TaxTMI 
TaxTMI 
2019 (5) TMI 1950
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.....S. Khubalkar, Advocate for the Respondent No. 2. Shri Shriram Pingale, Shri Ashutosh C. Dharmadhikari and Shri Charuhas Dharmadhikari, Advocate for the intervenor. ORAL JUDGMENT Per : Sunil B. Shukre, J. 1. Heard. 2. All intervention applications are allowed. 3. Rule. Rule made returnable forthwith. Heard finally by consent. 4. The petitioners are the students of Medicine, having done their graduation in Medical Sciences such as Bachelor of Dental Surgery and Bachelor of Medicine. They now aspire to pursue higher education in the field in which they have obtained their degrees. Process for admission to higher Post Graduation Courses in MDS, MD, MS and Diploma in Medical Sciences for the year 2019 started as per the information bulletins entitled "National EligibilitycumEntrance Test for admission to MDS Courses, 2019" and "National EligibilitycumEntrance Test, NEETPG (for admission to MD/MS/PG Diploma Courses2019 session with effect from 16th October, 2018 and 2nd November, 2018 respectively as these were the dates when online submission of application forms began. The National EligibilitycumEntrance Test hereinafter shall be called the "NEET" for the sake of convenienc....
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....e admission process has already been initiated before commencement of the SEBC Act, 2018 and in such a case the admission process has to be dealt with in accordance with the existing provisions of law and the Government orders as they stood before such commencement. They point out that SEBC Act, 2018 came into force w.e.f. 30th November, 2018 and whereas in the present case the admission process, in terms of the Information bulletin for NEET 2019, began on 16th October, 2018 and 2nd November 2018 for MDS and MD/MS/PG courses respectively. They also submit that till the revised provisional seat matrix was published, it was on 27.3.2019 in the late hours of the night, the petitioners did not know that 16% reservation for the category of SEBC was going to be provided and applied retrospectively even to the current admission process. They submit that such a step taken by the respondents is patently against the provisions of law and not in accordance with the procedure established by law and, therefore, it is violative of Section 16 of the SEBC Act, 2018 as well as Article 21 of the Constitution of India. 8. The petitions are strongly opposed by the respondents. According to the respo....
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....d the admission process is allowed to be governed by the provisions of the law and the Government orders prevailing just before the commencement of this Act. He further submits that the meaning of admission process has been clarified by the explanation incorporated in Section 16 and it removes all ambiguity in that regard. 10. Shri Dharmadhikari, learned Senior Advocate further submits that the need to interpret the provisions of law would arise only when there is ambiguity left or some doubt is created in understanding them. He further submits that in understating a provision of law, what should be done, when the words are clear, and plain, is to give to the words that meaning which they convey plainly, irrespective of the consequences. He also submits that it is equally well settled law that while interpreting a statute, the effort should be to give effect to each and every word used by the legislature presuming that the legislature inserted every part of the provision and every word for a purpose and if any such construction is made as would attribute redundancy to the legislative intention, such construction must be abandoned, for it would amount to changing the texture of th....
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....ses, the phrases and the words may take color and appear different than when the statute is viewed without the glasses of the context. He relies upon the case of Sidhharth Viyas and another vs. Ravi Nath Misra and others, reported in (2015) 2 SCC 701 and also the case of Seafort Court Estates Ltd. vs. Asher reported in [June 25, 1949] All England Law Reports Vol 2. 13. Shri Manohar, learned Senior Advocate further submits that Section 16 is a transitory provision, made for removing the difficulties which may arise while applying the SEBC Act, 2018 to current situations and in any case is going to be of no use after one year. He submits, the principle that applies to the interpretation of a transitory provision is that it has to be understood in the light of the facts and circumstances existing on the date on which, the new Act came into force. He relies upon the case of Milkfood Ltd. vs. GMC Ice Cream (P) Ltd., reported in (2004) 7 SCC 288. He points out that the enactment providing for 16% reservation for SEBC Act in public posts and for admissions in educational institutions was drafted in the year 2014 when two separate entrance tests, one for Central seats and, other for Stat....
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....8.3.2019 categorically stating that the reservation for SEBC would be applicable to medical seats available under the State quota. Even then, according to Senior Advocate, if the petitioners had any doubt, the petitioners ought to have approached respondent No.2 for removal of those doubts as a communication dated 16th February, 2019 posted on the web portal informed that a forum was available for the same. But, the petitioners just slept over their rights for all these days, may be months, and approached this Court belatedly and as such, as held in the case of Chandigarh Administration and another vs. Jasmine Kaur and others, reported in (2014) 10 SCC 521, the petitions deserve to be dismissed on the ground of latches. Learned Senior Advocate also submits that in any case even on merits, the petitions do not stand on sound footing and as such, the petitions are liable to be rejected. 15. Learned counsel for the remaining respondents and the intervenors have adopted the argument of learned Senior Advocate expressing their complete agreement with the propositions made by him. 16. In order to appreciate rival arguments it would be necessary for us to be clear on the principles of....
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....er there is ambiguity, the court must look at the statute as a whole and consider the appropriateness of the meaning in a particular context avoiding absurdity and inconsistencies or unreasonableness which may render the statute unconstitutional. 14. It is equally well settled that in interpreting a statute, effort should be made to give effect to each and every word used by the legislature. The courts always presume that the legislature inserted every part thereof for a purpose and the legislative intention is that every part of the statute should have effect. A construction which attributes redundancy to the legislature will not be accepted except for compelling reasons such as obvious drafting errors. (See State of U.P. vs. Vijay Anand Maharaj [AIR 1963 SC 946 : (1963) 1 SCR 1] Rananjaya Singh vs. Baijnath Singh [AIR 1954 SC 749 : (1955) 1 SCR 671] , Kanai Lal Sur vs. Paramnidhi Sadhukhan [AIR 1957 SC 907 : 1958 SCR 360] , Nyadar Singh vs. Union of India [(1988) 4 SCC 170 : 1988 SCC (L&S) 934: (1988)8 ATC 226 : AIR 1988 SC 1979], J.K. Cotton Spg. and Wvg. Mills Co. Ltd. vs. State of U.P. [AIR 1961 SC 1170] and Ghanshyamdas vs. CST [AIR 1964 SC 766 : (1964) 4 SCR 436]). 15.....
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....t it is here that when a defect appears, the judge must address the issue by finding the intention of the Parliament which he must do, not only from the language of the statute but, also from a consideration of the social conditions which gave rise to it and then he must supplement the written word so as to give "force and life" to the intention of the legislation. For this purpose, it is further laid down that the Judge must put himself in the position of the makers of the Act and imagine as to what they would have done to solve the problem and invariably a Judge would get an answer which he must apply to interpret the statute, and this way he would only iron out the creases but not alter the material of which the Act is woven. The relevant observations appearing in second paragraph printed on Page 164 are reproduced thus : ".........whenever a statute comes up for consideration, it must be remembered that it is not within human powers to foresee the manifold sets of facts which may arise, and, even if it were, it is not possible to provide for them in terms free from all ambiguity. The English language is not an instrument of mathematical precision our literature would be much....
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....t without the glasses of the context. It is also observed, following the English case of Stock vs. Frank Jones (Tipton) Ltd., reported in (1978) 1 WLR 231, that better approach is purposive approach, namely, to seek the legislative intent and not be led away by strict literal construction of the words. The observations made by the Hon'ble Apex Court in paragraphs 12 and 13 of the said case would give us an insight into these principles of law. They read thus : 12. In RBI vs. Peerless General Finance & Investment Co. Ltd. [(1987) 1 SCC 424], it was observed : (SCC pp. 45051, para 33) "33. Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word. If a statute is looked at, in the context of its enactment, with the glasses of ....
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....(CA)] as under: "We do not sit here to pull the language of Parliament and of Ministers to pieces and make nonsense of it. That is an easy thing to do, and it is a thing to which Lawyers are too often prone. We sit here to find out the intention of Parliament and of Ministers and carry out, and we do this better by filling in the gaps and making sense of the enactment than by opening it up to destructive analysis." The Court's function is to clarify the language so as to satisfy the legislative intent. 46. The word 'has' has been used in the Act in many other provision, e.g., section 20 permits a suit for ejectment where the tenant 'has sublet'. There the word 'has' may have a different significance, because of, interalia, its legislative history." Srinivasa Enterprises vs. Union of India, (1980) 4 SCC 507 20. In the case of Milkfood Limited (supra), three Judges Bench of the Hon'ble Apex Court has held that a transitory provision is to be interpreted in the light of the facts and circumstances existing on the date of coming into force of the new Act. 103. Since transitory provision is to be interpreted in the light of facts and circumstances existing on the dat....
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....rposive approach," although in our view the literal approach, given the clarity of provisions made in subsection (2) of Section 16, is appropriate here, we find that there is great substance in the argument made by learned Senior Advocate on behalf of the petitioners and no merit in the submissions canvassed on behalf of the respondents. 23. The "literal approach", when applied, would tell us as to how does it fit snugly here. This is because the words used in Section 16(2) of the SEBC Act, 2018 including its explanation are plain, clear and unambiguous. They reasonably admit of no other meaning than what they carry when taken in their ordinary grammatical sense. Subsection (2), Section 16 prescribes that provisions of SEBC Act, 2018 shall not apply to admissions in educational institutions and the cases in which the admission process has already begun before the commencement of the Act. In order to further clarify the expression "admission process" an explanation has been appended to it. The explanation, by giving a deeming effect, clarifies the expression. It says, the admission process shall be deemed to be initiated on the happening of two contingencies stated in clauses (i) ....
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..... Learned Senior Advocate wants us to look into earlier Ordinance and Act, in particular Section 18 thereof, as they provide the glasses of the legislature which if worn by us, would give a different meaning to Section 16(2) than what would seem without the glasses. The argument is ingenious but has it's own practical difficulty for application. The earlier Ordinance and Act having been substituted by the SEBC Act, 2018, are now a history and this new Act is a present day reality which does not speak a word about the history. Then, there are no defects or ambiguities in Section 16(2) making us scramble for glasses. The law is, as we have seen from the cases discussed earlier, that need for such glasses would be there only when a defect or deficiency or ambiguity arises. Here no such defect or ambiguity is seen and so the argument is rejected. 25. It is also argued on behalf of the State that contextual settings, which give colour to the provision under construction, be considered. We do agree. But, we have to be cautious. The settled law would caution us, in our quest for adding hues and colour, to not alter the material of which the fabric of the provision is made so as to r....
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....ons of Section 16. 27. For the present purpose, we have to take into account explanation added to Section 16 (2) of the Act and we have already expressed our mind as to how does it clarify the position in this regard. The explanation has an important place in the interpretation of a Statute which cannot be ignored by us. A salutory purpose that an explanation serves to a statutory provision is expatiated by the Hon'ble Apex Court in the case of S. Sundaram Pillai and others vs. V.R. Pattabiraman and others , reported in (1985) 1 SCC 591. We find that the observations of the Hon'ble Apex court as they appear in paragraph 46 and 53, are of immense help to us to understand the importance of an explanation. They are reproduced thus : 46. We have now to consider as to what is the impact of the Explanation on the proviso which deals with the question of wilful default. Before, however, we embark on an enquiry into this difficult and delicate question, we must appreciate the intent, purpose and legal effect of an Explanation. It is now well settled that an Explanation added to a statutory provision is not a substantive provision in any sense of the term but as the plain meani....
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....ll before 30th November 2018, 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. 29. The object of the SEBC Act, 2018 is to make provision for advancement of socially and educationally backward class citizens in a manner which would afford full opportunity to these classes of citizens to bloom in all their colours and shades while, at the same time, not letting wither the other promising students belonging to other categories by suddenly reducing their chances to secure admission in the current admission process. If this was to happen, the rights that the other students would have acquired such as, a right to participate in the competition in accordance with the Rules in force at the time when the process started and also a right to be not treated unequally midway through the process, would have been ta....
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....ats be carried on in accordance with the provisions of SEBC Act, 2018. 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 unequal competition and violates principles of rule of law, hit by the rigor of Articles 14 and 21 of the Constitution of India and as such deserves to be quashed and set aside. 33. Now coming to the question of latches, we are of the view, upon consideration of all the facts and circumstances of the case, that the petitioners could not be blamed for having approach....
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....titioners submitting that there was no decision taken by the State Government and communicated to the petitioners regarding application of the reservation policy even to the current ongoing process and the note given in the information brochure does not clarify that such a decision had already been taken by the State Government. 36. To our mind, the note given in the information brochure and also the category of SEBC candidates separately shown in the list of applicants published on 6.3.2019 would be of no consequence. The reason being that at least till 8.3.2019 there was no notification issued by the State Government makings it's intention clear about the implementation of the provisions of the SEBC Act, 2018. The notification in this regard came to be issued on 8.3.2019. But, upon perusal of the notification again a doubt is raised about the date from which the reservation policy propounded under the SEBC Act, 2018 would be implemented, especially in the teeth of Section 16(2), insofar as medical admissions are concerned. It would be useful for us to reproduce the notification here as under : 37. It would be clear from the above notification that although the State Gover....
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....9 or through the issuance of notification dated 8.3.2019 nor by any other publication made earlier and such contrary declaration appears for the first time only on 27.3.2019 when the revised provisional seat matrix was published. This seat matrix though entitled "revised provisional seat matrix", was in fact a final announcement at least in relation to application of the policy of 16% seat reservation for SEBC candidates to the current admission process. This would be clear from the foot notes appended to the revised provisional seat matrix, a copy of which is forming part of the paper book. It was this date of 27.3.2019 which actually gave rise to the cause of action. 40. Now we would deal with the contention that there is an admission given by the petitioners about their knowledge that the reservation policy, in the present case, was going to be applied as per the notification dated 8.3.2019. There is an admission indeed given in the counteraffidavit of the petitioners. The pleading is that the communication dated 8.3.2019 showed that the State had given 16% reservation from the total seats to SEBC and that the petitioners had no knowledge about this notification dated 8.3.2019....
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....out 4th April, 2019, which was with a reasonable dispatch. There is, therefore, neither any delay nor any latches on the part of the petitioners in approaching this Court. The argument in this regard is, therefore, rejected. 43. Having seen the illegality and arbitrariness patently committed by the respondent Nos.2 and 3 in the present case and also having assured us of absence of any delay on the part of the petitioners here, the question would still remain as to whether or not the relief as sought by the petitioners could be granted to them. The answer in this regard could be find out if we follow the guidelines of the Hon'ble Apex Court given in the case of Chandigarh Administration and another vs. Jasmine Kaur and others, reported in (2014) 10 SCC 521. The guidelines insofar as they are found to be applicable to the facts and circumstances of this case, are reproduced as below : "33.1. The schedule relating to admissions to the professional colleges should be strictly and scrupulously adhered to and shall not be deviated under any circumstance either by the courts or the Board and midstream admission should not be permitted. 33.2. Under exceptional circumstance, if ....
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.... process without causing any prejudice to anybody. Then, learned Senior Advocate for the respondent No.1State, on instructions, submits that most of the petitioners, perhaps barring one, would even otherwise qualify for admissions, though they may have to opt for some colleges which may not be in their list of topmost choices. But, when law requires a particular thing to be done in a particular manner, it must be done in that manner alone or not at all. This rule propounded in Taylor vs. Taylor, reported in (1876) 1 Ch D 426, applied in the case of Nazir Ahmad vs. Emperor, reported in AIR 1936 Privy Council 253, and followed later on in many judgments of the Hon'ble Apex Court, including that of Ramchandra Keshav Adke (dead) by Lrs. and others vs. Govind Joti Chavare and others, reported in (1975) 1 SCC 559, has now become a principle well entrenched in our body of law. We have already given our interpretation of the provisions of Section 16(2) of the SEBC Act, 2018 stating that this provision of law would exempt the present admission process from the applicability of this Act which came into force on 30th November, 2018. So, the requirement of law is that this Act must not be ....