or
executive fiat issued by the Union Government with regard to subjects
stated in Entry No. 25 of List III read with Entry No. 66 of List I of the 7 th
Schedule, would have primacy and whereas in the instant case while there is
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a legislation of the State Government, there is neither any statute or an
executive fiat issued by the Central Government and whereas under such
circumstances, there cannot be any repugnancy in the legislation of the
State.
5.4 Learned Government would further submit that there is no
classification done which is discriminatory or not based on intangible
differentia, more particularly with regard to the object sought to be
achieved. Learned Government Pleader would submit that the underlying
object behind the restricted meaning given to the term 'NRI quota' in the
Gujarat Medical Admission Act, 2007, is with the object of ensuring that
only genuine NRIs i.e. either the student himself is an NRI or children or
wards of NRIs, get the benefit of the admission in NRI quota. Thus,
submitting learned Government Pleader would request this Court not to
entertain the present petition.
6. In rejoinder, it is submitted by learned Senior Advocate Mr. Dhaval
Dave that when the Center has thought it fit to have a particular
interpretation for the seats to be allocated in NRI quota, the State would
have to follow suit and whereas Article 162 of the Constitution of India is
being relied upon in support of such contention.
6.1 Learned Senior Advocate would further submit that the decisions
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relied upon by the learned Government Pleader, both of the Punjab and
Haryana High Court as well as the Madras High Court, are distinguishable
on facts, more particularly since in both the decisions, the relevant criteria of
the respective State Governments has been referred to and whereas in case
of the Punjab criteria, the NRI seats are only available to children of NRI
who originally belong to State of Punjab or children of NRI who originally
belong to any Indian State other than Punjab and whereas the term 'ward'
has not been used in the criteria of the said State. On the other hand, insofar
as the Madras High Court judgment is concerned, it is submitted that the
eligibility criteria as found in the prospectus, clearly states that the NRI seats
would be available only to children and the NRI concerned should be legally
declared as guardian of the candidate by the court as per the provision of
the Guardians and Wards Act, 1890. Learned Senior Advocate would
submit that since the Gujarat Medical Admission Act, 2007 does not
interpret or explain the term 'ward', both the decisions would be
distinguishable on facts.
6.2 Learned Senior Advocate would further submit that as such, insofar
as the present year is concerned, in the prospectus for medical admission in
the State of Tamil Nadu, the eligibility for admission to NRI quota has been
prescribed as per the observations made by the Hon'ble Apex Court in case
of Consortium of Deemed Universities in Karnataka (supra), and whereas
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the said eligibility is also followed for admission to NRI quota in the State of
Haryana. Thus, submitting learned Senior Advocate Mr. Dave would
request this Court to interfere and issue appropriate directions to the State
Government.
7. Heard learned Senior Advocates for the respective parties who have
not submitted anything further.
8. The issues for consideration of this Court are as under :
(1) Whether it was open for the State to restrict the definition of
the term 'ward' appearing in the definition of the term 'NRI seats' in
the Gujarat Medical Admission Act, 2007?
(2) Whether the State was required to follow the eligibility criteria
for admission to NRI quota seat as followed by the Central
Government for admission to NRI quota in deemed universities?
(3) Whether the State was required to follow the definition of the
term 'ward' as laid down by the Hon'ble Apex Court in cases of
Ruchin Bharat Patel (supra) and Consortium of Deemed Universities
in Karnataka (supra)?
and/or
(4) Whether the Hon'ble Apex Court in the decisions referred to
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hereinabove were explaining or interpreting the term 'ward' at all?
9. At the outset, for considering the above issues, it would be profitable
to refer to paragraph No. 131 of the decision of the Hon'ble Apex Court in
case of P.A. Idamdar (supra), which observations of the Hon'ble Apex
Court is the genesis for granting of 15% reservation for NRIs in medical
admission.
"131. Here itself we are inclined to deal with the question as to seats
allocated for Non-Resident Indians ('NRI', for short) or NRI seats. It
is common knowledge that some of the institutions grant admissions
to certain number of students under such quota by charging a higher
amount of fee. In fact, the term 'NRI' in relation to admissions is a
misnomer. By and large, we have noticed in cases after cases coming
to this Court, neither the students who get admissions under this
category nor their parents are NRIs. In effect and reality, under this
category, less meritorious students, but who can afford to bring more
money, get admission. During the course of hearing, it was pointed
out that a limited number of such seats should be made available as
the money brought by such students admitted against NRI quota
enables the educational institutions to strengthen its level of
education and also to enlarge its educational activities. It was also
pointed out that people of Indian origin, who have migrated to other
countries, have a desire to bring back their children to their own
country as they not only get education but also get reunited with
Indian cultural ethos by virtue of being here. They also wish the
money which they would be spending elsewhere on education of their
children should rather reach their own motherland. A limited
reservation of such seats, not exceeding 15%, in our opinion, may be
made available to NRIs depending on the discretion of the
management subject to two conditions. First, such seats should be
utilized bona fide by the NRIs only and for their children or wards.
Secondly, within this quota, the merit should not be given a complete
go-by. The amount of money, in whatever form collected from such
NRIs, should be utilized for benefiting students such as from
economically weaker sections of the society, whom, on well defined
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criteria, the educational institution may admit on subsidized payment
of their fee. To prevent misutilisation of such quota or any
malpractice referable to NRI quota seats, suitable legislation or
regulation needs to be framed. So long as the State does not do it, it
will be for the Committees constituted pursuant to Islamic Academy's
direction to regulate."
9.1 From the observations of the Hon'ble Apex Court as above, it would
be discernible that two conditions were laid down by the Hon'ble Apex
Court for reservation of 15% to be allocated to NRIs, the first and the
primary condition being that the seats should be utilized for bona fidely by
NRIs for their children or wards and secondly the merit should not been
given a complete go-by. It could also be noted that the Hon'ble Apex Court
was faced with the fact that institutions were granting admission to students
under the State quota by charging a higher fee and whereas the Hon'ble
Apex Court has noticed that in case of such admission, the term 'NRI' was
in fact a misnomer, more particularly neither the students who get
admissions under the said categories nor their parents were NRIs. In effect
such a tendency was sought to be curbed and whereas on the other hand,
the Hon'ble Apex Court has highlighted that NRIs would mean such
persons who have migrated to other countries and who wish their children
get education in their own country and thereby getting in sync with Indian
culture and values.
9.2 Considering the observations of the Hon'ble Apex Court, it would
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appear that the intent of the Hon'ble Apex Court in laying down conditions
while carving out reservation for NRI seats was to ensure that only genuine
NRIs get benefit of such reservation. It also clearly appears that the word
'bona fide' has been used, more particularly in context of backdoor NRI
admissions being granted by institutions to persons who were either not
NRI themselves or were not children of NRIs. The question therefore
would be whether the intent of the Hon'ble Apex Court to ensure that only
genuine NRIs get the benefit of admission could be sub-served by the
legislation i.e. the Gujarat Medical Admission Act, 2007 and the meaning
attributed and understood of the term 'ward' by the State Government and
by necessary extension the Admission Committee. The said aspect would be
addressed in the later part of the judgment.
10. It would also be pertinent to note here that both the decisions in case
Ruchin Bharat Patel (supra) and in case of Consortium of Deemed
Universities in Karnataka (supra), were absolutely interim arrangements,
more particularly which arrangements would continue for the said year only.
In case of the first decision i.e. in case of Ruchin Bharat Patel (supra), the
Hon'ble Apex Court had clearly observed at paragraph No.6 that "in view
of the peculiar circumstances of the case, for this year we are taking a
practical view of the situation and we feel that the students to these colleges
may be admitted under the following directions and we make it clear that
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this is exclusively for this year only as a one time arrangement because of
the peculiar circumstances of the case."
10.1 The above quoted observation of the Hon'ble Apex Court, does not
leave any element of doubt as regards applicability of the said directions i.e.
the directions were issued exclusively for the particular year, as a one time
arrangement on account of peculiar circumstances of the said case.
11. Again, as regard the decision in case of Consortium of Deemed
Universities in Karnataka (supra), it would be relevant to mention that the
principles set out by the High Court of Madhya Pradesh in Anshul Tomar
case (supra), were directed to be followed, more particularly on account of
the concession made by learned Additional Solicitor General requesting the
Court to make an interim arrangement subject to final adjudication of the
controversy. Again, it requires to be mentioned here that the direction
concerned was to be made applicable to deemed universities only and to no
other category of institution.
12. From the above, it would clearly appear that the decisions passed by
the Hon'ble Apex Court where interim arrangements made in the facts of
the case before the Hon'ble Apex Court. The said decisions did not lay
down any binding precedent, more particularly neither any ratio could be
deduced from the decisions nor any proposition of law being answered by
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the Hon'ble Apex Court. It also requires to be noted here that the Hon'ble
Apex Court was not concerned in both the decisions as regard defining the
term 'ward' nor the decisions would be read in any manner howsoever that
the Hon'ble Apex Court was infact laying down an interpretation of the
term 'ward' in context of NRI sets. It would also appear that in both the
scenarios, there does not appear to be existence of any intervening
legislation as in the present case. Thus, in the considered opinion of this
Court, the observations of the Hon'ble Apex Court in the above orders may
not advance the cause of the petitioner here.
13. Coming back to the issue of whether the term 'ward' could be given
an extended meaning beyond the spirit of the directions of the Hon'ble
Apex Court at Para 131 in case of P.A. Inamdar (supra), in the considered
opinion of this Court, the answer would be an emphatic no.
14. As noticed hereinabove, it would appear that while carving out
reservation to the extent of 15% for admission to medical colleges in favour
of the NRIs, the Hon'ble Apex Court was concerned with a situation where
under the guise of admission to NRI seats, admission was granted to
students who were neither NRIs nor their parents were NRIs. It is in
context of such a concerned that the Hon'ble Apex Court had observed that
the seats in the State quota should be given only to bona fide NRIs or their
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children or wards. In the humble opinion of this Court, seeking to widen the
scope of the term 'ward' beyond the term, would be doing violence to the
spirit of the observations of the Hon'ble Apex Court while carving out
reservation for NRIs.
15. The term 'ward' in its most elementary meaning as per the Oxford
Dictionary would mean 'a child who is under the protection of a court of
law, a child whose parents are dead and who is cared for by another adult
(guardian)'. The Blacks Law Dictionary defines the word 'ward', as 'a person,
usually minor, who is under a guardian's charge or protection'. In the
considered opinion of this Court, the word 'ward' used by the Hon'ble Apex
Court, has to be appreciated in the context of the normal-elementary
meaning of the term 'ward' read with the spirit of the observations as
referred to hereinabove. The Hon'ble Apex Court inter alia observed and
has used the word 'ward' in the first condition whereby the Hon'ble Apex
Court inter alia lays down that the seats should be utilized by genuine NRIs
only for their children or wards. Thus, the idea was to ensure that in
addition to the children of NRIs, if a child is a ward of a bona fide NRI, he
should also be entitled to get the benefit of admission in NRI seats. Thus, in
the considered opinion of this Court, the word 'ward' appearing in the
decision of the Hon'ble Apex Court in case of P.A. Inamdar (supra), has to
be viewed as describing a minor who is in the guardianship of a NRI.
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15.1 Furthermore, it would be relevant to observe that while the said
decision itself envisages legislation to be framed, more particularly 'to
prevent misutilization or malpractice referable to NRI Quota Seats' and
therefore in the considered opinion of this Court, the word 'ward' used in
the context of the legislation could also not extend beyond the plain
meaning ascribed to the term. Again, in context of legislation, more
particularly since the word 'ward' envisages a minor who is under the
protection of an adult, the law which regulates such guardianship in the
country being the Guardians and Wards Act, therefore the definition of the
term 'ward' has rightly been attributed the same definition as found in the
legislation governing such a relationship.
16. In the considered opinion of this Court, when the genesis of granting
reservation to NRIs is on the basis of the observations of the Hon'ble Apex
Court at Para No. 131 in case of P.A. Inamdar (supra), P.A. Inamdar
(supra), where the Hon'ble Apex Court envisages grant of admission in the
State quota to genuine NRIs and their children or wards and the said
paragraphs also envisages a legislation to ensure mis-utilization or
malpractice in the said quota and where a legislation is brought by the State
Government inter alia defining NRI seats and whereas definition of the
word 'ward' is attributed the same definition as the legislation which governs
appointing of a guardian for a minor, then to this Court it would appear that
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the State has followed the spirit of the observations of the Hon'ble Apex
Court in case of P.A. Inamdar (supra), and whereas by no stretch of
imagination the State could be faulted in doing so.
17. Learned Senior Advocate on behalf of the petitioner has also raised
the contention that the action on part of the State amounts creating a class
within the class and whereas the classification is not founded on intelligible
differentiate and it does not have any rational relation with the object sought
to be achieved. In this regard, it would be pertinent to observe that by now
it is a well settled principle that reasonable classification is permissible
provided the classification has a rational basis and does not discriminate
between persons who are similarly situated. In case of State of Gujarat
versus Shri Ambika Mills Ltd. reported in 1974 (4) SCC, page 656, the
Hon'ble Apex Court had inter-alia observed that a reasonable classification
is one which includes all who are similarly situated and none who are not.
The Hon'ble Apex Court had further observed that for understanding the
true purport of the term 'similarly situated' one should look beyond the
classification to the actual purpose of the law, concerned, that the purpose
of a law could either be elimination of a public mischief or the achievement
of some positive public good.
18. Considering the present issue from the viewpoint of the law laid
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down by the Hon'ble Apex Court, it would appear that the purpose of law is
to ensure that only such students who fall in the category of bona fide NRIs
and their children or wards are given admission in the seats reserved in NRI
quota. The mischief intended to be rectified is the misuse of the said quota
by non-genuine NRIs. In the considered opinion of this court, the
classification made by the state to achieve the above objective could not be
stated to be unreasonable classification more, particularly considering that
such classification had a rational relation with the object sought to be
achieved.
18.1 It also requires mention here that the similarity which is claimed by
the petitioner is also illusory inasmuch as there does not appear to be any
discrimination by the State of Gujarat as regards similarly situated persons
rather the discrimination allegedly claimed by the petitioner is on the basis
that persons with similar relation to NRIs as the petitioner being eligible for
admission to the NRI category in deemed to be universities, which
admission is being regulated by the central government whereas the
petitioner is not eligible for getting admission in the State quota. In the
considered opinion of this Court that does not appear to be any
discrimination or classification by the State between two similarly situated
persons and whereas, under such circumstances also, the contention by the
learned Senior Advocate for the petitioner could not be countenanced.
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19. Insofar as the aspect of guidelines of the Central Government is
concerned, having primacy over the legislation of the State, in the
considered opinion of this Court, such a submission would only be
countenanced, if two basic conditions are fulfilled namely there exists a
legislation or an executive order of the Central Government and whereas
the State Government has issued a legislation or even an executive order,
which is repugnant to the legislation or the executive order of the Central
Government. In the facts of the case, it would appear that the Medical
Counselling Committee of the Central Government has issued an
Information Bulletin and Counselling Scheme for NEET- PG Counselling
2023, which inter alia envisages a reservation policy for NRIs and the
relationship of the NRI with the candidate would be as per the decision of
the Hon'ble Apex Court in case of Consortium of Deemed Universities in
Karnataka (supra), in the considered opinion of this Court, the Information
Bulletin and Counselling Scheme would neither be termed as a legislation
nor would be termed as an executive order. Insofar as the law laid down by
the Hon'ble Apex Court in case of State of T.N. and Another Vs.
Adhiyaman Educational & Research Institute and Others (supra), it does
not appear that there is any Central legislation to which the present State
legislation is in conflict with, therefore the law laid down by the Hon'ble
Apex Court in the said decision would not advance the cause of the
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petitioner.
19.1 Moreover, as far as the State Government is concerned, the State
Government has issued a legislation in form of the Gujarat Medical
Admission Act, 2007, yet, the stand of the State that the definition of the
term 'ward' in the legislation which governs appointing of guardian for a
ward, would not be definition of the said term, would not by itself permit
the petitioner to contend repugnancy. In the considered opinion of this
Court, there being no similar legislation or executive instructions, there
cannot be an aspect of repugnancy. The above observations would also
apply mutatis mutandis to the submission with regard to the Article 162 of
the Constitution of India.
20. Having regard to the above discussion, the questions as framed at
Paragraph No.8 are answered as thus :
(1) It is well within the powers of the State to define the term
'ward' as per the definition as found in the Guardians and Wards Act, 1890
for the said term as appearing in the definition of the term 'NRI seats' in the
Gujarat Medical Admission Act, 2007.
(2) The State on account of having its own legislation could follow
its own eligibility criteria for admission to the NRI quota, since the State
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legislation is not repugnant to any central legislation.
(3) The Hon'ble Apex Court in cases of Ruchin Bharat Patel
(supra) and Consortium of Deemed Universities in Karnataka (supra) was
not defining or explaining or interpreting the term 'ward' and whereas since
the orders were purely interim arrangements, the State Government was not
required to follow the same.
21. In view of the above discussion, reasoning and conclusion, in the
considered opinion of this Court, no arbitrariness could be attributed to the
State in considering the definition of the term 'ward' in the Gujarat Medical
Admission Act, 2007 as per the definition of the term 'ward' appearing in
the Guardians and Wards Act, therefore no interference by this Court is
called for. Hence, the present petition stands disposed of as rejected.
(NIKHIL S. KARIEL,J)
BDSONGAR
