TaxTMI 
TaxTMI 
2019 (7) TMI 1936
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....he Constitution of India is to the Constitutional validity and vires of a 25th June 2019 amendment to the Maharashtra State Reservation (of seats for admission in educational institutions in the State and for appointments in public services and posts under the State) for Socially and Educationally Backward Classes (SEBC) Act 2018 ("the SEBC Act"). The amendment in question was effected by Maharashtra Act No. III of 2013 and is entitled the Maharashtra State Reservation (of seats for admission in educational institutions in the State and for appointments in public services and posts under the State) for Socially and Educationally Backward Classes (SEBC) (Amendment) Act, 2019 ("the SEBC Amendment Act"). 2. Petitioners Nos. 1, 2 and 3 in Writ Petition (L) No. 2016 of 2019 are all aspiring undergraduate medical (MBBS) and dental (BDS) course students. Petitioner No.4 is represented by his father. The Petition claims to espouse the cause on behalf of all students similarly placed. The two Petitioners in Writ Petition (L) No. 2022 of 2019 are both students who seek admission to the MBBS course. Petitioner No. 2 in the second petition is represented by his father. 3. Respondent No.1....
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....rder of the Supreme Court in SLP (C) No. 14320 of 2018 (and connected matters) dated 29th November 2018. By a public notice of that date, the National Testing Agency extended the last date for filling online applications for NEET-UG by one week to 7th December 2018. A copy of this public notice is at Exhibit "A" to the Petition at page 29. 8. On 30th November 2018, the State Government enacted the SEBC Act. Broadly stated - and we need no more for our present purposes - this makes reservations in admissions and public sector employment, initially proposed up to 16%, for socially and educationally backward classes, including Marathas, over and above the existing Other Backward Classes reservations. The SEBC Act came into force from that date, 30th November 2018. 9. The NEET-UG was conducted on 5th May 2019. Results were declared on 5th June 2019. The seat matrix for MBBS and BDS courses was declared on 6th July 2019. The Provisional State Merit List was declared on 7th July 2019. The process of online preference filling was scheduled to run from 7th July 2019 to 5:00 pm on 11th July 2019 (today). The First Round Selection List declaration is scheduled for 12th July 2019. The l....
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....on with a specific cut-off date in regard to the NEET process, as opposed to the previous provision that only spoke of admission tests in general. 14. This Ordinance came to be challenged before the Supreme Court in Writ Petition No. 700 of 2019 (Sonam Manoj Turkar & Ors v State of Maharashtra & Ors). On 24th May 2019, was dismissed as withdrawn with liberty to approach the High Court. If the Petitioners did so, the High Court was requested to give the matter priority. 15. On 30th May 2019, the Supreme Court passed an order in a separate Writ Petition (C) No. 55 of 2019 (Janhit Abhiyan v Union of India). That dealt inter alia with the State Government Notification dated 7th March 2019 in regard to postgraduate medical courses. The question before the Supreme Court was whether the Notification would apply to the admission process that had commenced in November 2018. There is a later order of 31st May 2019 as well. Again, we will need to advert to these two orders in greater detail later in this judgment. 16. On 4th June 2019, in Writ Petition (C) No. 733 of 2019 (Sagar Damodar Sarda & Ors v State of Maharashtra & Ors), the Supreme Court considered a grievance made before it....
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.... with in accordance with the provisions of law and the Government orders as they stood before such commencement. Explanation:-For the purposes of this section, the selection process shall be deemed to have been initiated where, under the relevant service rules,- (i) Recruitment is to be made on the basis of written test or interview only, and such written test or the interview, as the case may be, has started; or (ii) Recruitment is to be made on the basis of both, written test and interview and such written test has started. (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:-For the purposes of this section, the admission process shall be deemed to have initiated where,- (i) Admission is to be made on the basis of an entrance test, and procedure for such entrance test has started; or (ia) In case of admission to be m....
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.... the amendment a sub-class or a sub-species has been created for the NEET, and for this a totally different basis has been provided, being the last date for filling up application forms for admission for such courses in the State quota. That last date for undergraduate courses is 12th July 2019. The last date for joining the colleges is 19th July 2019 and undergraduate MBBS and BBS courses start on 1st August 2019. 24. Mr Vashi first draws attention to the 2nd May 2019 decision of the Nagpur Division Bench judgment in Dr Sanjana Narendra Wadewale. As we have seen, the challenge in that group of writ petitions was to the notification of March 2019 by the State Government making a general declaration in terms of the SEBC Act as it then stood for educational institution reservations of 16% for socially and educationally backward classes. He draws attention to certain paragraphs of this judgment which are set out below: "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 ....
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....it 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) and (ii) thereof. Here we are concerned with first contingency. According to it, the admission process starts the moment procedure for entrance test for admission starts. The words used are "procedure for such entrance test" and the words "procedure for filling State quo....
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.... 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. 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, would not be affected by the applicability of the Act and those admission processes where such procedure has not yet started as of the date of th....
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....dmission process. 39. This impression, we must say, would be entertained by anybody who goes by the ordinary and plain meaning unequivocally conveyed by the words used in Section 16(2) of the SEBC Act, 2018 and it would be continued to be entertained till the time, there is some declaration made to the contrary. In the present case, there was no such contrary declaration made in categorical terms either by publication of list of applicants on 6.3.2019 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. 46. In view of above, we are inclined to partly al....
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.... to postgraduate medical courses. The question before the Supreme Court was whether the Notification would apply to the admission process that had commenced in November 2018. The Supreme Court referenced the 103rd Amendment to the Constitution of India that introduced Article 16(6). 29. . We reproduce the relevant portions of this since they are material and note that these came after the 103rd Constitutional Amendment that added Article 16(6) which is set out in the order. The Supreme Court order of 30th May 2019 reads thus: "The entitlement of the petitioners to an appropriate interim order is the precise question that is being dealt with by the Court by the present order. By the 103rd Constitutional amendment, after clause (5) of Article 16, the following clause numbered as clause (6) has been inserted:- "(6) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any economically weaker sections of citizens other than the classes mentioned in clause (4), in addition to the existing reservation and subject to a maximum of ten per cent of the posts in each category." ....
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....f the benefit of reservation for admission to postgraduate medical courses. While making the above declaration, we have kept in mind the need to balance the competing claims which balance could be upset by claim of equity, if the reserved category candidates are allowed to undergo the medical course(s) and in the event their admission is found to be untenable at a later stage of the present proceedings. We have, therefore, deemed it appropriate to pass the above interim directions to make the aforesaid interim declaration pending final decision in the writ petitions before us. Needless to say, it is always open for the Medical Council of India to sanction additional seats, if deemed fit. I.A. No. 84633/2019 filed for intervention stands disposed of." (Emphasis added) 30. Again, this was in the context of postgraduate admissions and at a pre-amendment stage. 31. There was then a further order of 31st May 2019 (not in the paper-book but tendered separately) where the Supreme Court was told that the State CET Cell Maharashtra had not complied with the Supreme Court directions. It had issued a notice on 30th May 2019 that the admission of all candidates who were allot....
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....nging the amending Ordinance, and to which we have already referred. 36. We are constrained to note that throughout all the challenges were to the application of the SEBC Act to postgraduate medical admissions. There was never any discussion regarding undergraduate admissions. In itself, this presents a logical difficulty and inconsistency in Mr Vashi's way. We do not think it is at all possible to say that the Division Bench's order in Dr Sanjana Narendra Wadewale (which held the March 2019 notification to be inapplicable to admissions in the current academic year) must apply to both postgraduate and undergraduate admissions, and, in the same breath to say that the subsequent order dated 13th June 2019 in Dr Sameer Rajendra Deshmukh case dismissing the challenge to the amending Ordinance is confined to postgraduate courses only. The failure of the challenge in Dr Sameer Rajendra Deshmukh to the amendment by ordinance will necessarily have to cover both undergraduate and post-graduate admissions. 37. The next logical hurdle is that the argument undermines Mr Vashi's submission of legislative incompetence. If he maintains that the Division Bench order dated 13th June 2019 in D....
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....submission that the question of grant of interim relief falls outside the submission that the question of grant of interim relief falls outside the purview of the said provisions and can be agitated under Article 131 of the Constitution. Hence any executive order or a legislative enactment of a State which interferes with the adjudicatory process and adjudication by such Tribunal is an interference with the judicial power of the State. In view of the fact that the Ordinance in question seeks directly to nullify the order of the Tribunal passed on June 25, 1991, it impinges upon the judicial power of the State and is, therefore, ultra vires the Constitution. 78. Further, admittedly, the effect of the Ordinance is to affect the flow of the waters of the river Cauvery into the territory of Tamil Nadu and Pondicherry which are the lower riparian States. The Ordinance has, therefore, an extra-territorial operation. Hence the Ordinance is on that account beyond the legislative competence of the State and is ultra vires the provisions of Article 245(1) of the Constitution. 79. The Ordinance is also against the basic tenets of the rule of law inasmuch as the State of Karn....
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....itutional principle under the Constitution of India. 126.3 Separation of powers between three organs - the legislature, executive, and judiciary - is also nothing but a consequence of principles of equality enshrined in Article 14 of the Constitution of India. Accordingly, breach of separation of judicial power may amount to negation of equality under Article 14. Stated thus, a legislation can be invalidated on the basis of breach of the separation of powers since such breach is negation of equality under Article 14 of the Constitution. 126.4 The superior judiciary (High Courtsand Supreme Court) is empowered by the Constitution to declare a law made by the legislature (Parliament and State Legislatures) void if it is found to have transgressed the constitutional limitations or if it infringed the rights enshrined in Part III of the Constitution. 126.5 The doctrine of separation of powersapplies to the final judgments of the courts. The legislature cannot declare any decision of a court of law to be void or of no effect. It can, however, pass an amending Act to remedy the defects pointed out by a court of law or on coming to know of it aliunde. In other wo....
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....d that the decision could not have been given in such altered circumstances. The legislature can make a validating law. Making validation as such, it removes the defect which the court finds in the existing law. There cannot be an attempt to interfere with the judicial process, and such law may be invalidated. The questions to be examined are: whether the legislation targeted at the decided case, what are the terms of law; the issues with which it deals and the nature of the judgment that has attained finality? If law interferes with the judicial functions on the aforesaid tests laid down in para 126.7, the Court may declare the law as unconstitutional. 27. In S.R. Bhagwat v. State of Mysore, (1995) 6 SCC 16, the provisions of Karnataka State Civil Services (Regulations of Promotion, Pay & Pension) Act, 1973 came up for consideration of this Court. Provisions were made in section 11 nullifying the judgments and orders of this Court as had become final, and empowering the State to review such judgments and orders was held to be interference with the powers of the State legislature, and the Court struck down section 11(2) as ultra vires of the legislative powers of the State....
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....come final and the State of Karnataka had not thought it fit to challenge it before this Court presumably because in identical other matters this Court had upheld other decisions of the Karnataka High Court taking the same view, it passes one's comprehension how the legislative power can be pressed in service to undo the binding effects of such mandamus. It is also pertinent to note that not only subsection (2) of Section 11 seeks to bypass and override the binding effect of the judgments but also seeks to empower the State to review such judgments and orders and pass fresh orders in accordance with provisions of the impugned Act. The respondent-State in the present case by enacting sub-section (2) of Section 11 of the impugned Act has clearly sought to nullify or abrogate the binding decision of the High Court and has encroached upon the judicial power entrusted to the various authorities functioning under the relevant statutes and the Constitution. Such an exercise of legislative power cannot be countenanced. 20. We, therefore, strike down Section 11 subsection (2) as unconstitutional, illegal and void. So far as the underlined impugned portions of Section 4 sub-sections....
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.... court also opined that there was no violation of Article 14 of the Constitution. The Court observed: "25. We shall deal first point first. The Reorganization Act came into force on 02.06.2014. Submission is, prior to the said date, the legislature that was not in existence as an entity could not have legislated relating to some aspect that covers the prior period. The aforesaid submission should not detain us long. In Rattan Lal and Co. v. The Assessing Authority, Patiala, AIR 1970 SC 1742 the Court was dealing with the competence of State of Haryana pertaining to a legislation enacted by the State of Haryana by way of an amendment prior to the reorganisation of the State. In that context the Court held: "12. ...It is argued that the reorganisation of the State took place on November 1, 1966, and the amendment in some of its parts seeks to amend the original Act from a date anterior to this date. In other words, the legislature of one of the States seeks to amend a law passed by the composite State. This argument entirely misunderstands the position of the original Act after the reorganisation. That Act applied now as an independent Act to each of the areas and i....
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....s it many a way. One of the methods it may adopt is to give its own meaning and interpretation of the law under which tax was collected and by legislative fiat makes the new meaning binding upon courts. On such legislation being brought, it neutralizes the effect of the earlier decision as a consequence of which it becomes ineffective. The test of validity of a validating law depends upon whether the Legislature possesses the competence which it claims over the subject-matter and whether in making the validation it removes the defect which the courts had found in the existing law and makes adequate provisions in the validating law for a valid imposition of the tax. 27. In Bhubaneshwar Singh v. Union of India, (1994) 6 SCC 77 in view of Section 3 of the Coking Coal Mines (Emergency Provisions) Act, 1971 which was promulgated in the year 1971 the Custodian being appointed by the Central Government took over the management of Coking Coal Mines and the said mines remained under the management of the Central Government through the custodian during the period from 17.10.1971 to 30.04.1972. The Coking Coal Mines (Nationalisation) Act, 1972 came into force w.e.f. 1.5.1972, and the....
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.... Coal Fields Ltd. v. Bhubaneswar Singh, (1984) 4 SCC 429. The Court referred to the provisions and opined that: "13. ...if Sub-section (2) as introduced by the Coal Mines Nationalisation Laws (Amendment) Act, 1986 in Section 10 had existed since the very inception, there was no occasion for the High Court or this Court to issue a direction for taking into account the price which was payable for the stock of coke lying on the date before the appointed day. The authority to introduce Subsection (2) in Section 10 of the aforesaid Act with retrospective effect cannot be questioned. Once the amendment has been introduced retrospectively, courts have to act on the basis that such provision was there since the beginning. The role of the deeming provision need not be emphasised in view of series of judgments of this Court. Hence reading Sub-section (2) of Section 10 along with Section 19, it has to be held that Respondents are not required to take into account the stock of coke lying on the date prior to the appointed day, for the purpose of accounting during the period when the mine in question was under the management of the Central Government, because it shall be deemed that th....
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....tute or the provision so as to make it applicable to the past. The legislature has the power to rectify, through an amendment, a defect in law noticed in the enactment and even highlighted in the decision of the court. This plenary power to bring the statute in conformity with the legislative intent and correct the flaw pointed out by the court can have a curative and neutralizing effect. When such a correction is made, the purpose behind the same is not to overrule the decision of the court or encroach upon the judicial turf, but simply enact a fresh law with retrospective effect to alter the foundation and meaning of the legislation and to remove the base on which the judgment is founded. This does not amount to statutory overruling by the legislature. In this manner, the earlier decision of the court becomes non-existent and unenforceable for interpretation of the new legislation. No doubt, the new legislation can be tested and challenged on its own merits and on the question whether the legislature possesses the competence to legislate on the subject matter in question, but not on the ground of over-reach or colourable legislation." 30. There is no dispute with the afo....
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....constructions on the acquired land is removed. It is the aforesaid Clause 4(viii) and its legal effect, in view of Section 42, that was the basis of the Court's decision dated 20^th January 2009 holding the construction raised by the third Respondent on the acquired land to be illegal and contrary to the Principal Act. Once Clause 4(viii) is removed the basis of the earlier judgment stands extinguished. In fact, it may be possible to say that if Clause 4(viii) had not existed at all, the judgment of the Court dated 20th January 2009 would not have been forthcoming. It was therefore well within the domain of the legislature to bring about the Amendment Act with retrospective effect, the Legislative field also being in the Concurrent List, namely, Entry No. 42 of List III (Acquisition and Requisition of Property) of the Seventh Schedule to the Constitution." 36. The Court in Tika Ram (supra) observed that the legislature had no power to overrule the judgment. However, it has the power to suitably amend the law to remove flaw pointed out by the Court. It was observed: "57. This argument is completely answered in Meerut Development Authority v. Satbir Singh reported i....
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.... not believe the argument assists Mr Vashi at all. We note Mr Thorat's argument that now that the main SEBC Act has been upheld and found to be within legislative competence, it follows that the legislature was competent to enact an amendment. The amendment does not nullify or attempt to overrule or render void any decision of this Court or of the Supreme Court. It is his submission, one that we are inclined to accept, that the amendment provides for clarity and gives a specific date for a defined class, namely, NEET-governed cases. He is also correct in pointing out that the amendment only addresses the State reservation because obviously the State cannot go beyond. 40. He is also correct in his submission that what the Division Bench had before it in Dr Sanjana Narendra Wadewale was a notification, not an amendment and that too one that only applied to postgraduate courses. When considering the Amending Ordinance, the immediate pre-cursor to the amending Act, the Division Bench in Dr Sameer Rajendra Deshmukh dismissed the challenge, and it is this decision that is determinative. 41. Finally, he points out that the Petitioners' entire case is predicated on the SEBC Act being....