Rustom E. Mody Parsi v. State of Madhya Bharat — 1952 DIGILAW 97 (MP)

JUDGMENT : NEVASKAR, J. 1. This and another petition viz. Miscellaneous Case No. 18 of 1952 are submitted by medical students of the Mahatma Gandhi Memorial* Medical College, Indore against the State of Madhya Bharat for issue of a writ of 'Mandamus or Prohibition or direction or Orders' as may appear in the opinion of this Court be deemed proper. Both this case and Civil Misc. Case No. 18 of 1952 are being disposed of by this order as both involve practically the same question. 2. In the present petition the petitioner Rustam E. Mody and Rajendra P. Bhagi set-forth that they are the students of the aforenamed Medical College at Indore studying in the 4th year class. In this College capitation fee was required to be paid by non-local students under the rules of the institution. Recently there has been a change in the rules and under the-present rules Madhya Bharat students are exempted from payment of capitation fees which are Rs. 1300/- in the case of nominees from other States e.g. Rajasthan, Jammu and Kashmir and Rs. 1500/- from other non-Madhya Bharat students. This College admitted students from all over India. The petitioners contend that after Indian Constitution came into force the petitioners became entitled to the fundamental right of 'equality in the eyes of law' and that, no distinction could be made by reason of Art., t5 of the Constitution on the ground of residence. They, therefore, contend that the imposition of capitation fees from petitioners who are non-Madhya Bharat students is not warranted by the Constitution and is void. 3. They further alleged that this imposition is contrary to the claim made (in the Calendar for 1952) that the admission will be strictly in order of merit and without any Provincial bar or restriction. It is further set forth that on a representation made by non-Madhya Bharat students the Hon'ble the Minister in charge of Health gave-assurance of sympathetic consideration and on 19-5-1952 actually in the news item of All India Radio the abolition of capitation fees by Madhya Bharat Government was broadcast. This, news was further confirmed by a letter received from the Secretary to the Government of India, Ministry of Health and Education and also from a telegraphic reply received by the Under Secretary to the Government of Jammu and Kashmir from the Secretary to Madhya Bharat Government. 4. This, news was further confirmed by a letter received from the Secretary to the Government of India, Ministry of Health and Education and also from a telegraphic reply received by the Under Secretary to the Government of Jammu and Kashmir from the Secretary to Madhya Bharat Government. 4. In the return filed by the Government along with an affidavit it is contended firstly that imposition of capitation fees on the petitioner is not contrary to Art. 15 on the ground that no discrimination such as prohibited by Art. 15 is involved in the process and neither this Article nor Art. 29 bars distinctions on the ground of residence. It is further contended that the system of imposition of capitation fees is in continuation of an arrangement which had been made between participating States and Mahatma Gandhi Memorial Medical College, General Council, a society which used to conduct the College until its transfer to the State of Madhya Bharat, on the same terms and conditions. As for the radio news regarding abolition of capitation fees as also other materials relied on for the purpose it is contended that they were results of a mistaken and premature release of a contemplated step. On an over-all consideration of the matter the Government resolved that in view of a deficit budget no relief could be granted in this direction. This was in exercise of the right of Government to review the executive action and is 'intra vires'. 5. In the other petition submitted by Sumitra Devi there are further special allegations peculiar to herself viz. : That she is a bona fide resident of Madhya Bharat and hence under the rules framed by Government and notified in the Calendar she is entitled to be admitted to the College without payment of capitation fees. Besides this an attempt was also made to set forth the legal basis of her right viz. to be educated in the College in question without payment of capitation fees (probably on the ground of residence). It is also contended that the demand of fees on the ground of non-residence in Madhya Bharat is based on the 'principal (policy)' of discrimination between 'one citizen and the others' and is a violation of Fundamental Rights guaranteed by the Constitution and offends against the principle of equality before law. 6. It is also contended that the demand of fees on the ground of non-residence in Madhya Bharat is based on the 'principal (policy)' of discrimination between 'one citizen and the others' and is a violation of Fundamental Rights guaranteed by the Constitution and offends against the principle of equality before law. 6. A writ of prohibition or direction is, therefore, claimed restraining Madhya Bharat Government and the Principal of the College from demanding capitation fees and removing her name from the roll and preventing her from attending the College. 7. To this a return was submitted on behalf of the Principal of the College and the Madhya Bharat Government. They repeated the contentions raised in the return filed by them in the other petition and some others-principal amongst which are that there is no discrimination made between one citizen and another contrary to the provisions of the Constitution nor does this violate the principle of equality before law; that the Government of Madhya Bharat has taken over this institution from the previous authorities of the institution subject to the condition that they will continue as before to reserve the seats for various participating units which had contributed to the establishment of the College and the words in the rules providing for exemption of the fees for Madhya Bharat students were correlated to this scheme of allocation of seats and were not to be general in import. This it is claimed to be a clarification in exercise of its executive power and is final and conclusive; nor does this involve an invasion of any legal right of the petitioner. In the return it is also contended that the petitioner Sumitra Devi had at first competed for one of the seats 'reserved for Madhya Bharat'. She failed to qualify. She later secured nomination from the State of Rajasthan representing that she belonged to Udaipur and was domiciled in Rajasthan. She entered into a bond with Rajasthan Government to bear capitation fees. She has thus by her conduct disentitled herself from praying for a high prerogative writ like the one she craves for. 8. It will be convenient to consider the general grounds on the basis of which all of the petitioners have claimed the writ viz. She entered into a bond with Rajasthan Government to bear capitation fees. She has thus by her conduct disentitled herself from praying for a high prerogative writ like the one she craves for. 8. It will be convenient to consider the general grounds on the basis of which all of the petitioners have claimed the writ viz. (1) that the demand of fees on the ground of non-residence-by the institution and the Government which runs the same is based on the policy of discrimination between one citizen and another and it involves violation of fundamental rights guaranteed by the Constitution (2) that the demand also offends against the principle of equality before law. 9. Messrs. Rege and Samvastsar who appeared in the 1st and 2nd case respectively have-clarified that they based their fundamental right not on Article 29(2) but on Art. 15(1). I am unable to see how either of these articles can help the petitioners. Article 15(1) lays down : "The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, 'place of birth' or any of them." As will appear from Arts. 5 to 8 that right of citizenship is granted and no distinction is made on the ground of religion, race, caste, sex or place of birth of the person concerned provided he satisfies requisite conditions. Discrimination on the ground of place of birth means discrimination because a person is born at particular place. 10. If this significance is borne in mind, it is clear that a distinction if made by a State on the ground of residence in the matter of imparting education cannot mean a discrimination on the ground of place of birth. The right granted under Art. 15 is a sort of a negative right and arises only on a discrimination being made on one or more of the five grounds mentioned therein. If discrimination is made on any other ground it will not mean violation of the Fundamental Right under Art. 15 and no right, therefore, arises thereunder although it may or may not involve violation of any other right fundamental if it arises under any other article in-Part III or general right under ordinary law of land. 11. It cannot be contended that the Constitution confers upon a citizen any positive right, as fundamental to be admitted to any educational institution. 11. It cannot be contended that the Constitution confers upon a citizen any positive right, as fundamental to be admitted to any educational institution. All that a State can do is to aim at, at some point of time in future, bringing about state of things in which each individual will get education of his choice but all that it at present can do is to open and maintain such kinds of institutions for education as its finances can support and to act in such a manner that its action does not transgress any of the provisions of the Constitution. This is made further clear by reference to Art. 29(2) of the Constitution which is directly intended for the purpose of educational institutions. It lays down that : "No citizen shall be denied admission into any educational institution maintained by the State funds on grounds only of religion, race, caste, language or any of them." 12. Therefore the fundamental right bearing on the subject of admission to an educational institution, run or aided by State funds will only arise on a denial of admission on the grounds of religion, race, caste, language or any of them. Hence if denial of admission proceeds on any other ground no right arises. 13. Analysing the facts of these cases, it is clear that in the present cases : (I) There is no denial of admission. The students were all admitted and studying. (II) There is a rule made by which residence of Madhya Bharat are exempted from certain fees. Therefore neither Art. 29(2) nor Art. 15(1) will apply. 14. As I view at the matter, it becomes clear to me that so far as the students who are nonresidents of Madhya Bharat are concerned, there is no fundamental right belonging to them as citizens of India that has been violated by making a provision that they are not exempted from payment of capitation fees. Nor does this violate Art. 14 of the Constitution regarding equality before law, or equal protection of the laws. 15. Before considering the applicability of the principles underlying this article to the facts of the present case it is necessary to know what is the significance of these two terms viz. equality before law and equal protection of the laws. Nor does this violate Art. 14 of the Constitution regarding equality before law, or equal protection of the laws. 15. Before considering the applicability of the principles underlying this article to the facts of the present case it is necessary to know what is the significance of these two terms viz. equality before law and equal protection of the laws. Historically, these phrases are apparently taken from constitutional conception of Briton and United States of America respectively and therefore it is to the standard works on constitutional subjects of these countries we must have a recourse in order to understand the true import and limitations of these phrases. According to Prof. Dicey equality before law means equal subjection of all classes to the ordinary law of the land administered by ordinary Courts. In this sense, it excludes the idea of any exemption of officials or others from the duty of obedience to the law which governs other citizens from the jurisdiction of ordinary tribunals. The principle of equality before law is not violated by the existence of special laws providing for special groups of subject e.g. soldiers, lawyers, doctors etc. Such laws may not affect the rest of the public but affect the members of particular calling. But in enforcement of these laws and in enforcement of ordinary laws no distinction can be made between one person and another. This principle comes into play not in any controversy regarding legality of any law enacted by the State. It comes into play really in its enforcement. 16. Rajamannar, C.J. in 'V.G. Row v. State of Madras', AIR 1951 Mad 147 (FB) (A). Paras 33 and 34 sums up this exposition of Professor Dicey thus : "So when Professor Dicey speaks of the principle being essential part of the (British) Constitution, he means the law of the land shall be enforced equally without any distinction being made on any ground whatever. 17-18. As regards the phrase equal protection of the laws, the same learned Judge Rajamannar, C.J. of Madras High Court says in the same case : "The other concept of 'the equal protection of the laws' undoubtedly comes from the 14th Amendment to the United States Constitution. Ordinarily, one should expect therefore, a great deal of light to be thrown on meaning of the phrase by the decisions of the S.C. of the United States. Ordinarily, one should expect therefore, a great deal of light to be thrown on meaning of the phrase by the decisions of the S.C. of the United States. Unfortunately, however, this phrase occurs along with another phrase 'due process of law' and in pronouncing on the validity of State laws, Courts in America have referred to both provisions leaving it uncertain which provision was deemed the most pertinent and potent in the premises. (See Willoughtay, Students' Edition page 823). In the famous passage from the judgment of Field, J. in - 'Barbier v. Cormolly', (1883) 113 US 27 (B), which is given in extenso in the judgment of one of my brothers, that learned Judge was expatiating on the 14th Amendment which contains both the provisions of due process and equal protection. Taft, C.J. in his opinion in the leading case of - 'Truax v. Corrigan', (1921) 257 US 312 (C), conceded that the two provisions overlapped and that a violation of one may involve at times the violation of the other, but pointed out that the spheres of the protection, they offer are not conterminous. The due process clause might end to secure equality of law in the sense that it makes a required minimum of protection for every one's right of life, liberty and property which the Congress or the Legislature may not withhold. The learned Chief Justice then observes : "But the framers and adopters of this Amendment were not content to depend on a mere minimum secured by the due process clause, or upon the spirit of equality which might not be insisted on by local public opinion. They therefore embodied that spirit in a specific guarantee. The guarantee was aimed at undue favour and individual or class privilege, on the one hand, and at hostile discrimination or the expression of inequality, on the other. It sought an equality of treatment of all persons, even though all enjoyed the protection of due process ...... They therefore embodied that spirit in a specific guarantee. The guarantee was aimed at undue favour and individual or class privilege, on the one hand, and at hostile discrimination or the expression of inequality, on the other. It sought an equality of treatment of all persons, even though all enjoyed the protection of due process ...... Thus the guarantee was intended to secure equality of protection not only for all but against all similarly situated." "In short equal protection clause says the learned Judge embodies a protection against discrimination or favour of any person or class of persons as much as against any person or class or to borrow the expression used in - 'Yick Wo v. Hopkins', (1885) 118 US 356 (D) 'equal protection of the laws is a protection of equal laws.' It requires that persons subjected f to a piece of legislature shall be treated alike both in privileges conferred and liabilities imposed. It prevents any person or class of persons being singled out as a special subject for discriminatory and hostile legislation." 19. In 'Kathi Raning Rawat v. State of Saurashtra', AIR 1952 SC 123 (E), Mukherjea, J. observed : "A Legislature for the purpose of dealing with the complex problem that arise out of an infinite variety of human relation, cannot but proceed upon some sort of selection or classification of persons upon whom the legislation is to operate. The consequence of such classification would undoubtedly be to differentiate the persons belonging to that class from others, but that by itself would not make the legislation obnoxious to the equal protection class. Equality prescribed by the Constitution would not be violated if the statute operates equally on all persons who are included in the group and the classification is not arbitrary or capricious, but bears a reasonable relation to the objective which the legislation has in view. The Legislature is given the utmost latitude in making the classification and it is only when there is a palpable abuse of power and the differences made have no rational relation to the objectives of the regulation, that necessity of judicial interference arises." Further to quote Das, J. in the same case : "What is necessary is that there must be a nexus between the basis of classification and the object of the Act." 20. This principle has been explained by P.B. Mukharji, J. in - 'S.B. Trading Co. Ltd. v. Shyamlal Ramchandra', AIR 1951 Cal 539 (F) : "No legislation in any practical sense is possible without some kind of classification and some kind of discrimination. The very nature and purpose of every legislation depend on the choice of some subject or others to the exclusion of the rest and some arena for its operation. This selective quality is inherent and implicit in every legislation. The constitutional guarantee of 'equality before the law' or of 'equal protection of the laws' cannot, therefore, be understood and construed in such a manner as to make legislation impossible for all practical purposes. Not all classification or discrimination is a breach of the constitutional guarantee of Art. 14 of the Constitution. Equality before the law or equal protection of the laws, therefore, means that the law being there, its application should be universal in every case which answers the description in the legislation. That other more desirable objects, which do not answer such legislative description, are left out of the operation of such legislation is, in my view, a matter of legislative policy and not a consideration which affects the constitutional doctrine of equality before the laws or of equal protection of the laws. The power to classify or particularise objects of legislation must, in the nature of things, be left as wide as possible to the law-making authorities. But the line is drawn so as to ensure that, other things being equal, the same and similarly circumstanced persons who are the subjects of the legislation, should be equal before such law and there should be as between them, equal protection of the laws. If not, it is only then that such law is discriminatory in the sense of being an infringement of the guarantee of Art. 14 of the Constitution. It is in that sense that the constitutional doctrine of 'equality before the law' or of 'equal protection of the laws' should be understood and it cannot be over emphasised that in applying this doctrine no narrow dogmatic constitutional niceties should hamper the true exposition of the Constitution as a living practical instrument of Government men and affairs." 21. It is in that sense that the constitutional doctrine of 'equality before the law' or of 'equal protection of the laws' should be understood and it cannot be over emphasised that in applying this doctrine no narrow dogmatic constitutional niceties should hamper the true exposition of the Constitution as a living practical instrument of Government men and affairs." 21. From these observations of the learned Judges both of this and other countries it is plain that looked at from the point of 'equality before law' and 'equal protection of law, it cannot be said that the State of Madhya Bharat in demanding fees from the students residing out of Madhya Bharat have resorted to a classification which is prohibited by the Constitution and is based on unreasonable grounds. After all Madhya Bharat State will be expected to provide for residents of Madhya Bharat in the first instance as will appear from the fact that education is a State subject barring certain exceptions. Entry No. 11 of List II State List, is education. Article 162 of the Constitution provides 1 that the executive power of the State shall ex-|tend to such matters in respect of which the legislature of a State has power to make laws. Can it now be contended that while exercising this power and providing for education out of the finances of the State, it is bound to make a provision similarly for residents and non-residents alike ? There is no law that compels it to do so. The inhibition on the subject is directed towards discrimination on the ground of religion, race, caste or language or any of them as regards admission to educational institutions. It is obvious that a State can make law limiting admissions to the residents of the State itself and this would not be obnoxious. Nor will this classification violate the letter and the spirit of Art. 14 as the classification is based on reasonable grounds relevant to the object of legislation and cannot be styled as arbitrary or capricious having no relation to the object sought to be achieved. If a State can make law denying admission on the ground of non-residence in its educational institution it can certainly make law on the ground of exempting its residents from paying capitation fees. If a State can make law denying admission on the ground of non-residence in its educational institution it can certainly make law on the ground of exempting its residents from paying capitation fees. This exemption of its residents from payment will be deemed to be based on reasonable grounds because it is the finances of the State that bear the burden of running the institution. It is not unfair to charge those who come from outside the State to receive benefit of the institution run by the State to pay special fees from which the Madhya Bharat students are exempt. It would be different if any act of the State runs counter to the fundamental inhibition contained in Part III and to discriminate on the grounds of non-residence in the matter of education is not one of them. I therefore hold in the cases of Rustomji E. Mody and Rajendra P. Bhagi that they have failed to show that they possess any right as regards their being exempted from payment of capitation fees and since there is no right no question of its violation arises. In this view of the matter it is not relevant to consider whether the State of Madhya Bharat had through its officers declared the abolition of capitation fees for all students who are citizens of India and what if any would be the implications of its subsequent statement that this was a premature declaration of a contemplated step and that on over-all consideration of financial implications of the scheme and the present state of her finances this was not thought feasible. 22. Petition therefore in Miscellaneous Case No. 20 of 1952 of the aforesaid two students is dismissed. 23. I will now consider the case of Sumitra Devi (Misc. Case No. 18 of 1952) in the light of principles discussed above. No doubt Sumitra Devi is a Madhya Bharat student and if Madhya Bharat students are exempt from capitation fees by the rule of the institution then she cannot be discriminated as in that case discrimination would be arbitrary and based on no ground whatever. In her case the position taken on behalf of the State is : Firstly, since she has secured admission as nominee of Rajasthan Government she cannot claim the exemption though she be a student who is a resident of Madhya Bharat. In her case the position taken on behalf of the State is : Firstly, since she has secured admission as nominee of Rajasthan Government she cannot claim the exemption though she be a student who is a resident of Madhya Bharat. Secondly, when the calendar mentions that Madhya Bharat students are exempt from capitation fees it really meant to apply to the students of Madhya Bharat who occupy the seats allocated to Madhya Bharat in the system of allocation of seats which existed before the College was taken over and subject to the terms and conditions by which the prior institution was bound. 24. From the affidavit filed, the certificate granted by the District Magistrate, Indore and the return together with the affidavit filed by one of the Secretaries of the Government it cannot be disputed that Sumitra Devi is a student who is resident of Madhya Bharat. Now three questions arise accepting this to be a fact : Firstly, can the State of Madhya Bharat say that the term bona fide residents of Madhya Bharat' should be taken to be correlated to the scheme for allocation of seats and was not intended to be of general import. Secondly, how far the fact of her being nominated as nominee Rajasthan affect the matter, and Lastly, will the discrimination involve invasion on any of her fundamental right ? I shall consider these questions hereafter. 25. The Rule framed by Madhya Bharat Government on the subject of capitation fees for the College in question is as follows : (Ex. 6/1) "For all students 'who are bona fide residents' of Madhya Bharat no capitation fees should be charged. But for other non-Madhya Bharat students the capitation fee should be retained as at present at Rs. 1300/- for nominees and Rs. 1500/- for others." 26. It will be clear from the phraseology used that the classification is sought to be made on the basis of residence and certain privilege is conferred on those students who are residents of Madhya Bharat. Then a further classification is made between the non-Madhya Bharat students viz. those who are nominees of participating States and others and a special concession is made in favour of the former by requiring them to pay only Rs. 1300/- in place of Rs. 1500/-. 27. Then a further classification is made between the non-Madhya Bharat students viz. those who are nominees of participating States and others and a special concession is made in favour of the former by requiring them to pay only Rs. 1300/- in place of Rs. 1500/-. 27. Now Sumitra Devi is both a resident of Madhya Bharat and also a nominee of other State and naturally she will be entitled to claim the privilege available to her as a resident of Madhya Bharat. It is not for this State to consider what will be the effect of this on her agreement with the State of Rajasthan. 28. I shall now consider how far I can give effect to an attempt on behalf of the State to limit the meaning of the phrase 'bona fide residents of the State of Madhya Bharat' and to construe it in the context of what is styled as the accepted scheme for the allocation of seats to the various participating States. 29. It has further been contended in this behalf on behalf of the Government that the clarification of the Rule framed by the State in exercise of its executive power is final and conclusive as to its true meaning. 30. As regards the construction it is plain that from the phraseology used both in the Rule (Ex. 6/1) and the purport of it in the calendar that no such limitation can be placed on its construction whatever may be in the mind of the framers of the Rule. The phraseology has reference to classification sought to be made on the ground of Residence in the State and this classification cannot be abridged on any ground based on supposed intention. It is in fact against such an attempt that the guarantee under Art. 14 is directed; I might in this connection quote from - 'Commr. of Police, Bombay v. Gordhandas Bhanji', AIR 1952 SC 16 (G) with advantage : "Public order, publicly made, in exercise of statutory authority cannot be construed in the light of explanation subsequently given by officer (authority) making the order of what he meant or what was in his mind or what he intended to do. of Police, Bombay v. Gordhandas Bhanji', AIR 1952 SC 16 (G) with advantage : "Public order, publicly made, in exercise of statutory authority cannot be construed in the light of explanation subsequently given by officer (authority) making the order of what he meant or what was in his mind or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself." 31. This observation was made by the Supreme Court in connection with a case under S. 45, Specific Relief Act. The facts of that case were that the plaintiff therein applied for permission to build a Cinema house in Andheri which, formed a part of Greater Bombay. The Commissioner of Police who had powers to grant sanction first refused but later granted permission on the basis of recommendation of the Cinema Advisory Board set up by the Government for the purpose. On representations being made against this by the residents of the locality the Police Commissioner conveyed the following order to the proprietor of the Cinema House : "I am directed by Government to inform you that the permission to errect a Cinema house at the above site granted to you under this office letter dated 16-7-1947 is hereby cancelled." The Commissioner of Police was entitled to cancel the permission granted by him in his own right under the executive powers vested in him by law. When the matter came for consideration before the High Court an affidavit was given by the Commissioner to show that the order recited, above was really the order of the cancellation made by him in his aforesaid right and it is in this connection that the above quoted remarks were made by their Lordships of the Supreme Court. 32. Under Art. 162 of the Constitution it is provided that subject to the provisions of the Constitution, the executive power of a State shall extend to the matters with respect to which the Legislature of the State has power to make laws. 33. Entry No. 11 in the State list refers to education. 32. Under Art. 162 of the Constitution it is provided that subject to the provisions of the Constitution, the executive power of a State shall extend to the matters with respect to which the Legislature of the State has power to make laws. 33. Entry No. 11 in the State list refers to education. Therefore the State is empowered to take decision as to its action in imposing fees as well as carrying it out and also can make such orders for the purpose as is thought proper and in so doing it will be acting lawfully. In this connection it may be useful to refer to certain American authorities dealing with the scope of equal protection Clause of 14th Amendment. In - 'Carter v. State of Texas', 177 US 442 (H) Justice Gray who delivered the opinion of the Court held thus : "The rules of law which must govern this case are clearly established by previous decisions of this court. Whenever by any action of a state, whether through its legislature, through its courts, or through its executive or administrative officers all persons of African race are excluded solely because of their race or colour, from serving as grand jurors in the criminal prosecution of a person of the African race, the equal protection of the laws is denied to him, contrary to the Fourteenth Amendment of the Constitution of the United States. 'Strauder v. West Virginia', (1880) 100 US 303 (I); - 'Neal v. Delaware', (1881) 103 US 370 (J); - 'Gibson v. Mississippi', (1895) 162 U S 565 (K)." 34. This observation was made in connection with a case where a Negro was convicted by a State Court of Texas for an offence. The accused took objection that his conviction was illegal because the grand jurors who were empanelled were selected by the jury Commissioner in such a manner as to exclude Negros or coloured people from serving as jurors. The conviction was set aside on the ground of denial of equal protection of laws. The action of the jury commissioner was an executive act and not legislative. 35. In - Home Telegraph Co. The conviction was set aside on the ground of denial of equal protection of laws. The action of the jury commissioner was an executive act and not legislative. 35. In - Home Telegraph Co. v. City of Los Angiles', (1912) 227 US 278 at p, 288 (L), Chief Justice White says : "Under these circumstances it may not be doubted that there was a state officer, under an assertion of power from the state, is doing an act which could only be done upon the predicate that there was such power, the inquiry as to the repugnancy of the act to the 14th Amendment cannot be avoided by insisting that there is a want of power." 36. From this it is clear that even an action which is either executive or being an executive act it is outside the scope of lawful authority of an officer of a State if it is contrary to the 14th amendment was held by the United States' Courts to be within the protection afforded by the said amendment. From these authorities and the observations of the Supreme Court referred to above it is clear that in the first place it is not open for the state to say that the term bona fide residents of Madhya Bharat used in the Rule governing the institution should be taken to be correlated to the scheme of allocation of the seats and should not be taken to be of general import and secondly this action even if it be executive or legislative Within the competency of the executive body will if discriminatory be within the protection afforded by Art. 14 of the Constitution as in that case it will involve an invasion of a fundamental right guaranteed by the Constitution. 37. It is possible that the Government may hereafter change the rule but with that contingency I am not here concerned. I must consider the state of affairs as it exists today and to see whether the action of the Government involves invasion of her fundamental right and she has not disentitled herself to a high prerogative writ by her conduct. Now since the Government want me to construe the rule in such a manner as to exclude a person from an apparent classification made under the rule this cannot but be a discrimination violating the equal protection clause. 38. Now since the Government want me to construe the rule in such a manner as to exclude a person from an apparent classification made under the rule this cannot but be a discrimination violating the equal protection clause. 38. If a person is entitled to a certain advantage as belonging to a certain group then any unjustifiable attempt to vary the scope of that Rule as to exclude that person comes equally within the preview of equal protection clause. I take this attempt of distinction in this case to be unjustifiable because the wordings of the resolution do not even distantly suggest a possibility of such a distinction. From the foregoing discussion it is clear that Sumitra Devi being a resident of Madhya Bharat cannot be discriminated against in the application of the rule which exempted Madhya Bharat students from payment of capitation fees and an attempt at classifying her differently being unjustifiable results in the invasion of her right under Art. 14. Next it is to be seen whether her conduct two years back when she could not get admission as a Madhya Bharat student in securing admission as a nominee of Rajasthan is such as to disentitle her the protection sought for in these proceedings. 39. The State has in this connection filed a copy of her application dated 17-6-1950 Ex. 25 submitted by her to the Rajasthan Government wherein she says : "My father owns property in Udaipur State and we have been residents of that State for the past two centuries. We own there ancestral property and some Jagir also." She describes her father as resident of Ramduara Chowk of Udaipur State. We have no material to say that the applicant's father did not own any property and Jagir as alleged and that her father could not be styled as resident within the meaning of the phrase as understood in Rajasthan. 40. Then that application was for securing admission in Sawai Mansingh Medical College with a prayer for Scholarship which ultimately did not materialise. From the correspondence on record it appears that Sumitra Devi wanted an admission in the Mahatma Gandhi Memorial Medical College in question. Rajasthan Government had certain reserved seats for this College. 40. Then that application was for securing admission in Sawai Mansingh Medical College with a prayer for Scholarship which ultimately did not materialise. From the correspondence on record it appears that Sumitra Devi wanted an admission in the Mahatma Gandhi Memorial Medical College in question. Rajasthan Government had certain reserved seats for this College. It therefore permitted her to take advantage of one of these seats which could not be filled by them on her father executing a bond for payment of all college dues and expenses. There is nothing in this conduct as should disentitle her to the protection afforded by the Constitution. Moreover I have held that the discrimination made in this case affects her fundamental right under Art. 14, no question of conduct arises. 41. I, therefore, declare that Sumitra Devi is entitled to continue her studies in the College without payment of capitation fees and order that she should not be prevented from doing so on the ground of non-payment of capitation fees. 42. The result is that in Civil Misc. Case No. 20 of 1952 the petition of Rustem E. Mody and Rajendra P. Bhagi is disallowed with costs whereas in Civil Misc. Case No. 18 of 1952 the petition of Sumitra Devi is allowed with costs. Counsel's fee be taxed as Rs. 50/-. 43. SHINDE, C.J. – I agree and have nothing to add. Order accordingly.