Rajasthan High Court
Rajasthan Private Nursing Schools And ... vs State Of Rajasthan on 31 January, 2024
Author: Anoop Kumar Dhand
Bench: Anoop Kumar Dhand
[2024:RJ-JP:2829]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 7869/2023
Rajasthan Private Nursing Schools and Colleges Federation,
through its Authorised Representative Mr.Jai Narayan Meena E-
277, Behind New Vidhan Sabha, Lal Kothi Yojana, Jaipur 302015.
----Petitioner
Versus
State of Rajasthan through the Principal Secretary, Medical and
Health Department, Secretariat, Jaipur (Rajasthan).
----Respondent
Connected With
S.B. Civil Writ Petition No. 9762/2023
Private Physiotherapy, Nursing and Para Medical Institutions
Society of Jaipur through its Authorized Representative/secretary
Mr.Dilip Tiwari, Sangam Hotel, 17, Moti Lal Atal Road, Jaipur.
----Petitioner
Versus
State of Rajasthan through Principal Secretary, Medical and
Health Department, Secretariat, Jaipur (Rajasthan).
----Respondent
For Petitioner(s) : Mr.Ajatshatru Mina, Mr.Eshaan
Sanghi, Mr.Suveer Gaur and
Mr.G.P.Sharma, Advocates.
For Respondent(s) : Mr.Bharat Saini, Addl.Govt.Counsel.
HON'BLE MR. JUSTICE ANOOP KUMAR DHAND
RESERVED ON : 17/01/2024
PRONOUNCED ON : 31/01/2024
Order
REPORTABLE
1. These two writ petitions, brought under Article 226 of the
Constitution of India, involve common question of law and facts,
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[2024:RJ-JP:2829] (2 of 15) [CW-7869/2023]
hence, with the consent of the counsel for the parties, arguments
are heard together and both these matters are decided by this
common order. For convenience, the facts as well as the prayer of
S.B. Civil Writ Petition No. 7869/2023 is taken into consideration.
2. The instant writ petition has been filed by the petitioner with
the following prayer:-
"1. To quash and set aside the impugned order dated
15.02.2023 passed by the Respondent (Annexure
No.P/1).
2. To restrain the respondents from interfering with
the 50% quota of the Petitioner federation for
admitting students in its member colleges."
RIVAL SUBMISSIONS:
3. Learned counsel for the petitioners submits that as per the
directions issued by the Hon'ble Apex Court on several Occasions,
a practice is being followed by the State permitting the College
Federation for granting admission on 50% seats of different
discipline e.g. General Nursing & Midwifery (GNM), Bachelors of
Science in Nursing, Post Bachelors of Science in Nursing and
Masters of Science in Nursing. Counsel submits that an order in
this regard was issued by the respondents way back in the year
2004 i.e. on 04.09.2004, by which an arrangement was made to
fill 50% seats by the State and 50% seats by the Federation.
Counsel submits that the aforesaid practice was followed by the
State for more than a decade and all of a sudden in the year
2022, an order was passed by the State on 06.12.2022 by which
the 50% quota of the Federation was reduced to 25%. Counsel
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submits that the aforesaid action of the State-respondents was
assailed by the Colleges Federation.
4. By way of filing S.B. Civil Writ Petition No.19083/2022
[Rajasthan Private Nursing Schools and Colleges
Federation Vs. State of Rajasthan & Ors.] the petitioner
assailed the action of the State and the said petition was allowed
along with other batch of writ petitions by this Court vide order
dated 02.02.2023 and the order dated 06.12.2022 was quashed
and set aside and the respondents were granted liberty to pass
fresh orders in accordance with law.
5. Counsel submits that misinterpreting the aforesaid order
passed by this Court in the case of Rajasthan Private Nursing
Schools and Colleges Federation (supra), a fresh impugned
order has been passed by the State on 15.02.2023 by which 50%
quota reserved for the Federation has been snatched and now a
decision has been taken by the State to grant admission to each
and every student by the State only.
6. Counsel submits that the aforesaid action of the State is
arbitrary, illegal and the same has been passed in utter violation
of principles of natural justice as no opportunity of hearing was
provided to the petitioner Federation before passing the impugned
order. Counsel submits that the petitioner Federation has got
vested right to get 50% quota for giving admission to the students
in the above disciplines. In support of his contentions, he has
placed reliance upon the following judgments passed by the
Hon'ble Apex Court in the case of one Islamic Academy of
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Education and Another Vs. State of Karnataka and others
reported in (2003) 6 SCC 697 and P.A. Inamdar and Others
Vs. State of Maharashtra and others reported in (2005) 6
SCC 537. Counsel submits that past practice indicates that the
State was not in a position to fill even the 50% quota kept by the
State for giving admission to the students. Hence, under these
circumstances, interference of this Court is warranted and the
impugned order dated 15.02.2023 be quashed and set aside.
7. Per contra, learned counsel for the State-respondents
opposed the arguments raised by the counsel for the petitioner
and submitted that the petitioner Federation has got no right to
assail the action of the respondents. Counsel submits that the past
practices adopted by the petitioner Federation indicates that they
used to retain the mark-sheets of the passing students of the
qualifying examination and not permitting those students to get
admission in Government Colleges. Counsel submits that this is
the sole reason that the students are not getting admission in
Government Colleges and because of the aforesaid act of the
Federation, most of the seats of Government Colleges remain
vacant. Counsel submits that the judgment, relied upon by the
counsel for the petitioner, passed in the case of Islamic
Academy of Education (supra) is not applicable in the facts and
circumstances of the present case as by way of an interim
measure, for a particular session of the year 2003-2004, the
permission was granted to the private colleges to get admission by
the ratio of 50:50 due to the time constraint. Counsel submits that
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the aforesaid direction was issued by the Apex Court in the case of
Islamic Academy of Education (supra) for a particular year
which does not give any vested right in favour of the petitioner to
claim 50% admissions every year as a matter of right. Counsel
submits that under these circumstances, the State has not
committed an error in passing the order dated 15.02.2023.
Counsel submits that in view of the submissions made herein
above, interference of this Court is not warranted.
DISCUSSIONS:
8. Heard and considered the submissions made at bar and
perused the material available on record.
9. The bone of contention of the counsel for the petitioners is
that looking to the past practice of the respondents since the year
2004, the petitioner College Federation has got vested right to get
50% quota for giving admissions to the students at their own in
different disciplines of nursing courses. The above contention of
the petitioners is based upon an interim order issued by the
Hon'ble Apex Court in the case of Islamic Academy of
Education (supra) whereby the private institutions were allowed
to take admission for 50% quota of the seats reserved for the
students. Counsel submits that on the basis of the above interim
direction, a regular practice has been followed by the respondents
to grant 50% quota to the College Federation to get admission of
the students at their own level. Counsel submits that on the basis
of the above past practice, the petitioner has got vested right to
get 50% quota for the above purpose because the State is not in a
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position to even fill 50% quota reserved for the government
Colleges.
10. Next contention of the counsel for the petitioners is that all
of a sudden this past practice of giving admission for 50% quota
was reduced by the State to 25% vide order dated 06.12.2022
and this order was challenged by the petitioners before this Court
by way of filing S.B.Civil Writ Petition No.19083/2022 and the
same was allowed vide order dated 02.02.2023 and the order
dated 06.12.2022 was quashed granting liberty to the respondents
to pass fresh order in accordance with law.
11. After passing of the aforesaid order, the respondents passed
a fresh order on 15.02.2023 and this time the Government has
taken a decision to fill all the 100% seats of Nursing Schools and
Colleges at its own level.
12. Entry 66 of List-I and Entry 25 of List-III (Concurrent List)
deals with the subject of "Education" and it deals with standards
of Education. Both the Union as well as the State have the powers
to legislate on Education and Entry 66 of List-I deals with the
laying down of standards in Institutions of Education including
technical institutions as well as it deals with coordinates of such
standards. In consonance with the powers conferred upon the
State, it is competent to take a policy decision about process of
admission of the students in different fields of education
disciplines.
[2024:RJ-JP:2829] (7 of 15) [CW-7869/2023]
13. Law is well-settled that inclusion or exclusion of a privilege
is for the Legislature to decide and not for the Court to legislate.
No jurisdiction has been conferred upon the Court either to
amend, alter or to add something into the policy of the State, as
it would be for the functioning of the State in exercise of the
powers conferred under the Article 162 of the Constitution of
India.
14. If the Government in its wisdom decides about certain
concession to be given or concession already given in the
previous years to be withdrawn, the same cannot be expected to
be followed as a matter of right, unless there is arbitrariness in
the said process and the Hon'ble Apex Court in the case of
K.V.Rajalakshmiah Setty vs. State of Mysore reported in AIR
1967 SC 993 has held in paragraph 12 as under:
"12. There is some force in some of the contentions
put forward on behalf of the State of Mysore. It is not
necessary to test them as we find ourselves unable to
uphold the contention of the appellants. No doubt some
concession had been shown to the first batch of 41
persons and the batches of persons who had come in
after the batch of 63 persons also received some
concession, but after all these were concessions and
not something which they could claim as of right. The
State of Mysore might have shown some indulgence to
this batch of 63 persons but we cannot issue a writ of
mandamus commanding it to do so. There was no
service rule which the State had transgressed nor has
the State evolved any principle to be followed in
respect of persons who were promoted to the rank of
Assistant Engineers from surveyors. The indulgences
shown to the different batches of persons were really
ad hoc and we are not in a position to say what, if any,
ad hoc indulgence should be meted out to the
appellants before us."
[2024:RJ-JP:2829] (8 of 15) [CW-7869/2023]
15. Another issue that has been raised in this case is about the
legitimate expectation. The principle of legitimate itself does not
confer any right on a person. In fact, the concept has been
explained as a circumstance where by the conduct of a public
authority or any person, another person is made to believe that a
particular situation would be in existence and thereafter, when such
position is altered to his disadvantage, there can be a complaint of
legitimate expectation. As stated above, the principle of legitimate
expectation is not a ground for granting any relief to any one. The
person who relies on the doctrine of legitimate expectation must
prove that he acted upon the representation and the denial of
expectation has resulted to his detriment. The Hon'ble Supreme
Court has held that the relief to be granted under the legitimate
expectation is very limited. The concept of legitimate expectation
has been explained in detail by the Hon'ble Supreme Court in Sethi
Auto Service Station & Anr. Vs. Delhi Development Authority
& Ors. reported in (2009) 1 SCC 180 in the following words:
"24. The protection of legitimate expectations, as
pointed out in De Smith's Judicial Review (6th Edn.),
(Para 12-001), is at the root of the constitutional
principle of the rule of law, which requires regularity,
predictability and certainty in the Government's
dealings with the public. The doctrine of legitimate
expectation and its impact in the administrative law
has been considered by this Court in a catena of
decisions but for the sake of brevity we do not propose
to refer to all these cases. Nevertheless, in order to
appreciate the concept, we shall refer to a few
decisions.
25. At this juncture, we deem it necessary to refer to a
decision by the House of Lords in Council of Civil
Service Unions v. Minister for Civil Service, a locus
classicus on the subject, wherein for the first time an
attempt was made to give a comprehensive definition
to the principle of legitimate expectation. Enunciating
[2024:RJ-JP:2829] (9 of 15) [CW-7869/2023]
the basic principles relating to legitimate expectation,
Lord Diplock observed that for a legitimate expectation
to arise, the decision of the administrative authority
must affect such person either (a) by altering rights or
obligations of that person which are enforceable by or
against him in private law, or (b) by depriving him of
some benefit or advantage which either: (i) he has in
the past been permitted by the decision-maker to enjoy
and which he can legitimately expect to be permitted to
continue to do until some rational ground for
withdrawing it has been communicated to him and he
has been given an opportunity to comment thereon, or
(ii) he has received assurance from the decision-maker
that they will not be withdrawn without first giving him
an opportunity of advancing reasons for contending
that they should be withdrawn.
26. In Attorney General of Hong Kong v. Ng Yuen Shiu,
a leading case on the subject, Lord Fraser said:
"when a public authority has promised to
follow a certain procedure, it is in the
interest of good administration that it should
act fairly and should implement its promise,
so long as implementation does not interfere
with its statutory duty."
27. Explaining the nature and scope of the doctrine of
legitimate expectation, in Food Corporation of India
v. Kamdhenu Cattle Feed Industries reported in
(1993) 1 SCC 71, a three-Judge Bench of this Court
had observed thus:
"8. The mere reasonable or legitimate
expectation of a citizen, in such a situation,
may not by itself be a distinct enforceable
right, but failure to consider and give due
weight to it may render the decision
arbitrary, and this is how the requirement of
due consideration of a legitimate expectation
forms part of the principle of non-
arbitrariness, a necessary concomitant of
the rule of law. Every legitimate expectation
is a relevant factor requiring due
consideration in a fair decision- making
process. Whether the expectation of the
claimant is reasonable or legitimate in the
context is a question of fact in each case.
Whenever the question arises, it is to be
determined not according to the claimant's
perception but in larger public interest
wherein other more important
considerations may outweigh what would
[2024:RJ-JP:2829] (10 of 15) [CW-7869/2023]
otherwise have been the legitimate
expectation of the claimant. A bona fide
decision of the public authority reached in
this manner would satisfy the requirement
of non-arbitrariness and withstand judicial
scrutiny. The doctrine of legitimate
expectation gets assimilated in the rule of
law and operates in our legal system in this
manner and to this extent."
28. The concept of legitimate expectation again came
up for consideration in Union of India v. Hindustan
Development Corpn. reported in (1993) 3 SCC 499.
Referring to a large number of foreign and Indian
decisions, including in Council of Civil Service
Unions Vs. Minister for Civil Service reported in
(1984) 2 WLR 1174 and FCI Vs. Kamdhenu Cattle
Feed Industries reported in (1993) 1 SCC 71 and
elaborately explaining the concept of legitimate
expectation, it was observed as under: (Hindustan
Development Corpn. case, SCC p.549, para 35)
"35. If a denial of legitimate expectation in
a given case amounts to denial of right
guaranteed or is arbitrary, discriminatory
unfair or based, gross abuse of power or
violation of principles of natural justice, the
same can be questioned on the well-known
grounds attracting Article 14 but a claim
biased on mere legitimate expectation
without anything more cannot ipso facto
give a right to invoke these principles. It can
be one of the ground to consider but the
court must lift the veil and see whether the
decision is violative of these principles
warranting interference. It depends very
much on the facts and the recognised
general principles of administrative law
applicable to such facts and the concept of
legitimate expectation which is the latest
recruit to a long list of concepts fashioned
by the courts for the review of
administrative action, must be restricted to
the general legal limitations applicable and
binding the manner of the future exercise of
administrative power in a particular case. It
follows that the concept of legitimate
expectation is "not the key which unlocks
the treasury of natural justice and it ought
not to unlock the gates which shuts the
court out of review on the merits,"
particularly when the element of speculation
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and uncertainty is inherent in that very
concept."
Taking note of the observations of the Australian High
Court in Attorney General for New South Wales Vs.
Quinn reported in (1990) 64 Aust LJR 327 that "to
strike down the exercise of administrative power solely
on the ground of avoiding the disappointment of the
legitimate expectations of an individual would be to set
the courts adrift on a featureless sea of pragmatism",
speaking for the Bench, K. Jayachandra Reddy, J. said
that there are stronger reasons as to why the
legitimate expectation should not be substantively
protected than the reasons as to why it should be
protected. The caution sounded in the said Australian
case that the courts should restrain themselves and
restrict such claims duly to the legal limitations was
also endorsed.
29. Then again in National Buildings Construction
Corpn. Vs. S. Raghunathan and Ors. reported in
(1998) 7 SCC 66, a three-Judge Bench of this Court
observed as under: (SCC p.75, para 18)
"18. The doctrine of "Legitimate
Expectation" has its genesis in the field of
administrative law. The Government and its
departments, in administering the affairs of
the country are expected to honour their
statements of policy or intention and treat
the citizens with full personal consideration
without any iota of abuse of discretion. The
policy statements cannot be disregarded
unfairly or applied selectively. Unfairness in
the form of unreasonableness is making to
violation of natural justice. It was in this
context that the doctrine of "Legitimate
Expectation" was evolved which has today
became a source of substantive as well as
procedural rights. But claims based on
"Legitimate Expectation" have been held to
require reliance on representations and
resulting detriment to the claimant in the
same way as claims based on promissory
estoppel."
30. XX XX XX
31. Very recently in Jitendra Kumar v. State of
Haryana reported in (2008) 2 SCC 161 it has been
reiterated that a legitimate expectation is not the same
thing as an anticipation. It is distinct and different from
a desire and hope. It is based on a right. It is grounded
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in the rule of law as requiring regularity, predictability
and certainty in the Government's dealings with the
public and the doctrine of legitimate expectation
operates both in procedural and substantive matters.
32. An examination of the aforenoted few decisions
shows that the golden thread running through all these
decisions is that a case for applicability of the doctrine
of legitimate expectation, now accepted in the
subjective sense as part of our legal jurisprudence,
arises when an administrative body by reason of a
representation or by past practice or conduct aroused
an expectation which it would be within its powers to
fulfil unless some overriding public interest comes in
the way. However, a person who bases his claim on the
doctrine of legitimate expectation, in the first instance,
has to satisfy that he has relied on the said
representation and the denial of that expectation has
worked to his detriment. The Court could interfere only
if the decision taken by the authority was found to be
arbitrary, unreasonable or in gross abuse of power or in
violation of principles of natural justice and not taken in
public interest. But a claim based on mere legitimate
expectation without anything more cannot ipso facto
give a right to invoke these principles.
33. It is well settled that the concept of legitimate
expectation has no role to play where the State action
is as a public policy or in the public interest unless the
action taken amounts to an abuse of power. The court
must not usurp the discretion of the public authority
which is empowered to take the decisions under law
and the court is expected to apply an objective
standard which leaves to the deciding authority the full
range of choice which the legislature is presumed to
have intended. Even in a case where the decision
is left entirely to the discretion of the deciding
authority without any such legal bounds and if the
decision is taken fairly and objectively, the court
will not interfere on the ground of procedural
fairness to a person whose interest based on
legitimate expectation might be affected.
Therefore, a legitimate expectation can at the
most be one of the grounds which may give rise
to judicial review but the granting of relief is
very much limited."
16. When a person bases his claim on the doctrine of legitimate
expectation, he has to satisfy that he has relied on the said
representation of the authority and denial of that expectation has
[2024:RJ-JP:2829] (13 of 15) [CW-7869/2023]
worked to his detriment. The Court could interfere only if the
decision taken by the authority was found to be arbitrary,
unreasonable or in gross abuse of the power or in violation of
principles of natural justice and not taken in public interest. A
claim based on mere legitimate expectation without anything
more cannot ipso facto give a right to invoke these principles.
17. In the case of Union of India & Anr. Vs. Lt.Col.
P.K.Choudhary & Ors. reported in (2016) 4 SCC 236 the
Hon'ble Apex Court has held that legitimate expectation as an
argument cannot prevail over a policy introduced by the
Government which does not suffer from any perversity, unfairness
or unreasonableness or which does not violate any fundamental or
other enforceable rights vested in the respondents.
18. This Court is unable to accept the submissions made on
behalf of the petitioners, invoking doctrine of legitimate
expectation to make out a case like the previous years, the
College Federation legitimately expected that this year also it
would get more than 50% quota of students for getting their
admissions in different nursing courses, because the State was not
able to fill the seats in Government Nursing Schools and Colleges.
19. The legitimate expectation is not a legal right; rather it is an
expectation of benefits, relief/remedy that accrues from a promise
or an established practice adopted by the State or a party.
20. In the instant case, no provision of any kind was made by
the State to continue the existing policy. It is trite law that there
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can be no estoppel against any policy decision of the State unless
it is found that there is violation of any fundamental rights or
other enforceable rights, vested in the petitioners. The petitioner
cannot claim the rule of estoppel or legitimate expectation on the
past prevailing practice of providing 50% quota to the petitioner-
federation only on the basis of any interim order passed by the
Hon'ble Supreme Court in the case of Islamic Academy of
Education (supra).
21. Coming to interim order passed by the Hon'ble Supreme
Court in the case of Islamic Academy of Education (supra)
whereby the Institutions had been allowed to take admissions on
the basis of 10+2 results and on the basis of 50% quota for the
State and 50% quota for the Private Colleges, this Court is of the
considered opinion that the Hon'ble Apex Court nowhere laid down
a law to be followed in as a precedent on the question of
procedure adopted for admissions to the Nursing Schools and
Colleges.
CONCLUSION:
22. Hence, it is clear neither the Hon'ble Apex Court allowed the
State to provide 50% quota to the Private School/Colleges
Federation to get admission for every year nor such Federation
has got any vested right to get 50% quota every year for
admission of the students. Hence, under such circumstances, the
action of the respondent/State cannot be found to be arbitrary as
the same has been taken for granting maximum admissions to the
students in Government Schools and Colleges. The impugned
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order dated 15.02.2023 does not suffer from any perversity,
unfairness or unreasonableness and it does not violates any
fundamental or other enforceable vested rights of the petitioner-
federation.
23. As an upshot, the impugned order dated 15.02.2023 is just
and proper which does not need any interference of this Court.
The writ petitions are found to be devoid of merit and the same
are hereby dismissed.
24. The stay applications and all pending applications, if any,
stand disposed of.
25. The parties are left free to bear their own costs.
DIRECTIONS:
26. However, before parting with the order, this Court deems it
just and proper to issue directions to the respondent-State to
frame a mechanism and policy to fill the maximum seats of all the
disciplines 100% in Government Schools/Colleges, at the first
instance and even if the seats remain vacant, then a mechanism
and policy be framed to provide the left over seats to the
petitioner-Federation for taking admission of the students before
commencement of studies and courses. The respondents are
expected to issue adequate and proper guidelines in this regard
expeditiously as early as possible.
(ANOOP KUMAR DHAND),J
Solanki DS, PS
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