A.P. CHOWDHRI, J.

(1) BY this judgment we propose to dispose of C. W. P. Nos. 9563 and 12914 of 1994. It would be convenient to refer to C. W. P. No. 9563 of 1994 as the question raised in the two petitions are common.

(2) THE controversy raised is whether the Dayanand Medical College and Hospital is entitled to fill seven seats with non-resident Indian students (hereinafter referred to as nris) in the facts and circumstances of this case.

(3) THE Dayanand Medical College and Hospital (for short, DMC) is being run by society which claims to be a religious minority. The said college is recognised by the Medical Council of India respondent No. 3 and is affiliated to the Punjab University. Prior to 1991-92, the College had sanctioned seats for MBBS Course. Out of them, 13 seats were filled every year by NRIs. In 1991-92 the intake was increased from 50 to 70 seats and the number of NRIs was raised to 18. From 1986-87 admission to all seats other than NRI seats was made through an entrance test held by the Punjab University as per Syndicate decision dated 20/01/1986. For 1993-94 the College filled 18 seats with NRI students. The inter se merit of NRI applicants was determined by the Punjab University on the basis of an entrance test held at Chicago (USA).

(4) THE Supreme Court delivered judgment in Unnikrishnan J. P. etc. v. State of Andhra Pradesh 1993 (1) JT (SC) 474 : (AIR 1993 SC 2178 [LQ/SC/1993/103] on Feb. 4, 1993. Their Lordships evolved a scheme for regulating admission to professional colleges and directed the recognising and affiliating authorities to enforce the same by incorporating the guide line in the conditions and stipulations for the grant of recognition and as a condition of continued affiliation. In so far as relevant for the present purpose the expression "professional colleges" in the said scheme included Medical Colleges established by private educational institutions. The expression appropriate authority was defined to mean the Government, University or other authority as is competant to grant permission to establish or to grant recognition to a professional college. The expression competent authority was defined to mean the Government/ University or other authority as may be designated by the Government / University or by law as is competent to allot students for admission to various professional colleges in the given State. Fifty per cent seats in every professional college was to be filled by the nominees of the Government or University. They were referred to as free seats. The remaining fifty per cent seats were called payment seats. The category of NRIs was not specifically mentioned. Sub-paragraph (6) of paragraph 118 of the report in JT at page 534 laid down that every State Government shall forthwith constitute a Committee to fix the ceiling on the fees chargeable by a professional college. This was followed by the persons who were to constitute that committee and the broad procedure to be adopted by that committee in fixing the fee once every three years or at such longer intervals as it may think appropriate.

(5) A number of review petitions were filed in the judgment arising out of Unnikrishnan (supra). The review petitions were disposed of by the same Constitution Bench and copy of the order is Annexure Pl. It has been reported as Unnkrishnan J. P. etc. v. State of Andhra Pradesh (1993) 4 SCC 111 [LQ/SC/1993/493] . The professional colleges were allowed to admit non NRIs to the extent of 5 per cent of their total intake out of payment seats. In view of the different backgrounds from which the applicants were to come, it was further directed that the management of the college concerned would judge the inter se merit of such candidates having regard to relevant factors. The fee payable by such students was to be the one prescribed by the committee referred to in clause (6) of the scheme to which reference has been made above. The above order is dated 14/05/1993.

(6) A number of writ petitions were filed by minority institutions. These writ petitions have been referred to a larger Bench. A detailed interim order was, however, passed by the Supreme Court in one such writ petition, namely, IMA Pai Foundation v. State of Karnataka on Oct. 7, 1993. Copy of the order is Annexure P2. The order mainly related to the free structure in private professional colleges and certain other matters including the allocation of seats for NRIs/ foreign students. The question of fee structure does not arise in the present case even though this was considered as a relevant factor in the context of financial resources of the college in fixing the number of seats to be filled by NRIs/foreign students. Their Lordships firmly laid down that the private professional colleges shall admit NRIs and foreign students up to a maximum extent of 15 per cent of the intake capacity for the year 1993-94. The provision of NRIs to the extent of 5 per cent made in the earlier order dated 14/05/1993, in review petitions No. 482 of 1993 etc. thus, stood raised to 15 per cent. It was also directed that the directions given in Unnikrishnan and subsequent orders shall be implemented and students admitted against all the free seats and payment seats in all the professional colleges on or before Oct. 31, 1993. The State Governments were further directed to take immediate and effective steps for the purpose. The Central Government was required to ensure the implementation of the same by issuing appropriate directions keeping in view Art. 144 of the Constitution. It was further directed that in case any professional college refuses to abide by the said orders and directions the State Government concerned would bring it to the notice of the Supreme Court immediately for appropriate orders.

(7) THE case of the petitioner-DMC is that neither the State Government nor the Punjab University took any steps to constitute the committee as per directions in Unnikrishnan. The petitioner, therefore, wrote a letter Annexure P4 dated 28/05/1993, to the Chief Minister, Punjab, pointing out that in the absence of the Committee as per directions of the Supreme Court the process of admissions was being held up. It was, therefore, requested that the committee be constituted to go into the question of determination of fees to be charged from the students for seeking admission to MBBS Course Session 1993. It was further stated that the college would abide by the division of seats according to the guidelines given by the Supreme Court. Having failed to get any response, the petitioner wrote another letter Annexure P5 dated 24/07/1993, reiterated its request for determination of the fee structure to be charged from the students seeking admission for the year 1993. Another letter Annexure P-6 dated 29/06/ 19/07/1993//07/ 3, 1993, was written by the College to the Secretary to Government, Punjab, Technical Education and Industrial Training, on the same subject. Copies of these letters had inter alia been sent to the Vice Chancellor, Punjab University. The Punjab University wrote to the petitioner vide Annexure P3 dated 10/08/1993. The University referred to its earlier letter dated 22/07/1993, communicating to the College about the distribution of seats in terms of the Supreme Court judgment in Unnikrishnan. It was further stated that the University did not consider it expedient to implement decision of the Supreme Court in peacemeal i. e. one part relating to determination of the fee structure, on the one hand, and the other part relating to distribution of seats amongst the various categories, on the other hand. The earlier communication dated 22/07/1993, was sought to be superseded by the said Memo dated 10/08/1993, and the college was informed that both in the matter of fee structure as well as distribution of seats the college shall follow the same criteria for admissions during the session 1993-94 as had been approved by the Syndicate of the University for admissions for the previous session 1992-93. On the basis of letter Annexure P3 dated 10/08/1993, DMC filled 18 seats with NRIs as had been done by it in the preceding year 1992-93.

(8) FOR the year 1994-95 the Punjab Government issued notification Annexure P8 dated 3/06/1994. In so far as NRIs are concerned, the notification stated that NRIs/ foreign students were not required to appear in the common entrance test, which was to be held for determining inter se merit of the applicants for filling the other seats. In paragraph 2 (c) the number of NRI seats was mentioned as seven. The notification was followed by the Prospectus issued by the College in July, 1994. The extract of the Admission Calendar is given in Annexure P9. In paragraph 4 of the Admission Calendar the number of candidates relating to NRI/ foreign category was given. The last date for receipt of applications from the said category was 20/07/1994. The date for interview at DMC Ludhiana was 1/08/1994, and the fees had to be deposited by the NRI students by 3/08/1994. 180 applications were received by the college for 7 NRI seats. The six petitioners in CWP No. 12914 of 1994 are the students who have been placed at serial Nos. 1 to 6 of the list prepared as a result of evaluation done by the Punjab University. The NRI student at No. 7 of the list instead of filing an independent writ petition made an application under Order 1, Rule 10 (2) of the Code of Civil Procedure and his case being entirely common with the case of petitioners in CWP No. 12914 of 1994 we have heard Mr. S. P. Jain on his behalf, who has adopted the stand taken by the other NRI students.

(9) THE Memo. Annexure P 10 dated 14/07/1994, is from the Joint Secretary, Medical Education, Punjab Government, to the President of the Managing Committee of DMC. According to the Memo, DMC had made admission in the NRI category in excess and in violation of the Supreme Courts direction dated Oct. 7, 1993 (Annexure P7) and called upon the DMC to take corrective measures and not to fill any seat relating to NRIs for the current session 1994-95. A copy of the letter dated 15/06/1994 received by the State Government from the Medical Council of the India respondent No. 3 was enclosed along with the Memo. In the letter dated 15/06/1994, the Medical Council of India had pointed out that as per list submitted by the principal, DMC 18 NRI students had been admitted by the College during 1993-94. There were 7 seats in excess of the permissible limit as per direction of the Supreme Court. It was, therefore, requested that the said 7 seats be got adjusted in the following year 1994-95. It was further requested that corrective measures taken by the college authorities and the State Government be intimated to the Central Government as well as to the Medical Council of India. In view of the receipt of the Memo. Annexure P10 prohibiting the DMC to fill any seat relating to NRI category for the year 1994-95, the Managing Committee of DMC has filed this writ petition, seeking a writ of certiorari quashing the order Annexure P10 and a writ of mandamus directing the respondents to allow the petitioner to fill seven seats, being 10 per cent permitted by the Supreme Court and the notification of the State Government giving effect to the directions of the Supreme Court.

(10) WRITTEN statement has been filed on behalf of respondents 1, 2 and 4. A separate written statement has been filed by the Medical Council of India respondent No. 3. It has been pleaded that directions given by the Supreme Court in Unnikrishnan and other cases which came up before that Court on later dates were binding on the petitioner. It has further been pleaded that the petitioner knew all along what those directions were, especially with regard to the allocation of seats to the NRIs. The action of the petitioner in filling 18 seats, which were in excess of the limit laid down by the Supreme Court, constituted disobedience of the order of the Supreme Court. Apart from other action, the petitioner was bound to take corrective action and one of the methods of doing so was to adjust the seven excess seats in the seats becoming available in the year 1994-95 and the petitioner was, thus, not entitled to fill any seat from the NRI category.

(11) LEARNED counsel for the petitioner has brought on record certain additional facts through a Civil Misc. application dated Nov. 2, 1994. The additional facts are clarificatory in nature and we have incorporated the relevant facts in the above narrative.

(12) THE Indian students, who would get admission if the NRIs are not admitted, have been allowed to be impleaded under Order 1, Rule 10 of the Code of Civil Procedure on tie basis of Civil Misc. No. 8371 of 1994.

(13) WE have heard Mr. P. S. Patwalia for the petitioners, Mr. Maninder Singh for respondent No. 3, Mr. Rajiv Atma Ram for the Indian students (hereinafter referred to as the added respondent), Mr. J. S. Khehar and Mr. S. P. Jain for the NRIs and Mr. Randhir Singh, Assistant Advocate-General, Punjab, for the State.

(14) THE contentions of Mr. P. S. Patwalia, for DMC may be summarised as under :-

(i) There was total inaction on the part of the State Government in regard to the admission for the year 1993-94, even though repeatedly the Government was requested to take necessary action to implement the judgment of the Supreme Court in Unnikrishnan. Initially the Punjab University, with which DMC is affiliated, also did not take any action but ultimately gave a go-ahead-signal by writing letter Annexure P3 dated 10/08/1993, conveying to the college to fill the NRI seats on the pattern of the preceding year, namely, 1992-93.

(ii) Admissions to 1993-94 including the admission to the NRI seats was completed on 14/08/1993. The order of the Supreme Court Annexure P2 was rendered much later on Oct. 7, 1993. The petitioner could not be possibly bound by an order which came into existence much after the completion of admissions.

(iii) There was no rule of carry forward and conversely no adjustment could be made if in one category admissions had been made in excess of the permissible limit laid down by the Supreme Court.

(iv) The above contention has been put in different words as well and it has been contended that the two years, namely, 1993-94, on the one hand and 1994-95, on the other hand constituted as it were, separate compartments and assuming for the sake of argument that there was an infraction in one year, the same could not affect the admissions made in the subsequent year.

(v) Seats meant for NRIs are a measure of subsidy to the private unaided professional colleges. The apex Court was all along aware of this important factor. This was taken into consideration in fixing the percentage of NRI seats. The budget of the DMC would go haywire if NRI seats are denied to the petitioner for the year 1994-95.

(vi) Action for filling the NRI seats for the year 1994-95 was taken in pursuance of the Government notification. Copy of the Prospectus had been sent to the Medical Council of India respondent No. 3/08/1993. Advertisement was issued. Applications were processed. In response thereto a large number of NRIs had turned up. Their inter se merit had been evaluated and it was at that stage that the impugned order was received like a bolt from the blue.

(vii) The Medical Council of India respondent No. 3 had no locus standi because it was neither the appropriate authority nor the competent authority as defined by the apex Court in Unnikrishnan.

(viii) The directions heavily relied on by learned counsel for MCI in Shahal H. Musaliar v. State of Kerala, (1993) 4 SCC 112 [LQ/SC/1993/635] were confined to two writ petitions dealt with in paragraphs 14 and 15 of the said judgment and they were not of general application.

(15) THE above arguments have been broadly adopted by Mr. J. S. Khehar and Mr. S. P. Jain learned counsel appearing for the NRI students. They have, however, supplemented the above contentions with the following submissions :-

(ix) The MCI respondent No. 3 had no jurisdiction to pass the order which is annexed with the impugned order. It was contended that for all practical purposes the impugned order Annexure P10 was carrying out that what was desired by the MCI without an independent application of mind by the State Government. Thus, for all practical purposes the impugned order though purporting to have been passed by the State Government was, in fact, the order passed by the MCI which had no jurisdiction to do so.

(x) The direction of the Supreme Court allowing 10 per cent seats to NRIs had given the NRI applicants a vested right which cannot be taken away on the ground of alleged infraction on the part of the management and that too for the previous year 1993-94.

(xi) Bona fide acting in pursuance of the notification of the State Government and the Prospectus issued by the college, the NRI students had travelled all the way along with their parents from far off countries, had obtained evaluation reports from the University and had been placed at serial Nos. 1 to 7 of the merit list for NRI seats and it was at that stage that they were confronted with the present situation. Such students having altered their position to their disadvantage by incurring heavy expenditure, the authorities were estopped on principle of promissory estoppel from denying admission to them.

(16) THE contentions of Mr. Maninder Singh for the MCI may be summarised thus :

(i) The MCI is the appropriate authority for implementation of the directions of the Supreme Court in Unnikrishnan, for the reason that according to Section 11 of the Indian Medical Council Act, 1956, the Central Government cannot act without consultation with the Medical Council of India for purposes of according recognition to medical institutions and the degrees conferred by them. Such consultation was an effective consultation and not a mere formality. The same was true if recognition to a particular medical college was to be withdrawn.

(ii) The Supreme Court cast a duty on the Medical Council of India to ensure compliance of its directions and to bring violations to its notice. He heavily relied on the observations of the apex Court occurring in paragraph 16 in Shahal H. Musaliar (supra).

(iii) In any case, the MCI was an authority which like other authorities in India was bound by the directions of the apex Court and was duty bound to act in aid of the Supreme Court by virtue of Art. 144 of the Constitution.

(iv) The remedy, if any, open to the petitioner was to approach the Supreme Court if any clarification was necessary. Approaching this Court practically amounted to inviting the Court to alter or modify the direction given by the Supreme Court in no uncertain terms. If this submission is accepted, it was contended, this Court had no jurisdiction to entertain the petition and it should be dismissed at the threshold.

(v) For purposes of the present discussion, there were two matters which have been the subject matter of directions after the decision in Unnikrishnan. These are; (a) the question of fee structure; and (b) the allocation of seats amongst the various categories. Whereas the question of fee structure was to be determined on the basis of the recommendations of the Committee to be constituted for the purpose by the State Government as per the guidelines laid down by the Supreme Court, the question of allocation of seats between the NRIs and the Indian students had been categorically and finally settled and it was not open to any Committee or authority to examine or modify the same. The approach of the University in seeking to reopen the question of allocation of seats between the NRIs and others was, thus, totally misconceived and erroneous and beyond their jurisdiction.

(vi) The stand of Union of India to grant 50 per cent seats to foreign students /nris was very seriously pressed but it was equally firmly turned down by the Supreme Court to make the seats available to Indian students. Reference in particular was invited by the learned counsel to the affidavit filed by Miss Shailaja Chandra, Joint Secretary to Government of India, Ministry of Health, relevant part of which was extracted in the order Annexure P2 at page 30 of the paper book.

(vii) It was clearly laid down by the Supreme Court that the scheme evolved in Unnikrishnan had to be implemented from the academic year 1993-94. It was not open to any authority to decide to postpone the implementation of that decision to a later year.

(viii) No doubt there was no carry forward rule expressly laid down, but the question of contempt of Court apart, it was necessary for the party committing a violation of the order to set right the violation and it was, therefore, incumbent on it to take remedial action and in a case which involves violation of the order of the Supreme Court, the extraordinary jurisdiction vested in the High Court under Article 226 of the Constitution could not be exercised in favour of a party which was ex facie guilty of the violation of the order of the Supreme Court.

(ix) There was no question of any estoppel because there could not be any estoppel in regard to violation of the order of the Supreme Court. Moreover, the representation made by the University or the State Government was without jurisdiction and contrary to the law laid down by the Supreme Court and did not, therefore, operate as a promissory estoppel. He placed reliance on Union of India v. Godfrey Philips India Ltd. AIR 1986 SC 806 [LQ/SC/1985/315] : 1986 Tax LR 2002.

(17) WE have given our anxious consideration to the above submissions of the learned counsel.

(18) FOR the present purposes, it is necessary to bear in mind that there were two matters before their Lordships of the Supreme Court. One was relating to the fee structure and the other allocation of seats between NRIs and others. A careful perusal of the various orders, to which reference has been made in the foregoing part of this judgment, leaves no manner of doubt that whereas the question of fee structure was to be settled by the State Governments concerned on the basis of recommendations of the Committees about which guidelines had been given in Unnikrishnan and which were to be constituted by the State Governments, the question of allocation of seats was not left to be decided by the State Government with or without the assistance of any Committee. It was decided by the Supreme Court and the percentage of the total intake from out of payment seats was laid down by the Supreme Court for NRI category from time to time. There is no dispute that initially the said percentage was 5 per cent as per decision Annexure P-1 (reported as (1993) 4 SCC 111 [LQ/SC/1993/493] which was raised to 15 per cent by order Annexure P2 dated 7/10/1993, for the year 1993-94. For the following year 1994-95, the said percentage has been fixed at 10 per cent vide order Annexure P7 dated 13/05/1994. There was no ambiguity about the aforesaid number of NRI seats in so far as the petitioner is concerned. That being so, it was neither open to the State Government nor to the affiliating University to postpone the implementation of the order of the Supreme Court in contravention of the direction that the order was to be implemented from the year 1993-94 onwards. To that extent, the decision of the Punjab University in the letter of the Registrar Annexure P3 was erroneous and without jurisdiction. In fact, the State Government was not required to take any action in so far as allocation of seats for NRIs is concerned, which was a matter which stood settled by the Supreme Court. A perusal of the correspondence relied on by the petitioner, namely, Annexures P4 to P6 itself shows that the petitioner entertained no doubt at all that as per the direction then in force the number of NRI seats was 5 per cent and it was expressly admitted in these letters that the said percentage gave to the NRIs 4 sets. In other words, in the correspondence there was no dispute with regard to the number of NRI seats and the real subject matter of the correspondence was constitution of the Committee envisaged by their Lordships in Unnikrishnans case to go into the question of fee structure. Viewed in this context, there was absolutely no occasion for the University to have gone at a tangent and to have permitted the DMC to go ahead and fill 25 per cent seats for the year 1993-94 in total contravention of the directions of the Supreme Court. On this ground as well, the letter Annexure P3 dated 10/08/1993, of the Punjab University can never operate to permit or regularise 18 seats for the NRIs for the year 1993-94.

(19) WITH regard to the contention that the order Annexure P2 dated Oct. 7, 1993, was rendered by the Supreme Court long after the admissions had been finalised, it is sufficient to point out that when the admissions were made, the order which held the field was Annexure P1 dated 14/05/1993, according to which only 5 per cent seats of the total intake were permitted as NRI seats.

(20) THE immediate question which arises is - what corrective action can be taken in the facts and circumstances of this case It is not disputed that there is no rule under which seats either remaining unfilled or filled in excess of the prescribed limit can be carried forward to the following or subsequent years to correct the imbalance, but even in the absence of such a rule it is evident that corrective action would necessarily include an action by adjusting all seats in the following year/ years. The other obvious choice is that students who had been admitted in excess of the prescribed limits should be turned out of the course. Adopting such a course would work very harshly on such students and it will do no good to any other person and those seats would stand wasted. In the circumstances, the alternative of taking corrective action in the following year or subsequent years appears to be the one which should be preferred and has been adopted by the authorities. We are quite inclined to accept the contention of Mr. Maninder Singh that MCI is a necessary part of the mechanism of the Central Government to accord recognition in view of the provisions of Section 11 of the Indian Medical Council Act, 1956, and that being so, it was open to the Medical Council of India to have taken objection to the filling of 18 seats which is in excess of the limit prescribed by the Supreme Court. In the facts and circumstances of the case, we do not think it necessary to decide the question whether the MCI was appropriate authority/competent authority or not. In any case, the letter written by MCI dated 15/06/1994, has been adopted by the State Government, which issued the impugned order Annexure P-10 dated 14/07/1994. The impugned order is thus one issued by the State Government of Punjab, which is undeniably a competent authority. There can also be no doubt that the MCI like other authorities is duty bound to act in aid of the orders of the Supreme Court and no exception can be taken to the objection taken by the MCI and the corrective action suggested by it, which is sought to be enforced by the State Government. The observation relied on by Mr. Maninder Singh, learned counsel for the MCI, in Shahal H. Musaliar v. State of Kerala, (1993) 4 SCC 112 [LQ/SC/1993/635] in Paragraph 16 read as under :-

". . . . . . After completing the admissions the petitioners shall furnish full particulars of the students admitted, the categories, if any, whereunder they were admitted and all other particulars relating to their admission. This information should be furnished to the competent authority, to the University to which the said colleges are affiliated and to the Secretary, Education Department, Government of Karanataka/tamil Nadu. The said authorities shall verify whether the admissions have been made by the petitioners in accordance with the directions given herein. In case of irregularity, any of the said authorities shall be entitled to call the competent authority, University and the Government of Karnataka/ Tamil Nadu to bring any such irregularity to the notice of this Court by way of an interlocutory application for appropriate orders in that behalf. It is made clear that any violation of the directions given herein by the petitioners shall entail serious consequence. . . . "

The contention put forward is that these directions were of general application and applied to all Medical Colleges including the petitioner. A careful reading of the preceding paragraphs 14 and 15 together with the observations relied on by the learned counsel, leave no room for doubt that the aforesaid observations were in writ petition No. 284 of 1993 etc. relating to Karnataka and writ petition No. 482 of 1993 relating to Tamil Nadu. Notwithstanding the above distinction, we are further of the view that on general principles the directions would apply to other cases on the principles on which Articles 141 and 144 of the Constitution are based.

(21) NO doubt, the NRI component furnishes a substantial source of revenue to the private unaided Medical Colleges like the petitioner, this is a matter which has been taken into consideration by their Lordships of the Supreme Court in fixing the percentage of NRI seats from out of the payment seats for all Medical Colleges in the country and this subject is no longer open to any further discussion or modification as far as this Court is concerned. With regard to estoppel, we are equally clear that there is no estoppel in so far as the duty of all concerned to enforce and comply with the directions of the Supreme Court is concerned. It has been amply demonstrated that the Punjab University was totally ill-advised in postponing the implementation of the direction of the Supreme Court in so far as the number of NRI seats for the year 1993-94 is concerned. The notification of the State Government cannot by any conceivable reason be given a better status in the context of the order of the Supreme Court.

(22) WHEN this writ petition came up for the first time before us, one of us (A. P. Chowdhri, J.) observed that the petitioner may approach the Supreme Court if any clarification was required. Mr. P. S. Patwalia in fact, took time to obtain instructions and later on he decided to argue the matter on merits. On further consideration, this Bench also felt that if the matter is heard and disposed of here by a detailed judgment, it would save the valuable time of the Supreme Court and may be of some assistance to their Lordships.

(23) FOR the foregoing reasons, we dismiss this writ petition. As big stakes are involved and the seven seats have been kept vacant i. e. having neither been filled by NRI students nor by the Indian students by virtue of our order dated 21/07/1994, we direct that follow up action on this judgment be stayed for a period of 10 days to enable the petitioner to obtain appropriate further orders, if any, from the Supreme Court.

(24) A copy of each of this order be given immediately to the counsel for the parties. Petition dismissed.