AI Structured Summary
Not yet generated for this judgment
Judgment
G.S. Patel, J
The challenge in these two Writ Petitions under Article 226 of the Constitution of India is to the Constitutional validity and vires of a 25th June 2019
amendment to the Maharashtra State Reservation (of seats for admission in educational institutions in the State and for appointments in public services
and posts under the State) for Socially and Educationally Backward Classes (SEBC) Act 2018 (“the SEBC Actâ€). The amendment in question
was effected by Maharashtra Act No. III of 2013 and is entitled the Maharashtra State Reservation (of seats for admission in educational institutions
in the State and for appointments in public services and posts under the State) for Socially and Educationally Backward Classes (SEBC)
(Amendment) Act, 2019 (“the SEBC Amendment Actâ€).
Petitioners Nos. 1, 2 and 3 in Writ Petition (L) No. 2016 of 2019 are all aspiring undergraduate medical (MBBS) and dental (BDS) course students.
Petitioner No.4 is represented by his father. The Petition claims to espouse the cause on behalf of all students similarly placed. The two Petitioners in
Writ Petition (L) No. 2022 of 2019 are both students who seek admission to the MBBS course. Petitioner No. 2 in the second petition is represented
by his father.
Respondent No.1 in both petitions is the State. The other respondents are the Commissioner, the State Common Entrance Test and the Director of
Medical Education and Research in Mumbai.
The gravamen of both Petitions is essentially that the SEBC Amendment Act 2019 attempts to nullify and render void decisions of the Nagpur
Bench of the Bombay High Court and of the Supreme Court. There is also an argument that the amendment is constitutionally invalid as it purports to
be retrospective. The challenge is therefore to the constitutional validity of the SEBC Amendment Act.
Given the nature of the challenge, on 8th July 2019 we caused notice to be issued to the learned Advocate General. This was accepted by Mr
Kakade on behalf of the State. We were informed that Mr Thorat and Mr Sakhare, learned Senior Counsel, would appear as Special Counsel on
behalf of the State. In view of the urgency, since undergraduate medical course are at an advanced stage, with the online preference filling process
for MBBS and BDS closing today, and the select list for the first round scheduled for being posted tomorrow, 12th July 2019, we gave the matter the
utmost priority. We heard Mr Vashi for the Petitioner at length yesterday and took up the matter first this morning, when he concluded his arguments.
Mr Thorat for the State also concluded his arguments this morning. We immediately pronounced our decision to dismiss both petitions, and said
reasons would follow. We are accordingly rendering this judgment with our reasons in the shortest possible time. At the forefront, we thank both Mr
Vashi and Mr Thorat for the admirable economy, precision and compactness with which they have presented their respective cases.
Only a few dates are necessary. Admissions to the undergraduate medical (MBBS) and dental (BDS) courses are by placement through the
National Eligibility-cum-Entrance Test (“NEETâ€) conducted annually. We are not concerned with admissions to postgraduate courses for which
there is a separate process. The undergraduate NEET or NEET-UG for the academic year 2019-2020 commenced with the release of an information
bulletin from 1st November 2018. That information bulletin said that the last date for filing online application forms was 30th November 2018.
In the meantime, there were certain legal challenges regarding post-graduate admissions that resulted ultimately in a order of the Supreme Court in
SLP (C) No. 14320 of 2018 (and connected matters) dated 29th November 2018. By a public notice of that date, the National Testing Agency
extended the last date for filling online applications for NEET-UG by one week to 7th December 2018. A copy of this public notice is at Exhibit
“A†to the Petition at page 29.
On 30th November 2018, the State Government enacted the SEBC Act. Broadly stated â€" and we need no more for our present purposes â€" this
makes reservations in admissions and public sector employment, initially proposed up to 16%, for socially and educationally backward classes,
including Marathas, over and above the existing Other Backward Classes reservations. The SEBC Act came into force from that date, 30th
November 2018.
The NEET-UG was conducted on 5th May 2019. Results were declared on 5th June 2019. The seat matrix for MBBS and BDS courses was
declared on 6th July 2019. The Provisional State Merit List was declared on 7th July 2019. The process of online preference filling was scheduled to
run from 7th July 2019 to 5:00 pm on 11th July 2019 (today). The First Round Selection List declaration is scheduled for 12th July 2019. The last date
for joining the selected college during the first round for MBBS/BDS is 19th July 2019, and the academic session commences for the MBBS/BDS
commences from 1st August 2019.
Shortly after the SEBC Act came into force, several petitions were filed in this Court challenging its constitutional validity on diverse grounds.
Notices were issued to various respondents, including the State. There were applications for stay including by these Petitioners and others. A stay was
sought specifically of the operation of Section 16(2) of the SEBC Act which applied to educational institutions admission. We will turn to that provision
in detail a little later. The applications for stay were disposed of by this Court’s order saying that all admissions for the year 2019-2020 would be
subject to the outcome of the constitutional challenges. We pause here to note that all that this meant was that if the challenge was upheld and the
SEBC Act was struck down as ultra virus or unconstitutional, then there would be no question of reservation of any seats for those covered by the
SEBC Act.
While these challenges were pending and before the NEET-UG was conducted, on 8th March 2019, the 2nd Respondent, competent authority
issued a notification providing for a 16% reservation for SEBC candidates. This was the subject matter of a separate challenge by some postgraduate
medical and dental students who approached the Nagpur Bench of this Court in Writ Petition No. 2780 of 2019 (Dr Sanjana Narendra Wadewala v
State of Maharashtra & Ors). The contention was that the SEBC Act could not be applied where the admission process has already been initiated
before the commencement of SEBC Act 2018. A Division Bench of this Court (SB Shukre and Ms PV Ganediwala JJ) rendered a judgment on 2nd
May 2019, a copy of which is annexed at Exhibit “Bâ€, page 73 to the Petition. We will return to this judgment shortly.
The State challenged this judgment in SLP(C) Nos. 11813- 11815 of 2019. The Supreme Court declined to interfere by its order dated 9th May
2019.
With effect from 20th May 2019, the State Government issued an Ordinance amending the SEBC Act and introducing the subject amendment to
Section 16(2) of the SEBC Act. This Ordinance has now been replaced by an Act. This is the SEBC Amendment Act 2019 challenged before us.
Shortly stated, this introduced a separate provision with a specific cut-off date in regard to the NEET process, as opposed to the previous provision
that only spoke of admission tests in general.
This Ordinance came to be challenged before the Supreme Court in Writ Petition No. 700 of 2019 (Sonam Manoj Turkar & Ors v State of
Maharashtra & Ors). On 24th May 2019, was dismissed as withdrawn with liberty to approach the High Court. If the Petitioners did so, the High
Court was requested to give the matter priority.
On 30th May 2019, the Supreme Court passed an order in a separate Writ Petition (C) No. 55 of 2019 (Janhit Abhiyan v Union of India). That
dealt inter alia with the State Government Notification dated 7th March 2019 in regard to postgraduate medical courses. The question before the
Supreme Court was whether the Notification would apply to the admission process that had commenced in November 2018. There is a later order of
31st May 2019 as well. Again, we will need to advert to these two orders in greater detail later in this judgment.
On 4th June 2019, in Writ Petition (C) No. 733 of 2019 (Sagar Damodar Sarda & Ors v State of Maharashtra & Ors), the Supreme Court
considered a grievance made before it that its two orders of 30th May 2019 and 31st May 2019 were not being followed in letter and spirit. In the
context still of post-graduate medical admissions, the Supreme Court exercised its extraordinary jurisdiction under Article 142 of the Constitution of
India and directed that fresh advertisements be issued by the Common Entrance Test Cell in Maharashtra within two days; directed the notification of
the seat matrix; and directed physical counselling to be done a week thereafter. Students were not allowed to change their preferences given in March
2019. The entire admission process was to be on the basis of merit as per the revised NEET list after the EWS quota was scrapped. On 10th June
2019, the Supreme Court declined any clarification or modification of its 4th June 2019 order.
Some of the petitioners who had challenged the amendment Ordinance came to the Nagpur Bench of this Court in Writ Petition No. 3771 of 2019
(Dr Sameer Rajendra Deshmukh v State of Maharashtra & Ors). This was taken up with several intervention applications. By an order of 13th June
2019, a Division Bench of the Nagpur Bench of this Court (SB Shukre and SM Modak JJ) noted the Supreme Court order of 24th June 2019 in the
Sonam Manoj Turkar Writ Petition (C) No. 700 of 2019; and the two orders of 4th June 2019 and 10th June 2019 regarding the EWS quota. The
Division Bench rejected the Dr Sameer Rajendra Deshmukh petition as not maintainable. Hence, the challenge to the amending Ordinance of 2019
failed. The Petitioner approached the Supreme Court in Special Leave Petition (C) No. 13808 of 2019. This was dismissed on 24th June 2019.
The next day, 25th June 2019, the SEBC Amendment Act 2019 was brought into force.
On 27th June 2019 this Court upheld the Constitutional validity of SEBC Act but reduced the quantum of reservation to 12% in education and 13%
in employment (PIL No. 175 of 2018, Dr Jayshri Laxmanrao Patil v The Chief Minister & Anr and associated petitions).
The present petitions were filed on 3rd/4th July 2019.
We turn immediately to the amendment in question. This is how Section 16(2) reads. The amendment is shown in boldface and with underlining.
“(1) The provisions of this Act shall not apply to the cases in which selection 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:â€"For the purposes of this section, the selection process shall be deemed to have been initiated where, under the relevant service
rules,â€
(i) Recruitment is to be made on the basis of written test or interview only, and such written test or the interview, as the case may be, has started; or
(ii) Recruitment is to be made on the basis of both, written test and interview and such written test has started.
(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:â€"For the purposes of this section, the admission process shall be deemed to have initiated where, â€
(i) Admission is to be made on the basis of an entrance test, and procedure for such entrance test has started; or
(ia) In case of admission to be made to the courses on the basis of National Eligibility-cum-Entrance Test or any other National entrance Test and
other eligibility criteria for admission in State quota seats in Government Colleges and all seats in private Colleges, notwithstanding anything contained
in clause (i) or in any order, judgment or direction of any Court, the last date for filing up of application form for admission to such courses to State
quota to the Admission Regulatory Authority or the Commissioner of State CET is lapsed; or;
(ii) In case of admission to be made other than on the basis of entrance test, referred to in clause (i) or the National Eligibility-cum-Entrance Test and
other eligibility criteria referred to in clause (ia) the last date for filling up the application form is lapsed.â€
(Emphasis added as indicated above)
Turning first to an analysis of Section 16(2), it is clear to us that the whole section provides for exceptions to the SEBC Act, i.e. those cases or
scenarios in which the SEBC Act’s provisions for reservation will not apply. Section 16(1) deals with exceptions in regard to employment. We are
not concerned with that. Section 16(2) deals with admissions to educational institutions. The main portion of Section 16(2) uses the expression
“admissions in educational institutions and the cases in which the admission process has already been initiated before the commencement of this
Actâ€. Obviously the question would arise as to when an admission process can be said to have been “initiatedâ€. The explanation to Section 16(2)
provides the answer by a deeming provision. Before the amendment, the explanation said that where admissions were made on the basis of ‘an
entrance test’, the process would be deemed to have started when the procedure for an entrance test had started. In cases other than entrance
tests, the cut-off date would be the last date for filling up applications.
Very shortly stated, Mr Vashi’s submission is that the NEET-UG is a sub-species or sub-class of the ‘entrance test’ genus. The NEET-
UG had already started before 30th November 2018, the date on which the SEBC Act came into force. The extension of the date to 7th December
2018 pursuant to the orders of the Supreme Court â€" though initially applied to postgraduate course but extended by a notice to undergraduate as well
â€" made no difference. It is his submission that by the amendment a sub-class or a sub-species has been created for the NEET, and for this a totally
different basis has been provided, being the last date for filling up application forms for admission for such courses in the State quota. That last date
for undergraduate courses is 12th July 2019. The last date for joining the colleges is 19th July 2019 and undergraduate MBBS and BBS courses start
on 1st August 2019.
Mr Vashi first draws attention to the 2nd May 2019 decision of the Nagpur Division Bench judgment in Dr Sanjana Narendra Wadewale. As we
have seen, the challenge in that group of writ petitions was to the notification of March 2019 by the State Government making a general declaration in
terms of the SEBC Act as it then stood for educational institution reservations of 16% for socially and educationally backward classes. He draws
attention to certain paragraphs of this judgment which are set out below:
“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.
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.â€
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.
The “literal approachâ€, 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 seatsâ€, 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.
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.
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.
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.
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.
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 matrixâ€, 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.
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.â€
This shows that as regards the challenge to the notification the Division Bench in Dr Sanjana Narendra Wadewale case held that it would not
apply to the admission process that had already started or would start after 30th November 2018. The Division Bench also held that a revised
provisional seat matrix published on 27th March 2019 providing for SEBC candidates was illegal. We note that this was in the context of postgraduate
admission. There was no discussion on undergraduate admissions.
The State Government carried this matter in Appeal to the Supreme Court in Special Leave Petition (C) No. 11813-11815 of 2019. These SLPs
were dismissed but the Supreme Court extended the last date for the revision of lists by one week from 18th May 2019. This again was in the context
of postgraduate admission.
Further, the Dr Sanjana Narendra Wadewale decisions related to a situation prior to a statutory amendment to the SEBC Act and dealt only with
the challenge to the reservation attempted by a notification.
The 30th May 2019 order of the Supreme Court in Writ Petition (C) No. 55 of 2019 (Janhit Abhiyan v Union of India) dealt with the State
Government Notification dated 7th March 2019 in regard to postgraduate medical courses. The question before the Supreme Court was whether the
Notification would apply to the admission process that had commenced in November 2018. The Supreme Court referenced the 103rd Amendment to
the Constitution of India that introduced Article 16(6).
We reproduce the relevant portions of this since they are material and note that these came after the 103rd Constitutional Amendment that added
Article 16(6) which is set out in the order. The Supreme Court order of 30th May 2019 reads thus:
“The entitlement of the petitioners to an appropriate interim order is the precise question that is being dealt with by the Court by the present order.
By the 103rd Constitutional amendment, after clause (5) of Article 16, the following clause numbered as clause (6) has been inserted:-
“(6) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any
economically weaker sections of citizens other than the classes mentioned in clause (4), in addition to the existing reservation and subject to a
maximum of ten per cent of the posts in each category.â€
Though an enabling provision, the State of Maharashtra by notifications dated 12.2.2019 and 7.3.2019 has extended the benefit of reservation to the
extent of 10% to economically weaker sections, inter alia, in postgraduate medical courses. The bone of contention between the parties is whether the
aforesaid decision following the constitutional amendment will apply to the ongoing admission process which had commenced in the month of
November, 2018 i.e. well before the coming into force of the Constitutional amendment ( January, 2019) and the notifications of February and March,
2019.
Not only we are reminded of the time-tested principle of law that the modalities of selection cannot be changed after initiation of the process, in a
similar matter involving reservation of 16% seats for socially and educationally backward classes including the 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, the Bombay High Court had taken the view that the said Act having come into force with effect from 30.11.2018, could not be made applicable
to the very same admission process as the same had been initiated earlier i.e. on 2.11.2018. The special leave petition against the said order of the
Bombay High Court has since been dismissed by this Court.
Having considered the matter, we are of the view, at this stage, that though the Sate may act under the enabling provision contained in Article 16(6) of
the Constitution, as introduced by the 103rd Constitutional amendment, unless additional seats are sanctioned by the Medical Council of India, the
existing seats cannot be subjected to the provisions of the aforesaid Constitutional amendment by issuing appropriate notifications, as has been done in
this case. Though the above view is a tentative view, on the basis thereof, we deem it proper to declare that the notification of the State of
Maharashtra dated 7.3.2019 insofar as the admission to postgraduate medical courses is concerned, will have no application to the ongoing process of
selection, so as to enable the representatives of the economically weaker sections to avail of the benefit of reservation for admission to postgraduate
medical courses. While making the above declaration, we have kept in mind the need to balance the competing claims which balance could be upset
by claim of equity, if the reserved category candidates are allowed to undergo the medical course(s) and in the event their admission is found to be
untenable at a later stage of the present proceedings. We have, therefore, deemed it appropriate to pass the above interim directions to make the
aforesaid interim declaration pending final decision in the writ petitions before us. Needless to say, it is always open for the Medical Council of India to
sanction additional seats, if deemed fit.
I.A. No. 84633/2019 filed for intervention stands disposed of.â€
(Emphasis added)
Again, this was in the context of postgraduate admissions and at a pre-amendment stage.
There was then a further order of 31st May 2019 (not in the paper-book but tendered separately) where the Supreme Court was told that the
State CET Cell Maharashtra had not complied with the Supreme Court directions. It had issued a notice on 30th May 2019 that the admission of all
candidates who were allotted seats in previous rounds under the EWS category had been cancelled and that all these were converted to the open
category but with a further rider that the admissions of all candidates except those admitted under the EWS category from the previous admission
process round were not disturbed. The Supreme Court was told that this notice dated 30th May 2019 virtually nullified its previous order. The Supreme
Court stayed the applicable clause (c) of the notice dated 30th May 2019 and directed the authorities to complete the process, including re-shuffling. If
clarified that the 7th March 2019 notification and the previous notification of reservation in postgraduate medical courses would not be applicable for
the academic year 2019-2020.
At this stage, we must note that the main order of 30th May 2019 made it clear that the State could take action under the newly introduced Article
16(6) but unless additional seats were sanctioned by the Medical Council of India, the existing number of seats could not be subjected to that
amendment. By the later order dated 31st May 2019, time was extended to 4th June 2019.
It is at this point that Mr Vashi submits that the State could not have then introduced or carved out another totally different species or a sub-
category already covered by the first explanation to Section 16(2).
For completeness, we note again the order of 4th June 2019 of the Supreme Court in Writ Petition (C) No. 733 of 2019 (Sagar Damodar Sarda &
Ors v State of Maharashtra & Ors). There the grievance was non-compliance with the previous orders of 30th May 2019 and 31st May 2019. The
Supreme Court exercised its extraordinary jurisdiction under Article 142 of the Constitution of India and directed that fresh advertisements be issued
by the Common Entrance Test Cell in Maharashtra within two days; directed the notification of the seat matrix; and directed physical counselling to be
done a week thereafter. Students were not allowed to change their preferences given in March 2019. The entire admission process was to be on the
basis of merit as per the revised NEET list after the EWS quota was scrapped. On 10th June 2019, the Supreme Court declined any clarification or
modification of its 4th June 2019 order.
This was followed by the 13th June 2019 order of a Division Bench at the Nagpur Bench in Dr Sameer Rajendra Deshmukh challenging the
amending Ordinance, and to which we have already referred.
We are constrained to note that throughout all the challenges were to the application of the SEBC Act to postgraduate medical admissions. There
was never any discussion regarding undergraduate admissions. In itself, this presents a logical difficulty and inconsistency in Mr Vashi’s way. We
do not think it is at all possible to say that the Division Bench’s order in Dr Sanjana Narendra Wadewale (which held the March 2019 notification
to be inapplicable to admissions in the current academic year) must apply to both postgraduate and undergraduate admissions, and, in the same breath
to say that the subsequent order dated 13th June 2019 in Dr Sameer Rajendra Deshmukh case dismissing the challenge to the amending Ordinance is
confined to postgraduate courses only. The failure of the challenge in Dr Sameer Rajendra Deshmukh to the amendment by ordinance will necessarily
have to cover both undergraduate and post-graduate admissions.
The next logical hurdle is that the argument undermines Mr Vashi’s submission of legislative incompetence. If he maintains that the Division
Bench order dated 13th June 2019 in Dr Sameer Rajendra Deshmukh applies only to postgraduate medical admissions then his case on legislative
competence must fail.
Mr Vashi’s submission is founded to a very large extent to a Supreme Court decision in Medical Council of India v State of Kerala 2018 SCC
Online 1467. It is his submission that the judgment is on all fours with the present case and the Supreme Court held that it was beyond the competence
of a legislature to nullify a judgment. Since Mr Thorat has also relied on the portions of this judgment, we take the liberty of reproducing certain
portions of it:
“23. In the matter of Cauvery Water Disputes Tribunal, 1993 Supp (1) SCC 96 (1) (II), a Constitution Bench of this Court has observed that it is
open to change the law in general by changing the basis but it is not open to set aside an individual decision inter-partes and thus affect their rights and
liabilities alone. Such an act on the part of the legislature amounts to exercising the judicial power. This Court quashed the Ordinance and observed
that by issuing the Ordinance the State of Karnataka has sought to take the law in its own hand and tried to be above the law. Such an act is an open
invitation to lawlessness and anarchy. There cannot be defiance to the decision of the judicial authorities. This Court has observed thus:
“76. The principle which emerges from these authorities is that the legislature can change the basis on which a decision is given by the Court and
thus change the law in general, which will affect a class of persons and events at large. It cannot, however, set aside an individual decision inter
parties and affect their rights and liabilities alone. Such an act on the part of the legislature amounts to exercising the judicial power of the State and to
functioning as an appellate court or tribunal.
The effect of the provisions of Section 11 of the present Act, viz. the Inter-State Water Disputes Act read with Article 262 of the Constitution is
that the entire judicial power of the State and, therefore of the courts including that of the Supreme Court to adjudicate upon original dispute or
complaint with respect to the use, distribution or control of the water of, or in any inter-State river or river valleys has been vested in the Tribunal
appointed under Section 4 of the said Act. It is, therefore, not possible to accept the submission that the question of grant of interim relief falls outside
the submission that the question of grant of interim relief falls outside the purview of the said provisions and can be agitated under Article 131 of the
Constitution. Hence any executive order or a legislative enactment of a State which interferes with the adjudicatory process and adjudication by such
Tribunal is an interference with the judicial power of the State. In view of the fact that the Ordinance in question seeks directly to nullify the order of
the Tribunal passed on June 25, 1991, it impinges upon the judicial power of the State and is, therefore, ultra vires the Constitution.
Further, admittedly, the effect of the Ordinance is to affect the flow of the waters of the river Cauvery into the territory of Tamil Nadu and
Pondicherry which are the lower riparian States. The Ordinance has, therefore, an extra-territorial operation. Hence the Ordinance is on that account
beyond the legislative competence of the State and is ultra vires the provisions of Article 245(1) of the Constitution.
The Ordinance is also against the basic tenets of the rule of law inasmuch as the State of Karnataka by issuing the Ordinance has sought to take
law in its own hand and to be above the law. Such an act is an invitation to lawlessness and anarchy, inasmuch as the Ordinance is a manifestation of
a desire on the part of the State to be a judge in its own cause and to defy the decisions of the judicial authorities. The action forebodes evil
consequences to the federal structure under the Constitution and open doors for each State to act in the way it desires disregarding not only the rights
of the other States, the orders passed by instrumentalities constituted under an Act of Parliament but also the provisions of the Constitution. If the
power of a State to issue such an Ordinance is upheld it will lead to the breakdown of the constitutional mechanism and affect the unity and integrity
of the nation.â€
Yet again a Constitution Bench of this Court in State of Tamil Nadu v. State of Kerala, (2014) 12 SCC 696 has considered the question of
separation of powers doctrine under the Indian Constitution and it observed:
“126. On deep reflection of the above discussion, in our opinion, the constitutional principles in the context of Indian Constitution relating to
separation of powers between legislature, executive and judiciary may, in brief, be summarized thus:
126.1 Even without express provision of the separation of powers, the doctrine of separation of powers is an entrenched principle in the Constitution of
India. The doctrine of separation of powers informs the Indian constitutional structure and it is an essential constituent of rule of law. In other words,
the doctrine of separation of power though not expressly engrafted in the Constitution, its sweep, operation, and visibility are apparent from the
scheme of Indian Constitution. Constitution has made demarcation, without drawing formal lines between the three organs-legislature, executive, and
judiciary. In that sense, even in the absence of express provision for separation of powers, the separation of powers between legislature, executive
and judiciary is not different from the Constitutions of the countries which contain express provision for separation of powers.
126.2 Independence of courts from the executive and legislature is fundamental to the rule of law and one of the basic tenets of Indian Constitution.
Separation of judicial power is a significant constitutional principle under the Constitution of India.
126.3 Separation of powers between three organs - the legislature, executive, and judiciary - is also nothing but a consequence of principles of equality
enshrined in Article 14 of the Constitution of India. Accordingly, breach of separation of judicial power may amount to negation of equality under
Article 14. Stated thus, a legislation can be invalidated on the basis of breach of the separation of powers since such breach is negation of equality
under Article 14 of the Constitution.
126.4 The superior judiciary (High Courts and Supreme Court) is empowered by the Constitution to declare a law made by the legislature (Parliament
and State Legislatures) void if it is found to have transgressed the constitutional limitations or if it infringed the rights enshrined in Part III of the
Constitution.
126.5 The doctrine of separation of powers applies to the final judgments of the courts. The legislature cannot declare any decision of a court of law
to be void or of no effect. It can, however, pass an amending Act to remedy the defects pointed out by a court of law or on coming to know of it
aliunde. In other words, a court’s decision must always bind unless the conditions on which it is based are so fundamentally altered that the
decision could not have been given in the altered circumstances.
126.6 If the legislature has the power over the subject-matter and competence to make a validating law, it can at any time make such a validating law
and make it retrospective. The validity of a validating law, therefore, depends upon whether the legislature possesses the competence which it claims
over the subject- matter and whether in making the validation law it removes the defect which the courts had found in the existing law.
126.7 The law enacted by the legislature may apparently seem to be within its competence but yet in substance, if it is shown as an attempt to
interfere with the judicial process, such law may be invalidated being in breach of doctrine of separation of powers. In such situation, the legal effect
of the law on a judgment or a judicial proceeding must be examined closely, having regard to legislative prescription or direction. The questions to be
asked are:
(i) Does the legislative prescription or legislative direction interfere with the judicial functions?
(ii) Is the legislation targeted at the decided case or whether impugned law requires its application to a case already finally decided?
(iii) What are the terms of law; the issues with which it deals and the nature of the judgment that has attained finality?
If the answer to Questions (i) and (ii) is in the affirmative and the consideration of aspects noted in Question (iii) sufficiently establishes that the
impugned law interferes with the judicial functions, the Court may declare the law unconstitutional.â€
This Court has observed that independence of the judiciary is fundamental to the rule of law. A legislation can be invalidated on the basis of
breach of separation of judicial power since such breach is negation of equality under Article 14. Law can be declared void if it is found to have
transgressed the constitutional limitations. The legislature cannot declare any decision of a court of law to be void or of no effect. It can remove the
defects of the law pointed out by the court or on coming to know of it aliunde; otherwise, a court’s decision must always bind unless the conditions
on which it is based are so fundamentally altered that the decision could not have been given in such altered circumstances. The legislature can make
a validating law. Making validation as such, it removes the defect which the court finds in the existing law. There cannot be an attempt to interfere
with the judicial process, and such law may be invalidated. The questions to be examined are: whether the legislation targeted at the decided case,
what are the terms of law; the issues with which it deals and the nature of the judgment that has attained finality? If law interferes with the judicial
functions on the aforesaid tests laid down in para 126.7, the Court may declare the law as unconstitutional.
In S.R. Bhagwat v. State of Mysore, (1995) 6 SCC 16, the provisions of Karnataka State Civil Services (Regulations of Promotion, Pay &
Pension) Act, 1973 came up for consideration of this Court. Provisions were made in section 11 nullifying the judgments and orders of this Court as
had become final, and empowering the State to review such judgments and orders was held to be interference with the powers of the State legislature,
and the Court struck down section 11(2) as ultra vires of the legislative powers of the State and sections 4(2), 4(3) and 4(8) were read down which
sought to deprive the petitioners of the benefits of the judgment of the court which had become final. It was further observed that once the judgment
has attained finality and was binding against the State, it cannot be overruled by any legislative measure. The Court observed that court’s
judgments cannot be nullified by the legislature:
“15. We may note at the very outset that in the present case the High Court had not struck down any legislation which was sought to be re-
enacted after removing any defect retrospectively by the impugned provisions.
This is a case where on interpretation of existing law, the High Court had given certain benefits to the petitioners. That order of mandamus was
sought to be nullified by the enactment of the impugned provisions in a new statute. This in our view would be clearly impermissible legislative
exercise.
A mere look at sub-section (2) of Section 11 shows that the respondent State of Karnataka, which was a party to the decision of the Division
Bench of the High Court against it had tried to get out of the binding effect of the decision by resorting to its legislative power. The judgments,
decrees, and orders of any court or the competent authority which had become final against the State were sought to be done away with by enacting
the impugned provisions of sub- section (2) of Section 11. Such an attempt cannot be said to be a permissible legislative exercise. Section 11(2),
therefore, must be held to be an attempt on the part of the State Legislature to legislatively overrule binding decisions of competent courts against the
State. It is no doubt true that if any decision was rendered against the State of Karnataka which was pending in appeal and had not become final it
could rely upon the relevant provisions of the Act which were given retrospective effect by sub-section (2) of Section 1 of the Act for whatever such
reliance was worth. But when such a decision had become final as in the present case when the High Court clearly directed respondent- State to give
to the petitioners concerned deemed dates of promotions if they were otherwise found fit and in that eventuality to give all benefits consequential
thereon including financial benefits, the State could not invoke its legislative power to displace such a judgment. Once this decision had become final
and the State of Karnataka had not thought it fit to challenge it before this Court presumably because in identical other matters this Court had upheld
other decisions of the Karnataka High Court taking the same view, it passes one’s comprehension how the legislative power can be pressed in
service to undo the binding effects of such mandamus. It is also pertinent to note that not only sub- section (2) of Section 11 seeks to bypass and
override the binding effect of the judgments but also seeks to empower the State to review such judgments and orders and pass fresh orders in
accordance with provisions of the impugned Act. The respondent-State in the present case by enacting sub-section (2) of Section 11 of the impugned
Act has clearly sought to nullify or abrogate the binding decision of the High Court and has encroached upon the judicial power entrusted to the
various authorities functioning under the relevant statutes and the Constitution.
Such an exercise of legislative power cannot be countenanced.
We, therefore, strike down Section 11 sub-section (2) as unconstitutional, illegal and void. So far as the underlined impugned portions of Section 4
sub-sections (2), (3) and (8) are concerned, they clearly conflict with the binding direction issued by the Division Bench of the High Court against the
respondent-State and in favour of the petitioners. Once respondent-State had suffered the mandamus to give consequential financial benefits to the
allottees like the petitioners on the basis of the deemed promotions such binding direction about payment of consequential monetary benefits cannot be
nullified by the impugned provisions of Section 4. Therefore, the underlined portions of sub-sections (2), (3) and (8) of Section 4 will have to be read
down in the light of orders of the court which have become final against the respondent-State and insofar as these provisions are inconsistent with
these final orders containing such directions of judicial authorities and competent courts, these impugned provisions of Section 4 have to give way and
to the extent of such inconsistency must be treated to be inoperative and ineffective. Accordingly the aforesaid provisions are read down by observing
that the statutory provisions contained in sub-sections (2), (3) and (8) of Section 4 providing that such persons who have been given deemed
promotions shall not be entitled to any arrears for the period prior to the date of their actual promotion, shall not apply in cases where directions to the
contrary of competent courts against the respondent- State have become final.â€
The decision in Cheviti Venkanna Yadav v. State of Telangana, (2017) 1 SCC 283, was relied on behalf of the respondents, wherein the Court
considered the question of amendment with retrospective effect after a provision of the Act is struck down by the court. When does it not amount to
the statutory overruling of a judgment by the legislature? This Court held that the legislature has the power to legislate including the power to
retrospectively amend the laws and thereby removing causes of ineffectiveness or invalidity. Further, when such correction is made, the purpose
behind the same is not to overrule the decision of the court or encroach upon the judicial turf, but simply enact a fresh law with retrospective effect to
alter the foundation and meaning of the legislation and to remove the base on which the judgment is founded. The order of the High Court, inter alia,
holding that the amended provisions did not usurp the judicial power was upheld and the court also opined that there was no violation of Article 14 of
the Constitution. The Court observed:
“25. We shall deal first point first. The Reorganization Act came into force on 02.06.2014. Submission is, prior to the said date, the legislature that
was not in existence as an entity could not have legislated relating to some aspect that covers the prior period.
The aforesaid submission should not detain us long. In Rattan Lal and Co. v. The Assessing Authority, Patiala, AIR 1970 SC 1742 the Court was
dealing with the competence of State of Haryana pertaining to a legislation enacted by the State of Haryana by way of an amendment prior to the
reorganisation of the State. In that context the Court held:
“12. …It is argued that the reorganisation of the State took place on November 1, 1966, and the amendment in some of its parts seeks to amend
the original Act from a date anterior to this date. In other words, the legislature of one of the States seeks to amend a law passed by the composite
State. This argument entirely misunderstands the position of the original Act after the reorganisation. That Act applied now as an independent Act to
each of the areas and is subject to the legislative competence of the legislature in that area. The Act has been amended in the new States in relation to
the area of that State and it is inconceivable that this could not be within the competence. If the argument were accepted then the Act would remain
unamendable unless the composite State came into existence once more. The scheme of the States Reorganization Acts makes the laws applicable to
the new areas until superseded, amended or altered by the appropriate legislature in the new States.
This is what the legislature has done and there is nothing that can be said against such amendment.â€
The aforesaid passage makes it clear as crystal that after the legislature came into existence, it has the competence to enact any law retrospectively
or prospectively within the constitutional parameters.
The second issue that emanates for consideration is whether the base of the earlier judgment has really been removed. Before stating the factual
score, it is necessary to state how this Court has viewed the said principle. In Shri Prithvi Cotton Mills Ltd. v. Broach Borough Municipality, (1969) 2
SCC 283, the Constitution Bench while dealing with the legislation which intended to validate the tax declared by law to be illegal, opined that when a
Legislature sets out to validate a tax declared by a court to be illegally collected under an ineffective or an invalid law, the cause for ineffectiveness or
invalidity must be removed before validation can be said to take place effectively. The most important condition, of course, is that the Legislature must
possess the power to impose the tax, for if it does not, the action must ever remain ineffective and illegal. Granted legislative competence, it is not
sufficient to declare merely that the decision of the Court shall not bind, for that tantamount to reversing the decision in exercise of judicial power
which the Legislature does not possess or exercise. A court’s decision must always bind unless the conditions on which it is based are so
fundamentally altered that the decision could not have been given in the altered circumstances. Thereafter, the Court proceeded to state that validation
of a tax so declared illegal may be done only if the grounds of illegality or invalidity are capable of being removed and are in fact removed and the tax
thus made legal. The legislature does it many a way. One of the methods it may adopt is to give its own meaning and interpretation of the law under
which tax was collected and by legislative fiat makes the new meaning binding upon courts. On such legislation being brought, it neutralizes the effect
of the earlier decision as a consequence of which it becomes ineffective. The test of validity of a validating law depends upon whether the Legislature
possesses the competence which it claims over the subject-matter and whether in making the validation it removes the defect which the courts had
found in the existing law and makes adequate provisions in the validating law for a valid imposition of the tax.
In Bhubaneshwar Singh v. Union of India, (1994) 6 SCC 77 in view of Section 3 of the Coking Coal Mines (Emergency Provisions) Act, 1971
which was promulgated in the year 1971 the Custodian being appointed by the Central Government took over the management of Coking Coal Mines
and the said mines remained under the management of the Central Government through the custodian during the period from 17.10.1971 to
30.04.1972. The Coking Coal Mines (Nationalisation) Act, 1972 came into force w.e.f. 1.5.1972, and the right, title and interest of the owners in
relation to Coking Coal Mines stood transferred to and vested absolutely in the Central Government free from all encumbrances. The provisions of the
said Act were challenged before this Court in the case of Tara Prasad Singh v. Union of India, (1980) 4 SCC 179 and the Constitution Bench upheld
the validity of the said Act. The writ Petitioner before the High Court making a grievance that the Custodian had debited the expenses for raising the
coal while the Coking Coal Mine was under the Management of the Custodian but had not credited the price for the quantity of the coal raised, which
was lying in stock on the date prior to the date the said Coal Mine vested under the Central Government. The High Court allowed the writ petition and
a direction was issued that account be recast and payment be made to the Petitioner. The appeal before this Court by special leave was dismissed, as
this Court was of the view that sale price of stock of extracted coal lying at the commencement of the appointed date had to be taken into account for
determining the profit and loss during the period of management of the mine by the Custodian. After the appeal preferred by the Coal Fields was
dismissed, Coal Mines Nationalisation Laws (Amendment) Ordinance, 1986 was promulgated and later on replaced by Coal Mines Nationalisation
Laws (Amendment) Act, 1986 came into force. By Section 4 of the Amendment Act, Sub-section (2) was introduced in Section 10 of the Coking
Coal Mines (Nationalisation) Act, 1972. The said provision declared that the amounts specified in the fifth column of the First Schedule against any
coking coal mines or group of coking coal mine specified in the second column of the said Schedule are required to be given by the Central
Government to its owner under Subsection (1) shall be deemed to be included, and deemed always to have included, the amount required to be paid to
such owner in respect of coal in stock or other assets referred to in Clause (j) of Section 3 on the date immediately before the appointed day and no
other amount shall be paid to the owner in respect of such coal or other assets. Section 19 was the validating provision.
The writ petition was filed questioning the validity of the said ordinance primarily on the ground that it purported to nullify the judgment rendered in
the case of Central Coal Fields Ltd. v. Bhubaneswar Singh, (1984) 4 SCC 429/. The Court referred to the provisions and opined that:
“13. …if Sub-section (2) as introduced by the Coal Mines Nationalisation Laws (Amendment) Act, 1986 in Section 10 had existed since the very
inception, there was no occasion for the High Court or this Court to issue a direction for taking into account the price which was payable for the stock
of coke lying on the date before the appointed day. The authority to introduce Sub- section (2) in Section 10 of the aforesaid Act with retrospective
effect cannot be questioned. Once the amendment has been introduced retrospectively, courts have to act on the basis that such provision was there
since the beginning. The role of the deeming provision need not be emphasised in view of series of judgments of this Court.
Hence reading Sub-section (2) of Section 10 along with Section 19, it has to be held that Respondents are not required to take into account the stock
of coke lying on the date prior to the appointed day, for the purpose of accounting during the period when the mine in question was under the
management of the Central Government, because it shall be deemed that the compensation awarded to the Petitioner included the price for such coal
lying in stock on the date prior to the appointed day. Neither any compensation is to be paid for such stock of coal nor the price thereof is to be taken
into account for the purpose of Sub- section (1) of Section 22 of the Coking Coal Mines (Nationalisation) Act, 1972.â€
Being of this view, the Court dismissed the writ petition.
In State of H.P. v. Narain Singh, (2009) 13 SCC 165 while dealing with the validation of statute the Court ruled that:
“26. It is therefore clear where there is a competent legislative provision which retrospectively removes the substratum of foundation of a
judgment, the said exercise is a valid legislative exercise provided it does not transgress any other constitutional limitation.â€
To arrive at the said conclusion, the two- Judge Bench reproduced from the decision in Constitution Bench in State of T.N. v. Arooran Sugars Ltd.,
(1997) 1 SCC 326 which is to the following effect:
“28. … ‘16. …It is open to the legislature to remove the defect pointed out by the court or to amend the definition or any other provision of the
Act in question retrospectively. In this process, it cannot be said that there has been an encroachment by the legislature over the power of the
judiciary. A court’s directive must always bind unless the conditions on which it is based are so fundamentally altered that under altered
circumstances such decisions could not have been given. This will include removal of the defect in a statute pointed out in the judgment in question, as
well as alteration or substitution of provisions of the enactment on which such judgment is based, with retrospective effect.’
From the aforesaid authorities, it is settled that there is a demarcation between legislative and judicial functions predicated on the theory of
separation of powers. The legislature has the power to enact laws including the power to retrospectively amend laws and thereby remove causes of
ineffectiveness or invalidity. When a law is enacted with retrospective effect, it is not considered as an encroachment upon judicial power when the
legislature does not directly overrule or reverse a judicial dictum. The legislature cannot, by way of an enactment, declare a decision of the court as
erroneous or a nullity, but can amend the statute or the provision so as to make it applicable to the past. The legislature has the power to rectify,
through an amendment, a defect in law noticed in the enactment and even highlighted in the decision of the court. This plenary power to bring the
statute in conformity with the legislative intent and correct the flaw pointed out by the court can have a curative and neutralizing effect. When such a
correction is made, the purpose behind the same is not to overrule the decision of the court or encroach upon the judicial turf, but simply enact a fresh
law with retrospective effect to alter the foundation and meaning of the legislation and to remove the base on which the judgment is founded. This
does not amount to statutory overruling by the legislature. In this manner, the earlier decision of the court becomes non-existent and unenforceable for
interpretation of the new legislation. No doubt, the new legislation can be tested and challenged on its own merits and on the question whether the
legislature possesses the competence to legislate on the subject matter in question, but not on the ground of over-reach or colourable legislation.â€
There is no dispute with the aforesaid proposition that the legislature has the power to retrospectively amend the laws and thereby remove the
causes of ineffectiveness or invalidity on which judgment is based, and that would not be an encroachment upon judicial power when the legislature
does not directly overrule or reverse a judicial dictum.
Reliance has also been placed by the respondents on Goa Foundation v. State of Goa, (2016) 6 SCC 602 wherein the Court has discussed the
matter thus:
“24. The principles on which first question would require to be answered are not in doubt. The power to invalidate a legislative or executive act lies
with the Court. A judicial pronouncement, either declaratory or conferring rights on the citizens cannot be set at naught by a subsequent legislative act
for that would amount to an encroachment on the judicial powers. However, the legislature would be competent to pass an amending or a validating
act, if deemed fit, with retrospective effect removing the basis of the decision of the Court. Even in such a situation, the courts may not approve a
retrospective deprivation of accrued rights arising from a judgment by means of a subsequent legislation [Madan Mohan Pathak v. Union of India,
(1978) 2 SCC 50. However, where the Court’s judgment is purely declaratory, the courts will lean in support of the legislative power to remove
the basis of a Court judgment even retrospectively, paving the way for a restoration of the status quo ante. Though the consequence may appear to be
an exercise to overcome the judicial pronouncement it is so only at first blush; a closer scrutiny would confer legitimacy on such an exercise as the
same is a normal adjunct of the legislative power. The whole exercise is one of viewing the different spheres of jurisdiction exercised by the two
bodies i.e. the judiciary and the legislature. The balancing act, delicate as it is, to the constitutional scheme, is guided by well- defined values which
have found succinct manifestation in the views of this Court in Bhaktwar Trust(supra).
If the above principles are to be applied to the present case what follows is that Section 41(6) to (9) introduced in the Principal Act by the Goa
State Amendment renders ineffective Clause 4(viii) of the Agreement executed by the parties Under Section 41 of the Principal Act. With Clause
4(viii) being deleted the embargo on constructions on the acquired land is removed. It is the aforesaid Clause 4(viii) and its legal effect, in view of
Section 42, that was the basis of the Court’s decision dated 20th January 2009 holding the construction raised by the third Respondent on the
acquired land to be illegal and contrary to the Principal Act. Once Clause 4(viii) is removed the basis of the earlier judgment stands extinguished. In
fact, it may be possible to say that if Clause 4(viii) had not existed at all, the judgment of the Court dated 20th January 2009 would not have been
forthcoming. It was therefore well within the domain of the legislature to bring about the Amendment Act with retrospective effect, the Legislative
field also being in the Concurrent List, namely, Entry No. 42 of List III (Acquisition and Requisition of Property) of the Seventh Schedule to the
Constitution.â€
The Court in Tika Ram (supra) observed that the legislature had no power to overrule the judgment. However, it has the power to suitably amend
the law to remove flaw pointed out by the Court. It was observed:
“57. This argument is completely answered in Meerut Development Authority v. Satbir Singh reported in (1996) 11 SCC 462. This Court was
considering this very proviso of Section 17(4) inserted by Land Acquisition [U.P. Amendment and Validation Act, 1991 [UP Act No. 5 of 1991] and
relying upon the judgment reported as GDA v. Jan Kalyan Samiti, Sheopuri reported in (1996) 2 SCC 365, the Court took the view in paragraph 10
that when this Court had declared a particular statute to be invalid, the Legislature had no power to overrule the judgment. However, it has the power
to suitably amend the law by use of proper phraseology removing the defects pointed out by the Court and by amending the law inconsistent with the
law declared by the Court so that the defects which were pointed out were never on statute for enforcement of law. Such an exercise of power to
amend a statute is not an incursion on the judicial power of the Court but as a statutory exercise on the constituent power to suitably amend the law
and to validate the actions which have been declared to be invalid.
Reliance was also placed on the judgment in Bakhtawar Trust v. M.D. Narayanreported in (2003) 5 SCC 298. Learned Counsel for the appellant
relied on paragraphs 14 to 16. In our opinion, paragraph 14 was completely against the appellants wherein the State Legislature’s power to make
retrospective legislation and thereby validating the prior executive and legislative acts retrospectively is recognized. Of course, the same has to be
done only after curing the defects that led to the invalidation. We respectfully agree with the propositions laid down in paragraphs 14, 15 and 16
thereof. In Shri Prithvi Cotton Mills Ltd. v. Broach Borough Municipalityreported in (1969) 2 SCC 28,3 which is referred to in paragraph 16 of the
decision, it is stated that:
“the Legislature may follow any one method or all of them and while it does so, it may neutralize the effect of earlier decision of the Court which
becomes ineffective after the change of the law.â€
It is further stated therein that the validity of the validating law, therefore, depends upon whether the Legislature possesses the competence which it
claims over the subject matter and whether in making the validation it removes the defect which the Courts had found in the existing law. The
Amending Act has clearly passed these tests. All the relevant cases on this subject have been considered in this judgment.â€â€
We do not believe the argument assists Mr Vashi at all. We note Mr Thorat’s argument that now that the main SEBC Act has been upheld
and found to be within legislative competence, it follows that the legislature was competent to enact an amendment. The amendment does not nullify
or attempt to overrule or render void any decision of this Court or of the Supreme Court. It is his submission, one that we are inclined to accept, that
the amendment provides for clarity and gives a specific date for a defined class, namely, NEET-governed cases. He is also correct in pointing out that
the amendment only addresses the State reservation because obviously the State cannot go beyond.
He is also correct in his submission that what the Division Bench had before it in Dr Sanjana Narendra Wadewale was a notification, not an
amendment and that too one that only applied to postgraduate courses. When considering the Amending Ordinance, the immediate pre-cursor to the
amending Act, the Division Bench in Dr Sameer Rajendra Deshmukh dismissed the challenge, and it is this decision that is determinative.
Finally, he points out that the Petitioners’ entire case is predicated on the SEBC Act being inapplicable to the current admission process, yet
the petitioners have not been able to demonstrate any right, let alone an enforceable or fundamental right, that is in any way infringed. There is no
guarantee of an admission. There is no right to any particular seat in any particular college.
We are of the firm view that where the language of a statute is plain and clear from its literal reading then no process of convoluted reasoning is
permissible to arrive at some totally different result. We see no ambiguity at all in the newly introduced sub-clause (ia). It may be a distinct type of
entrance test but it is clearly a specified entrance test. It applies to the State quota seats and nothing else. The non obstante provisions cannot be
ignored and these non obstante provisions set it apart from all entrance tests covered by sub-clause (1). The phrase is ‘notwithstanding anything
contained in clause (1) above’. The mere use of the words ‘notwithstanding any order, judgment or direction of any Court’ does not mean
that the State legislature has tried to overrule or render void or nullify by legislature any judgment of any Court.
Indeed, we are of the view that there was nothing in that there was no decision that came in the way of the State Legislature simply because in Dr
Sameer Rajendra Deshmukh, the substantive challenge to the amending Ordinance, since replaced by an amending Act, failed. That decision was
confirmed by the Supreme Court. There is, therefore, no question of the State Government attempting to ‘nullify’ any decision.
We need not enter into any further debate to draw any nicer distinctions about the meaning of the words “admission processâ€. Specifically,
since the NEET last date for filling in application forms was delayed to 7th December 2018 and the SEBC Act came into force on 30th November
2018, it is Mr Thorat’s submission that even without the amendment, the petitioners would be out of Court since the admission process could not
really he said to have started until all the application forms were received. Prior to that date there was only the preliminary gathering of forms. We
note the submission but see no reason to delve any further into it because in our view this is hardly determinative.
Mr Vashi’s final argument that sub-clause (ii) as amended yields the clue to a interpretation of clause (ia) is also not a submission that appeals
to us. He says that as amended clause (ii) makes an exception to both clauses (i) and (ia) and that this, therefore, necessarily mean that the SEBC
Act cannot be applied to the current admission process. We do not think this argument has any merit.
In summary we may only note the following. All challenges before the Nagpur Bench of this court and before the Supreme Court were only in
relation to postgraduate courses. The Dr Sanjana Narendra Wadewale decision was in relation to a notification of March 2019 and was prior to the
SEBC Amendment Act or even the SEBC Amendment Ordinance. The findings therein, therefore, cannot form the basis of a challenge to the SEBC
Amendment Act applied to undergraduate admissions. This is all the more so when we find that the Nagpur Division Bench dismissed a later
challenge in Dr Sameer Rajendra Deshmukh to the SEBC Amendment Ordinance (although even that challenge was also only in relation to
postgraduate admissions).
Having regard to these circumstances , we are of the view that there is no merit to the challenge in the petitions. They are dismissed. There will
be no order as to costs.