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NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 9835 OF 2016 (ARISING OUT OF SLP (C) NO. 26558 OF 2016)

STATE OF MAHARASHTRA & ORS. .....APPELLANT(S)

VERSUS

DR. D.Y. PATIL VIDYAPEETH & ORS. .....RESPONDENT(S)

W I T H

CIVIL APPEAL NO. 9836 OF 2016 (ARISING OUT OF SLP (C) NO. 26572 OF 2016)

CIVIL APPEAL NO. 9837 OF 2016 (ARISING OUT OF SLP (C) NO. 26567 OF 2016)

A N D

CIVIL APPEAL NOS. 9838-9839 OF 2016 (ARISING OUT OF SLP (C) NOS. 27918-27919 OF 2016)

J U D G M E N T BY THE COURT:

Leave granted

2) All these appeals arise out of the common order dated August 30,

2015 passed by the High Court of Judicature at Bombay in the

writ  petitions filed by the respondents  herein.   In  the said writ Civil Appeal No. 9835 of 2016 & Ors. Page 1 of 16 (arising out of SLP (C) No. 26558 of 2016 & Ors.)

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petitions,  Rule  has  been  issued  and  during  the  course  of

arguments  we are  informed that  these  are  now listed  for  final

hearing on September 29, 2016.

3) Subject matter of challenge in these appeals is the interim order

which is passed by the High Court granting stay of Letter dated

August 09, 2016 issued by the Government of India through the

Ministry  of  Health  and  Family  Welfare,  the  Government

Resolution  dated  August  20,  2016  passed  by  the  State  of

Maharashtra and the consequential Notice dated August 21, 2016

of the State of Maharashtra.

4) Respondents  herein  are  the  deemed  universities  established

under Section 3 of the University Grants Commission Act, 1956

(hereinafter referred to as the 'UGC Act').  The issue pertains to

the admission of students in MBBS/BDS courses.  An All  India

Test known as National Eligibility–cum–Entrance Test (NEET) has

been  conducted  in  order  to  have  the  centralised  admission

process.  This NEET has been conducted by the Central Board of

Secondary  Education,  Delhi,  on  the  basis  of  which  Merit  List

showing All  Indian Ranking has been drawn of  the  successful

candidates.  It is the common case of the parties that admission is

to be given on the basis of the said Merit List by the educational

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institutions.  However, the process of admission is to be preceded

by  counselling  of  eligible  candidates/students.   It  is  this

counselling which has become the bone of contention.

5) Vide the aforementioned Letter and Resolution, which have been

stayed  by  the  High  Court,  a  decision  is  taken  by  the  Central

Government/State  Government  that  the  centralised  counselling

shall be conducted by the State Government.  For this purpose,

the appellants,  i.e.  the State of  Maharashtra,  supported by the

Union of India, relied upon the Constitution Bench judgment of

this Court in  Modern Dental College and Research Centre &

Ors.  v.  State  of  Madhya  Pradesh  &  Ors.1 and  some  other

Constitution  Bench  judgments  including  the  orders  passed  in

Sankalp  Charitable  Trust  &  Anr.  v.  Union  of  India  &  Ors.2

whereby  system of  NEET is  restored  coupled  with  centralised

counselling.   On  the  other  hand,  the  respondent  universities

maintain  that  being  deemed universities,  they are  autonomous

bodies and, therefore, it is their right to undertake the counselling

process and the only rider is that they are supposed to admit the

students only from the Merit List drawn from the NEET and that

too on merit.  According to them, the impugned orders issued by

the Central and State Governments are  ultra-vires as the State 1 (2016) 7 SCC 353 2 (2016) 7 SCC 487 Civil Appeal No. 9835 of 2016 & Ors. Page 3 of 16 (arising out of SLP (C) No. 26558 of 2016 & Ors.)

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Government  has  sought  to  exercise  its  powers  under  the

Maharashtra Act No. XXVIII of 2015 which does not apply to the

deemed  universities,  nay, specifically  excludes  the  institution

declared to be a deemed university under Section 3 of the UGC

Act,  as  per  the  definition  of  'Private  Professional  Educational

Institution'  provided under Section 2(q), to which institutions the

said Act applies, regulating their admission and fees.  It is also

argued that  right  to  admit  students  is  the fundamental  right  of

these deemed universities guaranteed under  Article  19(1)(g)  of

the Act as per the eleven Judge Bench decision of this Court in

T.M.A.  Pai  Foundation  v.  State  of  Karnataka3 and  any

reasonable restrictions thereupon can be imposed only by 'law'.  It

is,  thus,  submitted  that  the  impugned  decisions  and

communications  which  are  administrative  in  nature,  having  no

force of law, cannot take away the right of the deemed universities

to admit the students.

This is the main issue which is to be adjudicated upon and to be

decided  by  the  High  Court  in  the  writ  petitions  filed  by  the

respondents.

6) In the impugned interim order, the High Court has taken note of

the  provisions  of  the  University  Grants  Commission  (The

3 (2002) 8 SCC 481 Civil Appeal No. 9835 of 2016 & Ors. Page 4 of 16 (arising out of SLP (C) No. 26558 of 2016 & Ors.)

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Institutions  Deemed  To Be  Universities)  Regulation,  2016  and

other statutory provisions on the basis of which it has come to the

prima facie view that the State Government cannot transgress the

powers  of  the  deemed  universities  by  issuing  Government

Resolution, when the field of holding the counselling and right to

admit the students is occupied by the Central legislation like the

Amendment  Notification  dated  August  05,  2016  issued  by  the

Medical Council of India under Section 33 of the Indian Medical

Council  Act,  1956  and  the  aforementioned  Regulation,  2016.

Sustenance  is  also  drawn  from  the  judgment  of  this  Court  in

Modern Dental College and Research Centre case on the basis

of  which  it  is  observed  by  the  High  Court  that  right  to  admit

students  is  conferred  upon  educational  institutions.   The  High

Court has also extensively quoted similar interim order passed by

the Kerala High Court on August 26,  2016 in the writ  petitions

which are filed by private unaided educational institutions in the

State of Kerala. While issuing the interim stay of the impugned

orders certain conditions are also imposed, as can be seen from

paras 10 and 11 of the order of the High Court, which read as

under:

“10.   Having  considered  the  aforesaid  statutory provisions, we are of the view that the universities coming under the purview of Deemed Universities under Clause 2.11 of Regulation 2016 are entitled

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to admit the students as per the merit list drawn on the basis of All India ranking of NEET.  In our prima facie  view  in  view  of  the  statutory  provisions  as extracted  above,  the  State  Government  cannot transgress the powers of the Deemed Universities by issuing Government Resolution.  When the field of  holding the  counselling  and right  to  admit  the students is occupied by the central legislation like Amendment Notification 2016 and Regulation 2016 the  Government  Resolution  cannot  override  the said  statutory  provision.   We  also  find  that  the Hon'ble  Supreme  Court  in  the  case  of  Modern Dental  College (supra)  has categorically  held the rights which encompass the right to occupation of educational  institutions  includes  “a  right  to  admit students”.   We  also  find  that  in  identical circumstances  the  Kerala  High  Court  vide  order dated  26th August,  2016  has  stayed  the Government  Resolution  issued  by  the  State  of Kerala by observing at para 9 and 10 as under:

“9.  We have given our anxious consideration to the respective contentions advanced before us.  It is contended by the learned Advocate General that the impugned orders are issued to ensure that students are admitted only on the basis of merit as per the ranking in NEET, 2016.  However, we notice that the admission process itself has been directed to be done by the Commissioner for Entrance Examinations which  is  not  permissible.   Though  it  is contended that it is for the respective colleges to  furnish  to  the  Commissioner  for  Entrance Examinations  the  list  of  students  who  have applied to their colleges, and that it would be only  on  the  basis  of  such  list  that  students would be admitted,  we are not  satisfied that the said arrangement is in accordance with the dicta laid down by the Apex Court in T.M.A. Pai Foundation  case  (supra)  and  P.A.  Inamdar case (supra).  In the said decisions, the Apex Court has clearly laid down that, the right to make admissions forms as integral part of the right  of  the  Self  Financing  Institutions  to establish  and  administer  the  same.  By  the impugned  orders,  the  power  of  admitting students is conferred on the Commissioner for

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Entrance Examinations. Though we had put a pointed  question  to  the  learned  Advocate General  as  to  what  was  the  source  of  the power that has been exercised by the State, we have not been able to get an answer. It is one thing to say that the admission procedure should be fair, transparent, nonexploitative and merit based. It is a totally different thing to say that in order to ensure the same, the allotment would  be  made  by  the  Commissioner  for Entrance Examinations. The limited power that the State has been conceded, extends only to ensuring that the admission process satisfies the criteria laid down by the Supreme Court in T.M.A. Pai Foundation case (supra) and P.A. Inamdar  case  (supra).  Prima  Facie,  the impugned orders  by  conferring  the  power  to admit  students  on  the  Commissioner  for Entrance Examinations has impinged upon the right  of  the  Petitioners  to  admit  students. Therefore,  we  are  satisfied  that  an  interim order  of  stay  of  the  impugned  orders  is necessary  to  be  granted.  However,  we  are conscious  at  the  same  time  that,  it  is necessary to ensure the admission process to be fair, transparent, nonexploitative and merit based.  Therefore,  the  interim  stay  shall  be subject to appropriate conditions.

10. Accordingly, there shall be interim stay of operation and implementation of the impugned orders, G.O. (Rt.) No. 2314/2016/H&FD dated 20.08.2016, 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  interse  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

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

11.  Having regard to the aforesaid, we are of the view  that  the  impugned  letter  dated  9th  August, 2016 issued by the Government  of  India through the  Ministry  of  Health  and  Family  Welfare,  the Government  Resolution  dated  20th  August,  2016 issued  by  State  of  Maharashtra  and  the consequential  notice  of  the  Government  of Maharashtra dated 21st August, 2016 deserves to be and are hereby stayed.   However, it  is  made clear that the admission as may be given by the Petitioners shall  be strictly by abiding the Clause 6.4 of the Regulation 2016 and the Petitioners shall admit the students strictly on the basis of ranking of the candidates in the list of NEET on the basis of inter  se  merit  amongst  the  students  who  have applied to the Petitioner's institution.”

7) We may point out at this stage that the learned counsel appearing

on either side had argued the matter in great detail, touching upon

the  main  question  of  law  as  well  which  is  raised  in  the  writ

petitions.   It  was the endeavour  of  Mr. Shyam Diwan,  learned

senior counsel appearing for the State of Maharashtra, and Mr. Civil Appeal No. 9835 of 2016 & Ors. Page 8 of 16 (arising out of SLP (C) No. 26558 of 2016 & Ors.)

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Ranjit Kumar, learned Solicitor General appearing for the Union of

India,  that  the  aforesaid  reasons  given  by  the  High  Court  in

coming to its prima facie conclusion were patently erroneous.  On

the other hand, Mr. P. Chidambaran and Dr. A.M. Singhvi, learned

senior  counsel,  and  other  learned  counsel  appearing  in  the

matters,  supported  the  impugned  order  and  also  advanced

arguments to the effect that the present case had to be tested

having regard to the provisions of the Maharashtra Act XXVIII of

2015 which excluded deemed universities.

8) We are not reproducing the submissions of counsel for both sides

in detail as these questions of law are to be determined by the

High Court in the writ petitions filed by the respondents herein.

We,  therefore,  do  not  want  to  make  any  comments  on  the

arguments raised by both sides so as not to influence the decision

making process of the High Court.  However, few comments are

required to be made at this stage, which are as follows:

(i) Insofar  as  judgment  of  the Constitution Bench of  this  Court  in

Modern Dental College and Research Centre  case is concerned, it

does not help the respondent universities at all.  On the contrary, it is

held  by  this  Court  in  the  said  case  that  the  process  of  admission

encompasses  not  only  Centralised  Entrance  Test  (CET),  but

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counselling as well.  This is made abundantly clear by the Constitution

Bench in its recent  order  dated September 22,  2016 in  the case of

State of  Madhya Pradesh  v.  Jainarayan Chouksey & Ors.4  It  is

amazing that it is the respondents which had taken shelter under the

aforesaid judgment in Modern Dental College and Research Centre

case, before us this argument was abandoned and the respondents

tried to distinguish this judgment, whereas the appellants heavily relied

upon the said judgment.  

The question,  however, is  as  to  whether  the  said  judgment  is

applicable  to  the  deemed  universities  having  regard  to  the

provisions of the Maharashtra Act XXVIII of 2015, which aspect

has to be decided by the High Court.

(ii) Reliance upon the order dated August 26, 2016 passed by the

Kerala  High  Court  is  also  misconceived  as  the  order  passed

pertained to private unaided medical institutions and not deemed

universities.   Since special  leave petitions are preferred by the

Union of India against the aforementioned order passed by the

Kerala High Court, which are yet to be heard, we refrain ourselves

from making any further comments.

9) We are, however, confronted by a different situation altogether.

4 Contempt Petition (C) No. 584 of 2016 in Civil Appeal No. 4060 of 2009. Civil Appeal No. 9835 of 2016 & Ors. Page 10 of 16 (arising out of SLP (C) No. 26558 of 2016 & Ors.)

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The central issue highlighted above needs to be considered by

the  High  Court.   In  the  meantime,  pursuant  to  the  impugned

orders  passed  by  the  High  Court,  the  respondent  universities,

which  had  invited  the  successful  students  from  the  Merit  List

drawn on  the basis  of  NEET to  register  for  admission  in  their

respective universities, went ahead with the counselling of those

students who applied for admissions to them and a statement was

also made at the Bar that even admissions have also been done

on the basis of first counselling. So much so, classes have started

and those admitted students are attending the course.  We were

informed that second and further counselling would be needed as

many such students admitted in particular courses change their

discipline  of  study  and/or  get  admission  in  other  medical

institutions, thereby resulting into vacating the seats occupied by

them.  Last  date  for  admission  in  MBBS/BDS  courses  is

September 30, 2016.  It was also argued by the learned counsel

appearing for the respondents that admission was done strictly in

accordance with the merit of the successful candidates of NEET

who had applied in their respective universities.

10) On  the  other  hand,  Mr.  Diwan  had  made  valiant  effort  to

demonstrate that had there been a centralised counselling, many

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students who are higher in Merit could have got admission and

they  are  deprived  of  their  admission.   It  was  pointed  out  that

approximately  15,000  students  had  registered  themselves  with

the  State  Government  for  taking  admissions  in  the  deemed

universities of the State of Maharashtra on the understanding that

the  State  would  be  conducting  the  counselling.   A chart  was

submitted to show that had the list been prepared in respect of

such students, the scenario would have been totally different in

contrast  with  the  admissions  given  by  the  respondents.   In

nutshell,  it  was  contended  that  admission  was  given  to  many

students  whose  ranking  is  much  below  in  the  Merit  List  and,

therefore,  admissions given by the deemed universities do not

meet  the  triple  test  of  'Fair,  Transparent  and  Non-exploitative'.

The  respondents,  on  the  other  hand,  countered  the  aforesaid

argument by contending that the list which was prepared by the

State  Government  in  respect  of  the  candidates  who  had

registered with them was on the basis of  applications received

and  it  may  not  reflect  the  desire  of  such  students  to  take

admission in the respondent institutions.  It was argued that the

fee structure of the respondent universities was much higher than

the  Government  colleges  and  even  private  unaided  medical

institutions and,  therefore,  those students  who are  not  able  to

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afford the fee may not be serious in getting admissions in their

institutions.  It was submitted that many of those students who got

themselves registered with the State Government may have taken

admission  in  Government  colleges  and  other  educational

institutions not only of the State of Maharashtra but other such

medical  institutions spread throughout the country.  In nutshell,

their submission was that the exercise done by the appellants did

not filter the aforesaid factors.

11) This Court is conscious of the fact that it is dealing with the interim

order passed by the High Court and the effect of the stay order

given is that the respondent universities are permitted to do the

counselling  and  admit  the  students.   Having  considered  the

respective  submissions,  our  endeavour  is  to  bring  about  an

equitable  solution  in  the  context  of  the  respondents,  who  are

deemed universities and also keeping in mind the developments

which have ensued.

12) We, therefore, feel that following arrangement shall meet the ends

of justice insofar as this academic year is concerned:

(i) The stay order granted by the High Court shall stand vacated and

shall not continue for future years.

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(ii) This, however, will  not disturb the admissions already made by

the respondent  universities.   This direction is  given keeping in

view that respondents are deemed universities.

(iii) Insofar as second or third counselling is concerned, that shall be

a  joint  exercise  which  means  that  it  shall  be  done  by  the

Committee  of  the  State  Government  which  shall  include  one

representative  each  from  these  universities.   The  respondent

universities  shall  nominate  their  respective  representatives

forthwith.  It would be a centralised counselling for all the deemed

universities and not university-wise counselling.  In the second or

third counselling, students will be taken by making a combined list

of  those  who  got  themselves  registered  with  the  State

Government as well  as the respondent universities.   This shall

ensure admission of those who are more meritorious but left out

but  are  interested  in  taking  admission  in  the  respondent

universities (as contended by Mr. Diwan).  In this process, it will

also  be  known  as  to  which  students  are  in  fact  interested  in

getting admission to the respondent universities.

(iv) In order to undertake the counselling, all the admission records of

the  respondent  universities  shall  be  handed  over  to  the  State

Government/Committee forthwith.

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(v) Since it may not be possible to complete the process of admission

by  September  30,  2016,  we  extend  the  time  to  complete  the

admission by October 7, 2016.  

(vi) The  appellant  State  as  well  as  respondent  universities  shall

ensure that all seats are filled and there is no vacant seat.

We make it  clear  once again  that  the aforesaid  directions  are

given in the peculiar situation that has arisen.  We are reminded

of the words of the Chief Justice Marshall that life of law is not

logic but the experience.  We also clarify that this order is passed

in exercise of powers under Article 142 of the Constitution.

Insofar as admission process of subsequent years is concerned, it

shall depend upon the outcome of the central issue raised in the

writ petitions.

13) Having  regard  to  the  fact  that  the  issue  raised  is  of  seminal

importance and shall arise every year, we request the High Court

to  decide  the  writ  petitions  of  the  respondents  on  merits,  as

expeditiously as possible, and it would not allow the respondents

to withdraw the writ petitions.  Since September 29, 2016 is the

date fixed for this purpose by the High Court, we hope that the

final  hearing would start  on that  date and would proceed on a

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day-to-day basis.

14) The civil appeals are disposed of in the aforesaid terms.

.............................................J. (A.K. SIKRI)

.............................................J. (L. NAGESWARA RAO)

NEW DELHI; SEPTEMBER 28, 2016.

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