{"id":84481,"date":"2008-09-22T00:00:00","date_gmt":"2008-09-21T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/parth-vs-smt-on-22-september-2008-2"},"modified":"2016-05-20T19:08:42","modified_gmt":"2016-05-20T13:38:42","slug":"parth-vs-smt-on-22-september-2008-2","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/parth-vs-smt-on-22-september-2008-2","title":{"rendered":"Parth vs Smt on 22 September, 2008"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Parth vs Smt on 22 September, 2008<\/div>\n
Bench: Mr. K.S.Radhakrishnan Shah, Mohit S. Shah<\/div>\n
  \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n \n \n\n\n\t \n\nSCA\/874720\/2008\t 17\tJUDGMENT \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 8747 of 2008\n \n\nWith\n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 9623 of 2008\n \n\n \n \nFor\nApproval and Signature:  \n \nHONOURABLE\nTHE CHIEF JUSTICE MR. K.S.RADHAKRISHNAN\n \n\n\t\t\t\tand\n \nHONOURABLE MR. JUSTICE MOHIT S. SHAH\n \n \n=================================================\n<\/pre>\n
1<\/span><\/p>\n
Whether
\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n<\/p>\n
2<\/span><\/p>\n
To
\n\t\t\tbe referred to the Reporter or not ?\n<\/p>\n
3<\/span><\/p>\n
Whether
\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n<\/p>\n
4<\/span><\/p>\n
Whether
\n\t\t\tthis case involves a substantial question of law as to the
\n\t\t\tinterpretation of the constitution of India, 1950 or any order
\n\t\t\tmade thereunder ?\n<\/p>\n
5<\/span><\/p>\n
Whether
\n\t\t\tit is to be circulated to the civil judge ?\n<\/p>\n
=================================================<\/p>\n
PARTH
\nKEYUR PARIKH BEING A MINOR THROUGH HIS FATHER – Petitioner(s)<\/p>\n
Versus<\/p>\n
SMT
\nNHL MUNICIPAL MEDICAL COLLEGE & 1 – Respondent(s)<\/p>\n
=================================================
\nAppearance
\n:\n<\/p>\n
MR
\nDC DAVE for Petitioner in SCA No.8747 of 2008  and MR ASIM PANDYA for
\nHL PATEL ADVOCATES for Petitioner in SCA No.9623 of 2008.
\nMR  KB
\nTRIVEDI AG with MR ABHISHEK MEHTA for M\/S TRIVEDI & GUPTA for
\nRespondent(s) : 1,
\nMR K B TRIVEDI ADVOCATE GENERAL with MS
\nSANGEETA VISHEN AGP for Respondent(s) :
\n2,
\n=================================================<\/p>\n
CORAM
\n\t\t\t:\n<\/p>\n
HONOURABLE
\n\t\t\tTHE CHIEF JUSTICE MR. K.S.RADHAKRISHNAN<\/p>\n
                                      and<\/p>\n
HONOURABLE
\n\t\t\tMR. JUSTICE MOHIT S. SHAH<\/p>\n
Date
\n:  22\/09\/2008
\nCOMMON CAV JUDGMENT <\/p>\n
(Per
\n: HONOURABLE MR JUSTICE MOHIT S. SHAH )<\/p>\n
\tThe
\npetitioners herein, two in number, seeking admission to the NRI seats
\nin respondent No.1   NHL Municipal Medical College, Ahmedabad have
\nraised questions about interpretation as well as constitutional
\nvalidity of the following definition of NRI seats in Section 2(i) of
\nthe Gujarat Professional Medical Educational Colleges or Institutions
\n(Regulation of Admission and Fixation of Fees) Act, 2007 (hereinafter
\nreferred to as  the Act ) :-\n<\/p>\n
  Non-Resident
\nIndian seats   means fifteen per cent  seats reserved
\nfor children or wards or the dependents for the education purpose, of
\nthe Non-Resident Indian, to whom admission is to be given in the
\nprofessional educational colleges or institutions;\n<\/p>\n
\t\t\t\t\t\t(emphasis
\nsupplied)<\/p>\n
2.\tThe
\nthrust of the petitioners’ contention is that the Legislature
\nintended to give first preference to NRI students or children of
\nNRIs, second preference to wards of NRIs and thereafter, if
\navailable, the remaining seats are to be given to dependents of NRIs
\nfor educational purpose. It is contended in the alternative that if
\nthis interpretation is  not accepted, the above definition, in so far
\nas it includes dependents of NRIs for education purpose is
\nunconstitutional.\n<\/p>\n
3.\tBefore
\nnarrating the facts or enumerating the contentions, it would also be
\nnecessary  to quote  the provisions of Rule 7(C) of the Gujarat
\nProfessional Medical Educational Colleges or Institutions (Regulation
\nof Admission and Payment of Fees) Rules 2008 (hereinafter referred to
\nas  the Rules ) :-\n<\/p>\n
 7C.\tNon-Resident
\nIndian Seats:-\n<\/p>\n
(1)\tThe
\nCollege or Institution shall issue advertisement in two English and
\ntwo Gujarati leading newspapers inviting applications with details of
\nthe fees to be paid, eligibility criteria and number of seats
\navailable in Non-Resident Indian seats.\n<\/p>\n
(2)\t Candidates
\nshall provide necessary documentary evidence of proof showing
\nNon-Resident Indian Status of his own or parents or guardian of the
\nwards or the person of whom he is dependent (for the education
\npurpose);\n<\/p>\n
(3)\tCandidates
\npassing qualifying examination from abroad, shall have to produce
\nequivalence certificate from the Gujarat Higher Secondary Education
\nBoard, Gandhinagar\/Association of Indian Universities, New Delhi.\n<\/p>\n
(4)\t The
\nNon-Resident Indian seats to be filled in by the management of
\nthe respective Professional Medical Educational College or
\nInstitution  shall be on the basis of inter-se merit list of the
\nstudents, who have applied, to be admitted against the Non-Resident
\nIndian seats;\n<\/p>\n
[emphasis
\nsupplied]<\/p>\n
4.\tThe
\ncase of the petitioner in Special Civil Application No. 8747 of 2008
\n  Parth Keyur Parikh is that he is a national and citizen of United
\nStates of America (USA), and that he was born in the USA.  The
\npetitioner appeared at the 12th Standard Examination in
\nScience stream conducted by the Gujarat Secondary and Higher
\nSecondary Education Board for the academic year 2007-2008.  The
\npetitioner obtained 81.66% marks in the subjects of Physics,
\nChemistry and Biology theory papers.   The petitioner submitted an
\napplication  to the respondent College for admission to the First
\nM.B.B.S Course in Non-Resident Indian seats  for the academic year
\n2008-2009.\n<\/p>\n
5.\tThe
\ncase of the petitioner in Special Civil Application No. 9623 of 2008
\n  Nishi Nikhil Patel is that she is a Non Resident Indian holding a
\ngreen card of USA, that her parents are also NRIs holding green cards
\nof USA and that the petitioner passed her qualifying examination from
\nUSA with 85.66% marks.\n<\/p>\n
6.\tIn
\nthe first petition which came to be filed on 30.6.2008, on the basis
\nof the petitioner’s apprehension that the authorities are not going
\nto accept his interpretation of the Rules to give first preference to
\n genuine  NRI students or the children of NRI students, the
\npetitioner prayed for interim relief against finalisation of the
\nadmission list.  The learned Single Judge granted the ex-parte
\nad-interim injunction restraining the respondent   college from
\nfinalising the admission list. After hearing the learned counsel for
\nthe parties on the question of interim relief, this Court vacated the
\nex-parte injunction by order dated 10.7.2008, which was challenged
\nbefore the Hon’ble Supreme Court. The Special Leave Petition was
\ndisposed of with a request to this Court for taking up the petition
\nfor early final hearing. Both these petitions have accordingly been
\nheard. Since they raise common questions of law, the petitions are
\nbeing disposed of by this common judgment.\n<\/p>\n
 Petitioners’
\nContentions<\/p>\n
7.\tMr
\nDhaval Dave and Mr Asim Pandya, learned counsel for the petitioners
\nhave submitted that there cannot be any reservation for Non-resident
\nIndian students, except in accordance with the principles laid down
\nby the Apex Court in paragraph 131 of the judgment in P.A. Inamdar
\nand others Vs. State of Maharashtra and others   (2005) 6 SCC 537.
\nIt is submitted that since the Hon’ble Supreme Court considered only
\nchildren or wards of NRIs as eligible for NRI seats, others cannot be
\nconsidered eligible for NRI seats. It is also submitted that  if at
\nall students depending on NRIs for educational purpose are to be
\nconsidered for NRI seats,  such NRI – sponsored students can be
\nconsidered only after giving first preference to NRI students and to
\nchildren and wards of NRIs.\n<\/p>\n
\tThe
\nlearned counsels have further submitted that as per the decision of
\nthe Apex Court in P.A. Inamdar case (supra), there can be quota for
\nNon Resident Indian students for two valid reasons   (i) to enable
\nthe people of Indian origin who have migrated abroad to bring back
\ntheir children to their own country for giving them education and
\nalso to inculcate the Indian culture and (ii) to help the
\ninstitutions to generate funds.  It is therefore, submitted that not
\ngiving preference to Non Resident Indian students like the
\npetitioners will run counter to the principles laid down in the
\naforesaid judgment.\n<\/p>\n
8.\tIt
\nis submitted by Mr Pandya for the petitioner in Special Civil
\nApplication No.9623 of 2008 that the provisions of Section 2(i) of
\nthe Act completely annihilate the very concept of NRI.  It means that
\na person bringing higher fees in recognized foreign currency whether
\nhe had his moorings in foreign country or not will be regarded as NRI
\nwhich is violative of the semantics of the language. It is ex-facie
\ncontrary to the intention of the Hon’ble Supreme Court expressed in
\nPA Inamdar case.\n<\/p>\n
\tIt
\nis also submitted that the disjunctive  or  in the definition
\nprovides for preferential treatment to the preceding category
\nvis-a-vis the succeeding category.\n<\/p>\n
9.\tStrong
\nreliance is placed upon the judgment dated 24.7.2007 of the High
\nCourt of Punjab and Haryana  in CWP No.10097 of 2007 (Sohrab Arora
\nvs. State of Punjab) in support of the contention that admissions to
\nNRI seats can only be given to NRIs who are themselves students or
\nfor NRIs whose children or wards are students and that even if the
\nNRI sponsors are relatives of the students seeking admission, they
\ncannot claim  admissions to the NRI seats. Reliance is also placed on
\nthe decision  dated 17.9.2007 of the Apex Court in Shikha Aggarwal vs
\nState of Punjab<\/a> arising from a decision of the Punjab and Haryana
\nHigh Court in another petition.\n<\/p>\n
10.\tReliance
\nis also placed upon the following decisions in support of their
\ncontention that the Court may read down the provisions in order to
\nsave the statutory provisions  from being struck down :-\n<\/p>\n
\t1.\tAIR
\n2000 SC 114   (Para 14)<\/p>\n
\t2.\tAIR
\n1989 SC 558   (Para 11)<\/p>\n
\t3.\tAIR
\n1980 SC 1042 (Para 111)<\/p>\n
\t4.\tAIR
\n2003 SC 4278 (para 35)<\/p>\n
 Submissions
\non behalf of Respondents<\/p>\n
11.\tOn
\nthe other hand, Mr. Kamal Trivedi, learned Advocate General for the
\nState of Gujarat and the respondent – College submitted that the
\ndefinition of `Non Resident Indian seats’ does not give any
\npreference to NRI students or to children or wards of NRIs, and that
\nstudents who are dependent on NRIs for educational purpose are also
\nequally eligible for NRI seats.  It is submitted that the legislature
\nhas not made any micro classification amongst  applicants for NRI
\nseats and, therefore, names of all students eligible for admission to
\nNRI seats have to be arranged  in the order of merit, as required by
\nRule 7(C)(4) of the Rules.\n<\/p>\n
12.\tThe
\nlearned Advocate General further submitted that the observations in
\npara 131 of the judgment in PA Inamdar’s case were to operate till
\nthe competent Legislature enacted a legislation on the subject. It is
\nsubmitted that the State Legislature  deriving powers from Articles
\n245 and 246 read with Entry 25 in the Concurrent List  of the 7th
\nSchedule has enacted the  Gujarat Professional Medical Educational
\nColleges or Institutions (Regulation of Admission and Fixation of
\nFees) Act, 2007. Hence the constitutional validity of the definition
\nof NRI seats cannot be challenged on the basis of the observations
\nmade by the Apex Court in  a situation where there was no such
\nlegislation. It is submitted that what parameters should be laid down
\nwhile defining NRI seats is a matter of legislative policy and such
\npolicy cannot be condemned as unconstitutional merely on the ground
\nthat the definition provided in the enactment appears to go beyond
\nthe observations made by the Apex Court prior to enactment of such
\nlegislation. The State Legislature  derives its law making power from
\nthe  provisions of the Constitution and not from the observations
\nmade in a judicial decision.\n<\/p>\n
13.\t\tWithout
\nprejudice to the above submission, the learned Advocate General has
\ndrawn our attention to the order dated 13.11.2006 of the Apex Court
\nin I.A Nos. 9 to 12 in Civil Appeal No. 4480 of 2006 (Ruchin Bharat
\nPatel Vs. Parents’ Association) wherein the Apex Court gave following
\ndirections:-\n<\/p>\n
 1)\tThe
\nstudents be admitted as NRIs in NRI quota as against 15% : At least
\none of the parents of such students should be an NRI and shall
\nordinarily be residing abroad as an NRI;\n<\/p>\n
2)\tThe
\nperson who sponsors the student for admission should be a first
\ndegree relation of the student and should be ordinarily residing
\nabroad as an NRI;\n<\/p>\n
3)\tIf
\nthe student has no parents or near relatives or taken as a ward by
\nsome other nearest relative such students also may be considered for
\nadmission provided the guardian has bonafide treated the student as a
\nward and such guardian shall file an affidavit indicating the
\ninterest shown in the affairs of the student and also his
\nrelationship with the student and such person also should be an NRI,
\nand ordinarily residing abroad.\n<\/p>\n
 \tIt
\nis therefore, submitted that the definition of Non Resident Indian
\nseats does not go beyond the parameters laid down by the Apex Court
\nin the above decision.\n<\/p>\n
14.\tThe
\nlearned Advocate General has relied upon the following decisions in
\nsupport of the submission that the provisions of a statute cannot be
\nread down unless the Court first comes to the conclusion that the
\nprovisions would be unconstitutional, if not read down.\n<\/p>\n
\t1980<\/span><\/p>\n
(3) SCC 625 (Para 55)<\/p>\n
\t2006<\/span>
\n(6) SCC 522 (Paras 7, 8 and 10)<\/p>\n
\t2002<\/span>
\n(1) SCC 741 (Paras 6 & 7)<\/p>\n
\t1999<\/span>
\n(5) SCC 138 (Para 9)<\/p>\n
15.\tThe
\nlearned Advocate General has further submitted that  the respondent
\nCollege granted admissions to all the 23 NRI seats out of total 150
\nseats in respondent No. 1 – College.  Admissions to the NRI seats
\nwere given on the basis of the merit list of the applicants eligible
\nfor NRI seats.  141 eligible students had applied for 23 NRI seats
\nunder the respondent College.  The student at Serial No. 23 of the
\nsaid admission list secured 89.66 per cent marks at the qualifying
\nexamination.   However, the petitioners in these petitions have
\nsecured only  81.66% and 85.66% marks respectively.  It is,
\ntherefore, submitted that the petitioners are much lower down in the
\nmerit list.  Thus the definition of NRI seats has subserved the merit
\nprinciple.\n<\/p>\n
16.\tThe
\nlearned Advocate General has further submitted that –\n<\/p>\n
(i)\tthe respondent
\nmedical college has 150 seats in the First MBBS course, 75% of the
\nsaid seats are earmarked as Government seats. Out of the remaining
\nseats, 15% seats are earmarked as NRI seats and the balance 10% seats
\nare earmarked as management seats. The fees for the 75% Government
\nseats and 10% management seats are the same i.e. Rs.2.15 lakhs per
\nannum per student and for the 15% NRI seats the fees are 15000 US $
\nper annum. It is stated all the 23 students were admitted to the NRI
\nseats after this Court vacated the ex-parte ad-interim injunction on
\n10.7.2008 and each of them  has paid 15000 US $. It is stated that
\nthe 23 students satisfy the eligibility criteria as provided in
\nSection 2(i) of the Act. They are NRI students themselves or children
\n or wards of NRIs or are dependents of NRIs  for educational purpose.\n<\/p>\n
(ii)\tin the State of
\nGujarat there are four private unaided medical colleges including
\nrespondent No.1- college and the total intake of these four private
\nunaided college is 450 in the first MBBS course. 15% thereof i.e. 68
\nseats are earmarked for NRIs. There were 600 applications for 68
\nseats and admissions have been granted to these NRI seats on the
\nbasis of inter-se merit of the eligible applicants in the concerned
\nCollege. Similarly, there are seven private unaided dental colleges
\nwith a total intake of 530 out of which 80 seats are earmarked for
\nNRIs and the said seats have also been filled in by operating the
\nstatutory provisions.\n<\/p>\n
\tIt is submitted that
\nthe affected NRI students are not joined as party – respondents and
\nany interference by this Court at this stage would cause serious
\nprejudice to such students who will not be able to secure admission
\nto any other course, in case their admissions were to be cancelled at
\nthis stage.\n<\/p>\n
17.\tIn
\nrejoinder, the learned counsel for the petitioners have submitted
\nthat since the petitioners are challenging constitutional validity
\nof a statutory provision, if the petitioners succeed in their
\nchallenge, this Court would give the necessary declaration and the
\nconsequential reliefs. It is submitted that the petitions cannot be
\ndismissed as not maintainable on the ground that  the affected
\nstudents are not joined as party respondents. In support of the said
\nsubmission, strong reliance is placed  on the decisions of the Apex
\nCourt in  AIR 2007 SC 1503 (para 25), AIR 1974 SC 1755 (Para 20) and
\nAIR 1983 SC 769 (Para 36).\n<\/p>\n
 Discussion<\/p>\n
18.\tWe
\nhave given anxious consideration to the rival submissions. As far as
\nthe interpretation canvassed by the learned counsel for the
\npetitioners is concerned, we are unable to accept their contention
\nthat the Legislature has made mini-classification amongst the
\nstudents seeking admissions to NRI seats.  Section 2(i) of the Act
\ndefines NRI seats as seats reserved for children or wards or
\ndependents for the education purpose of the Non-Resident Indian.
\nThere is nothing in the Act or the Rules to indicate that the
\nLegislature or the Rule making authority has given any higher
\npreference to students who are themselves NRIs or to children or
\nwards of NRIs.   The disjunctive  or  only indicates alternatives
\nand not any preference. It is, therefore, not possible to read the
\nprovisions of Section 2(i) of the Act in the manner urged on behalf
\nof the petitioners.\n<\/p>\n
19.\tComing
\nto the constitutional validity of the above definition, the
\nconstitutional validity of a legislative provision can be challenged
\neither on the ground of lack of legislative competence of the
\nconcerned Legislature or violation of any provision of the
\nConstitution including the provisions contained in Part III of the
\nConstitution. We find considerable substance in the submission made
\nby the learned Advocate General on behalf of the State of Gujarat and
\nthe respondent   college that the source of the enactment is
\nArticles 245 and 246 of the Constitution read with Entry 25 in the
\nConcurrent list in the 7th Schedule to the Constitution,
\nwhich reads as under :-\n<\/p>\n
 25.\tEducation,
\nincluding technical education, medical education and universities
\nsubject to the provisions of entries 63, 64, 65 and 66 of List I;
\nvocational and technical training of labour.\n<\/p>\n
\tThere
\nis no dispute about the fact that Entries 63 to 66 of List  -I have
\nno relevance to the present controversy.\n<\/p>\n
\tSince
\nthe State Legislature is admittedly competent  to make a legislation
\non the subject of admissions to medical colleges and there is no
\nCentral legislation on the same subject, there is no question of lack
\nof legislative competence or repugnancy.\n<\/p>\n
20.\tThe
\nlearned counsel for the petitioners would, however, urge that the
\ndefinition of NRI seats is arbitrary and violative of the
\npetitioners’ fundamental right under Article 14 of the Constitution
\nbecause the Apex Court held in PA Inamdar case who may be considered
\neligible for admission to NRI seats. Since strong reliance has been
\nplaced on the observations made by the Apex Court in paragraph 131 of
\nthe judgment in PA Inamdar’s case, the same are quoted verbatim :-\n<\/p>\n
 Here
\nitself we are inclined to deal with the question as to  seats
\nallocated for Non-Resident Indians ( NRI  for short) or NRI
\nseats. It is common knowledge that some of the institutions grant
\nadmissions to a certain number of students which such quota by
\ncharging a higher amount of fee. In fact, the term ‘NRI’ in relation
\nto admissions is a misnomer. By and large, we have noticed in cases
\nafter cases coming to this Court, neither the students who get
\nadmissions under this category nor their parents are NRIs.  In
\neffect and reality, under this category, less meritorious students
\nbut who can afford to bring more money, get admission. During the
\ncourse of hearing, it was pointed out that a limited number of such
\nseats should be made available as  the money brought by such
\nstudents admitted against NRI quota enables the educational
\ninstitutions to strengthen their level of education and also to
\nenlarge their educational activities. It was also pointed out
\nthat people of Indian origin,  who have migrated to other countries,
\nhave a desire to bring back their children to their own country as
\nthey not only get education but also get reunited with the Indian
\ncultural ethos by virtue of being here. They also wish the money
\nwhich they would be spending elsewhere on education of their children
\nshould rather reach their own motherland.  A limited reservation of
\nsuch seats, not exceeding 15%, in our opinion, may be made available
\nto NRIs depending on the discretion of the management subject to
\ntwo conditions. First such seats should be utilised bonafide by NRIs
\nonly and for their children or wards. Secondly, within this quota,
\nmerit should not  be given a complete go-by. The amount of money, in
\nwhatever form collected from such NRIs, should be utilised for
\nbenefiting students such as from economically weaker sections of the
\nsociety, whom, on well-defined criteria, the educational institution
\nmay admit on subsidised payment of their fee.  To prevent
\nmisutilisation of such quota or any malpractice referable to NRI
\nquota seats, suitable legislation or regulation needs to be framed.
\n So long as the State does not do it, it will be for the Committees
\nconstituted pursuant to the direction in Islamic Academy (Islamic
\nAcademy of Education vs. State of Karnataka<\/a> (2003) 6 SCC 697) to
\nregulate.\n<\/p>\n
[emphasis
\nsupplied by us]<\/p>\n
21.\tThe
\nunderlined observations clearly indicate that the Apex Court was
\nreally concerned about less meritorious students getting admissions
\ninto medical colleges and such other institutions of higher learning
\nmerely because they could afford to bring more money. An analysis of
\nthe above observations would show that the following factors were
\nconsidered relevant by the Apex Court  regarding allocation of seats
\nfor Non- Resident Indians :-\n<\/p>\n
(i)\tThe money brought
\nby students seeking admission to NRI seats enables the educational
\ninstitutions to strengthen their level of education and also to
\nenlarge their educational activities.\n<\/p>\n
(ii)\tThe number of
\nsuch seats in NRI quota shouldnot exceed 15%.\n<\/p>\n
(iii)\tNRI seats should
\nbe utilised bonafide by NRIs only and for their children or wards.\n<\/p>\n
(iv)\tWithin the NRI
\nquota, merit should not be given a complete go-by.\n<\/p>\n
(v)\tThe amount of
\nmoney, in whatever form collected from NRIs, should be utilised for
\nbenefiting students such as from economically weaker sections of the
\nsociety, whom the education institution may admit on subsidised
\npayment of  fee.\n<\/p>\n
22.\tUpon
\na further analysis  it appears that what the Legislature  has done
\nwhile defining NRI seats is to give greater weightage to the merit
\nfactor.  Hence,  enlargement of eligibility for NRI seats by
\nincluding the dependents of NRIs for education purpose has not
\nweakened but strengthened  the basic premise in PA Inamdar case that
\nless meritorious students should not get admission merely because
\nthey can afford to bring more money. As the facts of the instant case
\nclearly demonstrate,  the marks obtained by the 23 students admitted
\nto NRI seats in the respondent- college range from 92.33% to 89.66%
\nat the qualifying examination. If the definition of NRI seats in
\nSection 2(i) were to be struck down as unconstitutional in so far as
\nit includes  dependents for the education purpose  of NRIs, the
\nconsequence would be that the petitioners with 81.66% and 85.66%
\nrespectively would secure admission and more meritorious candidates
\ndependent  on NRIs for education purpose will be left out.  It is not
\nthat the NRI students or children or wards of NRIs are kept out of
\nthe definition of NRI seats or the admission list.  A perusal of the
\nadmission list of students admitted to the NRI seats in respondent
\nNo.1   college clearly shows that out of 23 students,  7 students
\npassed their qualifying examination from countries outside India and
\nthe remaining students passed their qualifying examination in India
\nincluding NRI students or children\/wards of NRIs who did their
\nschooling in India.\n<\/p>\n
23.\tWhen
\na student having done schooling in India, whose parents or guardians
\nare residing abroad, is eligible for admission to an NRI seat, there
\nis no question of his being reunited with the Indian culture because
\nhe is already a part of the Indian culture while studying in a school
\nin India. No grievance can, therefore, be made against inclusion of
\nthe third category of students who are dependents on NRIs for
\neducation purpose, merely on the ground that such dependents have
\ndone their schooling in India. The petitioner in Special Civil
\nApplication No.8747 of 2008 himself has passed the qualifying exam
\nconducted by the Gujarat Board.\n<\/p>\n
24.\tIt
\nis certainly for the Legislature to consider  what weightage or
\npriority should be accorded to the factors which are already
\nconsidered as relevant by the Apex Court. On an analysis of the
\nrelevant statutory provisions, it appears that the State Legislature
\nand the Rule making authority has arranged the relevant factors in
\nthe following order :-\n<\/p>\n
(i)\tSubstantially
\nhigher fees are determined by the Fees Regulation Committee for NRI
\nseats i.e. 15% seats out of the total intake in the concerned private
\nunaided college. This enables such institution to generate funds to
\nstrengthen their level of education and also to enlarge their
\neducational activities which would have otherwise required the
\ninstitution to charge higher fees from the students admitted to the
\nremaining 85% seats in the concerned institution.\n<\/p>\n
(ii)\tMerit is the sole
\ncriterion for granting admissions to NRI seats and, therefore, no
\nmini classification is made amongst the applicants eligible for
\nadmission to NRI seats.\n<\/p>\n
(iii)\tEnlarging the
\ndefinition of persons eligible for NRI seats enlarges the number of
\nstudents and merit being the only criterion for admissions from out
\nof such eligible candidates, the Legislature has given higher
\nweightage to merit rather than giving preference to students whose
\nparents or guardians are residing abroad.\n<\/p>\n
(iv)\tJust as children
\nor wards of NRIs, having studied in schools in India, are eligible
\nfor admission to NRI seats, there would be no justification for
\nkeeping out students who have studied in schools in India and are
\ndependents on NRIs for the purpose of higher education which is
\nbecoming very expensive. Children or wards of NRIs are presumed to be
\ndependents on NRIs for financing the expenses of higher education.\n<\/p>\n
25.\t\tIt
\nis for the Legislature to decide in its wisdom as to which class\/es
\nof candidates should be made eligible for admission to NRI seats.  So
\nlong as the classification made by the Legislature is founded on an
\nintelligible differentia and the same has rational nexus with the
\nobject sought to be achieved by the statute, the legislative
\nprovision cannot be faulted with.  The legislative object is to
\npermit the private unaided institutions to generate more funds by
\ntaking higher fees from students whose higher education is being
\nfinanced by NRIs provided the students are children of NRIs or wards
\nof NRIs or are dependents of NRIs for education purpose.  Therefore,
\nonly students who have some rational connection with the NRIs are
\nconsidered eligible.  In case of children and wards of NRIs, there
\nwould always be a presumption that they are dependents of NRIs for
\neducation purpose.  In case of others, where the students are able to
\nshow that they are dependents of NRIs for education purpose, they are
\nconsidered as eligible.  Thus dependence on NRIs for education
\npurpose is a common running thread amongst all the categories of
\nstudents who are considered by the Legislature as eligible for
\nadmission to NRI seats. We are, therefore, not in a position to
\naccept the contention urged on behalf of the petitioners that
\nlegislative provision including in the definition dependents of NRIs
\nfor education purpose has no rational nexus with the object sought to
\nbe achieved.\n<\/p>\n
26.\t\tAs
\nper the settled legal position, what weightage or priority should be
\naccorded by the Legislature to the different factors which are
\nrelevant for making a legislation is entirely a matter of policy and
\nthe Court cannot direct the Legislature to rearrange such priorities.
\nStriking down the definition contained in Section 2(i) in so far as
\nit includes  dependents for the education purpose  of the
\nNon-Resident Indian would amount to rearranging the priorities and
\ngiving less weightage to merit. Apart from this being impermissible
\nin principle, it would also run counter to the basic premise in PA
\nInamdar case as discussed in paras 20 to 22 hereinabove.\n<\/p>\n
27.\tAs
\nregards the decision of the Punjab and Haryana High Court in Sohrab
\nArora’s case (CWP No.10097 of 2007 decided on 24.7.2007), the Punjab
\nGovernment had issued notification dated 21.3.2007 for regulating
\nadmissions to postgraduate medical courses. NRI seats reserved in
\nprivate colleges were divided into the following categories in order
\nof preference :-\n<\/p>\n
Category I : \tNRIs who
\noriginally belonged to the State of Punjab,<\/p>\n
Category II : \tNRIs
\nwho originally belonged to an Indian \t\t\tState other than Punjab.\n<\/p>\n
Category III : \tThird
\npreference will be given to those Indian candidates who are sponsored
\nby NRI and sponsorship letter is attached with the application.\n<\/p>\n
Category IV : \tFourth
\npreference will be given to those Indian candidates who are ready to
\npay fee in Indian currency equivalent to US $ as prescribed in para
\n27 above.\n<\/p>\n
\tOne
\nof the contentions raised on behalf of the petitioners before the
\nHigh Court was that categories III and IV above were in violation of
\nthe judgment of the Apex Court in PA Inamdar’s case particularly para
\n131 in SCC (para 128 in AIR). It appears that during pendency of the
\npetition, categories III and IV were deleted by the Government of
\nPunjab and the learned counsel appearing for the concerned private
\ncollege made a grievance against deletion of category III. The High
\nCourt did not accept  the contention of the private college against
\ndeletion of category III. Since deletion of the category III made the
\npetition infructuous, the petition was disposed of as infructuous.
\nHence the observations made by the High Court while disposing of the
\npetition as infructuous cannot be cited as a precedent. Even
\notherwise we express our inability to concur with the observations
\nmade in the said judgment, because it proceeds on the premise that
\nthe source of the rule making power was the judgment in PA Inamdar
\ncase.  It bears repetition that the Apex Court itself made it clear
\nin PA Inamdar case that the arrangement provided therein was till the
\ncompetent legislature made a legislation on the subject.\n<\/p>\n
28.\tAs
\nregards the decision dated 17.9.2007 of the Apex Court arising from
\nthe judgment of the Punjab and Haryana Court in a cognate matter, the
\nsaid decision merely held that deletion of Category III cannot apply
\nwhen this category was available at the time of counselling.\n<\/p>\n
29.\tIn
\nthe view that we have taken on merits of the controversy, it is not
\nnecessary to decide the question about the effect of not joining the
\naffected students as party respondents in the petitions.\n<\/p>\n
29.\tIn
\nview of the above discussion, we see no merit in the petitions. The
\npetitions are, therefore, dismissed. Rule is discharged in each
\npetition with no order as to costs.\n<\/p>\n
\t\t\t\t\t[K.S.\n<\/p>\n
RADHAKRISHNAN, C.J.]\t<\/p>\n
\t\t\t\t\t[M.S.\n<\/p>\n
SHAH, J.]\t\t<\/p>\n
zakir\/-<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Parth vs Smt on 22 September, 2008 Bench: Mr. K.S.Radhakrishnan Shah, Mohit S. Shah SCA\/874720\/2008 17 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 8747 of 2008 With SPECIAL CIVIL APPLICATION No. 9623 of 2008 For Approval and Signature: HONOURABLE THE CHIEF JUSTICE MR. K.S.RADHAKRISHNAN and HONOURABLE […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-84481","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nParth vs Smt on 22 September, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/parth-vs-smt-on-22-september-2008-2\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Parth vs Smt on 22 September, 2008 - 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