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Dr. Sanjana & Others v/s The State of Maharashtra, Through its Secretary, Department of Medical Education and Drugs, Mantralaya & Others

    Writ Petition Nos. 2790 of 2019, 2780 of 2019 & 2871 of 2019

    Decided On, 02 May 2019

    At, In the High Court of Bombay at Nagpur

    By, THE HONOURABLE MR. JUSTICE SUNIL B. SHUKRE & THE HONOURABLE MRS. JUSTICE PUSHPA V. GANEDIWALA

    For the Petitioners: S.P. Dharmadhikari, Senior Advocate with Ashwin Deshpande, Advocate. For the Respondents: R1 & R3, Sunil Manohar, Senior Advocate with K.S. Joshi, Addl. Government Pleader, Sumant Depujari, Government Pleader, R2, N.S. Khubalkar, Advocate. For the Intervenor: Shriram Pingale, Ashutosh C. Dharmadhikari, Charuhas Dharmadhikari, Advocates.



Judgment Text

Oral Judgment: (Sunil B. Shukre, J.)

1. Heard.

2. All intervention applications are allowed.

3. Rule. Rule made returnable forthwith. Heard finally by consent.

4. The petitioners are the students of Medicine, having done their graduation in Medical Sciences such as Bachelor of Dental Surgery and Bachelor of Medicine. They now aspire to pursue higher education in the field in which they have obtained their degrees. Process for admission to higher Post Graduation Courses in MDS, MD, MS and Diploma in Medical Sciences for the year 2019 started as per the information bulletins entitled “National Eligibility-cum-Entrance Test for admission to MDS Courses, 2019” and “National Eligibility-cum-Entrance Test, NEET-PG (for admission to MD/MS/PG Diploma Courses2019 session with effect from 16th October, 2018 and 2nd November, 2018 respectively as these were the dates when online submission of application forms began. The National Eligibility-cum-Entrance Test hereinafter shall be called the “NEET” for the sake of convenience. The dates of declaration of the NEET results were of 15th January, 2019 and 31st January 2019 respectively. The petitioners applied for the NEET and took the tests. The results of the examinations were also published on the scheduled dates and thereafter as per the notification issued by respondent No.2 on 20.2.2019, the process regarding online registration and submission of information by the candidates for preparation of provisional merit list for State quota seats began on 25.2.2019, and the window for online registration was closed on 5.3.2019. The petitioners applied for admission to the available seats, with a positive hope kindled by overall rankings secured by them at the NEET. By that time, the respondent No.2 had also issued a provisional seat matrix in January, 2019.

5. Meanwhile, a notification came to be issued by the respondent No.1 on 8.3.2019. By this notification, a general declaration was made regarding reservation of 16% seats for socially and educationally backward classes including Maratha community in the educational institutions in the State of Maharashtra in terms of provisions of the Maharashtra State Reservation (Of Seats For Admission In Educational Institutions In The State And For Appointments In The Public Services And Posts Under The State) For Socially And Educationally Backward Classes (SEBC) Act, 2018 (hereinafter called as "SEBC Act, 2018").

6. The notification had its impact on the ongoing admission process and the respondent Nos.2 and 3, in order to give effect to the notification, issued a revised provisional seat matrix in late March, 2019. The revised seat matrix provided for reservations for different categories including the category of SEBC, with which we are concerned here. Out of 383 seats available for the State of Maharashtra, 61 seats, in the revised seat matrix, were reserved for SEBC candidates and this number matched with figure of 16% reservation to be provided for such class under the SEBC Act, 2018. The petitioners hopes, bright and beamy hitherto, became dreary and dull. The petitioners still believed that all was not lost for them and according to them, the provisions of Section 16 to SEBC Act, 2018 would what support their rights and improve their chances in the present process.

7. It is the contention of the petitioners that the provisions of SEBC Act, 2018 do not apply in a case in which the admission process has already been initiated before commencement of the SEBC Act, 2018 and in such a case the admission process has to be dealt with in accordance with the existing provisions of law and the Government orders as they stood before such commencement. They point out that SEBC Act, 2018 came into force w.e.f. 30th November, 2018 and whereas in the present case the admission process, in terms of the Information bulletin for NEET 2019, began on 16th October, 2018 and 2nd November 2018 for MDS and MD/MS/PG courses respectively. They also submit that till the revised provisional seat matrix was published, it was on 27.3.2019 in the late hours of the night, the petitioners did not know that 16% reservation for the category of SEBC was going to be provided and applied retrospectively even to the current admission process. They submit that such a step taken by the respondents is patently against the provisions of law and not in accordance with the procedure established by law and, therefore, it is violative of Section 16 of the SEBC Act, 2018 as well as Article 21 of the Constitution of India.

8. The petitions are strongly opposed by the respondents. According to the respondents, the actual admission process started w.e.f. 25.2.2019 when State quota seats became available and this date, was much after the date on which the SEBC Act, 2018 came into force. The respondents submit that even the information brochure issued for the guidance of the students and giving a time table regarding online registration, submission of application forms, declaration of the list of the selected candidates, and dates for joining at respective colleges, notified that as per the Government letter dated 14th February, 2019, reservation of SEBC, in terms of the SEBC Act, 2018 would be implemented on receipt of the directions from the State Government and, therefore, seat distribution would be made available in due course. It is submitted by the respondent that the admission process in real sense of the term began only after commencement of the SEBC Act, 2018 and in any case, the intention of the Government to apply the provisions of this Act to the present admission process having been made clear in February, 2019 itself, the petitioner ought to have approached this Court much earlier. The respondents, therefore, submit that there is neither any violation of the provisions of SEBC Act, 2018 nor any breach of the constitutional mandate of Article 21 of the Constitution of India inasmuch as this petition is not maintainable for the latches.

9. Shri S.P. Dharmadhikari, learned Senior Advocate for the petitioners submits that the SEBC Act, 2018 came into force w.e.f. 30th November, 2018 and it provides for 16% reservation for SEBC in respect of admission to various seats available in the educational institutions, Government or private and aided or unaided, other than minority educational institutions. He points out similar percentage of reservation is provided for filling up the posts in public services and under the State. But, he further submits that the provision of such reservation has its applicability prospectively and not retrospectively so as not to disturb the ongoing admission or selection process. He further submits that an unequivocal legislative intention in this regard is to be found in Section 16 of the SEBC Act, 2018. According to him, so far as admissions in educational institutions are concerned, the provisions of this Act do not apply where the admission process has already been initiated before commencement of the SEBC Act, 2018 and the admission process is allowed to be governed by the provisions of the law and the Government orders prevailing just before the commencement of this Act. He further submits that the meaning of admission process has been clarified by the explanation incorporated in Section 16 and it removes all ambiguity in that regard.

10. Shri Dharmadhikari, learned Senior Advocate further submits that the need to interpret the provisions of law would arise only when there is ambiguity left or some doubt is created in understanding them. He further submits that in understating a provision of law, what should be done, when the words are clear, and plain, is to give to the words that meaning which they convey plainly, irrespective of the consequences. He also submits that it is equally well settled law that while interpreting a statute, the effort should be to give effect to each and every word used by the legislature presuming that the legislature inserted every part of the provision and every word for a purpose and if any such construction is made as would attribute redundancy to the legislative intention, such construction must be abandoned, for it would amount to changing the texture of the fabric, not permissible in law. According to him, the language of Section 16 is plain and clear and the clarity is further highlighted by the explanation given in the Section. He relies upon the case of Nathi Devi vs. Radha Devi Gupta, reported in (2005) 2 SCC 271.

11. Shri Dharmadhikari, learned Senior Advocate submits that the provision of Section 16 are to be understood in the light of these settled principles of law and when it is done, the only conclusion that is possible in the present case is that the admission process having begun much earlier before the commencement of the Act, it started w.e.f. 16th October, 2018 and 2nd November, 2018 for two courses respectively, no 16% reservation for SEBC candidates in seats for medical admissions in the State could have been made so far as the admission process 2019 is concerned.

12. There is a stiff resistance offered by the respondents to these submissions. Shri Sunil Manohar, learned Senior Advocate submits that the expression "admission process" used in Section 16(2) of the SEBC Act, 2018 is of wide import and even when it is considered in the light of the explanation given to it, the width of the expression does not constrict. According to him, any provision of law must be considered in the light of the object of the enactment, the context in which a particular provision is made and all facts and circumstances surrounding the provision especially when the provision under consideration is a transitory provision as is the case here. He submits that although plain and literal meaning of the words used in a provision are to be understood in the ordinary grammatical sense, it is well settled law that grammar cannot control the interpretation of the provision which has to be read in the context or otherwise there is a danger of the construction becoming urtralegalistic. He further submits that even though there could be a "literal approach" to make the interpretation of law, the better approach is the "purposive approach" by which, the Court has to seek legislative intent and not be carried away by a strict literal construction of the words. He further submits that every statute has to be construed in the context of its enactment and through the glasses of the legislature because the effort must be to match the textual interpretation with the contextual interpretation and when this is done, the clauses, the phrases and the words may take color and appear different than when the statute is viewed without the glasses of the context. He relies upon the case of Sidhharth Viyas and another vs. Ravi Nath Misra and others, reported in (2015) 2 SCC 701 and also the case of Seafort Court Estates Ltd. vs. Asher reported in [June 25, 1949] All England Law Reports Vol 2.

13. Shri Manohar, learned Senior Advocate further submits that Section 16 is a transitory provision, made for removing the difficulties which may arise while applying the SEBC Act, 2018 to current situations and in any case is going to be of no use after one year. He submits, the principle that applies to the interpretation of a transitory provision is that it has to be understood in the light of the facts and circumstances existing on the date on which, the new Act came into force. He relies upon the case of Milkfood Ltd. vs. GMC Ice Cream (P) Ltd., reported in (2004) 7 SCC 288. He points out that the enactment providing for 16% reservation for SEBC Act in public posts and for admissions in educational institutions was drafted in the year 2014 when two separate entrance tests, one for Central seats and, other for State seats, were there and it was never thought that later on only one examination would be prescribed. He further submits that initially an ordinance providing for such reservation was promulgated on 9.7.2014, and it was converted into an Act on 9.1.2015, but it was stayed by the High Court on 7.4.2015. He further submits that Section 18 of the SEBC Ordinance is identical to Section 16 of the SEBC Act, 2018 and looking through the glasses of the legislature we would know that the procedure that was contemplated by the State was the procedure in relation to an exercise initiated for filling up the medical seats or seats in educational institutions through the State quota. That meant according to learned Senior Advocate, the starting point of the procedure was the date from which the actual exercise for filling the State seats began and in this case, this date was 25th February 2019 and not the date of 27.3.2019 when revised provisional seat matrix was published. This date, according to the learned Senior Advocate, being after the date of the commencement of the SEBC Act, 2018 would show that the provisions of this Act do have application to the present process, not having been exempted by Section 16(2).

14. Shri Manohar, learned Senior Advocate further submits that in any case, the petitioners had a clear idea about the implementation of the SEBC Act, 2018 itself when information brochure regarding registration for admission was published by the respondent No.2. In this brochure a note was added that as per the Government letter dated 14th February, 2019, the reservations as per SEBC Act, 2018 and reservation for economical weaker sections will be implemented after directions from the State Government and, therefore, it was indicated that the seat distribution would be made available in due course. He also points out that the list of applicants was published on 6.3.2019 and it indicated seats reserved for SEBC candidates. He further submits that respondent No.3 issued provisional seat matrix on 14.1.2019 and it also indicated that seats under category of SEBC were reserved. He submits that the revised provisional seats matrix published on 27.3.2019 represented only one change effected by inclusion of the reservation for the category of economically weaker sections and nothing more. He also submits that the petitioners had an idea about the notification dated 8.3.2019 categorically stating that the reservation for SEBC would be applicable to medical seats available under the State quota. Even then, according to Senior Advocate, if the petitioners had any doubt, the petitioners ought to have approached respondent No.2 for removal of those doubts as a communication dated 16th February, 2019 posted on the web portal informed that a forum was available for the same. But, the petitioners just slept over their rights for all these days, may be months, and approached this Court belatedly and as such, as held in the case of Chandigarh Administration and another vs. Jasmine Kaur and others, reported in (2014) 10 SCC 521, the petitions deserve to be dismissed on the ground of latches. Learned Senior Advocate also submits that in any case even on merits, the petitions do not stand on sound footing and as such, the petitions are liable to be rejected.

15. Learned counsel for the remaining respondents and the intervenors have adopted the argument of learned Senior Advocate expressing their complete agreement with the propositions made by him.

16. In order to appreciate rival arguments it would be necessary for us to be clear on the principles of interpretation of statutory provisions that must be applied here to comprehend the legislative prohibition, given the diversity of the body of principles. These principles are to be found in the law laid down by the Hon'ble Apex Court in its various cases and in particular, the cases cited on behalf of both sides.

17. In Nathi Devi (supra), the Constitution Bench of the Hon'ble Supreme Court observed that interpretative function of the Court is to discover the true legislative intent and when the words are clear, plain and unambiguous, the Court must give through the words that meaning, irrespective of the consequences. It is stated that when the language is plain and clear, reasonably admitting of only one meaning, no question of construction of statute would arise, for the Act speaks for itself. It is also held that the construction which attributes redundancy to the legislation be not accepted except for compelling reasons, as for example, when there is a manifest drafting error. It is further held that if any ambiguity in the language is seen or the language used is capable of two interpretations, that interpretation which serves the object and purpose of the Act must be given effect to and only in such a case, the doctrine of purposive construction should be adopted. The observations of the Hon'ble Apex Court made in paragraphs 13 to 17 of this Case are enlightening and, therefore, they are reproduced as below :

13. The interpretative function of the Court is to discover the true legislative intent. It is trite that in interpreting a statute the Court must, if the words are clear, plain, unambiguous and reasonably susceptible to only one meaning, give to the words that meaning, irrespective of the consequences. Those words must be expounded in their natural and ordinary sense. When a language is plain and unambiguous and admits of only one meaning no question of construction of statute arises, for the Act speaks for itself. Courts are not concerned with the policy involved or that the results are injurious or otherwise, which may follow from giving effect to the language used. If the words used are capable of one construction only then it would not be open to the Courts to adopt any other hypothetical construction on the ground that such construction is more consistent with the alleged object and policy of the Act. In considering whether there is ambiguity, the court must look at the statute as a whole and consider the appropriateness of the meaning in a particular context avoiding absurdity and inconsistencies or unreasonableness which may render the statute unconstitutional.

14. It is equally well settled that in interpreting a statute, effort should be made to give effect to each and every word used by the legislature. The courts always presume that the legislature inserted every part thereof for a purpose and the legislative intention is that every part of the statute should have effect. A construction which attributes redundancy to the legislature will not be accepted except for compelling reasons such as obvious drafting errors. (See State of U.P. vs. Vijay Anand Maharaj (AIR 1963 SC 946 : (1963) 1 SCR 1) Rananjaya Singh vs. Baijnath Singh (AIR 1954 SC 749 : (1955) 1 SCR 671), Kanai Lal Sur vs. Paramnidhi Sadhukhan (AIR 1957 SC 907 : 1958 SCR 360), Nyadar Singh vs. Union of India ((1988) 4 SCC 170 : 1988 SCC (L&S) 934: (1988)8 ATC 226 : AIR 1988 SC 1979), J.K. Cotton Spg. and Wvg. Mills Co. Ltd. vs. State of U.P. (AIR 1961 SC 1170)
and Ghanshyamdas vs. CST (AIR 1964 SC 766 : (1964) 4 SCR 436).

15. It is well settled that literal interpretation should be given to a statute if the same does not lead to an absurdity.

16. In Nasiruddin vs. Sita Ram Agarwal (2003) 2 SCC 577) this Court stated the law in the following terms : (SCC P. 589, PARA 37)

"37. The court’s jurisdiction to interpret a statute can be invoked when the same is ambiguous. It is well known that in a given case the court can iron out the fabric but it cannot change the texture of the fabric. It cannot enlarge the scope of legislation or intention when the language of provision is plain and unambiguous. It cannot add or subtract words to a statute or read something into it which is not there. It cannot rewrite or recast legislation. It is also necessary to determine that there exists a presumption that the legislature has not used any superfluous words. It is well settled that the real intention of the legislation must be gathered from the language used. It may be true that use of the expression "shall or may" is not decisive for arriving at a finding as to whether statute is directory or mandatory. But the intention of the legislature must be found out from the scheme of the Act. It is also equally well settled that when negative words are used the courts will presume that the intention of the legislature was that the provisions should be mandatory in character."

17. Even if there exists some ambiguity in the language or the same is capable of two interpretations, it is trite the interpretation which serves the object and purport of the Act must be given effect to. In such a case the doctrine of purposive construction should be adopted. (See : Swedish Match AB vs. Securities & Exchange Board of India. (2004) 11 SCC 641 : (2004) 7 Scale 158).

18. In the case of Seafort Court Estates, Ltd. (supra), it is held that a judge entrusted with the task of interpreting a statute must not feel fettered by the supposed real and literal construction and must not express his helplessness while blaming it all on the draftsman. It is observed that the statutes are made by humans and, therefore, are susceptible to ordinary human errors, for no human could be seen as gifted with divine prescience and perfect clarity of vision, enabling a draftsman to foresee possible difficulties and contingencies and making a clear provision to deal with them in the statute itself. It is further observed that it is here that when a defect appears, the judge must address the issue by finding the intention of the Parliament which he must do, not only from the language of the statute but, also from a consideration of the social conditions which gave rise to it and then he must supplement the written word so as to give “force and life” to the intention of the legislation. For this purpose, it is further laid down that the Judge must put himself in the position of the makers of the Act and imagine as to what they would have done to solve the problem and invariably a Judge would get an answer which he must apply to interpret the statute, and this way he would only iron out the creases but not alter the material of which the Act is woven. The relevant observations appearing in second paragraph printed on Page 164 are reproduced thus :

“.........whenever a statute comes up for consideration, it must be remembered that it is not within human powers to foresee the manifold sets of facts which may arise, and, even if it were, it is not possible to provide for them in terms free from all ambiguity. The English language is not an instrument of mathematical precision our literature would be much the poorer if it were. This is where the draftsmen of Acts of Parliament have often been unfairly criticised. A judge, believing himself to be fettered by the supposed rule that he must look to the language and nothing else, laments that the draftsmen have not provided for this or that, or have been guilty or some or other ambiguity. It would certainly save the judges trouble if Acts of Parliament were drafted with divine prescience and perfect clarity. In the absence of it, when a defect appears a judge cannot simply fold his hands and blamed the draftsman. He must set to work on the constructive task of finding the intention of Parliament, and he must do this not only from the language of the statute, but also from a consideration of the social conditions which gave rise to it and of the mischief which it was passed to remedy, and then he must supplement the written word so as to give “force and life” to the intention of the legislature. That was clearly laid down (3 Co. Rep.7b) by the resolution of the judges (SIR ROGER MANWOOD, C.B., and the other barons the Exchequer] in Heydon's case (4), and it is the safest guide today. Good practical advice on the subject was given about the same time by PLOWDEN in his note (2 Plowd. 465) to Eyston vs. Studd (5). Put into homely metaphor it is this : A judge should ask himself the question how, if the makers of the Act had themselves come across this ruck in the texture of it, they would have straightened it out ? He must then do as they would have done. A judge must not alter the material of which the Act is woven, but he can and should iron out the creases................”

19. In Sidhharth Viyas and another (supra), three Judges Bench of the Hon'ble Apex Court considering English cases and various cases including the case of RBI vs. Peerless General Finance & Investment Co. Ltd., reported in (1987) 1 SCC 424 held that if the text is the texture and context is what gives the colour, neither could be ignored, both being important. It further held that the interpretation is best when there is a match between textual and contextual interpretation. It has been further held that a statute is to be looked at in the context of its enactment, through the glasses of the statute maker and if this is done, the phrases and the words employed may take colour and appear different than when the statute is looked at without the glasses of the context. It is also observed, following the English case of Stock vs. Frank Jones (Tipton) Ltd., reported in (1978) 1 WLR 231, that better approach is purposive approach, namely, to seek the legislative intent and not be led away by strict literal construction of the words. The observations made by the Hon'ble Apex Court in paragraphs 12 and 13 of the said case would give us an insight into these principles of law. They read thus :

12. In RBI vs. Peerless General Finance & Investment Co. Ltd. (1987) 1 SCC 424), it was observed : (SCC pp. 45051, para 33)

“33. Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word. If a statute is looked at, in the context of its enactment, with the glasses of the statute-maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place. It is by looking at the definition as a whole in the setting of the entire Act and by reference to what preceded the enactment and the reasons for it that the Court construed the expression “Prize Chit” in Srinivasa and we find no reason to depart from the Court’s construction.”

13. The Full Bench of the High Court in Mangi Lal (Mangi Lal v. Addl. District Judge, 1980 ARC 55)(supra), rightly held that the grammar cannot control the interpretation of the provision which has to be read in the context. It will be appropriate to reproduce the relevant part of the said judgment which is as follows :

“43. The interpretation canvassed on behalf of the landlord is only grammatical and so ultralegalistic. It is what is called the literal approach. In Kammins Ballrooms Co. Ltd v. Zenith Investments (Torquay) Ltd (1971 AC 850 : (1970) 3 WLR 287 : (1970) 2 ALL ER 871 (HL)). Lord Diplock drew a clear distinction between the 'literal approach' and the 'purposive approach', and used the purposive approach to solve the question.

44. Recently, the House of Lords considered the rules of interpretation of statutes in Stock v. Frank Jones Tiption Ltd. ((1978) 1 WLR 231 : (1978) 1 ALL ER 948 (HL)In that case Viscount Dilhorne said:

“It is now fashionable to talk of a purposive construction of a statute, but it has been recognised since the 17th century that it is the task of the judiciary in interpreting an Act to seek to interpret it 'according to the intent of them that made it' (Coke 4 Inst 33).”

The better approach is the purposive approach, namely, to seek the legislative intent and not be led away by a strict literal construction of the words.

45. Lord Denning put it very pithily in Seaford Count Estates Ltd. v. Asher (1949) 2 KB 481 : (1949) 2 ALL ER 155 (CA)as under:

“We do not sit here to pull the language of Parliament and of Ministers to pieces and make nonsense of it. That is an easy thing to do, and it is a thing to which Lawyers are too often prone. We sit here to find out the intention of Parliament and of Ministers and carry out, and we do this better by filling in the gaps and making sense of the enactment than by opening it up to destructive analysis.” The Court’s function is to clarify the language so as to satisfy the legislative intent.

46. The word ‘has’ has been used in the Act in many other provision, e.g., section 20 permits a suit for ejectment where the tenant ‘has sublet’. There the word ‘has’ may have a different significance, because of, interalia, its legislative history.”

Srinivasa Enterprises vs. Union of India, (1980) 4 SCC 507

20. In the case of Milkfood Limited (supra), three Judges Bench of the Hon'ble Apex Court has held that a transitory provision is to be interpreted in the light of the facts and circumstances existing on the date of coming into force of the new Act.

103. Since transitory provision is to be interpreted in the light of facts and circumstances existing on the date the new Act coming into force, Section 21 and 85(2) of the 1996 Act are quoted below:

"21. Commencement of arbitral proceedings. - Unless otherwise agreed by the parties, the arbitral proceedings in respect of a particular dispute commence on the date on which a request for that dispute to be referred to arbitration is received by the respondent.

85. Repeal and savings.( 1) * *

(2) Notwithstanding such repeal,

(a) the provisions of the said enactments shall apply in relation to arbitral proceedings which commenced before this Act came into force unless otherwise agreed by the parties but this Act shall apply in relation to arbitral proceedings which commenced on or after this Act comes into force;

(b) all rules made and notifications published, under the said enactments shall, to the extent to which they are not repugnant to this Act, be deemed respectively to have been made or issued under this Act."

21. Bearing in mind these principles of law that we now undertake the task of ascertaining the meaning of the provisions made in Section 16 of the SEBC Act, 2018. This Section is divided in two subsections, with subsection (1) dealing with a situation arising from a selection process started for making appointments to public posts and subsection (2) making a clarification as to which cases of admission process relating to seats in educational institutions, the SEBC Act, 2018 would not apply. As we are concerned in this case with the second part of Section 16, we think it appropriate to reproduce subsection (2) here and it reads thus :

Section 16(1)....................

Section 16(2) : The provisions of this Act shall not apply to admissions in educational institutions and the cases in which the admission process has already been initiated before the commencement of this Act and such cases shall be dealt with in accordance with the provisions of law and the Government orders, as they stood before such commencement.

Explanation-I. For the purposes of this section, the admission process shall be deemed to have initiated where, -

(i) admission is to be made on the basis of any entrance test, and procedure for such entrance test has started ; or

(ii) in case of admission to be made other than on the basis of entrance test, the last date for filling up the application form is lapsed.”

22. Applying the “literal approach” as well as “purposive approach,” although in our view the literal approach, given the clarity of provisions made in subsection (2) of Section 16, is appropriate here, we find that there is great substance in the argument made by learned Senior Advocate on behalf of the petitioners and no merit in the submissions canvassed on behalf of the respondents.

23. The “literal approach”, when applied, would tell us as to how does it fit snugly here. This is because the words used in Section 16(2) of the SEBC Act, 2018 including its explanation are plain, clear and unambiguous. They reasonably admit of no other meaning than what they carry when taken in their ordinary grammatical sense. Subsection (2), Section 16 prescribes that provisions of SEBC Act, 2018 shall not apply to admissions in educational institutions and the cases in which the admission process has already begun before the commencement of the Act. In order to further clarify the expression “admission process” an explanation has been appended to it. The explanation, by giving a deeming effect, clarifies the expression. It says, the admission process shall be deemed to be initiated on the happening of two contingencies stated in clauses (i) and (ii) thereof. Here we are concerned with first contingency. According to it, the admission process starts the moment procedure for entrance test for admission starts. The words used are “procedure for such entrance test” and the words “procedure for filling State quota seats” are avoided. Use of one group of words and avoidance of the other group of words, both, are prophetic. The legislature intends to announce to the world that it holds no two opinions about what it means to be an admission process and what it does not mean it to be. So, it declares that on the happening of any of those contingencies, which apply to a given situation, the admission process shall be “deemed” to have started. It means, in any of these contingencies, the admission process is considered or treated to be started. In the present case, the relevant event being of the entrance test, the starting point would have to be taken as that of the date when the procedure for such test began. Procedure for such test, surely cannot begin when the State initiated the exercise to fill State quota seats on 25.02.2019, as the learned Senior Advocate for the State would have us believe. There is a sea of difference in “procedure for such entrance test” and “procedure for filling State quota seats”, as the former is a ranking determinative procedure and the latter is a seat filling procedure undertaken after rankings are determined. If the admission process is an expedition to a mountain rising to form a plateau, entrance test is it's base camp and the stage of filling of seats is it's plateau. In this expedition, not all climbers can reach the plateau. Only those found fit till last round would occupy the plateau and the rest will be eliminated. So, by using particular words and shunning away from other group of words, the legislature made it's intention clear that it wanted to indicate that only the base-camp or the foundational point of the admission process would be the initiation of admission process and not a point of the summit of the admission process. Such interpretation, according to us, is logical and natural and cannot be termed as ultra-legalistic.

24. The intention of the legislature so clearly expressed and so easily gleaned from the unambiguous language of Section 16(2) including it's explanation would be made redundant if any other interpretation is constructed. Learned Senior Advocate wants us to look into earlier Ordinance and Act, in particular Section 18 thereof, as they provide the glasses of the legislature which if worn by us, would give a different meaning to Section 16(2) than what would seem without the glasses. The argument is ingenious but has it's own practical difficulty for application. The earlier Ordinance and Act having been substituted by the SEBC Act, 2018, are now a history and this new Act is a present day reality which does not speak a word about the history. Then, there are no defects or ambiguities in Section 16(2) making us scramble for glasses. The law is, as we have seen from the cases discussed earlier, that need for such glasses would be there only when a defect or deficiency or ambiguity arises. Here no such defect or ambiguity is seen and so the argument is rejected.

25. It is also argued on behalf of the State that contextual settings, which give colour to the provision under construction, be considered. We do agree. But, we have to be cautious. The settled law would caution us, in our quest for adding hues and colour, to not alter the material of which the fabric of the provision is made so as to render the legislative intent redundant. The context of Section 16(2) is the provision made for 16% reservation for SEBC candidates in public posts and admissions in educational institutions. It is in this context, this Section lays down that the provisions relating to such reservation shall not apply to cases where selection or admission process has already been initiated on the date of commencement of the Act and it also means that in all other cases the provisions shall be implemented.

26. In the Act, at no other place is there any mention about giving of effect to the Act retrospectively and it is only in Section 16 that we find a clarity regarding the starting point which triggers the application of the Act, 2018. Therefore, the position is that, rather than the context, it is the provision made in Section 16 of the Act that gives colour to the text of the Act laying down unequivocally demarcating between the selection or admission process not hit by the provisions of the Act and the selection or the admission processes amenable to the same. At this juncture, we would recall the insightful observations of the English Court in Seafort Court Estates Ltd. (supra), “if the makers of the Act have themselves come across this ruck in the texture of it”, how they would have “straightened it out?”. Here these observations apply to the context of the Act which does not make any applicability of the Act with any retrospective effect and rather, makes a provision to clarify that those selection or admission processes would be exempt from the application of the Act, if contingent events categorized therein have already occurred before commencement of the Act. This shows that a position otherwise unclear in the Act has been made clear by the provisions made in Section 16 of the Act, 2018 and this way, we can say, Section 16 adds colour to the text of the Act making it easily understandable. The colour so added has been further accentuated by the explanation appended to each of the subsections of Section 16 and it could be anybody's guess as to why the explanation has been added. It is because the Legislature had a foreboding about cropping up of some ambiguity regarding applicability of this Act to various admission processes and with a view to remove all such doubts and ambiguities that the Legislature has inserted the explanation to each of the subsections of Section 16.

27. For the present purpose, we have to take into account explanation added to Section 16 (2) of the Act and we have already expressed our mind as to how does it clarify the position in this regard. The explanation has an important place in the interpretation of a Statute which cannot be ignored by us. A salutory purpose that an explanation serves to a statutory provision is expatiated by the Hon'ble Apex Court in the case of S. Sundaram Pillai and others vs. V.R. Pattabiraman and others , reported in (1985) 1 SCC 591. We find that the observations of the Hon'ble Apex court as they appear in paragraph 46 and 53, are of immense help to us to understand the importance of an explanation. They are reproduced thus :

46. We have now to consider as to what is the impact of the Explanation on the proviso which deals with the question of wilful default. Before, however, we embark on an enquiry into this difficult and delicate question, we must appreciate the intent, purpose and legal effect of an Explanation. It is now well settled that an Explanation added to a statutory provision is not a substantive provision in any sense of the term but as the plain meaning of the word itself shows it is merely meant to explain or clarify certain ambiguities which may have crept in the statutory provision. Sarathi in 'Interpretation of Statutes’ while dwelling on the various aspects of an Explanation observes as follows:

(a) The object of an explanation is to understand the Act in the light of the explanation.

(b) It does not ordinarily enlarge the scope of the original section which it explains, but only makes the meaning clear beyond dispute.

53. Thus, from a conspectus of the authorities referred to above, it is manifest that the object of an Explanation to a statutory provision is -

(a) to explain the meaning and intendment of the Act itself,

(b) where there is any obscurity or vagueness in the main enactment, to clarify the same so as to make it consistent with the dominant object which it seems to subserve,

(c) to provide an additional support to the dominant object of the Act in order to make it meaningful and purposeful,

(d) an Explanation cannot in any way interfere with or change the enactment or any part thereof but where some gap is left which is relevant for the purpose of the Explanation, in order to suppress the mischief and advance the object of the Act it can help or assist the Court in interpreting the true purport and intendment of the enactment, and

(e) it cannot, however, take away a statutory right with which any person under a statute has been clothed or set at naught the working of an Act by becoming an hindrance in the interpretation of the same.

28. Thus, we find that Section 16 of the Act makes a more clear provision relating to reservation of seat for a candidate in public posts and educational institutions as regards the starting point of the reservation policy. The starting point is that of all fresh selection or admission processes, in the sense, here we would speak about the medical admissions to be precise, those medical admissions in which the procedure for entrance test has already been initiated, would not be affected by the applicability of the Act and those admission processes where such procedure has not yet started as of the date of the commencement of the Act, only would be subject to the applicability of this Act. In the present case, the procedure for entrance test has begun on 16th October 2018 for MDS course and 2nd November 2018 for MD/MS/PG courses well before 30th November 2018, the date of the commencement of the Act. This procedure was for holding of the entrance test and not for filling the seats in the State quota. Therefore, the provisions of the Act, 2018 would have no application to the current admission process2019. If such an interpretation is not given, the whole provision of Section 16 (2) of the Act would turn into a dead letter of law, thereby rendering the legislative intent to be redundant.

29. The object of the SEBC Act, 2018 is to make provision for advancement of socially and educationally backward class citizens in a manner which would afford full opportunity to these classes of citizens to bloom in all their colours and shades while, at the same time, not letting wither the other promising students belonging to other categories by suddenly reducing their chances to secure admission in the current admission process. If this was to happen, the rights that the other students would have acquired such as, a right to participate in the competition in accordance with the Rules in force at the time when the process started and also a right to be not treated unequally midway through the process, would have been taken away. Therefore, being conscious of the same, the Legislature inserted a clarificatory provision in the nature of Section 16 (2) of the Act. This provision could be seen as also being consistent with the object and purpose of the Act, 2018 and then such an interpretation can also be seen as answering the test of the “purposive approach” of the interpretation of a Statute, as this interpretation only enhances the object of the Act.

30. Much has been said about the notification dated 8.3.2019 which is in the nature of a declaration that the SEBC Act, 2018, provides for reservation of seats in admission to educational institutions for the SEBC candidates and so it is directed in paragraph 3 that while making medical admissions, action be taken in accordance with the above referred provisions (“HINDI”) meaning that the admission process be worked by keeping in view and in accordance with the provisions of the SEBC Act, 2018. According to the respondents, even this date could be considered to be “the procedure for such entrance test”. The submission is devoid of any substance and is, therefore, rejected. The notification dated 8.3.2015 speaks of only what SEBC Act, 2018 says and goes on to command that the action be taken by the concerned authorities while making admissions, in accordance with the provisions of the SEBC Act, 2018. This would mean that the authorities must not ignore any single provision of this Act including the provision of Section 16(2) of this Act. Besides, this notification does not speak of any entrance test and, therefore, it has no relevance for understanding the meaning of the words “admission process”, so clearly and unequivocally conveyed by the language used in the entire section.

31. This is how we have considered the effect of the notification dated 8.3.2019 and so we find that there is no need for us to say any further that it is unconstitutional and violative of Articles 14 and 21 of the Constitution of India. In our view, it does not say in any manner that the provisions of SEBC Act, 2018 must be applied even to the admission process, the procedure for which has already commenced on the date on which this Act came into force and on the contrary, it only directs that the admission process initiated for filling the medical seats be carried on in accordance with the provisions of SEBC Act, 2018.

32. The conclusion that inevitably arises now is that to the current admission process initiated for filling seats in medical colleges for post graduation, diploma etc. courses, the provisions of SEBC Act, 2018 are not applicable and the admission process has to be conducted in accordance with the provisions of the law and the Government orders as they stood before 30th November, 2018, the date of commencement of the SEBC Act, 2018. This being the legal position, the revised seat matrix published on 27.3.2019 providing for reservation of SEBC candidates has to be held and is held as arbitrary, violative of the mandate of Section 16(2) of the SEBC Act, 2018 and as being not in accordance with the procedure established by law inasmuch as it creates unequal competition and violates principles of rule of law, hit by the rigor of Articles 14 and 21 of the Constitution of India and as such deserves to be quashed and set aside.

33. Now coming to the question of latches, we are of the view, upon consideration of all the facts and circumstances of the case, that the petitioners could not be blamed for having approached this Court belatedly.

34. The procedure for the conduct of the entrance test or the NEET for medical courses 2019, as per the information bulletins issued for the same, came to an end upon declaration of the results. Thereafter further procedure for actually making the admissions began. The information brochure for registration, counselling and preference form published in January 2019 gives a time table for completion of various stages required for making of admissions. First stage is of declaration of merit ranking to be done on 31st January, 2019. The second stage of online registration to be done during the period from 25.2.2019 to 5.3.2019. The third stage is of publication of list of applicants on 6.3.2019. There are 13 more stages stated in this brochure and the last stage is of filling of seats at college level rounds and the cut off date of admission process upto 18.5.2019. In this information brochure there is also a note appended and it says that as per the Government letter dated 14th February, 2019, “reservation as per SEBC Act 2018 and Economically Weaker Sections (EWS) will be implemented after directions from the State Government.”. It further states, “therefore the seat distribution will be made available in due course”.

35. According to the learned Senior Advocate for the State, the note so made in the information brochure gave a sufficient idea of what may perhaps be in store for the petitioners and the stages relating to the online registration and publication of list of the applicants also indicated that a provision was being made for making of reservation of seats for SEBC candidates and so, if the petitioners felt aggrieved, they ought to have approached this Court within a reasonable period of time from 6.3.2019 when the list of applicants was published. He also submits that if they had any doubt in mind, the petitioners could have approached the respondent No.2 for removal of doubts or raising of a grievance but they did not do. He also submits that even the notification dated 8.3.2019 shows that reservations would be made applicable to current process and the reply affidavit of petitioners shows their admission about the same and yet they approached this Court late. Therefore, now there is a lot of delay which has proved fatal to the case of the petitioners. This has been disagreed to by the learned Senior Advocate for the petitioners submitting that there was no decision taken by the State Government and communicated to the petitioners regarding application of the reservation policy even to the current ongoing process and the note given in the information brochure does not clarify that such a decision had already been taken by the State Government.

36. To our mind, the note given in the information brochure and also the category of SEBC candidates separately shown in the list of applicants published on 6.3.2019 would be of no consequence. The reason being that at least till 8.3.2019 there was no notification issued by the State Government makings it's intention clear about the implementation of the provisions of the SEBC Act, 2018. The notification in this regard came to be issued on 8.3.2019. But, upon perusal of the notification again a doubt is raised about the date from which the reservation policy propounded under the SEBC Act, 2018 would be implemented, especially in the teeth of Section 16(2), insofar as medical admissions are concerned. It would be useful for us to reproduce the notification here as under :

“HINDI”

37. It would be clear from the above notification that although the State Government expressed its intendment to apply the provisions of the SEBC Act, 2018 to medical courses offered in the State by the educational institutions, the intendment is circumscribed by a rider to the effect that the reservation policy be implemented while making admissions to medical courses in accordance with “above referred provisions” (“HINDI”). This would show that the command was to provide for reservation only in accordance with the provisions made under the SEBC Act, 2018 and as such, there was no way for anybody to make an exception to those provisions, in particular the provision of Section 16 of the SEBC Act, 2018 and implement the policy in derogation of the said provision. This notification, in any case, does not give a slightest hint that the provisions of the SEBC Act, 2018 regarding reservation for SEBC candidates would be applied even to the current process, there being no such declaration expressly made therein.

38. So, we do not think that from 8.3.2019 and onwards the candidates had started getting some feelers about the application of the provisions of the SEBC Act, 2018 to the present admission process. The impression created by the notification dated 8.3.2019 and also by the publication on 6.3.2019 of the list of the applicants wherein separate category of SEBC candidates was shown was not about the reasonable pointer towards the application of the provisions of the SEBC Act, 2018 to the present admission process and was only of the intendment of the State Government to make this Act applicable only in accordance with its provisions. The Act contains a transitory provision like Section 16 and we have already found as to how it exempts the current admission process.

39. This impression, we must say, would be entertained by anybody who goes by the ordinary and plain meaning unequivocally conveyed by the words used in Section 16(2) of the SEBC Act, 2018 and it would be continued to be entertained till the time, there is some declaration made to the contrary. In the present case, there was no such contrary declaration made in categorical terms either by publication of list of applicants on 6.3.2019 or through the issuance of notification dated 8.3.2019 nor by any other publication made earlier and such contrary declaration appears for the first time only on 27.3.2019 when the revised provisional seat matrix was published. This seat matrix though entitled “revised provisional seat matrix”, was in fact a final announcement at least in relation to application of the policy of 16% seat reservation for SEBC candidates to the current admission process. This would be clear from the foot notes appended to the revised provisional seat matrix, a copy of which is forming part of the paper book. It was this date of 27.3.2019 which actually gave rise to the cause of action.

40. Now we would deal with the contention that there is an admission given by the petitioners about their knowledge that the reservation policy, in the present case, was going to be applied as per the notification dated 8.3.2019. There is an admission indeed given in the counter-affidavit of the petitioners. The pleading is that the communication dated 8.3.2019 showed that the State had given 16% reservation from the total seats to SEBC and that the petitioners had no knowledge about this notification dated 8.3.2019 till they came across revised provisional seat matrix published on 27.3.2019 at about 11.30 p.m. Such a pleading in our view cannot be seen to be an admission of fact, for, an admission could only be of a fact established and not of some imaginary state of affairs or some interpretation of a document. In terms of the definition of “fact” given in Section 3 of the Indian Evidence Act, a fact means and includes anything, any state of things or relation of things, capable of being perceived by the senses or of any mental condition of which any person is conscious. This definition would show that the fact is something which could be perceived by the sensory organs or realized as being existent through the power of mind. This definition thus excludes any mental forays into the world of imagination or fantasy. It also keeps away an opinion as regards the interpretation of a document. When we again consider the notification dated 8.3.2019, we would find that there is no express declaration made therein that 16% reservation for SEBC candidates be provided even in current admission process. That means there is no fact existing or established and, therefore, there can be no admission of a nonexistent fact. This is how the so called admission of the petitioners would be treated in law. At the most, it could be considered to be the own interpretation of the petitioners and the interpretation is always a question of law which cannot be decided on the basis of admission of parties. So we find no merit in the said contention raised on behalf of the respondent No.1.

41. There has also been an argument about the facts and circumstances in which the transitory provision must be interpreted. The discussion thus far made by us would show that the facts and circumstances of this case, as reflected in the context of the SEBC Act, 2018, have assumed a clear meaning because of the presence of Section 16(2) and as such, we do not wish to further elaborate the approach adopted by us in the present case.

42. Thus, we find that it was only from 27.3.2019 and onwards, the date on which the revised provisional seat matrix was published, that the petitioners actually learnt about the application

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of the provisions of the SEBC Act, 2018 to the present admission process and this was what provided to them the cause of action to approach this Court and they did approach the Court on or about 4th April, 2019, which was with a reasonable dispatch. There is, therefore, neither any delay nor any latches on the part of the petitioners in approaching this Court. The argument in this regard is, therefore, rejected. 43. Having seen the illegality and arbitrariness patently committed by the respondent Nos.2 and 3 in the present case and also having assured us of absence of any delay on the part of the petitioners here, the question would still remain as to whether or not the relief as sought by the petitioners could be granted to them. The answer in this regard could be find out if we follow the guidelines of the Hon'ble Apex Court given in the case of Chandigarh Administration and another vs. Jasmine Kaur and others, reported in (2014) 10 SCC 521. The guidelines insofar as they are found to be applicable to the facts and circumstances of this case, are reproduced as below : “33.1. The schedule relating to admissions to the professional colleges should be strictly and scrupulously adhered to and shall not be deviated under any circumstance either by the courts or the Board and midstream admission should not be permitted. 33.2. Under exceptional circumstance, if the court finds that there is no fault attributable to the candidate i.e. the candidate has pursued his or her legal right expeditiously without any delay and that there is fault only on the part of the authorities or there is an apparent breach of rules and regulations as well as related principles in the process of grant of admission which would violate the right to equality and equal treatment to the competing candidates and the relief of admission can be directed within the time schedule prescribed, it would be completely just and fair to provide exceptional reliefs to the candidates under such circumstance alone. 33.3. If a candidate is not selected during a particular academic year due to the fault of the institutions/authorities and in this process if the seats are filled up and the scope for granting admission is lost due to eclipse of time schedule, then under such circumstance, the candidate should not be victimised for no fault of his/her and the court may consider grant of appropriate compensation to offset the loss caused, if any. 33.4. When a candidate does not exercise or pursue his/her rights or legal remedies against his/her non-selection expeditiously and promptly, then the courts cannot grant any relief to the candidate in the form of securing an admission. 33.5. If the candidate takes a calculated risk/chance by subjecting himself/herself to the selection process and after knowing his/her non-selection, he/she cannot subsequently turn around and contend that the process of selection was unfair.” 44. It would be clear from these guidelines that the relief regarding admissions can be granted if it is possible to do so within the time schedule prescribed for an admission process and that would be by way of an exceptional case. 45. In the present case, as per the information brochure of January 2019, the whole admission process is still going on and is not completed. The declaration of list of selected candidates of second round is to be made upto 26.4.2019, the last date of joining respective colleges for second round is upto 3rd May, 2019 and there are further stages of the admission process, last of which relates to the last date for filling seats at college level round upto 18th May, 2019. This process is not yet over and, therefore, it can be reasonably seen that these petitioners can be allowed to participate in the admission process without causing any prejudice to anybody. Then, learned Senior Advocate for the respondent No.1State, on instructions, submits that most of the petitioners, perhaps barring one, would even otherwise qualify for admissions, though they may have to opt for some colleges which may not be in their list of topmost choices. But, when law requires a particular thing to be done in a particular manner, it must be done in that manner alone or not at all. This rule propounded in Taylor vs. Taylor, reported in (1876) 1 Ch D 426, applied in the case of Nazir Ahmad vs. Emperor, reported in AIR 1936 Privy Council 253, and followed later on in many judgments of the Hon'ble Apex Court, including that of Ramchandra Keshav Adke (dead) by Lrs. and others vs. Govind Joti Chavare and others, reported in (1975) 1 SCC 559, has now become a principle well entrenched in our body of law. We have already given our interpretation of the provisions of Section 16(2) of the SEBC Act, 2018 stating that this provision of law would exempt the present admission process from the applicability of this Act which came into force on 30th November, 2018. So, the requirement of law is that this Act must not be applied to the present admission process and the requirement needs to be followed by the authorities. 46. In view of above, we are inclined to partly allow these petitions and they are allowed accordingly. (i) We direct that the notification dated 8.3.2019, insofar as medical admission process is concerned, shall be applied to the medical admissions the procedure for which has started or would start on or after 30th November, 2018, subject to result of any other writ petition, if pending, and the notification would have no application to the present medical admission process2019 which began w.e.f. 16th October, 2018 and 2nd November, 2018 respectively. (ii) Consequently, it is also directed that the revised provisional seat matrix published on 27.3.2019, insofar as it makes a provision for the category of SEBC candidates, being illegal, shall not be given effect to for the limited purpose of SEBC reservation in current admission process. The respondents, however, would conduct the admission process and complete it in accordance with applicable law, rules and orders, in force, before commencement of the SEBC Act, 2018. (iii) Rule is made absolute in these terms. No costs. Authenticated copy of the operative order be furnished to the learned counsel appearing for the parties.
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