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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION [C] NO.231 OF 2018

MEDICAL COUNCIL OF INDIA … PETITIONER

VERSUS

STATE OF KERALA & ORS. … RESPONDENTS

WITH  

WRIT PETITION [C] NO.178 OF 2018

J U D G M E N T

ARUN MISHRA, J.

1. The question involved in the writ petition/s is, whether the State

of Kerala is competent to promulgate the Kerala Professional Colleges

(Regularisation of  Admission in  Medical  Colleges)  Ordinance, 2017

(hereinafter referred to  as “the  Ordinance”)  notified  on 20.10.2017,

which is intended to nullify judgments and orders of this Court and

encroaches upon the power of the judiciary.   

2. The State of Kerala has promulgated the impugned Ordinance

for regularising the admission of 180 students  who  were illegally

admitted in the Kannur Medical College and Karuna Medical College

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run by Prestige Educational Trust and Safe Development Alms Trust

respectively. The students were admitted to the said medical colleges

in the  academic  year  2016­17.  After enquiry, it  was found  by the

Admission Supervisory Committee of the professional colleges (in short

"the ASC”) that admissions were illegal. The decision was upheld by

the High Court of Kerala and by this Court.

3. The background facts are that on 28.4.2016, this Court in

Sankalp Charitable Trust v. Union of India & Ors. (2016) 7 SCC 487

directed that admissions to the MBBS/BDS courses shall be through

the National Eligibility­cum­Entrance Test (NEET). The ASC vide order

dated 4.8.2016 issued several directions to all the professional colleges

in the State of Kerala to conduct the admission process in compliance

of the directions laid down by this Court in Sankalp Charitable Trust

(supra). On 9.8.2016, the Central Government directed all the States

and Union Territories to conduct the combined/centralised

counselling for the academic year 2016­17  for  admission  in MBBS

course in the respective  States/Union  Territories, in line  with the

judgment passed by this Court in the case of Modern Dental College &

Research Centre & Anr. v. State of M.P. & Ors. (2016) 7 SCC 353.

4. The Government of Kerala vide order dated 23.8.2016 directed

all the medical colleges to admit only those students who were

selected through common counselling.   Writ Petition [Civil] No.28041

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of 2016 was filed in the Kerala High Court challenging the order dated

23.8.2016. The High Court vide order dated 26.8.2016 issued interim

directions that the admissions in the MBBS course for the academic

year 2016­17 shall be conducted on the basis of the marks obtained in

NEET, 2016 and all applications  will be  made online to facilitate

transparency with regard to merit and identities of the applicants.

5. The  ASC  on 3.9.2016 after taking cognizance of the various

complaints received  by it, issued  directions to the  private  medical

colleges in Kerala to comply with the directions issued by it on

4.8.2016. It  was also mentioned that any student whose admission

was made in contravention of the directions issued by the ASC, will

not be registered by Kerala University of Health Sciences (KUHS). On

6.9.2016 and 9.9.2016, the ASC passed the orders with regard to the

prospectus submitted by Kannur and Karuna Medical Colleges

approving the prospectus subject to the exception that reservation of

seats under the management quota for the dependents of various trust

associations was unsustainable in law and could not be applied while

admitting the students. Questioning the same, said medical colleges

filed W.P. No.30697/2016 and W.P. [C] No.30712/2016 in the Kerala

High Court. The ASC vide order dated 10.9.2016 observed that the

explanation submitted by the medical colleges was unsatisfactory and

decided to revise the approval of the prospectus and issued a revised

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admission  schedule for the  aforesaid  medical colleges  whereby the

date for submitting online applications was revised and extended till

19.9.2016.

6. After conducting  an enquiry, the  ASC  issued  an order  dated

15.9.2016 with respect to Kannur Medical College observing that the

medical college had not called online applications as directed by the

ASC by its order dated 10.9.2016 and directed that the admissions

made, if any, shall stand cancelled.

7. The ASC passed another order after holding an enquiry on

15.9.2016 with respect to Karuna Medical College and held that the

portal for online was closed on 6.9.2016 and there was a

contravention of the directions passed by it in the order dated

10.9.2016 wherein the revised date for submitting online applications

was up to 19.9.2016. On 17.9.2016 the ASC passed yet another order

addressed to  all the  medical colleges situated in  Kerala  State, the

directions issued by it were reiterated and it was also directed that the

directions be placed on the website of the medical colleges forthwith.

On 19.9.2016  the  ASC  further  directed the  colleges to  conduct  all

admissions strictly in compliance with the directions which were

issued by it from time to time.

8. The High Court of Kerala by its order dated 23.9.2016 passed in

aforesaid  writ petitions filed by the  medical colleges approved the

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decision taken by the ASC in respect of de­reservation of the

management quota seats which were reserved for the dependants of

various Trust associations, and issued various interim directions,

keeping the writ  petitions pending.  The order  dated 23.9.2016 was

questioned in this Court in SLP [C] CC. Nos.19387­88/2016 – State of

Kerala v. Safe Development Alms Melamuri & Ors. which were

dismissed and this Court requested the High Court to decide the main

writ petition as expeditiously as possible.  

9. This Court vide order dated 28.9.2016 passed in C.A.

No.9862/2016 –  Union of India v. Sree Narayana Institute of Medical

Sciences & Ors. set aside the interim direction passed by the Kerala

High  Court  which  allowed  private  medical colleges in the  State of

Kerala to conduct their own counselling and directed to conduct the

centralised counselling for admissions in MBBS course for the

academic year 2016­17. As the  last date was closed, this Court on

30.9.2016 passed an order in CA No.9862/2016 –  Union of India v.

Sree Narayana Institute of Medical Sciences & Ors. (supra) and

extended the last date for admissions in  MBBS course from 30 th

September to 7th October 2016 so as to comply with the order.

10. On 2.10.2016 separate orders were passed by the ASC wherein it

was observed that the respondent­medical colleges have deliberately

flouted the directions issued vide its orders dated 4.8.2016, 3.9.2016,

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4.9.2016, 10.9.2016, 17.9.2016 and 19.9.2016. The ASC cancelled all

the admissions made by the respondent medical colleges in the MBBS

course for the academic year 2016­17. Aggrieved by the order dated

2.10.2016 the respondent medical colleges filed W.P. Nos.32186/2016

and 32185/2016 in the Kerala High Court. The Kerala High Court vide

its order dated 6.10.2016 was pleased to direct the respondent

medical colleges to place all the relevant records pertaining to

admission process before the Commissioner for Entrance Examination

(CEE) for verification. It was further directed that after verification of

the records the CEE shall  finalise allotment of seats strictly on the

basis of interse merit and complete it by 7.10.2016.  

11. On 7.10.2016, Kannur Medical College made a statement before

the  Kerala  High  Court that  no  student turned  up  before the  CEE

seeking admission in their college. On 13.10.2016 the Commissioner

for Entrance Examination (CEE) submitted its report concluding that

the  procedure followed  by Karuna Medical  College  was flawed  and

there were material irregularities committed by it while admitting 30

students. So far as Kannur Medical College was concerned, the

representative of the said college appeared before the CEE on

7.10.2016 at about 11.30 a.m. and left by 12.10 p.m. after furnishing

the records. No explanation or clarification  was furnished by the

representatives of the medical college, and the conduct was noted by

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the  CEE.  The  person  who  claimed to  be the representative  of the

college  left  immediately when he was asked to  furnish the  letter of

authorisation from the college authorities.

12. The  Kerala  High  Court vide judgment and final order dated

28.10.2016 cancelled as many as 150 admissions made by Kannur

Medical College and 30 admissions made by Karuna Medical College

through ‘spot counselling’. The High Court of Kerala further directed

the  ASC  to decide the rival claims  made  by students of both the

medical colleges who had been admitted as well as the claims by other

eligible students who were parties before the court.

13. The ASC passed a reasoned order dated 14.11.2016 whereby it

quashed 150 admissions made in Kannur Medical College and ASC

has observed that applications were not received online:

“13. The ASC has scrutinized the ‘online application’ submitted by the Medical College.  Even a cursory look of the application show that they are not actual ‘online applications’.  The forms do not  show  the  name  of  the  Medical  College  to  which  the applications  were  made.  It  doesn’t  carry  photograph  of  the applicant.   There is no signature of applicant,  either digital or scanned.   There  is  no  application  date.   On  the  whole,  the submitted applications only shows that they have been prepared for the purpose of submitting before the ASC as an attempt to claim online application system.  Even the documents submitted before the CEE on 07.10.2016, as per the interim order of the Hon’ble High Court, these applications were not seen submitted for consideration, as reported by CEE…”

14. On 15.11.2016, aggrieved by the common judgment dated

28.10.2016 passed by the Kerala High Court in the case of respondent

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medical colleges  i.e.  Karuna Medical College, as well as Kannur

Medical College and the trusts – Safe Development Alms Trust and

Prestige Educational Trust, filed SLP [C] Nos.32580­81/2016 and

35374­75/2016 before this  Court.  The  MCI also filed SLP  [C]  Nos.

3882/2017 and 3952/2017. The students also petitioned this Court

against the judgment and order passed by the Kerala High Court. In

the matter which was filed by the colleges and the students, the order

dated 14.11.2016 by the ASC was also questioned and this Court after

hearing  learned counsel for the parties for  days  together and after

perusing the record  which  was adduced before it, did not find it

appropriate to interfere with the order dated 14.11.2016. The colleges

produced even those documents which they did not produce before the

CEE/ASC and after examining all the documents, this Court declined

to interfere in the  matter vide order dated  22.3.2017. This  Court

further directed that the 30 students who were found eligible but were

deprived of the admissions in Karuna Medical College, shall be

adjusted in the next academic session i.e. 2017­18 and the

corresponding number of seats shall be reduced for the said session

for admissions. Review petitions were also filed which were dismissed

by this Court on 2.5.2017.

15. After the aforesaid controversy was set at rest by the judgment of

this Court, the State Government notified the impugned Ordinance on

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20.10.2017  whereby admission of the students  who  were illegally

admitted in the MBBS course in the year 2016­17 in the said medical

colleges, were sought to be regularised. The Ordinance promulgated by

the Government of Kerala is extracted hereunder:

“THE  KERALA  PROFESSIONAL  COLLEGES (REGULARISATION  OF  ADMISSION  IN  MEDICAL COLLEGES) ORDINANCE, 2017) Promulgated by the Governor of Kerala in the Sixty-eighth Year of the Republic of India

AN

ORDINANCE

to provide for regularisation of admission of students in certain medical colleges in the State during the academic year 2016-17

Preamble-  WHEREAS, the admission of certain students in the discipline of medicine for the academic year 2016-17 was cancelled by the Admission Supervisory Committee of the State for non-compliance of its orders by certain managements;

AND WHEREAS,  no  fault  was  found  on  the  part  of  any student who got admission in such colleges;

AND WHEREAS, the seats so cancelled are not allotted to any other students;

AND WHEREAS, it is expedient to provide for regularisation of admission of students in such medical colleges in the State during the academic year 2016-17;

AND WHEREAS, the Legislative Assembly of the State of Kerala is not in session and the Governor of Kerala is satisfied that circumstances exist which render it necessary for him to take immediate action;

NOW, THEREFORE, in exercise of the powers conferred by clause  (1)  of  Article  213  of  the  Constitution  of  India,  the Governor  of  Kerala  is  pleased  to  promulgate  the  following Ordinance: -

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BE it enacted in the Sixty-eighth Year of the Republic of India as follows: -

I  Short  title  and  commencement-(1)  This  Ordinance  may  be called  the  Kerala  Professional  Colleges  (Regularisation  of Admission in Medical Colleges) Ordinance, 2017.  (2) It shall come into force at once.  

2.  Regularisation  of  admission  in  medical  colleges.- Notwithstanding anything contained in the Kerala Professional Colleges  or  Institutions  (Prohibition  of  Capitation  Fee, Regulation of Admission, Fixation of Non-exploitative Fee and other measures to ensure equity and excellence in Professional Education) Act, 2006 (19 of 2006) or in any judgment, decree, order  or  any  proceedings  of  any  court  or  the  Admission Supervisory Committee constituted under section 4 of the said Act  or  any other  authority  or  in  any agreement  or  instrument made under any law for the time being in force, it shall be lawful for  the  Government  to  regularise  the  admission  of  candidates who were qualified for admission in the discipline of medicine in any medical college in the State during the academic year 2016- 17, but their admission was cancelled by any court or Admission Supervisory Committee, irrespective of the mode of submission of application and the non-production of any material before the Admission  Supervisory Committee,  subject  to  such terms and conditions as the Government may deem fit:        Provided that such admission shall not be regularised unless such  candidate  has  duly  attended  the  course  during  the  said academic year.  

3.  Procedure for regularisation.-  (1)  The managements of  the medical colleges who have admitted candidates as specified in section 2 to the discipline of medicine in any medical college and their admission was cancelled, may, within fifteen days from the  date  of  commencement  of  this  Ordinance,  apply  for regularisation of such admission.  

 (2) Every application for regularisation of admission under this Ordinance  shall  be  submitted  to  the  Government  through  the University concerned and the University shall, within seven days of  receipt  of  such  application,  forward  the  same  to  the Government  with  a  report  containing  its  remarks  on  the following  matters, namely: -     (i) whether the student who got admission is qualified and is eligible as per the rank list prepared on the basis of the National

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Eligibility cum Entrance Test, for admission in the discipline of medicine  as  per  laws  and  orders  in  force  applicable  for  the academic year 2016-17;     (ii) whether the students as mentioned in the application has duly attended the course during the academic year 2016-17;     (iii) whether the student is otherwise eligible to continue the course.  

(3) An officer not below the rank of a Secretary to Government, as may be authorised by the Government by special order in this behalf,  shall  be  the  Competent  Authority  to  consider  an application under this Ordinance. The Competent Authority shall have  the  power  to  summon  any  person  or  to  call  for  any document for the proper disposal of such application.  

(4)  On  receipt  of  an  application  for  regularisation  under  this section,  the Government shall  call  for a  report  on it  from the Director  of Medical  Education and after  hearing the applicant and the respondents or any other person concerned, if necessary, consider the application and pass orders on it, including order for payment of the regularisation fee payable under this Ordinance.

(5) Where the application is  sanctioned by the Government,  a direction  in  this  respect  shall  be  issued  to  the  University concerned  and  notwithstanding  anything  contained  in  any University Act or any statute or Ordinance made thereunder or in any other law for the time being in force, the University shall issue orders necessary for the enrolment of such students in the University  and thereafter  such students  shall  be  considered as regular  students  of  the  discipline  of  medicine  under  the University with effect from the academic year 2016-17 till the completion of their course in the discipline.

Explanation. - For the purposes of this section, "University Act" means  an  Act  establishing  a  University,  passed  by  the  State Legislature.

4. Matters for consideration of the Competent Authority. - While considering  an  application  for  regularisation  received  under Ordinance, the Competent Authority shall, -

(i) consider whether the student who got admission is qualified and is eligible as per the rank list prepared on the basis of the National  Eligibility  cum  Entrance  Test,  for  admission  in  the discipline of medicine as per laws and orders in force applicable for the academic year 2016-17;

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(ii) confirm that no student is continuing in the college in violation of any other law for the time being in force; (iii) not consider the mode of application submitted by the students; (iv) not consider  the non-production of  any document or any material before the Admission Supervisory Committee; (v)ensure  that  no  capitation  fee  was  collected  by  the management; (vi) ensure  that  there  was  no  profiteering  by  the management.

5. Payment of regularisation fee: - (1) Where the Government sanctions  an  application  for  regularisation of  admission  under this Ordinance, the management of such medical college shall be liable to pay a regularisation fee of three lakh rupees per student for such regularisation:

Provided that where any management collects such fee from any student, such management shall be liable to pay a fine of six lakh rupees per student.

(2) The competent authority under sub-section (3) of section 3 shall be competent to impose the fee as provided in sub-section (1) and it shall be specified in the order issued under sub-section (3) of section 3.

Date 20.10.2017        GOVERNOR”

16. Shri Vikas Singh, learned senior counsel appearing for the MCI,

urged  that the Ordinance is  ultra  vires  of the  powers  of the State

Government and is contrary to the various Constitution Bench

decisions  of this  Court  which  he  has relied  upon.  He  has further

submitted that the judgment has been nullified by the Ordinance. It is

not that there was any lacunae or flaw in the laws which has been

removed. There  is  an entrenchment by way of  Ordinance upon the

power of judicial review of the court. This Court has adjudicated upon

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the legality of the order dated 14.11.2016 passed by the ASC which

was questioned in this Court and the entire material was filed in the

Court  which was not  even placed before the ASC/CEE. This Court

granted hearing for several  days and on being wholly unconvinced,

dismissed the special leave petitions and clearly observed that no case

for interference  in  the order  dated 14.11.2016 passed by ASC was

made out and further directed the admission of 30 students who were

illegally deprived of their admission to be made in the next academic

session. The State has no legislative power to nullify a judgment in

view of the Constitution Bench judgments of this Court in Janapada

Sabha Chhindwara vs.  The Central Provinces Syndicate Ltd. and Anr.

(1970) 1 SCC 509, Belgaum Gardeners Cooperative Production Supply

and Sale Society Ltd. v. State of Karnataka  (1993) Supp. 1 SCC 96,

and State of Tamil Nadu and Ors. v. State of Kerala and Ors. (2014) 12

SCC 696.

17. A galaxy of learned senior counsel appearing on behalf  of  the

respondents has emphasised that the impugned Ordinance intends on

the admissions to be given on merits on the basis of performance in

the NEET examination. Thus, it was permissible to enact Ordinance to

make a scrutiny whether the candidates were eligible for admission on

the basis of their merit in the NEET examination. It was also

contended that the order of online applications passed by the Kerala

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High  Court  was based  upon the consent.  Hence, it could not be

termed to  be an order  passed by  the court in judicial review.  The

decision did not have the effect of judicial precedent which could be

said to be nullified by way of the Ordinance. It was also contended

that ultimately it was not the fault of the students and if there was

any procedural violation committed by the medical colleges in

question, the students could not have been made a scapegoat or made

to suffer for no fault of theirs. They were not heard by the ASC or CEE.

This Court may exercise power under Article 142 of the Constitution of

India and no interference is required to be made in the Ordinance as

in the facts and circumstances, regularisation of the admissions was

clearly permissible. It could not be said that the State Government has

tried to usurp the power of judicial review.

18. A bare reading of the Ordinance makes it clear that the same

aims at regularisation of admissions of students during the academic

year 2016­17which were set aside by the ASC, the High Court and by

this Court to benefit only two colleges and students in question. It is

also stated in it that the Legislative Assembly of the State of Kerala is

not in session and the Governor of Kerala is satisfied, the

circumstances render it necessary for him to take immediate action. In

exercise of the power conferred under clause (1) of Article 213 of the

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Constitution of India, the Governor of Kerala is pleased to promulgate

the impugned Ordinance.

19. It is provided in clause 2 of the Ordinance that notwithstanding

anything contained in the Kerala Professional Colleges or Institutions

(Prohibition of  Capitation Fee,  Regulation of  Admission,  Fixation of

Non­exploitative Fee and other measures to ensure equity and

excellence in Professional Education) Act, 2006 or in any judgment,

decree, order or any proceeding of any court or the Admission

Supervisory Committee or any other authority or in any agreement or

instrument made under any law for the time being in force, it shall be

lawful for the Government to regularise the admission of   candidates

who were qualified for admission in the discipline of medicine in any

medical  college in  the State  during  the academic year in  question,

though their admissions had been cancelled by any court or ASC, and

irrespective of  the mode of  submission of  application and the non­

production of any material before the ASC.

20. Clause 3 of the impugned Ordinance contains the procedure for

regularisation.  Under clause 3(1) the students can apply within 15

days from the commencement of the Ordinance for regularisation of

such admission. Under clause 3(2), the application shall be submitted

to the Government through the University with the remarks whether

the student was qualified, eligible as per the rank list prepared on the

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basis of the NEET for admission in the discipline of medicine as per

the laws and orders in force for the academic year 2016­17; whether

he has attended the course during the academic year 2016­17 and

whether the student was otherwise  eligible to  continue  the course.

Clause 3(4) enables the Government to consider the application and

pass orders on it including the order for payment of the regularisation

fee payable under the Ordinance and clause 3(5) provides that where

the application is sanctioned by the Government, the student shall be

considered as regular student w.e.f. the academic session 2016­17 till

the completion of their course in the discipline. Clause 3(4)(i) provides

for consideration in case the candidate was eligible as per the rank list

prepared on the basis of NEET, and no student was continuing in the

college in violation of any other law for the time being in force.

Clause 4(iii) further provided  for regularisation notwithstanding the

mode of submission of applications by the students. Regularisation fee

of Rs.3 lakhs was to be paid per student for such regularisation.

21. What has been done by the impugned Ordinance by the State

Government is clearly entrenching upon the field of judicial review and

it was obviously misadventure resorted to. In our considered opinion,

it was not at all permissible to the State Government to promulgate

the Ordinance/legislate in the matter. Not only the judgment of the

court is nullified and the arbitrariness committed in admissions was

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glaring, and the decision of the  High  Court of Kerala  which  was

affirmed by this Court with respect to applications to be entertained if

they were online applications has been undone. It was clearly an act of

nullifying judgment and is violative of judicial powers which vested in

the judiciary. It was not open for the State Government to nullify the

judgment/orders passed by the Kerala High Court or by this Court. It

was not a case of removal of a defect in existing law. Various

Constitution Bench decisions of this Court have settled the principles

of law governing the field. It  passes  comprehension  how  the  State

Government has promulgated the Ordinance in question.

22. In  Janapada Sabha Chhindwara vs.   The Central Provinces

Syndicate Ltd. and Anr. 1970 (1) SCC 509, a Constitution Bench of

this Court has observed that it is not open to legislation to render a

judgment ineffective. It is open to the Legislature within certain limits

to amend the provisions of an Act retrospectively and to declare what

the law shall be deemed to  have  been, but it is not open to the

legislature to say that the interpretation of the law shall be otherwise

than as declared by the Court. This Court has observed thus:

“10. The nature of the amendment made in Act 4 of 1920 has not been  indicated.  Nor  is  there  anything  which  enacts  that  the notifications issued without the sanction of the State Government must be deemed to have been issued validly under Section 51(2) without  the  sanction of  the  Local  Government.  On the  words used  in  the  Act,  it  is  plain  that  the  Legislature  attempted  to overrule  or  set  aside  the  decision  of  this  Court.  That,  in  our judgment,  is  not  open  to  the  Legislature  to  do  under  our

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Constitutional scheme. It is open to the Legislature within certain limits to amend the provisions of an Act retrospectively and to declare what the law shall be deemed to have been, but it is not open  to  the  Legislature  to  say  that  a  judgment  of  a  Court properly constituted and rendered in exercise of its powers in a matter brought before it shall be deemed to be ineffective and the interpretation of the law shall be otherwise than as declared by the Court.”

23. In the matter of Cauvery Water Disputes Tribunal (1993) Supp. 1

SCC 96 (II), a Constitution Bench of this Court has observed that it is

open to change the law in general by changing the basis but it is not

open to set aside an individual decision inter­partes and thus affect

their rights and liabilities alone. Such an act on the part of the

legislature amounts to exercising the judicial power. This Court

quashed the Ordinance and observed that by issuing the Ordinance

the State of Karnataka has sought to take the law in its own hand and

tried to be above the law. Such an act is an open invitation to

lawlessness and anarchy. There cannot be defiance to the decision of

the judicial authorities. This Court has observed thus:

“76. The principle which emerges from these authorities is that the legislature can change the basis on which a decision is given by the Court and thus change the law in general, which will  affect  a  class  of  persons  and events  at  large.   It  cannot, however, set aside an individual decision inter parties and affect their rights and liabilities alone. Such an act on the part of the legislature amounts to exercising the judicial power of the State and to functioning as an appellate court or tribunal.

77. The  effect  of  the  provisions  of  Section  11  of  the present  Act,  viz.  the  Inter-State Water  Disputes  Act read with Article 262 of the Constitution  is that the entire judicial power of the State and, therefore of the courts including  that of the

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Supreme Court to adjudicate upon original dispute or complaint with respect to the use, distribution or control of the water of, or in any inter-State river or river valleys has been vested in the Tribunal  appointed  under  Section  4  of  the  said  Act.   It  is, therefore, not possible to accept the submission that the question of grant of  interim relief falls  outside the submission that  the question of grant of interim relief falls outside the purview of the said  provisions  and  can  be  agitated  under  Article  131  of  the Constitution.   Hence  any  executive  order  or  a  legislative enactment  of  a  State  which  interferes  with  the  adjudicatory process and adjudication by such Tribunal is an interference with the  judicial  power  of  the  State.   In  view of  the  fact  that  the Ordinance in question seeks directly to nullify the order of the Tribunal passed on June 25, 1991, it impinges upon the judicial power of the State and is, therefore, ultra vires the Constitution.  

78. Further,  admittedly, the effect of the Ordinance is to affect  the  flow  of  the  waters  of  the  river  Cauvery  into  the territory  of  Tamil  Nadu and Pondicherry  which are  the  lower riparian States.  The Ordinance has, therefore, an extra-territorial operation.  Hence the Ordinance is on that account beyond the legislative  competence  of  the  State  and  is  ultra  vires  the provisions of Article 245(1) of the Constitution.

79. The Ordinance is also against the basic tenets of the rule of law inasmuch as the State of Karnataka by issuing the Ordinance  has  sought  to  take law in  its  own hand and to  be above the law.  Such an act is an invitation to lawlessness and anarchy, inasmuch as the Ordinance is a manifestation of a desire on the part of the State to be a judge in its own cause and to defy the decisions of the judicial authorities.   The action forebodes evil consequences to the federal structure under the Constitution and  open  doors  for  each  State  to  act  in  the  way  it  desires disregarding not only the rights of the other States, the orders passed  by  instrumentalities  constituted  under  an  Act  of Parliament but  also the  provisions of  the Constitution.   If  the power of a State to issue such an Ordinance is upheld it will lead to the breakdown of the constitutional mechanism and affect the unity and integrity of the nation.”

The  Court  has  also observed in  Re:  Cauvery  Water  Disputes

Tribunal (supra) that if the exercise of the power of judicial review can

be set at naught by the State Government by overriding the decision

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given against it, it would sound the death knell of the rule of law. The

rule of  law would be meaningless as it  would be open to the State

Government to defy the law and yet get away with it.

24. Yet again a Constitution Bench of this Court in  State of Tamil

Nadu v. State of Kerala and Anr.  (2014) 12 SCC 696 has considered

the question of separation of powers doctrine under the Indian

Constitution and it observed:

“126. On deep reflection of the above discussion, in our opinion, the constitutional principles in the context of Indian Constitution relating to separation of powers between legislature,  executive and judiciary may, in brief, be summarized thus:

126.1  Even  without  express  provision  of  the  separation  of powers,  the doctrine of separation of powers is  an entrenched principle in the Constitution of India. The doctrine of separation of powers informs the Indian constitutional structure and it is an essential constituent of rule of law. In other words, the doctrine of  separation  of  power  though  not  expressly  engrafted  in  the Constitution,  its  sweep,  operation,  and  visibility  are  apparent from the scheme of Indian Constitution. Constitution has made demarcation,  without  drawing  formal  lines  between  the  three organs- legislature, executive, and judiciary. In that sense, even in the absence of express provision for separation of powers, the separation of powers between legislature, executive and judiciary is  not  different  from the  Constitutions  of  the  countries  which contain express provision for separation of powers.

126.2 Independence of courts from the executive and legislature is fundamental to the rule of law and one of the basic tenets of Indian Constitution. Separation of judicial power is a significant constitutional principle under the Constitution of India.

126.3  Separation  of  powers  between  three  organs  –  the legislature,  executive,  and  judiciary  -  is  also  nothing  but  a consequence of principles of equality enshrined in Article 14 of the Constitution of India. Accordingly, breach of separation of judicial power may amount to negation of equality under Article 14. Stated thus, a legislation can be invalidated on the basis of

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breach of the separation of powers since such breach is negation of equality under Article 14 of the Constitution.

126.4 The superior judiciary (High Courts and Supreme Court) is empowered by the Constitution to declare a law made by the legislature (Parliament and State Legislatures) void if it is found to  have  transgressed  the  constitutional  limitations  or  if  it infringed the rights enshrined in Part III of the Constitution.

126.5 The doctrine of separation of powers applies to the final judgments  of  the  courts.   The  legislature  cannot  declare  any decision of  a  court  of  law to be void or  of  no effect.  It  can, however, pass an amending Act to remedy the defects pointed out by a court of law or on coming to know of it aliunde. In other words, a court's decision must always bind unless the conditions on  which  it  is  based  are  so  fundamentally  altered  that  the decision could not have been given in the altered circumstances.

126.6 If the legislature has the power over the subject-matter and competence to make a validating law, it can at any time make such a validating law and make it retrospective. The validity of a validating law, therefore, depends upon whether the legislature possesses the competence which it claims over the subject-matter and whether in making the validation law it removes the defect which the courts had found in the existing law.

126.7 The law enacted by the legislature may apparently seem to be within its competence but yet in substance, if it is shown as an attempt to interfere with the judicial process, such law may be invalidated being in breach of doctrine of separation of powers. In such situation, the legal effect of the law on a judgment or a judicial proceeding must be examined closely, having regard to legislative prescription or direction. The questions to be asked are:

(i)  Does  the  legislative  prescription  or  legislative  direction interfere with the judicial functions?

(ii)  Is  the  legislation  targeted  at  the  decided  case  or  whether impugned law requires its application to a case already finally decided?  

(iii) What are the terms of law; the issues with which it deals and the nature of the judgment that has attained finality?  

If the answer to Questions (i) and (ii) is in the affirmative and the consideration  of  aspects  noted  in  Question  (iii)  sufficiently establishes  that  the  impugned  law interferes  with  the  judicial functions, the Court may declare the law unconstitutional.”

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This Court has observed that independence of the judiciary is

fundamental to the rule of law. A legislation can be invalidated on the

basis of breach of separation of judicial power since such breach is

negation of equality under Article 14. Law can be declared void if it is

found to have transgressed the constitutional limitations. The

legislature cannot declare any decision of a court of law to be void or

of no effect. It can remove the defects of the law pointed out by the

court or on coming to know of it aliunde; otherwise, a court’s decision

must always bind unless the conditions on which it is based are so

fundamentally altered that the decision could not have been given in

such altered circumstances. The legislature can make a validating law.

Making validation as such, it removes the defect which the court finds

in the existing law. There cannot be an attempt to interfere with the

judicial process, and such law may be invalidated. The questions to be

examined are:  whether the  legislation targeted at the decided case,

what are the terms of law; the  issues with which  it  deals and the

nature of the judgment that has attained finality? If law interferes with

the judicial functions on the aforesaid tests laid down in para 126.7,

the Court may declare the law as unconstitutional.  

25. In S.R. Bhagwat and Ors. vs. State of Mysore (1995) 6 SCC 16,

the provisions of Karnataka State Civil Services (Regulations of

Promotion, Pay & Pension) Act, 1973 came up for consideration of this

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Court. Provisions were made in section 11 nullifying the judgments

and orders of this Court as had become final, and empowering the

State to review such judgments and orders was held to be interference

with the powers of the State legislature, and the Court struck down

section 11(2) as ultra vires of the legislative powers of the State and

sections 4(2), 4(3) and 4(8) were read down which sought to deprive

the petitioners of the benefits of the judgment of the court which had

become  final. It  was further  observed that  once the judgment  has

attained finality and  was binding against the State, it cannot be

overruled by any legislative measure. The Court observed that court’s

judgments cannot be nullified by the legislature:

“15. We may note at the very outset that in the present case the High  Court  had  not  struck  down  any  legislation  which  was sought to be re-enacted after removing any defect retrospectively by  the  impugned  provisions.  This  is  a  case  where  on interpretation of existing law, the High Court had given certain benefits to the petitioners. That order of mandamus was sought to be nullified by the enactment of the impugned provisions in a new statute.  This  in  our  view would be clearly impermissible legislative exercise.

18. A mere look at sub-section (2) of Section 11 shows that the respondent State of Karnataka, which was a party to the decision of the Division Bench of the High Court against it had tried to get out of the binding effect of the decision by resorting to its legislative  power.  The  judgments,  decrees,  and  orders  of  any court or the competent authority which had become final against the  State  were  sought  to  be  done  away with  by  enacting  the impugned provisions of sub-section (2) of Section 11. Such an attempt cannot be said to be a permissible legislative exercise. Section 11(2), therefore, must be held to be an attempt on the part  of  the  State  Legislature  to  legislatively  overrule  binding decisions of competent courts against the State. It  is no doubt true  that  if  any  decision  was  rendered  against  the  State  of

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Karnataka which  was pending in  appeal  and had not  become final it could rely upon the relevant provisions of the Act which were given retrospective effect by sub-section (2) of Section 1 of the Act for whatever such reliance was worth. But when such a decision had become final as in the present case when the High Court clearly directed respondent-State to give to the petitioners concerned deemed dates of promotions if they were otherwise found fit and in that eventuality to give all benefits consequential thereon including financial benefits, the State could not invoke its  legislative  power  to  displace  such  a  judgment.  Once  this decision had become final and the State of Karnataka had not thought  it  fit  to  challenge  it  before  this  Court  presumably because in identical  other matters  this  Court had upheld other decisions of the Karnataka High Court taking the same view, it passes  one's  comprehension how the legislative  power can be pressed in service to undo the binding effects of such mandamus. It is also pertinent to note that not only sub-section (2) of Section 11  seeks  to  bypass  and  override  the  binding  effect  of  the judgments but also seeks to empower the State to review such judgments and orders and pass fresh orders in accordance with provisions  of  the  impugned  Act.  The  respondent-State  in  the present  case  by enacting  sub-section (2)  of  Section  11 of  the impugned  Act  has  clearly  sought  to  nullify  or  abrogate  the binding decision of the High Court and has encroached upon the judicial  power  entrusted to  the  various  authorities  functioning under the relevant statutes and the Constitution. Such an exercise of legislative power cannot be countenanced.

20.  We,  therefore,  strike  down  Section  11  sub-section  (2)  as unconstitutional,  illegal  and  void.  So  far  as  the  underlined impugned portions of Section 4 sub-sections (2), (3) and (8) are concerned, they clearly conflict with the binding direction issued by the Division Bench of the High Court against the respondent- State and in favour of the petitioners. Once respondent-State had suffered the mandamus to give consequential financial benefits to the allottees like the petitioners on the basis of the deemed promotions  such  binding  direction  about  payment  of consequential  monetary  benefits  cannot  be  nullified  by  the impugned  provisions  of  Section  4.  Therefore,  the  underlined portions of sub-sections (2), (3) and (8) of Section 4 will have to be  read  down in  the  light  of  orders  of  the  court  which  have become final  against the respondent-State and insofar as these provisions  are  inconsistent  with  these  final  orders  containing such  directions  of  judicial  authorities  and  competent  courts, these impugned provisions of Section 4 have to give way and to the extent of such inconsistency must be treated to be inoperative and ineffective.  Accordingly  the  aforesaid  provisions  are  read

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down by  observing  that  the  statutory  provisions  contained  in sub-sections  (2),  (3)  and (8)  of Section 4 providing that  such persons who have been given deemed promotions shall not be entitled to any arrears for the period prior to the date of their actual promotion, shall not apply in cases where directions to the contrary of competent courts against the respondent-State have become final.”

26. On behalf of the respondents, certain decisions with respect to

legislative competence have been referred. In  S.T. Sadiq vs. State of

Kerala and Ors. (2015) 4 SCC 400, this Court has laid down that the

legislative function consists in  “making” law and not in “declaring”

what the law shall be. The legislature can make a law retrospectively

which may alter the law as it stood when a decision was arrived at. It

is in this limited sphere, the legislature may alter the very basis of an

earlier decision given by the court. It cannot directly annul that final

judgment by a subsequent legislation. If its purpose is to annul a final

judgment, such act of legislature must be declared to be

unconstitutional. The Court has observed:

“13. It is settled law by a catena of decisions of this Court that the legislature cannot directly annul a judgment of a court. The legislative function consists in "making" law [see: Article 245 of the Constitution] and not in "declaring" what the law shall be [see: Article 141 of the Constitution]. If the legislature were at liberty  to  annul  judgments  of  courts,  the  ghost  of  bills  of attainder will revisit us to enable legislatures to pass legislative judgments  on  matters  which  are  inter-parties.  Interestingly,  in England,  the  last  such  bill  of  attainder  passing  a  legislative judgment against a man called Fenwick was passed as far back as  in  1696.  A  century  later,  the  US  Constitution  expressly outlawed bills of attainder [see: Article 1 Section 9].

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14. It is for this reason that our Constitution permits a legislature to make laws retrospectively which may alter the law as it stood when a decision was arrived at. It is in this limited circumstance that a legislature may alter the very basis of a decision given by a court, and if an appeal or other proceeding be pending, enable the Court to apply the law retrospectively so made which would then change the very basis of the earlier decision so that it would no  longer  hold  good.  However,  if  such  is  not  the  case  then legislation  which  trenches  upon  the  judicial  power  must necessarily be declared to be unconstitutional.”

27. The decision in Cheviti Venkanna Yadav v. State of Telangana &

Ors. (2017) 1 SCC  283,  was relied on  behalf of the respondents,

wherein the Court considered the question of amendment with

retrospective effect after a provision of the Act is struck down by the

court.  When does it not amount to the statutory overruling of a

judgment by the legislature? This Court held that the legislature has

the power to legislate including the power to retrospectively amend the

laws and thereby removing causes of ineffectiveness or invalidity.

Further, when such correction is made, the purpose behind the same

is  not to  overrule the  decision  of the court  or encroach  upon the

judicial turf, but simply enact a fresh law with retrospective effect to

alter the foundation and meaning of the legislation and to remove the

base on which the judgment is founded. The order of the High Court,

inter  alia,  holding that the  amended  provisions  did  not  usurp the

judicial power was upheld and the court also opined that there was no

violation of Article 14 of the Constitution. The Court observed:

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“25. We shall deal first point first. The Reorganization Act came into force on 02.06.2014. Submission is, prior to the said date, the legislature that was not in existence as an entity could not have  legislated  relating  to  some  aspect  that  covers  the  prior period. The aforesaid submission should not detain us long. In M/s. Rattan Lal and Co. and Anr. etc v. The Assessing Authority, Patiala, and Anr. AIR 1970 SC 1742 the Court was dealing with the competence of State of Haryana pertaining to a legislation enacted by the State of Haryana by way of an amendment prior to the reorganisation of the State. In that context the Court held:

"12. …It is argued that the reorganisation of the State took place on November 1, 1966, and the amendment in some of its  parts  seeks  to  amend  the  original  Act  from  a  date anterior to this date. In other words, the legislature of one of the States seeks to amend a law passed by the composite State. This argument entirely misunderstands the position of the original Act after the reorganisation. That Act applied now as  an  independent  Act  to  each  of  the  areas  and  is subject to the legislative competence of the legislature in that area. The Act has been amended in the new States in relation to the area of that State and it is inconceivable that this could not be within the competence. If the argument were  accepted  then  the  Act  would  remain  unamendable unless the composite State came into existence once more. The scheme of the States Reorganization Acts makes the laws applicable to the new areas until superseded, amended or altered by the appropriate legislature in the new States. This is what the legislature has done and there is nothing that can be said against such amendment."

The  aforesaid  passage  makes  it  clear  as  crystal  that  after  the legislature came into existence, it has the competence to enact any law retrospectively or prospectively within the constitutional parameters.

26. The second issue that emanates for consideration is whether the base of the earlier judgment has really been removed. Before stating the factual score, it is necessary to state how this Court has viewed the said principle. In Shri Prithvi Cotton Mills Ltd. and Anr. v. Broach Borough Municipality and Ors. (1969) 2 SCC 283, the Constitution Bench while dealing with the legislation which intended to validate the tax declared by law to be illegal, opined that when a Legislature sets out to validate a tax declared by a court  to be illegally  collected under an ineffective or an invalid law, the cause for ineffectiveness or invalidity must be

28

removed before validation can be said to take place effectively. The most important condition, of course, is that the Legislature must possess the power to impose the tax, for if it does not, the action  must  ever  remain  ineffective  and  illegal.  Granted legislative competence, it is not sufficient to declare merely that the decision of the Court shall not bind, for that tantamount to reversing the decision in exercise of judicial  power which the Legislature does not possess or exercise. A court's decision must always bind unless the conditions on which it  is based are so fundamentally  altered  that  the  decision  could  not  have  been given  in  the  altered  circumstances.  Thereafter,  the  Court proceeded to state that validation of a tax so declared illegal may be done only if the grounds of illegality or invalidity are capable of being removed and are in fact removed and the tax thus made legal. The legislature does it many a way. One of the methods it may adopt is to give its own meaning and interpretation of the law under which tax was collected and by legislative fiat makes the new meaning binding upon courts. On such legislation being brought,  it  neutralizes  the  effect  of  the  earlier  decision  as  a consequence of which it becomes ineffective. The test of validity of  a  validating  law  depends  upon  whether  the  Legislature possesses the competence which it claims over the subject-matter and  whether  in  making  the  validation  it  removes  the  defect which  the  courts  had  found  in  the  existing  law  and  makes adequate provisions in the validating law for a valid imposition of the tax.

27.  In Bhubaneshwar Singh and Anr. v. Union of India and Ors. (1994) 6 SCC 77 in view of Section 3 of the Coking Coal Mines (Emergency Provisions) Act, 1971 which was promulgated in the year  1971  the  Custodian  being  appointed  by  the  Central Government took over the management of Coking Coal Mines and  the  said  mines  remained  under  the  management  of  the Central  Government  through  the  custodian  during  the  period from  17.10.1971  to  30.04.1972.  The  Coking  Coal  Mines (Nationalisation) Act, 1972 came into force w.e.f. 1.5.1972, and the right, title and interest of the owners in relation to Coking Coal  Mines  stood  transferred  to  and  vested  absolutely  in  the Central Government free from all encumbrances. The provisions of the said Act were challenged before this Court in the case of Tara Prasad Singh and Ors. v. Union of India and Ors. (1980) 4 SCC 179 and the Constitution Bench upheld the validity of the said Act.  The writ  Petitioner before the High Court  making a grievance that the Custodian had debited the expenses for raising the coal while the Coking Coal Mine was under the Management of the Custodian but had not credited the price for the quantity of

29

the coal raised, which was lying in stock on the date prior to the date the said Coal Mine vested under the Central Government. The High Court  allowed the writ  petition and a direction was issued  that  account  be  recast  and  payment  be  made  to  the Petitioner.  The  appeal  before  this  Court  by  special  leave  was dismissed, as this Court was of the view that sale price of stock of extracted coal lying at the commencement of the appointed date had to be taken into account for determining the profit and loss  during  the  period  of  management  of  the  mine  by  the Custodian.  After  the  appeal  preferred  by  the  Coal  Fields  was dismissed,  Coal  Mines  Nationalisation  Laws  (Amendment) Ordinance, 1986 was promulgated and later on replaced by Coal Mines Nationalisation Laws (Amendment) Act, 1986 came into force. By Section 4 of the Amendment Act, Sub-section (2) was introduced  in  Section  10  of  the  Coking  Coal  Mines (Nationalisation) Act, 1972. The said provision declared that the amounts  specified  in  the  fifth  column  of  the  First  Schedule against  any  coking  coal  mines  or  group  of  coking coal  mine specified in the second column of the said Schedule are required to be given by the Central Government to its owner under Sub- section (1) shall be deemed to be included, and deemed always to have included, the amount required to be paid to such owner in respect of coal in stock or other assets referred to in Clause (j) of Section 3 on the date immediately before the appointed day and no other amount shall be paid to the owner in respect of such coal or other assets. Section 19 was the validating provision.

28.  The writ  petition was filed questioning the validity of the said  ordinance  primarily  on  the  ground  that  it  purported  to nullify the judgment rendered in the case of Central Coal Fields Ltd.  v.  Bhubaneswar  Singh and Ors.  (1984)  4 SCC 429.  The Court referred to the provisions and opined that:

“13. ...if Sub-section (2) as introduced by the Coal Mines Nationalisation Laws (Amendment)  Act,  1986 in Section 10  had  existed  since  the  very  inception,  there  was  no occasion  for  the  High  Court  or  this  Court  to  issue  a direction  for  taking  into  account  the  price  which  was payable for the stock of coke lying on the date before the appointed day. The authority to introduce Sub-section (2) in Section  10 of  the  aforesaid  Act  with  retrospective  effect cannot  be  questioned.  Once  the  amendment  has  been introduced retrospectively, courts have to act on the basis that such provision was there since the beginning. The role of the deeming provision need not be emphasised in view of series of judgments of this Court. Hence reading Sub-

30

section (2) of Section 10 along with Section 19, it has to be held that Respondents are not required to take into account the stock of coke lying on the date prior to the appointed day, for the purpose of accounting during the period when the  mine  in  question  was  under  the  management  of  the Central Government,  because it  shall be deemed that  the compensation awarded to the Petitioner included the price for  such  coal  lying  in  stock  on  the  date  prior  to  the appointed day. Neither any compensation is to be paid for such stock of coal nor the price thereof is to be taken into account for the purpose of Sub-section (1) of Section 22 of the Coking Coal Mines (Nationalisation) Act, 1972.”

Being of this view, the Court dismissed the writ petition.

29. In State of H.P. v. Narain Singh (2009) 13 SCC 165 while dealing with the validation of statute the Court ruled that:

“26.  It  is  therefore  clear  where  there  is  a  competent legislative  provision  which  retrospectively  removes  the substratum of foundation of a judgment, the said exercise is a valid legislative exercise provided it does not transgress any other constitutional limitation.”

To  arrive  at  the  said  conclusion,  the  two-Judge  Bench reproduced from the decision in Constitution Bench in State of T.N. v. Arooran Sugars Ltd. (1997) 1 SCC 326 which is to the following effect:

“28. … ’16. …It is open to the legislature to remove the defect pointed out by the court or to amend the definition or any other provision of the Act in question retrospectively. In  this  process,  it  cannot  be  said that  there  has  been an encroachment  by  the  legislature  over  the  power  of  the judiciary. A court's directive must always bind unless the conditions on which it is based are so fundamentally altered that under altered circumstances such decisions could not have been given. This will include removal of the defect in a statute pointed out in the judgment in question, as well as alteration or substitution of provisions of the enactment on which such judgment is based, with retrospective effect.’

30.  From the aforesaid authorities,  it  is  settled that  there  is  a demarcation  between  legislative  and  judicial  functions predicated on the theory of separation of powers. The legislature

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has  the  power  to  enact  laws  including  the  power  to retrospectively  amend  laws  and  thereby  remove  causes  of ineffectiveness  or  invalidity.  When  a  law  is  enacted  with retrospective effect, it is not considered as an encroachment upon judicial power when the legislature does not directly overrule or reverse a judicial dictum. The legislature cannot, by way of an enactment,  declare  a  decision  of  the  court  as  erroneous  or  a nullity, but can amend the statute or the provision so as to make it applicable to the past. The legislature has the power to rectify, through an amendment, a defect in law noticed in the enactment and even highlighted in the decision of the court. This plenary power  to  bring  the  statute  in  conformity  with  the  legislative intent and correct the flaw pointed out by the court can have a curative and neutralizing effect. When such a correction is made, the purpose behind the same is not to overrule the decision of the court or encroach upon the judicial turf, but simply enact a fresh law with retrospective effect to alter the foundation and meaning of the legislation and to remove the base on which the judgment is founded. This does not amount to statutory overruling by the legislature.  In  this  manner,  the  earlier  decision  of  the  court becomes non-existent and unenforceable for interpretation of the new legislation. No doubt, the new legislation can be tested and challenged on its own merits and on the question whether the legislature possesses the competence to legislate on the subject matter  in  question,  but  not  on  the  ground  of  over-reach  or colourable legislation.”

There is no dispute with the aforesaid proposition that the

legislature has the power to retrospectively amend the laws and

thereby remove the causes of ineffectiveness or  invalidity  on which

judgment is  based,  and  that  would  not  be  an encroachment  upon

judicial power when the legislature does not directly overrule or

reverse a judicial dictum.

28. Reliance has also been placed by the respondents on  Goa

Foundation & Anr. v. State of Goa & Anr. (2016) 6 SCC 602 wherein the

Court has discussed the matter thus:

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“24. The principles on which first question would require to be answered are not in doubt. The power to invalidate a legislative or executive act lies with the Court. A judicial pronouncement, either declaratory or conferring rights on the citizens cannot be set  at  naught  by  a  subsequent  legislative  act  for  that  would amount to an encroachment on the judicial powers. However, the legislature  would  be  competent  to  pass  an  amending  or  a validating act, if deemed fit, with retrospective effect removing the basis of the decision of the Court. Even in such a situation, the  courts  may  not  approve  a  retrospective  deprivation  of accrued rights arising from a judgment by means of a subsequent legislation [Madan Mohan Pathak and Anr. v. Union of India and Ors. (1978) 2 SCC 50. However, where the Court's judgment is purely  declaratory,  the  courts  will  lean  in  support  of  the legislative power to remove the basis of a Court judgment even retrospectively, paving the way for a restoration of the status quo ante. Though the consequence may appear to be an exercise to overcome the judicial pronouncement it is so only at first blush; a closer scrutiny would confer legitimacy on such an exercise as the same is a normal adjunct of the legislative power. The whole exercise is one of viewing the different spheres of jurisdiction exercised by the two bodies i.e. the judiciary and the legislature. The balancing act, delicate as it is, to the constitutional scheme, is  guided  by  well-defined  values  which  have  found  succinct manifestation in the views of this Court in Bhaktwar Trust and Ors. (supra).  

26. If the above principles are to be applied to the present case what  follows  is  that  Section  41(6)  to  (9)  introduced  in  the Principal Act by the Goa State Amendment renders ineffective Clause 4(viii) of the Agreement executed by the parties Under Section 41 of the Principal Act. With Clause 4(viii) being deleted the embargo on constructions on the acquired land is removed. It is  the  aforesaid  Clause 4(viii)  and its  legal  effect,  in  view of Section 42, that was the basis of the Court's decision dated 20th January  2009  holding  the  construction  raised  by  the  third Respondent on the acquired land to be illegal and contrary to the Principal Act. Once Clause 4(viii) is removed the basis of the earlier judgment stands extinguished. In fact, it may be possible to say that if Clause 4(viii) had not existed at all, the judgment of the  Court  dated  20th  January  2009  would  not  have  been forthcoming.  It  was  therefore  well  within  the  domain  of  the legislature to bring about the Amendment Act with retrospective effect,  the  Legislative field also being in  the Concurrent  List, namely, Entry No. 42 of List III (Acquisition and Requisition of Property) of the Seventh Schedule to the Constitution.”

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 The  Court  has re­emphasised that  a judicial  pronouncement,

either declaratory or conferring rights on the citizens cannot be set at

naught by a subsequent legislative act. However, the legislature shall

be competent to pass an amending or a validating Act, if deemed fit,

with retrospective effect removing the  basis of the decision of the

Court by amending the law. Thus, once the provisions in clause 4(viii)

were removed, the basis of the earlier judgment stood extinguished.

29. In Goa Glass Fibre Ltd. v. State of Goa & Anr. (2010) 6 SCC 499,

a question arose whether under the Goa (Prohibition of Further

Payment and Recovery of Rebate Benefits) Act, 2002, sections 2, 3, 5

and 6  were unconstitutional. The contention  was raised that the

impugned  Act  nullifies the judgment of the  Court. The  Court  has

observed:

“15. It is well settled that a Statute can be invalidated or held unconstitutional on limited grounds viz.,  on the ground of the incompetence  of  the  Legislature  which  enacts  it  and,  on  the ground, that it breaches or violates any of the fundamental rights or  other  Constitutional  Rights  and on  no other  grounds.  (See State of A.P. v. McDowell and Co. (1996) 3 SCC 709, Kuldip Nayar v. Union of India and Ors. (2006) 7 SCC 1.

16. The scheme of the Act appears to be simple. The Act imposes a Prohibition [under Section 2], requires recovery [under Section 3] and "extinguishes" all  liabilities  of the State that  accrue or arise from the Notifications dated 15.05.1996 and 01.08.1996.

17. From the language of the Act, it becomes clear that the Act is not  influenced  by  the  outcome  of  the  Judgment  of  the  High Court  in  Manohar  Parrikar's  case.  By  the  enactment,  the Legislature has imposed prohibition of further payments under

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the Notifications, provides for recovery of rebate benefits from the beneficiaries and extinguishes the State's Liability under the Notifications mentioned supra. This exercise by the Legislature is independent of and dehors the results of the PIL of Manohar Parrikar and can be said to be uninfluenced by the said judgment. It was well within the Legislative power of the State to respond to  the  undisputed  and  disturbing  facts  which  had  enormous financial  implication on the State's Finances to enact the Law with an object  of remedying the unsatisfactory state of affairs which were known to the Legislature.  

18.  That  the  object  of  the  Act  is  not  to  undo  or  reverse  the judgments of either this Court or that of the High Court. On a reading  of  the  Act  as  a  whole,  it  does  not  appear  that  the Legislature  seeks  to  undo  any  judgment  or  any  directions contained  therein.  As  observed  earlier  the  Act  imposes  a Prohibition [under Section 2], requires recovery [under Section 3] and "extinguishes" all  liabilities  of the State that  accrue or arise from the Notifications dated 15.05.1996 and 01.08.1996. Therefore, no exception can be taken to the constitutionality of the Act impugned, on the ground, that it seeks to undo or reverse any judgment. The Legislature in its competence has enacted the Act to achieve the purposes indicated therein and not to frustrate any judgment of any court including that of this Court. It is to be noted that State Legislature was competent to enact the Act in its present form even before the judgment of the High Court in the PIL and the fact that it has come after the judgment in PIL does not  render  it  unconstitutional  on  the  ground  that  it  seeks  to nullify the judgment of this Court in the earlier proceedings.”

The liability of the State which accrued or arose from the

notifications referred to therein was sought to be extinguished. It was

held that it was not to undo the judgment. The legislature was held to

be competent to remove the basis.  

30. In  Tika Ram & Ors. v. State of Uttar Pradesh & Ors. (2009) 10

SCC 689,  this  Court  considered  the provisions of  Land Acquisition

(U.P. Amendment & Validation Act, 1991, in particular sections 2 and

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3 thereof adding proviso to section 17(4) of the Land Acquisition Act,

1894 and held the same to be constitutional.  The contention that the

U.P.  Amendment Act merely sought to overrule judgments in Kashmir

Singh’s  case  AIR  1987  All.  113  or  State  of  U.P. v.  Radhey  Shyam

Nigam (1989) 1 SCC 591 and did not remove the basis or foundation

thereof and  was, therefore, ultra vires Articles 245 and 246  was

rejected. The question arose regarding the constitutional validity of the

Land Acquisition  (Amending)  Act.  Notification under  section 4 read

with section 17(4) was issued on 4.12.1984 which was published in

the Gazette on 8.12.1984. Declaration under section 6 was made on

4.12.1984 and published in the Gazette on 8.12.1984. It was found

that simultaneous notifications under sections 4 and 6 could not be

made  and therefore the  acquisitions  were  bad  as  held in  Kashmir

Singh v.  State of  U.P.  AIR 1987 All.  113 which was upheld by this

Court. Thereafter, the Ordinance was promulgated. The Statement of

Objects and  Reasons referred to the judgment in  Kashmir  Singh’s

case. It was decided to amend the Act for validating the proceedings in

respect of the Notification under section 4 published on or after

24.9.1984 but before 11.1.1989. Following provision was inserted:

“55.  The amendment  of  Section  17  was  brought  on the  legal anvil by way of a proviso to Sub-section (4) thereof which ran as under:

"Provided that where in case of any land notification under Section 4(1) has been published in the official Gazette on

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or  after  24.09.1984  but  before  11.1.1989  and  the appropriate  Government  has  under  this  Sub-section direction  that  proviso  of  Section  5A was  not  applied,  a declaration under Section 6 in respect of the land may be made either simultaneously at a time after the publication in the Official Gazette of the notification under Section 4 sub-section (1)."

The Court in Tika Ram (supra) observed that the legislature had

no  power to overrule the judgment.  However, it  has the  power to

suitably amend the law to remove flaw pointed out by the Court. It

was observed:

“57.  This  argument  is  completely  answered  in  Meerut Development  Authority  v.  Satbir  Singh  reported  in  1996 (11) SCC  462.  This  Court  was  considering  this  very  proviso  of Section  17(4)  inserted  by  Land Acquisition  [U.P.  Amendment and Validation Act,  1991 [UP Act No. 5 of 1991] and relying upon  the  judgment  reported  as  GDA v.  Jan  Kalyan  Samiti, Sheopuri reported in 1996 (2) SCC 365, the Court took the view in paragraph 10 that when this Court had declared a particular statute to be invalid, the Legislature had no power to overrule the judgment. However, it has the power to suitably amend the law by use of proper phraseology removing the defects pointed out by the Court and by amending the law inconsistent with the law declared by the Court so that the defects which were pointed out were never on statute for enforcement of law. Such an exercise of power to amend a statute is not an incursion on the judicial power of the Court but as a statutory exercise on the constituent power  to  suitably  amend  the  law  and  to  validate  the  actions which have been declared to be invalid.

69.  Reliance  was  also  placed  on  the  judgment  in  Bakhtawar Trust v. M.D. Narayan and Ors. reported in 2003 (5) SCC 298. Learned Counsel for the appellant relied on paragraphs 14 to 16. In  our  opinion,  paragraph  14  was  completely  against  the appellants  wherein  the  State  Legislature's  power  to  make retrospective  legislation  and  thereby  validating  the  prior executive and legislative acts retrospectively is recognized. Of course, the same has to be done only after curing the defects that led  to  the  invalidation.  We  respectfully  agree  with  the propositions laid down in paragraphs 14, 15 and 16 thereof. In

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Shri Prithvi Cotton Mills Ltd. v. Broach Borough Municipality reported in 1969 (2) SCC 283, which is referred to in paragraph 16 of the decision, it is stated that:

“the Legislature may follow any one method or all of them and while it does so, it may neutralize the effect of earlier decision of the Court which becomes ineffective after the change of the law.”

It is further stated therein that the validity of the validating law, therefore,  depends upon whether the Legislature possesses the competence which it claims over the subject matter and whether in making the validation it removes the defect which the Courts had found in the existing law. The Amending Act  has clearly passed these  tests.  All  the  relevant cases  on this  subject  have been considered in this judgment.”

The Court has observed that the State legislature has the power

to make retrospective legislation, thereby validating the prior executive

and legislative acts retrospectively, such power is recognised. Of

course, the same has to be done only after curing the defects that led

to the invalidation.

31. In the light of the exposition of the aforesaid principles of law in

the various  judgments when we revert  back to the scenario in the

instant  matter, it is  apparent that there  was  decision  of the  High

Court of Kerala on 26.8.2016 regarding admission in  MBBS/BDS

courses in 2016­17 directing that all the colleges agree that the

applications for admission are received only through “on­line” and that

the said process provides transparency with regard to the merit as well

as the identities of the applicants. Such applications shall be uploaded

for scrutiny of the Admission Supervisory Committee also.

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32. Against the said  interim order which was of final  nature, the

Union of India had filed an SLP. This Court set aside only that part of

condition No.1 wherein the respective colleges were allowed to conduct

the counselling and admit the students without going into the merits.

This Court has referred to the aforesaid order of the Kerala High Court

in a decision dated 28.9.2016 in CA No.9862/2016. In C.A.

No.3874/2018, (2018 (6) SCALE 174) – Anitta Job & Ors. v. The State

of Kerala & Ors. decided on 20.4.2018, this Court observed:

“14. We have already noticed above that Kerala High Court has passed interim order on 26.08.2016 under which the High Court issued  certain  directions  regarding  admission  in  MBBS/BDS Courses  2016-2017.  Paragraph  9  of  the  judgment  which  is relevant in this context is as follows:

“9.  Accordingly,  there  shall  be  an  interim  stay  of operation and implementation of the impugned orders, G.O. (Rt) No. 2314/2016/H&FWD dated 20.08.2016 and  G.O.  (Rt)  No.  2336/2016/H&FWD  dated 23.08.2016, subject to the following conditions:

(i)  Admissions  to  the  MBBS/BDS courses  shall  be only on the basis of the ranking of candidates in the rank list of NEET, 2016, on the basis of the inter-se merit among the candidates, who have applied to the respective colleges.

(ii)  All  the  colleges  agree  that  the  applications  for admission are received only through online and that, the said process provides transparency with regard to the merit  as well as the identities of the applicants. Such applications shall, therefore, be uploaded for the scrutiny  of  the  Admission  Supervisory  Committee also immediately  on  the  expiry of  the  last  date  for submission of applications.

(iii) Since the counsel for the Admission Supervisory Committee has voiced a complaint that some of the

39

colleges have not obtained approval of the Admission Supervisory  Committee,  for  their  Prospectus,  the admission process shall be proceeded with only on the basis  of  a  Prospectus,  for  which  approval  of  the Admission Supervisory Committee has been obtained.

(iv) The Admission Supervisory committee is directed to  either  approve  or  disapprove  the  Prospectus, submitted to them for approval, within three days of such submission.”

15. It is relevant that against the interim order of the Kerala High Court dated 26.8.2016, Union of India has filed an SLP which was disposed of by this Court on 28.9.2016 in C.A.No.9862 of 2016.  This  Court  set  aside  only  that  part  of  Condition  No.1 wherein  the  respective  Colleges  are  allowed  to  conduct  the counselling and admit the students without going into the merits. This Court, however, specifically observed that this Court is not interfering  with  the  admissions  of  students  which  have  been done  by  the  respective  Colleges  as  those  were  done  after reaching  arrangement  with  the  State  Government.  Last  two paragraphs of this Court’s order dated 28.9.2016 are as follows:

    “Having regard to the aforesaid facts as stated by the learned Solicitor General as well as the counsel for  the  respondents,  we  set  aside  that  part  of Condition  No.1  wherein  the  respective  colleges  are allowed  to  conduct  the  counselling  and  admit  the students without going into the merits.

    This issue shall be finally thrashed out and decided by  the  High  Court  in  the  writ  petitions  which  are pending before  it.  However,  we  are  not  inclined  to interfere with the admissions of students which have been done by the respective colleges as these are done after  reaching  arrangement  with  the  State Government. In that behalf, the conditions which are mentioned  in  the  impugned  order  shall  continue  to apply.

    The appeal stands disposed of in the aforesaid terms.”   

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It is apparent from the order passed by this Court as well as by

the High Court of Kerala that receiving online applications was

mandatory and it was laid down in the judgment for ensuring the fair

process of admissions, transparency as well as identities of the

applicants.  The condition was the outcome of  the  judgment on the

power of judicial review passed by the Kerala High Court and affirmed

by this  Court  also.  Thus, the very  same  judgment is  sought  to  be

nullified by  the  impugned Ordinance by making a provision  to the

contrary. Admissions as per the Ordinance are to be regularised

dehors the mode of submitting the applications. It is not removing the

defect in any existing law. The  Ordinance has clearly annulled a

judgment of Court which was laid down in order to ensure fair

procedure.

33. We have anxiously read the entire impugned Ordinance and a

perusal thereof indicates that it is a blatant attempt of regularisation

of admissions made which were declared to be invalid not only by the

High Court of Kerala but by this Court after this Court had dealt with

the order dated 14.11.2016 passed by the ASC after hearing the

matter for several days and the Court had passed a reasoned order.

While dismissing/disposing of the matters, this Court directed the 30

students who were illegally deprived of the admission, to be admitted

in the next academic session 2017­18. It was clearly not a dismissal of

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the case in limine but a reasoned order. In the writ petitions filed by

the colleges and others,  the validity and legality of  the order dated

14.11.2016 was questioned. However, this Court has upheld the

same. We also note that voluminous records were filed in this Court

by both the medical colleges. The students were also heard when the

decision  was rendered. Thereafter also several petitions  were filed

which  were dismissed by this Court. Thus, when this Court has

upheld  the order  dated 14.11.2016 on  the  ground of illegality  and

irregularities and not following the due procedure, such admissions

could not have been regularised at all. In case such a power of

covering up illegal action is given to the State Government in

individual  cases  of two colleges, the  day  is  not far  off  when every

judgment can be annulled. It is crystal clear in the instant case that

the State Government has exceeded its powers and has entrenched

upon the field reserved for the judiciary. It could not have nullified the

judgment. The online procedure was laid down by the judgment. The

provision of any existing law framed by legislation has not been

changed by the State Government by the  impugned Ordinance but

illegalities found in the admissions were sought to be got rid of. What

was laid down in the judgment for ensuring the fair procedure which

was required to be followed was sought to be undone, it was nothing

but the wholly impermissible act of the State Government of sitting

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over the judgment and it could not have promulgated the Ordinance

setting at naught the effect of the judgment.

34. It is also apparent that what the State Government has done by

way  of impugned Ordinance is  not  only impermissible  and beyond

legislative competence it also has the effect of perpetuating illegality

and arbitrariness committed by the colleges in question by not

following      the mandate  of law  laid  down by  the  High Court  as

affirmed  by this  Court.  An effort has  been  made to cover  up the

arbitrariness and illegality in an illegal and impermissible manner for

which the State Government had no competence. The provisions made

in the Ordinance are otherwise also quite illegal and arbitrary besides

in violation of the doctrine of separation of powers enshrined under

Article 50 of the Constitution of India.

35. Reliance has been placed by the respondents on a decision of

this Court in Kunhayammed & Ors. v. State of Kerala & Anr. (2000) 6

SCC 359  so  as to contend that this  Court  has  not  dismissed the

special leave petition by a speaking order. Thus, it cannot be treated

to be a precedent. Reliance has been placed on the following

observations made by the Court:

“40. A petition seeking grant of special leave to appeal may be rejected for several reasons. For example, it may be rejected (i) as barred by time, or (ii) being a defective presentation, (iii) the petitioner  having  no  locus  standi  to  file  the  petition,  (iv)  the conduct of the petitioner disentitling him to any indulgence by the  Court,  (iv)  the  question  raised  by  the  petitioner  for

43

consideration  by  this  Court  being  not  fit  for  consideration  or deserving being dealt with by the apex court of the country and so  on.  The  expression  often  employed  by  this  Court  while disposing  of  such  petitions  are  -  "heard  and  dismissed", "dismissed",  "dismissed as barred by time" and so on. Maybe that at the admission stage itself the opposite party appears on caveat or on notice and offers contest to the maintainability of the  petition.  The  Court  may  apply  its  mind  to  the  merit worthiness  of  the  petitioner's  prayer  seeking  leave  to  file  an appeal  and having formed an opinion may say "dismissed on merits". Such an order may be passed even ex-parte, that is, in the  absence  of  the  opposite  party.  In  any  case,  the  dismissal would  remain  a  dismissal  by  a  non-speaking  order  where  no reasons have been assigned and no law has been declared by the Supreme Court.  The dismissal  is  not  of  the  appeal but  of  the special leave petition. Even if the merits have been gone into, they  are  the  merits  of  the  special  leave  petition  only.  In  our opinion,  neither  doctrine  of  merger  nor  Article  141  of  the Constitution  is  attracted  to  such  an  order.  Grounds  entitling exercise of review jurisdiction conferred by Order 47 Rule 1 of the C.P.C. or any other statutory provision or allowing review of an order passed in exercise of writ or supervisory jurisdiction of the  High  Court  (where  also  the  principles  underlying  or emerging from Order 47 Rule 1 of the C.P.C. act as guidelines) are  not  necessarily  the  same  on  which  this  Court  exercises discretion to grant or not to grant special leave to appeal while disposing of a petition for the purpose. Mere rejection of special leave petition does not take away the jurisdiction of the court, tribunal  or  forum  whose  order  forms  the  subject  matter  of petition for special leave to review its own order if grounds for exercise  of  review jurisdiction  are  shown to exist.  Where  the order rejecting an SLP is a speaking order, that is, where reasons have been assigned by this Court for rejecting the petition for special leave and are stated in the order still the order remains the one rejecting prayer  for  the grant  of  leave to  appeal.  The petitioner has been turned away at the threshold without having been allowed to enter in the appellate jurisdiction of this Court. Here also the doctrine of merger would not apply. But the law stated  or  declared  by  this  Court  in  its  order  shall  attract applicability  of  Article  141  of  the  Constitution.  The  reasons assigned by this  Court  in  its  order  expressing its  adjudication (expressly or by necessary implication) on point of fact or law shall take away the jurisdiction of any other court,  tribunal or authority to express any opinion in conflict with or in departure from the view taken by this Court because permitting to do so would be subversive of judicial discipline and an affront to the

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order of this Court. However, this would be so not by reference to the doctrine of merger.

44. To sum up our conclusions are:

(i)  Where  an  appeal  or  revision  is  provided  against  an  order passed by a court, tribunal or any other authority before superior forum and such superior forum modifies, reverses or affirms the decision put in issue before it,  the decision by the subordinate forum merges in the decision by the superior forum and it is the latter  which  subsists,  remains  operative  and  is  capable  of enforcement in the eye of law.

(ii) The jurisdiction conferred by Article 136 of the Constitution is divisible into two stages. First stage is up to the disposal of prayer  for  special  leave  to  file  an  appeal.  The  second  stage commences  if  and  when  the  leave  to  appeal  is  granted  and special leave petition is converted into an appeal.

(iii)  Doctrine  of  merger  is  not  a  doctrine  of  universal  or unlimited application. It will depend on the nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or capable of being laid shall be determinative of the applicability of merger. The superior jurisdiction should be capable  of  reversing,  modifying or  affirming the  order  put  in issue  before  it.  Under  Article  136  of  the  Constitution,  the Supreme  Court  may  reverse,  modify  or  affirm  the  judgment- decree or order appealed against while exercising its appellate jurisdiction  and  not  while  exercising  the  discretionary jurisdiction disposing of petition for special leave to appeal. The doctrine of merger can, therefore, be applied to the former and not to the latter.

(iv)  An order  refusing special  leave to  appeal  may be a  non- speaking order  or  a  speaking  one.  In  either  case,  it  does  not attract the doctrine of merger. An order refusing special leave to appeal  does  not  stand substituted  in  place  of  the  order  under challenge. All that it means is that the Court was not inclined to exercise its discretion so as to allow the appeal being filed.

(v) If the order refusing leave to appeal is a speaking order, i.e. gives reasons for refusing the grant of leave, then the order has two implications. Firstly, the statement of law contained in the order is a declaration of law by the Supreme Court within the meaning of Article 141 of the Constitution. Secondly, other than the declaration of law, whatever is  stated in the order are the findings recorded by the Supreme Court which would bind the parties  thereto and also the court,  tribunal  or authority in any

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proceedings subsequent thereto by way of judicial discipline, the Supreme Court  being the  apex court  of  the  country.  But,  this does not amount to saying that the order of the court, tribunal or authority below has stood merged in the order of the Supreme Court  rejecting  special  leave  petition  or  that  the  order  of  the Supreme  Court  is  the  only  order  binding  as  res  judicata  in subsequent proceedings between the parties,

(vi)  Once  leave  to  appeal  has  been  granted  and  appellate jurisdiction of Supreme Court has been invoked the order passed in appeal would attract the doctrine of merger; the order may be of reversal, modification or merely affirmation.

(vii) On an appeal having been preferred or a petition seeking leave  to  appeal  having  been  converted  into  an  appeal  before Supreme  Court  the  jurisdiction  of  High  Court  to  entertain  a review petition is lost thereafter as provided by Sub-rule (1) of Rule (1) of Order 47 of the C.P.C.”

This Court  has considered the expressions often employed by

this Court while disposing of the special leave petition as “heard and

dismissed”, “dismissed”, “dismissed as barred by time”. Maybe that at

the admission stage itself, the opposite party appears on caveat or on

notice and offers a contest to the maintainability of the petition. Such

an order  may  be  passed even  ex parte  i.e. in the absence of the

opposite party. In any case, the dismissal would remain a dismissal by

a non­speaking order where no reasons have been assigned and no

law has been declared by this Court. This Court has ultimately

concluded that if an  order refusing to grant leave to appeal by  a

speaking order gives reasons for refusing the grant of leave, then the

order has two implications; firstly the statement of law contained in

the order is a declaration of law by this Court within the meaning of

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Article 141 of the Constitution; secondly, other than the declaration of

law, whatever is stated in the order are the findings recorded by this

Court which would bind the parties thereto and also the court,

tribunal or authority.  

36. When we read the order passed by this Court,  all the parties

have  filed the pleadings while  the order was passed by this Court.

Counter affidavits, rejoinder and various other applications for taking

on record the documents and plethora of documents were submitted

before this Court and it was argued for several days at length. This

Court has heard the matter and thereafter has expressed the opinion

and recording finding as to the legality of the order dated 14.11.2016

for the first time as the order was not before High Court, vide the order

passed on 22.3.2017 observing that:

“Heard learned counsel for the parties. We  do  not  find  any  ground  to  interfere  in  Order  dated

14.11.2016. As  30  students  have  been  found  by  ASC,  in  the  case  of

Karuna Medical  College,  who have been illegally deprived of their admission in spite of being meritorious, we deem it proper to  issue  direction  to  the  college  and  all  other  concerned authorities to admit them in the next academic session 2017-18 in  Karuna  Medical  College  and  the  corresponding  number  of seats, available to it, shall be reduced by 30 for the college in question for academic session 2017-18.

The Special Leave Petitions are, accordingly, dismissed. Pending applications stand disposed of.”

It is apparent from the aforesaid order passed by this Court that

this Court did not find any ground to interfere with the order dated

14.11.2016. The SLPs. against the order passed by the High Court

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were also dismissed and this Court had directed that 30 students be

admitted in the next session. Independent directions  were issued

which were not ordered by the High Court. This Court directed that

they are  to be admitted to  the academic session 2017­18. Thus, it

does not lie in the mouth of the respondents to contend at all that it

was not a decision on merits by this Court. Submission is startling

and in the negation of stupendous effort made and time given by this

Court while hearing the matters before deciding them by the aforesaid

order.

37. It was also contended on behalf of the respondents that NEET

merit is the fulcrum that has been adopted in the  Ordinance; a

student who could have obtained admission otherwise, had the

procedure been followed, should not be deprived of admission in the

course for no fault on his part.  The submission, though attractive, is

hollow and cannot be countenanced for assessment.   Firstly the

matter stands  adjudicated finally  and finally concluded  up to this

Court.  Merit was the basis earlier too when the admissions were to be

made through NEET and required “on­line” procedure was to be

followed. It is not the change of the basis that has been made by merit

criteria. Apart from that, when once the basic procedure laid down in

the judgment for receiving online applications had not been followed,

admissions that were cancelled on that ground, could not have been

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validated at all. The colleges were unable to satisfy this Court as to the

fairness of the procedure adopted by them. As such, this Court did not

interfere with the  judgment of  the High Court as well  as the order

dated 14.11.2016 of the ASC. When merit was the basis earlier too, it

cannot be said that the legislature has tried to introduce something

new. It cannot be said that any defect has now been removed by the

State legislature from the existing law.  In fact, what was the judgment

of the court, has been attempted to be nullified. It is nothing but an

attempt to nullify the judgment which the legislature cannot do, as we

have a  well­defined field of separation of powers of the judiciary,

legislature and the executive.

38. The decision in Dr. Preeti Srivastava & Anr. v. State of M.P. & Ors.

(1999) 7 SCC 120 has been referred to by the respondents in which

the Court considered the question of the need for common entrance

examination for admission to postgraduate medical courses in a State

and observed that common entrance examination provides  unique

criteria for judging the merits of all candidates who come from

different universities. The common entrance test alone will balance the

competing equities of having competent students for specialised

education. This Court has made the following observations:

“28. This argument ignores the reasons underlying the need for a common entrance examination for post-graduate medical courses in a State. There may be several Universities in a State which conduct  M.B.B.S.  courses.  The  courses  of  study  may  not  be

49

uniform.  The  quality  of  teaching  may  not  be  uniform.  The standard of assessment at  the M.B.B.S.  examination also may not be uniform in the different universities. With the result that in some of the better universities which apply more strict tests for evaluating  the  performance  of  students,  a  higher  standard  of performance  is  required  for  getting  the  passing  marks  in  the M.B.B.S.  examination.  Similarly,  a  higher  standard  of performance may be required for getting higher marks than in other  universities.  Some  universities  may  assess  the  students liberally  with  the  result  that  the  candidates  with  lesser knowledge  may  be  above  to  secure  passing  marks  in  the M.B.B.S. examination; while it may also be easier for candidates to  secure  marks  at  the  higher  level.  A  common  entrance examination, therefore, provides a uniform criterion for judging the merit of all candidates who come from different universities. Obviously, as soon as one concedes that there can be differing standards of teaching and evaluation in different universities, one cannot  rule  out  the  possibility  that  the  candidates  who  have passed  the  M.B.B.S.  examination  from  a  university  which  is liberal  in  evaluating  its  students,  would not,  necessarily,  have passed, had they appeared in an examination where a more strict evaluation  is  made.  Similarly,  candidates  who  have  obtained very high marks in the M.B.B.S. examination where evaluation is liberal would have got lesser marks had they appeared for the examination  of  a  university  where  stricter  standards  were applied.  Therefore,  the  purpose  of  such  a  common  entrance examination is not merely to grade candidates for selection. The purposes  is  also  to  evaluate  all  candidates  by  a  common yardstick.  One  must,  therefore,  also  take  into  account  the possibility that some of the candidates who may have passed the M.B.B.S. examination from more "generous" universities, may not  qualify  at  the  entrance  examination  where  a  better  and uniform standard for  judging all  the candidates from different universities  is  applied.  In  the  interest  of  selecting  suitable candidates  for  specialised  education,  it  is  necessary  that  the common  entrance  examination  is  of  a  certain  standard  and qualifying  marks  are  prescribed  for  passing  that  examination. This  alone  will  balance  the  competing  equities  of  having competent  students  for  specialised  education  and  the  need  to provide for some room for the backward even at  the stage of specialised postgraduate education which is one step below the super specialities.”

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The observations are of no help for the aforestated reasons. The

State  Government  was  not  competent to  promulgate the impugned

Ordinance as already held.  The question cannot be agitated afresh

who could have obtained admission on the basis of the merit. There

may be a large number of other students who  might have been

deprived of their right to obtain admission. Such kind of enquiry is

impermissible to be made now in the wake of the decisions which have

attained finality and are binding upon all concerned.  

39. Reliance has been placed by the respondents on a decision of

this  Court in  Anitta  Job & Ors.  v.  The State  of  Kerala  decided on

20.4.2018 (supra) so as to contend that this Court did not interfere

with the admissions which were made without applying the mind as

the students had appeared in the NEET examination and the college

had admitted other similar students also. This Court has passed the

order under Article 142. In the instant case in view of the previous

verdicts, such a power cannot be exercised and apart from that when

the judgments have attained finality, they are binding on all

concerned including this Court. Power under Article 142 cannot be

exercised to nullify its own judgment and to perpetuate illegality. The

question involved in the case is the power of the State Government to

promulgate the impugned Ordinance. It was not the question in the

said decision of Anitta Job (supra). The decision is of no application to

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the instant case. The power under Article 142 cannot at all be

exercised by this Court in view of the previous decisions and also in

view of the  fact that  it  was not competent to  enact the  impugned

Ordinance by the State Government so as to perpetuate an illegality

in view of the pronouncements made earlier.

40. Resultantly, the writ petitions deserve to be allowed. The

impugned Ordinance  is  declared  to  be  ultra  vires  and entrenching

upon the field earmarked for the judiciary as it sought to nullify the

judgment and order passed by the High Court and by this Court.

………………………..J. (Arun Mishra)

New Delhi; ………………………J. September 12, 2018. (Indira Banerjee)