Full Judgement
Indian Medical Association Vs. Union of India & Ors
Indian Medical Association Vs. Army College of Medical Sciences & Ors.
Ashima Mutneja Vs. Guru Gobind Singh Indraprastha University & Ors
Rachit Gupta & Ors. Vs. Guru Gobind Singh Indraprastha University & ANR.
Ashima Mutneja Vs. Guru Gobind Singh Indraprastha University & ANR.
JUDGEMENT
B.SUDERSHAN REDDY,J:
1. Where the mind is without fear and the head is held high Where knowledge is free Where the world has not broken up into fragments By narrow domestic walls Where words come out from the depth of truth Where tireless striving stretches its arms towards perfection Where the clear stream of reason has not lost its way Onto the dreary desert sand of dead habit Where the mind is led forward by thee Into ever-widening thought and action Into that heaven of freedom, my Father, let my country awake. - Poet Laureate, Rabindranath Tagore
2. The vexed question of access to education has hounded India from times immemorial. The futile pleadings of an Ekalavya for a teacher, that could not even be suppressed in the recesses of our cultural consciousness, to the modern day demands for exclusion from portals of knowledge of the "others", deemed to be unfit even if lip service of acknowledgement is paid that such "unfitness" may be due to no fault of theirs but is rather on account of their social, economic and cultural circumstances, gouges our very national soul. Even as higher levels of knowledge becomes vital for survival, and its technologies become capable of empowering those who belong to groups, that historically and in the present have been excluded from the liberating prowess of knowledge, this country seems to witness, as in the past, a resurgence in demands that knowledge be parceled out, through tight fisted notions of excellence, and concepts of merit that pander to the early advantages of already empowered groups.
3. For much of our history, most of our people were told that they were excluded, for no fault of theirs in this and here, but on account of some past mistakes. Hope was restricted to the duty that was supposed to attach itself to station ascribed by a cruel fate, cast as cosmic justice. This order that parceled knowledge, by grades of ascribed status, chiefly of birth and of circumstances beyond the control of the young, weakened this country. It weakened our country because it reduced the pool of those who were to receive higher levels of knowledge to only a small portion of the upper crust.
This in turn weakened our method of knowing and creating new knowledge - knowledge of the deductive kind was extolled primarily for its elegance, and its practical significance derided, and soon enough turned into metaphysics of mysticism that palliated the deprived with paens of a next life. This weakened our ability to apply knowledge to practical affairs of all segments of population, and effectively shut off the feed back loop that practice by users could have provided, so that new knowledge could be generated. Our practical knowledge ossified, and deductive knowledge became ever more ready to justify the worth of the high and the mighty, for such justification brought status to the peddlers of mysticism and enabled the high and the mighty to evade questions of accountability to the masses.
4. It was that truth that our national poet spoke about when he prayed that knowledge would be free. It was that truth that the makers of modern India, those great souls, who could see the causes for past events, and foresee the needs of the future, tried to inscribe in our Constitution. It is not any wonder that our first Prime Minister in the excitement of the first seconds of freedom from foreign rule spoke about our "tryst with destiny" to the Constituent Assembly, and yet in the same breath also added "now the time comes when we shall redeem our pledge, not wholly or in full measure, but very substantially." As Amartya Sen points out those were heady times, of promises made and of hope kindled1. And we, as a nation, promised ourselves that our huddled masses, condemned to rot in squalor, ignorance and powerlessness on account of the incessant exploitation by the elites, and on account of enforced hierarchies of social stature and worth, will never again acknowledge as a teacher, a person who will say that he will teach only members of this group, and not that group.
To each and every group, and to each and every individual in those groups, we promised that never again would we allow social circumstances of the groups they belonged to be a factor in our assessment of their social worth. We gave our people the hope that we, the upper crust of India will change, and that their patience and tolerance of our inhumanity, over many millennia in the past and for a few decades more into the future, will soon be rewarded by our humanization. 1 The Argumentative Indian - Writings on Indian History, Culture and Identity, Picador (2006) History says, Don't hope On this side of the grave, But then, once in a lifetime The longed-for tidal wave Of justice can rise up, And hope and history rhyme.
5. We formed our nation-state to make sure that hope and history, as an actuality of experience of our people - all of our people, belonging to all of the groups into which they belonged to - would indeed rhyme. That is what our Constitution promises. And that is the motive force that informs the basic structure of our Constitution. Our fealty to that motive force is as sacred a promise that we as a nation have ever made to ourselves. Every other commitment can be assessed only on the touchstone of that motive force that balances hope and actuality of history, with hope progressively, and rapidly, being transcribed into actuality of real equality.
6. In contrast to the above, a strange interpretation has been pressed upon us in this instant matter. On the one hand it is contended that the State has to be denied the power to achieve an egalitarian social order and promote social justice with respect to deprived segments of the population, by imposing reservations on private unaided educational institutions, on the ground that this Court has held that private non-minority unaided educational institutions cannot be compelled to select students of lower 2 Seamus Heaney, The Cure at Troy: A Version of Sophocles' Philoctetes, (London Faber and Faber, 1991); cited in Sen, Amartya, The Idea of Justice (Allen Lane, 2009). merit as defined by marks secured in an entrance test, notwithstanding the fact that the State may have come to a rational conclusion that such underachievement is on account of social, economic or cultural deprivations and consequent denial of admissions to institutions of higher education deleterious to national interest and welfare.
On the other hand it is contended that private unaided non-minority educational institutions, established by virtue of citizens claimed right to the charitable occupation, "education", an essential ingredient of which is the unfettered right to choose who to admit, may define their own classes of students to select, notwithstanding the fact that there may be other students who have taken the same entrance test and scored more marks. It would appear that we have now entered a strange terrain of twilight constitutionalism, wherein constitutionally mandated goals of egalitarianism and social justice are set aside, the State is eviscerated of its powers to effectuate social transformation, even though inequality is endemic and human suffering is widely extant particularly amongst traditionally deprived segments of the population, and yet private educational institutions can form their own exclusive communes for the imparting of knowledge to youngsters, and exclude all others, despite the recognized historical truth that it is such rules of exclusion have undermined our national capacity in the past.
7. The main issues that present themselves to us in these matters before us relate to the following: (1) Can the executive abrogate a legislatively mandated and specified social justice program in the field of education? (2) Do private non-minority unaided professional educational institutions have the right to pre define a social group and admit into their institutions from only those social groups and exclude all other students the opportunity of being considered for admission into such educational institutions? It is against the background of the ark of hope that our Constitution is, that we have to answer the above questions. II Facts of the Case: The Private Non-Minority Unaided Professional Educational Institution
8. The private educational institution, started and managed by the Army Welfare Education Society ("AWES"), named Army College of Medical Sciences ("ACMS"), located in the National Capital Territory of Delhi ("NCT of Delhi"), seeks to admit only students who are wards or children of current and former army personnel and widows of army personnel (henceforth, we will be referring this entire group as "wards of army personnel" for ease of use).
9. AWES, it is stated, is a charitable trust that has been set up to cater to the educational needs of wards of Army personnel, both current and former, and widows of Army personnel. It is stated that the operation of its educational institutions is funded purely from regimental funds, which have been recognized to be private funds and not that of the Indian Army. AWES was given on lease, an extent of a little over 25 acres of land in the NCT of Delhi under the control and possession of Ministry of Defence in order to enable it to start ACMS, and meet the regulatory requirement regarding extent of land that a private medical college ought to have for its college campus. In addition, ACMS has also been provided the facility of using the Army Hospital in NCT of Delhi, both for its scholars to fulfill the necessary clinical training at such an hospital, and also to fulfill the regulatory requirement that a medical college possess access to a general hospital of sufficient number of beds as assurance of availability of facilities to meet the curricular requirements.
10. It is also stated that the wards of army personnel suffer from extensive disadvantages that children of the regular civilian population do not face. It is of course well recognized that army personnel are, by the very nature of their job, deputed to serve in various inhospitable terrains, or in regions with scant facilities. Such assignments imply non-availability of proper educational facilities for their wards in large periods of the critical growing periods of the children. Further, in order to facilitate the education of the children, personnel of army are also compelled to maintain dual homes, where the member of the army personnel is in one place, and his family resides in another place. This places tremendous economic hardships, which could be conceived as also imposing hardships in being able to secure any special coaching or training for the children. Further, the absence of the father figure could also imply a certain imbalance in family lives. All these contribute to lowered educational attainments of wards of army personnel, relative to the civilian population, and hence lowered performance in qualifying examinations for various educational institutes at the college level, particularly the professional colleges. It is also contended that the seats reserved for Defence personnel, at college level, also do not satisfy the needs of children and army wards because of paucity of total seats and stringent domicile requirements enacted by State legislatures. The admission policy of the private non-minority unaided professional educational institution.
11. ACMS, in the year 2008, began to admit students. It sought to do this by a set of rules framed by itself, and which may be briefly stated as follows: (a) That only those students who have the relevant qualifying high school education and who have taken the common entrance test conducted by appropriate authorities for admission to medical colleges in the NCT of Delhi, and have secured the minimal qualifying marks in such a test, shall be eligible to apply to ACMS; (b) Of the students satisfying (a) above, only those who are wards or children of former and current army personnel and widows of army personnel (including those who have died in service) shall be eligible for admission; (c) that within the group of students satisfying conditions (a) and (b) above, admission based on strict inter-se ranking, based on marks secured in the common entrance test shall be followed for admitting students; and (d) there shall not be any distinction whatsoever, on the basis of social, economic or cultural background amongst the group comprising the wards of army personnel. The relevant laws of the affiliating university and the State Government applicable to private unaided non-minority professional educational institutions.
12. At this preliminary stage it would appear that the admission policy of ACMS to have been undertaken in the teeth of two different sets of laws which are applicable: (a) the State act, "Guru Gobind Singh Indraprastha University Act, 1998" ("GGSIU Act 1998") that led to the establishment of the university granting affiliation to ACMS, the Guru Gobind Singh Indraprastha University ("GGSIU"), and the various ordinances promulgated by the Board of Management ("BoM") of GGSIU; and (b) the "The Delhi Professional Colleges or Institutions (Prohibition of Capitation Fee, Regulation of Admission, Fixation of Non-Exploitative Fee And Other Measures to Ensure Equity And Excellence) Act, 2007 ("Delhi Act 80 of 2007").
The relevant portions of the applicable laws are reproduced below. Section 6 of GGSIU Act, 1998 provides as follows: "(1) The University shall be open to persons of either sex and of whatever race, creed, caste or class, and it shall not be lawful for the University to adopt or impose on any person any test whatsoever of religious belief or profession or political opinion in order to entitle him to be appointed as a teacher of the University or to hold any office therein or to be admitted as a student of the University, or to graduate thereat, or to enjoy or exercise any privilege thereof; (2) Nothing in this section shall be deemed to prevent the University from making any special provision for the appointment or admission of women or of persons belonging to the weaker sections of the society, and in particular, of persons belonging to the Scheduled Castes and the Scheduled Tribes."
13. The Board of Management of GGSIU, pursuant to Sections 27 and 6(2) of GGSIU Act, 1998, enacted Ordinance 30; vide Board of Management Resolution No. 31.5 dated August 25, 2006, entitled Reservation Policy for the Self-Financing Private Institutions affiliated with the Guru Gobind Singh Indraprastha University. The said Ordinance 30 states that "for making special provisions for the advancement of weaker sections of the society, and in particular of persons belonging to the Scheduled Castes and Scheduled Tribes" certain percentage of seats shall be reserved by every affiliated college. The reservations were as follows: (i) Scheduled Castes (15%); (ii) Scheduled Tribes (0.5%); (iii) Defence Category (5%); (iv) Physically Handicapped (3%); and (v) Supernumerary Seats for Kashmiri Migrants (one seat). The said reservations, it is explicitly acknowledged were being provided for pursuant to Clause 5 of Article 15 of the Constitution, which was inserted by Constitution (Ninety Third Amendment) Act, 2005, which became effective on 20-1-2006. Ordinance 30 of GGSIU also specifically left out educational institutions that are owned by minorities from being subject to the reservations policy enunciated by it.
14. In addition to the above, as is the norm in rest of the Country wherein educational institutions are subjected to the laws of the legislature with territorial jurisdiction in which such educational institutions are located, ACMS is also subject to the laws of the NCT of Delhi, the territorial jurisdiction in which ACMS is located. In particular the applicable laws would be as cited below. The preamble of Delhi Act 80 of 2007 states that it is: "An Act to provide for prohibition of capitation fee, regulation of Admission, fixation of non-exploitative fee, allotment of seats to Scheduled Castes, Scheduled Tribes and other socially and economically backward classes and other measures to ensure equity and excellence in professional education in the National Capital Territory of Delhi and for matters connected therewith or incidental thereto". Section 2 of Delhi Act 80 of 2007 provides that:
"The provisions of this Act shall apply to - (a) Unaided institutions affiliated to a University imparting education in degree, diploma and certificate courses." Section 12 of Delhi Act 80 of 2007 provides that: "Allocation and Reservation of Seats: (1) In every institution, except the minority institution - (a) subject to the provisions of this Act; ten percent of the total seats in an unaided institution shall be allocated as management seats; (b) eighty five percent of the total seats, except the management seats, shall be allocated for Delhi students and the remaining fifteen percent seats for the outside Delhi students or such other allocation as the Government may make by notification in the official Gazette, direct; (c) supernumerary seats for non-resident Indians and any other category shall be as may be prescribed. (2)
In the seats mentioned in sub-section (1), an institution shall reserve- (a) seventeen percent seats for the candidate belonging to the Scheduled Castes category, one percent seats for the candidates belonging to the Scheduled Tribes category and such percentage of seats, for any other category including other Backward Classes as may be prescribed; (b) for seats not mentioned as allocated for Delhi students in sub-section (1), fifteen percent seats for candidates belonging to the Scheduled Caste category, seven and a half percent seats for the candidates belonging to the Scheduled Tribes category and such percentage of seats, for any other category as may be prescribed. (c) Subject to clause (a) and clause (b) above, three percent seats for persons with disabilities as provided in the Persons with Disabilities (Equal Opportunities Protection of Rights and Full Participation) Act, 1995 (1 of 1996) and such percentage of seats for the wards of defence personnel an any other category, as may be prescribed."
15. Further, Delhi Act 80 of 2007 also provides in Section 13 that all institutions "shall, subject to the provisions of this Act, make admission through a common entrance test to be conducted by the designated agency, in such manner, as may be prescribed", and in Section 14 that any "admission made in contravention of the provisions of this Act, or the rules made thereunder, shall be void."
16. However, ACMS based its admission policy on certain exemptions granted by the Government of Delhi exempting ACMS' admissions from the operation of provisions of Delhi Act 80 of 2007 with respect to allocations, as between Delhi and non-Delhi students, reservations as mandated in Sub-section (2) of Section 12, and the requirement that all admissions, in such reserved categories and with respect to remaining seats, be based on inter-se merit as determined by marks secured in the common entrance test. Such exemptions it is claimed have been granted in exercise of powers allegedly provided in Clause (b) of Sub-section (1) of Section 12 of the Delhi Act 80 of 2007. The said exemption specifically allowed ACMS to admit only wards of army personnel in accordance with ACMS's admission policy earlier noted herein. One of the peculiar aspects of the granted exemption seems to be that ACMS is mentioned to be the "Army" in the notification.
17. The admission policy of ACMS was challenged in a slew of writ petitions. The writ petitioners, students who otherwise would be eligible to be considered for admission to ACMS, and Indian Medical Association, challenged the above admission policy in writ petitions filed in the Delhi High Court inter-alia contending that: (1) TMA Pai Foundation v. State of Karnataka3, as further explained in P.A. Inamdar v. State of Maharashtra4, specifically mandated that all admissions to private unaided non-minority professional institutions be only based on merit, which is to be taken as inter-se ranking of all the students who have taken the common entrance test; (2) even according to the rules and regulations of GGSIU or the Delhi Act 80 of 2007, they would have secured an admission in ACMS if it had followed the principle of inter-se ranking, based on marks secured in the common entrance test, of all the students applying to ACMS if ACMS had not proscribed all non-wards of army personnel from applying; and (3) in fact ACMS is an aided educational institution, in as much as it has received massive aid from the State, in the form of expensive land and access to Army Base Hospital in Delhi to meet the curricular requirements of clinical training in a general hospital that is required by every medical college, per regulations of the Medical Council of India.
18. In this regard, the defence of ACMS, and its parent society, AWES, in the High Court has been that the exemptions granted to it by the 3 (2002) 8 SCC 481 4 (2005) 6 SCC 537 Government of Delhi were lawful, and hence they were well within the law in admitting students only from the wards of army personnel as identified by its admission policy. Further ACMS, and AWES, also claim that in any event the ratio of TMA Pai, as further explained by P.A. Inamdar, is that, contrary to what the writ petitioners were claiming, they have an unfettered right, under Article 19(1)(g), to choose its own pre-defined "source" of students.
Further, ACMS and AWES claim that in as much as such a choice is not a "reservation" per se, but only choice of "source" as rightly recognized by TMA Pai (supra), and P.A. Inamdar (supra), and further because such a source is only being delineated on the basis of occupation and not on the basis of religion, race, caste, sex or place of birth or any of them, and inter-se ranking within the "source" is based on qualifying marks in the common entrance test, and the admission policy is otherwise transparent, fair and non-exploitative the admission policy of ACMS ought to be upheld. In addition, it is also submitted that in as much as wards of army personnel suffer educational disadvantages, in comparison with the civilian population, and this affects the morale of army personnel, it would be in the national interest to allow ACMS and AWES to effectuate such admissions.
Further, it is also claimed that such a right has been recognized previously by the courts in India. Further, with respect to it being an unaided educational institution, it was argued that ACMS is run purely out of regimental funds that have been held to be private funds, and 19 not belonging to the Indian Army. Moreover, it is also claimed that the lease granted to it by the Army and the Ministry of Defense, in whose possession the public land, was for an initial period of thirty years, extendable to ninety nine years, to which effect the Ministry of Defense has "in principle" agreed to. Moreover, the access to Base Hospital of the Army in NCT of Delhi was only for a temporary period, and that an exclusive hospital for ACMS would soon be built. To this extent it was submitted that ACMS is not an "aided institution" under Delhi Act 80 of 2007 as its day to day funds are met through fees and regimental funds.
Further, it was also submitted that MCI has accepted the temporary arrangements with respect to hospital facilities, and has granted a conditional permission, which could be revoked if ACMS fails to meet the requirement of having its own hospital as required by regulations.
19. It appears that neither the writ petitioners nor ACMS and AWES sought to challenge the Constitutional validity of Delhi Act 80 of 2007 or of Ordinance 30 of GGSIU. It would appear that both parties proceeded under the assumption that Delhi Act 80 of 2007 and Ordinance 30 of GGSIU would be applicable but for exemptions granted by Government of Delhi. This train of thought seems to have also affected the decisions of the learned Single Judge and the Division Bench of the High Court of Delhi, which decisions we broadly summarise below.
The learned single judge found that the claimed power to exempt, by the Government of Delhi, under clause (b) of Sub-section (1) of Section 12 of Delhi Act 80 of 2007 to be applicable as regards only the 15% of seats remaining after the seats allocated to management quota. Thereupon, using various rationale, including the judgments of this Court in TMA Pai, P.A. Inamdar, and Islamic Academy of Education v State of Karnataka5, engaged in an astonishing sequence of logic that twisted and turned, and finally found that 79% of the seats could be filled by wards of Army personnel, and the remaining 21% by students belonging to the general category. The legislatively mandated allotment of seats for various reserved categories, including but not limited to Scheduled Castes and Scheduled Tribes, was completely ignored.
On appeal by both sides, the Division Bench embarked upon a different mode of reasoning. In the first instance it held that the enactment of Delhi Act 80 of 2007, implies that Ordinance 30 of GGSIU has lost its relevance. Further, analyzing Section 12 of Delhi Act 80 of 2007, the Division Bench found that there is nothing in it that prohibits ACMS and AWES to admit only wards of army personnel in all its seats, the Division Bench upheld the admission policy of ACMS. In this regard, the Division Bench also over-ruled the finding of learned Single Judge that the ratio of 5 (2003) 6 SCC 697 21 TMA Pai (supra)as explained in P.A. Inamdar(supra), implied that ACMS needs to admit a "sprinkling" of students from the general category. It is against the judgment of the Division Bench that appeals by way of special leave petitions have been filed. III The Submissions of the Appellants:
20. The learned Counsel for Appellants, Dr. Aman Hingorani, submitted that ACMS is not an unaided institution, and further it is also posited that ACMS and its parent society be construed to be an "instrumentality of the State" under Article 12. To this effect the following facts were pointed out: (i) that a little over 25 acres extent of expensive land has been given on lease by Ministry of Defence, Union of India, in the Cantonment of Delhi; access has been provided to the Base Hospital; and further that affairs of AWES and of ACMS are substantially and wholly managed by regular officers of the Indian Army and headed by the Chief of Army Staff; and (ii) that regulations of Medical Council of India ("MCI") do not permit grant of permission for setting up of medical colleges unless the Society setting up such a college owns such land and has its own hospital of requisite number of beds, and further that the permission was granted by MCI on the ground 22 that ACMS was in fact a governmental entity.
It was contended that in such an event, the admissions to ACMS ought to be on the same principles followed by the Armed Forces Medical College, Pune. It is also contended that even if ACMS be deemed to not be an instrumentality of the State, it could not be construed as an unaided institution, on account of the massive aid by Ministry of Defence, merely because its day to day expenses are taken care of by fees from students and regimental funds. The implication pressed by Dr. Hingorani was that, in such a case Delhi Act 80 of 2007 would not be applicable at all, as it is intended to be applicable to unaided private professional institutions, and furthermore the exemptions granted by the Government of Delhi from the operation of Delhi Act 80 of 2007, and relied on by ACMS and AWES, in making the admissions in the manner it has would also not be applicable. The applicable law, consequently, would be Ordinance 30 of GGSIU, which provides that an upper limit on reservations to be 5% for wards of defense personnel.
21. The learned Counsel for the Appellants also contended that, even if ACMS were deemed to be both a private and an unaided professional institution, the exemption granted by Delhi Government in allowing ACMS to admit only wards of Army personnel to 100% of its seats is ultra vires. In this regard it was pointed out that sub-section (2) of Section 12 of Delhi Act 80 of 2007 vide clause (a) provides for specified reservations for Scheduled Castes and Scheduled Tribes, and further, through rules enacted pursuant to Section 23(g), the Government of Delhi has fixed the percentage of reservations for wards of Defence personnel, as enabled by clause (c) of Sub-section (2) of Section 12, at 5%.
It was contended that there is no provision in Delhi Act 80 of 2007 that allows Government of Delhi to grant the exemption from the operation of the requirement of merit based admissions, i.e., ranking based on marks secured in the common entrance test, from within the entire class of students who have qualified in the common entrance test and from the operation of the reservations as provided therein. Further, it was also pointed out that the power being claimed, vide clause (b) of Sub-section 1 of Section 12 of Delhi Act 80 of 2007, by Government of Delhi to grant such an exemption is only the power to vary the percentage of allocable seats as between Delhi and non-Delhi students, and not to allocate all the seats in ACMS to wards of Army personnel. Moreover, it was also contended that in as much as private unaided educational institutions are essentially rendering services that the State ought to be rendering, and wherein such services are "public services," admitting only wards of Army personnel in all the seats in ACMS would be a violation of Article 14 and Article 15.
22. In this regard, it was also argued by Dr. Hingorani that even reservations cannot be to the extent of 100%, in as much as such 24 reservations would amount to a violation of Article 14, and in any event any reservations with respect of constitutionally permissible classes would need statutory or executive provision. In the event, the permission granted by Government of Delhi to allow ACMS to admit only wards of Army personnel amounts to a super-reservation and violates Article 14.
23. It was also argued by the learned Counsel that the grant of permission to ACMS, to admit only wards of Army personnel, without regard to the claim of those students who have secured more marks would be a violation of the ratio of TMA Pai, as explained in Islamic Academy, and P.A. Inamdar. The learned counsel submitted that the Constitution Bench in Islamic Academy, in the course of interpreting Para 68 of the TMA Pai judgment, held that the percentage of seats that the management of an educational institution can fill up, could never be 100%. In this regard, it was also contended that this Court, in P.A. Inamdar, was only trying to ascertain whether, after TMA Pai, the State could impose its own reservation policy on private unaided professional colleges.
It was submitted by the learned Counsel, that while P.A. Inamdar has held that imposition of reservations by the State would be an unreasonable restriction when imposed on non-minority private unaided educational institutions, it cannot be said that P.A. Inamdar stands for the proposition that private non-minority private unaided professional educational institutions could select students from a pre-defined group from within the entire general category, thereby disregarding the students in the general category who have received higher marks. Apart from that, the holding in Islamic Academy that a quota that can be filled up by the management at its sole discretion could never be to the extent of 100%, has not been overruled by P.A. Inamdar. Consequently, it must be taken that the ratio in Islamic Academy holds the field with regard to such questions.
It was also further contended that this Court in P.A. Inamdar has held that professional colleges stand on an entirely different footing, and that the requirement that admissions strictly be on the basis of merit, as determined by marks in a common entrance test, in fact takes precedence over other considerations including the rights of managements of professional unaided non-minority colleges to select students according to their choice.
24. The learned Counsel while conceding that wards of Army personnel may form a constitutionally permissible class entitled to horizontal reservations under Article 15(1); nevertheless, relying on D.N. Chanchala v. State of Mysore6 it was argued that such a horizontal reservation ought to be kept at the least level possible, so that it does not whittle competitive selection in the general category completely. In this regard it was pointed out that horizontal reservations, even for 18.49 million disabled, forming 6 (1971) 2 SCC 293 26 1.8% of India's population, is only 3%. In any event, wards of Army personnel already enjoy a wide variety of preferential treatments, including reservations across the country, as a part of reservations provided to wards of all Defence personnel.
In the instant case 5% reservations are provided for wards of Defence personnel, under Ordinance 30 of GGSIU, and also pursuant to the rules of Delhi Government, pursuant to Section 23(g) of Delhi Act 80 of 2007 and the power granted by the enabling provisions in clause (c) of Sub-section (2) of Section 12. To grant an exemption in favour of ACMS, in contravention of specific statutory provisions, and to the exclusion of all other constitutional claimants to special treatment, as also the claim of general students to equality, would violate the discipline imposed by Articles 14 and 15 of the Constitution. The Submissions of the Respondents:
25. Learned Senior Counsel, Mr. K.K. Venugopal, and Mr. Jaideep Gupta, appearing for the Respondents, dispute the contentions of the Appellants that ACMS is an instrumentality of the State, and also further dispute that ACMS is an aided institution. Pointing to the fact that AWES is a charitable trust, set up purely with the object of promoting the welfare of wards of Army personnel, and the fact that only regimental funds are used in day to day affairs of ACMS, it was contended that AWES and ACMS ought not to be treated as an instrumentality of the State. It was also further contended that in both the decisions of the High Courts, by the learned Single Judge and the Division Bench, ACMS has been found to be an unaided educational institution, per the definition of such institutions in Delhi Act 80 of 2007, and hence ought not to be disturbed. Further, it was also submitted that ACMS conducted its admissions on the basis of exemptions granted by Government of Delhi, and as such meet the statutory requirements also.
26. Learned Senior Counsel, Mr. K.K. Venugopal submitted that admissions being effectuated by ACMS ought to be recognized as being based purely on inter-se merit i.e., marks received in common entrance test by wards of Army personnel and that no reservations of seats were being made on the basis of caste, race, religion, residence/domicile, backwardness or any such criteria. Tracing the history of the law as applicable to reservations and admissions to colleges, in case law from Unnikrishnan J.P. v. State of A.P.7, through TMA Pai, Islamic Academy, to finally P.A. Inamdar, he submitted that P.A. Inamdar holds the field, in as much as it over-ruled parts of Islamic Academy, and explained the eleven judge bench decision of this court in TMA Pai. His main contention was that this court in P.A. Inamdar has found that a private unaided non-minority educational institution is entitled, under sub-clause (g) of clause (1) of Article 19, to the same rights as a private unaided minority institution under Clause (1) of Article 30: i.e., in as much as minorities have the right 7 (1993) 1 SCC 645 to choose students entirely from a "source" of their choice, non-minorities should also have the same right to be able to pre-define a source from the general pool and admit qualified students only from such a pre-defined source.
In particular he relied on paras 127 and 137 of P.A. Inamdar. Specifically he relied on the following observation in para 127: "Nowhere in Pai Foundation either in the majority or in the minority opinion, have we found any justification for imposing seat-sharing quota by the State on unaided private professional educational institutions and reservation policy of the State or State quota or management seats." The learned Senior Counsel submitted that according to P.A. Inamdar only a consensual agreement can be arrived at between private unaided professional institutions regarding seat sharing, and the State could not unilaterally demand any such sharing. In this regard, the learned Senior Counsel was equating the demand by the Appellants that the State should permit admissions to professional unaided non-minority professional colleges only on the basis of marks secured in the common entrance test to a demand by the State of a "quota" of seats by the State for imposition of reservations or for that matter any other purpose. Further, given the issues faced by Army personnel, it was submitted that a larger public interest is involved in the armed forces personnel having comfort and security that their wards can get a fair opportunity for securing admissions into professional colleges.
27. The learned Senior Counsel, Mr. Jaideep Gupta contended that the right to set up educational institutions, whether minority or non-minority, pursuant to sub-clause (g) of clause (1) of Article 19, includes the right to admit students of their choice from a "source" within the general pool, so long as the procedure adopted is transparent, fair and non-exploitative. As far as merit is concerned, it would then be that so long as inter se merit within that "source" is concerned, the State ought not to have the power to insist that as far as non-minority educational institutions only select students from the entire general pool on the basis of marks secured on the common entrance test. He also contended that the admission policy of ACMS, in choosing to admit eligible wards of Army personnel in all of its seats, is an instance of selecting a "source" and not a reservation at all.
To this extent he also submitted that where a particular class is a source of admission, the principles relating to reservations would not apply to the same where, the class itself is well defined and rational. The learned Senior Counsel, Mr. Jaideep Gupta submitted that this Court in P.A. Inamdar, interpreting TMA Pai, has held that the essential ingredients of freedom of management of private non-minority unaided educational institutions include the right to admit students and recruit staff, and determine the quantum of fee to be charged, and that they cannot be regulated, either with respect to minority or non-minority educational institutions.
In 30 addition he also submitted that Clause (5) of Article 15, inserted by the 93rd Constitutional (Amendment) Act, 2005, in so far that it enables special provisions by the State with respect to admission of Scheduled Castes, Scheduled Tribes and Socially and Educationally Backward Classes in private non-minority unaided institutions, would be unconstitutional and violative of the basic structure of the Constitution. In particular he relied on the sole opinion of Bhandari J., in Ashoka Kumar Thakur v. Union of India8 that enabling provisions of clause (5) of Article 15, in so far as they relate to private non-minority unaided educational institutions, to be violative of basic structure of the Constitution, and argued that we adopt the same rationale and conclusions. IV
28. Based on the facts, the decision of the High Court, the applicable laws, the affidavits of the Medical Council of India & Government of Delhi and the submissions made before us by the Counsel appearing for the parties, we now turn to frame the questions to be answered. It would appear that there are two sets of issues that need to be addressed. The first would be a preliminary set of issues, wherein the question of whether ACMS is an instrumentality of the State or an aided institution or an unaided institution would have to be answered, so that we could then determine which laws would be applicable. As argued by the learned 8 (2008) 6 SCC 1 31 Counsel for Appellants, the Delhi Act 80 of 2007 would be applicable with respect to the matters on hand, if ACMS is an unaided non-minority educational institution. If that be the status of ACMS, then we'd have to next consider whether the exemptions granted by the Delhi Government are valid.
29. It is also noted that at no stage of the proceedings, whether before the High Court or in this court, have the Respondents challenged the constitutional validity of Delhi Act 80 of 2007, and specifically the allocations and reservations as mandated by Section 12 therein. The said Act was enacted, after the 93rd Constitutional (Amendment) Act, 2005 inserted clause (5) of Article 15 into the Constitution. Both the Title and the Preamble of Delhi Act 80 of 2007 specifically state that it was an Act to ensure equity for Scheduled Caste, Scheduled Tribes and other weaker segments of the population. Consequently, clause (5) of Article 15's enabling provisions with respect to making "special provisions" in regard to admission of Scheduled Castes, Scheduled Tribes, and Socially and Educationally Backward Classes to private unaided non-minority educational institutions would extend a protective umbrella with regard to allocations and reservations in Section 12 of Delhi Act 80 of 2007. If we find below that it is Delhi Act 80 of 2007 which is applicable, and further find that the exemptions granted by Delhi Government to be invalid, then 32 provisions of Delhi Act 80 of 2007 with respect to reservations would have to apply with the full force that they were intended to be.
30. Only thereafter, would it be logical to proceed to examine whether the interpretations urged by the Appellants, or the Respondents, with regard to decisions of this Court in TMA Pai, P.A. Inamdar, and Islamic Academy, that would apply with respect to seats that are unaffected by reservations specified in sub-section (2) of Section 12 and allocation of seats, as between Delhi and non-Delhi students, specified in sub-section (1) of Section 12 of the said Act. It is to be noted that the said Act specifically mandates that all admissions to ACMS would have to be made in accordance with merit of students, based on marks secured in the common entrance test.
With respect to those students covered by various categories such as Scheduled Castes, Scheduled Tribes and other constitutionally permissible classes, as delineated in Sub-section (2) of Section 12, and as applicable with respect to categories described in Sub- section (1) of Section 12, the rule of inter-se merit, based on marks secured in common entrance test by students falling into each category, would apply. That would also mean, then, that with respect to seats not covered by provisions of Sub-section (2) of Section 12, they would have to be filled in accordance with rule of merit based on marks secured by general category of students not covered by Sub-section (2) of Section 12. If however, the interpretation of the ratio of decision by this Court in TMA Pai, as further explained in P.A. Inamdar pressed by the learned Senior Counsel appearing for the Respondents turns out to be the correct one, then we would have to hold that ACMS has the right to fill all of the seats in ACMS not covered by sub-section (2) of Section 12 with wards of Army personnel who have qualified in the appropriate common entrance test.
31. In light of the above, we frame the following specific questions: Preliminary: 1. Is ACMS an instrumentality of the State or an aided institution? 2. If the answer to Question 1 above is no, then whether the exemptions granted by Delhi Government are valid? Substantial: 3. If the answers to both questions 1 and 2 above are no, whether ACMS can admit only wards of Army personnel to the seats not covered by reservations mandated by Delhi Act 80 of 2007, without any regard to the merit of other Delhi or non-Delhi students who may have secured higher marks in the appropriate common entrance test? V Analysis Preliminary Questions: Question 1:
32. Is ACMS an instrumentality of the State or an aided institution? We note that with respect to the issues of whether ACMS is an instrumentality of the State, and whether ACMS is an aided or unaided institution, that at both stages of proceedings in the High Court, the conclusion reached was that Respondents were neither an instrumentality of the State, nor could ACMS be held to be an aided educational institution. Such determinations always present issues of fact and of law. We are disinclined to over-rule the findings of the High Court in this regard, which also corresponds to the decisions of the learned Single Judge. We are also disinclined to go into the said issues primarily because we do not believe that the fact that ACMS is deemed to be an unaided non-minority educational institution would have a bearing on the relief being sought by the Appellants.
33. In this light, we also opine that the Division Bench was correct in holding that Ordinance 30 of GGSIU to be inapplicable in this case on account of enactment of Delhi Act 80 of 2007. This is so, because Delhi Act 80 of 2007 is a later enactment, much more general, containing a complete code covering the entire terrain of admissions of students to professional unaided non-minority institutions affiliated to all universities in NCT of Delhi, including GGSIU, with specific provisions therein regarding allocation of seats between Delhi and non-Delhi students, and reservations applicable in terms of those students falling within constitutionally permissible classes. However, the expression used by the Division Bench, that Ordinance 30 has "lost its relevance": to the extent that it may suggest a loss of general relevance is not correct.
Considerable care ought to be exercised in delineating the applicability of unrepealed sections of a previous statute, even if they conflict with the provisions of a later statute with respect to some specific terrain of activities. After all, Ordinance 30 of GGSIU may be applicable with respect to many other situations, not involving the terrain covered by Delhi Act 80 of 2007. In this regard it would be appropriate to cite the words of Mudholkar J., judgment in Municipal Council, Palai v. T.J. Joseph9: "It is undoubtedly true that the legislature can exercise the power of repeal by implication. But it is equally well-settled that there is a presumption against an implied repeal. Upon the assumption that the legislation enacts laws with complete knowledge of all existing laws pertaining to the same subject the failure to add a repealing clause indicates that the intent was not to repeal existing legislation. This 9 1963 AIR 1561 = (1964) 2 SCR 87 36 presumption will be rebutted if the provisions of the new Act are so inconsistent with the old ones that the two cannot stand together." Question 2:
34. In light of the fact that we have decided to proceed on the basis that ACMS is a private non-minority unaided professional institution, we now turn to the issue of the validity of the exemptions granted by Delhi Government from the operation of Delhi Act 80 of 2007. By permitting ACMS to allocate all its seats to wards of Army personnel, albeit ones who had taken and qualified the common entrance test, the Delhi Government effectively suspended the operation of the provisions of the Act with regard to selection of students solely on merit from the general category, and also the provisions that mandated allotment and reservation of seats to various constitutionally permissible classes, including but not limited to Scheduled Classes and Scheduled Tribes.
35. At the very beginning of this portion of this judgment, we wish to make an observation based on the text of both the Cabinet Decision, and the Notification of Government of Delhi, on which reliance is placed by ACMS and AWES to admit only students of Army personnel. The texts state that an approval was being granted, in the case of Cabinet Decision, and that permission was being granted, in the case of the Notifications, that hundred percent seats in ACMS may be allocated for "admission towards of Army personnel" as per the policy "followed by" the Indian Army. First question that arises is as to how wards of Army personnel could be deemed to be "Army personnel"? Did ACMS and AWES apply for permission of admittance of personnel of the Indian Army and then turn around and use the exemption granted to admit "wards of Army personnel"? Or is it the case that the Government of Delhi did not apply its mind at all, or that applied its mind in the absence of relevant facts? We are perturbed by the degree of casualness, evident from above, with which exemptions from the operation of vital aspects of a law enacted by the legislature seemed to have been undertaken. In any event, we will proceed on the assumption that the Government of Delhi intended that the exemption be granted with respect to "wards of Army personnel" as opposed to "Army personnel" and examine whether the exemptions granted are valid or not.
36. We find that the High Court has erred in its interpretation of Sub- section (1) of Section 12, and indeed the very thrust of Delhi Act 80 of 2007. One of the cardinal principles of interpretation is to look for the purpose that the Act seeks to achieve, and in this regard what is also crucial is the relationship of each clause or sub-clause to the other. The strict lexicographical arrangement of sub-clauses, one after the other, 38 ought not to be taken to mean that the one following is of lesser importance.
37. Reading Section 12 of Delhi Act of 2007 synoptically, we find that Sub-section (2) of Section 12 pervades the entire space of how seats are to be allocated. In fact, the preamble to the Act, states that it is being enacted to provide for "allotment" of seats to "Scheduled Castes, Scheduled Tribes ........ and other measures to ensure equity and excellence in professional education in the National Capital Territory of Delhi" (emph. Supp.). Consequently, it must be read that sub-section (2) of Section 12 is one of the primary sections of the Act and that it would act upon the provisions of Sub-section (1) of Section 12. Sub-section (2) of Section 12 provides that with respect to seats in sub-section (1) of Section 12, an institution shall reserve as provided for in sub-sections (a), (b) and (c) of sub-section (2) of Section 12 that follow. Clearly the phrase "[I]
In the seats mentioned in sub-section (1)" at the beginning of sub-section (2) of Section 12 reveals the intent of the legislature that the specific reservations provided for Scheduled Castes and Scheduled Tribes and other provisions that may be made with respect to other weaker segments and other permissible categories of classes, shall be applied with respect to each and every category of seats identified in sub-section (1) of Section 12. Looking at sub-section (2) of Section 12 closely, this would mean that 39 not only are reservation of seats, for instance with respect to Scheduled Castes and Scheduled Tribes, to be made with respect to Delhi students, non-Delhi students, and also with respect to all students admitted under the management quota.
38. Instead of appreciating the primordial importance of sub-section (2) of Section 12 of the Delhi Act 80 of 2007, the Division Bench finds that there is "nothing in Section 12 of the Delhi Act 80 of 2007 which prohibits the appellants from making 100% allocation in favour of army/ex-army personnel and war widows". If indeed that be so, and ACMS admits all wards of army personnel from outside Delhi, then what exactly is the status of reservations that have been specifically mandated in sub-section (2) of Section 12 of the Act by the legislature of NCT of Delhi with respect to Scheduled Castes and Scheduled Tribes and any other Backward Classes and other constitutionally permissible classes?
Logically in accordance with the interpretation of the Division Bench, the benefits intended to be provided to students belonging to various weaker segments and thereby achieve greater social welfare through achievement of broader goals of social justice by the legislature would be obliterated. This would be tantamount to grant of powers to set at nought a policy specifically enacted by the legislature, thereby turning on its head, as it were, every known principle of our constitutional law.
39. Furthermore, by permitting ACMS to admit only students of wards of army personnel, notwithstanding the fact there could be others who have taken the common entrance test, and have secured more marks than the wards of Army personnel, the exemptions granted by Delhi Government also set at naught the legislative intent to ensure excellence by mandating that all admissions be made on the basis of inter-se merit within each of the categories of students. The general category would comprise of all students who have taken the common entrance test, and other wise satisfy the conditions of sub-section (1) of Section 12 of the Delhi Act 80 of 2007, after the seats reserved pursuant to sub-section (2) of Section 12 are reserved i.e., allocated for the described constitutionally permissible categories therein.
The said Act clearly specifies that its objective is to achieve excellence, and one of the methods specified to achieve the same is of admitting students on the basis of inter-se merit in each of the categories specified in Section 12. The grant of permission to ACMS to admit students who may have scored lower marks than others, both within the general category and also in the reserved categories, results in defeat of the aims, objects and purposes of the Act, and the entire fabric and scheme of the Act gets frustrated. Nowhere in the Act do we find any powers granted to the government to not implement the Act. Nor does the Act state anywhere that the Government of Delhi could suspend the implementation of the provisions with respect to reservations for weaker segments, and also simultaneously give the merit of the students scoring higher marks than wards of Army personnel a go by. To put it pithily, there is no power conferred on Government of Delhi to grant any exemption in favour of any institution from the operation of any of the provisions of the Act.
40. The Government of Delhi in its affidavit claims that its powers to provide such exemptions also flow from Article 162 of the Constitution. In relevant part Article 162 states "[S]ubject to the provisions of this Constitution the executive power of a State shall extend to the matters to which the Legislature of the State has power to make law." We simply fail to see how a Government that claims to be functioning in accordance with the Constitution of India, in which democracy has been deemed to be a basic feature of the Constitution, can claim the power under Article 162 to set at nought a declared, specified and mandated policy legislated by the legislature. In a constitutional democracy, with a parliamentary form of government, the executive may initiate a policy in a legislative bill to be enacted by the legislature or in the absence of legislative action in a particular field, enact policy that ma
