Punjab-Haryana High Court
Devbir Singh vs State Of Punjab And Ors on 10 September, 2024
Author: Anil Kshetarpal
Bench: Anil Kshetarpal
Neutral Citation No:=2024:PHHC:118234-DB
CWP No.20041 of 2024(O&M)
and other connected cases -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
(1) CWP No.20041 of 2024(O&M)
Reserved on: 03.09.2024
Date of Order: 10.09.2024
Devbir Singh
..Petitioner
Versus
State of Punjab and others
..Respondents
(2) CWP No.20788 of 2024(O&M)
Reserved on: 04.09.2024
Geetan Verma and others
..Petitioners
Versus
State of Punjab and others
..Respondents
Reserved on: 04.09.2024
Anam Bhangoo ..Petitioner
Versus
State of Punjab and another
..Respondents
Reserved on: 04.09.2024
Manleen Kaur
..Petitioner
Versus
State of Punjab and others
..Respondents
CORAM: HON'BLE MR. JUSTICE SHEEL NAGU, CHIEF JUSTICE
HON'BLE MR. JUSTICE ANIL KSHETARPAL
Present: Mr. D.S.Patwalia, Senior Advocate with
Mr. Kannan Malik, Advocate
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Mr. Ritesh Aggarwal, Advocate
Ms. Alisha Sharda, Advocate
for the petitioner (in CWP-20041 of 2024)
for respondent no.6 to 18 (in CWP-20788 of 2024).
Mr. Amit Jhanji, Senior Advocate, with
Mr. Kunal Mulwani, Advocate,
Mr. Ritvik Garg, Advocate and
Ms. Eliza Gupta, Advocate
for the petitioners (in 20788 of 2024)
Mr. Ghulam Nabi Malik, Advocate
for the petitioner (in CWP-21790 of 2024)
Mr. Punit Jain, Advocate
for the petitioner (in CWP-22101 of 2024)
Mr. Gurminder Singh, Advocate General, Punjab
Mr. Saurav Khurana, Addl. Advocate General, Punjab
Mr. Anurag Chopra, Addl. Advocate General, Punjab.
Mr. Nitin Kaushal, Advocate and
Mr. Sahil, Advocate, for Baba Farid University.
Mr. Shailesh Aggarwal, Advocate
for respondent-Dr. Ambedkar University.
Mr. Anand Chhibbar, Senior Advocate, with
Ms. Shreya B. Sarin, Advocate
for the applicant-Ms. Sehar Sandhu
(in CM-14173-2024 in CWP-20788 of 2024)
Mr. A.P.S.Sandhu, Advocate
for the applicant-Ms. Rupinder Kaur Sahi
(in CM-14046-2024 in CWP-202788 of 2024).
ANIL KSHETARPAL, JUDGE
TABLE OF CONTENTS:-
Sr.No. Description Page No.
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III Vested right of the candidates 21
belonging to the general category
allocation (in NRI quota)
VIII Enabling power of State to alter 26
conditions
IX Education:- A profit Driven Enterprise 26
or a welfare oriented Endeavour?
X Exercise of enabling power after the 26
last date of submissions of the
applications: Bonafide or Not?
1. FACTUAL BACKGROUND
1.1 With the consent of the learned counsel representing the parties,
this order shall dispose of four connected Civil Writ Petition Nos.20041,
20788, 21790 and 22101 of 2024.
1.2 In the matter at hand, the following question has arisen for
adjudication:-
"If in accordance with the State Government's policy, a
15% reservation for genuine NRI is provided in the
prospectus for admission to a professional course,
whether a subsequent decision to include non-genuine
NRIs after the deadline for submitting admission forms is
sustainable?
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1.3 The common issue in these four writ petitions relates to
admission in MBBS-2024 Course under the 15% quota reserved for Non
Resident Indian (NRI) within State quota (85%) in the State of Punjab.
After the result of NEET(UG)-2024 was declared on 26.07.2024, the work
of filling up 85% seats was assigned by the State of Punjab to Baba Farid
University of Health Sciences(BFUHS) which issued prospectus on
09.08.2024. The following schedule was notified by the University:-
"SCHEDULE FOR ADMISSION UNDER NEET UG-2024
IMPORTANT DATES
1. Availability of prospectus on University 09.08.2024
website www.bfuhs.ac.in
2. Last date for applying online Admission 15.08.2024
Application Form through University
Website
3. Last date for depositing fee of 16.08.2024
Rs.5000+18% GST (Rs.5900/-) &
Rs.2500+18% GST (Rs.2950/-_ for SC
candidates through Online payment
gateway
4. Sports Category Candidates will submit 16.08.2024
printed/hard copy of online submitted
form personally (by hand) in the
University along with Sports Gradation
Certificate issued by the Director, Sports,
Punjab and others supporting self-attested
copies of certificates/documents
Note: Persons with Disability-PWD
(Category Code 16)-shall produce
Disability Certificate (as per prospectus
Page No.35) duly issued by the
Designated Centred(s) as informed by
DGHS, New Delhi to the Principal at
the time of reporting in the
provisionally allotted college.
5(i) Verification for eligibility of Christian 09.08.2024 to
Minority Quota Candidates for admission 17.08.2024
to MBBS/BDS Courses, sessions 2024
will be conducted at the following venue:
Christian Minority-At Christian
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Medical College, Ludhiana.
5(ii) Verification for eligibility of Sikh 16.08.2024 to
Minority Quota Candidates for admission 18.08.2024
to MBBS/BDS Courses, sessions 2024
will be conducted at the following
venuie:-
Sikh Minority-At SGRD Institute of
Medical Sciences & Research, Amritsar.
Note: Candidates who have applied under Sikh/Christian Minority Quota
must report to the respective Institute(s) as cited in para 5(i) & 5(ii) above
alongwith all original certificates/documents including document in support
of claim under Minority Quota as per rules/notification otherwise you will
not be able to fill the Choices/preferences of concerned minority quota
seats.
FOR NRI CANDIDATES
6. Last date for submitting physical 19.08.2024
application form for NRI quota
(Application form for Eligibility
Certificate and admission application form
for NRI candidates is separately available
on University website i.e.
www.bfuhs.ac.in
7. Display of Provisional Merit List of Upto 20.08.2024
Candidates
8 Last date for submission of objections in 21.08.2024
Provisional Merit List (if any) by the (Upto 05:00 PM)
NEET UG aspirants. Note: Objections
can be submitted only by personal
appearance/visit along with relevant
documents/record in Admission
Branch, BFUHS, Faridkot.
9. In case there is any change in Provisional Upto 23.08.2024
Merit List after considering objections, the
same will be displayed through university
website on
The Schedule for 1st Round of Online Counselling
1. Choice filling for 1st Round of Online 10.08.2024 to
Counselling 24.08.2024
2. Processing of Seat Allotment 25.08.2024 to
27.08.2024
3. Display of Result 28.08.2024
4. Last date for submission of objections in 29.08.2024
Provisional Allotment List (if any) by the (Upto 04:00 PM)
NEET UG aspirants. Note: Objections
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can be submitted only by personal
appearance/visit along with relevant
documents/record in Admission
Branch, BFUHS, Faridkot. Objections
received through email will not be
accepted.
5. In case there is any change in provisional 30.08.2024
allotment after considering objections, the
same will be displayed through University
website on
6. Physical Reporting by candidates to the 31.08.2024 to
respective provisionally allotted colleges 05.09.2024.
and deposition of six months tuition fee
through University Payment Gateway
available on the University website in
Student Login
1.4 For the purpose of decision of the present case, the following
notes/clauses of the prospectus are considered relevant:-
"Note-1:- Any subsequent Notification /Notice
/Amendments /Corrigendum's issued by the Govt. of
Punjab/University will be followed in letter and spirit.
For any update visit University website regularly."
PART-A
GENERAL INSTRUCTIONS (PLEASE READ IN DETAIL)
"3. This prospectus is subject to
alteration(s)/modification(s) at any time without notice.
Please visit University website from time to time.
Admissions including Eligibility to MBBS/BDS Courses
shall be governed and regulated as per the rules and
regulations etc., as per Punjab Govt. notifications.
4. Instructions in this prospectus are liable to change
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based on decision(s) taken by the Punjab
Government/University/Govt. Of India/MCC from time to
time. There is no equity or any rights that are/or deemed
to be arising in favour of candidate.
5. The candidate should read the eligibility condition
carefully. Mere submission of application for
admission/counselling does not entitle him/her for
admission. Eligibility conditions for admissions are
given in the Notification. The eligibility shall be
determine by the Selection Committee/Principal of
concerned college at the time of counselling/admission.
Those who are not eligible as per Punjab Govt.
notification will not be considered for admission.
Eligibility is also subject to medical fitness and such
cirteria as may be prescribed by the Punjab
Government/University/Medical institutions/National
Medical Commission/Dental Council of India.
9. Distribution of seats will be as per Punjab Govt.
Notification, the list of eligible colleges/seats may
increase/decrease, subject to the orders of Hon'ble
Courts/NMC/DCI/Govt. The final position of seats will
be displayed at the time of counselling.
23. Instructions for NRI Candidates only:- Candidates
who wants to apply under NRI quota seats, have to obtain
provisional Eligibility/equivalency certificate from
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BFUHS, Faridkot and will have to qualify NEET-UG-
2024 and candidates will apply on prescribed proforma
available on website along with prescribed fee for seats
under NRI quota."
"Step-I SUBMISSION OF ONLINE ADMISSION
APPLICATION FORM
"9. Candidate shall submit online ADMISSION
APPLICATION FORM only once. Applications
submitted more than once are liable to be rejected.
13. After the last date for applying online application
form, it will get locked automatically. Thereafter, no
change (regarding any particulars) can be made and no
request/application will be considered/accepted, in this
regard.
14. Fill category carefully in the online Admission
Application form. Category once claimed will not be
changed in any case after submitting the form.
Those candidates, who do not fill/claim any category
code as per prospectus or fill a wrong category code
other than mentioned in prospectus, will be treated in
Open merit. The candidate may select a category code
from the codes given below and fill the category
accordingly. More than one category may be filled by a
candidate if it is considered applicable in the candidate's
particular case. Category codes are exclusively for the
purpose of facilitating the candidates to know and
understand his/her respective merit placement at the time
of counseling in various reserved categories as have been
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filled by him/her. Reserve category selection on the part
of the candidate shall not in any case be construed to
give him/her any legitimacy or right or claim on the
benefits for reserved seats during admission. Claims to
admissions against reserved seats in MBBS/BDS courses
will be on the basis of appropriate claims made in the
Admission Application Form subject to rules and
regulations contained in the Punjab Government
Notifications printed in the Part-B of this prospectus and
as per the decisions of the Selection Committee
constituted for this purpose by the Punjab Government.
No benefit of reservation whatsoever shall be given if the
claim is not made in Admission Application Form.
17. Non-Resident Indian (NRI) SEATS
15% seats in all Private Institutes/Guru Gobind Singh
Medical College Faridkot and 13 seats each in Govt. Medical
College, Patiala and Amritsar and 3 seats in Govt. Dental
College, Amritsar and 4 seats in Govt. Dental College,
Patiala shall be earmarked for the Non-Resident Indians in
the following order:
Category I: NRI/Children of NRI who originally belong to the
State of Punjab. Category II: NRI/Children of NRI who
originally belong to an Indian State other than Punjab.
(i) Under this policy Non Resident Indian means a person of
Indian origin, whether holding an Indian Passport or Foreign
Passport, who is either permanently or temporarily settled
outside India and in either case:
(i) for or on taking up employment outside India; or
(ii) for carrying on a business or vocation outside
India, or
(iii) for any other purpose, in such circumstances, as
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would indicate his intention to stay outside India for an
uncertain period; For ascertaining the eligibility
relevant documents including Foreign Country
Passport or Green Card or Permanent Resident Card
or Proof of Residency of Foreign country issued by
competent authority or OCI/PIO Card issued by the
Government of India shall be taken into consideration.
(ii) The eligibility of the candidates shall be determined by
the Baba Farid University of Health Sciences, Faridkot, who
shall issue an eligibility certificate to each such candidate.
(iii) The fee notified for NRI category shall be applicable to
NRI candidates getting admission to Govt. Medical/Dental
Colleges also.
(iv) The NRI students shall have to give a bank
guarantee/surety bond for the balance of fee, if they opt to
pay the fee in installments as provided.
(v) The Centralized Counselling of NRI quota seats shall be
held before the Counselling for other categories. In case of
any seat remaining vacant under NRI quota, during / after
2nd Centralized Counselling of NRI quota in State Colleges,
it shall go to General category and in the Private
Colleges/Minority colleges shall go to General Category of
the Management/Minority quota. The NRI left over seats
shall be filled by the sme Admission Committee from
amonst the eligible candidates of NEET.
(vi) OCI/PIO candidates shall be considered only for
15% NRI Quota seats.
20. GENERAL CONDITIONS:-
j) Guidelines of MCC shall be followed and referred to,
from time to time in the process of counselling.
21. The State Government reserves the right to amend
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any clause and procedure for admission."
1.5 On 20.08.2024, the following corrigendum was issued
substituting the relevant clause with respect to scope and ambit of students
who are entitled to be considered for NRI seats:-
"Modified Provisions
1. For admission under the NRI quota/NRI category
seats, preference be given according to the following
order:
a. Actual NRIs candidates who originally belonged to the
State of Punjab.
b. Children of NRIs who originally belonged to Punjab
State.
c. Actual NRIs who originally belonged to an Indian
State or Union Territories other than Punjab
d. Children of NRIs who originally belonged to an Indian
State or Union Territories other than Punjab.
e. If in case the seats of NRI's are left vacant after
considering the above preferences (a-d) then the
candidates who is the Ward/Nearest relation of NRI
shall also be considered under NRI quota seats:-
The degree of relation with NRI will be considered as
per the following orders of preference mentioned as
under:-
I. He/she shall be in the nearest relation.
II. In the definition of nearest relation, following
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relation having blood relations will be considered:-
a) Real Brother and sister of father i.e. real uncle and
real aunt.
b)Real brother and sister of mother i.e real maternal
uncle and maternal aunt.
c) Father and mother of father i.e grandfather and
grandmother.
d) Father and mother or mother i.e maternal
grandfather and maternal grandmother.
e) First degree-paternal and maternal cousins.
f) Such persons should be NRI.
III. Such persons should ordinarily be residing abroad.
IV. Such person should have looked after such student
as the guardian of the student and evidence to that
effect must have been produced before the Committee
by such person in the form of an affidavit duly verified
by the competent authority.
Note:-
. Any seats remaining vacant under NRI category after
the second round of counselling shall go to the NEET
qualified eligible foreign national. However, if the seats
still remain vacant these shall be converted to general
category seats in the Government/Government Aided
Colleges and Management Category seats in the Private
colleges.
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. The fee of the NRI candidate shall only be accepted
from NRI/NRE bank account."
1.6 This was followed by an addendum on 22.08.2024, which reads
as under:-
" After partial modification in Para-17 of Notification
dated 09.08.2024
15% seats in all Private Institutes/Guru Gobind Singh
Medical College Faridkot/Dr. B.R.Ambedkar State
Institute of Medical Sciences (AIMS Mohali) and 13 seats
each in Govt. Medical College, Patiala and Amritsar and
3 seats in Govt. Dental College, Amritsar and 4 seats in
Govt. Dental College, Patiala shall be earmarked for the
Non-Resident Indians in the following order:"
1.7 As per the State's reply, the provisional merit list of NRI
candidates (original NRI) was prepared on 22.08.2024, whereas on
23.08.2024, the list of sponsored NRI candidates was finalized, however, in
view of interim order passed on 28.08.2024, the same has not been
uploaded.
1.8 While praying for reading down the definition/description of
Non Resident Indian as provided under Clause 17 of notification dated
09.08.2024, CWP No.20041 of 2024 was filed on 14.08.2024, in which
notice of motion was issued and as an interim measure the petitioner-Devbir
Singh was permitted to provisionally appear in counselling, however, result
of counselling qua the petitioner shall not be disclosed without leave of the
court. It was clarified that the petitioner shall not derive any equity from this
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order.
1.9 The General Category aspirants (GCA) filed Civil Writ Petition
No.20788 of 2024, on 23.08.2024, questioning the correctness of
corrigendum and addendum issued on 20.08.2024 and 22.08.2024, which
came up for hearing on 27.08.2024, however, adjourned to next day i.e.
28.08.2024. After hearing the learned counsel for the rival parties, the
operation of corrigendum dated 20.08.2024 and 22.08.2024 was stayed and
the process of admission was directed to be continued in accordance with the
schedule as per original prospectus MBBS/BDS 2024.
1.10 During the pendency of the CWP No.20788 of 2024, as many
as 15 Non Resident Indians who are expected to be beneficiaries of the
corrigendum and addendum have become a party to he writ petition. They
have been heard.
1.11 CWP Nos.21790 and 22101 of 2024, have been filed by the
candidates who want to take benefit of the expanded scope of admission in
NRIs category. However, their grievance is that insufficient time was
provided for completing the formalities while contending that the
corrigendum was issued late in the evening on 20.08.2024 and in the matter
of one day i.e. on 21.08.2024, the candidates were directed to submit the
following documents:-
"1. Consulate General Embassy Certificate of NRI
2. Passport/PR Card/Green Card of NRI
3. Undertaking of Grand Parent/Parent showing Family
Tree (Kursinama) in original (Attested by Notary)
4. Copy of NRI Certification by sponsoring
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person(Attestation from Notary Abroad/consulate
General of India)
5. Relationship declaration by NRI with applicant.
(Attestation form Notary Abroad/Consulate General of
India)
6. Undertaking by NRI that he/she willing to sponsor the
applicant. (Attestation from Notary Abroad/Consulate
General of India)
7. NEET Score card.
8. 2 passport size photos of Applicant.
9. Address proof of NRI (Driving License/Bank passbook,
lease agreement etc.)"
2. SUBMISSIONS:-
2.1 Sh. Amit Jhanji, the learned senior counsel representing the
general category candidates contends that the corrigendum dated
20.08.2024, has been issued after the last date (19.08.2024) for submission
of application by the students seeking admission in NRI category had come
to an end. Once the last date for submitting the application forms was over,
the issuance of corrigendum has resulted in changing the rules of admission
midway after the admission had begun was not appropriate. He submits that
in order to divert the seats which would have otherwise come to GCA, in
case of vacancy, as per clause 17(v) of the prospectus, the corrigendum has
been issued by modifying and expanding the scope of category of NRI or
their children. While referring to the various judgments including P.A.
Inamdar & Ors vs State of Maharashtra & Ors, (2005) 6 SCC 537, he
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submits that despite clear observations of the Supreme Court, the State
Government in order to deprive the GCAs, who are meritorious has
arbitrarily and illegally issued corrigendum and addendum. He also drew
attention of the court to the addendum issued on 22.08.2024, wherein 15%
seats in Dr. B.R.Ambedkar State Institute of Medical Sciences have been
added for the first time. He further submits that out of 19 candidates, who
are sought to be admitted under the expanded scope of NRI seats, 15
candidates had previously applied only in the general category. He while
referring to para 6 and 7 of the State's reply, submits that the State of Punjab
has failed to offer any plausible explanation that justifies the modification of
the provision and the issuance of addendum, which reads as under:-
"6. That as per the admission schedule, the last date for
submitting the physical application form for the NRI
quota seats was 19.08.2024. The definition of NRI
category as mentioned in Clause 17 of the Notification
dated 09.08.2024 was clarified by way of Corrigendum in
order to comply with the judgment of the Hon'ble
Supreme Court in order to fill the seats of NRI quota in
its true intent and purpose. Thus, its not anything new
laid down by way of corrigendum, rather the already
settled position of law has been reiterated and clarified in
the corrigendum. The said corrigendum dated
20.08.2024 was issued on the basis of the various
suggestions/representations from the students that the
NRI quota has been defined by various State
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Governments including State of Rajasthan, Haryana,
Himachal Pradesh, Chandigarh and Puducherry and has
also been noticed by the Hon'ble Supreme Court in its
Consortium of Deemed Universities in Karnataka and
another versus Union of India and others. The
corrigendum stood issued to ensure level playing field to
the NRI candidates and also to ensure that the rights of
the NRI candidates are not infringed on the basis of
clause in the notification. Copy of the relevant clause of
NRI category in State of Haryana, U.T. Chandigarh,
Himachal Pradesh are annexed herewith as Annexure
R-1.
7. That before issuing corrigendum to the existing policy
of NRI, legal opinion from Department of Legal and
Legislative affairs Punjab and Advocate General, Punjab
was taken. After their approval the process of issuing the
corrigendum was initiated. The provision regarding NRI
was amended after approval from the competent
authority."
2.2 Per contra, Sh. Gurminder Singh, learned AG, Punjab, Sh.
D.S.Patwalia, Sh. Anand Chhiber, learned Senior Advocates and various
other counsels representing the private respondents have submitted that there
is huge population of NRIs from Punjab, who are settled abroad, but they
have their roots connected to their motherland. They asserted that even the
prospectus issued by the Union of India and other neighbouring States gives
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a vast definition of NRI category and hence the modification is not violative
of law. Moreover, the GCA have no locus standi because there is no change
in the 15% seats allocated to the category of NRIs. It is submitted that
neither any receipt of capitation fee has been allowed nor there is any
profiteering made out of the NRI seats. To set off the subsidized government
quota seats, policy decision to widen the scope of admissions under NRI
category has been taken while extending the last date for submitting the
physical application forms by the NRIs to 21.08.2024. It is also submitted
that the modified criteria is restricted to NRIs, their children, wards/nearest
relations and hence the seats are not for sale or money making purposes.
The learned counsel also disclosed that on 27.08.2017, 117 NRI students
were identified for selection but they have not been impleaded as a party.
Hence, the writ petition is liable to be dismissed on non-joinder of necessary
parties.
2.3 In addition, Sh. D.S.Patwalia, while referring to
P.A.Inamdar's case (supra) contends that the judgment itself gives absolute
discretion to the management to fill up 15% NRI quota seats. The GCA
have no vested right in these 15% seats, and the writ petition has been filed
in anticipation is not maintainable. This court is expected to maintain a
delicate balance between equity and law and if the writ petition is allowed,
117 NRIs would not get admission, whereas the GCA will get the
management quota seats and the NRI students have already submitted their
testimonials. He also asserts that there is a fundamental flaw in the
argument of the GCA because the corrigendum and the addendum are only
clarificatory in nature which results in the correction of an error which is
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permissible. The learned counsel also contended that it was the State's
bounden duty to bring the definition of 'NRI' in State of Punjab at par with
the definition of 'NRI' defined in the brochure issued by MCC. It is also
contended that the category of NRI in Punjab is required at par with the
category of NRI defined in brochure issued by the MMC. In the end, he
submitted that this court should not delve deeper into the issue because it is
academic and in any case the general category candidates will get admission
in the management quota seats.
2.4 Sh. Anand Chhibbar, learned senior advocate has submitted that
the State has enabling power to amend the prospectus which has been duly
exercised. Mr. Kaushal, the learned counsel representing the University
while adopting the arguments of AG, Punjab, has submitted that the
corrigendum results in clarification and it has not made any fundamental
changes in the prospectus.
2.5 Sh. Shailesh Aggarwal, the learned counsel representing Dr.
B.R.Ambedkar State Institute of Medical Sciences has submitted that 15%
seats out of State quota have correctly been allocated to the Institute at par
with other institutes.
2.6 In re-joinder, the GCA's submits that the brochure issued by the
NMC is with respect to the 'all India quota' seats. He submits that the State
of Punjab has acted malafidely in order to help the influential persons and
the private medical colleges.
2.7 Sh. D.S.Patwalia, learned senior advocate has also filed a
written note of his submissions.
3. ANALYSIS AND DISUCSSION
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I. NON-JOINDER OF NECESSARY PARTIES
3.1 It may be noted here that as many as 16 NRI beneficiaries have
themselves become a party to the petition filed by the GCA. Mr. Devbir
Singh, the petitioner, in the Civil Writ Petition No.22041 of 2024, is also
represented. Thus, in substance, 17 candidates have been heard. The AG,
Punjab, while appearing on behalf of the State of Punjab has himself come
forward to oppose the claim of the GCA. In all, as many as three learned
senior counsels have been heard.
3.2 In para 51 of Ajay Kumar Shukla and others vs. Arvind Rai
and others, (2022) 12 SCC 579, as well as in para 81 of Mukul Kumar
Tyagi and others vs. The State of Uttar Pradesh and others (2020) 4 SCC
86, the Supreme Court held that the impleadment of a few affected parties
would be sufficient compliance of principles of natural justice particularly
when their interest is common and they would be deemed to represent
interest of all the affected parties. Moreover, in such cases, the time is of the
essence. At times, even a single day's delay can prove fatal, because it can
result in irreversible consequences. The State of Punjab and University have
disclosed in their separate replies for the first time, that 117 aspirants
pursuant to expended scope of NRI category have participated in the
counselling. Their names have not been disclosed by the University's
counsel but he admits that the University had not declared the provisional
allotment of NRI seats in view of interim order. It becomes clear that due to
non-announcement of the results of counselling, as of now, 117 students
have not been allocated colleges, and therefore, they have not been granted
admission in the MBBS course. Hence, the question of non-joinder of
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necessary parties does not arise. There is no delay in filing the writ petition
by the GCAs as the corrigendum and addendum were issued on 20.08.2024
and 22.08.2024, whereas the writ petition was filed on 23.08.2024.
Moreover, 117 candidates as per State of Punjab's reply have been permitted
to participate in the counselling during the pendency of the writ petition,
hence, their right to secure admission in the institute on the basis of 'NRI
Quota' is subject to the rule of lis-pendens.
3.3 From the foregoing discussion, the objection with respect to the
non-joinder of parties is rejected.
II. LOCUS-STANDI OF PETITIONERS
3.4 The next objection of the respondent's counsel is with respect
to GCA's locus-standi. The Clause 17(v) provides that the seats remaining
vacant under NRI quota during/after second counselling of NRI quota in
State colleges, will convert to open/General Category Seats of counselling.
Hence, GCA have locus to maintain the writ petition.
III. VESTED RIGHT OF CANDIDATES BELONGING TO
GENERAL CATEGORIES(GC)
3.5 Similarly, the argument of Sh. Patwalia, that the petitioners do
not have a vested right lacks merit. The GCAs are entitled to be considered
for the vacant seats allocated for NRI quota as per the original clause 17(v)
of the prospectus. Their right for consideration against the aforesaid seats is
based upon legitimate expectation as per the propsectus. They may not have
a vested right of getting the admission, however, they do have a right of
being considered fairly.
IV. MANAGEMENT QUOTA SEATS.
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3.6 It is crucial to understand that a lot of meritorious students in
the category of GCA, may not have the financial capacity to pay for the
management quota seats. The difference between the fee structures
prevailing in the government colleges and the private colleges is extensive.
In the private colleges, the seats are divided in three categories. The fee
structure for first year in Government Medical Institution/Government
Society is Rs.1,83,000/-, whereas in Private Institutes/Universities (under
government quota) which is 50%, the fee for the first year is Rs.4,26,000/-.
In private institutions/universities, the management quota fee for the first
year is Rs.10,94,000/-, whereas, 15% NRI quota in MBBS in
Government/private medical institutes/colleges is $1,10,000/-. Moreover,
the meritorious candidates are required to be preferred particularly when the
unamended prospectus makes a provision.
V. TERM 'WARD' EXPOUNDED
3.7 The Gujarat High Court while examining the scope of the word
'ward' in Chandibhamar Abhey Sanjaykumar vs. The State of Gujarat and
others, (2024) 1 GLR 447 has observed in the following manner:-
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
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that the seats in the State quota should be given only to
bona fide NRIs or their 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
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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. 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."
VI. BALANCING OF THE EQUITIES:-
3.8 The next argument of Mr. Patwalia is that the court is required
to maintain a delicate balance between equity and law. In the considered
opinion of this Court, the Court while exercising its extra-ordinary writ
jurisdiction, is required to follow the law while attempting to balance the
equities.
3.9 Similarly, the argument of the learned counsel that 117 NRI
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students would stand deprived of admission lacks substance because the
general category candidates, who are comparatively meritorious than 117
NRI aspirants cannot be deprived of their chances only to make way for
students who have wherewithal to pull the strings and study any where in the
world.
VII. CHANGE IN THE CRITERION OF SEAT
ALLOCATION (IN NRI QUOTA):-
3.10 Similarly, Mr. Patwalia's argument that there is no change in
the criterion is against the record. It is evident from comparative/ side by
side reading of clause 17 of the original prospectus and corrigendum dated
20.08.2024, that the category of NRIs/their children has been expanded by
substitution; in order to accommodate candidates, who are either the wards
or the nearest relation of NRIs including the real brother or sister of father,
real brother or sister of mother, father and mother of father, father and
mother of mother, first degree paternal/maternal cousins. They are sought to
be included in the category of NRIs only because one of their relative is
settled out of India who is prepared to lend his name though the student or
his parents are not NRIs. Moreover, Clause (IV) is vague and amenable to
misuse. No elaborate and clear criteria has been laid down to evaluate the
guardianship of the NRI. As per the corrigendum, the evaluation of
guardianship is so vague that it is apparent that the process is not wholly
transparent. It has been based upon the subjective satisfaction of the
committee on the basis of affidavit submitted by the NRI. The experience
shows that such vague stipulation leads to arbitrary use and it encourages
corruption.
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VIII. ENABLING POWER OF STATE TO ALTER
CONDITIONS:-
3.11 The last submission of Mr. Patwalia is with regard to State's
enabling power to alter the conditions while placing reliance upon various
clauses of the prospectus. This aspect is required to be analyzed in the
context of clarification/removal of difficulties at the eleventh hour. Such
power to amend or correct cannot be permitted to be used to fundamentally
change the scope of category of 'NRI' so as to admit less meritorious
students in medical colleges.
IX. EDUCATION:- A PROFIT DRIVEN ENTERPRISE OR A
WELFARE ORIENTED ENDEAVOUR?
3.12 However, imparting education is not an economic activity but a
welfare oriented endeavour as the ultimate aim is to achieve an egalitarian
and prosperous society in order to bring about social transformation and
upliftment of the nation. Doctrine of merit and fairness cannot be sacrificed
only because the students falling in the expanded definition of Non-Resident
Indian (NRI) possess financial muscle. Capitation fee has totally been
prohibited. If the admissions in the expanded NRI category to include non
genuine NRIs are permitted; the prohibition made on charge of capitation fee
would serve no higher purpose, as the State/private colleges would be at
liberty to reap the benefits by amending the provisions according to their
whims, which means accepting it by disguising the process.
X. EXERCISE OF ENABLING POWER AFTER THE LAST
DATE OF SUBMISSIONS OF THE APPLICATIONS:-
BONAFIDE OR NOT?
3.13 On 20.08.2024, the process of submitting applications had
already come to an end wholly. The subsequent amendment amounts to the
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substitution of a new clause while defining the category of NRI which has
resulted in fundamental changes. This amendment has been brought against
the observations made by the Court from time to time. In para 17 of a Full
Bench judgment in Amardeep Singh Sihota vs. State of Punjab, 1999(4)
R.S.J., 667, declared that the prospectus cannot be subsequently changed by
the Government to the detriment of the students to benefit other students. It
is also against the public interest because the paramount consideration while
imparting the medical education is to improve the facility of availability of
good doctors, so that poor health standards of the country are taken care of.
Meritorious doctors are the need of the hour, as they play a crucial role in
developing the health of the nation. The substitution of the expanded
category of NRI cannot be made applicable to the applications which had
already been submitted and the process of admission to the college had
reached at an advance stage. Moreover, no plausible explanation has been
put forth that explains the necessity to make changes in the policy after the
process of admission of students had made substantial progress. The reasons
disclosed by the Government in its written statement also do not justify
changes made in midstream. It is not appropriate for the Government to take
cover of the prospectus issued by the NMC because that prospectus only
relates to 15% 'All India quota' seats. The State is well within its power to
regulate the reservation of seats with respect to State quota. The regulations
made by MCI does not affect the competence of the States to make
provisions with respect to reservation. Reliance in this regard can be placed
on the judgment passed by the Constitutional Bench in Tamilnadu Medical
Officers Association and others vs. Union of India and others (2021) 6
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SCC 568 and Modern Dental College and Research Centre vs. State of
Madhya Pradesh, (2016) 3 CC, 353. By making changes the underlying
principles for admission had been changed after the admission process had
commenced which should not be permitted. By the evening of 19.08.2024,
the total number of eligible candidates, who had claimed admission through
the original NRI category were known. The subsequent change inidcates
that six(6) private private medical colleges in the State may have influenced
the process to increase their financial gain. Hence, changes made after the
admissions had commenced are not permissible in the eyes of law and
principles of natural justice.
XI. EXPANSION OF TERM 'NRI'
3.14 The category of NRI in the unamended prospectus covers
genuine NRIs. In fact, by substitution, the candidates who are not real NRIs
have been included. It may be noted here that while issuing the prospectus,
State of Punjab was not expected to be unaware of this position. Once a
conscious decision was taken to extend the benefit to genuinely eligible NRI
candidates as per P.A.Inamdar's case (supra), there was no occasion to
change the eligibility criteria. As already noticed, the State of Punjab has
failed to disclose the justifiable reasons that lead to the substitution and re-
opening of admission for the 'NRI' candidates and that also after the last
date.
3.15 The AG, Punjab, has contended that the UOI while issuing
brochure for NEET examination has followed the expanded criteria and in
the neighbouring States of Himachal Pradesh, Haryana, the scope of
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admission through 'NRI category' is wider than State of Punjab in
comparison. It is significant to note that the brochure issued by UOI is only
with respect to 15% 'all India quota' seats. The State Government is entitled
to lay down its own criteria with respect to admission to 85% seats which
fall in the State quota. The Supreme Court in para 131 of P.A.Inamdar's
case (supra) has held that the term NRI in relation to admission is a
misnomer. In most of the cases, the students who gets admission in this
category are neither NRIs or their children. Under this category, less
meritorious students who can afford to bring more money get admission.
Therefore, such category does not deserve any encouragement from the
Court. Para 131 is extracted as under:-
"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
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such students admitted against NRI quota enables the
educational institutions to strengthen its level of
education and also to enlarge its educational activities. It
was also pointed out that people of Indian origin, who
have migrated to other countries, have a desire to bring
back their children to their own country as they not only
get education but also get reunited with Indian cultural
ethos by virtue of being here. They also wish the money
which they would be spending elsewhere on education of
their children should rather reach their own motherland.
A limited reservation of such seats, not exceeding 15%, in
our opinion, may be made available to NRIs depending
on the discretion of the management subject to two
conditions. First, such seats should be utilized bona fide
by the NRIs only and for their children or wards.
Secondly, within this quota, the merit should not be given
a complete go-by. The amount of money, in whatever
form collected from such NRIs, should be utilized for
benefiting students such as from economically weaker
sections of the society, whom, on well defined criteria,
the educational institution may admit on subsidized
payment of their fee. To prevent misutilisation of such
quota or any malpractice referable to NRI quota seats,
suitable legislation or regulation needs to be framed. So
long as the State does not do it, it will be for the
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Committees constituted pursuant to direction in Islamic
Academy's to regulate."
3.16 The reliance placed by NRI's counsel upon the order passed in
Consortium of Deemed Universities in Karnataka (CODEUNIK) and
another versus Union of India and others( Writ Petition (Civil) No.689 of
2017 is also not relevant because in the peculiar facts of the case the
Supreme Court passed interlocutory order, which would not result in
declaration of law as laid down in P.A.Inamdar (supra). Similarly, in Anshul
Tomar vs. State of M.P. And others, 2008 SCC Online MP, 139, the
Division Bench was considering cancellation of admission in the peculiar
facts of the case. The Court relied upon the interlocutory order passed in
Ruchin Bharat Patel vs. Parents' Association for the M/D Students and
others, 2006 SCC OnLine SC 1437. In that case the order was passed in a
peculiar situation because 15% seats under NRI quota were likely to go to
waste. It is well settled that only the 'ratio decidendi' in a judgment is
binding. Hence, with highest respect, the interlocutory orders/judgments
relied upon the NRI's counsel are not applicable.
3.17 Similarly, Mr. Chhibbar's reliance on Nipun Tewari and others
vs. State of Maharashtra and others, 2022 INSC 1128, is distinguishable
because the issue pertains to reservation of 20% seats for in service
candidates in Post Graduate Medical Degree Courses by the State of
Maharashtra. The Hon'ble Supreme Court has specifically noted in para 32
that the issue has to be construed in the specific background of facts of the
case.
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3.18 Similarly, the reliance placed on Division Bench of Himachal
Pradesh High Court in Maharishi Markdndeshwar University and another
vs. State of Himachal Pradesh and others, 2020 SCC OnLine HP, 2495 is
incorrect because the aforesaid judgment is based on no objection by State.
Basically, it's a consent order passed by the Court in the peculiar facts of the
case.
3.19 The issue of seats allocated under the Non-Resident Indian
(NRI) quota in educational institutions has frequently been a subject matter
of public debate and judicial scrutiny. 15% seats are reserved for NRI quota
out of 85% State quota by the State of Punjab with the justification that
higher fee can be charged to fund institutional development and offset the
fee of others. However, the practice has often deviated from its intended
purpose. In several instances, it has been observed that students benefitting
from the NRI quota, as well as their parents, are not bonafide NRIs. Instead
these seats tend to be filled by less academically meritorious students who
possess the financial means to secure admission, in this category, thus
diluting the merit based admission process.
3.20 Proponents of NRI quota argue that the funds generated through
this system enable educational institutions to enhance the quality of their
infrastructure, and support educational development. Furthermore, the NRI
quota serves an additional purpose for persons of Indian origin who have
migrated abroad and wish to have their children educated in India, as it
allows their children to reconnect with Indian culture while also ensuring
that funds are invested in the Indian Educational System.
3.21 However, allocation of such seats must be approached with
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caution and strict regulation. It is recommended that the reservation of NRI
seats be limited to no more than 15% of total intake, as per P.A.Inamdar's
case (supra) and admissions shall be given to genuine NRIs, allowing their
children or 'Wards' to be admitted under this category. The clause(e) of
corrigendum has also used word 'ward', which should be understood in
alignment with it's standard, elementary meaning, and therefore it shall
include only a 'minor' who is under the guardianship of an NRI ( i.e.
bonafide guardianship); only such 'wards' shall be entitled to claim 'NRI
Quota seats').
3.22. The expansion of 'NRI' definition through the recent
corrigendum dated 20.08.2024, is arguably unjustified for several reasons.
Initially, the 'NRI Quota' was intended to benefit genuine NRIs and their
children, allowing them to access education opportunities in India. By
broadening the definition to include distant relatives such as uncles, aunts,
grandparents, and cousins, the core objective of NRI quota is undermined.
This widening opens the door for potential misuse, allowing individuals who
do not fall within the original intent of the policy to take advantage of these
seats, potentially bypassing more deserving candidates.
3.23 Moreover, new clause (iv) of the modified provision, which
permits relatives to qualify as guardians, simply by showing that he has
looked after such student, is vague and lacks clear criteria. It creates room
for manipulation, where guardianship might be claimed merely for the sake
of securing admission under this category. This significantly dilutes the
merit based admission process and unfairly disadvantages students who may
be more academically qualified but lack the financial resources to compete
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with those availing the 'NRI Quota' under these expanded terms.
3.24 In essence, the original intent behind the 'NRI quota'; to provide
access for children of genuine NRI's, has been stretched beyond reasonable
limits, and this would compromise the integrity and fairness of admission
process. It is significant to note that the Government has also permitted the
candidates to change their category when admission process was about to
end which is questionable.
4. CONCLUSION
4.1 With respect to the foregoing discussion, Civil Writ Petition
No.20788 of 2024 is allowed, whereas the remaining writ petitions shall
stand dismissed. The corrigendum and the addendum are also quashed. The
State of Punjab is directed to complete the process of MBBS admission
under 'NRI category' in the State quota as per the original and unamended
prospectus.
4.2 All the pending miscellaneous applications, if any, are also
disposed of.
(ANIL KSHETARPAL) ( SHEEL NAGU )
JUDGE CHIEF JUSTICE
10th September, 2024
nt
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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