TMI Blog2019 (5) TMI 1950X X X X Extracts X X X X X X X X Extracts X X X X ..... 8.3.2019 and also by the publication on 6.3.2019 of the list of the applicants wherein separate category of SEBC candidates was shown was not about the reasonable pointer towards the application of the provisions of the SEBC Act, 2018 to the present admission process and was only of the intendment of the State Government to make this Act applicable only in accordance with its provisions. The Act contains a transitory provision like Section 16 and it is already found as to how it exempts the current admission process. In terms of the definition of fact given in Section 3 of the Indian Evidence Act, a fact means and includes anything, any state of things or relation of things, capable of being perceived by the senses or of any mental condition of which any person is conscious. This definition would show that the fact is something which could be perceived by the sensory organs or realized as being existent through the power of mind. This definition thus excludes any mental forays into the world of imagination or fantasy. It also keeps away an opinion as regards the interpretation of a document. When we again consider the notification dated 8.3.2019, we would find that there is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ical admissions the procedure for which has started or would start on or after 30th November, 2018, subject to result of any other writ petition, if pending, and the notification would have no application to the present medical admission process 2019 which began w.e.f. 16th October, 2018 and 2nd November, 2018 respectively - it is also directed that the revised provisional seat matrix published on 27.3.2019, insofar as it makes a provision for the category of SEBC candidates, being illegal, shall not be given effect to for the limited purpose of SEBC reservation in current admission process. The respondents, however, would conduct the admission process and complete it in accordance with applicable law, rules and orders, in force, before commencement of the SEBC Act, 2018. - Writ Petition No. 2790 of 2019, With Writ Petition No. 2780 of 2019 And Writ Petition No. 2871 of 2019 - - - Dated:- 2-5-2019 - Sunil B. Shukre And Smt. Pushpa V. Ganediwala, JJ. Shri S.P. Dharmadhikari, Senior Advocate with Shri Ashwin Deshpande Advocate for the Petitioner. Shri Sunil Manohar, Senior Advocate with Ms. K.S. Joshi, Addl. Government Pleader and Shri Sumant Depujari, Government P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms of provisions of the Maharashtra State Reservation (Of Seats For Admission In Educational Institutions In The State And For Appointments In The Public Services And Posts Under The State) For Socially And Educationally Backward Classes (SEBC) Act, 2018 (hereinafter called as SEBC Act, 2018 ). 6. The notification had its impact on the ongoing admission process and the respondent Nos.2 and 3, in order to give effect to the notification, issued a revised provisional seat matrix in late March, 2019. The revised seat matrix provided for reservations for different categories including the category of SEBC, with which we are concerned here. Out of 383 seats available for the State of Maharashtra, 61 seats, in the revised seat matrix, were reserved for SEBC candidates and this number matched with figure of 16% reservation to be provided for such class under the SEBC Act, 2018. The petitioners hopes, bright and beamy hitherto, became dreary and dull. The petitioners still believed that all was not lost for them and according to them, the provisions of Section 16 to SEBC Act, 2018 would what support their rights and improve their chances in the present process. 7. It is the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t much earlier. The respondents, therefore, submit that there is neither any violation of the provisions of SEBC Act, 2018 nor any breach of the constitutional mandate of Article 21 of the Constitution of India inasmuch as this petition is not maintainable for the latches. 9. Shri S.P. Dharmadhikari, learned Senior Advocate for the petitioners submits that the SEBC Act, 2018 came into force w.e.f. 30th November, 2018 and it provides for 16% reservation for SEBC in respect of admission to various seats available in the educational institutions, Government or private and aided or unaided, other than minority educational institutions. He points out similar percentage of reservation is provided for filling up the posts in public services and under the State. But, he further submits that the provision of such reservation has its applicability prospectively and not retrospectively so as not to disturb the ongoing admission or selection process. He further submits that an unequivocal legislative intention in this regard is to be found in Section 16 of the SEBC Act, 2018. According to him, so far as admissions in educational institutions are concerned, the provisions of this Act do n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and even when it is considered in the light of the explanation given to it, the width of the expression does not constrict. According to him, any provision of law must be considered in the light of the object of the enactment, the context in which a particular provision is made and all facts and circumstances surrounding the provision especially when the provision under consideration is a transitory provision as is the case here. He submits that although plain and literal meaning of the words used in a provision are to be understood in the ordinary grammatical sense, it is well settled law that grammar cannot control the interpretation of the provision which has to be read in the context or otherwise there is a danger of the construction becoming urtralegalistic. He further submits that even though there could be a literal approach to make the interpretation of law, the better approach is the purposive approach by which, the Court has to seek legislative intent and not be carried away by a strict literal construction of the words. He further submits that every statute has to be construed in the context of its enactment and through the glasses of the legislature because the ef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, 2018 would show that the provisions of this Act do have application to the present process, not having been exempted by Section 16(2). 14. Shri Manohar, learned Senior Advocate further submits that in any case, the petitioners had a clear idea about the implementation of the SEBC Act, 2018 itself when information brochure regarding registration for admission was published by the respondent No.2. In this brochure a note was added that as per the Government letter dated 14th February, 2019, the reservations as per SEBC Act, 2018 and reservation for economical weaker sections will be implemented after directions from the State Government and, therefore, it was indicated that the seat distribution would be made available in due course. He also points out that the list of applicants was published on 6.3.2019 and it indicated seats reserved for SEBC candidates. He further submits that respondent No.3 issued provisional seat matrix on 14.1.2019 and it also indicated that seats under category of SEBC were reserved. He submits that the revised provisional seats matrix published on 27.3.2019 represented only one change effected by inclusion of the reservation for the category of ec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is seen or the language used is capable of two interpretations, that interpretation which serves the object and purpose of the Act must be given effect to and only in such a case, the doctrine of purposive construction should be adopted. The observations of the Hon'ble Apex Court made in paragraphs 13 to 17 of this Case are enlightening and, therefore, they are reproduced as below : 13. The interpretative function of the Court is to discover the true legislative intent. It is trite that in interpreting a statute the Court must, if the words are clear, plain, unambiguous and reasonably susceptible to only one meaning, give to the words that meaning, irrespective of the consequences. Those words must be expounded in their natural and ordinary sense. When a language is plain and unambiguous and admits of only one meaning no question of construction of statute arises, for the Act speaks for itself. Courts are not concerned with the policy involved or that the results are injurious or otherwise, which may follow from giving effect to the language used. If the words used are capable of one construction only then it would not be open to the Courts to adopt any other hypothetic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g as to whether statute is directory or mandatory. But the intention of the legislature must be found out from the scheme of the Act. It is also equally well settled that when negative words are used the courts will presume that the intention of the legislature was that the provisions should be mandatory in character. 17. Even if there exists some ambiguity in the language or the same is capable of two interpretations, it is trite the interpretation which serves the object and purport of the Act must be given effect to. In such a case the doctrine of purposive construction should be adopted. (See : Swedish Match AB vs. Securities Exchange Board of India. [(2004) 11 SCC 641 : (2004) 7 Scale 158]) 18. In the case of Seafort Court Estates, Ltd. (supra), it is held that a judge entrusted with the task of interpreting a statute must not feel fettered by the supposed real and literal construction and must not express his helplessness while blaming it all on the draftsman. It is observed that the statutes are made by humans and, therefore, are susceptible to ordinary human errors, for no human could be seen as gifted with divine prescience and perfect clarity of vision, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es (SIR ROGER MANWOOD, C.B., and the other barons the the Exchequer] in Heydon's case (4), and it is the safest guide today. Good practical advice on the subject was given about the same time by PLOWDEN in his note (2 Plowd. 465) to Eyston vs. Studd (5). Put into homely metaphor it is this : A judge should ask himself the question how, if the makers of the Act had themselves come across this ruck in the texture of it, they would have straightened it out ? He must then do as they would have done. A judge must not alter the material of which the Act is woven, but he can and should iron out the creases................ 19. In Sidhharth Viyas and another (supra), three Judges Bench of the Hon'ble Apex Court considering English cases and various cases including the case of RBI vs. Peerless General Finance Investment Co. Ltd., reported in (1987) 1 SCC 424 held that if the text is the texture and context is what gives the colour, neither could be ignored, both being important. It further held that the interpretation is best when there is a match between textual and contextual interpretation. It has been further held that a statute is to be looked at in the context of its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnot control the interpretation of the provision which has to be read in the context. It will be appropriate to reproduce the relevant part of the said judgment which is as follows : 43. The interpretation canvassed on behalf of the landlord is only grammatical and so ultralegalistic. It is what is called the literal approach. In Kammins Ballrooms Co. Ltd v. Zenith Investments (Torquay) Ltd [1971 AC 850 : (1970) 3 WLR 287 : (1970) 2 ALL ER 871 (HL)]. Lord Diplock drew a clear distinction between the 'literal approach' and the 'purposive approach', and used the purposive approach to solve the question. 44. Recently, the House of Lords considered the rules of interpretation of statutes in Stock v. Frank Jones Tiption Ltd. [(1978) 1 WLR 231 : (1978) 1 ALL ER 948 (HL)] In that case Viscount Dilhorne said: It is now fashionable to talk of a purposive construction of a statute, but it has been recognised since the 17th century that it is the task of the judiciary in interpreting an Act to seek to interpret it 'according to the intent of them that made it' (Coke 4 Inst 33). The better approach is the purposive approach, namely, to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his Act. 21. Bearing in mind these principles of law that we now undertake the task of ascertaining the meaning of the provisions made in Section 16 of the SEBC Act, 2018. This Section is divided in two subsections, with subsection (1) dealing with a situation arising from a selection process started for making appointments to public posts and subsection (2) making a clarification as to which cases of admission process relating to seats in educational institutions, the SEBC Act, 2018 would not apply. As we are concerned in this case with the second part of Section 16, we think it appropriate to reproduce subsection (2) here and it reads thus : Section 16(1).................... Section 16(2) : The provisions of this Act shall not apply to admissions in educational institutions and the cases in which the admission process has already been initiated before the commencement of this Act and such cases shall be dealt with in accordance with the provisions of law and the Government orders, as they stood before such commencement. Explanation I. For the purposes of this section, the admission process shall be deemed to have initiated where, (i) admission is t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t would have to be taken as that of the date when the procedure for such test began. Procedure for such test, surely cannot begin when the State initiated the exercise to fill State quota seats on 25.02.2019, as the learned Senior Advocate for the State would have us believe. There is a sea of difference in procedure for such entrance test and procedure for filling State quota seats , as the former is a ranking determinative procedure and the latter is a seat filling procedure undertaken after rankings are determined. If the admission process is an expedition to a mountain rising to form a plateau, entrance test is it's base camp and the stage of filling of seats is it's plateau. In this expedition, not all climbers can reach the plateau. Only those found fit till last round would occupy the plateau and the rest will be eliminated. So, by using particular words and shunning away from other group of words, the legislature made it's intention clear that it wanted to indicate that only the basecamp or the foundational point of the admission process would be the initiation of admission process and not a point of the summit of the admission process. Such interpretation, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing down unequivocally demarcating lines between the selection or admission process not hit by the provisions of the Act and the selection or the admission processes amenable to the same. At this juncture, we would recall the insightful observations of the English Court in Seafort Court Estates Ltd. (supra), if the makers of the Act have themselves come across this ruck in the texture of it , how they would have straightened it out ? . Here these observations apply to the context of the Act which does not make any applicability of the Act with any retrospective effect and rather, makes a provision to clarify that those selection or admission processes would be exempt from the application of the Act, if contingent events categorized therein have already occurred before commencement of the Act. This shows that a position otherwise unclear in the Act has been made clear by the provisions made in Section 16 of the Act, 2018 and this way, we can say, Section 16 adds colour to the text of the Act making it easily understandable. The colour so added has been further accentuated by the explanation appended to each of the subsections of Section 16 and it could be anybody's guess as to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich it seems to subserve, (c) to provide an additional support to the dominant object of the Act in order to make it meaningful and purposeful, (d) an Explanation cannot in any way interfere with or change the enactment or any part thereof but where some gap is left which is relevant for the purpose of the Explanation, in order to suppress the mischief and advance the object of the Act it can help or assist the Court in interpreting the true purport and intendment of the enactment, and (e) it cannot, however, take away a statutory right with which any person under a statute has been clothed or set at naught the working of an Act by becoming an hindrance in the interpretation of the same. 28. Thus, we find that Section 16 of the Act makes a more clear provision relating to reservation of seat for a candidate in public posts and educational institutions as regards the starting point of the reservation policy. The starting point is that of all fresh selection or admission processes, in the sense, here we would speak about the medical admissions to be precise, those medical admissions in which the procedure for entrance test has already been initiated, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;्त तरतुदीनुसार ) meaning that the admission process be worked by keeping in view and in accordance with the provisions of the SEBC Act, 2018. According to the respondents, even this date could be considered to be the procedure for such entrance test . The submission is devoid of any substance and is, therefore, rejected. The notification dated 8.3.2015 speaks of only what SEBC Act, 2018 says and goes on to command that the action be taken by the concerned authorities while making admissions, in accordance with the provisions of the SEBC Act, 2018. This would mean that the authorities must not ignore any single provision of this Act including the provision of Section 16(2) of this Act. Besides, this notification does not speak of any entrance test and, therefore, it has no relevance for understanding the meaning of the words admission process , so clearly and unequivocally conveyed by the language used in the entire section. 31. This is how we have considered the effect of the notification dated 8.3.2019 and so we find that there is no need for us to say any further that it is unconstitutional and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ling of seats at college level rounds and the cut off date of admission process upto 18.5.2019. In this information brochure there is also a note appended and it says that as per the Government letter dated 14th February, 2019, reservation as per SEBC Act 2018 and Economically Weaker Sections (EWS) will be implemented after directions from the State Government. . It further states, therefore the seat distribution will be made available in due course . 35. According to the learned Senior Advocate for the State, the note so made in the information brochure gave a sufficient idea of what may perhaps be in store for the petitioners and the stages relating to the online registration and publication of list of the applicants also indicated that a provision was being made for making of reservation of seats for SEBC candidates and so, if the petitioners felt aggrieved, they ought to have approached this Court within a reasonable period of time from 6.3.2019 when the list of applicants was published. He also submits that if they had any doubt in mind, the petitioners could have approached the respondent No.2 for removal of doubts or raising of a grievance but they did not do. He als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on to those provisions, in particular the provision of Section 16 of the SEBC Act, 2018 and implement the policy in derogation of the said provision. This notification, in any case, does not give a slightest hint that the provisions of the SEBC Act, 2018 regarding reservation for SEBC candidates would be applied even to the current process, there being no such declaration expressly made therein. 38. So, we do not think that from 8.3.2019 and onwards the candidates had started getting some feelers about the application of the provisions of the SEBC Act, 2018 to the present admission process. The impression created by the notification dated 8.3.2019 and also by the publication on 6.3.2019 of the list of the applicants wherein separate category of SEBC candidates was shown was not about the reasonable pointer towards the application of the provisions of the SEBC Act, 2018 to the present admission process and was only of the intendment of the State Government to make this Act applicable only in accordance with its provisions. The Act contains a transitory provision like Section 16 and we have already found as to how it exempts the current admission process. 39. This impress ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nto the world of imagination or fantasy. It also keeps away an opinion as regards the interpretation of a document. When we again consider the notification dated 8.3.2019, we would find that there is no express declaration made therein that 16% reservation for SEBC candidates be provided even in current admission process. That means there is no fact existing or established and, therefore, there can be no admission of a nonexistent fact. This is how the so called admission of the petitioners would be treated in law. At the most, it could be considered to be the own interpretation of the petitioners and the interpretation is always a question of law which cannot be decided on the basis of admission of parties. So we find no merit in the said contention raised on behalf of the respondent No.1. 41. There has also been an argument about the facts and circumstances in which the transitory provision must be interpreted. The discussion thus far made by us would show that the facts and circumstances of this case, as reflected in the context of the SEBC Act, 2018, have assumed a clear meaning because of the presence of Section 16(2) and as such, we do not wish to further elaborate the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd in this process if the seats are filled up and the scope for granting admission is lost due to eclipse of time schedule, then under such circumstance, the candidate should not be victimised for no fault of his/her and the court may consider grant of appropriate compensation to offset the loss caused, if any. 33.4. When a candidate does not exercise or pursue his/her rights or legal remedies against his/her nonselection expeditiously and promptly, then the courts cannot grant any relief to the candidate in the form of securing an admission. 33.5. If the candidate takes a calculated risk/chance by subjecting himself/herself to the selection process and after knowing his/her nonselection, he/she cannot subsequently turn around and contend that the process of selection was unfair. 44. It would be clear from these guidelines that the relief regarding admissions can be granted if it is possible to do so within the time schedule prescribed for an admission process and that would be by way of an exceptional case. 45. In the present case, as per the information brochure of January 2019, the whole admission process is still going on and is not completed. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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