MEDICAL COUNCIL OF INDIA versus STATE OF KERALA & ORS. on 12 September 2018

[2018] 10 S.C.R. 213

MEDICAL COUNCIL OF INDIA

v.

STATE OF KERALA & ORS.

(Writ Petition (C) No. 231 of 2018)

SEPTEMBER 12, 2018

[ARUN MISHRA AND INDIRA BANERJEE, JJ.]

Constitution of India:

Articles 14, 50 and 213 (1) – Principle of ‘Separation ofPowers’ – Admission of 180 students to MBBS course were quashedby Admission Supervisory Committee – The order was affirmed byHigh Court as well as Supreme Court – State Government thereafternotified Ordinance whereby it sought to regularise the admission ofthose 180 students – Writ petition challenging the Ordinance on theground that the Ordinance amounted to nullifying the judgments/orders of the Court – Held: The impugned Ordinance is clearentrenchment upon the field of judicial review which is reserved forjudiciary – Provisions in the Ordinance were in violation of thedoctrine of separation of powers enshrined under Art. 50 –Ordinance is not only impermissible and beyond legislativecompetence of the State, it also had the effect of perpetuatingillegality and arbitrariness committed by the College in question innot following the mandate of law laid down by the Court –Independence of judiciary is fundamental to the rule of law – Alegislation can be invalidated on the basis of breach of separationof judicial power since such breach is negation of equality providedu/Art. 14 – There cannot be an attempt to interfere with the judicialprocess – Law which interferes with the judicial process may beinvalidated – The Ordinance is ultra vires and entrenchment uponthe field earmarked for judiciary, as it sought to nullify judgmentsof the Court.

Art. 141 – Judgment – Binding effect of – Held: If an Orderrefusing to grant leave to appeal is by speaking order, it is adeclaration of law within the meaning of Art. 141 – Whatever isstated in the order, other than law, are the findings of the Courtwhich would bind the parties and also the Court, Tribunal orAuthority – Precedent.

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214SUPREME COURT REPORTS

AArt. 142 – Power under – Scope of – Held: Power u/Art. 142cannot be exercised by the court to nullify its own judgment and toperpetuate illegality.

Allowing the Writ Petitions, the Court

HELD: 1.1 A bare reading of the Kerala ProcessionalBColleges (Regularisation of Admission in Medical Colleges)Ordinances, 2017, makes it clear that the same aims atregularisation of admissions of students during the academic year2016-17 which were set aside by the Admission SupervisoryCommittee (ASC), the High Court and by this Court to benefitConly two colleges and students in question. [Para 18] [223-E-F]

1.2 What has been done by the impugned Ordinance by theState Government is clearly entrenching upon the field of judicialreview and it was obviously misadventure resorted to. It was notat all permissible to the State Government to promulgate theDOrdinance/legislate in the matter. Not only the judgment of thecourt is nullified and the arbitrariness committed in admissionswas 17 glaring, and the decision of the High Court which wasaffirmed by this Court with respect to applications to beentertained if they were online applications has been undone. Itwas clearly an act of nullifying judgment and is violative of judicialEpowers which vested in the judiciary. It was not open for the StateGovernment to nullify the judgment/orders passed by the HighCourt or by this Court. It was not a case of removal of a defect inexisting law. Various Constitution Bench decisions of this Courthave settled the principles of law governing the field. It passesFcomprehension how the State Government has promulgated theOrdinance in question. [Para 21] [229-G-H; 230-A-C]

1.3 Independence of the judiciary is fundamental to the ruleof law. A legislation can be invalidated on the basis of breach ofseparation of judicial power since such breach is negation ofGequality under Article 14. Law can be declared void if it is foundto have transgressed the constitutional limitations. Thelegislature cannot declare any decision of a court of law to bevoid or of no effect. It can remove the defects of the law pointedout by the court or on coming to know of it aliunde; otherwise, acourt’s decision must always bind unless the conditions on whichH

it is based are so fundamentally altered that the decision couldnot have been given in such altered circumstances. Thelegislature 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. [Para 24] [234-F-H; 235-A-B]

1.4 The impugned Ordinance indicates that it is a blatantattempt of regularisation of admissions made which were declaredto be invalid not only by the High Court but by this Court afterthis Court had dealt with the order dated 14.11.2016 passed bythe ASC after hearing the matter for several days and the Courthad passed a reasoned order. While dismissing/disposing of thematters, this Court directed the 30 students who were illegallydeprived of the admission, to be admitted in the next academicsession 2017-18. It was clearly not a dismissal of the case in liminebut a reasoned order. In the writ petitions filed by the collegesand others, the validity and legality of the order dated 14.11.2016was questioned. However, this Court has upheld the same.Voluminous records were filed in this Court by both the medicalcolleges. The students were also heard when the decision wasrendered. Thereafter also several petitions were filed which weredismissed by this Court. Thus, when this Court has upheld theorder dated 14.11.2016 on the ground of illegality andirregularities and not following the due procedure, suchadmissions could not have been regularised at all. The StateGovernment has exceeded its powers and has entrenched uponthe field reserved for the judiciary. It could not have nullified thejudgment. The online procedure was laid down by the judgment.[Para 33] [251-G-H; 252-A-D]

1.5 What the State Government has done by way ofimpugned Ordinance is not only impermissible and beyondlegislative competence it also has the effect of perpetuatingillegality and arbitrariness committed by the colleges in questionby not following the mandate of law laid down by the High Courtas affirmed by this Court. An effort has been made to cover upthe arbitrariness and illegality in an illegal and impermissiblemanner for which the State Government had no competence. Theprovisions made in the Ordinance are otherwise also quite illegal AB

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Aand arbitrary besides in violation of the doctrine of separation ofpowers enshrined under Article 50 of the Constitution of India.[Para 34] [252-F-H]

Janapada Sabha Chhindwara v. The Central ProvincesSyndicate Ltd. and Anr. (1970) 1 SCC 509 : [1970] 3BSCR 745 ; Re: Cauvery Water Disputes Tribunal(1993) 1 Suppl. SCC 96 (II) : [1991] 2 Suppl. SCR497 ; State of Tamil Nadu and Ors. v. State of Keralaand Ors. (2014) 12 SCC 696 : [2014] 12 SCR 875– followed.

CS.R. Bhagwat and Ors. v. State of Mysore (1995) 6 SCC16 : [1995] 3 Suppl. SCR 545 ; S.T. Sadiq v. State ofKerala and Ors. (2015) 4 SCC 400 : [2015] 3 SCR287 – relied on.

Belgaum Gardeners Cooperative Production SupplyDand Sale Society Ltd. v. State of Karnataka(1993) 1 Suppl. SCC 96 : [1991] 2 Suppl. SCR 497;State of Tamil Nadu and Ors. v. State of Kerala andOrs. (2014) 12 SCC 696 : [2014] 12 SCR 875 ChevitiVenkanna Yadav v. State of Telangana & Ors. (2017) 1SCC 283 : [2016] 7 SCR 689 ; Goa Foundation &EAnr. v. State of Goa & Anr. (2016) 6 SCC 602 : [2016]1 SCR 1025 ; Goa Glass Fibre Ltd. v. State of Goa &Anr. (2010) 6 SCC 499 : [2010] 5 SCR 970 ; Tika Ram& Ors. v. State of Uttar Pradesh & Ors. (2009) 10 SCC689 : [2009] 14 SCR 905 – referred to.F

F2.1 Dismissal of a case by Supreme Court would remain adismissal by a non-speaking order where no reasons have beenassigned and no law has been declared by this Court. If an orderrefusing to grant leave to appeal by a speaking order gives reasonsfor refusing the grant of leave, then the order has twoGimplications; firstly the statement of law contained in the order isa declaration of law by this Court within the meaning of Article141 of the Constitution; secondly, other than the declaration oflaw, whatever is stated in the order are the findings recorded bythis Court which would bind the parties thereto and also theCourt,Tribunal or Authority. [Para 35] [256-B-D]H

2.2 In the present case, all the parties have filed thepleadings while the order was passed by this Court. Counteraffidavits, rejoinder and various other applications for taking onrecord the documents and plethora of documents were submittedbefore this Court and it was argued for several days at length.This Court has heard the matter and thereafter has expressedthe opinion and recording finding as to the legality of the orderdated 14.11.2016. The SLPs against the order passed by the HighCourt were also dismissed and this Court had directed that 30students be admitted in the next session. Independent directionswere issued which were not ordered by the High Court. ThisCourt directed that they are to be admitted to the academicsession 2017-18. Thus, it is not correct to contend that it was nota decision on merits by this Court. [Para 36] [256-D-E; 257-A-B]

Dr. Preeti Srivastava & Anr. v. State of M.P. & Ors.(1999) 7 SCC 120 : [1999] 1 Suppl. SCR 249 ; AnittaJob & Ors. v. The State of Kerala 2018 (6) SCALE 174– held inapplicable Kunhayammed & Ors. v. State of Kerala & Anr. (2000)6 SCC 359 : [2000] 1 Suppl. SCR 538 – referred to.

3. In the present case, in view of the previous verdicts,power u/Art. 142 of the Constitution cannot be exercised andapart from that when the judgments have attained finality, theyare binding on all concerned including this Court. Power underArticle 142 cannot be exercised to nullify its own judgment andto perpetuate illegality. [Para 39] [259-G]

Case Law Reference

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[2018] 10 S.C.R.

CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil)No. 231 of 2018

Under Article 32 of the Constitution of India D

WITH

Writ Petition (Civil ) No.178 of 2018.

Vikas Singh, Paramjit Singh Patwalia, Neeraj Kishan Kaul,EKailasnath Pilla, Ms. M. Mohana, Ranjit Kr. Jaideep Gupta, ChanderUday Singh, Sukumar Patjoshi, Vijay Hansaria, Sr. Advs., RaghavendraS. Srivatva, Saurabh Agrawal, Anish R. Shah, Venkita SubramoniamT.R., P. Sreekumar, Gaurav Sharma, Dhawal Mohan, Prateek Bhatia,Abhishek, Ms. Deepika Kalia, Ms. Shristi Banerjee, Zulfiker Ali P.S.,Faisal M. Aboobacker, Ms. Lakshmi Sree Puthenpurackal,FMs. Divyanshu Kumar Srivastava, Viren Sibal, Ms. VivekanandaB., Varun M., K. Gireesh Kumar, Alen Joseph, A. Karthik, G. Prakash,Jishnu M.L., Mrs. Priyanka Prakash, Mrs. Beena Prakash,Ms. Nayantara Roy, Ms. Anne Mathew, R.R. Kumar, Ms. Manjula Gupta,Deepak Prakash, Vishal Somany, Subhash Chandran K.R., Ms. SreeGDevi, Ms. Yanmi Phazang, Raneev Dahiya, Kunal Singh, NachiketaVajpayee, Subhash Choudhary, C.K. Sasi, Haris Beeran, Mushtaq Salim,Usman Ghani Khan, Dev Prakash, Ms. Pallavi Pratap, Sumit Saurav,Sachin Sharma, G.S. Makker, Advs. for the appearing parties.

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The Judgment of the Court was delivered by ARUN MISHRA, J. 1. The question involved in the writ petition/s is, whether the State of Kerala is competent to promulgate the KeralaProfessional Colleges (Regularisation of Admission in Medical Colleges)Ordinance, 2017 (hereinafter referred to as “the Ordinance”) notifiedon 20.10.2017, which is intended to nullify judgments and orders of thisCourt and encroaches upon the power of the judiciary.

2. The State of Kerala has promulgated the impugned Ordinancefor regularising the admission of 180 students who were illegally admittedin the Kannur Medical College and Karuna Medical College run byPrestige Educational Trust and Safe Development Alms Trustrespectively. The students were admitted to the said medical colleges inthe academic year 2016-17. After enquiry, it was found by the AdmissionSupervisory Committee of the professional colleges (in short “the ASC”)that admissions were illegal. The decision was upheld by the High Courtof Kerala and by this Court.

3. The background facts are that on 28.4.2016, this Court inSankalp Charitable Trust v. Union of India & Ors. (2016) 7 SCC487 directed that admissions to the MBBS/BDS courses shall be throughthe National Eligibility-cum-Entrance Test (NEET). The ASC vide orderdated 4.8.2016 issued several directions to all the professional collegesin the State of Kerala to conduct the admission process in compliance ofthe directions laid down by this Court in Sankalp Charitable Trust(supra). On 9.8.2016,the Central Government directed all the States andUnion Territories to conduct the combined/centralised counselling forthe academic year 2016-17 for admission in MBBS course in therespective States/Union Territories, in line with the judgment passed bythis Court in the case of Modern Dental College & Research Centre& Anr. v. State of M.P. & Ors. (2016) 7 SCC 353.

4. The Government of Kerala vide order dated 23.8.2016 directedall the medical colleges to admit only those students who were selectedthrough common counselling. Writ Petition [Civil] No.28041 of 2016 wasfiled in the Kerala High Court challenging the order dated 23.8.2016.The High Court vide order dated 26.8.2016 issued interim directions that A

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Athe admissions in the MBBS course for the academic year 2016-17 shallbe conducted on the basis of the marks obtained in NEET, 2016 and allapplications will be made online to facilitate transparency with regard tomerit and identities of the applicants.

5. The ASC on 3.9.2016 after taking cognizance of the variousBcomplaints received by it, issued directions to the private medical collegesin Kerala to comply with the directions issued by it on 4.8.2016. It wasalso mentioned that any student whose admission was made incontravention of the directions issued by the ASC, will not be registeredby Kerala University of Health Sciences (KUHS). On 6.9.2016 and9.9.2016, the ASC passed the orders with regard to the prospectusCsubmitted by Kannur and Karuna Medical Colleges approving theprospectus subject to the exception that reservation of seats under themanagement quota for the dependents of various trust associations wasunsustainable in law and could not be applied while admitting the students.Questioning the same, said medical colleges filed W.P. No.30697/2016Dand W.P. [C] No.30712/2016 in the Kerala High Court. The ASC videorder dated 10.9.2016 observed that the explanation submitted by themedical colleges was unsatisfactory and decided to revise the approvalof the prospectus and issued a revised admission schedule for theaforesaid medical colleges whereby the date for submitting onlineapplications was revised and extended till19.9.2016.E

6. After conducting an enquiry, the ASC issued an order dated15.9.2016 with respect to Kannur Medical College observing that themedical college had not called online applications as directed by theASC by its order dated 10.9.2016 and directed that the admissions made,if any, shall stand cancelled.F

7. The ASC passed another order after holding an enquiry on15.9.2016 with respect to Karuna Medical College and held that theportal for online was closed on 6.9.2016 and there was a contraventionof the directions passed by it in the order dated 10.9.2016 wherein therevised date for submitting online applications was up to 19.9.2016. OnG17.9.2016 the ASC passed yet another order addressed to all the medicalcolleges situated in Kerala State, the directions issued by it were reiteratedand it was also directed that the directions be placed on the website ofthe medical colleges forthwith. On 19.9.2016 the ASC further directedthe colleges to conduct all admissions strictly in compliance with theHdirections which were issued by it from time to time.

8. The High Court of Kerala by its order dated 23.9.2016 passedin aforesaid writ petitions filed by the medical colleges approved thedecision taken by the ASC in respect of de-reservation of the managementquota seats which were reserved for the dependants of various Trustassociations, and issued various interim directions, keeping the writpetitions pending. The order dated 23.9.2016 was questioned in this Courtin SLP [C] CC.Nos.19387-88/2016 – State of Kerala v. SafeDevelopment Alms Melamuri & Ors. which were dismissed and thisCourt requested the High Court to decide the main writ petition asexpeditiously as possible.

9. This Court vide order dated 28.9.2016 passed in C.A. No.9862/2016 – Union of India v. Sree Narayana Institute of Medical Sciences& Ors. set aside the interim direction passed by the Kerala High Courtwhich allowed private medical colleges in the State of Kerala to conducttheir own counselling and directed to conduct the centralised counsellingfor admissions in MBBS course for the academic year 2016-17. As thelast date was closed, this Court on 30.9.2016 passed an order in CANo.9862/2016 – Union of India v. Sree Narayana Institute of MedicalSciences & Ors. (supra) and extended the last date for admissions inMBBS course from 30[th] September to 7[th] October 2016 so as to complywith the order.

10. On 2.10.2016 separate orders were passed by the ASCwherein it was observed that the respondent-medical colleges havedeliberately flouted the directions issued vide its orders dated 4.8.2016,3.9.2016, 4.9.2016, 10.9.2016, 17.9.2016 and 19.9.2016. The ASCcancelled all the admissions made by the respondent medical colleges inthe MBBS course for the academic year 2016-17. Aggrieved by theorder dated 2.10.2016 the respondent medical colleges filed W.P.Nos.32186/2016 and 32185/2016 in the Kerala High Court. The KeralaHigh Court vide its order dated 6.10.2016 was pleased to direct therespondent medical colleges to place all the relevant records pertainingto admission process before the Commissioner for Entrance Examination(CEE) for verification. It was further directed that after verification ofthe records the CEE shall finalise allotment of seats strictly on the basisof interse merit and complete it by 7.10.2016.

11. On 7.10.2016, Kannur Medical College made a statementbefore the Kerala High Court that no student turned up before the CEE

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Aseeking admission in their college. On 13.10.2016 the Commissioner forEntrance Examination (CEE) submitted its report concluding that theprocedure followed by Karuna Medical College was flawed and therewere material irregularities committed by it while admitting 30 students.So far as Kannur Medical College was concerned, the representative ofthe said college appeared before the CEE on 7.10.2016 at about 11.30Ba.m. and left by 12.10 p.m. after furnishing the records. No explanationor clarification was furnished by the representatives of the medical college,and the conduct was noted by the CEE. The person who claimed to bethe representative of the college left immediately when he was asked tofurnish the letter of authorisation from the college authorities.

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12. The Kerala High Court vide judgment and final order dated28.10.2016 cancelled as many as 150 admissions made by Kannur MedicalCollege and 30 admissions made by Karuna Medical College through‘spot counselling’. The High Court of Kerala further directed the ASCto decide the rival claims made by students of both the medical collegesDwho had been admitted as well as the claims by other eligible studentswho were parties before the court.

13. The ASC passed a reasoned order dated 14.11.2016 wherebyit quashed 150 admissions made in Kannur Medical College and ASChas observed that applications were not received online:

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“13. The ASC has scrutinized the ‘online application’ submittedby the Medical College. Even a cursory look of the applicationshow that they are not actual ‘online applications’. The forms donot show the name of the Medical College to which the applicationswere made. It doesn’t carry photograph of the applicant. ThereFis no signature of applicant, either digital or scanned. There is noapplication date. On the whole, the submitted applications onlyshows that they have been prepared for the purpose of submittingbefore the ASC as an attempt to claim online application system.Even the documents submitted before the CEE on 07.10.2016, asper the interim order of the Hon’ble High Court, these applicationsGwere not seen submitted for consideration, as reported by CEE…”

14. On 15.11.2016, aggrieved by the common judgment dated28.10.2016 passed by the Kerala High Court in the case of respondentmedical colleges i.e. Karuna Medical College, as well as Kannur MedicalCollege and the trusts –Safe Development Alms Trust and Prestige H

Educational Trust, filed SLP [C] Nos.32580-81/2016 and 35374-75/2016before this Court. The MCI also filed SLP [C] Nos. 3882/2017 and3952/2017. The students also petitioned this Court against the judgmentand order passed by the Kerala High Court.In the matter which wasfiled by the colleges and the students, the order dated 14.11.2016 by theASC was also questioned and this Court after hearing learned counselfor the parties for days together and after perusing the record whichwas adduced before it, did not find it appropriate to interfere with theorder dated 14.11.2016. The colleges produced even those documentswhich they did not produce before the CEE/ASC and after examiningall the documents, this Court declined to interfere in the matter videorder dated 22.3.2017. This Court further directed that the 30 studentswho were found eligible but were deprived of the admissions in KarunaMedical College, shall be adjusted in the next academic session i.e. 2017-18 and the corresponding number of seats shall be reduced for the saidsession for admissions. Review petitions were also filed which weredismissed by this Court on 2.5.2017.

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15. After the aforesaid controversy was set at rest by the judgmentof this Court, the State Government notified the impugned Ordinance on20.10.2017 whereby admission of the students who were illegally admittedin the MBBS course in the year 2016-17 in the said medical colleges,were sought to be regularised. The Ordinance promulgated by theGovernment of Kerala is extracted hereunder:

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“THE KERALA PROFESSIONAL COLLEGES(REGULARISATION OF ADMISSION IN MEDICALCOLLEGES) ORDINANCE, 2017)

Promulgated by the Governor of Kerala in the Sixty-eighth Yearof the Republic of India F

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ORDINANCE

to provide for regularisation of admission of students inGcertain medical colleges in the State during the academic year2016-17

Preamble- WHEREAS, the admission of certain studentsin the discipline of medicine for the academic year 2016-17 was H

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cancelled by the Admission Supervisory Committee of the Statefor non-compliance of its orders by certain managements; AND WHEREAS, no fault was found on the part of anystudent who got admission in such colleges; AND WHEREAS, the seats so cancelled are not allotted toany other students; AND WHEREAS, it is expedient to provide for regularisationof admission of students in such medical colleges in the Stateduring the academic year 2016-17; AND WHEREAS, the Legislative Assembly of the State ofKerala is not in session and the Governor of Kerala is satisfiedthat circumstances exist which render it necessary for him totake immediate action; NOW, THEREFORE, in exercise of the powers conferred byclause (1) of Article 213 of the Constitution of India, the Governorof Kerala is pleased to promulgate the following Ordinance: - BE it enacted in the Sixty-eighth Year of the Republic of Indiaas follows: - I Short title and commencement-(1) This Ordinance may be calledthe Kerala Professional Colleges (Regularisation of Admission inMedical Colleges) Ordinance, 2017.

(2) It shall come into force at once.

2. Regularisation of admission in medical colleges.-Notwithstanding anything contained in the Kerala ProfessionalColleges or Institutions (Prohibition of Capitation Fee, Regulationof Admission, Fixation of Non-exploitative Fee and other measuresto ensure equity and excellence in Professional Education) Act,2006 (19 of 2006) or in any judgment, decree, order or anyproceedings of any court or the Admission Supervisory Committeeconstituted under section 4 of the said Act or any other authorityor in any agreement or instrument made under any law for thetime being in force, it shall be lawful for the Government toregularise the admission of candidates who were qualified foradmission in the discipline of medicine in any medical college in the State during the academic year 2016-17, but their admissionwas cancelled by any court or Admission Supervisory Committee,irrespective of the mode of submission of application and the non-production of any material before the Admission SupervisoryCommittee, subject to such terms and conditions as theGovernment may deem fit:

Provided that such admission shall not be regularised unlesssuch candidate has duly attended the course during the saidacademic year.

3. Procedure for regularisation.- (1) The managements of themedical colleges who have admitted candidates as specified insection 2 to the discipline of medicine in any medical college andtheir admission was cancelled, may, within fifteen days from thedate of commencement of this Ordinance, apply for regularisationof such admission.

(2) Every application for regularisation of admission under thisOrdinance shall be submitted to the Government through theUniversity concerned and the University shall, within seven daysof receipt of such application, forward the same to the Governmentwith a report containing its remarks on the following matters,namely: -

(i) whether the student who got admission is qualified and iseligible as per the rank list prepared on the basis of the NationalEligibility cum Entrance Test, for admission in the discipline ofmedicine as per laws and orders in force applicable for theacademic year 2016-17;

(ii) whether the students as mentioned in the application hasduly attended the course during the academic year 2016-17;

(iii) whether the student is otherwise eligible to continue thecourse.

(3) An officer not below the rank of a Secretary to Government,as may be authorised by the Government by special order in thisbehalf, shall be the Competent Authority to consider an applicationunder this Ordinance. The Competent Authority shall have thepower to summon any person or to call for any document for theproper disposal of such application.

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(4) On receipt of an application for regularisation under this section,the Government shall call for a report on it from the Director ofMedical Education and after hearing the applicant and therespondents or any other person concerned, if necessary, considerthe application and pass orders on it, including order for paymentof the regularisation fee payable under this Ordinance.

(5) Where the application is sanctioned by the Government, adirection in this respect shall be issued to the University concernedand notwithstanding anything contained in any University Act orany statute or Ordinance made thereunder or in any other law forthe time being in force, the University shall issue orders necessaryfor the enrolment of such students in the University and thereaftersuch students shall be considered as regular students of thediscipline of medicine under the University with effect from theacademic year 2016-17 till the completion of their course in thediscipline.

Explanation. - For the purposes of this section, “University Act”means an Act establishing a University, passed by the StateLegislature.

4. Matters for consideration of the Competent Authority. -While considering an application for regularisation received underOrdinance, the Competent Authority shall, -

(i) consider whether the student who got admission is qualifiedand is eligible as per the rank list prepared on the basis of theNational Eligibility cum Entrance Test, for admission in the disciplineof medicine as per laws and orders in force applicable for theacademic year 2016-17;

(ii) confirm that no student is continuing in the college in violationof any other law for the time being in force;

(iii) not consider the mode of application submitted by the students;

(iv) not consider the non-production of any document or anymaterial before the Admission Supervisory Committee;

(v) ensure that no capitation fee was collected by the management;

(vi) ensure that there was no profiteering by the management.

5. Payment of regularisation fee: - (1) Where the Governmentsanctions an application for regularisation of admission under thisOrdinance, the management of such medical college shall be liableto pay a regularisation fee of three lakh rupees per student forsuch regularisation:

Provided that where any management collects such fee fromany student, such management shall be liable to pay a fine of sixlakh rupees per student.

(2) The competent authority under sub-section (3) of section 3shall be competent to impose the fee as provided in sub-section(1) and it shall be specified in the order issued under sub-section(3) of section 3.

Date 20.10.2017GOVERNOR”

16. Shri Vikas Singh, learned senior counsel appearing for theMCI, urged that the Ordinance is ultra vires of the powers of the StateGovernment and is contrary to the various Constitution Bench decisionsof this Court which he has relied upon. He has further submitted that thejudgment has been nullified by the Ordinance. It is not that there wasany lacunae or flaw in the laws which has been removed. There is anentrenchment by way of Ordinance upon the power of judicial review ofthe court. This Court has adjudicated upon the legality of the order dated14.11.2016 passed by the ASC which was questioned in this Court andthe entire material was filed in the Court which was not even placedbefore the ASC/CEE. This Court granted hearing for several days andon being wholly unconvinced, dismissed the special leave petitions andclearly observed that no case for interference in the order dated14.11.2016 passed by ASC was made out and further directed theadmission of 30 students who were illegally deprived of their admissionto be made in the next academic session. The State has no legislativepower to nullify a judgment in view of the Constitution Bench judgmentsof this Court in Janapada Sabha Chhindwara vs. The Central A

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AProvinces Syndicate Ltd. and Anr. (1970) 1 SCC 509, BelgaumGardeners Cooperative Production Supply and Sale Society Ltd. v.State of Karnataka (1993) Supp. 1 SCC 96, and State of Tamil Naduand Ors. v. State of Kerala and Ors.(2014) 12 SCC 696.

17. A galaxy of learned senior counsel appearing on behalf of theBrespondents has emphasised that the impugned Ordinance intends onthe admissions to be given on merits on the basis of performance in theNEET examination. Thus, it was permissible to enact Ordinance to makea scrutiny whether the candidates were eligible for admission on thebasis of their merit in the NEET examination. It was also contended thatthe order of online applications passed by the Kerala High Court wasCbased upon the consent. Hence, it could not be termed to be an orderpassed by the court in judicial review. The decision did not have theeffect of judicial precedent which could be said to be nullified by way ofthe Ordinance. It was also contended that ultimately it was not the faultof the students and if there was any procedural violation committed byDthe medical colleges in question, the students could not have been madea scapegoat or made to suffer for no fault of theirs. They were notheard by the ASC or CEE. This Court may exercise power under Article142 of the Constitution of India and no interference is required to bemade in the Ordinance as in the facts and circumstances, regularisationof the admissions was clearly permissible. It could not be said that theEState Government has tried to usurp the power of judicial review.

18. A bare reading of the Ordinance makes it clear that the sameaims at regularisation of admissions of students during the academicyear 2016-17 which were set aside by the ASC, the High Court and bythis Court to benefit only two colleges and students in question. It is alsoFstated in it that the Legislative Assembly of the State of Kerala is not insession and the Governor of Kerala is satisfied, the circumstances renderit necessary for him to take immediate action. In exercise of the powerconferred under clause (1) of Article 213 of the Constitution of India,the Governor of Kerala is pleased to promulgate the impugned Ordinance.G

19. It is provided in clause 2 of the Ordinance that notwithstandinganything contained in the Kerala Professional Colleges or Institutions(Prohibition of Capitation Fee, Regulation of Admission, Fixation of Non-exploitative Fee and other measures to ensure equity and excellence in Professional Education) Act, 2006 or in any judgment, decree, order orany proceeding of any court or the Admission Supervisory Committeeor any other authority or in any agreement or instrument made underany law for the time being in force, it shall be lawful for the Governmentto regularise the admission of candidates who were qualified foradmission in the discipline of medicine in any medical college in theState during the academic year in question, though their admissions hadbeen cancelled by any court or ASC, and irrespective of the mode ofsubmission of application and the non-production of any material beforethe ASC.

20. Clause 3 of the impugned Ordinance contains the procedurefor regularisation. Under clause 3(1) the students can apply within 15days from the commencement of the Ordinance for regularisation ofsuch admission. Under clause 3(2), the application shall be submitted tothe Government through the University with the remarks whether thestudent was qualified, eligible as per the rank list prepared on the basisof the NEET for admission in the discipline of medicine as per the lawsand orders in force for the academic year 2016-17; whether he hasattended the course during the academic year 2016-17 and whether thestudent was otherwise eligible to continue the course. Clause 3(4) enablesthe Government to consider the application and pass orders on it includingthe order for payment of the regularisation fee payable under theOrdinance and clause 3(5) provides that where the application issanctioned by the Government, the student shall be considered as regularstudent w.e.f. the academic session 2016-17 till the completion of theircourse in the discipline. Clause 3(4)(i) provides for consideration in casethe candidate was eligible as per the rank list prepared on the basis ofNEET, and no student was continuing in the college in violation of anyother law for the time being in force. Clause 4(iii) further provided forregularisation notwithstanding the mode of submission of applications bythe students. Regularisation fee of Rs.3 lakhs was to be paid per studentfor such regularisation.

21. What has been done by the impugned Ordinance by the StateGovernment is clearly entrenching upon the field of judicial review and itwas obviously misadventure resorted to. In our considered opinion, itwas not at all permissible to the State Government to promulgate theOrdinance/legislate in the matter. Not only the judgment of the court is A

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Anullified and the arbitrariness committed in admissions was glaring, andthe decision of the High Court of Kerala which was affirmed by thisCourt with respect to applications to be entertained if they were onlineapplications has been undone. It was clearly an act of nullifying judgmentand is violative of judicial powers which vested in the judiciary. It wasnot open for the State Government to nullify the judgment/orders passedBby the Kerala High Court or by this Court. It was not a case of removalof a defect in existing law. Various Constitution Bench decisions of thisCourt have settled the principles of law governing the field. It passescomprehension how the State Government has promulgated theOrdinance in question.C

22. In Janapada Sabha Chhindwara vs. The Central ProvincesSyndicate Ltd. and Anr. 1970(1) SCC 509, a Constitution Bench of thisCourt has observed that it is not open to legislation to render a judgmentineffective. It is open to the Legislature within certain limits to amendthe provisions of an Act retrospectively and to declare what the lawDshall be deemed to have been, but it is not open to the legislature to saythat the interpretation of the law shall be otherwise than as declared bythe Court. This Court has observed thus:

“10. The nature of the amendment made in Act 4 of 1920 has notbeen indicated. Nor is there anything which enacts that theEnotifications issued without the sanction of the State Governmentmust be deemed to have been issued validly under Section 51(2)without the sanction of the Local Government. On the words usedin the Act, it is plain that the Legislature attempted to overrule orset aside the decision of this Court. That, in our judgment, is notopen to the Legislature to do under our Constitutional scheme. ItFis open to the Legislature within certain limits to amend theprovisions of an Act retrospectively and to declare what the lawshall be deemed to have been, but it is not open to the Legislatureto say that a judgment of a Court properly constituted and renderedin exercise of its powers in a matter brought before it shall beGdeemed to be ineffective and the interpretation of the law shall beotherwise than as declared by the Court.”

23. In the matter of Cauvery Water Disputes Tribunal(1993)Supp. 1 SCC 96 (II), a Constitution Bench of this Court has observedthat it is open to change the law in general by changing the basis but it is H

not open to set aside an individual decision inter-partes and thus affecttheir rights and liabilities alone. Such an act on the part of the legislatureamounts to exercising the judicial power. This Court quashed theOrdinance and observed that by issuing the Ordinance the State ofKarnataka has sought to take the law in its own hand and tried to beabove the law. Such an act is an open invitation to lawlessness andanarchy. There cannot be defiance to the decision of the judicialauthorities. This Court has observed thus:

“76. The principle which emerges from these authorities isthat the legislature can change the basis on which a decision isgiven by the Court and thus change the law in general, which willaffect a class of persons and events at large. It cannot, however,set aside an individual decision inter parties and affect their rightsand liabilities alone. Such an act on the part of the legislatureamounts to exercising the judicial power of the State and tofunctioning as an appellate court or tribunal.

77. The effect of the provisions of Section 11 of the presentAct, viz. the Inter-State Water Disputes Act read with Article262 of the Constitution is that the entire judicial power of theState and, therefore of the courts including that of the SupremeCourt to adjudicate upon original dispute or complaint with respectto the use, distribution or control of the water of, or in any inter-State river or river valleys has been vested in the Tribunal appointedunder Section 4 of the said Act. It is, therefore, not possible toaccept the submission that the question of grant of interim relieffalls outside the submission that the question of grant of interimrelief falls outside the purview of the said provisions and can beagitated under Article 131 of the Constitution. Hence any executiveorder or a legislative enactment of a State which interferes withthe adjudicatory process and adjudication by such Tribunal is aninterference with the judicial power of the State. In view of thefact that the Ordinance in question seeks directly to nullify theorder of the Tribunal passed on June 25, 1991, it impinges uponthe judicial power of the State and is, therefore, ultra vires theConstitution.

78. Further, admittedly, the effect of the Ordinance is to affectthe flow of the waters of the river Cauvery into the territory of AB

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Tamil Nadu and Pondicherry which are the lower riparian States.The Ordinance has, therefore, an extra-territorial operation. Hencethe Ordinance is on that account beyond the legislative competenceof the State and is ultra vires the provisions of Article 245(1) ofthe Constitution.

B 79. The Ordinance is also against the basic tenets of the ruleof law inasmuch as the State of Karnataka by issuing theOrdinance has sought to take law in its own hand and to be abovethe law. Such an act is an invitation to lawlessness and anarchy,inasmuch as the Ordinance is a manifestation of a desire on thepart of the State to be a judge in its own cause and to defy theCdecisions of the judicial authorities. The action forebodes evilconsequences to the federal structure under the Constitution andopen doors for each State to act in the way it desires disregardingnot only the rights of the other States, the orders passed byinstrumentalities constituted under an Act of Parliament but alsoDthe provisions of the Constitution. If the power of a State to issuesuch an Ordinance is upheld it will lead to the breakdown of theconstitutional mechanism and affect the unity and integrity of thenation.”

The Court has also observed in Re: Cauvery Water DisputesETribunal(supra) that if the exercise of the power of judicial review canbe set at naught by the State Government by overriding the decisiongiven against it, it would sound the death knell of the rule of law. Therule of law would be meaningless as it would be open to the StateGovernment to defy the law and yet get away with it.

F24. Yet again a Constitution Bench of this Court in State of TamilNadu v. State of Kerala and Anr. (2014) 12 SCC 696 has consideredthe question of separation of powers doctrine under the Indian Constitutionand it observed:

“126. On deep reflection of the above discussion, in our opinion,Gthe constitutional principles in the context of Indian Constitutionrelating to separation of powers between legislature, executiveand 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 H

the Constitution of India. The doctrine of separation of powersinforms the Indian constitutional structure and it is an essentialconstituent of rule of law. In other words, the doctrine of separationof power though not expressly engrafted in the Constitution, itssweep, operation, and visibility are apparent from the scheme ofIndian Constitution. Constitution has made demarcation, withoutdrawing formal lines between the three organs- legislature,executive, and judiciary. In that sense, even in the absence ofexpress provision for separation of powers, the separation ofpowers between legislature, executive and judiciary is not differentfrom the Constitutions of the countries which contain expressprovision for separation of powers.

126.2 Independence of courts from the executive and legislatureis fundamental to the rule of law and one of the basic tenets ofIndian Constitution. Separation of judicial power is a significantconstitutional 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 ofprinciples of equality enshrined in Article 14 of the Constitution ofIndia. Accordingly, breach of separation of judicial power mayamount to negation of equality under Article 14. Stated thus, alegislation can be invalidated on the basis of breach of the separationof powers since such breach is negation of equality under Article14 of the Constitution.

126.4 The superior judiciary (High Courts and Supreme Court) isempowered by the Constitution to declare a law made by thelegislature (Parliament and State Legislatures) void if it is foundto have transgressed the constitutional limitations or if it infringedthe rights enshrined in Part III of the Constitution.

126.5 The doctrine of separation of powers applies to the finaljudgments of the courts. The legislature cannot declare anydecision 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 acourt of law or on coming to know of it aliunde. In other words, acourt’s decision must always bind unless the conditions on whichit is based are so fundamentally altered that the decision could nothave been given in the altered circumstances.

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126.6 If the legislature has the power over the subject-matter andcompetence to make a validating law, it can at any time makesuch a validating law and make it retrospective. The validity of avalidating law, therefore, depends upon whether the legislaturepossesses the competence which it claims over the subject-matterand whether in making the validation law it removes the defectwhich the courts had found in the existing law.

126.7 The law enacted by the legislature may apparently seem tobe within its competence but yet in substance, if it is shown as anattempt to interfere with the judicial process, such law may beinvalidated being in breach of doctrine of separation of powers.In such situation, the legal effect of the law on a judgment or ajudicial proceeding must be examined closely, having regard tolegislative prescription or direction. The questions to be askedare:

(i) Does the legislative prescription or legislative direction interferewith the judicial functions?

(ii) Is the legislation targeted at the decided case or whetherimpugned law requires its application to a case already finallydecided?

(iii) What are the terms of law; the issues with which it deals andthe nature of the judgment that has attained finality?

If the answer to Questions (i) and (ii) is in the affirmative and theconsideration of aspects noted in Question (iii) sufficientlyestablishes that the impugned law interferes with the judicialfunctions, the Court may declare the law unconstitutional.”

This Court has observed that independence of the judiciary isfundamental to the rule of law. A legislation can be invalidated on thebasis of breach of separation of judicial power since such breach isnegation of equality under Article 14. Law can be declared void if it isfound to have transgressed the constitutional limitations. The legislaturecannot 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 oncoming to know of it aliunde; otherwise, a court’s decision must alwaysbind unless the conditions on which it is based are so fundamentally altered that the decision could not have been given in such alteredcircumstances. The legislature can make a validating law. Makingvalidation as such, it removes the defect which the court finds in theexisting law. There cannot be an attempt to interfere with the judicialprocess, and such law may be invalidated. The questions to be examinedare: whether the legislation targeted at the decided case, what are theterms of law; the issues with which it deals and the nature of the judgmentthat has attained finality? If law interferes with the judicial functions onthe aforesaid tests laid down in para 126.7, the Court may declare thelaw as unconstitutional.

25. In S.R. Bhagwat and Ors. vs. State of Mysore(1995) 6 SCC16, the provisions of Karnataka State Civil Services(Regulations ofPromotion, Pay & Pension) Act, 1973 came up for consideration of thisCourt. Provisions were made in section 11 nullifying the judgments andorders of this Court as had become final, and empowering the State toreview such judgments and orders was held to be interference with thepowers 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 ofthe benefits of the judgment of the court which had become final. It wasfurther observed that once the judgment has attained finality and wasbinding against the State, it cannot be overruled by any legislativemeasure. The Court observed that court’s judgments cannot be nullifiedby the legislature:

“15. We may note at the very outset that in the present case theHigh Court had not struck down any legislation which was soughtto be re-enacted after removing any defect retrospectively by theimpugned provisions. This is a case where on interpretation ofexisting law, the High Court had given certain benefits to thepetitioners. That order of mandamus was sought to be nullified bythe enactment of the impugned provisions in a new statute. Thisin our view would be clearly impermissible legislative exercise.

18. A mere look at sub-section (2) of Section 11 shows that therespondent State of Karnataka, which was a party to the decisionof the Division Bench of the High Court against it had tried to getout of the binding effect of the decision by resorting to its legislativepower. The judgments, decrees, and orders of any court or the AB

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competent authority which had become final against the Statewere sought to be done away with by enacting the impugnedprovisions of sub-section (2) of Section 11. Such an attempt cannotbe said to be a permissible legislative exercise. Section 11(2),therefore, must be held to be an attempt on the part of the StateLegislature to legislatively overrule binding decisions of competentcourts against the State. It is no doubt true that if any decisionwas rendered against the State of Karnataka which was pendingin appeal and had not become final it could rely upon the relevantprovisions of the Act which were given retrospective effect bysub-section (2) of Section 1 of the Act for whatever such reliancewas worth. But when such a decision had become final as in thepresent case when the High Court clearly directed respondent-State to give to the petitioners concerned deemed dates ofpromotions if they were otherwise found fit and in that eventualityto give all benefits consequential thereon including financialbenefits, the State could not invoke its legislative power to displacesuch a judgment. Once this decision had become final and theState of Karnataka had not thought it fit to challenge it before thisCourt presumably because in identical other matters this Courthad upheld other decisions of the Karnataka High Court takingthe same view, it passes one’s comprehension how the legislativepower can be pressed in service to undo the binding effects ofsuch mandamus. It is also pertinent to note that not only sub-section (2) of Section 11 seeks to bypass and override the bindingeffect of the judgments but also seeks to empower the State toreview such judgments and orders and pass fresh orders inaccordance with provisions of the impugned Act. The respondent-State in the present case by enacting sub-section (2) of Section11 of the impugned Act has clearly sought to nullify or abrogatethe binding decision of the High Court and has encroached uponthe judicial power entrusted to the various authorities functioningunder the relevant statutes and the Constitution. Such an exerciseof legislative power cannot be countenanced.

20. We, therefore, strike down Section 11 sub-section (2) asunconstitutional, illegal and void. So far as the underlined impugnedportions of Section 4 sub-sections (2), (3) and (8) are concerned,

they clearly conflict with the binding direction issued by the DivisionBench of the High Court against the respondent-State and in favourof the petitioners. Once respondent-State had suffered themandamus to give consequential financial benefits to the allotteeslike the petitioners on the basis of the deemed promotions suchbinding direction about payment of consequential monetary benefitscannot 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 thecourt which have become final against the respondent-State andinsofar as these provisions are inconsistent with these final orderscontaining such directions of judicial authorities and competentcourts, these impugned provisions of Section 4 have to give wayand to the extent of such inconsistency must be treated to beinoperative and ineffective. Accordingly the aforesaid provisionsare read down by observing that the statutory provisions containedin sub-sections (2), (3) and (8) of Section 4 providing that suchpersons who have been given deemed promotions shall not beentitled to any arrears for the period prior to the date of theiractual promotion, shall not apply in cases where directions to thecontrary of competent courts against the respondent-State havebecome final.”

26. On behalf of the respondents, certain decisions with respectto legislative competence have been referred. In S.T. Sadiq vs. State ofKerala and Ors.(2015) 4 SCC 400, this Court has laid down that thelegislative function consists in “making” law and not in “declaring” whatthe law shall be. The legislature can make a law retrospectively whichmay alter the law as it stood when a decision was arrived at. It is in thislimited sphere, the legislature may alter the very basis of an earlierdecision given by the court. It cannot directly annul that final judgmentby a subsequent legislation. If its purpose is to annul a final judgment,such act of legislature must be declared to be unconstitutional. The Courthas observed:

“13. It is settled law by a catena of decisions of this Court that thelegislature cannot directly annul a judgment of a court. Thelegislative function consists in “making” law [see: Article 245 of ABCD

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Athe Constitution] and not in “declaring” what the law shall be[see: Article 141 of the Constitution]. If the legislature were atliberty to annul judgments of courts, the ghost of bills of attainderwill revisit us to enable legislatures to pass legislative judgmentson matters which are inter-parties. Interestingly, in England, thelast such bill of attainder passing a legislative judgment against aBman called Fenwick was passed as far back as in 1696. A centurylater, the US Constitution expressly outlawed bills of attainder[see: Article 1 Section 9].

14. It is for this reason that our Constitution permits a legislatureto make laws retrospectively which may alter the law as it stoodCwhen a decision was arrived at. It is in this limited circumstancethat a legislature may alter the very basis of a decision given by acourt, and if an appeal or other proceeding be pending, enable theCourt to apply the law retrospectively so made which would thenchange the very basis of the earlier decision so that it would noDlonger hold good. However, if such is not the case then legislationwhich trenches upon the judicial power must necessarily bedeclared to be unconstitutional.”

27. The decision in Cheviti Venkanna Yadav v. State ofTelangana & Ors. (2017) 1 SCC 283, was relied on behalf of theErespondents, wherein the Court considered the question of amendmentwith retrospective effect after a provision of the Act is struck down bythe court. When does it not amount to the statutory overruling of ajudgment by the legislature? This Court held that the legislature has thepower to legislate including the power to retrospectively amend the lawsand thereby removing causes of ineffectiveness or invalidity. Further,Fwhen such correction is made, the purpose behind the same is not tooverrule the decision of the court or encroach upon the judicial turf, butsimply enact a fresh law with retrospective effect to alter the foundationand meaning of the legislation and to remove the base on which thejudgment is founded. The order of the High Court, inter alia, holding thatGthe amended provisions did not usurp the judicial power was upheld andthe court also opined that there was no violation of Article 14 of theConstitution. The Court observed:

“25. We shall deal first point first. The Reorganization Act cameinto force on 02.06.2014. Submission is, prior to the said date, the legislature that was not in existence as an entity could not havelegislated relating to some aspect that covers the prior period.The aforesaid submission should not detain us long. In M/s. RattanLal and Co. and Anr. etc v. The Assessing Authority, Patiala, andAnr. AIR 1970 SC 1742 the Court was dealing with the competenceof State of Haryana pertaining to a legislation enacted by theState of Haryana by way of an amendment prior to thereorganisation of the State. In that context the Court held:

“12. …It is argued that the reorganisation of the State tookplace on November 1, 1966, and the amendment in some of itsparts seeks to amend the original Act from a date anterior tothis date. In other words, the legislature of one of the Statesseeks to amend a law passed by the composite State. Thisargument entirely misunderstands the position of the originalAct after the reorganisation. That Act applied now as anindependent Act to each of the areas and is subject to thelegislative competence of the legislature in that area. The Acthas been amended in the new States in relation to the area ofthat State and it is inconceivable that this could not be withinthe competence. If the argument were accepted then the Actwould remain unamendable unless the composite State cameinto existence once more. The scheme of the StatesReorganization Acts makes the laws applicable to the new areasuntil superseded, amended or altered by the appropriatelegislature in the new States. This is what the legislature hasdone and there is nothing that can be said against suchamendment.”

The aforesaid passage makes it clear as crystal that after thelegislature came into existence, it has the competence to enactany law retrospectively or prospectively within the constitutionalparameters.

26. The second issue that emanates for consideration is whetherthe base of the earlier judgment has really been removed. Beforestating the factual score, it is necessary to state how this Courthas viewed the said principle. In Shri Prithvi Cotton Mills Ltd. andAnr. v. Broach Borough Municipality and Ors. (1969) 2 SCC 283, A

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the Constitution Bench while dealing with the legislation whichintended to validate the tax declared by law to be illegal, opinedthat when a Legislature sets out to validate a tax declared by acourt to be illegally collected under an ineffective or an invalidlaw, the cause for ineffectiveness or invalidity must be removedbefore validation can be said to take place effectively. The mostimportant condition, of course, is that the Legislature must possessthe power to impose the tax, for if it does not, the action mustever remain ineffective and illegal. Granted legislative competence,it is not sufficient to declare merely that the decision of the Courtshall not bind, for that tantamount to reversing the decision inexercise of judicial power which the Legislature does not possessor exercise. A court’s decision must always bind unless theconditions on which it is based are so fundamentally altered thatthe decision could not have been given in the altered circumstances.Thereafter, the Court proceeded to state that validation of a taxso declared illegal may be done only if the grounds of illegality orinvalidity are capable of being removed and are in fact removedand 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 andinterpretation of the law under which tax was collected and bylegislative fiat makes the new meaning binding upon courts. Onsuch legislation being brought, it neutralizes the effect of the earlierdecision as a consequence of which it becomes ineffective. Thetest of validity of a validating law depends upon whether theLegislature possesses the competence which it claims over thesubject-matter and whether in making the validation it removesthe defect which the courts had found in the existing law andmakes adequate provisions in the validating law for a validimposition of the tax.

27. In Bhubaneshwar Singh and Anr. v. Union of India and Ors.(1994) 6 SCC 77 in view of Section 3 of the Coking Coal Mines(Emergency Provisions) Act, 1971 which was promulgated in theyear 1971 the Custodian being appointed by the CentralGovernment took over the management of Coking Coal Minesand the said mines remained under the management of the CentralGovernment through the custodian during the period from17.10.1971 to 30.04.1972. The Coking Coal Mines (Nationalisation)

Act, 1972 came into force w.e.f. 1.5.1972, and the right, title andinterest of the owners in relation to Coking Coal Mines stoodtransferred to and vested absolutely in the Central Governmentfree from all encumbrances. The provisions of the said Act werechallenged before this Court in the case of Tara Prasad Singh andOrs. v. Union of India and Ors. (1980) 4 SCC 179 and theConstitution Bench upheld the validity of the said Act. The writPetitioner before the High Court making a grievance that theCustodian had debited the expenses for raising the coal while theCoking Coal Mine was under the Management of the Custodianbut 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 saidCoal Mine vested under the Central Government. The High Courtallowed the writ petition and a direction was issued that accountbe recast and payment be made to the Petitioner. The appealbefore this Court by special leave was dismissed, as this Courtwas of the view that sale price of stock of extracted coal lying atthe commencement of the appointed date had to be taken intoaccount for determining the profit and loss during the period ofmanagement of the mine by the Custodian. After the appealpreferred by the Coal Fields was dismissed, Coal MinesNationalisation Laws (Amendment) Ordinance, 1986 waspromulgated and later on replaced by Coal Mines NationalisationLaws (Amendment) Act, 1986 came into force. By Section 4 ofthe Amendment Act, Sub-section (2) was introduced in Section10 of the Coking Coal Mines (Nationalisation) Act, 1972. Thesaid provision declared that the amounts specified in the fifth columnof the First Schedule against any coking coal mines or group ofcoking coal mine specified in the second column of the saidSchedule are required to be given by the Central Government toits owner under Sub-section (1) shall be deemed to be included,and deemed always to have included, the amount required to bepaid to such owner in respect of coal in stock or other assetsreferred to in Clause (j) of Section 3 on the date immediatelybefore the appointed day and no other amount shall be paid to theowner in respect of such coal or other assets. Section 19 was thevalidating provision.

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28. The writ petition was filed questioning the validity of the saidordinance primarily on the ground that it purported to nullify thejudgment rendered in the case of Central Coal Fields Ltd. v.Bhubaneswar Singh and Ors. (1984) 4 SCC 429. The Courtreferred to the provisions and opined that:

“13. ...if Sub-section (2) as introduced by the Coal MinesNationalisation Laws (Amendment) Act, 1986 in Section 10had existed since the very inception, there was no occasionfor the High Court or this Court to issue a direction for takinginto account the price which was payable for the stock of cokelying on the date before the appointed day. The authority tointroduce Sub-section (2) in Section 10 of the aforesaid Actwith retrospective effect cannot be questioned. Once theamendment has been introduced retrospectively, courts haveto act on the basis that such provision was there since thebeginning. The role of the deeming provision need not beemphasised in view of series of judgments of this Court. Hencereading Sub-section (2) of Section 10 along with Section 19, ithas to be held that Respondents are not required to take intoaccount the stock of coke lying on the date prior to the appointedday, for the purpose of accounting during the period when themine in question was under the management of the CentralGovernment, because it shall be deemed that the compensationawarded to the Petitioner included the price for such coal lyingin stock on the date prior to the appointed day. Neither anycompensation is to be paid for such stock of coal nor the pricethereof is to be taken into account for the purpose of Sub-section (1) of Section 22 of the Coking Coal Mines(Nationalisation) Act, 1972.”

Being of this view, the Court dismissed the writ petition.

29. In State of H.P. v. Narain Singh (2009) 13 SCC 165 whiledealing with the validation of statute the Court ruled that:

“26. It is therefore clear where there is a competent legislativeprovision which retrospectively removes the substratum offoundation of a judgment, the said exercise is a valid legislativeexercise provided it does not transgress any other constitutionallimitation.”

To arrive at the said conclusion, the two-Judge Bench reproducedfrom the decision in Constitution Bench in State of T.N. v. ArooranSugars Ltd. (1997) 1 SCC 326 which is to the following effect:

“28. … ’16. …It is open to the legislature to remove the defectpointed out by the court or to amend the definition or any otherprovision of the Act in question retrospectively. In this process,it cannot be said that there has been an encroachment by thelegislature over the power of the judiciary. A court’s directivemust always bind unless the conditions on which it is based areso fundamentally altered that under altered circumstances suchdecisions could not have been given. This will include removalof the defect in a statute pointed out in the judgment in question,as well as alteration or substitution of provisions of theenactment on which such judgment is based, with retrospectiveeffect.’

30. From the aforesaid authorities, it is settled that there is ademarcation between legislative and judicial functions predicatedon the theory of separation of powers. The legislature has thepower to enact laws including the power to retrospectively amendlaws and thereby remove causes of ineffectiveness or invalidity.When a law is enacted with retrospective effect, it is not consideredas an encroachment upon judicial power when the legislature doesnot directly overrule or reverse a judicial dictum. The legislaturecannot, by way of an enactment, declare a decision of the courtas erroneous or a nullity, but can amend the statute or the provisionso as to make it applicable to the past. The legislature has thepower to rectify, through an amendment, a defect in law noticedin the enactment and even highlighted in the decision of the court.This plenary power to bring the statute in conformity with thelegislative intent and correct the flaw pointed out by the court canhave a curative and neutralizing effect. When such a correctionis made, the purpose behind the same is not to overrule the decisionof the court or encroach upon the judicial turf, but simply enact afresh law with retrospective effect to alter the foundation andmeaning of the legislation and to remove the base on which thejudgment is founded. This does not amount to statutory overruling A

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There is no dispute with the aforesaid proposition that the legislaturehas the power to retrospectively amend the laws and thereby removethe causes of in effectiveness or invalidity on which judgment is based,and that would not be an encroachment upon judicial power when theClegislature does not directly overrule or reverse a judicial dictum.

28. Reliance has also been placed by the respondents on GoaFoundation & Anr. v. State of Goa & Anr. (2016) 6 SCC 602 whereinthe Court has discussed the matter thus:

“24. The principles on which first question would require to beanswered are not in doubt. The power to invalidate a legislativeor executive act lies with the Court. A judicial pronouncement,either declaratory or conferring rights on the citizens cannot beset at naught by a subsequent legislative act for that would amountto an encroachment on the judicial powers. However, thelegislature would be competent to pass an amending or a validatingact, if deemed fit, with retrospective effect removing the basis ofthe decision of the Court. Even in such a situation, the courts maynot approve a retrospective deprivation of accrued rights arisingfrom a judgment by means of a subsequent legislation [MadanMohan Pathak and Anr. v. Union of India and Ors. (1978) 2 SCC50. However, where the Court’s judgment is purely declaratory,the courts will lean in support of the legislative power to removethe basis of a Court judgment even retrospectively, paving theway for a restoration of the status quo ante. Though theconsequence may appear to be an exercise to overcome the judicialpronouncement it is so only at first blush; a closer scrutiny wouldconfer legitimacy on such an exercise as the same is a normaladjunct of the legislative power. The whole exercise is one ofviewing the different spheres of jurisdiction exercised by the twobodies i.e. the judiciary and the legislature. The balancing act, D

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delicate as it is, to the constitutional scheme, is guided by well-defined values which have found succinct manifestation in theviews of this Court in Bhaktwar Trust and Ors. (supra).

26. If the above principles are to be applied to the present casewhat follows is that Section 41(6) to (9) introduced in the PrincipalAct by the Goa State Amendment renders ineffective Clause 4(viii)of the Agreement executed by the parties Under Section 41 ofthe Principal Act. With Clause 4(viii) being deleted the embargoon constructions on the acquired land is removed. It is the aforesaidClause 4(viii) and its legal effect, in view of Section 42, that wasthe basis of the Court’s decision dated 20th January 2009 holdingthe construction raised by the third Respondent on the acquiredland to be illegal and contrary to the Principal Act. Once Clause4(viii) is removed the basis of the earlier judgment standsextinguished. 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 January2009 would not have been forthcoming. It was therefore wellwithin the domain of the legislature to bring about the AmendmentAct with retrospective effect, the Legislative field also being inthe Concurrent List, namely, Entry No. 42 of List III (Acquisitionand Requisition of Property) of the Seventh Schedule to theConstitution.”

The Court has re-emphasised that a judicial pronouncement, eitherdeclaratory or conferring rights on the citizens cannot be set at naughtby a subsequent legislative act. However, the legislature shall becompetent to pass an amending or a validating Act, if deemed fit, withretrospective effect removing the basis of the decision of the Court byamending the law. Thus, once the provisions in clause 4(viii) wereremoved, the basis of the earlier judgment stood extinguished.

29. In Goa Glass Fibre Ltd. v. State of Goa & Anr. (2010) 6SCC 499, a question arose whether under the Goa (Prohibition of FurtherPayment and Recovery of Rebate Benefits) Act, 2002, sections 2, 3, 5and 6 were unconstitutional. The contention was raised that the impugnedAct nullifies the judgment of the Court. The Court has observed:

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incompetence of the Legislature which enacts it and, on theground, that it breaches or violates any of the fundamental rightsor other Constitutional Rights and on no other grounds. (See Stateof A.P. v. McDowell and Co. (1996) 3 SCC 709, Kuldip Nayar v.Union of India and Ors. (2006) 7 SCC 1.

16. The scheme of the Act appears to be simple. The Act imposesa Prohibition [under Section 2], requires recovery [under Section3] and “extinguishes” all liabilities of the State that accrue or arisefrom the Notifications dated 15.05.1996 and 01.08.1996.

17. From the language of the Act, it becomes clear that the Act isnot influenced by the outcome of the Judgment of the High Courtin Manohar Parrikar’s case. By the enactment, the Legislaturehas imposed prohibition of further payments under the Notifications,provides for recovery of rebate benefits from the beneficiariesand extinguishes the State’s Liability under the Notificationsmentioned supra. This exercise by the Legislature is independentof and dehors the results of the PIL of Manohar Parrikar and canbe said to be uninfluenced by the said judgment. It was well withinthe Legislative power of the State to respond to the undisputedand disturbing facts which had enormous financial implication onthe State’s Finances to enact the Law with an object of remedyingthe unsatisfactory state of affairs which were known to theLegislature.

18. That the object of the Act is not to undo or reverse thejudgments of either this Court or that of the High Court. On areading of the Act as a whole, it does not appear that the Legislatureseeks to undo any judgment or any directions contained therein.As observed earlier the Act imposes a Prohibition [under Section2], requires recovery [under Section 3] and “extinguishes” allliabilities of the State that accrue or arise from the Notificationsdated 15.05.1996 and 01.08.1996. Therefore, no exception canbe taken to the constitutionality of the Act impugned, on the ground,that it seeks to undo or reverse any judgment. The Legislature inits competence has enacted the Act to achieve the purposesindicated therein and not to frustrate any judgment of any courtincluding that of this Court. It is to be noted that State Legislature was competent to enact the Act in its present form even beforethe judgment of the High Court in the PIL and the fact that it hascome after the judgment in PIL does not render it unconstitutionalon the ground that it seeks to nullify the judgment of this Court inthe earlier proceedings.”

The liability of the State which accrued or arose from thenotifications referred to therein was sought to be extinguished. It washeld that it was not to undo the judgment. The legislature was held to becompetent to remove the basis.

30. In Tika Ram & Ors. v. State of Uttar Pradesh & Ors. (2009)10 SCC 689, this Court considered the provisions of Land Acquisition(U.P. Amendment & Validation Act, 1991, in particular sections 2 and 3thereof adding proviso to section 17(4) of the Land Acquisition Act,1894 and held the same to be constitutional. The contention that theU.P. Amendment Act merely sought to overrule judgments in KashmirSingh’s case AIR 1987 All. 113 or State of U.P. v. Radhey ShyamNigam (1989) 1 SCC 591 and did not remove the basis or foundationthereof and was, therefore, ultra vires Articles 245 and 246 was rejected.The question arose regarding the constitutional validity of the LandAcquisition (Amending) Act. Notification under section 4 read withsection 17(4) was issued on 4.12.1984 which was published in the Gazetteon 8.12.1984. Declaration under section 6 was made on 4.12.1984 andpublished in the Gazette on 8.12.1984. It was found that simultaneousnotifications under sections 4 and 6 could not be made and therefore theacquisitions were bad as held in Kashmir Singh v. State of U.P. AIR1987 All. 113 which was upheld by this Court. Thereafter, the Ordinancewas promulgated. The Statement of Objects and Reasons referred tothe judgment in Kashmir Singh’s case. It was decided to amend the Actfor validating the proceedings in respect of the Notification under section4 published on or after 24.9.1984 but before 11.1.1989. Following provisionwas inserted:

“55. The amendment of Section 17 was brought on the legal anvilby way of a proviso to Sub-section (4) thereof which ran as under:

“Provided that where in case of any land notification underSection 4(1) has been published in the official Gazette on orafter 24.09.1984 but before 11.1.1989 and the appropriate A

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Government has under this Sub-section direction that provisoof Section 5A was not applied, a declaration under Section 6 inrespect of the land may be made either simultaneously at atime after the publication in the Official Gazette of thenotification under Section 4 sub-section (1).”

The Court in Tika Ram (supra) observed that the legislature hadno power to overrule the judgment. However, it has the power to suitablyamend the law to remove flaw pointed out by the Court. It was observed:

“57. This argument is completely answered in MeerutDevelopment Authority v. Satbir Singh reported in 1996 (11) SCC462. This Court was considering this very proviso of Section 17(4)inserted by Land Acquisition [U.P. Amendment and ValidationAct, 1991 [UP Act No. 5 of 1991] and relying upon the judgmentreported as GDA v. Jan Kalyan Samiti, Sheopuri reported in 1996(2) SCC 365, the Court took the view in paragraph 10 that whenthis Court had declared a particular statute to be invalid, theLegislature had no power to overrule the judgment. However, ithas the power to suitably amend the law by use of properphraseology removing the defects pointed out by the Court andby amending the law inconsistent with the law declared by theCourt so that the defects which were pointed out were never onstatute for enforcement of law. Such an exercise of power toamend a statute is not an incursion on the judicial power of theCourt but as a statutory exercise on the constituent power tosuitably amend the law and to validate the actions which havebeen declared to be invalid.

69. Reliance was also placed on the judgment in Bakhtawar Trustv. M.D. Narayan and Ors. reported in 2003 (5) SCC 298. LearnedCounsel for the appellant relied on paragraphs 14 to 16. In ouropinion, paragraph 14 was completely against the appellantswherein the State Legislature’s power to make retrospectivelegislation and thereby validating the prior executive and legislativeacts retrospectively is recognized. Of course, the same has to bedone only after curing the defects that led to the invalidation. Werespectfully agree with the propositions laid down in paragraphs14, 15 and 16 thereof. In Shri Prithvi Cotton Mills Ltd. v. Broach Borough Municipality reported in 1969 (2) SCC 283, which isreferred to in paragraph 16 of the decision, it is stated that:

“the Legislature may follow any one method or all of them andwhile it does so, it may neutralize the effect of earlier decisionof the Court which becomes ineffective after the change ofthe law.”

It is further stated therein that the validity of the validating law,therefore, depends upon whether the Legislature possesses thecompetence which it claims over the subject matter and whetherin making the validation it removes the defect which the Courtshad found in the existing law. The Amending Act has clearly passedthese tests. All the relevant cases on this subject have beenconsidered in this judgment.”

The Court has observed that the State legislature has the powerto make retrospective legislation, thereby validating the prior executiveand legislative acts retrospectively, such power is recognised. Of course,the same has to be done only after curing the defects that led to theinvalidation.

31. In the light of the exposition of the aforesaid principles of lawin the various judgments when we revert back to the scenario in theinstant matter, it is apparent that there was decision of the High Court ofKerala on 26.8.2016 regarding admission in MBBS/BDS courses in 2016-17 directing that all the colleges agree that the applications for admissionare received only through “on-line” and that the said process providestransparency with regard to the merit as well as the identities of theapplicants. Such applications shall be uploaded for scrutiny of theAdmission Supervisory Committee also.

32. Against the said interim order which was of final nature, theUnion of India had filed an SLP. This Court set aside only that part ofcondition No.1 wherein the respective colleges were allowed to conductthe counselling and admit the students without going into the merits. ThisCourt has referred to the aforesaid order of the Kerala High Court in adecision dated 28.9.2016 in CA No.9862/2016. In C.A. No.3874/2018,(2018 (6) SCALE 174) – Anitta Job & Ors. v. The State of Kerala&Ors. decided on 20.4.2018, this Court observed:

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“14. We have already noticed above that Kerala High Court haspassed interim order on 26.08.2016 under which the High Courtissued certain directions regarding admission in MBBS/BDSCourses 2016-2017. Paragraph 9 of the judgment which is relevantin this context is as follows:

“9. Accordingly, there shall be an interim stay of operation andimplementation of the impugned orders, G.O. (Rt) No. 2314/2016/H&FWD dated 20.08.2016 and G.O. (Rt) No. 2336/2016/H&FWD dated 23.08.2016, subject to the following conditions:

(i) Admissions to the MBBS/BDS courses shall be only on thebasis of the ranking of candidates in the rank list of NEET,2016, on the basis of the inter-se merit among the candidates,who have applied to the respective colleges.

(ii) All the colleges agree that the applications for admissionare received only through online and that, the said processprovides transparency with regard to the merit as well as theidentities of the applicants. Such applications shall, therefore,be uploaded for the scrutiny of the Admission SupervisoryCommittee also immediately on the expiry of the last date forsubmission of applications.

(iii) Since the counsel for the Admission Supervisory Committeehas voiced a complaint that some of the colleges have notobtained approval of the Admission Supervisory Committee,for their Prospectus, the admission process shall be proceededwith only on the basis of a Prospectus, for which approval ofthe Admission Supervisory Committee has been obtained.

(iv) The Admission Supervisory committee is directed to eitherapprove or disapprove the Prospectus, submitted to them forapproval, within three days of such submission.”

15. It is relevant that against the interim order of the Kerala HighCourt dated 26.8.2016, Union of India has filed an SLP whichwas disposed of by this Court on 28.9.2016 in C.A.No.9862 of2016. This Court set aside only that part of Condition No.1 whereinthe respective Colleges are allowed to conduct the counsellingand admit the students without going into the merits. This Court, however, specifically observed that this Court is not interferingwith the admissions of students which have been done by therespective Colleges as those were done after reaching arrangementwith the State Government. Last two paragraphs of this Court’sorder dated 28.9.2016 are as follows:

“Having regard to the aforesaid facts as stated by thelearned Solicitor General as well as the counsel for therespondents, we set aside that part of Condition No.1 whereinthe respective colleges are allowed to conduct the counsellingand admit the students without going into the merits.

This issue shall be finally thrashed out and decided bythe High Court in the writ petitions which are pending beforeit. However, we are not inclined to interfere with the admissionsof students which have been done by the respective collegesas these are done after reaching arrangement with the StateGovernment. In that behalf, the conditions which are mentionedin the impugned order shall continue to apply.

The appeal stands disposed of in the aforesaid terms.”

It is apparent from the order passed by this Court as well as bythe High Court of Kerala that receiving online applications was mandatoryand it was laid down in the judgment for ensuring the fair process ofadmissions, transparency as well as identities of the applicants. Thecondition was the outcome of the judgment on the power of judicialreview passed by the Kerala High Court and affirmed by this Courtalso. Thus, the very same judgment is sought to be nullified by theimpugned Ordinance by making a provision to the contrary. Admissionsas per the Ordinance are to be regularised dehors the mode of submittingthe applications. It is not removing the defect in any existing law. TheOrdinance has clearly annulled a judgment of Court which was laid downin order to ensure fair procedure.

33. We have anxiously read the entire impugned Ordinance and aperusal thereof indicates that it is a blatant attempt of regularisation ofadmissions made which were declared to be invalid not only by the HighCourt of Kerala but by this Court after this Court had dealt with theorder dated 14.11.2016 passed by the ASC after hearing the matter for A

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Aseveral days and the Court had passed a reasoned order. Whiledismissing/disposing of the matters, this Court directed the 30 studentswho were illegally deprived of the admission, to be admitted in the nextacademic session 2017-18. It was clearly not a dismissal of the case inlimine but a reasoned order. In the writ petitions filed by the collegesand others, the validity and legality of the order dated 14.11.2016 wasBquestioned. However, this Court has upheld the same. We also note thatvoluminous records were filed in this Court by both the medical colleges.The students were also heard when the decision was rendered.Thereafter also several petitions were filed which were dismissed bythis Court. Thus, when this Court has upheld the order dated 14.11.2016Con the ground of illegality and irregularities and not following the dueprocedure, such admissions could not have been regularised at all. Incase such a power of covering up illegal action is given to the StateGovernment in individual cases of two colleges, the day is not far offwhen every judgment can be annulled. It is crystal clear in the instant case that the State Government has exceeded its powers and hasDentrenched upon the field reserved for the judiciary. It could not havenullified the judgment. The online procedure was laid down by thejudgment. The provision of any existing law framed by legislation hasnot been changed by the State Government by the impugned Ordinancebut illegalities found in the admissions were sought to be got rid of. WhatEwas laid down in the judgment for ensuring the fair procedure whichwas required to be followed was sought to be undone, it was nothing butthe wholly impermissible act of the State Government of sitting over thejudgment and it could not have promulgated the Ordinance setting atnaught the effect of the judgment.

F34. It is also apparent that what the State Government has doneby way of impugned Ordinance is not only impermissible and beyondlegislative competence it also has the effect of perpetuating illegalityand arbitrariness committed by the colleges in question by not followingthe mandate of law laid down by the High Court as affirmed by this

Court. An effort has been made to cover up the arbitrariness and illegalityGin an illegal and impermissible manner for which the State Governmenthad no competence. The provisions made in the Ordinance are otherwisealso quite illegal and arbitrary besides in violation of the doctrine ofseparation of powers enshrined under Article 50 of the Constitution ofIndia.H

35. Reliance has been placed by the respondents on a decision ofthis Court in Kunhayammed & Ors. v. State of Kerala & Anr. (2000)6 SCC 359 so as to contend that this Court has not dismissed the specialleave petition by a speaking order. Thus, it cannot be treated to be aprecedent. Reliance has been placed on the following observations madeby the Court:

“40. A petition seeking grant of special leave to appeal may berejected for several reasons. For example, it may be rejected (i)as barred by time, or (ii) being a defective presentation, (iii) thepetitioner having no locus standi to file the petition, (iv) the conductof the petitioner disentitling him to any indulgence by the Court,(iv) the question raised by the petitioner for consideration by thisCourt being not fit for consideration or deserving being dealt withby the apex court of the country and so on. The expression oftenemployed by this Court while disposing of such petitions are -“heard and dismissed”, “dismissed”, “dismissed as barred by time”and so on. Maybe that at the admission stage itself the oppositeparty appears on caveat or on notice and offers contest to themaintainability of the petition. The Court may apply its mind to themerit worthiness of the petitioner’s prayer seeking leave to file anappeal and having formed an opinion may say “dismissed onmerits”. Such an order may be passed even ex-parte, that is, inthe absence of the opposite party. In any case, the dismissal wouldremain a dismissal by a non-speaking order where no reasonshave been assigned and no law has been declared by the SupremeCourt. The dismissal is not of the appeal but of the special leavepetition. Even if the merits have been gone into, they are the meritsof the special leave petition only. In our opinion, neither doctrineof merger nor Article 141 of the Constitution is attracted to suchan order. Grounds entitling exercise of review jurisdictionconferred by Order 47 Rule 1 of the C.P.C. or any other statutoryprovision or allowing review of an order passed in exercise ofwrit or supervisory jurisdiction of the High Court (where also theprinciples underlying or emerging from Order 47 Rule 1 of theC.P.C. act as guidelines) are not necessarily the same on whichthis Court exercises discretion to grant or not to grant specialleave to appeal while disposing of a petition for the purpose. Mererejection of special leave petition does not take away the jurisdiction A

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of the court, tribunal or forum whose order forms the subjectmatter of petition for special leave to review its own order ifgrounds for exercise of review jurisdiction are shown to exist.Where the order rejecting an SLP is a speaking order, that is,where reasons have been assigned by this Court for rejecting thepetition for special leave and are stated in the order still the orderremains the one rejecting prayer for the grant of leave to appeal.The petitioner has been turned away at the threshold without havingbeen allowed to enter in the appellate jurisdiction of this Court.Here also the doctrine of merger would not apply. But the lawstated or declared by this Court in its order shall attract applicabilityof Article 141 of the Constitution. The reasons assigned by thisCourt in its order expressing its adjudication (expressly or bynecessary implication) on point of fact or law shall take away thejurisdiction of any other court, tribunal or authority to express anyopinion in conflict with or in departure from the view taken by thisCourt because permitting to do so would be subversive of judicialdiscipline and an affront to the order of this Court. However, thiswould be so not by reference to the doctrine of merger.

44. To sum up our conclusions are:

(i) Where an appeal or revision is provided against an order passedby a court, tribunal or any other authority before superior forumand such superior forum modifies, reverses or affirms the decisionput in issue before it, the decision by the subordinate forum mergesin the decision by the superior forum and it is the latter whichsubsists, remains operative and is capable of enforcement in theeye of law.

(ii) The jurisdiction conferred by Article 136 of the Constitution isdivisible into two stages. First stage is up to the disposal of prayerfor special leave to file an appeal. The second stage commencesif and when the leave to appeal is granted and special leave petitionis converted into an appeal.

(iii) Doctrine of merger is not a doctrine of universal or unlimitedapplication. It will depend on the nature of jurisdiction exercisedby the superior forum and the content or subject-matter ofchallenge laid or capable of being laid shall be determinative ofthe applicability of merger. The superior jurisdiction should be MEDICAL COUNCIL OF INDIA v. STATE OF KERALA & ORS.[ARUN MISHRA, J.]

capable of reversing, modifying or affirming the order put in issuebefore it. Under Article 136 of the Constitution, the Supreme Courtmay reverse, modify or affirm the judgment-decree or orderappealed against while exercising its appellate jurisdiction and notwhile exercising the discretionary jurisdiction disposing of petitionfor special leave to appeal. The doctrine of merger can, therefore,be applied to the former and not to the latter.

(iv) An order refusing special leave to appeal may be a non-speaking order or a speaking one. In either case, it does not attractthe doctrine of merger. An order refusing special leave to appealdoes not stand substituted in place of the order under challenge.All that it means is that the Court was not inclined to exercise itsdiscretion so as to allow the appeal being filed.

(v) If the order refusing leave to appeal is a speaking order, i.e.gives reasons for refusing the grant of leave, then the order hastwo implications. Firstly, the statement of law contained in theorder is a declaration of law by the Supreme Court within themeaning of Article 141 of the Constitution. Secondly, other thanthe declaration of law, whatever is stated in the order are thefindings recorded by the Supreme Court which would bind theparties thereto and also the court, tribunal or authority in anyproceedings subsequent thereto by way of judicial discipline, theSupreme Court being the apex court of the country. But, this doesnot amount to saying that the order of the court, tribunal or authoritybelow has stood merged in the order of the Supreme Courtrejecting special leave petition or that the order of the SupremeCourt is the only order binding as res judicata in subsequentproceedings between the parties,

(vi) Once leave to appeal has been granted and appellatejurisdiction of Supreme Court has been invoked the order passedin appeal would attract the doctrine of merger; the order may beof reversal, modification or merely affirmation.

(vii) On an appeal having been preferred or a petition seekingleave to appeal having been converted into an appeal beforeSupreme Court the jurisdiction of High Court to entertain a reviewpetition is lost thereafter as provided by Sub-rule (1) of Rule (1)of Order 47 of the C.P.C.”

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AThis Court has considered the expressions often employed by thisCourt while disposing of the special leave petition as “heard anddismissed”, “dismissed”, “dismissed as barred by time”. Maybe that atthe admission stage itself, the opposite party appears on caveat or onnotice and offers a contest to the maintainability of the petition. Such anorder may be passed even ex parte i.e. in the absence of the oppositeBparty. In any case, the dismissal would remain a dismissal by a non-speaking order where no reasons have been assigned and no law hasbeen declared by this Court. This Court has ultimately concluded that ifan order refusing to grant leave to appeal by a speaking order givesreasons for refusing the grant of leave, then the order has two implications;Cfirstly the statement of law contained in the order is a declaration of lawby this Court within the meaning of Article 141 of the Constitution;secondly, other than the declaration of law, whatever is stated in theorder are the findings recorded by this Court which would bind the partiesthereto and also the court, tribunal or authority.

D36. When we read the order passed by this Court, all the partieshave filed the pleadings while the order was passed by this Court. Counteraffidavits, rejoinder and various other applications for taking on recordthe documents and plethora of documents were submitted before thisCourt and it was argued for several days at length. This Court has heardthe matter and thereafter has expressed the opinion and recording findingEas to the legality of the order dated 14.11.2016 for the first time as theorder was not before High Court, vide the order passed on 22.3.2017observing that:

“Heard learned counsel for the parties.

FWe do not find any ground to interfere in Order dated 14.11.2016.

As 30 students have been found by ASC, in the case of KarunaMedical College, who have been illegally deprived of theiradmission in spite of being meritorious, we deem it proper to issuedirection to the college and all other concerned authorities to admitthem in the next academic session 2017-18 in Karuna MedicalGCollege and the corresponding number of seats, available to it,shall be reduced by 30 for the college in question for academicsession 2017-18.

The Special Leave Petitions are, accordingly, dismissed.

H Pending applications stand disposed of.”

It is apparent from the aforesaid order passed by this Court thatthis Court did not find any ground to interfere with the order dated14.11.2016. The SLPs. against the order passed by the High Court werealso dismissed and this Court had directed that 30 students be admittedin the next session. Independent directions were issued which were notordered by the High Court. This Court directed that they are to beadmitted to the academic session 2017-18. Thus, it does not lie in themouth of the respondents to contend at all that it was not a decision onmerits by this Court. Submission is startling and in the negation ofstupendous effort made and time given by this Court while hearing thematters before deciding them by the aforesaid order.

37. It was also contended on behalf of the respondents that NEETmerit is the fulcrum that has been adopted in the Ordinance; a studentwho could have obtained admission otherwise, had the procedure beenfollowed, should not be deprived of admission in the course for no faulton his part. The submission, though attractive, is hollow and cannot becountenanced for assessment. Firstly the matter stands adjudicated finallyand finally concluded up to this Court. Merit was the basis earlier toowhen the admissions were to be made through NEET and required “on-line” procedure was to be followed. It is not the change of the basis thathas been made by merit criteria. Apart from that, when once the basicprocedure laid down in the judgment for receiving online applicationshad not been followed, admissions that were cancelled on that ground,could not have been validated at all. The colleges were unable to satisfythis Court as to the fairness of the procedure adopted by them. As such,this Court did not interfere with the judgment of the High Court as wellas the order dated 14.11.2016 of the ASC. When merit was the basisearlier too, it cannot be said that the legislature has tried to introducesomething new. It cannot be said that any defect has now been removedby the State legislature from the existing law. In fact, what was thejudgment of the court, has been attempted to be nullified. It is nothingbut an attempt to nullify the judgment which the legislature cannot do, aswe have a well-defined field of separation of powers of the judiciary,legislature and the executive.

38. The decision in Dr. Preeti Srivastava & Anr. v. State of M.P.& Ors. (1999) 7 SCC 120 has been referred to by the respondents inwhich the Court considered the question of the need for common entranceexamination for admission to postgraduate medical courses in a State A

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“28. This argument ignores the reasons underlying the need for acommon entrance examination for post-graduate medical coursesin a State. There may be several Universities in a State whichconduct M.B.B.S. courses. The courses of study may not beuniform. The quality of teaching may not be uniform. The standardof assessment at the M.B.B.S. examination also may not beuniform in the different universities. With the result that in someof the better universities which apply more strict tests for evaluatingthe performance of students, a higher standard of performance isrequired for getting the passing marks in the M.B.B.S. examination.Similarly, a higher standard of performance may be required forgetting higher marks than in other universities. Some universitiesmay assess the students liberally with the result that the candidateswith lesser knowledge may be above to secure passing marks inthe M.B.B.S. examination; while it may also be easier forcandidates to secure marks at the higher level. A common entranceexamination, therefore, provides a uniform criterion for judgingthe merit of all candidates who come from different universities.Obviously, as soon as one concedes that there can be differingstandards of teaching and evaluation in different universities, onecannot rule out the possibility that the candidates who have passedthe M.B.B.S. examination from a university which is liberal inevaluating its students, would not, necessarily, have passed, hadthey appeared in an examination where a more strict evaluation ismade. Similarly, candidates who have obtained very high marksin the M.B.B.S. examination where evaluation is liberal wouldhave got lesser marks had they appeared for the examination of auniversity where stricter standards were applied. Therefore, thepurpose of such a common entrance examination is not merely tograde candidates for selection. The purposes is also to evaluateall candidates by a common yardstick. One must, therefore, alsotake into account the possibility that some of the candidates whomay have passed the M.B.B.S. examination from more “generous”

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universities, may not qualify at the entrance examination where abetter and uniform standard for judging all the candidates fromdifferent universities is applied. In the interest of selecting suitablecandidates for specialised education, it is necessary that thecommon entrance examination is of a certain standard andqualifying marks are prescribed for passing that examination. Thisalone will balance the competing equities of having competentstudents for specialised education and the need to provide forsome room for the backward even at the stage of specialisedpostgraduate education which is one step below the superspecialities.”

The observations are of no help for the aforestated reasons. TheState Government was not competent to promulgate the impugnedOrdinance as already held. The question cannot be agitated afresh whocould have obtained admission on the basis of the merit. There may be alarge number of other students who might have been deprived of theirright to obtain admission. Such kind of enquiry is impermissible to bemade now in the wake of the decisions which have attained finality andare binding upon all concerned.

39. Reliance has been placed by the respondents on a decision ofthis Court in Anitta Job & Ors. v. The State of Kerala decided on20.4.2018 (supra) so as to contend that this Court did not interfere withthe admissions which were made without applying the mind as the studentshad appeared in the NEET examination and the college had admittedother similar students also. This Court has passed the order under Article142. In the instant case in view of the previous verdicts, such a powercannot be exercised and apart from that when the judgments have attainedfinality, they are binding on all concerned including this Court. Powerunder Article 142 cannot be exercised to nullify its own judgment and toperpetuate illegality. The question involved in the case is the power ofthe State Government to promulgate the impugned Ordinance. It wasnot the question in the said decision of Anitta Job (supra). The decisionis of no application to the instant case. The power under Article 142cannot at all be exercised by this Court in view of the previous decisionsand also in view of the fact that it was not competent to enact the impugnedOrdinance by the State Government so as to perpetuate an illegality inview of the pronouncements made earlier.

AB

C

D

E

F

G

H

A40. Resultantly, the writ petitions deserve to be allowed. Theimpugned Ordinance is declared to be ultra vires and entrenching uponthe field earmarked for the judiciary as it sought to nullify the judgmentand order passed by the High Court and by this Court.

BKalpana K. Tripathy

Writ Petitions allowed.

C

D

E

F

G

H