Meghji Pethraj Shah Charitable Trust v. STATE — 1993 DIGILAW 361 (GUJ)

M. S. PARIKH, J. ( 1 ) IN both these petitions there is a common challenge to the action of the government in discontinuing the 12 donors" seats ear- marked for M. P. Shah Charitable trust in the M. P. Shah Government Medical College, Jamnagar and two seats reserved in the Pharmacy Faculty in respect of Shri M. N. Parikh Pharmacy College, Cambay, for the trust represented by the petitioner in Special Civil Application no. 7692 of 1993. It may also be noted that the relevant Government Resolutions refer to a decision of the honourable Supreme Court in the case of Unnikrishnan, J. P. and Others vs. State of andhra Pradesh and Ors. , reported in (1993) 1 Supreme Court Cases 645, as the basis for the Government action and as per the say of the Government now the policy decision of the Government has been the basis of the said action. In so far as the Special Civil application No. 6532 of 1993 is concerned at the initial stage the challenge was to government action as reflected in letter dated 22. 6. 1993 (annexure : A) which reads as under:"i am directed to state that the State Govt. has, in keeping with the judgment of the Supreme Court in the Writ Petition No. 607 of 1992 and other petitioners between Unnikrishnan J. P. and others vs. State of Andhra Pradesh, decided to discontinue the grant of commission to the 12 donor seats earmarked for M. P. Shah Trust in the M. P. Shah Govt Medical College, Jamnagar and 10 donor seats for Charutar Arogya Mandal in the Pramukh Swami Medical College, karamsad and that the admission to these seats will now be centralised at the level of the concerned competent authority. You are, therefore, advised not to admit any student against the donor seats. "at a later point of time the government has placed on record the relevant resolution and therefore the same is under challenge in this petition. The said Resolution reads as under:"government has in keeping with the judgment of the Supreme Court in writ petition No. 607/92 between Unnikrishnan J. P. and others vs. State of Andhra pradesh, decided to discontinue the 12 donor seats in M. P. Shah Medical college, Jamnagar and 10 donor seats in Pramukh Swami Medical College, karamsad. The decision of the Govt. The decision of the Govt. has been communicated to the concerned trustees vide this department latter of even no. dt. 22. 6. 93 requesting them not to admit any student against the donor seats. Therefore in partial modification of Rules for admission to MBBS/bds/ physiotherapy Course at Govt. Medical Colleges/school of physiotherapy in gujarat Stale for the year 1993-94 approved vide Govt. Resolution no. MCG-1093-1373-J dated 20. 5. 93 Govt. is pleased to delete the words" and 3" appearing in 7th line of Rule 1 and (ii) to delete the words "provided that. . . . . . total available seats" appearing in 6th and 7th line of the Rule 2 and (iii) to delete rule 3 and sub-rule 3. 1,3. 2,3. 3,3. 4 and note thereunder. By order and in the name of the Governor of Gujarat. " ( 2 ) THE challenge to the aforesaid action of the Government as reflected by the resolutions in question is inter alia on the following grounds: (1) The basis of the government action is the decision in the Unnikrishnans case (Supra) and according to the petitioners in following such a basis the government has committed an error apparent on the face of record warranting a writ of certiorari; (2) In the case of both petitioners there has been a contract, one entered into as back as in the year 1954 and another entered into as back as in the year 1969 whereby very negligible percentage of the seats to be reserved in favour of the donors who had seen to the starting of the very respective colleges and to the Government being enabled to impart higher education in the respective faculties. (3) The question came to be dealt with by Division Bench of this Court in the case of Miss. Asha Jansukhrai Nanavati vs. State of Gujarat and others, decided on 20. 9. 1974 in Special Civil Application no. 1232 of 1974 (Coram : b. J. Divan, CJ. and B. K. Mehta, J.) (per B. J. Divan, CJ ). Therefore by virtue of the decision of this Court both the questions viz. Asha Jansukhrai Nanavati vs. State of Gujarat and others, decided on 20. 9. 1974 in Special Civil Application no. 1232 of 1974 (Coram : b. J. Divan, CJ. and B. K. Mehta, J.) (per B. J. Divan, CJ ). Therefore by virtue of the decision of this Court both the questions viz. the question with regard to binding contract as also the bar of promissory estoppel and the question with regard to whether the reservation as aforesaid was violative of Article 14 and other provisions of the Constitution of India, cannot be said to be res-integra and would be barred by resjudicata. (4) The impugned orders reflected by the aforesaid resolutions and the impugned action of the Government so reflected would be nullity in the eye of law as principles of natural justice are violated; and (5) In any case the action of the Government would be violative of the doctrine of promissory estoppel. ( 3 ) IT may be seen how Mr. Ramaswami wants to make good all the aforesaid grounds by making a reference to certain facts. In so far as the petitioner Trust in Sp. C. A. No. 6532/93 is concerned what has been first read in the letter dated 8. 10. 1954 addressed to the Chief Minister Shri Dhcbarbhai. It refers to the discussion for the purpose of starting of a medical college in Jamnagar at a point of time when Saurashtra State did not have any medical college. The third point of discussion rentes that the Author of the letter or his successor or his nominee shall be entitled to recommend admission to the extent of 10% of the total number of students to be admitted and this arrangement shall be continued so long as the college continues. It is an admitted fact that this condition operated and the medical college in the name and style of M. P. Shah Medical College came to be in existence at Jamnagar. It should be noted that for the purpose of starting of the college Rs. 15 lacs were set apart by the donors and but for such financing by the Trust which was created for that purpose, the medical college could never have come into existence at Jamnagar in the Saurashtra Region at that point of time. It should be noted that for the purpose of starting of the college Rs. 15 lacs were set apart by the donors and but for such financing by the Trust which was created for that purpose, the medical college could never have come into existence at Jamnagar in the Saurashtra Region at that point of time. Reference is made to the letter dated 22/23-11-1954 addressed by the then chief Minister Shri U. N. Dhebar to aforesaid author of the letter dated 8. 10. 1954. The contents are worthy of note for the purpose and appreciating the submissions which are made on behalf of the petitioner. They are to the following effect:". . . . . . ALL the steps are being taken to start medical college from June, 1955. Arrangements will be made to start the college in the new building of the court till the new building for college is constructed. Medical college will be known as the name suggested by you and the arrangements have been made for the same. Constitution of the college shall proved for the admission to 10% of the students admitted every year as recommended by you or your successor or nominee and this arrangement shall be permanent. " ( 4 ) IN 1965 there was some change which was readily accepted by the petitioner trust. Such a change is reflected by what is stated in letter dated 19. 4. 1965 addressed by the under Secretary to the Government to the Trustee of the petitioner Trust Accordingly the government expressed its inability to reserve more than 12 seats for the nominees of the donors at M. P. Shah Medical College at Jamnagar thereby reducing the ratio of 10% to nearly 6 or 7%. To reiterate it is this reservation of 12 seats which is sought to be disturbed by impugned order/resolution. The arrangement as noted above has been reflected in Rules for admission to the M. B. B. S. Course framed by the Government. Rule-3 has been read in its entirety. The salient feature of the provision contained in rule-3 to 3. To reiterate it is this reservation of 12 seats which is sought to be disturbed by impugned order/resolution. The arrangement as noted above has been reflected in Rules for admission to the M. B. B. S. Course framed by the Government. Rule-3 has been read in its entirety. The salient feature of the provision contained in rule-3 to 3. 4 is that even the 12 donors seats reserved for the petitioner Trust were subject to the eligibility criteria laid down in the Rules and obtaining of minimum 45% marks by the Scheduled Caste and Scheduled Tribe candidates and 55% marks by the general category of the students in the theory papers of science subjects in qualifying examination is such a criteria. This arrangement was continued till upto 1984 and even thereafter, but even in 1974 one student Miss. Asha Jansukhray Nanavati challenged the reservation in favour of the petitioner Trust in Sp. Civil Application No. 1232 of 1974 before this Court. The grounds of challenge which have been enumerated by the Division Bench may be reproduced from page : 43 (internal page 11 ). On these averments in the petition, Mr. Mehta for the petitioner urged the following four contentions before us at the time of the hearing. We may point out that these are the only contentions which have been urged before us. (1) Having regard to the Rules of 1973, the Government is estopped from changing the rules in such a manner that the students who acted to their detriment or who joined the Home Guards relying upon the representation in the Rules of 1973, are deprived of credit of 10 marks for service in the Home guards. (2) There was no contract between the State Government and the fourth respondent Trust as contemplated by the constitution and hence there has been no binding contract between the State Government and the fourth respondent Trust which might form the basis of Rules for admission to pre-medical Course. (3) Reservation of 12 seats in favour of the fourth respondent Trust on the ground of a donation of Rs. 15 lacs in the past has no rational and reasonable nexus with the object to be believed by these Rules. It is the contention of the petitioner that the only object of these Rules to see to it that the best available talent is admitted to the Medical College. 15 lacs in the past has no rational and reasonable nexus with the object to be believed by these Rules. It is the contention of the petitioner that the only object of these Rules to see to it that the best available talent is admitted to the Medical College. (4) Classification of the Trust as one of the sources through which students can get admission to M. P. Shah Medical College, Jamnagar, is not reasonable and has no rational nexus with the object sought to be achieved. Dealing with the ground No. 2 this court said as under:"as regards the second contention regarding there being no formal contract between the State Government and the fourth respondent Trust as provided by the provisions of the constitution, it must be pointed out that the parties to the agreement were the original donor Meghjibhai Pethraj and the Government of saurashtra. Today the fourth respondent is the nominee under the terms of the letter of the Chief Minister of Saurashtra and that fourth respondent Trust and the State Government are willing to abide by the respective commitment arrived at in 1954 when Rs. 15 lakhs were given by the donor Meghjibhai pethraj to the Saurashtra Government for starting a Medical College at jamnagar Shah J. , as he then was, delivering the judgment of the Supreme court in Union vs. Indo-Afghan Agencies, (Supra) has pointed out in paragraph 20 at page 727 that even though a particular case of estoppel may not fall within the terms of section 115 of the Evidence Act, it is still open to a party who has acted on a representation made by the Government to claim that the government shall be bound to carry out the promise made by it, even though the promise is not recorded in the form of a formal contract as required by the constitution. " If the two parties to the agreement and moreover if the State government has received Rs. l5 lakhs from the original donor on the strength of the representation that 10 per cent of the seats at the M. P. Shah Medical college, Jamnagar would be reserved for the nominees of the donor or the nominees of the successor or nominees of the original donor, really speaking the Gujarat Government as successor Government would be estopped from contending that such reservation should not be made. To be fair to Mr. Mehta, it must be pointed out, that when his attention was drawn to this portion of the decision in Indo-Afghan Agencies case (Supra) he has not pressed his arguments regarding submission No. (2) though he has not given it up. "dealing with the grounds No. 3 and 4 it has been held as under:"hence from a practical commonsense point of view, the condition laid down by the donor, namely, reservation of ten percent of the seats for the nominees of the donor or his successor or his nominee seems to be a reasonable condition which the Government of Saurashtra accepted and hence this particular classification of the source from which students are admitted to the M. P. Shah medical College seems to be a reasonable classification based on intelligible differentia. "while ruling as above, this court observed that what the Rules of 1974, contain is to provide a source for admission to M. P. Shah Medical College, viz. nominees of the fourth respondent Trust. ( 5 ) IN support of his submission Mr. Ramaswami read before this Court the decision in the case of Unnikrishnan J. P. (supra) and according to his submission what has been said in the scheme that has been proposed by the Supreme Court does not reflect the ratio and the law laid down such as to displace the aforesaid promise held out in favour of the petitioner and the decision rendered by this court as noted above. According to his submission with what the Supreme Court was concerned in the case of Unnikrishnan (supra) was a right to education under Article 45 of the Constitution of India, fundamental right to a citizen to run a private college and a question whether a private citizen was entitled to charge capitation fees and finally whether running of a college in the manner in which it was done in the Unnikrishnans case amounted to business under Art. l9 (l) (g) of the Constitution. All the aforesaid four points would determine as to what is the ratio laid down by the supreme Court. In support of his submission he first referred to page-707 of the citation. There the relevant provisions of Karnataka Educational Institutions (Prohibition of capitation Fees) Act have been set out. All the aforesaid four points would determine as to what is the ratio laid down by the supreme Court. In support of his submission he first referred to page-707 of the citation. There the relevant provisions of Karnataka Educational Institutions (Prohibition of capitation Fees) Act have been set out. Reference is then made to the decision of the supreme Court in the case of Mohini Jain vs. State of Karnataka, reported in (1992) 3 s. C. C. 686, and the questions which were required to be answered have been set out in para-115 of the citation. The said para. 116 reads as under. "115. Mohini Jain was followed by a Full Bench of the Andhra Pradesh High court in Kranth Sangram Parishad vs. N. J. Ready. The respondents in those writ petitions including the State of Andhra Pradesh have filed a number of slps seeking leave to appeal against the said judgment. In the said SLPs, certain issues peculiar to those matters arise, which we are not dealing with herein. This decision is concerned mainly with the correctness of Mohini Jain and the following three questions, which were framed by us at the hearing. The three questions are: (1) Whether the Constitution of India guarantees a fundamental right to education to its citizens? (2) Whether a citizen of India has the fundamental right to establish and run an educational Institution under Article 19 (l) (g) or any other provision in the constitution? (3) Whether the grant of permission to establish and the grant of affiliation by a University imposes an obligation upon an educational institution to act fairly in the matter of admission of students?" ( 6 ) REFERENCE has then been made to page 738 where the first question has been answered. On pages 737 and 738 it has been held that:"the right to education further means that a citizen has a right to call upon the state to provide educational facilities to him within the limits of its economic capacity and development and it goes without saying that the limits of economic capacity are, ordinarily speaking matters within the subjective satisfaction of the State. "it has been held on a reference to Article 21 of the Constitution that - "the right to free education is available only to children until they complete the age of 14 years. "it has been held on a reference to Article 21 of the Constitution that - "the right to free education is available only to children until they complete the age of 14 years. Thereafter, the obligation of the State to provide education is subject to the limits of its economic capacity and development. ( 7 ) THE reference is then made to page: 754 for the purpose of locating answers to the remaining two questions. The Supreme Court held that- "imparting education cannot be treated as a trade or business and education cannot be allowed to be converted into commerce nor can the petitioners seek to obtain the said result by relying upon the wider meaning of "occupation". The Supreme Court has also expressed that- "the said activity cannot be called a profession within the meaning of Article 19 (l) (g ). Establishing educational institutions can by no stretch of imagination be treated as "practising any profession". Teaching may be a profession but establishing an institution, employing teaching and non-teaching staff, procuring the necessary infrastructure for running a school or college is not practising profession. It may be anything but not practising a profession. Reference from the citation is made to the effect that precise meaning and content of the expressions profession, occupation, trade, or business have not been assigned as that was not necessary. It was held that the activity of establishing and/or running the educational institution cannot be the matter of commerce. It was made clear that the right to establish an educational institution does not carry with it the right to recognition or right to affiliation. What has been observed on Page 755 has been reproduced hereunder:"in short, the petition is this : No educational institution except a University can award degrees (Sections 22 and 23 of the U. G. C. Act ). The private educational institutions cannot award their own degrees. Even if they award any certificates or other testimonials they have no practical values in as much as they are not good for obtaining any employment under the State or for admission into higher courses of study. The private educational institutions merely supplement the effort of the State in educating the people as explained above. It is not an independent activity. It is an activity supplemental to the principal activity carried on by the State. The private educational institutions merely supplement the effort of the State in educating the people as explained above. It is not an independent activity. It is an activity supplemental to the principal activity carried on by the State. No private educational institution can survive or subsist without recognition and/or affiliation, the bodies which grant recognition and/or affiliation are the authorities of the State. In such a situation, it is obligatory- in the interest of general public - upon the authority granting recognition or affiliation to insist upon such conditions as are appropriate to ensure not only education of requisite standard but also fairness and equal treatment in the matter of admission of an obligation to impose such condition as part of its duty enjoined upon it by Article 14 of the Constitution. It cannot allow itself or its power and privilege to be used unfairly, The incident attaching to the main activity attach to supplemental activity as well. Affiliation/recognition is not there for any body to get it gratis or unconditionally. In our opinion, no government authority or University is justified or is entitled to grant recognition/affiliation without imposing such conditions. Doing so would amount to abdicating its obligations enjoined upon it by Part III; its activity is bound to be characterised as unconstitutional and illegal. To reiterate, what applies to the main activity applies equally to supplemental activity. The State cannot claim immunity from the obligations arising from articles 14 and 15. If so, it cannot confer such immunity upon its affiliates. Accordingly, we have evolved - with the help of the counsel appearing before us and keeping in view the positive feature of the several Central and State enactments referred to hereinbefore- the following scheme which every authority granting recognition/affiliation shall impose upon the institutions seeking such recognition/affiliation. "mr. Ramaswami made pointed reference to the last six lines commencing from"accordingly we have evolved. . . . . . . . . . . . . . . recognition/affiliation. " ( 8 ) IT has been expressed by the Supreme Court that the idea behind the scheme is to eliminate discretion in the management altogether in the matter of admission. It is the discretion in the matter of admission that is at the root of the several ill complained of. . . . . . . . . recognition/affiliation. " ( 8 ) IT has been expressed by the Supreme Court that the idea behind the scheme is to eliminate discretion in the management altogether in the matter of admission. It is the discretion in the matter of admission that is at the root of the several ill complained of. It is the discretion that has mainly led to the commercialisation of education capitation fee means charging or collecting amount beyond what is permitted by law; Following observations with regard to the proposed scheme may be noted: we must strive to bring about a situation where there is no room or occasion for the management or anyone on its behalf to demand or collect any amount beyond what is permitted. We must clarify that charging the permitted fees by the private educational institutions - which is bound to be higher than the fees charged in similar governmental institutions by itself cannot be characterised as capitation fees. This is the policy underlying all the four States enactments prohibiting capitation fees. All of them recognise the necessity of charging higher fees by private educational institutions. They seek to regulate the fees that can be charged by them - which may be called permitted fees - and to bar them from collecting anything other than the permitted fees, which is what capitation fees means. Our attempt in evolving the following scheme precisely is to give effect to the said legislative policy. It would be highly desirable if this scheme is given a statutory shape by incorporating it in the rules that may be framed under these enactments. ( 9 ) ANTICIPATING that there may be an attempt to find justification from what is said by the Supreme Court in clause (ii) of the proposed scheme it has been submitted that the same has a reference to reservation which is permitted on the basis of payment seats. ( 9 ) ANTICIPATING that there may be an attempt to find justification from what is said by the Supreme Court in clause (ii) of the proposed scheme it has been submitted that the same has a reference to reservation which is permitted on the basis of payment seats. It is in this context the Supreme Court in the Clause : (ii) of the Scheme has said that 50% seats in every professional colleges shall be filled by the nominees of the government or university, as the case may be, referred to as the "free seats" on which the students should be selected on the basis of merit determined on the basis of a common entrance examination where it is held or in the absence of an entrance examination, by such criteria as may be determined by the competent Authority whereas the remaining 50% seats (payment seats) should be filled by those candidates who are prepared to pay the fees prescribed therefor and who have complied with the instructions regarding deposit and furnishing of cash security or the Bank Guarantee for the balance of the amount; and the allotment of students against payment seats should also be done on the basis of inter se merit determined on the same basis as in the case of free seats. ( 10 ) MR. RAMASWAMI then made a reference to an affidavit in reply filed by the government in Special Civil Application No. 5640 of 1992 pending before this Court, but then the question that would arise from such submission would obviously relate to promissory estoppel which is under consideration on other facts in this petition. Hence it would not be necessary to make a reference to such an affidavit at this stage as that would require an opportunity to be given to the Government to explain what has been stated in the Affidavit in Reply in Sp. Civil Application No. 5640 of 1992. ( 11 ) REFERRING then to the earlier decision of this Court it is submitted by mr. Ramaswami that the said decision was also carried before the Supreme Court by way of Special Leave Petition and the Supreme Court rejected it and the decision has become final and binding. Civil Application No. 5640 of 1992. ( 11 ) REFERRING then to the earlier decision of this Court it is submitted by mr. Ramaswami that the said decision was also carried before the Supreme Court by way of Special Leave Petition and the Supreme Court rejected it and the decision has become final and binding. Whereas the ratio in the case of Unnikrishnan (supra) does not apply to the present case, the Government by the impugned order/resolution relying on some observations in the scheme suggested by the Supreme Court, cannot be permitted to dislodge the decision of this Court. In support of this submission he first read before me the Law Commission report in respect of the amendments which were proposed to the code of Civil Procedure. It is 54th Report on the Code of Civil Procedure, 1908 and from the xerox copy which has been supplied to this Court following recommendation is pressed into service: 47. 7 It is felt that the position should be settled on this point If the law is altered by judicial pronouncement of a higher court, the party affected should not, in our opinion, have a right to get the judgment reviewed. The said recommendation is reflected in Order-47, Rule-1 in setting out the explanation to the said provision as under:"explanation- The fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior court in any other case, shall not be a ground for the review of such judgment" ( 12 ) MR. RAMASWAMI then made submissions on the assumption that the decision in unnikrishnan case (Supra) would directly adversely affect the decision of this Court referred to hereinabove. In my opinion it is not necessary to proceed with the assumption which Mr. Ramaswami wants to make, for as will be seen hereinafter the ratio in unnikrishnans case does not in any manner have any effect of dislodging the arrangement whereby 12 seats are reserved for the management of the petitioner trust in the manner noted above. It is important to note at this very point of time that both in the case of Unnikrishnan (Supra) as well as in the case of Miss. It is important to note at this very point of time that both in the case of Unnikrishnan (Supra) as well as in the case of Miss. Mohini Jain, even the supreme Court has made a note of caution that the principle enunciated in both those cases should not have any retrospective operation. ( 13 ) DEALING with the altered stand of the Government with regard to the basis of the impugned decision, namely, that the Government proposes to effect a change in the policy, reference has been made to the decision of the Constitution Bench in the case of mohinder Singh Gill and Another vs. The Chief Election Commissioner, reported in A. I. R. 1978 S. C. 851. It has been held thus there:"when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. "although there is a great deal of substance in the submission of Mr. Ramaswami by referring to the decision in Mohinder Singh (Supra), it would be interesting to note that even on the ground of policy the Government cannot be permitted to dislodge the promise which the Government held out for reservation of negligible proportion of seats in favour of the donor, and therefore the petitioner Trust, particularly when what the petitioner trust does is to allot one seat to physically handicapped girl, one seat to the children of the teaching staff of the college and other seats to those who miss admission by a small margin of percentage of marks and while doing so the petitioner trust is taking Bond from such students to work in Rural area for a period of 4 years. Such a scheme employed by the petitioner needs commendation and by no stretch of imagination can be said to be opposed to any norms of public policy. It is to be noted that no donations are being taken by the petitioner trust in filling up the reserved 12 seats. Such a scheme employed by the petitioner needs commendation and by no stretch of imagination can be said to be opposed to any norms of public policy. It is to be noted that no donations are being taken by the petitioner trust in filling up the reserved 12 seats. It is also to be noted that 12 seats are to be filled in accordance with the rules and me eligibility criteria and therefore the reservation in respect of all these 12 seats is subjected to the minimum merit criteria. ( 14 ) MR. RAMASWAMI then pointing at the doctrine of promissory estoppel placed reliance upon the following decisions: (i) Delhi Cloth and General Mills Ltd. vs. Union of India,, reported in (1988) 1 supreme Court cases 86; (ii) Mahabir Auto Stores and Ors. vs. Indian Oil Corporation and Ors. , AIR 1990 supreme Court 1031. In Delhi Cloth and General Mills Ltd. , (supra) it has been held that - "for the application of doctrine of promissory estoppel what is now required is that the party asserting the estoppel must have relied upon the assurance given to him or must have relied upon the representation made to him. The entire doctrine proceeds on the promise that reliance is placed on the assurance given and nothing more. Reference is made to dictum of Lord Denning in Central london Property Trust Ltd. vs. High Trees House Ltd. . . . . . . A promise intended to be binding intended to be acted upon, and in fact acted upon is binding. " the Supreme Court has concluded thus"20. The history of the High Trees principle is too well known to bear repetition. It will be enough to make the following points. The promisor is bound because he led the promise to commit himself to change the position. If the promisee has acted upon the promise, the promisor is precluded from receding (sic resiling from) his promise. No further detriment to the promisee upon his temporary interests need be established. This position has been made clear by Lord Denning himself in his article "recent Developments in the doctrine of Consideration: a man should keep his word. All the more so when the promise is not a bare promise but is made with the intention that the other party should act upon it. This position has been made clear by Lord Denning himself in his article "recent Developments in the doctrine of Consideration: a man should keep his word. All the more so when the promise is not a bare promise but is made with the intention that the other party should act upon it. Just as contract is different from ton and from estoppel, so also in the sphere now under discussion promises may give rise to a different equity from other conduct. The difference may lie in the necessity of showing "detriment" "where one party deliberately promises to waive, modify or discharge his strict legal rights, intending the other party to act on the faith or promise, and the other party actually does act on it, then it is contrary, not only to equity but also to good faith, to allow the promisor to go back on his promise. It should not be necessary for the other party to show that he acted on his detriment in reliance on the promise. It should be sufficient that he acted on it. " in Mahabir Auto Stores and others (Supra) reference is made to the observations appearing at page : 1039. The same may be reproduced here under from Para: 18 and 19. "18. Having considered the facts and circumstances of the case and the nature of the contentions and the dealings between the parties and in view of the present state of law, we are of the opinion that decision of the state/public authority under Article 298 of the Constitution, is an administrative decision and can be impeached on the ground that the decision is arbitrary or violative of Article 14 of the Constitution of India on any of the grounds available in public law field. It appears to us that in respect of Corporation like IOC when without informing the parties concerned, as in the instant case of the appellant firm herein on alleged change of policy and on that basis action to seek to bring to an end the course of transaction over 18 years involving large amounts of money is not fair action, especially in view of the monopolistic nature of the power of the respondent in this field. Therefore, it is necessary to reiterate that even in the field of public law, the relevant persons concerned or to be affected, should be taken into confidence. Therefore, it is necessary to reiterate that even in the field of public law, the relevant persons concerned or to be affected, should be taken into confidence. ""it is true that there is discrimination (distinction) between power and right but whether the State or the instrumentality of a State has the right to function in public field or private field is a matter which, in cur opinion, depends upon the facts and circumstances of the situation, but such exercise of power cannot be dealt with by the State or the instrumentality of the State without informing and taking into confidence, the party whose right and powers affected or sought to be affected, into confidence. In such situations, most often people feel aggrieved by exclusion of knowledge if not being taken into confidence. 19 Such transaction should continue as an administrative decision with the organ of the State. It may be contractual or statutory- but in a situation of transaction between the parties for nearly two ecates, such procedure should be followed which will be reasonable, fair and just, that is, the process which normally be accepted to be followed by an organ of the state and that process must be conscious and all those affected should be taken into confidence. "the last mentioned decision would also be applicable on the question of violation of principle of natural justice which in fact is an admitted position, that is to say, the petitioners in both these petitions have neither been given any notice nor even heard before the impugned order has been passed. More so because of the principle that they have to be taken into confidence, before getting, relieved of the premise. ( 15 ) IT is submitted on behalf of the respondents that what the Government wants to follow from Unnikrishnans case (Supra) as also by way of the policy is the rule of merit and merit alone. Reference is made to what has been said by the Supreme Court in paras 195 and 205 of Unnikrishnans case (supra ). It is the submission that what has been said in those paras although could apply to private colleges can be adopted by the Government colleges also. It has been submitted that the principles which have been applied to private colleges should apply with greater rigorous to the State and colleges. It is the submission that what has been said in those paras although could apply to private colleges can be adopted by the Government colleges also. It has been submitted that the principles which have been applied to private colleges should apply with greater rigorous to the State and colleges. The observation made in Para :210 (clause : 2) as stated above, have been pressed into service. Reliance is also placed on Clause : 6 (a) appearing at Page : 759 of the citation which reads as under:" (6) (A) Every State Government shall forthwith constitute a Committee to fix the ceiling on the fees chargeable by a professional college or class of professional colleges, as. the case may be. The Committee shall consist of a Vice-Chancellor, Secretary for Education (or such Joint Secretary; as he may nominate) and Director, Medical Education/director Technical education. The Committee shall make such enquiry as it thinks appropriate. It shall, however, give opportunity to the professional colleges (or their association (s), if any) to place such material, as they think fit. It shall, however, not be bound to give any personal hearing to anyone or follow any technical rules of law. The Committee shall fix the fee once every three years or at such longer intervals, as it may think appropriate. "it is in reply in this submission that Mr. Shelat, Ld. Advocate for the petitioner in other petition has drawn my attention to the Government policy in answer to what has been said by the Honourable Supreme Court in Unnikrisknans case (supra) by making a reference to the Government Resolution dated 8. 7. 1993 produced at Annexure :c in Civil application No. 1579 of 1993 which has been granted today. The relevant portion of the resolution indicates that "the State has, in principle and practice, never encouraged the commercialisation of technical Education in the State, wherein those who could afford to pay large amounts as donation could steal a march over other more meritorious students. " thus the State is conscious of the fact that the seats which have been reserved in favour of the two petitioner trusts respectively in the medical college and the Pharmacy College with which the respective seats are reserved are outside the purview of donation seats. Even the State understands that there is no commercialisation nor is the reservation running in the field of donation seats. Mr. Even the State understands that there is no commercialisation nor is the reservation running in the field of donation seats. Mr. Shelats submission is correct in respect of what the Slate has understood from Unnikrishnans case, by aforesaid resolution dated 8. 7. 1993. According to his submission, the decision of the respondent to deprive the petitioners right to nominate the students in the respective college is arbitrary, irrational and in breach of the promise and in violation of the principles of natural justice. In the case of Unnikrishnan (Supra) the Supreme Court has framed the scheme in the nature of guidelines. The facts in that case are not only different, but run all together in a different compass. The State of Kamataka has enacted "karnataka Educational Institution (Prohibition of Capitation Fees)Act, constitutional validity of some of the provisions of which came to be challenged by one Miss. Mohini Jain in the case between her and State of Karnataka and others, reported in (1992) 3 Supreme Court Cases 666 wherein it has been held - "every citizen has a fundamental right to education and State is under obligation to provide education for its citizen. " it is further held that - capitation fee is nothing but a consideration for admission and the concept of teaching shops is alien to the constitutional scheme. It was in that context that it was held that the State action in permitting capitation fee to be charged by the State recognized educational institutions is wholly arbitrary and as such violative of Art. 14 of the Constitution of India. Now with regard to an identical statute being Andhra Pradesh educational Institutions (Regulation of Admission and Prohibition of Capitation Fees) act, 1983 and Maharashtra Educational Institutions (Prohibition of Capitation Fee) Act, 1987 as also by virtue of the decision in Mohini Jains case various petitions came up before the Honourable Supreme Court, and one of the prayers was to reconsider the decision in Mohini Jains case (Supra ). In the majority judgment, the Court held that the citizens of this country have a fundamental right to education, but the said right is not an absolute right, that is to say, every child/citizen of this country has a right to free education until he completes the age of fourteen years. Thereafter the right to education is subject to the limits of economic capacity and development of the State. Thereafter the right to education is subject to the limits of economic capacity and development of the State. It has been observed that the ground reality is that the Central Govt. does not have the resources to undertake any additional financial responsibility for medical or technical education and it is unable to aid any private educational institution financially at a level higher than at present. Therefore the policy of the Central Government is to involve private and voluntary efforts in the education sector with accepted norms and goals. However, the private educational institutions cannot be compelled to charge only that fee as is charged in government institutions. The Court observed that the hard reality that emerges is that the private educational institutions are a necessity in the present day context. While education is one of the most important functions of the Indian State, it has no monopoly therein. Private educational institutions, including minority educational institutions, have a role to play. The Court then proceeded to" determine as to what should be the standard to be applied in permitting private educational institutions to operate especially in the context of the question whether they can charge capitation fee or they can charge higher fees. This aspect came to be examined by the Honourable Supreme Court and as stated above the scheme for the guidance of the Government was devised. As stated above the court prefaced its scheme by observing that the scheme evolved by the judgment was in the nature of guidelines. It also appears to have been devised as to operate in future, because it is stated that only those institutions which seek permission to establish and/or recognition and/or affiliation from the appropriate authority shall alone be bound by the scheme. It is observed that the scheme is not applicable to the colleges run by the government or to University Colleges. As stated above it clearly appears that the scheme would apply respectively. One obvious and stark reality recognized by the Supreme Court is that the State had long since felt as a compelling necessity because of its financial constraints that it was unable to set up requisite number of professional colleges so that the students seeking admission to the same can be granted the same. The gap between available seats and demand for the same was over widening day by day. The gap between available seats and demand for the same was over widening day by day. Added to this is the reservation for Scheduled Caste/scheduled Tribe and O. B. C. Those denied admission though deserving for want of seats were frustrated and the repercussions were felt in the society. The available seats were far below the demand for the same. The harsh law of demand and supply was operating like the free market economy in all its rigour. To this was added the reservations as provided in Article 15 of the Constitution. The net result was that the availability of non- reserved seats was getting less and less in number and with the proliferation of educational activity the demand for admission to professional colleges multiplied and soared high. It was then felt that the State may not be able to provide the requisite number of professional colleges to meet the demand for admission. It was felt that the private sector has to be involved into education sector. In the Indian context, the charitable instinct to set up educational institution was well recognised. In fact, in early days of the British rule, schools and colleges were set up by the Government. The policy decision was taken to privatise the same after models were established and in secondary education entirely private institutions were set up. Today there are hardly Government colleges or High Schools. In the State of Gujarat, there are only about 3 Government colleges and they are relies of the past, viz. Gujarat College, Ahmedabad, mahudhan College, Junagadh and a third one Government High School. They have a place only now in the history books. Arts, Science, Commerce and Law Colleges were entirely in the private sector. They were set up by the public Charitable Trust or a society under the Societies Registration Act. The question arose with regard to setting up of professional colleges in the field of medicine and Engineering which were costly ventures. Even then the first Engineering college in Gujarat was in the private sector viz. L. D. Engineering College, Ahmedabad. The Medical College at Surat, Vadodara and Ahmedabad were set up by the Government, jamnagar college came into existence because of the aforesaid donation of a public charitable trust Recently, a medical college at Karamsad is also set up by a Trust. However, the institutions requiring some help and therefore they become public aided institutions. L. D. Engineering College, Ahmedabad. The Medical College at Surat, Vadodara and Ahmedabad were set up by the Government, jamnagar college came into existence because of the aforesaid donation of a public charitable trust Recently, a medical college at Karamsad is also set up by a Trust. However, the institutions requiring some help and therefore they become public aided institutions. As the State was unable to set up requisite number of professional colleges, private charitable trusts and societies registered under the Societies Registration Act came into existence to fill in the void by setting up professional colleges. Huge amount is needed for initial capital expenditure for commencement of such colleges. The State does not provide any amount for capital expenditure for setting up such colleges. Now if the donors come forward to donate huge funds, there is necessarily a quid pro quo in the form of some seats being reserved for the donors as in inducement to give donation. Even if inconvenient, it is a notorious fact that charity seeks recognition. Under such circumstances the State being aware of its own limitations accepted this position, namely that the reasonable number of seats depending upon the sanctioned strength may be reserved for donors. This was treated legally valid and binding and acceptable to the State till it is binding all time. The State is a party to it. The arrangement is tripartite in the sense that there is donor, there is institute which is coming into existence and there is State. Even realising the time factor in implementing the proposed scheme the Supreme Court directed that - All existing professional colleges which do not conform to the above norm shall be directed to take appropriate steps to comply with the same within a period of six months from the pronouncement by the Supreme Court. Now if the decision in the case of Unnikrishnan (supra) was to be implemented even in the Government Colleges or the aforesaid colleges the State Government was required to give at least six months time to enable the Trust to take steps to comply with the direction given by the Honourable Supreme Court Mr. Shclat has hastened to say that such a submission would be without prejudice to the main contention that under the circumstances noted above the State Government would not have right to deprive the management of its right to nominate students for admission. Shclat has hastened to say that such a submission would be without prejudice to the main contention that under the circumstances noted above the State Government would not have right to deprive the management of its right to nominate students for admission. ( 16 ) THE submissions of Mr. Shelat noted above merit acceptance particularly bearing in mind the fact that the seats reserved for the respective Trusts are bearing a negligible ratio in proportion to the seats which are left to the open competition. It has also to be borne in mind hat such reserved seats are subject to the Rules and eligibility criteria, and it cannot be said that merits are given all together a go-bye. It should also be noted that higher education or no higher education in particular area was the question at the relevant point of time when the donations were readily accepted and well come by devising a particular scheme as stated above for reserving the seats for the donors. The fact that a very large number of seats since the inception have gone to the promotion of the higher education in medical faculty and for that matter even pharmacy faculty would necessarily subsidy to the test of reasonableness even if applied afresh in respect of the seats reserved as aforesaid in favour of the petitioner Trusts. The education of thousands of students since the inception i. e. since 1954 in the Medical College at jamnagar and thousands of students in the Pharmacy College at Cambay since 1969 in the open merit scheme provides a clue to the promise which was held by the Government in favour of the petitioner Trusts. If that promise is allowed to be broken in the manner in which it is sought to be done, in my opinion it would strike at the very enhancement of higher education in the State of Gujarat in as much as there would be disinclination for the donors to come forward to render their assistance in the field of higher education. The blow would be to the benevolence at large. There the interested all the students as a class would be adversely affected. Mr. Shelat, Ld. Advocate also placed reliance upon the decision in the case of d. N. Chanchala etc vs. The State of Mysore and Ors. , reported in AIR 1971 Supreme Court 1762. The blow would be to the benevolence at large. There the interested all the students as a class would be adversely affected. Mr. Shelat, Ld. Advocate also placed reliance upon the decision in the case of d. N. Chanchala etc vs. The State of Mysore and Ors. , reported in AIR 1971 Supreme Court 1762. The reliance is sought on this decision for showing difference between the sources from which admissions would be made and the classification based on such sources. In fact this decision came to be relied upon by this Court in 1974 decision referred to hereinabove. ( 17 ) LASTLY reference should also be made to the decision of the Full Bench of the himachal Pradesh High Court in the case of The Nalagarh Dehati Co-Operative transport Society Ltd. , Nalagarh vs. Beli Ram, etc. , reported in AIR 1981 Himachal pradesh Page - 1. Mr. Ramaswami submitted this decision for consideration in the context of Order-47, Rule-1, explanation quoted hereinabove. It has been held by the Himachal pradesh High Court in that case as under: "in view of the explanation added by amendment of 1976, a subsequent decision of the Supreme Court or a larger Bench of the same Court taking a contrary view on the point covered by the Judgment does not amount to a mistake or error apparent on the face of the record. " this is on the question with regard to a decision of this Court referred to hereinabove and in my opinion the same still holds good. ( 18 ) BASED on the decision in the case of Missmohini Jain (Supra) and Unnikrishnan (Supra) are the submissions of Mr. Raval, the learned Additional Advocate General and mr. Amit Panchal, learned A. G. P. Precisely stated, it would be merit and merit alone in the Held of higher education that should be a guiding feature. The earlier decision of this court did not witness a lis between the Government and the Trust and therefore there is no question of res judicata. Referring to para 12: of Vasantkumar Radhaldshan Vora vs. Board of Trustees of the Port of Bombay, reported in AIR 1991 S. C. 14, it has been submitted that the doctrine of promissory estoppel would not operate. All these aspects have been dealt with while dealing with the decisions which have been relied upon in support of the submission. Referring to para 12: of Vasantkumar Radhaldshan Vora vs. Board of Trustees of the Port of Bombay, reported in AIR 1991 S. C. 14, it has been submitted that the doctrine of promissory estoppel would not operate. All these aspects have been dealt with while dealing with the decisions which have been relied upon in support of the submission. To reiterate, the decision in the case of Missmohini Jain (Supra) has been considered and explained in the case of Unnikrishnan (Supra ). The question of promissory estoppel was dealt with by this court in 1974 as stated above and that is a final decision in so far as the facts of the present case are concerned. The solemnity of the promise and benevolance aspect have been noted in the foregoing discussion and the same highlight the glaring feature in the field of negligible ratio of reserved seats for the petitioner Trusts. The above reserved seats are not counter productive of merits as discussed above. Hence, the submissions of Mr. Raval, Ld. Addl. Advocate General and Mr. Amit Panchal, Ld. A. G. P. cannot be accepted. ( 19 ) IN the result both these petitions deserve to be allowed. The impugned action of the Government and the impugned decision of the Government including Resolution annexure : I to affidavit in reply in Sp. Civil Application No. 6532 of 1993, in dislodging the 12 seats so far as the petitioner in Sp. Civil Application No. 6532 of 1993 is concerned and 2 seats in so far as the petitioner in Special Civil Application No. 7392 of 1993 is concerned respectively, concerning the medical faculty and the Pharmacy faculty are hereby quashed and set aside. Rule made absolute with no order as to costs in both the petitions. ( 20 ) IT may be noted that earlier, 12 seats earmarked for the petitioner Trust are not to be filled in and no admission was to be given and this was so upto yesterday i. e. 5. 8. 1993 when following order was required to be passed as it appeared that admissions were being finalised yesterday itself i. e. 5. 8. 1993. Thus the order which was passed on 5. 8. 1993 which suceeded the earlier arrangement has been in operation. "today the matter is being heard and already part heard. 8. 1993 when following order was required to be passed as it appeared that admissions were being finalised yesterday itself i. e. 5. 8. 1993. Thus the order which was passed on 5. 8. 1993 which suceeded the earlier arrangement has been in operation. "today the matter is being heard and already part heard. The officer who is directly concerned with the giving of admissions is also present today. By order dated 30. 7. 1993 the statement with regard to list of admissions to the medical faculty to be not finalised on or before 5. 8. 1993 i. e. till today was recorded and in that view of the matter, the question of interim relief was not considered on 30. 7. 1993. Under such circumstances, it is clear that at least till upto today the list of admissions to the medical faculty was not to be finalised. I am informed by the officer who is present in the court that the process has been completed. He is, therefore, required to forthwith intimate the last 14 students who might have been given admissions today itself that their admissions are kept in abeyance till the decisions of this petition, hearing of which is in progress. "now therefore by virtue of the legal position as stated above as also bearing in mind the aforesaid order and the earlier arrangement it is hereby directed that in so far as medical faculty is concerned admissions to 12 seats and two seats in Pharmacy shall not be finalised till 24. 8. 1993 and in the mean time it will be open to the petitioner Trust at least to attend to the work of communicating list of recommendations. Passing of further order shall be taken into consideration on 24. 8. 1993. It is also made clear that admissions in these 12 seats shall not be restricted by the requirement regarding last date of admission. It appears that some students who are likely to be affected by the admissions being granted to the aforesaid 12 seats are likely to be before this Court. However, since the matter is disposed of by this Judgment, in so far as they are concerned the opportunity to them would obviously be available for giving option for other faculties. At this stage Mr. Amit Panchal, Ld. However, since the matter is disposed of by this Judgment, in so far as they are concerned the opportunity to them would obviously be available for giving option for other faculties. At this stage Mr. Amit Panchal, Ld. A. G. P. for the respondents seeks leave to place on record certain statement of facts signed by Dr. A. R. N. Shetalvad who was the officer concerned in the admission in the medical faculty. The same reads as under:"pursuant to the direction of the Hon. Court issued on 05 August, 1993, the candidates who would not have been admitted were the "trust Seats" not to be filled in have been identified and they as well as those who would be affected by the movement of those candidates have been informed telegraphically to reappear for personal interview on Monday 09 August, 1993 where the orders for keeping their admissions at the respective medical colleges in abeyance will be issued to them and they will be offered fresh placement as per their merit order. The respective colleges have also been informed not to complete subsequent admission formalities in respect of these students. As ultimately 12 students will go out of the medical list, arrangements have also been made with the central admission committee of the engineering tool to offer these candidates admissions in that branch and at that place which would have been open and available at their merit order. All the 12 resultant vacancies will be kept vacant till any other orders are passed by the Hon. Court. On behalf of the Central Admission Committee, I want to assure the Hon. Court that it was never the intention of the committee to disregard the orders of the hon. Court or not to co-operate with the petitioner or not to assist the hon. Court. In fact had I been given an inkling of the statement made by the counsel, no "trust Seat" would have been filled in the first instance. We wish to obey all the directions of the Hon. Court and assist the Hon. Court to the maximum extent. "he also prays for stay of the operation of this decision for a period of 10 days. We wish to obey all the directions of the Hon. Court and assist the Hon. Court to the maximum extent. "he also prays for stay of the operation of this decision for a period of 10 days. In view of what is stated above, if such a stay is granted it would tantamount to rendering the petitions infructuous as the admissions are under process of being granted in both the faculties and therefore the request for staying this decision cannot be granted. .