TaxTMI 
TaxTMI 
TaxTMI 
2019 (7) TMI 1936
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....ional 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 in both petitions is the State. The other respo....
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....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 last date for joining the selected college during the first r....
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....posed 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 that its two orders of 30th May 2019 and 31st May 2019 were not being fol....
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....re 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 made to the courses on the basis of National Eligibility-cumEntrance Test or any other National entrance Test and other eligibility criteria ....
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....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 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 t....
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....EBC 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 quota seats" are avoided. Use of one group of words and avoidance of the other group of words, both, are prophetic. The legislature intends to announce to the world that it holds no two opinions about what it means to be ....
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....k 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 the commencement of the Act, only would be subject to the applicability of this Act. In the present case, the procedure for entrance test has begun on 16th October 2018 for MDS course and 2nd November 2018 for MD/MS/PG courses well be....
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....tained 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 allow these petitions and they are allowed accordingly. (i) We direct that the notification dated 8.3.2019, insofar as medical admission process is concerned, shall be applied to the medical admissions the procedure for which has started or would start on or a....
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..... 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." Though an enabling provision, the State of Maharashtra by notifications dated 12.2.2019 and 7.3.2019 has extended the benefit of reservation to the extent of 10% to economically weaker sections, inter alia, in postgraduate medical courses. The bone of contention between the parties is whether the aforesaid decision ....
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....n 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 allotted seats in previous rounds under the EWS category had been cancelled and that all these were converted to the open category but with a further rider that the admissions of all candidates except those admitted under the EWS category from the previous admission process round were not disturbed. The Supreme Court was told that this notice dated 30....
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.... 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 Dr Sameer Rajendra Deshmukh applies only to postgraduate medical admissions then his case on legislative competence must fail. 38. Mr Vashi's submission is founded to a very large extent to a Supreme Court decision in Medical Council of India v State of Kerala. 2018 SCC Online 1467. It is his submission that the judgment is on all fours with the present case....
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....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 Karnataka by issuing the Ordinance has sought to take law in its own hand and to be above the law. Such an act is an invitation to lawlessness and anarchy, inasmuch as the Ordinance is a manifestation of a desire on the part of the State to be a judge in its own cause and to defy the decisions of the judicial authorities. The action forebodes evil consequences to the federal structure under the Con....
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....s 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 words, a court's decision must always bind unless the conditions on which it is based are so fundamentally altered that the decision could not have been given in the altered circumstances. 126.6 If the legislature has the power over thesubject-matter and competence to make a validating law, it can at any time make such a validating law and make it retrospective. The validity of a validating law, therefore, depends upon whether the legislature....
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....as 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 and sections 4(2), 4(3) and 4(8) were read down which sought to deprive the petitioners of the benefits of the judgment of the court which had become final. It was further observed that once the judgment has attained finality and was binding against the State, it cannot be overruled by any legislative measure. The Court observed that court's judgments cannot be nullified by the legislature: "15. We may note at the very outset that in the present case the High Court had not struck down any legis....
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....wer 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 (2), (3) and (8) are concerned, they clearly conflict with the binding direction issued by the Division Bench of the High Court against the respondent-State and in favour of the petitioners. Once respondent-State had suffered the mandamus to give consequential financial benefits to the allottees like the petitioners on the basis of the deemed promotions such binding direction about payment of consequential monetary benefits cannot be nullified by the impugned provisions of Section 4. Therefore, the underlined portion....
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....ompetence 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 is subject to the legislative competence of the legislature in that area. The Act has been amended in the new States in relation to the area of that State and it is inconceivable that this could not be within the competence. If the argument were accepted then the Act would remain unamendable unless the composite State came into existence once more. The scheme of the States Reorganization Acts makes the laws applicable to the new areas until superseded, amended or altered by the appropriate legislature in the new States. This is what the le....
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....ad 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 right, title and interest of the owners in relation to Coking Coal Mines stood transferred to and vested absolutely in the Central Government free from all encumbrances. The provisions of the said Act were challenged before this Court in the case of Tara Prasad Singh v. Union of India, (1980) 4 SCC 179 and the Constitution Bench upheld the validity of the said Act. The writ Petitioner before the High Court making a grievance that the Custodian had debited the expenses for raising the coal while the Coking Coal Mine was under the Management of the Custodian b....
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....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 the compensation awarded to the Petitioner included the price for such coal lying in stock on the date prior to the appointed day. Neither any compensation is to be paid for such stock of coal nor the price thereof is to be taken into account for the purpose of Subsection (1) of Section 22 of the Coking Coal Mines (Nationalisation) Act, 1972." Being of this view, the Court dismissed the writ petition. 29. In State of H.P. v. Narain Singh, (2009) 13 SCC 165 while dealing with the validation of statute the Court ruled that: "26. It is therefore clear where there is a com....
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....ng 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 aforesaid proposition that the legislature has the power to retrospectively amend the laws and thereby remove the causes of ineffectiveness or invalidity on which judgment is based, and that would not be an encroachment upon judicial power when the legislature does not directly overrule or reverse a judicial dictum. 31. Reliance has also been placed by the respondents on Goa Foundation v. State of Goa, (2016) 6 SCC 602 wherein the Court has discussed the matter thus: "24. The principles on which first question would require to be answered are not in doubt. The power to invalidate a legislative or executive act lies with....
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....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 in (1996) 11 SCC 462. This Court was considering this very proviso of Section 17(4) inserted by Land Acquisition [U.P. Amendment and Validation Act, 1991 [UP Act No. 5 of 1991] and relying upon the judgment reported as GDA v. Jan Kalyan Samiti, Sheopuri reported in (1996) 2 SCC 365, the Court took the view in paragraph 10 that when this Court had declared a particular statute to be invalid, the Legislature had no power to overrule the judgment. However, it has the power to suitably amend the law by use of proper phraseology removing the defects pointed out by the Court and by amending the law inconsistent with the law declared by the Court so that the defec....
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....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 inapplicable to the current admission process, yet the petitioners have not been able to demonstrate any right, let alone an enforceable or fundamental right, that is in any way infringed. There is no guarantee of an admission. There is no right to any particular seat in any particular college. 42. We are of the firm view that where the language of a statute is plain and clear from its literal reading then no process of convoluted reasoning is permissible to arrive at some totally different result. We see no ambiguity at all in the newly introduced 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....