Gujrat Vs. M.P. Shah Charitable Trust
 INSC 200 (29
Reddy, B.P. (J) Jeevan Reddy, B.P. (J) Sahai, R.M. (J)
1994 SCC (3) 552 JT 1994 (3) 96 1994 SCALE (2)374
Judgment of the Court was delivered by B.P. JEEVAN REDDY, J.- Leave granted.
2.Meghji Pethraj Shah Medical College was established by the then Government of Saurashtra at Jamnagar in the year 1955. For establishing
the college, Shri M.P. Shah "donated" a sum of Rupees fifteen lakhs
subject to certain conditions. The government hospital then known as Irwin Hospital was attached to the said college to meet the requirement of
a hospital with necessary bed-strength. In the year 1993, the Government of
Gujarat repudiated one of the conditions attached to the donation, which led
the M.P. Shah Charitable Trust to approach the Gujarat High Court for issuance
of a writ commanding the State of Gujarat to continue to abide by the said condition. The writ petition was
allowed by a learned Single Judge and a Letters Patent Appeal preferred by the
State of Gujarat has been dismissed by a Division Bench the correctness whereof
is under challenge herein.
regard to the questions arising herein, it is necessary to notice the facts
concerning the establishment of the college. On October 8, 1954, Shri M.P. Shah wrote a letter to the then Chief Minister
of Saurashtra confirming the arrangement arrived at by him with Shri Manubhai
Shah, who was evidently acting on behalf of the Chief Minister.
necessary to quote the letter in full :
Shri Dhebarbhai, Today morning, I returned from Jamnagar and in good health. Hope, you will also be enjoying good
health. On Monday the 4th October, I had satisfactory discussions with Shri Manubhai
Shah at the residence of Shri Premchandbhai in Jamnagar for Medical College and hospital. He has shown good interest in the matter and
let us pray that, by the grace of God this mission may be successful.
decisions have been taken in the discussion with him.
Existing Irwin Hospital will be properly extended and the number of beds and
other amenities will be provided as per the requirement of the medical college.
Hospital shall be named after Mahatma Gandhi or any other great Indian leader
instead of present name.
medical college attached with this hospital shall be known as Shri Meghji Pethraj Shah Medical College. The building for the hostel for
the students of this college also shall be constructed.
constitution of the colleges shall also provide that I or my successor or my
nominees 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,. I have explained to Shri Manubhai about the
necessity of provision and has accepted the same.
added) 558 (4)The steps shall be taken to start the college from next June and
till the new building for the college is ready, the college shall be conducted
in the new building constructed for Jamnagar Court.
having confirmation to the above effect from the Government, we shall complete
the necessary procedure for donation and send our confirmation for the same for
for Meghji Pethraj Shah." On November 22/23, 1954, the Chief Minister
wrote to Shri M.P. Shah confirming the arrangement. The letter reads:
Shri Meghjibhai, I was glad to receive your letter dated 28th October. All the
steps are being taken to start medical college from June 1955.
will be made to start the college in the new building of the Court till the new
building for the college is constructed.
college will be known as the name suggested by you and the arrangements have
been made for the same. Constitution of the college shall provide 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.
added) As regards hospital, it is being considered to name as Smt Kasturba Gandhi Hospital. Final decision shall be taken in few days.
think that on this basis, till all the points are confirmed and the procedure
is completed, stone foundation ceremony of the new building shall be done by
the Hon'ble President or other great leader. I am arranging for the same and
shall inform the date, when finalised.
this will find you in good health.
well-wisher, sd/- U.N. Dhebar."
medical college was accordingly established and started functioning from June
1955 with a strength of 60 students. As per the arrangement contained in the
aforesaid letters, Shri M.P. Shah was permitted to nominate students for
admission to the extent of 10% of the total strength obtaining at a given time.
This arrangement continued even after the formation of the State of Gujarat. In course of time, the college and
the hospital grew in strength and size. As against 60 seats in 1955, the annual
intake of the college rose to 175 three times the original number. In the year
1964, the Government of Gujarat took a decision that it would not be possible
for it to reserve more than twelve seats for the nominees of the donor. Though
a copy of the said proceedings is not placed before us, it is 559 found
referred to in the letter dated April 19, 1965 written by the Under Secretary
to the Government of Gujarat to the trustee of Meghji Pethraj Charitable Trust.
(It is stated that meanwhile the original donor, M.P. Shah had designated the
respondent-trust as his nominee.) The letter reads:
am directed to refer to your letter dated March 4, 1965 on the subject noted
above and to state that for the reasons given in Government letter No.
MOG-1062/4257/Q dated August
11, 1964, it will be
not possible for Government to reserve more than 12 seats for the nominees of
the donor at M.P. Shah Medical College, Jamnagar."
respondent-trust acquiesced in this decision. It is not brought to our notice
that the trust lodged any protest to the said reduction much less take any
legal proceedings to compel the Government to abide by the arrangement. From
the year 1964-65, therefore, only 12 students were being nominated by the
February 1993 this Court delivered the judgment in J.P. Unnikrishnan v. State
of A.P. The decision pertains to private
professional colleges. With a view to eliminate the evil of capitation fee and
the other undesirable practices prevalent in private medical colleges, this
Court framed a scheme which the affiliating university and the Government
concerned were under an obligation to impose as terms and conditions of
affiliation/recognition. The scheme inter alia directed that no seats shall be
reserved for any community, group or family which may have established the
college. The idea evidently was that while donations are welcome, investments
are not for the reason, expressly affirmed in the judgment, that imparting of
education is not and cannot be allowed to become a business. This feature of
the scheme naturally set the Government of Gujarat a- thinking whether in the
light of the above pronouncement, it is permissible to reserve seats for the
"donor" in the said government college when such a course is not
permissible even in a private medical college. Accordingly, it resolved vide
the Government of Gujarat resolution dated July 12, 1993 "to discontinue the twelve
donor seats in M.P.
Shah Medical College, Jamnagar". The resolution, a copy of
which was communicated to the respondent-trust and the college reads as
Rules for Admission to first MBBSIBDS/Physiotherapy in Medical Colleges in Gujarat State 1993-94.
of Gujarat, Health and Family Welfare
Department,, Resolution No. MCG-1093-2323-J, Sachivalaya, Gandhinagar, Dated July 12, 1993.
(1993) 1 SCC 645 560 Read
Resolution Welfare Health and Family No. Department dt. 20-5-1993.
Govt. Resolution Welfare Health and Family No. Department dt. 26-6-1993.
Govt. Resolution Welfare Health and Family No. Department dt. 3-7-1993 MCG-1093-1373-J Resolution :
has in keeping with the judgment of the Supreme Court in Writ Petition No. 607
of 1992 between Unnikrishnan J.P. v. State of A.P.1 decided to discontinue the 12 donor seats in M.P. Shah Medical College, Jamnagar and 10 donor seats in Pramuch Swami Medical College, Karamsad. The decision of the Government has been
communicated to the trustees concerned vide this department letter of even No.
dated June 22, 1993 requesting them not to admit any
student against the donor seats.
in modification of rules for admission to first MBBS/BDS/Physiotherapy course
at Government Medical College and P.S.
Medical College, Karamsad/Government Dental College/School of Physiotherapy
in Gujarat State for the year 199394 approved vide Government Resolution No.
MCG-1093-1373-J dated 20-5-1993, Government is pleased (i) to delete the words
'and 3' appearing in 7th line of Rule 1 and (ii) to delete the words 'Provided
that ... total available seats' appearing in 6th and 7th lines of the Rule 2
and (iii) to delete Rules 3.1, 3.2, 3.3, 3.4, and note there under.
order and in the name of the Government of Gujarat.
Section Officer, Health and Family Welfare Department."
Accordingly the rules for admission to MBBS course in government medical
college, for the year 1993-94, published by the Government of Gujarat contained
no provision for nomination of students by the respondent trust for the said
academic year. It is then that the respondent-trust approached the Gujarat High
Court challenging the aforesaid Government resolution.
Before we refer to the contentions of the parties, it is necessary to notice an
earlier judgment of the Gujarat High Court dated September 20, 1974 in Special
Civil Application No. 1232 of 1974 (Miss Asha J. Nanavati v. State of Gujarat).
The writ petition was filed by a student seeking admission to the said college.
Her case was that but for the said provision for nomination, she would have
obtained a seat in the college. She questioned the validity of the rules for
admission issued by the Government of Gujarat 2 Civil Application No. 1232 of
1974, decided on 20-9-1974 (Guj) 561 insofar as they provided
for nomination of 12 students by the respondent trust. She submitted that when
the college was started in the year 1955, its strength was 60 and according to
the original arrangement only 6 seats were available for nomination by the
trust; that the strength of the college has been increased from time to time by
the Government by investing its own funds with the result that by the year
1974, the strength of the college had risen to 175; in such a situation, the
provision permitting the donor to nominate as many as 12 students was
arbitrary, unreasonable and violative of Article 14 of the Constitution of
India. She submitted that there was no formal contract or agreement between the
Government of Saurashtra and the donor and that the arrangement, if any,
between the then Government of Saurashtra and Shri M.P. Shah was not binding
upon the Government of Gujarat. She characterised the said arrangement as
contrary to public policy and prejudicial to public interest. Both the trust
and the Government of Gujarat, who were impleaded as respondents, opposed the
writ petition and justified the arrangement. The High Court dismissed the writ
petition holding that the said arrangement was not violative of Article 14 of
the Constitution. The court observed that in 1954-55, there was no medical
college in Saurashtra and that a college could be established only with the
help of the said donation from Shri M.P. Shah. The provision for nomination by
the said donor in consideration of the said donation, the court held, is
reasonable. No appeal was preferred by anyone against the said decision.
Altaf Ahmed, Additional Solicitor General appearing for the appellant (State of
Gujarat) assailed the judgment of the
Gujarat High Court on the following grounds:
The Government was justified in discontinuing the provision reserving 12 seats
for being nominated by the respondent-trust inasmuch as the reservation of the
kind is opposed to Articles 14 and 15 of the Constitution.
to the judgment in Unnikrishnan' no seats can be reserved for the family, group
or community which may have established a private professional college; it is
inconceivable that such a reservation can be provided in a government college.
Even if it is assumed for the sake of argument that such a provision was valid
when it was made in 1954, it is not valid or reasonable after lapse of about
There was no contract between M.P. Shah and the Government of Saurashtra as
provided by Article 299 of the Constitution. The arrangement between the
Government of Saurashtra and Shri M.P. Shah is not legally enforceable in a
court of law.
The High Court has not correctly understood the ratio of the judgment in
Unnikrishnan1. The judgment made it clear that any such reservation even in a
private college is impermissible. The Government of Gujarat was bound by the
said judgment. It, therefore, acted to put an end to the said provision for
reservation in a government college.
(5) The High Court was in error in holding that the judgment of the Gujarat
High Court in Nanavati v. State of Gujarat2 operated as res judicata between
the Government and the respondent-trust. Since the Government and the Trust
were co-respondents and there was no conflict of interest between them in that
writ petition, the decision rendered cannot operate as res judicata between
Having regard to the nature of function, it was not necessary for the
Government to observe the principles of natural justice while terminating the
G. Ramaswamy, learned counsel appearing for the respondent trust urged the
following reasons in support of the judgment of the High Court:
There is a binding contract between the Government and the trust entered into
in 1954. In any event, the finding of the Gujarat High Court in Nanavati case2
that there was a binding contract between the parties operates res judicata.
The contract entered into between the parties is not violative of Article 14.
It is also not open to the State to raise the question of violation of Article
14 since this question was concluded by the judgment of the High Court in
Nanavati2 as far back as in 1974.
The judgment in Unnikrishnan' is applicable only to private colleges. It did
not pertain to or deal with the government colleges. The said judgment was,
therefore, not relevant and did not warrant the impugned termination of
arrangement by the Government of Gujarat. Once that judgment is held to be
irrelevant in the case of government colleges, the only ground of termination
gets knocked off.
the facts and the circumstances of the case, the contract between the parties
could not have been terminated unilaterally without observing the principles of
the Government is of the opinion that the contract entered into in 1954 was
void and unconstitutional, even then it cannot unilaterally terminate the
contract without refunding the amount donated by Shri M.P. Shah. The amount of
Rupees fifteen lakhs in 1954 is equivalent to Rupees seven and a half crores
The Government's order pertains to M.P. Shah Medical College as well as pharmacy college. By a common judgment, the
learned Single Judge of the Gujarat High Court struck down the government
resolution with respect to both colleges. The Government, however, chose to
file appeal only in the case of M.P. Shah Medical College but not with respect to the pharmacy college. This is not
only discriminatory and arbitrary but must also induce this Court not to
interfere in this appeal since upsetting the judgment of the Gujarat High Court
would result in two inconsistent orders.
Before we deal with the contentions urged by the learned counsel before us, it
would be appropriate to notice a few facts.
M.P. Shah Medical College was established by the Government of Saurashtra. At
all times, it has been maintained and run by the Government of Saurashtra/Gujarat
from out of their own funds. Every medical college must necessarily have a
hospital attached to it with requisite bed-strength and facilities; there
cannot be a medical college without such an attached hospital. For this reason,
as existing government hospital was renamed as "Kasturba Gandhi
Hospital" and attached to the college. Apart from the sum of Rupees
fifteen lakhs "donated" in the year 1954, no further sum has been
donated nor any other expenditure incurred by Shri M.P. Shah or the
respondent-trust over the last forty years. There is also no evidence to show
that the college was established exclusively with the amount
"donated" by Shri M.P. Shah and that no funds or property of the
Government was utilised for the purpose. The material placed before us does not
also show that the Government of Saurashtra was in no position to spare a sum
of Rupees fifteen lakhs in 1954 for establishing the college or that for that
reason it approached or requested Shri M.P. Shah to donate the said amount. It
is not clear from whom did the proposal emanate. The judgment of Gujarat High
Court in Nanavati2 refers to and accepts the statement of a trustee of the
respondent-trust that "the State of Saurashtra was a newly formed State at
that time and was a very small State and the State had many other public duties
like development of other educational institutions of higher education in what
was known as educationally backward region of the country", and the
further averment that "this object (setting up a medical college) could be
achieved only if a sizeable donation like Rupees fifteen lakhs (considering the
value of rupee in those days) was received by the Government of Saurashtra,
when the Government itself was unable without some initial donation to embark
upon setting up a medical college from its own funds". The aforesaid
observations in the judgment themselves show that while the laid
"donation" was essential for starting the college, it did not meet
the entire expense. Nor do we know what was the entire expense.
significant words are "the Government by itself was unable without some
initial donation to embark upon setting up a medical college from its own
funds". Not that we are suggesting that had the college been set up exclusively
out of he said "donation", it would make any difference. We are only
setting out the precise factual position.
The arrangement between the Government of Saurashtra and Shri M.P. Shah does
not prescribe the manner or method according to which the original donor or the
trust should select the students to be nominated against the quota reserved for
them. It was and is open to the donor/trust to nominate such candidates as they
chose. The Government had no right to question the combinations made. While the
trust says that they have been nominating students on a fair basis with a view
to help genuine students and physically handicapped students, the Government
says that the nomination did not follow any particular method or criteria and
that the nominated students same from all over the country. The fact remains
that the power of 564 nomination was unregulated and absolute and lay within
the sole discretion of the "donor" and his nominee.
Secondly, and more significantly, it is misleading to call the amount of Rupees
fifteen lakhs paid by Shri M.P. Shah to the Government in the year 1954 as a
said amount was not given by Shri M.P. Shah without any strings attached, but
subject to certain conditions, one of which was of an enduring benefit to him.
Not only the college (to be established and maintained by the Government) was
to be named after Shri M.P. Shah, he bargained for and obtained a quota of 10
per cent seats to which he could nominate anyone. At the time the college was
established the strength of the college was 60. It has expanded enormously and
its present strength is practically three times its original strength. As
against 60 seats in 1955, the number of seats today is 175. Shri M.P. Shah or
the respondent trust have not been spending a single pie on the education of
students nominated by them over the last about forty years. For the first
twenty years. they enjoyed the right of nominating one-tenth of the students
and for the last about twenty years, 12 students. The cost of medical education
has been steadily rising over the years. In 1974, as it appears from the
judgment in Nanavati2 the cost of educating one student was Rupees one lakh.
Today it is anywhere in the region of five to seven lakhs. We can take judicial
notice of the fact that over the last several decades, a seat in MBBS course is
a highly prized achievement. The private medical colleges have been charging
several lakhs of rupees for granting admission in their colleges. We are not
suggesting that the respondent- trust was collecting money for nominating
students. It may not have been necessary for it but the very power of
nomination in respect of 12 medical seats every year did mean an exceptional
power and clout and patronage which even the Government, which has established
and has been maintaining and running the college at a huge expense, did not and
does not possess. Indisputably admission to government medical colleges is
being done exclusively on the basis of the merit and even the Government does
not possess the power to nominate a student for admission in its discretion.
Only the respondent-trust possessed such a power and all because forty years
back a sum of Rupee fifteen lakhs was "donated" by its
true that the sum of Rupees fifteen lakhs in 1954 was a substantial amount, as
has been repeatedly emphasised by Shri Ramaswamy. But it is equally evident
that the said payment has yielded substantial benefit over the last forty
Having noticed the relevant factual aspects, we may now turn to the position in
law. Shri G. Ramaswamy, learned counsel for the respondent trust is not right
in saying that the decision in Unnikrishnan1 was not relevant to the decision
of the Government of Gujarat to terminate the aforesaid arrangement. In our
opinion, it was perfectly relevant and the Government of Gujarat was right in
terminating the arrangement following the said decision. It has been held in
Unnikrishnan1 that while a person may have a right to establish an educational
institution, it can certainly not be treated or operated as a trade or
following extract from the 565 judgment brings out the essence of the holding
on this aspect: (SCC pp. 75 1 52, paras 197-198) "While we do not wish to
express any opinion on the question whether the right to establish an
educational institution can be said to be carrying on any 'occupation' within
the meaning of Article 19(1)(g), perhaps, it is we are certainly of the opinion
that such activity can neither be a trade or business nor can it be a
profession within the meaning of Article 19(1)(g). Trade or business normally
connotes an activity carried on with a profit motive. Education has never been
commerce in this country. Making it one is opposed to the ethos, tradition and
sensibilities of this nation. The argument to the contrary has an unholy ring
of education has never been treated as a trade or business in this country
since time immemorial. It has been treated as a religious duty. It has been
treated as a charitable activity. But never as trade or business. We agree with
,education in its true aspect is more a mission and a vocation rather than a
profession or trade or business, however wide may be the denotation of the two
latter words... .' (See University of Delhi3.) The Parliament too has manifested its intention
repeatedly (by enacting the U.G.C. Act, I.M.C.
and A.I.C.T.E. Act) that commercialisation of education is not permissible and
that no person shall be allowed to steal a march over a more meritorious
candidate because of his economic power. The very same intention is expressed
by the Legislatures of Andhra Pradesh, Karnataka, Maharashtra and Tamil Nadu in the Preamble to
their respective enactments prohibiting charging of capitation fee.
are, therefore, of the opinion, adopting the line of reasoning in State of
Bombay v. R.M.D. Chamarbaugwala4 that imparting education cannot be treated as
a trade or business. 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 content of the expression 'occupation' has
to be ascertained keeping in mind the fact that clause (g) employs all the four
expressions, viz. profession, occupation, trade and business. Their fields may
overlap, but each of them does certainly have a content of its own, distinct
from the others. Be that as it may, one thing is clear imparting of education
is not and cannot be allowed to become commerce. A law, existing or future,
ensuring against it would be a valid measure within the meaning of clause (6)
cannot, therefore, agree with the contrary proposition enunciated in Sakharkherda
Education Society v. State of 3 University of Delhi v. Ram Nath, (1964) 2 SCR
703: AIR 1963 SC 1873: (1963) 2 LLJ 335 4 1957 SCR 874: AIR 1957 SC 874 566
Maharashtra5, Andhra Kesari Education Society v. Govt. of A.p.6 and Bapuji
Educational Assn. v. State7.
the scheme evolved in the said judgment, it is expressly directed that all
students admitted to a private professional college shall be selected
exclusively on the basis of merit, both in the category of merit (free) seats
as well as payment seats. In the case of such private professional colleges, an
exception was made to the extent of 5% of the seats for accommodating the NRIs/foreign
students in view of the orders and policy of the Government of India to
encourage such students. It has also been directed expressly that "there
shall be no quota reserved for the management or for any family, caste or
community, which may have established such college". If this is the
position in the case of professional colleges established and administered by
private bodies, it is inconceivable that in the case of a college established
and run by the Government, any admissions can be made otherwise than on merit
or any quota can be reserved for any person, family or trust, which may have
assisted monetarily in establishing the college. The Government is not
precluded from accepting donations from charitable-minded individuals of organisations
but it cannot certainly enter into an arrangement or a venture of the kind
concerned herein. In this case, the payment was more in the nature of a deal whereunder
Shri M.P. Shah obtained in return an enduring benefit till the college lasts.
It was not even a case, where the Government unilaterally offered something out
of gratitude for such "donation" not that we are saying that such a
thing would be legal. Now, where and individual or an Organisation which
establishes and runs a medical college (recognised by State or affiliated to a
university) is not entitled, according to Unnikrishnan1 to admit students on
its own, or in its discretion, it is inconceivable that a person or a body
which has assisted in setting up of a government medical college would be
permitted to have a quota of its own to which it can nominate students of its
own choice. There is no room for such an arrangement in law. We are, therefore,
of the opinion that the reason given by the Government of Gujarat in its
communication dated June 22 1993 for terminating the said arrangement is a
perfectly relevant, legitimate and valid reason. It was bound to do so in law
and it has done so. No exception can be taken to the said action.
this view of the matter, it is not necessary to deal with the other contentions
urged by the learned Additional Solicitor General. We must however, deal with
other contentions urged by Shri Ramaswamy. He contended that the decision of
the Gujarat High Court in Nanavati2 operate: as res judicata between the
respondent-trust and the Government of Gujarat and, therefore, it is not open
to the Government to say that the said arrangement is not valid and/or binding
upon it. It is not possible to agree The judgment in Nanavati2 is not a
judgment in rem. It is a judgment it 5 AIR 1968 Bom 91: 69 Bom LR 690 6 AIR
1984 AP 251: (1984) 1 AP LJ 45 7 AIR 1986 Kant 119: ILR 1985 Kant 80 567 personam.
It was in a writ petition filed by a student, in her individual capacity,
seeking a direction to the college to admit her in MBBS 1st year course. She
arrayed both the respondent-trust and the Government of Gujarat as respondents
to the writ petition. Both the trust and the Government supported the
arrangement and contended that it was valid and binding. There was no conflict
of interest between the trust and the Government. There was no issue in
controversy between the trust and the Government nor was there any adjudication
by the court on such an issue. For attracting the rule of res judicata between
co-defendants according to the terms in Section 11 of the Civil Procedure Code
which provision of course is not, in terms, applicable to proceedings in a writ
petition it is necessary that there should have been some issue directly and
substantially in controversy between them which has been heard and finally
decided by the court. Same would be the position, where a plea of res judicata
is sought to be raised between co- respondents in a writ petition, on the
general principles of res judicata. Since the said basic requirement is not
satisfied, the said judgment cannot be treated as res judicata between the
trust and the Government. At the most, it can be used as an instance where the
Government had affirmed the binding nature of the said arrangement but no more.
That does not even give rise to an estoppel in the facts of this case. Merely
because the Government had contended in 1974 that the said arrangement is a
valid one and binding upon it, it cannot be said that it is precluded from resiling
from the said position even when it has realised that such an arrangement is
contrary to Article 14.
can be no acquiescence or waiver in such matters. If an individual cannot waive
the fundamental rights conferred upon him by Part III, the State cannot equally
be prevented from discharging its obligations placed upon it by Part III by
rules of evidence like estoppel, acquiescence or waiver.
Ramaswamy relied upon certain decisions in support of the, said contention
which we may deal with briefly. The first decision relied upon is in Federation
of Directly Appointed Officers of Indian Railway v. Union of India8. In that
case, there was an earlier decision by this Court on an issue identical to the
one raised in the writ petition.
the earlier decision was not rendered in a writ petition filed in a
representative capacity, the issue had arisen between the very same categories
of persons and the contentions were also the same. The petitioners sought to
argue that the earlier decision is not binding upon them in view of the
"developing concept of Article 14". On the other hand, it was argued
by the other side that the earlier decision operated as res judicata. On an
examination of the contentions which arose in the previous case and which arose
in the case before them, the learned Judges comprising the Division Bench held
that they are unable to see "any compelling reasons to deviate from the
principles enunciated in (earlier) judgment". It was also held that
"[a] dispute now sought to be raised under Article 32 of the Constitution
between the Officers in a representative 8 (1993) 3 SCC 364: 1993 SCC (L&S)
776: (1993) 25 ATC 200 568 capacity and Engineers across also in a representative
capacity must be held to be barred by principles of res judicata as also by the
rule of constructive res judicata".
unable to see how the principle of the said decision helps the respondent-trust
herein. There it was a direct conflict between two categories of employees on
both the occasions and on identical grounds. It was for that reason that the
earlier decision was treated as res judicata.
The next decision relied upon is in Ambika Prasad Mishra v. State of U.P.9 The
principle emphasised by the Constitution Bench in this case is that judicial
decisions should not be reviewed from time to time since such a course has the
effect of making the law uncertain besides keeping the legislative and
administrative decisions on vital issues in perennial suspense. There can be no
quarrel with the said principle but its relevance herein is very little.
Ramaswamy then cited State of U.P. v. Nawab Hussain10. In that case, the
respondent who was dismissed from service filed a writ petition in the High
Court raising a particular contention. The writ petition was dismissed.
he filed a suit raising another ground of challenge which was met by the State
by raising the plea of res judicata. This Court held that the respondent was
precluded by the rule of constructive res judicata from raising the said new
ground in the suit which he did not raise in the writ petition, though it was
within his knowledge and could have been taken in the writ petition.
The last decision cited by Shri Ramaswamy on this score is in Somawanti v.
State of Punjab' 1. In this case, it was observed at pages 793-94 (SCR) that
the mere fact that one of the contentions now raised was not raised or
considered in an earlier decision which affirmed the validity of the enactment,
does not furnish sufficient ground for reopening the issue. None of these cases
are cases relating to res judicata between co-defendants/corespondents.
are unable to see any substance in the argument that the termination of
arrangement without observing the principle of natural justice (audi alteram partem)
termination is not a quasi-judicial act by any stretch of imagination; hence it
was not necessary to observe the principles of natural justice. It is not also
an executive or administrative act to attract the duty to act fairly. It was as
has been repeatedly urged by Shri Ramaswamy a matter governed by a
contract/agreement between the parties.
matter is governed by a contract, the writ petition is not maintainable since
it is a public law remedy and is not available in private law field, e.g.,
where the matter is governed by a non-statutory contract* . Be 9 (1980) 3 SCC 719:(1980)
3 SCR 1159 10 (1977) 2 SCC 806: 1977 SCC (L&S) 362: (1977) 3 SCR 428 11
(1963) 2 SCR 774: AIR 1963 SC 151: (1963) 33 Com Cas 745 In this connection,
see Assistant Excise Commissioner v. Isaac Peter, ( 1994) 4 SCC 104: 1994 (2)
J.T. 140 on the relevance of doctrine of fairness in matters governed by
contract, arrived at calling for tenders, auction or by negotiations.
that as it may, in view of our opinion on the main question, it is not
necessary to pursue this reasoning further.
Regarding the contention that the Government of Gujarat did not choose to file
an appeal (against the judgment of the learned Single Judge) in the case of the
pharmacy college but filed an appeal only in the case of the M.P.
Medical College and that it is guilty of discrimination on that account, we
must say, we see no substance in it. It is explained by the learned Additional
Solicitor General that in the case of pharmacy college, only one seat was
involved whereas it was 12 seats here and that too in a medical college. In any
event, since both the colleges are different and they had filed two different
writ petitions, non-filing of appeal in one case does not disable the
Government from filing the appeal in the other case, merely because the
judgment is a common one. It must be deemed in such a case that it is a
judgment in each case separately.
For the above reasons, the civil appeals are allowed and the judgments of the
Gujarat High Court, both of the learned Single Judge and the Division Bench
under appeal, are set aside. No order as to costs.
orders on interlocutory applications.