PETITIONER: STATE OF GUJRAT Vs. RESPONDENT: M.P. SHAH CHARITABLE TRUST DATE OF JUDGMENT29/03/1994 BENCH: JEEVAN REDDY, B.P. (J) BENCH: JEEVAN REDDY, B.P. (J) SAHAI, R.M. (J) CITATION: 1994 SCC (3) 552 JT 1994 (3) 96 1994 SCALE (2)374 ACT: HEADNOTE: JUDGMENT:
The Judgment of the Court was delivered by
B.P. JEEVAN REDDY, J.- Leave granted.
2.Meghji Pethraj Shah Medical College was established by
the then Government of Saurashtra at Jamnagar in the year
1955. For establishing the college, Shri M.P. Shah
“donated” a sum of Rupees fifteen lakhs subject to certain
conditions. The government hospital then known as Irwin
Hospital was attached to the said college to meet the
requirement of a hospital with necessary bed-strength. In
the year 1993, the Government of Gujarat repudiated one of
the conditions attached to the donation, which led the M.P.
Shah Charitable Trust to approach the Gujarat High Court for
issuance of a writ commanding the State of Gujarat to
continue to abide by the said condition. The writ petition
was allowed by a learned Single Judge and a Letters Patent
Appeal preferred by the State of Gujarat has been dismissed
by a Division Bench the correctness whereof is under
challenge herein.
3.Having regard to the questions arising herein, it is
necessary to notice the facts concerning the establishment
of the college. On October 8, 1954, Shri M.P. Shah wrote a
letter to the then Chief Minister of Saurashtra confirming
the arrangement arrived at by him with Shri Manubhai Shah,
who was evidently acting on behalf of the Chief Minister.
It is necessary to quote the letter in full :
“Respected Shri Dhebarbhai,
Today morning, I returned from Jamnagar and in
good health. Hope, you will also be enjoying
good health. On Monday the 4th October, I had
satisfactory discussions with Shri Manubhai
Shah at the residence of Shri Premchandbhai in
Jamnagar for Medical College and hospital. He
has shown good interest in the matter and let
us pray that, by the grace of God this mission
may be successful.
Following decisions have been taken in the
discussion with him.
(1) Existing Irwin Hospital will be properly
extended and the number of beds and other
amenities will be provided as per the
requirement of the medical college. Hospital
shall be named after Mahatma Gandhi or any
other great Indian leader instead of present
name.
(2)The medical college attached with this
hospital shall be known as Shri Meghji Pethraj
Shah Medical College. The building for the
hostel for the students of this college also
shall be constructed.
(3)The constitution of the colleges shall
also provide that I or my successor or my
nominees shall be entitled to recommend
admission to the extent of 10% of the total
number of students to be admitted and this
arrangement shall be continued so long as the
college continues,. I have explained to Shri
Manubhai about the necessity of provision and
has accepted the same.
(emphasis added)
558
(4)The steps shall be taken to start the
college from next June and till the new
building for the college is ready, the college
shall be conducted in the new building
constructed for Jamnagar Court.
After having confirmation to the above effect
from the Government, we shall complete the
necessary procedure for donation and send our
confirmation for the same for Government
record.
Yours
sd/-
for Meghji Pethraj Shah.”
On November 22/23, 1954, the Chief Minister
wrote to Shri M.P. Shah confirming the
arrangement. The letter reads:
“Dear Shri Meghjibhai,
I was glad to receive your letter dated 28th
October. All the steps are being taken to
start medical college from June 1955.
Arrangements will be made to start the college
in the new building of the Court till the new
building for the college is constructed.
Medical college will be known as the name
suggested by you and the arrangements have
been made for the same. Constitution of the
college shall provide for the admission to 10%
of the students admitted every year as
recommended by you or your successor or
nominee and this arrangement shall be
permanent.
(emphasis added)
As regards hospital, it is being considered to
name as Smt Kasturba Gandhi Hospital. Final
decision shall be taken in few days.
I think that on this basis, till all the
points are confirmed and the procedure is
completed, stone foundation ceremony of the
new building shall be done by the Hon’ble
President or other great leader. I am
arranging for the same and shall inform the
date, when finalised.
Hope this will find you in good health.
Your well-wisher,
sd/-
U.N. Dhebar.”
4.The medical college was accordingly established and
started functioning from June 1955 with a strength of 60
students. As per the arrangement contained in the aforesaid
letters, Shri M.P. Shah was permitted to nominate students
for admission to the extent of 10% of the total strength
obtaining at a given time. This arrangement continued even
after the formation of the State of Gujarat. In course of
time, the college and the hospital grew in strength and
size. As against 60 seats in 1955, the annual intake of the
college rose to 175 three times the original number. In
the year 1964, the Government of Gujarat took a decision
that it would not be possible for it to reserve more than
twelve seats for the nominees of the donor. Though a copy
of the said proceedings is not placed before us, it is
559
found referred to in the letter dated April 19, 1965 written
by the Under Secretary to the Government of Gujarat to the
trustee of Meghji Pethraj Charitable Trust. (It is stated
that meanwhile the original donor, M.P. Shah had designated
the respondent-trust as his nominee.) The letter reads:
“I am directed to refer to your letter dated
March 4, 1965 on the subject noted above and
to state that for the reasons given in
Government letter No. MOG-1062/4257/Q dated
August 11, 1964, it will be not possible for
Government to reserve more than 12 seats for
the nominees of the donor at M.P. Shah Medical
College, Jamnagar.”
5.The respondent-trust acquiesced in this decision. It
is not brought to our notice that the trust lodged any
protest to the said reduction much less take any legal
proceedings to compel the Government to abide by the
arrangement. From the year 1964-65, therefore, only 12
students were being nominated by the trust.
6.In February 1993 this Court delivered the judgment in J.P.
Unnikrishnan v. State of A.P. The decision pertains to
private professional colleges. With a view to eliminate the
evil of capitation fee and the other undesirable practices
prevalent in private medical colleges, this Court framed a
scheme which the affiliating university and the Government
concerned were under an obligation to impose as terms and
conditions of affiliation/recognition. The scheme inter
alia directed that no seats shall be reserved for any
community, group or family which may have established the
college. The idea evidently was that while donations are
welcome, investments are not for the reason, expressly
affirmed in the judgment, that imparting of education is not
and cannot be allowed to become a business. This feature of
the scheme naturally set the Government of Gujarat a-
thinking whether in the light of the above pronouncement,
it is permissible to reserve seats for the “donor” in the
said government college when such a course is not
permissible even in a private medical college. Accordingly,
it resolved vide the Government of Gujarat resolution dated
July 12, 1993 “to discontinue the twelve donor seats in M.P.
Shah Medical College, Jamnagar”. The resolution, a copy of
which was communicated to the respondent-trust and the
college reads as follows:
“ANNEXURE’E’
Rules for Admission to first
MBBSIBDS/Physiotherapy in Medical Colleges in
Gujarat State 1993-94.
Government of Gujarat,
Health and Family Welfare Department,,
Resolution No. MCG-1093-2323-J,
Sachivalaya, Gandhinagar,
Dated July 12, 1993.
1 (1993) 1 SCC 645
560
Read (1) Govt. Resolution Welfare Health and
Family No.
Department dt. 20-5-1993. MCG-1093-1373-J
(2) Govt. Resolution Welfare Health and
Family No.
Department dt. 26-6-1993. MCG-1093-1373-J
(3) Govt. Resolution Welfare Health and
Family No.
Department dt. 3-7-1993 MCG-1093-1373-J
Resolution :
Government has in keeping with the judgment of
the Supreme Court in Writ Petition No. 607 of
1992 between Unnikrishnan J.P. v. State of
A.P.1 decided to discontinue the 12 donor
seats in M.P. Shah Medical College, Jamnagar
and 10 donor seats in Pramuch Swami Medical
College, Karamsad. The decision of the
Government has been communicated to the
trustees concerned vide this department letter
of even No. dated June 22, 1993 requesting
them not to admit any student against the
donor seats.
Therefore in modification of rules for
admission to first MBBS/BDS/Physiotherapy
course at Government Medical College and P.S.
Medical College, Karamsad/Government Dental
College/School of Physiotherapy in Gujarat
State for the year 199394 approved vide
Government Resolution No. MCG-1093-1373-J
dated 20-5-1993, Government is pleased (i) to
delete the words ‘and 3’ appearing in 7th line
of Rule 1 and (ii) to delete the words
‘Provided that … total available seats’
appearing in 6th and 7th lines of the Rule 2
and (iii) to delete Rules 3.1, 3.2, 3.3, 3.4,
and note thereunder.
By order and in the name of the Government of
Gujarat.
(M.L. Jadav)
Section Officer, Health and Family
Welfare Department.”
7. Accordingly the rules for admission to MBBS course in
government medical college, for the year 1993-94, published
by the Government of Gujarat contained no provision for
nomination of students by the respondent trust for the said
academic year. It is then that the respondent-trust
approached the Gujarat High Court challenging the aforesaid
Government resolution.
8. Before we refer to the contentions of the parties, it
is necessary to notice an earlier judgment of the Gujarat
High Court dated September 20, 1974 in Special Civil
Application No. 1232 of 1974 (Miss Asha J. Nanavati v. State
of Gujarat). The writ petition was filed by a student
seeking admission to the said college. Her case was that
but for the said provision for nomination, she would have
obtained a seat in the college. She questioned the validity
of the rules for admission issued by the Government of
Gujarat
2 Civil Application No. 1232 of 1974, decided on 20-9-1974
(Guj)
561
insofar as they provided for nomination of 12 students by
the respondent trust. She submitted that when the college
was started in the year 1955, its strength was 60 and
according to the original arrangement only 6 seats were
available for nomination by the trust; that the strength of
the college has been increased from time to time by the
Government by investing its own funds with the result that
by the year 1974, the strength of the college had risen to
175; in such a situation, the provision permitting the donor
to nominate as many as 12 students was arbitrary,
unreasonable and violative of Article 14 of the Constitution
of India. She submitted that there was no formal contract
or agreement between the Government of Saurashtra and the
donor and that the arrangement, if any, between the then
Government of Saurashtra and Shri M.P. Shah was not binding
upon the Government of Gujarat. She characterised the said
arrangement as contrary to public policy and prejudicial to
public interest. Both the trust and the Government of
Gujarat, who were impleaded as respondents, opposed the writ
petition and justified the arrangement. The High Court
dismissed the writ petition holding that the said
arrangement was not violative of Article 14 of the
Constitution. The court observed that in 1954-55, there was
no medical college in Saurashtra and that a college could be
established only with the help of the said donation from
Shri M.P. Shah. The provision for nomination by the said
donor in consideration of the said donation, the court held,
is reasonable. No appeal was preferred by anyone against
the said decision.
9. Shri Altaf Ahmed, Additional Solicitor General
appearing for the appellant (State of Gujarat) assailed the
judgment of the Gujarat High Court on the following grounds:
(1) The Government was justified in discontinuing the
provision reserving 12 seats for being nominated by the
respondent-trust inasmuch as the reservation of the kind is
opposed to Articles 14 and 15 of the Constitution.
According to the judgment in Unnikrishnan’ no seats can be
reserved for the family, group or community which may have
established a private professional college; it is
inconceivable that such a reservation can be provided in a
government college.
(2) Even if it is assumed for the sake of argument that
such a provision was valid when it was made in 1954, it is
not valid or reasonable after lapse of about forty years.
(3) There was no contract between M.P. Shah and the
Government of Saurashtra as provided by Article 299 of the
Constitution. The arrangement between the Government of
Saurashtra and Shri M.P. Shah is not legally enforceable in
a court of law.
(4) The High Court has not correctly understood the ratio
of the judgment in Unnikrishnan1. The judgment made it
clear that any such reservation even in a private college is
impermissible. The Government of Gujarat was bound by the
said judgment. It, therefore, acted to put an end to the
said provision for reservation in a government college.
562
(5) The High Court was in error in holding that the
judgment of the Gujarat High Court in Nanavati v. State of
Gujarat2 operated as res judicata between the Government and
the respondent-trust. Since the Government and the Trust
were co-respondents and there was no conflict of interest
between them in that writ petition, the decision rendered
cannot operate as res judicata between them.
(6) Having regard to the nature of function, it was not
necessary for the Government to observe the principles of
natural justice while terminating the arrangement.
10. Shri G. Ramaswamy, learned counsel appearing for the
respondent trust urged the following reasons in support of
the judgment of the High Court:
(1) There is a binding contract between the Government and
the trust entered into in 1954. In any event, the finding
of the Gujarat High Court in Nanavati case2 that there was a
binding contract between the parties operates res judicata.
(2) The contract entered into between the parties is not
violative of Article 14. It is also not open to the State
to raise the question of violation of Article 14 since this
question was concluded by the judgment of the High Court in
Nanavati2 as far back as in 1974.
(3) The judgment in Unnikrishnan’ is applicable only to
private colleges. It did not pertain to or deal with the
government colleges. The said judgment was, therefore, not
relevant and did not warrant the impugned termination of
arrangement by the Government of Gujarat. Once that
judgment is held to be irrelevant in the case of government
colleges, the only ground of termination gets knocked off.
(4) In the facts and the circumstances of the case, the
contract between the parties could not have been terminated
unilaterally without observing the principles of natural
justice.
(5) If the Government is of the opinion that the contract
entered into in 1954 was void and unconstitutional, even
then it cannot unilaterally terminate the contract without
refunding the amount donated by Shri M.P. Shah. The amount
of Rupees fifteen lakhs in 1954 is equivalent to Rupees
seven and a half crores today.
(6) The Government’s order pertains to M.P. Shah Medical
College as well as pharmacy college. By a common judgment,
the learned Single Judge of the Gujarat High Court struck
down the government resolution with respect to both
colleges. The Government, however, chose to file appeal
only in the case of M.P. Shah Medical College but not with
respect to the pharmacy college. This is not only
discriminatory and arbitrary but must also induce this Court
not to interfere in this appeal since upsetting the judgment
of the Gujarat High Court would result in two inconsistent
orders.
11. Before we deal with the contentions urged by the
learned counsel before us, it would be appropriate to notice
a few facts.
563
12. M.P. Shah Medical College was established by the
Government of Saurashtra. At all times, it has been
maintained and run by the Government of Saurashtra/Gujarat
from out of their own funds. Every medical college must
necessarily have a hospital attached to it with requisite
bed-strength and facilities; there cannot be a medical
college without such an attached hospital. For this reason,
as existing government hospital was renamed as “Kasturba
Gandhi Hospital” and attached to the college. Apart from
the sum of Rupees fifteen lakhs “donated” in the year 1954,
no further sum has been donated nor any other expenditure
incurred by Shri M.P. Shah or the respondent-trust over the
last forty years. There is also no evidence to show that
the college was established exclusively with the amount
“donated” by Shri M.P. Shah and that no funds or property of
the Government was utilised for the purpose. The material
placed before us does not also show that the Government of
Saurashtra was in no position to spare a sum of Rupees
fifteen lakhs in 1954 for establishing the college or that
for that reason it approached or requested Shri M.P. Shah to
donate the said amount. It is not clear from whom did the
proposal emanate. The judgment of Gujarat High Court in
Nanavati2 refers to and accepts the statement of a trustee
of the respondent-trust that “the State of Saurashtra was a
newly formed State at that time and was a very small State
and the State had many other public duties like development
of other educational institutions of higher education in
what was known as educationally backward region of the
country”, and the further averment that “this object
(setting up a medical college) could be achieved only if a
sizeable donation like Rupees fifteen lakhs (considering the
value of rupee in those days) was received by the Government
of Saurashtra, when the Government itself was unable without
some initial donation to embark upon setting up a medical
college from its own funds”. The aforesaid observations in
the judgment themselves show that while the laid “donation”
was essential for starting the college, it did not meet the
entire expense. Nor do we know what was the entire expense.
The significant words are “the Government by itself was
unable without some initial donation to embark upon setting
up a medical college from its own funds”. Not that we are
suggesting that had the college been set up exclusively out
of he said “donation”, it would make any difference. We are
only setting out the precise factual position.
13. The arrangement between the Government of Saurashtra
and Shri M.P. Shah does not prescribe the manner or method
according to which the original donor or the trust should
select the students to be nominated against the quota
reserved for them. It was and is open to the donor/trust to
nominate such candidates as they chose. The Government had
no right to question the combinations made. While the trust
says that they have been nominating students on a fair basis
with a view to help genuine students and physically
handicapped students, the Government says that the
nomination did not follow any particular method or criteria
and that the nominated students same from all over the
country. The fact remains that the power of
564
nomination was unregulated and absolute and lay within the
sole discretion of the “donor” and his nominee.
14. Secondly, and more significantly, it is misleading to
call the amount of Rupees fifteen lakhs paid by Shri M.P.
Shah to the Government in the year 1954 as a “donation”.
The said amount was not given by Shri M.P. Shah without any
strings attached, but subject to certain conditions, one of
which was of an enduring benefit to him. Not only the
college (to be established and maintained by the Government)
was to be named after Shri M.P. Shah, he bargained for and
obtained a quota of 10 per cent seats to which he could
nominate anyone. At the time the college was established
the strength of the college was 60. It has expanded
enormously and its present strength is practically three
times its original strength. As against 60 seats in 1955,
the number of seats today is 175. Shri M.P. Shah or the
respondent trust have not been spending a single pie on the
education of students nominated by them over the last about
forty years. For the first twenty years. they enjoyed the
right of nominating one-tenth of the students and for the
last about twenty years, 12 students. The cost of medical
education has been steadily rising over the years. In 1974,
as it appears from the judgment in Nanavati2 the cost of
educating one student was Rupees one lakh. Today it is
anywhere in the region of five to seven lakhs. We can take
judicial notice of the fact that over the last several
decades, a seat in MBBS course is a highly prized
achievement. The private medical colleges have been
charging several lakhs of rupees for granting admission in
their colleges. We are not suggesting that the respondent-
trust was collecting money for nominating students. It may
not have been necessary for it but the very power of
nomination in respect of 12 medical seats every year did
mean an exceptional power and clout and patronage which
even the Government, which has established and has been
maintaining and running the college at a huge expense, did
not and does not possess. Indisputably admission to
government medical colleges is being done exclusively on the
basis of the merit and even the Government does not possess
the power to nominate a student for admission in its
discretion. Only the respondent-trust possessed such a
power and all because forty years back a sum of Rupee
fifteen lakhs was “donated” by its predecessor-in-interest.
It is true that the sum of Rupees fifteen lakhs in 1954 was
a substantial amount, as has been repeatedly emphasised by
Shri Ramaswamy. But it is equally evident that the said
payment has yielded substantial benefit over the last forty
years.
15. Having noticed the relevant factual aspects, we may now
turn to the position in law. Shri G. Ramaswamy, learned
counsel for the respondent trust is not right in saying that
the decision in Unnikrishnan1 was not relevant to the
decision of the Government of Gujarat to terminate the
aforesaid arrangement. In our opinion, it was perfectly
relevant and the Government of Gujarat was right in
terminating the arrangement following the said decision. It
has been held in Unnikrishnan1 that while a person may have
a right to establish an educational institution, it can
certainly not be treated or operated as a trade or business.
The following extract from the
565
judgment brings out the essence of the holding on this
aspect: (SCC pp. 75 1 52, paras 197-198)
“While we do not wish to express any opinion
on the question whether the right to establish
an educational institution can be said to be
carrying on any ‘occupation’ within the
meaning of Article 19(1)(g), perhaps, it is
we are certainly of the opinion that such
activity can neither be a trade or business
nor can it be a profession within the meaning
of Article 19(1)(g). Trade or business
normally connotes an activity carried on with
a profit motive. Education has never been
commerce in this country. Making it one is
opposed to the ethos, tradition and
sensibilities of this nation. The argument to
the contrary has an unholy ring to it.
Imparting of education has never been treated
as a trade or business in this country since
time immemorial. It has been treated as a
religious duty. It has been treated as a
charitable activity. But never as trade or
business. We agree with Gajendragadkar, J.
that ,education in its true aspect is more a
mission and a vocation rather than a
profession or trade or business, however wide
may be the denotation of the two latter
words… .’ (See University of Delhi3.) The
Parliament too has manifested its intention
repeatedly (by enacting the U.G.C. Act, I.M.C.
Act and A.I.C.T.E. Act) that commercialisation
of education is not permissible and that no
person shall be allowed to steal a march over
a more meritorious candidate because of his
economic power. The very same intention is
expressed by the Legislatures of Andhra
Pradesh, Karnataka, Maharashtra and Tamil Nadu
in the Preamble to their respective enactments
prohibiting charging of capitation fee.
We are, therefore, of the opinion, adopting
the line of reasoning in State of Bombay v.
R.M.D. Chamarbaugwala4 that imparting
education cannot be treated as a trade or
business. Education cannot be allowed to be
converted into commerce nor can the
petitioners seek to obtain the said result by
relying upon the wider meaning of
‘occupation’. The content of the expression
‘occupation’ has to be ascertained keeping in
mind the fact that clause (g) employs all the
four expressions, viz. profession, occupation,
trade and business. Their fields may overlap,
but each of them does certainly have a content
of its own, distinct from the others. Be that
as it may, one thing is clear imparting of
education is not and cannot be allowed to
become commerce. A law, existing or future,
ensuring against it would be a valid measure
within the meaning of clause (6) of Article
19. We cannot, therefore, agree with the
contrary proposition enunciated in
Sakharkherda Education Society v. State of
3 University of Delhi v. Ram Nath, (1964) 2
SCR 703: AIR 1963 SC 1873: (1963) 2 LLJ 335
4 1957 SCR 874: AIR 1957 SC 874
566
Maharashtra5, Andhra Kesari Education Society
v. Govt. of A.p.6 and Bapuji Educational Assn.
v. State7.
16. In the scheme evolved in the said judgment, it is
expressly directed that all students admitted to a private
professional college shall be selected exclusively on the
basis of merit, both in the category of merit (free) seats
as well as payment seats. In the case of such private
professional colleges, an exception was made to the extent
of 5% of the seats for accommodating the NRIs/foreign
students in view of the orders and policy of the Government
of India to encourage such students. It has also been
directed expressly that “there shall be no quota reserved
for the management or for any family, caste or community,
which may have established such college”. If this is the
position in the case of professional colleges established
and administered by private bodies, it is inconceivable that
in the case of a college established and run by the
Government, any admissions can be made otherwise than on
merit or any quota can be reserved for any person, family or
trust, which may have assisted monetarily in establishing
the college. The Government is not precluded from accepting
donations from charitable-minded individuals of
organisations but it cannot certainly enter into an
arrangement or a venture of the kind concerned herein. In
this case, the payment was more in the nature of a deal
whereunder Shri M.P. Shah obtained in return an enduring
benefit till the college lasts. It was not even a case,
where the Government unilaterally offered something out of
gratitude for such “donation” not that we are saying that
such a thing would be legal. Now, where and individual or
an Organisation which establishes and runs a medical college
(recognised by State or affiliated to a university) is not
entitled, according to Unnikrishnan1 to admit students on
its own, or in its discretion, it is inconceivable that a
person or a body which has assisted in setting up of a
government medical college would be permitted to have a
quota of its own to which it can nominate students of its
own choice. There is no room for such an arrangement in
law. We are, therefore, of the opinion that the reason
given by the Government of Gujarat in its communication
dated June 22 1993 for terminating the said arrangement is a
perfectly relevant, legitimate and valid reason. It was
bound to do so in law and it has done so. No exception can
be taken to the said action.
17. In this view of the matter, it is not necessary to deal
with the other contentions urged by the learned Additional
Solicitor General. We must however, deal with other
contentions urged by Shri Ramaswamy. He contended that the
decision of the Gujarat High Court in Nanavati2 operate: as
res judicata between the respondent-trust and the Government
of Gujarat and, therefore, it is not open to the Government
to say that the said arrangement is not valid and/or binding
upon it. It is not possible to agree The judgment in
Nanavati2 is not a judgment in rem. It is a judgment it
5 AIR 1968 Bom 91: 69 Bom LR 690
6 AIR 1984 AP 251: (1984) 1 AP LJ 45
7 AIR 1986 Kant 119: ILR 1985 Kant 80
567
personam. It was in a writ petition filed by a student, in
her individual capacity, seeking a direction to the college
to admit her in MBBS 1st year course. She arrayed both the
respondent-trust and the Government of Gujarat as
respondents to the writ petition. Both the trust and the
Government supported the arrangement and contended that it
was valid and binding. There was no conflict of interest
between the trust and the Government. There was no issue in
controversy between the trust and the Government nor was
there any adjudication by the court on such an issue. For
attracting the rule of res judicata between co-defendants
according to the terms in Section 11 of the Civil Procedure
Code which provision of course is not, in terms, applicable
to proceedings in a writ petition it is necessary that
there should have been some issue directly and substantially
in controversy between them which has been heard and finally
decided by the court. Same would be the position, where a
plea of res judicata is sought to be raised between co-
respondents in a writ petition, on the general principles of
res judicata. Since the said basic requirement is not
satisfied, the said judgment cannot be treated as res
judicata between the trust and the Government. At the most,
it can be used as an instance where the Government had
affirmed the binding nature of the said arrangement but no
more. That does not even give rise to an estoppel in the
facts of this case. Merely because the Government had
contended in 1974 that the said arrangement is a valid one
and binding upon it, it cannot be said that it is precluded
from resiling from the said position even when it has
realised that such an arrangement is contrary to Article 14.
There can be no acquiescence or waiver in such matters. If
an individual cannot waive the fundamental rights conferred
upon him by Part III, the State cannot equally be prevented
from discharging its obligations placed upon it by Part III
by rules of evidence like estoppel, acquiescence or waiver.
18. Shri Ramaswamy relied upon certain decisions in support
of the, said contention which we may deal with briefly. The
first decision relied upon is in Federation of Directly
Appointed Officers of Indian Railway v. Union of India8. In
that case, there was an earlier decision by this Court on an
issue identical to the one raised in the writ petition.
Though the earlier decision was not rendered in a writ
petition filed in a representative capacity, the issue had
arisen between the very same categories of persons and the
contentions were also the same. The petitioners sought to
argue that the earlier decision is not binding upon them in
view of the “developing concept of Article 14”. On the
other hand, it was argued by the other side that the earlier
decision operated as res judicata. On an examination of the
contentions which arose in the previous case and which arose
in the case before them, the learned Judges comprising the
Division Bench held that they are unable to see “any
compelling reasons to deviate from the principles enunciated
in (earlier) judgment”. It was also held that “[a] dispute
now sought to be raised under Article 32 of the Constitution
between the Officers in a representative
8 (1993) 3 SCC 364: 1993 SCC (L&S) 776: (1993) 25 ATC 200
568
capacity and Engineers across also in a representative
capacity must be held to be barred by principles of res
judicata as also by the rule of constructive res judicata”.
We are unable to see how the principle of the said decision
helps the respondent-trust herein. There it was a direct
conflict between two categories of employees on both the
occasions and on identical grounds. It was for that reason
that the earlier decision was treated as res judicata.
19. The next decision relied upon is in Ambika Prasad
Mishra v. State of U.P.9 The principle emphasised by the
Constitution Bench in this case is that judicial decisions
should not be reviewed from time to time since such a course
has the effect of making the law uncertain besides keeping
the legislative and administrative decisions on vital issues
in perennial suspense. There can be no quarrel with the
said principle but its relevance herein is very little.
20. Shri Ramaswamy then cited State of U.P. v. Nawab
Hussain10. In that case, the respondent who was dismissed
from service filed a writ petition in the High Court raising
a particular contention. The writ petition was dismissed.
Thereafter, he filed a suit raising another ground of
challenge which was met by the State by raising the plea of
res judicata. This Court held that the respondent was
precluded by the rule of constructive res judicata from
raising the said new ground in the suit which he did not
raise in the writ petition, though it was within his
knowledge and could have been taken in the writ petition.
21. The last decision cited by Shri Ramaswamy on this score
is in Somawanti v. State of Punjab’ 1. In this case, it was
observed at pages 793-94 (SCR) that the mere fact that one
of the contentions now raised was not raised or considered
in an earlier decision which affirmed the validity of the
enactment, does not furnish sufficient ground for reopening
the issue. None of these cases are cases relating to res
judicata between co-defendants/corespondents.
22. We are unable to see any substance in the argument that
the termination of arrangement without observing the
principle of natural justice (audi alteram partem) is void.
The termination is not a quasi-judicial act by any stretch
of imagination; hence it was not necessary to observe the
principles of natural justice. It is not also an executive
or administrative act to attract the duty to act fairly. It
was as has been repeatedly urged by Shri Ramaswamy a
matter governed by a contract/agreement between the parties.
If the matter is governed by a contract, the writ petition
is not maintainable since it is a public law remedy and is
not available in private law field, e.g., where the matter
is governed by a non-statutory contract* . Be
9 (1980) 3 SCC 719:(1980) 3 SCR 1159
10 (1977) 2 SCC 806: 1977 SCC (L&S) 362: (1977) 3 SCR 428
11 (1963) 2 SCR 774: AIR 1963 SC 151: (1963) 33 Com Cas
745
In this connection, see Assistant Excise Commissioner v.
Isaac Peter, ( 1994) 4 SCC 104: 1994 (2) J.T. 140 on the
relevance of doctrine of fairness in matters governed by
contract, arrived at calling for tenders, auction or by
negotiations.
569
that as it may, in view of our opinion on the main question,
it is not necessary to pursue this reasoning further.
23. Regarding the contention that the Government of Gujarat
did not choose to file an appeal (against the judgment of
the learned Single Judge) in the case of the pharmacy
college but filed an appeal only in the case of the M.P.
Shah Medical College and that it is guilty of discrimination
on that account, we must say, we see no substance in it. It
is explained by the learned Additional Solicitor General
that in the case of pharmacy college, only one seat was
involved whereas it was 12 seats here and that too in a
medical college. In any event, since both the colleges are
different and they had filed two different writ petitions,
non-filing of appeal in one case does not disable the
Government from filing the appeal in the other case, merely
because the judgment is a common one. It must be deemed in
such a case that it is a judgment in each case separately.
24. For the above reasons, the civil appeals are allowed
and the judgments of the Gujarat High Court, both of the
learned Single Judge and the Division Bench under appeal,
are set aside. No order as to costs.
25. No orders on interlocutory applications.
614