Part I of this article which is a round up of all the 50 landmark education law judgments delivered from January to June 2022. This part as a sequel takes forward and covers judgments from July to December 2022 inclusive of all the judgments in the specified field by various courts of the country. The remaining judgments are as follows:
(1) Kuchibhotla Srivatsa v. State of A.P.1
(Delivered on July 5, 2022)
Coram: 2-Judge Bench of HM Justices Prashant Kumar Mishra and D.V.S.S. Somayajulu
Authored by: HM Justice D.V.S.S. Somayajulu
Challenge was made to the public notice issued by the State, through which the allotment of one sponsored/reserved seat of DM Pediatrics at PGI Chandigarh to the general category was being prayed for. Three broad issues arose before the court. Firstly, about the territorial jurisdiction of Andhra Pradesh High Court qua admission to a DM Pediatric seat in PGI Chandigarh; secondly, about the exceptional relief to be granted to the petitioner after passing of the cut-off date of admission; and thirdly, about conversion of sponsored/reserved seats to the general quota seats.
On the issue of territorial jurisdiction, court held that merely because the institution PGI Chandigarh is located outside the territorial jurisdiction and the prospectus provided for resolution of all disputes in the courts of Chandigarh, would not preclude exercise of extraordinary jurisdiction under Article 226 of the Constitution of India. Referring to the judgments of A.B.C. Laminart (P) Ltd. v. A.P. Agencies2, Maharashtra Chess Assn. v. Union of India3 and Nawal Kishore Sharma v. Union of India4, the Court held that writ jurisdiction of constitutional courts does not get excluded by exclusionary clauses merely due to existence of a privately negotiated document ousting its jurisdiction. Thus, Court held that it possesses territorial jurisdiction in the matter to entertain the dispute.
On the second issue of powers of writ court to pass directions after expiry of the cut-off date (which was 28-2-2022 in the present case), the Court held that the judgment of S. Krishna Sradha v. State of A.P.5 applied on all fours to the case at hand, however referring to para 13.2 of S. Krishna Sradha6, Court held that all the factors for passing of extraordinary directions must be existing and one factor shall not be the decisive for the court to grant any remedy. In the present case, the petitioner was seeking a mid-session admission on the ground that vacant seats were lying unfilled after the expiry of the cut-off date and that the seat cannot be left vacant. In such cases, the judgment of S. Krishna Sradha7 shall be applicable to decide against the petitioner.
On the issue of dereservation of the sponsored seat, Court held that sponsored candidates have to fulfil certain distinct eligibility criteria for being considered for admission against such seats and certain certificates are required to be issued by the competent authority. Therefore, in such circumstances when sponsored seats have been created for a particular purpose, especially for “in-service candidates”, then it cannot be held that they should be dereserved and allotted to general category candidates, when the said candidates are not at all eligible for the said seat. Thus, the judgment of Index Medical College, Hospital and Research Centre v. State of M.P.8 was distinguished. Held that sponsored candidates as a distinct class cannot be treated on par with general candidates was the observation of the High Court.
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(2) Chithra N. v. AIIMS9
(Delivered on July 12, 2022)
Coram: Single Judge Bench of HM Justice Sanjeev Narula
The petitioners who were in-service nursing officers were aggrieved by the condition imposed in the admission notice for MSc (nursing) course, through which they were made ineligible only on the ground that their qualifying degree of BSc/PBSc was acquired through distant learning mode, as opposed to regular mode; such a clause was violative of Article 14 of the Constitution of India. The petitioners completed PBBSc course/degree from Indira Gandhi National Open University (IGNOU) through distant learning mode. The petitioners contended that AIIMS cannot be permitted to configure criteria of their choice, whilst disqualifying candidates who may be otherwise eligible. IGNOU was argued to have been created under the provisions of UGC Act, which has granted equivalence and recognition to degrees conferred by IGNOU for which various orders and directives were also referred. The court was also confronted with the issue as to whether there is any rational basis for classification created amongst candidates merely on the basis of mode of learning, who are otherwise similarly placed and situated processing the requisite eligibility qualification for seeking admission to the course.
The Court held that AIIMS does not possess a power to discriminate or dislodge the uniformity in standards set by the Indian Nursing Council (INC) acting under a central legislation or nullifying recognition granted by IGNOU through distance learning mode. The qualifications of the petitioners are recognised by the INC, which have been dislodged only because of a higher eligibility introduced by AIIMS. The introduction of such a disqualification and ineligibility criteria was held to have been lacking any statutory provision and protection. AIIMS was thus held by the court to have unreasonably and arbitrarily excluded certain candidates only on the basis of mode of learning, with a lack of sufficient evidence to demonstrate that distance learning of such courses was of inferior grade or quality. It was not the case of AIIMS that degrees imparted by IGNOU and other colleges are of the same equivalence, or that the candidates procuring degrees are not competent or adept in handling patients at par with those procuring regular degrees. No material or study was furnished by AIIMS in this regard, that preceded introduction of such a disqualification. The deliberations of the Academic Committee were called for, which was also not found to be existing properly prior to introduction of the said disqualification. Accordingly, the condition imposed by AIIMS was held to be arbitrary, unreasonable and violative of Article 14 of the Constitution of India by the Court and quashed as unconstitutional.
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(3) Suhail Ahmad Wani v. Skims Medical College Hospital10
(Delivered on July 14, 2022)
Coram: Single Judge Bench of HM Justice Sanjeev Kumar
The question arose above the criterion to be adopted for breaking the tie in the selection and appointment process convened for the post of Jr. Stenographers pursuant to the advertisement issued by the medical college. The advertisement did not specify the criteria to be adopted in a case of tie, nor there were any statutory rules or executive instructions governing the said process or principle of breaking of tie. The court rejected the contention of the petitioner of adopting age as the criteria for breaking the tie and instead held that in the absence of any provision or stipulation in the advertisement or in the selection rules, and held that the Selection Committee is always competent to adopt any criteria, in consonance with Articles 14 and 15 of the Constitution of India. The court must look to fairness and rationality of the selection process and also the criteria that ought to be applied to break the tie. In such a situation reliance can be placed on the essential qualification by the court viz. graduation scores for the purposes of breaking the tie and the marks obtained thereto under graduation. Excellence in academics apart from proficiency in shorthand typing is of paramount importance for the purpose of selection to the post in question viz. junior stenographer. Thus a candidate possessing better merit in the academics to be preferred in the case of a tie over other one was so held by the court.
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(4) Satya Narayan Bhujabala v. Veer Surendra Sai Institute of Medical Science and Research11
(Delivered on August 2, 2022)
Coram: Single Judge Bench of HM Dr Justice S.K. Panigrahi
The challenge in the petition was denial of appointment of the petitioner on the post of Assistant Professor for failure to produce the “chance certificate” of MBBS/MD/MDS/DNB/MSc (Medical) examination. The petitioners applied against the advertisement, but however failed to produce the “chance certificate”, which indicates the number of attempts a person has made to clear the examination concerned. Challenging the rejection of their application for want of the said certificate, petitioners contended that since they had produced the passed certificate after completing and qualifying the MBBS, which thus impliedly mentioned the chance certificate, they could not be thrown out of the selection process.
Referring to the judgments of Karnataka State Seeds Development Corpn. Ltd. v. H.L. Kaveri12 and Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupeshkumar Sheth13 Court held that unless there is a clear violation of statutory provisions, the Regulations or the notifications issued the courts must keep their hands off from the selection process since as per the advertisement, the required certificate was not produced by the petitioners, therefore they cannot challenge the rejection of their applications. Petition was dismissed.
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(5) University of Kerala v. Merlin J.N.14
(Delivered on August 17, 2022)
Coram: 3-Judge Bench of HM Justices Uday U. Lalit, S. Ravindra Bhat and Sudhanshu Dhulia
Authored by: HM Justice S. Ravindra Bhat
The issue related to legality of appointment of SLP petitioner’s lecturer in the university. In light of the UGC (Minimum Qualifications for Appointment and Career Advancement of Teachers in Universities and Institutions Affiliated to it) Regulations, 2000 introduced in March 2000 (for short “UGC Regulations, 2000”), the petitioner had not passed the NET/State level eligibility test (SLET) examination, essential condition for appointment as lecturer. This requirement was done away with around 2000, but was revived in the year 2009. The appointment of the petitioner was challenged on the ground that he had not obtained his PhD as per UGC Regulations, 2009. The appointment of the petitioner was set aside by the Single Bench, which was affirmed by the Division Bench. Referring to the judgment of P. Suseela v. UGC15, the Court held that Central Government was the final authority under the UGC Act having a final say as to how the UGC Regulations were to operate and be implemented. The appellant was falling in a special category of PhD degree holders, who were prior to UGCR 2009/2010 who all were exempted from undertaking NET/SLET examination. The UGC recommended a one time exemption for category of PhD scholars like the SLP petitioner, which was disapproved by the Central Government. In view thereof, amendments to UGC Regulations were introduced in 2016, protecting the Pre-2009 PhD holders who were appointed in various universities and had taught for many years. Both pre-2009 and post-2009 were exempted from taking the NET/SLET examination. The amendments to UGCR of 2016 were not examined in P. Suseela16 or State of M.P. v. Manoj Sharma17 and since they were not so examined in both the judgments, they cannot be denied their full impact in a way that defeats their purpose of interpretation qua the petitioner. The Court held that amendments that are declaratory in nature i.e. intending to confer benefits retrospectively on certain subjects/persons leading to “retrospective restoration of rights earlier taken away”, will certainly affect pending proceedings. It is the duty of the courts whether trying original proceedings whilst hearing an appeal to take notice of such change in law affecting pending actions and to give effect to the same, especially when the amendment is declaratory, curative or clarificatory in nature meant to operate from an antecedent date or to cover antecedent events. Referring to the judgment of CIT v. Shelly Products18 and Zile Singh v. State of Haryana19, Court held that since the two UGCR amendments of 2016 restored the exemption of PhD degree holders prior to 2009, therefore they shall equally apply to the SLP petitioner and exempt him also from such mandatory requirements. Accordingly, the appeals were allowed and the judgments of the High Court were set aside.
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(6) Mehta Teaching Training College v. NCTE20
(Delivered on August 24, 2022)
Coram: Single Judge Bench of HM Justice Rekha Palli
Challenge was put to decision of National Council for Teacher Education (NCTE) refusing to open its online portal for submission of fresh applications or renewal of approval of existing fresh applications for opening of new institutions. Prayer was made seeking a direction to the NCTE for opening its portal, accepting and processing their application for the next academic session. For the last few years, the NCTE had not opened the portal for accepting any online applications. Whilst deciding upon the validity of the decision refusing to open the portal, the Court referred to statutory provisions of the NCTE Act, specifically Sections 3, 12, 14, 29, 32 along with Regulations framed thereunder.
Referring to the judgment of Division Bench of Madras High Court in Govt. of T.N. v. Emmanuel Teacher Training Institute,21 Court held that conjoint reading of Sections 14 and 15 of the NCTE Act suggest that every institution seeking recognition or permission for starting a new course or training has to pass the acid test “individually”, and there cannot be any generality regarding such matters. The regulations by their very nature are individualistic in nature having an individual oriented approach and do not confer any power or spell out the source for taking policy decisions.
Referring further to the judgment of Chandigarh Educational Society v. Bar Council of India22, it was held that a general ban on the pretext of compliance of Rules and Regulations framed under the parent Act cannot be imposed. The decision to suspend the opening of the portal for accepting any new applications can be taken only after amending the Act, which can happen only after being laid before the Parliament, and not otherwise. Accordingly, the decision of the NCTE of not opening the portal for accepting new applications of the various teacher training courses for the last very many years (6 years) was set aside by the court.
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(7) Malankara Syrian Catholic Colleges v. Reshmi P.R.23
(Delivered on August 25, 2022)
Coram: 2-Judge Bench of HM Justices P.B. Suresh Kumar and C.S. Sudha
Authored by: HM Justice C.S. Sudha
The challenge was put to the selection and appointment of respondents, to the post of Assistant Professor. The selection process was alleged to be vitiated by bias and favouritism as the selected respondent was close to one of the members of the Selection Committee relying on certain documents annexed with the writ petition including the Facebook posts and photos. The Court explained the concept of “personal bias”, referring to the treatise of Massey on Administrative Law; judgments of Govt. of T.N. v. Munuswamy Mudaliar24, International Airports Authority of India v. K.D. Bali25 and Madan Lal v. State of J&K.26 It was held that reasonable apprehension of pre-disposition of the members of the Selection Committee must be demonstrated based on cogent materials. The test for bias was stated to be whether a reasonably intelligent man, fully apprised of all the circumstances, would feel a serious apprehension of bias and that vague suspicions of whimsical/capricious and unreasonable people should not be made to regulate normal human conduct. Thus, merely on the basis of petitioners’ apprehension or suspicion that they were deliberately given less marks at the interview compared to the rival candidates, it could not be inferred readily that overall process of assessment was vitiated. Mere reference to some random photographs pulled out from Facebook cannot be taken as basis for concluding that the respondent was related to or interested with the member of the Selection Committee. The ordinances and statutes of the university especially Clause 4(2) was referred to and interpreted, using the words; “related to or interested” as meaning close relations showing perceivable interest between the selected candidate and the respondent must be shown. Referring to the judgment of Meeta Sahai v. State of Bihar27, Court held that merely by participating in the selection process, any candidate does not accept or waive each and every illegality committed in the selection process, but acquiesces only for the process/procedure for selection. The test to be applied is of an illegality that vitiates the selection process and the nearness of relation should be so great as to give rise to reasonable apprehension of bias in selection. Accordingly, the writ appeal was allowed setting aside the judgment of Single Bench, which had quashed and set aside the whole selection process.
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(8) Inner Vision Education and Charitable Trust v. Union of India28
(Delivered on September 9, 2022)
Coram: Single Judge Bench of HM Justice Aniruddha P. Mayee
Challenge was laid to the rejection of application for opening of new Ayurveda (BAMS Course) College by the petitioner institution for want of timely submission of NOC from the State Government and consent of affiliation from the University. By the time the petitioner received the consent of affiliation from the Gujarat Ayurved University, the deadline for submission of application for the BAMS course to the Central Government (AYUSH Ministry) had expired. In such circumstances, the application of the institution was rejected by the Central Government. The date of submission of consent of affiliation was subsequent to the deadline/last date of filing of application with the AYUSH and since the application was incomplete at the time of submission of the application for new Ayurveda college, therefore the said application was rejected. It was argued on behalf of the petitioner institution that Section 29 permits a window of three months to rectify the deficiency, if any in the application which window of three months was not provided in their case. The High Court after referring to Regulation 7 of the Establishment of New Medical College, Opening of New and Higher Course of Study or Training and Increase of Admission Capacity by a Medical College Regulations, 2019 held that Regulation 7 applies at the threshold, at the time of filing of the application itself. Interpreting the word “scheme” occurring under Section 29, Court held that it refers to the scheme which is forwarded after scrutiny under Regulation 7 to the Central Council, complete in all respects with all the documents as required under Regulation 7. Thus, the proviso to Section 29(3) giving a window of three months for rectification of any deficiencies shall not be available in the case at hand as the scheme itself is not complete being not accompanied by all the papers mentioned under Regulation 7. It was further held that the judgment of Royal Medical Trust v. Union of India29 shall not apply, since the application of the petitioner for grant of consent of affiliation was not at all pending before the affiliating university on the date of submission of application for the permission to open the new college. The fresh application for grant of consent of affiliation was made only after the last date of submission of the application for permission to open the college, which thus distinguishes the facts of the matter completely. Accordingly, the writ petition was dismissed.
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(9) Pharmacy Council of India v. Rajeev College of Pharmacy30
(Delivered on September 15, 2022)
Coram: 2-Judge Bench of HM Justices B.R. Gavai and P.S. Narasimha
Authored by: HM Justice B.R. Gavai
The petitioners laid a challenge to the validity of Executive Departmental Resolutions passed by the Pharmacy Council of India (hereinafter “PCI”), through which a five-year moratorium (ban) was imposed on opening up of new colleges in the country. The special leave petitions were preferred by the PCI before the Supreme Court against the judgments passed by various High Courts such as Delhi, Chhattisgarh and Karnataka High Court, which had all quashed PCI Regulations, holding the same to be beyond jurisdiction and ultra vires the PCI Act. The broad issues and arguments before the court revolved around the following contentions:
(a) Right to open, operate and run educational institutions being a fundamental right guaranteed under Article 19(1)(g) of the Constitution of India, the same could have never been taken away through executive instructions passed by way of resolution/departmental orders by the PCI.
(b) The PCI could have introduced any such moratorium or ban only by way of a regulation notified in the Official Gazette and not otherwise. For want of proper notification, therefore the GRs imposing ban by the PCI were unconstitutional.
(c) The GRs imposing ban were discriminatory and violative of Article 14 on the ground that they exempted identically situated colleges/societies running existing colleges from opening a new institution, when societies who were opening maiden institutions were debarred from doing so.
(d) The PCI could not have abdicated its statutory powers and duties of examining and scrutinising each and every application vested in it by virtue of Sections 12, 13 and 15 of the PCI Act, 1948.
(e) The ban imposed by the PCI was creating a monopoly and anti-competitive environment, favouring the existing colleges and players in the field of pharmacy education, whilst restraining the new players from entering the field and proving their competence and capabilities.
The Supreme Court examined the essential contentions of the petitioner about infringement and impairment of fundamental rights through executive instructions. Relying on the longline of judgments from T.M.A. Pai Foundation v. State of Karnataka31, and Islamic Academy of Education v. State of Karnataka32, and P.A. Inamdar v. State of Maharashtra33 (all Constitution Bench judgments) Court held that running, setting up and operation of educational institutions can safely be inferred and labelled as fundamental rights under Article 19(1)(g) of the Constitution of India and a citizen cannot be deprived of the said right except in accordance with law. Referring to the judgment of State of Bihar v. Project Uchcha Vidya Sikshak Sangh,34 the Court further held that the requirement of law for putting restrictions under Article 19(6) of the Constitution can by no stretch of imagination be achieved by issuing a circular or a policy decision in terms of Article 162 of the Constitution otherwise, but such law must be duly enacted by the legislation. Accordingly, on the second issue of authorisation and delegation by the PCI Act to impose a moratorium-cum-ban on opening of new institutions, the Court referred to a host of judgments viz. Hira Devi v. Distt. Board35, V.T. Khanzode v. RBI36, to hold that statutory corporations can do only such acts and take decisions as authorised by the statute creating it and the powers of such corporations cannot extend beyond what statutes provide expressly or by necessary implications. If an act is neither expressly or impliedly authorised by the statute which creates the corporation, it must be taken and presumed to be prohibited. Accordingly, referring also to the Halsbury Law of England, 4th Edn., the Court held that such a power of imposing a ban cannot be read into PCI Act, moreso being issued through an office memorandum in the form of executive instructions. Accordingly, the Supreme Court affirmed the views taken by the Karnataka, Delhi and Chhattisgarh High Courts as a correct position of law setting aside the ban.
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(10) New Millennium Education Society v. Guru Gobind Singh Indraprastha University37
(Delivered on September 16, 2022)
Coram: Single Judge Bench of HM Justice Chandra Dhari Singh
Challenge was laid to the decision of Guru Govind Singh Indraprastha University (for short “GGSIPU”) of not accepting the applied intake of seats of the BA LLB five-year course for various academic sessions. The denial was essentially premised upon the non-calculation of basement area (cellar room) for computing the total build up area of the college building of the petitioner’s institution, owing to which the intake was reduced. The broad issue before the Court was “whether the area of basement can be used for educational purposes” and hence, be included in the total floor area ratio (for short “FAR”). Referring to the provisions of Master Plan of Delhi (for short “MPD”) framed by the Delhi Development Authority, Court held that the use of the basement must be in conformity with the overall use of the premises, only when the same can be counted in the overall FAR. The extant and purpose of permissible use of basement shall be determined on the basis of sanctioned building plan of the institute concerned by the competent local body for the true purposes, the usage allowed under MPD 2021. In the present case the institute failed to show that it was permitted to use the basement for educational activities which otherwise was reserved for “car parking” under the applicable MPD 2021. Thus, it could not have been utilised for any other purpose, other than for which it was permitted for. Accordingly, the decision of the GGSIPU was affirmed and set aside.
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(11) Ruxmaniben Deepchand Gardi Medical College v. Medical Education Mantralaya38
(Delivered on September 20, 2022)
Coram: 2-Judge Bench of HM Justices Vivek Rusia and Amar Nath (Kesharwani)
Authored by: HM Justice Vivek Rusia
The question arose about returning of original documents and papers and withholding of deposit of Rs 5 lakhs on the ground of non-serving as Senior Resident Demonstrator as per the bond executed with the medical college concerned. The Court held that conditions that apply to government in-service category candidates and government medical colleges shall not apply to private institutions. Interpreting Clause 11 of Madhya Pradesh Medical and Dental Post Graduate Course Admission Rules (Degree/ Diploma), 2014, Court held that there is no provision anywhere of permitting private medical colleges to take a bond from if students were completing and pursuing their PG course. Accordingly the demand of the PMCs for a medical bond or insisting on the compliance of medical bond before returning their original papers was set aside and the colleges were directed to return the original papers of the petitioner students who had completed their PG medical courses from the colleges of the residents.
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(12) Saumil Hetalkumar Shah v. State of Gujarat39
(Delivered on October 4, 2022)
Coram: 2-Judge Bench of HM Justices Justice Aravind Kumar and Ashutosh J. Shashtri
Authored by: HM Justice Aravind Kumar
Challenge was laid to the validity of eligibility criteria prescribed for admission to PG medical and dental courses as changed immediately prior to counselling for the Academic Session (2022-2023) by the State of Gujarat, but subsequent to the conclusion of the NEET entrance examination. The State of Gujarat had altered the eligibility condition for benefit of domicile reservation to various candidates appearing in the PG admission and counselling process, permitting all those candidates who were either born or completed the senior secondary education schooling from the State of Gujarat. Previously only those candidates were eligible for the benefit of domicile reservation who had completed MBBS or BDS course from the University of Gujarat, but through the revised eligibility criteria, more candidates were brought under the net by being extended the said benefit. The primary contention of the petitioner was that after the game had begun, in the midst of the admission process existing eligibility criteria could not have been altered to the detriment of number of candidates and students who had already planned their studies and prospects of admission. The amended rule would frustrate and widen the net so much that the petitioners would be denied admissions to. The court thus examined the validity of change of eligibility criteria once the admission process has begun, especially in the PG medical courses. Held that no student has a vested right to have a particular eligibility criteria continuing throughout the admission process, if his participation or eligibility to participate in the counselling or his entitlement for any benefit under the counselling is not adversely affected. The Court held that a public notice had already been published beforehand mentioning in advance about the possibility of change of the eligibility criteria. Thus by making additional category of students eligible, the vested rights of eligible candidates have not been affected at all. If the right of a candidate had not been taken away and such candidate continues to be eligible, being otherwise qualified in terms of the amended rule, then no prejudice can be said to have been caused due to alteration of the admission rule by bringing additional category/classes of students eligible for the said benefit. Referring to the judgment of Sonia v. Oriental Insurance Co. Ltd,40 Court held that if the executive order is merely clarificatory in nature, then it can be given a retrospective effect and thus no wrong had been committed by the State of Gujarat in making more categories/class of candidates eligible. The amendment through which the additional eligibility criteria has been introduced is towards the larger purpose and objective of giving more and more representation to students of Gujarat who have done/completed their school education in the State or who were born in the State. The petitioners were held to be aware from the beginning about the possibility of change of eligibility criteria prior to the counselling process and thus cannot be claimed to be stating about denial of information. Relying on the judgment of Jan Mohammad Noor Mohammad Bagban v. State of Gujarat41, the Court repelled the contention that Rules have not been placed before the appropriate legislature for ratification. Accordingly, the writ petition was dismissed.
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(13) S. Tamilselvi v. State42
(Delivered on October 11, 2022)
Coram: Single Judge Bench of HM Justice R. Suresh Kumar
The petitioner had prayed for categorising transgenders under special category and giving admission to the petitioner in post basic BSc (Nursing) Course 2022 under special category as transgender. The petitioner had undergone a “sexual reassignment surgery” and started living as a female after changing her sex from male to female. She had also changed her erstwhile birth name from S. Santosh Kumar to female name S. Tamilselvi as per the prescribed procedure. There was no separate reservation provided horizontally for transgenders in the admission process. Referring to the judgment of National Legal Services Authority v. Union of India43 (hereinafter referred as “NALSA” judgment), Court held that the mandate to provide reservation and concessions to transgenders as a special class/category had already been mentioned and provided in the NALSA judgment. The Centre and State Governments were directed to treat transgenders as socially and educationally backward classes of citizens, extending all kinds of reservation in cases of admissions in educational institutions and for public appointments. In pursuance thereof the Transgender Persons (Protection of Rights) Act, 2019 ( for short “Act of 2019”) has also been enacted. Accordingly on the basis of the directions of the Supreme Court in NALSA44, Court held that even though the representation of transgenders is minimal in the State, the same cannot be a ground for denial of reservation to them and albeit for a smaller class a sort of reservation-cum-preference could have been provided. Accordingly, the direction was issued to the respondent to treat the petitioner as a third gender/transgender to be placed in a special category for the purposes of her admission to the special seats. The writ petition was disposed of accordingly.
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(14) Board of Governors v. Priyambada Sharma45
(Delivered on October 17, 2022)
Coram: 2-Judge Bench of HM Justices Ajay Rastogi and C.T. Ravikumar
Authored by: HM Justice Ajay Rastogi
The issue was regarding legality of admission effected after the cut-off date of admission fixed for PG medical courses at the college level by the private and aided medical colleges. The last date for PG admissions was 31-5-2019. The admissions were cancelled by the State and the MCI, against which interim orders staying the cancellation orders were passed by Single Judges/Benches of the High Court. Eventually, the interim orders were made absolute as final orders on the ground that the students had undergone education and study for more than 6 months and admissions were directed to be regularised. Against these final orders of regularisation of admissions, SLP was preferred before the Supreme Court. The Court referring to the longline of judgments of Priya Gupta v. State of Chhattisgarh46 and Ashish Ranjan v. Union of India47, as also the judgment in Education Promotion Society for India v. Union of India48 held that the schedule for admission must be followed strictly and there should not be any relaxations on a routine basis to the same. The Court further held that sympathetic view should not be taken in such cases, where admissions are carried out illegally, contrary to the applicable regulations or beyond the cut-off date. The judgment of the High Court was accordingly set aside.
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(15) Dental Council of India v. Sailendra Sharma49
(Delivered on October 21, 2022)
Coram: 2-Judge Bench of HM Justices M.R. Shah and M.M. Sundresh
Authored by: HM Justice M.R. Shah
The challenge was to the judgment of Chhattisgarh High Court, which had quashed and set aside the communication of State of Chhattisgarh annulling/cancelling the admissions of student candidates who had taken admission in various PG dental courses in private dental colleges of the State of Chhattisgarh. The admissions were given after the cut-off date against the vacant seats at the college level counselling by the private colleges with due intimation to the Directorate of Medical Education (for short “DME”), State of Chhattisgarh. The list of candidates given admission to various private dental colleges as sent to the State Government at the end of counselling did not possess the name of the petitioners before the High Court, owing to which the admissions of the petitioner students were cancelled.
The Court referring to the judgments of Abdul Ahad v. Union of India50 and Board of Governors v. Priyambada Sharma51, held that such students do not deserve any sympathy, who are admitted outside the counselling process. No admission could have been given after 4.30 p.m. of 31-5-2018 by the private dental colleges even though the seats were going vacant and were at the verge of being wasted. Referring to the judgments of Astha Goel v. Medical Counselling Committee,52 Supreet Batra v. Union of India53 and Education Promotion Society for India v. Union of India54, Court held that even if the seats are going vacant, the same cannot be a consideration for extending the cut-off date or the deadline for admissions. The court also deprecated the practice of High Court passing interim orders in favour of the students allowing them to continue their studies, holding such interim orders to be not sustainable. Accordingly, the judgment of the High Court was set aside.
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(16) Sreejith P.S. v. Rajasree M.S.55
(Delivered on October 21, 2022)
Coram: 2-Judge Bench of HM Justices M.R. Shah and C.T. Ravikumar
Authored by: HM Justice M.R. Shah
Challenge was laid to the appointment of the respondent as Vice Chancellor of the APJ Abdul Kalam Technological University, Thiruvananthapuram. The Single and Division Bench of Kerala High Court had dismissed the writ petition declining to issue the writ of quo warranto, holding that unless the UGC Regulations are specifically adopted by the State Government, the State legislation shall prevail on the eligibility, method and mode of appointment of Vice Chancellor. The short issue that arose for consideration was whether the Search Committee constituted for recommending the name of R1 to be appointed as Vice Chancellor of University can be said to be a duly constituted committee in terms of the applicable UGC Regulations. In the process of reasoning, the Court referred to the judgment of Gambhirdan K. Gadhvi v. State of Gujarat56 and State of W.B. v. Anindya Sundar Das57, holding that wherever State legislation is in conflict with the Central legislation, including subordinate legislation made by Central legislation, the Central legislation shall be operative and take precedence over the State one. Thus, the Search Committee that was constituted contrary to the provisions of UGC Regulations was void ab initio. The UGC Regulations were specifically adopted by the State Government on 10-12-2010 by the State of Kerala and thus a plea cannot be taken that the same do not hold binding value in the State. The Selection Committee ought to have recommended a panel of 3-5 names of candidates worthy of being appointed as Vice Chancellor, which process was not done and admittedly only one name of Respondent 1 was recommended to the Chancellor for being so appointed. Thus, there was no choice or option available to the Chancellor for considering other candidates, in view of which, therefore, the whole process was contrary to UGC Regulations. Thus, the selection of the respondents as Vice Chancellor of the University was quashed and set aside by being issued a writ of quo warranto.
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(17) Chandana B. v. Rajiv Gandhi University of Health Sciences58
(Delivered on October 28, 2022)
Coram: Single Judge Bench of HM Justice E.S. Indiresh
The relief sought was for revaluation of answer scripts of different disciplines of PG and UG medical courses, and evaluation of answer scripts by a third evaluator. The question for revaluation arose because there was a difference of total marks evaluated by two evaluators in each paper of 15% and thus in view of the difference of both the evaluators, the question arose about the scope of evaluation by a third evaluator. Further questions that arose were about the inconsistency of evaluation with the key answers provided for objective type questions and absence of any key answers for subjective/descriptive type questions. The petitioners referring to judgments of Sanjay Singh v. U.P. Public Service Commission59 and High Court of Tripura v. Tirtha Sarathi Mukherjee60 argued that even in the absence of any specific provisions/regulations by the university, Court under Article 226 of the Constitution of India can interfere with erratic evaluations and pass appropriate orders. Interpreting Clause 2 of the Ordinance dated 15-6-2012, the Court held that the total marks awarded by both the examiners would be the criteria to decide whether any answer script requires to be revaluated by a third examiner or the fifth examiner and not the usual marks assigned by examiner for every respective question. Referring to the judgment of Vikesh Kumar Gupta v. State of Rajasthan61, Court held that judicial review in cases of revaluation is extremely limited, more so when it involves correctness of questions and answers by Court itself, the caution or the scope of interference is further delimited in the absence of any substantive provision for revaluation of answer sheets, and judicial review should rarely be exercised for revaluation of answer sheets. The exception to court’s interference or court directing revaluation or scrutiny being an existence of a material error without any inferential process of reasoning or by any process of rationalisation. Accordingly, the writ petitions were dismissed declining any interference or indulgence with the awarding of marks, evaluation of answer sheets.
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(18) State of Uttarakhand v. Nalanda College of Education62
(Delivered on November 10, 2022)
Coram: 2-Judge Bench of HM Justices M.R. Shah and M.M. Sundresh
Authored by: HM Justice M.R. Shah
Challenge was made to the judgment of High Court of Uttarakhand through which the ban imposed by the State of Uttarakhand on opening of new BEd Colleges was set aside/quashed. Referring to the judgment of the Bombay High Court in Vidharbha Sikshan Vyawasthapak Mahasangh v. State of Maharashtra63, Court held that Government always has a prerogative of taking policy decisions of not permitting of opening of any new colleges. In case, opening of excessive number of colleges results in unemployment or the youth being exploited, then the said policy decision supported by detailed reasons and grounds with necessary statistics must not be interfered with. The State Government is well within its right to recommend in favour of not granting any further recognitions to new BEd colleges. Accordingly, the judgment of the Uttarakhand High Court was set aside and the ban was restored.
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(19) Dhanalakshmi Srinivasan Medical College and
Hospital v. Union of India64
(Delivered on November 11, 2022)
Coram: Single Judge Bench of HM Justice Sanjeev Narula
The petitioner medical college had approached the High Court of denial of additional intake of their seats in the MBBS course (50 seats). After availing all the appellate remedies, the college approached the High Court, which initially granted interim order of inclusion of seats in the counselling process. The petitioner college was found compliant with all the existing norms in various aspects except for minor deficiencies in teaching staff. The inspection report pointed out no default in the institution after physical visit of the institution. The question arose about denial of additional intake from 200 to 250 seats of the MBBS course, so applied by the institution. The minor deficiency was below the permissible ceiling of 5% laid down by the NMC. NMC’s primary objection to the writ petition was that once the petitioner had accepted part approval of the seats (50 seats), they could not contest for the remaining 50 as both cannot be staggered/separated from each other. The Court noted that the petitioner institution had applied for 250 seats and that the inspection was also undertaken for 250 seats. The court scrutinised the tenability of the deficiencies in faculty and residence so highlighted by the NMC and found that various departments were having the requisite faculty members after deducting the relaxed 5% deficiency in their institution. The faculty of departments of microbiology, physiology, general surgery, etc. were analysed and it was found that no deficiency was existing. In this regard, the Court referred to the presence of various faculty members during the inspection process, the attendance sheets verified by the inspecting team and such other details. It was found that the clinical and non-clinical facilities were also adequate and up to the mark. Thus, NMC was not correct in denying the approval for the additional intake applied of 100 MBBS course seats, whenever material was existing. A writ of mandamus was accordingly issued for issuing the necessary approval by the NMC to the petitioner institution for the applied additional intake. The court also passed strictures against NMC for adopting such a hypertechnical and misrepresentative attitude before the Court about the existence of faculty, teaching and non-teaching staff in the petitioner’s institution. The Chairman, NMC was directed to inquire into the circumstances, which led to filing of additional affidavit with inaccurate facts and to take appropriate action in the matter. The Court held that deserving colleges entitled for approval should never be unfairly treated.
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(20) College of Applied Education and Health Sciences v. NCTE65
(Delivered on November 15, 2022)
Coram: Single Judge Bench of HM Justice Sanjeev Narula
The challenge in the batch of petitions was laid to declaration of Academic Year 2022-23 as a “zero academic year”, restricting fresh intake of students as a punitive measure consequent to non-submission of performance appraisal report (for short “PAR”). The challenge to the said decision was laid on multiple grounds viz. limited scope of Section 17; NCTE not being vested with any statutory authority to take any adverse action against recognised teacher-education institutes (for short “TEIs”); penalties cannot be imposed in the absence of any express stipulation in the absence of a parent statute without any legislative sanction or authority of law and other such contentions. The Court framed the following issues in the matter:
(a) Does the impugned action of NCTE fall within the ambit of Section 17 of the Act?
(b) Is there any other provision in the Act which vests with NCTE the authority to impose penalty under the impugned decision?
(c) Whether NCTE has any inherent power, akin to powers of a court of law, to take the impugned decision?
(d) Whether impugned action is permissible under the doctrine of necessary implication and proportionality?
(e) Whether the impugned action is violative of fundamental rights of TEIs under Article 19(1)(g) of the Constitution of India?
(f) Whether the impugned action is violative of principles of natural justice?
Scanning the various provisions of the NCTE Act as also the Regulations framed thereunder, Court held that the Act of 1993 clearly envisages the consequences for violation of provisions of the Act to be implemented by the Regional Committee and not the NCTE. It was held that only the Regional Committee alone can initiate adverse penal action under Section 17 of the Act on the basis of report provided by the NCTE, which is the original authority and not the appellate authority. Referring to the judgments of the Supreme Court in Manohar Lal v. Ugrasen66 and Rakesh Ranjan Verma v. State of Bihar67, Court held that appellate/higher authority in the hierarchy of quasi-judicial powers cannot assume specific statutory powers and functions of subordinate authorities, specifically of regulatory nature conferred to be exercised by the original authority. Further, in the absence of any express penal provision in the NCTE Act, the penalty of “zero academic year” could not have been imposed at all, a concept completely alien to the scheme of the Act. Court further held that statutory authorities functioning under a statute cannot invoke or justify imposition of any penalty treating themselves as being in possession of inherent powers and power to impose/levy penalty essential legislative function, to be exercised within the four corners of the parent statute.
The Court further held that the decision to impose a penalty of zero academic year was on the face of it though a mild decision, but was a severe one imposed without complying with the principles of natural justice as it prohibited recognised TEIs from admitting students against the sanctioned strength in the academic session concerned. Denying them the right and the authority to admit students is firstly not appealable and was passed without hearing the institutions concerned. The decision of the NCTE was thus quashed and set aside by the Single Bench.
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(21) Sachin v. Union of India68
(Delivered on November 17, 2022)
Coram: 2-Judge Bench of HM Justices S.C. Sharma and Subramonium Prasad
Authored by: HM Justice Subramonium Prasad
Challenge was laid to Regulation 7.7 of the Graduate Medical Education (Amendment), 2019 Regulations dated 4-11-2019 (for short “GME Regulations”) as violative of Articles 14, 19(1)(g) and 21 of the Constitution of India. The Regulations restricted the number of attempts for clearing the first year/first professional of their MBBS course to four and the total period to be not exceeding 4 years for being cleared by the candidate. The primary contention of the candidates was that the Regulations should not be applied or implemented retrospectively to their prejudice and that they must be given another opportunity to appear for their first year examination in their respective medical colleges, since they were already studying in the first year when the said regulation was introduced. Court held that medicine is a noble profession and that since the doctors serve the general public at large, the Government must have Rules and Regulations that ensure only individuals with the inclination coupled with requisite calibre are made medical professionals. Candidate by no stretch of imagination can be held to be possessing a right to take an examination for any number of attempts or to take any number of years to clear his first year or first professional. There is always a presumption of constitutionality existing in favour of Regulations aimed at improving the field of medical education. Referring to the recent judgment of Rachna v. Union of India69, Court held that all candidates appearing for any examination are to be treated equally and falling in the same class. If even a single chance is accorded to the petitioner, then all candidates who stand in the same situation and difficulty will plead the same equity and indulgence from the court. No authority can be directed to convene or conduct examinations contrary to its statutory policy, nor can the courts direct any authority to hold examinations dehors the express statutory provisions. Explaining the concept of “vested right”, court referring to the judgments of Supreme Court in Manish Kumar v. Union of India70, Memon Abdul Karim Haji Tayab v. Custodian General71, held that “vested right” is a one which is already accrued and thus cannot be interfered or taken away by the legislature unless expressly so stated. The petitioners never had any right to have infinite number of opportunities to qualify in the medical examination, for which reason therefore, they cannot be held to have suffered the loss of their vested right. Accordingly, the petitions were dismissed.
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(22) Milindkumar v. State of Maharashtra72
(Delivered on November 17, 2022)
Coram: 2-Judges Bench of HM Justices Rohit B. Deo and Anil L. Pansare
Authored by: HM Justice Anil L. Pansare
The petitioners were working as Assistant Professors/lecturers in the private and aided technical college in State of Maharashtra. Their primary grievance was payment of areas of difference of salary as per recommendations of VI Central Pay Commission (for short “CPC”) with effect from 1-1-2006 till 31-12-2015, and VII CPC from 1-1-2016 along with consequential rate of interest. The Court held that the teachers (Assistant Professors and Lecturers) were appointed by the college management in accordance with the Rules and Regulations of the States, affiliating university and the All India Council for Technical Education (AICTE) and the teachers as defined under the Maharashtra Public Universities Act, 2016 (hereinafter “Act of 2016”) implied the teachers as approved by the competent authority under the University Act. The teachers were appointed and their services were regularised in accordance with law and thus, only those teachers were covered by the benefit of VI and VII CPC recommendations. Referring to the provisions of AICTE Act, 1993 and the subordinate legislation framed thereunder, Court held that the provisions relating to VI and VII CPC, UGC Regulations, 2018 stand adopted in the State of Maharashtra. Thus, scheme of revision of pay scales is applicable to teachers of all the private and aided colleges in the State of Maharashtra and it was the obligation of the State as well as the AICTE to have ensured its implementation. Referring to the judgment of Mahatma Gandhi Mission v. Bhartiya Kamgar Sena,73 the Court finally held that uniform service conditions for teachers working in technical institutions, both government and private is the principal obligation of the State and no classification has been permitted by the UGC Regulations qua teachers of unaided colleges. Petitions were accordingly allowed and payment of arrears and salaries was directed to be paid.
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(23) Tista Das v. State of W.B.74
(Delivered on December 5, 2022)
Coram: Single Judge Bench of HM Justice Aniruddha Roy
The petitioner had approached the High Court for revising the seat matrix for admissions to MBBS courses by implementing the 10% EWS reservation as incorporated and effected vide Constitution (One Hundred and Third Amendment) Act, 2019 as Article 15(6) of the Constitution of India. The State of West Bengal did not implement the 10% EWS reservation, owing to which the admission prospects of candidates belonging to the EWS category to secure their admission in the UG medical entrance examination were disturbed. The additional seats were being approved for implementation of EWS quota in various private medical colleges and that there was an additional intake of 10% of the total existing approved seats to be approved over and above the existing intake to accommodate the EWS reservation. The seats were to be enhanced periodically subject to approval by the MCI, in respect of which the State authorities are helpless. Court referring to the judgment of Janhit Abhiyan v. Union of India75, held that constitutionality of 10% EWS reservation has been upheld and affirmed in the aforesaid judgment and State is under an obligation to immediately effect and implement the said reservation incorporated vide amended Article 15(6) of the Constitution of India. Accordingly the seat matrix prepared and published by the State of West Bengal (UG Medical and Dental Counselling Board) was set aside and quashed with a direction to be revised implementing suitably the 10% EWS constitutional quota.
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(24) Cochin College of Engineering and Technology v. Pharmacy Council of India76
(Decide on December 8, 2022)
Coram: Single Judge Bench of HM Justice Devan Ramachandran
Issue that arose before the Court was the requirement of “consent of affiliation” from the examining/affiliating university. The applications were refused to be considered by the PCI for want of certificate of “consent of affiliation”. Referring to the judgment of DM Wims College of Pharmacy v. Pharmacy Council of India77, Court held that the requirement of the university for the verification of faculty and infrastructure will come into existence only when the students are about to take the examination or prior to examination. The same cannot arise prior to grant of approval by the PCI, which has to decide about the factum of approval on its own merits without being influenced by any requirement of consent of affiliation. As such the Regulations have to be interpreted in a manner as not to frustrate or make the role of PCI subservient to that of the university. Thus, the requirement is directory/desirable, rather than being mandatory as to lead to the rejection of their applications in its absence. It is laid down “ex abundanti cautela” (out of an abundance of caution) and have to be interpreted in the same way. Accordingly, the PCI was directed to process the application for grant of approval without insisting upon the requirement of “consent for affiliation” from the university.
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(25) Anjali College of Pharmacy and Science v. Pharmacy Council of India78
(Delivered on December 13, 2022)
Coram: Single Judge Bench of HM Justice Vikas Mahajan
The petitioner assailed the order of Pharmacy Council of India (for short “PCI”) wherein the latter debarred the petitioner from making admissions of the session 2022-2023. The said decision was laid to challenge all the UG, PG and diploma courses. The Court held that merely because originals of certain documents were not produced before the Hearing Committee, cannot be a ground for rejection of the application till apparent prejudice is shown to have happened. If the documents have been duly verified by the members of the inspecting team, which formed an institution to be completely in order without any deficiency, divergence from the report without valid grounds is unjust. Original documents should not be insisted upon ordinarily if the inspection report has found the faculty members duly employed and working in order. The Court noted that inspection report did not point out any discrepancy with regard to faculty on infrastructure except regarding the principal employed for the B Pharma course. However, with respect to D Pharma course, since there was no deficiency, therefore a direction was issued to the PCI to issue the approval letter, with the consequential direction for the seats being included in the counselling process. Referring to the judgment of Maharshi Dayanand University v. Surjeet Kaur79, Court held that the High Court exercising powers under Article 226 of the Constitution of India should not pass any order or directions contrary to what has been injuncted by law.
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(26) Anjali Sonkar v. State of Chhattisgarh80
(Delivered on December 19, 2022)
Coram: 2-Judge Bench of HM Justices Goutam Bhaduri and N.K. Chandravanshi
Authored by: HM Justice Goutam Bhaduri
The petition was instituted at the instance of a student who appeared in NEET 2022 and sought admission under the persons with disability quota (for short “PwD” quota), which was disallowed by the State on very many technical grounds. Challenge was laid to the constitutionality of Rule 5(2)(b) of the Chhattisgarh Chikitsa, Dant Chikitsa Evam Bhowtik Chikitsa (Physiotherapy) Snatak Pravesh Niyam, 2018 (for short “Rules, 2018”), notified by the State Government as ultra vires the provisions of Rights of Persons with Disabilities Act, 2016. It was prayed that the certificate of disability issued by the District Medical Board, Rajnandgaon under the Central Rules enacted under the PwD Act be declared as valid and legal. The petitioner was possessing the disability of 40% damage to her middle finger owing to an electrocution accident in her child life. The certificate to the said effect was issued by the District Medical Board, but not by the State Medical Board, which was issued in view of the applicable Central Rules under PwD Act. The SMB denied issuing the disability certificate on the ground that as per the State Rules, 2018 she was disqualified from undertaking the medical course. Thus, she was not found to be duly qualified. The Court referred and elaborated upon the objectives of the PwD Act, 2016 and the special role of States/local authorities, educational institutions, in fruitfully and purposefully implementing the object of the same. Referring to the judgment of Sunanda Bhandare Foundation v. Union of India81, Court held that a lenient and sympathetic view of disabilities suffered by the candidate concerned must be seen. Referring to the judgment of Dolly Chhanda v. Chairman, JEE82, Court held that if the candidate is possessing the disability, but not able to produce the certificate at the time of admission, then the same must be treated as a curable defect in the application and she be allowed to produce the same later. The certificate of SMB was completely silent about the actual disability of the petitioner, and Rule 5(2)(b) is ultra vires the provisions of PwD Act, since it discredited and disallowed the benefits of disability arising from the one possessed by the petitioner. Petitioner was a disabled candidate as per the Central Rules, but was denied the benefit in view of Rule 5(2)(b) of the State Rules. Referring to the recent judgment of Vikash Kumar v. UPSC83, the court reiterated the avowed objective of PwD Act, 2016 and the objective behind reservations and affirmative provisions for promotions of such disabled persons. The principle of “reasonable accommodation” is required to be applied for facilitating the development of the disabled. Accordingly, the petition was allowed and it was held that the petitioner was entitled for advantage of 40% disability and resultantly reservation against the said handicapped quota. The writ petition was allowed and the rule declared as ultra vires was resultantly struck down.
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† Partner at SVS Attorneys, expert in constitutional, civil and financial laws, practising Advocate at the Supreme Court of India.
†† 3rd year Student at National University of Study and Research in Law, Ranchi.
10. WP(C) No. 2567 of 2021, decided on 14-7-2022 (J&K HC)(Srinagar Wing).
11. WP(C) Nos. 16290, 16215, 16308 and 16876 of 2022, decided on 2-8-2022 (Ori HC).
22. PLR (2021) 202 P&H 73.
28. Special Civil Application No. 13473 of 2022, decided on 9-9-2022 (Guj HC).
38. Writ Appeal No. 757 of 2020, order dated 20-9-2022 (MP HC at Indore).
39. R/Special Civil Application No. 19057 of 2022, order dated 4-10-2022 (Guj HC at Ahmedabad)..
58. Writ Petition No. 12989 of 2022, order dated 28-10-2022 (Kar HC).
68. MANU/DE/5462/2022 (Del)
