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TMI Blog1994 (3) TMI 382X X X X Extracts X X X X X X X X Extracts X X X X ..... ness whereof is under challenge herein. 3.Having regard to the questions arising herein, it is necessary to notice the facts concerning the establishment of the college. On October 8, 1954, Shri M.P. Shah wrote a letter to the then Chief Minister of Saurashtra confirming the arrangement arrived at by him with Shri Manubhai Shah, who was evidently acting on behalf of the Chief Minister. It is necessary to quote the letter in full : Respected Shri Dhebarbhai, Today morning, I returned from Jamnagar and in good health. Hope, you will also be enjoying good health. On Monday the 4th October, I had satisfactory discussions with Shri Manubhai Shah at the residence of Shri Premchandbhai in Jamnagar for Medical College and hospital. He has shown good interest in the matter and let us pray that, by the grace of God this mission may be successful. Following decisions have been taken in the discussion with him. (1) Existing Irwin Hospital will be properly extended and the number of beds and other amenities will be provided as per the requirement of the medical college. Hospital shall be named after Mahatma Gandhi or any other great Indian leader instead of present name. (2)The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ters, Shri M.P. Shah was permitted to nominate students for admission to the extent of 10% of the total strength obtaining at a given time. This arrangement continued even after the formation of the State of Gujarat. In course of time, the college and the hospital grew in strength and size. As against 60 seats in 1955, the annual intake of the college rose to 175 three times the original number. In the year 1964, the Government of Gujarat took a decision that it would not be possible for it to reserve more than twelve seats for the nominees of the donor. Though a copy of the said proceedings is not placed before us, it is found referred to in the letter dated April 19, 1965 written by the Under Secretary to the Government of Gujarat to the trustee of Meghji Pethraj Charitable Trust. (It is stated that meanwhile the original donor, M.P. Shah had designated the respondent-trust as his nominee.) The letter reads: I am directed to refer to your letter dated March 4, 1965 on the subject noted above and to state that for the reasons given in Government letter No. MOG-1062/4257/Q dated August 11, 1964, it will be not possible for Government to reserve more than 12 seats for the nomine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 607 of 1992 between Unnikrishnan J.P. v. State of A.P.1 decided to discontinue the 12 donor seats in M.P. Shah Medical College, Jamnagar and 10 donor seats in Pramuch Swami Medical College, Karamsad. The decision of the Government has been communicated to the trustees concerned vide this department letter of even No. dated June 22, 1993 requesting them not to admit any student against the donor seats. Therefore in modification of rules for admission to first MBBS/BDS/Physiotherapy course at Government Medical College and P.S. Medical College, Karamsad/Government Dental College/School of Physiotherapy in Gujarat State for the year 199394 approved vide Government Resolution No. MCG-1093-1373-J dated 20-5-1993, Government is pleased (i) to delete the words 'and 3' appearing in 7th line of Rule 1 and (ii) to delete the words 'Provided that ... total available seats' appearing in 6th and 7th lines of the Rule 2 and (iii) to delete Rules 3.1, 3.2, 3.3, 3.4, and note thereunder. By order and in the name of the Government of Gujarat. (M.L. Jadav) Section Officer, Health and Family Welfare Department. 7. Accordingly the rules for admission to MBBS course in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consideration of the said donation, the court held, is reasonable. No appeal was preferred by anyone against the said decision. 9. Shri Altaf Ahmed, Additional Solicitor General appearing for the appellant (State of Gujarat) assailed the judgment of the Gujarat High Court on the following grounds: (1) The Government was justified in discontinuing the provision reserving 12 seats for being nominated by the respondent-trust inasmuch as the reservation of the kind is opposed to Articles 14 and 15 of the Constitution. According to the judgment in Unnikrishnan' no seats can be reserved for the family, group or community which may have established a private professional college; it is inconceivable that such a reservation can be provided in a government college. (2) Even if it is assumed for the sake of argument that such a provision was valid when it was made in 1954, it is not valid or reasonable after lapse of about forty years. (3) There was no contract between M.P. Shah and the Government of Saurashtra as provided by Article 299 of the Constitution. The arrangement between the Government of Saurashtra and Shri M.P. Shah is not legally enforceable in a court of law. (4) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en lakhs in 1954 is equivalent to Rupees seven and a half crores today. (6) The Government's order pertains to M.P. Shah Medical College as well as pharmacy college. By a common judgment, the learned Single Judge of the Gujarat High Court struck down the government resolution with respect to both colleges. The Government, however, chose to file appeal only in the case of M.P. Shah Medical College but not with respect to the pharmacy college. This is not only discriminatory and arbitrary but must also induce this Court not to interfere in this appeal since upsetting the judgment of the Gujarat High Court would result in two inconsistent orders. 11. Before we deal with the contentions urged by the learned counsel before us, it would be appropriate to notice a few facts. 12. M.P. Shah Medical College was established by the Government of Saurashtra. At all times, it has been maintained and run by the Government of Saurashtra/Gujarat from out of their own funds. Every medical college must necessarily have a hospital attached to it with requisite bed-strength and facilities; there cannot be a medical college without such an attached hospital. For this reason, as existing gov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is open to the donor/trust to nominate such candidates as they chose. The Government had no right to question the combinations made. While the trust says that they have been nominating students on a fair basis with a view to help genuine students and physically handicapped students, the Government says that the nomination did not follow any particular method or criteria and that the nominated students same from all over the country. The fact remains that the power of nomination was unregulated and absolute and lay within the sole discretion of the donor and his nominee. 14. Secondly, and more significantly, it is misleading to call the amount of Rupees fifteen lakhs paid by Shri M.P. Shah to the Government in the year 1954 as a donation . The said amount was not given by Shri M.P. Shah without any strings attached, but subject to certain conditions, one of which was of an enduring benefit to him. Not only the college (to be established and maintained by the Government) was to be named after Shri M.P. Shah, he bargained for and obtained a quota of 10 per cent seats to which he could nominate anyone. At the time the college was established the strength of the college was 60. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e said decision. It has been held in Unnikrishnan1 that while a person may have a right to establish an educational institution, it can certainly not be treated or operated as a trade or business. The following extract from the judgment brings out the essence of the holding on this aspect: (SCC pp. 75 1 52, paras 197-198) While we do not wish to express any opinion on the question whether the right to establish an educational institution can be said to be carrying on any 'occupation' within the meaning of Article 19(1)(g), perhaps, it is we are certainly of the opinion that such activity can neither be a trade or business nor can it be a profession within the meaning of Article 19(1)(g). Trade or business normally connotes an activity carried on with a profit motive. Education has never been commerce in this country. Making it one is opposed to the ethos, tradition and sensibilities of this nation. The argument to the contrary has an unholy ring to it. Imparting of education has never been treated as a trade or business in this country since time immemorial. It has been treated as a religious duty. It has been treated as a charitable activity. But never as trade or busi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made to the extent of 5% of the seats for accommodating the NRIs/foreign students in view of the orders and policy of the Government of India to encourage such students. It has also been directed expressly that there shall be no quota reserved for the management or for any family, caste or community, which may have established such college . If this is the position in the case of professional colleges established and administered by private bodies, it is inconceivable that in the case of a college established and run by the Government, any admissions can be made otherwise than on merit or any quota can be reserved for any person, family or trust, which may have assisted monetarily in establishing the college. The Government is not precluded from accepting donations from charitable-minded individuals of organisations but it cannot certainly enter into an arrangement or a venture of the kind concerned herein. In this case, the payment was more in the nature of a deal whereunder Shri M.P. Shah obtained in return an enduring benefit till the college lasts. It was not even a case, where the Government unilaterally offered something out of gratitude for such donation not that we are s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... position, where a plea of res judicata is sought to be raised between co- respondents in a writ petition, on the general principles of res judicata. Since the said basic requirement is not satisfied, the said judgment cannot be treated as res judicata between the trust and the Government. At the most, it can be used as an instance where the Government had affirmed the binding nature of the said arrangement but no more. That does not even give rise to an estoppel in the facts of this case. Merely because the Government had contended in 1974 that the said arrangement is a valid one and binding upon it, it cannot be said that it is precluded from resiling from the said position even when it has realised that such an arrangement is contrary to Article 14. There can be no acquiescence or waiver in such matters. If an individual cannot waive the fundamental rights conferred upon him by Part III, the State cannot equally be prevented from discharging its obligations placed upon it by Part III by rules of evidence like estoppel, acquiescence or waiver. 18. Shri Ramaswamy relied upon certain decisions in support of the, said contention which we may deal with briefly. The first decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led a suit raising another ground of challenge which was met by the State by raising the plea of res judicata. This Court held that the respondent was precluded by the rule of constructive res judicata from raising the said new ground in the suit which he did not raise in the writ petition, though it was within his knowledge and could have been taken in the writ petition. 21. The last decision cited by Shri Ramaswamy on this score is in Somawanti v. State of Punjab(1963) 2 SCR 774: AIR 1963 SC 151: (1963) 33 Com Cas. In this case, it was observed at pages 793-94 (SCR) that the mere fact that one of the contentions now raised was not raised or considered in an earlier decision which affirmed the validity of the enactment, does not furnish sufficient ground for reopening the issue. None of these cases are cases relating to res judicata between co-defendants/corespondents. 22. We are unable to see any substance in the argument that the termination of arrangement without observing the principle of natural justice (audi alteram partem) is void. The termination is not a quasi-judicial act by any stretch of imagination; hence it was not necessary to observe the principles of natural ..... X X X X Extracts X X X X X X X X Extracts X X X X
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