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2017 Supreme(Guj) 1801
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R. SUBHASH REDDY, VIPUL M. PANCHOLI, JJ.
Association of Self-Financed Ayurveda Colleges of Gujarat - Petitioner
Versus
State of Gujarat & Anr. - Respondents
Special Civil Application No. 12829 of 2017 with Special Civil Application Nos. 12845, 12848, 12856 of 2017
Decided On : 02-08-2017
For the Petitioners:Mr. D.C. Dave, Senior Advocate with Mr. Udit Vyas & Mr. Jigar M. Patel, Advocates.
For the Respondents:Mr. Prakash Jani, Additional Advocate General with Ms. Manisha L. Shah, Government Pleader and Mr. K.M. Antani & Mr. Bharat Vyas, Assistant Government Pleaders.
Headnote:Constitution of India, 1950 - Art. 226 - Gujarat Professional Medical Educational Colleges or Institutions Act, 2007 (3 of 2008) - Sec. 6(ii) - Gujarat Professional Medical Educational Courses Rules, 2017 - Rules 2(1)(i), 7 & 8 - Vires - Sec. 6(ii) - Rule 2(1)(i) - Rules 2(1)(i), 7 & 8. This present petition is filed for quashing the overriding effect of Rule 2(1)(i), 7 & 8 to Sec. 6(ii) of Gujarat Professional Medical Educational Colleges or Institutions Act, 2007 - as per the facts of this case legislature has framed Rule 2(1)(i) , 7 & 8 under Section 20 of the Act taking away powers of private unaided professional medical educational institutions to admit students in management quota seats - after perusal of pertaining provisions court held that Rule 2(1)(i), 7 & 8 has overriding effect to Section 6 of the Act which violates the power and autonomy conferred to private unaided medical professional educational institutions - further court held that Sec. 20 of the Act does not confer any power to state to frame any rule beyond the jurisdiction of substantive provisions of the act.
R. SUBHASH REDDY, J.
1. In these four Special Civil Applications under Article 226 of the Constitution of India, validity of Rule 2(1)(i), Rule 7 and Rule 8 of Gujarat Professional Medical Educational Courses (Regulation of Admission in Undergraduate Courses) Rules, 2017, framed under the Gujarat Professional Medical Educational Colleges or Institutions (Regulation of Admission and Fixation of Fees) Act, 2007, is questioned, and therefore, they are heard together and disposed of by this common judgment. For the purpose of disposal, we draw facts from Special Civil Application No. 12829 of 2017.
2. Special Civil Application No. 12829 of 2017 is filed with the prayers, which read as under :
“(a) That this Hon’ble Court may be pleased to declare Rule 2(1)(i), Rule 7 and Rule 8 of the Gujarat Professional Medical Educational Colleges Courses (Regulation of Admission in Undergraduate Courses) Rules, 2017 as ultra-vires to the extent the same are having the effect of depriving the management of self-financed colleges engaged in imparting education in the discipline of Ayurveda at the level of graduation from granting admissions in respect of Management Seats as provided in Section 6 of the Gujarat Professional, Medical, Educational Colleges or Institutions (Regulation of Admissions and Fixation of Fees) Act, 2007.
(b) That pending admission, hearing and final disposal of the present petition, this Hon’ble Court may be pleased to stay the implementation and operation of Rule 2(1)(i), Rule 7 and Rule 8 of the Gujarat Professional Medical Educational Colleges Courses (Regulation of admission in Undergraduate Courses) Rules, 2017 to the extent the same are having the effect of depriving the management of self-financed colleges engaged in imparting education in the discipline of Ayurveda at the level of graduation from granting admissions in respect of Management Seats as provided in Section 6 of the Gujarat Professional, Medical, Educational Colleges or Institutions (Regulation of Admissions and Fixation of Fees) Act, 2007.
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3. In this petition, the petitioner is Association of Self-financed Ayurveda Colleges of Gujarat. All the members of the petitioner-Association are running Ayurveda colleges in the State of Gujarat imparting education in the discipline of Ayurveda at the level of graduation and post graduation leading to conferring of educational qualification of Bachelor of Ayurveda Medicine & Surgery (B.A.M.S.) and Doctor of Medicine (M.D. Ayu.). Respondent No.1-State, through its Health and Family Welfare Department, inter alia, looks after the field of education in the State of Gujarat. Admission Committee, respondent no.2 herein, is a body constituted under section 4 of the Gujarat Professional Medical Educational Colleges or Institutions (Regulation of Admissions and Fixation of Fees) Act, 2007. Respondent no.2 regulates the process of admission, inter alia, in respect of self-financed colleges in the State, engaged in imparting education in the discipline of Ayurveda at the level of graduation and Post graduation.
3.1. After the judgment in the case of P.A. Inamdar Vs. State of Maharashtra and others, reported in (2005) 6 SCC 537, the Gujarat Professional Medical Educational Colleges or Institutions (Regulation of Admission and Fixation of Fees) Act, 2007 was enacted in the State of Gujarat to make special provision for regulation of admissions in the professional medical educational colleges or institutions in the State and fixation of fees in such colleges or institutions in the State, which empowers the authorities to fix fees in such colleges or institutions and for matters connected therewith. The relevant provisions of the Gujarat Professional Medical Educational Colleges or Institutions (Regulation of Admission and Fixation of Fees) Act, 2007 reads as under :
2(a) “Admission Committee” means the Admission committee constituted in accordance with the provisions of section 4;
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2(g) “Government seat
