TMI Blog2019 (7) TMI 1936X X X X Extracts X X X X X X X X Extracts X X X X ..... ed sub-clause (ia). It may be a distinct type of entrance test but it is clearly a specified entrance test. It applies to the State quota seats and nothing else. The non obstante provisions cannot be ignored and these non obstante provisions set it apart from all entrance tests covered by sub-clause (1). The phrase is notwithstanding anything contained in clause (1) above . The mere use of the words notwithstanding any order, judgment or direction of any Court does not mean that the State legislature has tried to overrule or render void or nullify by legislature any judgment of any Court. All challenges before the Nagpur Bench of this court and before the Supreme Court were only in relation to postgraduate courses. The Dr Sanjana Narendra Wadewale decision [ 2019 (5) TMI 1950 - BOMBAY HIGH COURT] was in relation to a notification of March 2019 and was prior to the SEBC Amendment Act or even the SEBC Amendment Ordinance. The findings therein, therefore, cannot form the basis of a challenge to the SEaBC Amendment Act applied to undergraduate admissions. This is all the more so when we find that the Nagpur Division Bench dismissed a later challenge in DR. SAMEER S/O RAJENDRA DE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dical Education and Research in Mumbai. 4. The gravamen of both Petitions is essentially that the SEBC Amendment Act 2019 attempts to nullify and render void decisions of the Nagpur Bench of the Bombay High Court and of the Supreme Court. There is also an argument that the amendment is constitutionally invalid as it purports to be retrospective. The challenge is therefore to the constitutional validity of the SEBC Amendment Act. 5. Given the nature of the challenge, on 8th July 2019 we caused notice to be issued to the learned Advocate General. This was accepted by Mr Kakade on behalf of the State. We were informed that Mr Thorat and Mr Sakhare, learned Senior Counsel, would appear as Special Counsel on behalf of the State. In view of the urgency, since undergraduate medical course are at an advanced stage, with the online preference filling process for MBBS and BDS closing today, and the select list for the first round scheduled for being posted tomorrow, 12th July 2019, we gave the matter the utmost priority. We heard Mr Vashi for the Petitioner at length yesterday and took up the matter first this morning, when he concluded his arguments. Mr Thorat for the State also concl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s for the MBBS/BDS commences from 1st August 2019. 10. Shortly after the SEBC Act came into force, several petitions were filed in this Court challenging its constitutional validity on diverse grounds. Notices were issued to various respondents, including the State. There were applications for stay including by these Petitioners and others. A stay was sought specifically of the operation of Section 16(2) of the SEBC Act which applied to educational institutions admission. We will turn to that provision in detail a little later. The applications for stay were disposed of by this Court s order saying that all admissions for the year 2019-2020 would be subject to the outcome of the constitutional challenges. We pause here to note that all that this meant was that if the challenge was upheld and the SEBC Act was struck down as ultra virus or unconstitutional, then there would be no question of reservation of any seats for those covered by the SEBC Act. 11. While these challenges were pending and before the NEETUG was conducted, on 8th March 2019, the 2nd Respondent, competent authority issued a notification providing for a 16% reservation for SEBC candidates. This was the subject ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -graduate medical admissions, the Supreme Court exercised its extraordinary jurisdiction under Article 142 of the Constitution of India and directed that fresh advertisements be issued by the Common Entrance Test Cell in Maharashtra within two days; directed the notification of the seat matrix; and directed physical counselling to be done a week thereafter. Students were not allowed to change their preferences given in March 2019. The entire admission process was to be on the basis of merit as per the revised NEET list after the EWS quota was scrapped. On 10th June 2019, the Supreme Court declined any clarification or modification of its 4th June 2019 order. 17. Some of the petitioners who had challenged the amendment Ordinance came to the Nagpur Bench of this Court in Writ Petition No. 3771 of 2019 (Dr Sameer Rajendra Deshmukh v State of Maharashtra Ors). This was taken up with several intervention applications. By an order of 13th June 2019, a Division Bench of the Nagpur Bench of this Court (SB Shukre and SM Modak JJ) noted the Supreme Court order of 24th June 2019 in the Sonam Manoj Turkar Writ Petition (C) No. 700 of 2019; and the two orders of 4th June 2019 and 10th June ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nment Colleges and all seats in private Colleges, notwithstanding anything contained in clause (i) or in any order, judgment or direction of any Court, the last date for filing up of application form for admission to such courses to State quota to the Admission Regulatory Authority or the Commissioner of State CET is lapsed; or; (ii) In case of admission to be made other than on the basis of entrance test, referred to in clause (i) or the National Eligibility-cum-Entrance Test and other eligibility criteria referred to in clause (ia) the last date for filling up the application form is lapsed. (Emphasis added as indicated above) 22. Turning first to an analysis of Section 16(2), it is clear to us that the whole section provides for exceptions to the SEBC Act, i.e. those cases or scenarios in which the SEBC Act s provisions for reservation will not apply. Section 16(1) deals with exceptions in regard to employment. We are not concerned with that. Section 16(2) deals with admissions to educational institutions. The main portion of Section 16(2) uses the expression admissions in educational institutions and the cases in which the admission process has already been initiated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rved 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. 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 institutio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... what it does not mean it to be. So, it declares that on the happening of any of those contingencies, which apply to a given situation, the admission process shall be deemed to have started. It means, in any of these contingencies, the admission process is considered or treated to be started. In the present case, the relevant event being of the entrance test, the starting point 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the date of the commencement of the Act. This procedure was for holding of the entrance test and not for filling the seats in the State quota. Therefore, the provisions of the Act, 2018 would have no application to the current admission process2019. If such an interpretation is not given, the whole provision of Section 16 (2) of the Act would turn into a dead letter of law, thereby rendering the legislative intent to be redundant. 32. The conclusion that inevitably arises now is that to the current admission process initiated for filling seats in medical colleges for post graduation, diploma etc. courses, the provisions of SEBC Act, 2018 are not applicable and the admission process has to be conducted in accordance with the provisions of the law and the Government orders as they stood before 30th November, 2018, the date of commencement of the SEBC Act, 2018. This being the legal position, the revised seat matrix published on 27.3.2019 providing for reservation of SEBC candidates has to be held and is held as arbitrary, violative of the mandate of Section 16(2) of the SEBC Act, 2018 and as being not in accordance with the procedure established by law inasmuch as it creates une ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 2018, subject to result of any other writ petition, if pending, and the notification would have no application to the present medical admission process2019 which began w.e.f. 16th October, 2018 and 2nd November, 2018 respectively. (ii) Consequently, 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. (iii) Rule is made absolute in these terms. No costs. Authenticated copy of the operative order be furnished to the learned counsel appearing for the parties. 25. This shows that as regards the challenge to the notification the Division Bench in Dr Sanjana Narendra Wadewale case held that it would not apply to the admission process that had already started or would start after 30th November 2018. The Division Bench also held that a revised provisional seat matrix published on 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... following the constitutional amendment will apply to the ongoing admission process which had commenced in the month of November, 2018 i.e. well before the coming into force of the Constitutional amendment ( January, 2019) and the notifications of February and March, 2019. Not only we are reminded of the time-tested principle of law that the modalities of selection cannot be changed after initiation of the process, in a similar matter involving reservation of 16% seats for socially and educationally backward classes including the Maratha community in the educational institutions in the State of Maharashtra in terms 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, the Bombay High Court had taken the view that the said Act having come into force with effect from 30.11.2018, could not be made applicable to the very same admission process as the same had been initiated earlier i.e. on 2.11.2018. The special leave petition against the said order of the Bombay High Court has since been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 30th May 2019 virtually nullified its previous order. The Supreme Court stayed the applicable clause (c) of the notice dated 30th May 2019 and directed the authorities to complete the process, including re-shuffling. If clarified that the 7th March 2019 notification and the previous notification of reservation in postgraduate medical courses would not be applicable for the academic year 2019-2020. 32. At this stage, we must note that the main order of 30th May 2019 made it clear that the State could take action under the newly introduced Article 16(6) but unless additional seats were sanctioned by the Medical Council of India, the existing number of seats could not be subjected to that amendment. By the later order dated 31st May 2019, time was extended to 4th June 2019. 33. It is at this point that Mr Vashi submits that the State could not have then introduced or carved out another totally different species or a sub-category already covered by the first explanation to Section 16(2). 34. For completeness, we note again the order of 4th June 2019 of the Supreme Court in Writ Petition (C) No. 733 of 2019 (Sagar Damodar Sarda Ors v State of Maharashtra Ors). There ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s with the present case and the Supreme Court held that it was beyond the competence of a legislature to nullify a judgment. Since Mr Thorat has also relied on the portions of this judgment, we take the liberty of reproducing certain portions of it: 23. In the matter of Cauvery Water Disputes Tribunal, 1993 Supp (1) SCC 96 (1) (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 inter-partes 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 clas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eral 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. 25. Yet again a Constitution Bench of this Court in State of Tamil Nadu v. State of Kerala, (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... depends upon whether the legislature possesses the competence which it claims over the subjectmatter 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 mayapparently 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 orlegislative direction interfere with the judicial functions? (ii) Is the legislation targeted at thedecided case or whether impugned law requires its application to a case already finally decided? (iii) What are the terms of law; theissues 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 im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 subsection (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 Stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 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 respondentState have become final. 29. The decision in Cheviti Venkanna Yadav v. State of Telangana, (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... islature 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 forconsideration 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. v. Broach Borough Municipality, (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 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 ineffecti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Mine was under the Management of the Custodian but had not credited the price for the quantity of 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t: 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 twoJudge 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 v. Union of India, (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 j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sistent 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. Narayanreported 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 Shri Prithvi Cotton Mills Ltd. v. Broach Borough Municipalityreported 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is clearly a specified entrance test. It applies to the State quota seats and nothing else. The non obstante provisions cannot be ignored and these non obstante provisions set it apart from all entrance tests covered by sub-clause (1). The phrase is notwithstanding anything contained in clause (1) above . The mere use of the words notwithstanding any order, judgment or direction of any Court does not mean that the State legislature has tried to overrule or render void or nullify by legislature any judgment of any Court. 43. Indeed, we are of the view that there was nothing in that there was no decision that came in the way of the State Legislature simply because in Dr Sameer Rajendra Deshmukh, the substantive challenge to the amending Ordinance, since replaced by an amending Act, failed. That decision was confirmed by the Supreme Court. There is, therefore, no question of the State Government attempting to nullify any decision. 44. We need not enter into any further debate to draw any nicer distinctions about the meaning of the words admission process . Specifically, since the NEET last date for filling in application forms was delayed to 7th December 2018 and the S ..... X X X X Extracts X X X X X X X X Extracts X X X X
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