TaxTMI 
TaxTMI 
2016 (5) TMI 1366
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.... the Madhya Pradesh Private Medical and Dental Post Graduate Courses Entrance Examination Rules, 2009 (for short, 'Rules, 2009') which have been framed by the State Government in exercise of the power conferred upon it vide Section 12 of the Act, 2007. The aforesaid Act and Rules regulate primarily the admission of students in post graduate courses in private professional educational institutions and the provisions are also made for fixation of fee. In addition, the said Act and Rules also contain provisions for reservation of seats. All the appellants are private medical and dental colleges which are unaided, i.e. they are not receiving any Government aid and are self financing institutions running from their own funds. It is evident from the reading of the impugned judgment that challenge was laid by the appellants to those provisions of the Act and Rules on four grounds. The same are as under: (i) the challenge to the provisions relating to admission; (ii) the challenge to the provisions relating to fixation of fee; (iii) the challenge to the provisions for reservation; and (iv) the challenge to the provisions relating to eligibility for admission. Insofar as p....
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....e saved by Article 19(6) of the Constitution as they amount to 'reasonable restrictions' imposed on the right of admission and fixation of fee, which otherwise vests with the appellants. Before we advert to the arguments of the appellants advanced before us in detail, it would be apposite to give the gist of the provisions of the Act, 2007 as well as Rules, 2008 and Rules, 2009 and also the manner in which the High Court has dealt with the issues at hand. The Act, 2007: The Preamble of the Act mentions that it is to provide for regulation of admission and fixation of fee in private professional educational institutions in the State of Madhya Pradesh and to provide for reservation of seats to persons belonging to the Scheduled Castes, Scheduled Tribes and Other Backward Classes in professional educational institutions. Thus, insofar as the Preamble is concerned, it stipulates that the provisions are made to provide for the 'regulation' of admission and fixation of fee. Further, the Act encompasses private professional educational institutions of all disciplines and is not confined to medical and dental professions. However, writ petitions were filed raising the gr....
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....xpenditure on administration and maintenance; (vi) a reasonable surplus required for growth and development of the professional institution; and (vii) any other relevant fact, the committee shall determine, in the manner prescribed, the fee to be charged by a private unaided professional educational institution. (2) The Committee shall give the institution an opportunity of being heard before fixing any fee: Provided that no such fee, as may be fixed by the Committee, shall amount to profiteering or commercialization of education." As pointed out above, the Government has framed Rules, 2009 creating detailed provisions for fixation of fee, to which we shall be referring to at the appropriate stage. Another provision which needs to be mentioned at this stage is Section 10. This provision provides for appeal that can be filed by a person or a professional institution aggrieved by an order of the Committee. Such an appeal can be filed within 30 days before the Appellate Authority constituted under the said provision. Under Section 12, the State Government may, by notification, make Rules for carrying out the purpose of the Act. Section 13 empowers the State Government to make R....
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....this Court had permitted framing of Regulations for unaided private professional educational institutions for conducting such admission tests. The contention of the educational institutions/ writ petitioners to the effect that T.M.A. Pai Foundation never allowed the State to control admissions in private unaided professional educational institutions so as to compel them to give up a share of available seats to the candidates chosen by the State has been repelled by the High Court by holding that the admission procedure for unaided professional educational institutions, both minority and non- minority, was spelled out in P.A. Inamdar in paragraphs 133 to 138 clearly holding that for achieving the objective of excellence in admission and maintenance of high standards, the State can, and rather must, in the national interest step in. This judgment, thereby, recognised the power of the State to hold such CETs in respect of private educational institutions as well. The High Court, in the process, painfully remarked that the admission procedure which was adopted by the private institutions had failed to satisfy the triple test of transparency, fairness and non- exploitativeness thereby c....
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..... While dealing with the provisions in the Act, 2007, which pertained to reservation, the High Court discussed the dictum laid down in M.R. Balaji & Ors. v. The State of Mysore & Ors.[ (1993) Supp. 1 SCR 439] wherein the Constitution Bench of this Court, while interpreting Article 15(4) of the Constitution, held that the said provision was made to subserve the interest of the society at large by promoting advancement of weaker sections of the society and, thus, it authorises the State to make special provision for such weaker sections. The only exception was that such a special provision to be made by the State should not completely exclude and ignore the rest of the society. Further, while making such a provision, the State was supposed to approach its task objectively and in a rationale manner and it has to take reasonable and even generous steps to help the advancement of weaker elements; the requirement of the community at large must be borne in mind and a formula must be evolved which should strike a reasonable balance between the several relevant considerations. Likewise, after the insertion of clause (5) to Article 15 by the Constitution (Ninety-Third Amendment) Act, 2005, ....
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....e.: Admissions - Reading Section 6 with Section 3(d) of the Act, 2007, which deals with the CETs, it is held that provisions prescribing a CET for the purpose of admission to private unaided institutions are constitutional and valid since the same are in consonance with the dictum of the Constitution Bench judgment of this Court in the case of T.M.A. Pai Foundation, as per the law specially laid down in paragraphs 58 and 59 of the said judgment. The High Court has pointed out the manner in which the dictum of T.M.A. Pai Foundation is explained in the Constitution Bench judgment of this Court in the case of P.A. Inamdar, and applying the same the High Court had held that there is no violation of the fundamental rights of the writ petitioners since the provisions constituted reasonable restriction as accepted by and, therefore, saved under Article 19(6) of the Constitution. Quoting paragraphs 136 and 137 of P.A. Inamdar, the High Court held that the CET prescribed under Section 6 of the Act, 2007 will ensure that the merit is maintained. It is also concluded by the High Court that sufficient material that was placed on record to establish that prior to the enactment of the Act, 2007 ....
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....itative. The State can step in and oversee/supervise the process of admission, which is to be essentially taken by the educational institution to ensure that the aforesaid triple test of fair, transparent and non-exploitative selection process is followed. It is argued that the power given to the State would be only regulatory in nature and under the garb of this power the State cannot take away the right to admit the students which vests with the educational institutions. In nutshell, the submission is that holding of CET by the State under the provisions of the Act, 2007 read with the Rules framed thereunder amounts to impinging upon the fundamental right of the appellants to establish and manage professional educational institutions, which is now brought at par with the rights of minority institutions to establish such institution given to them under Article 30 of the Constitution. It was further argued that whereas the power of supervision on the part of the State may amount to reasonable restriction and, therefore, that would satisfy the test laid down in Article 19(6) of the Constitution, but taking away the power of admission entirely by conducting CET and even counseling wo....
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....ting the attack. They were joined by Mr. Raval, Mr. Ajit Kumar Sinha and Mr. Rakesh Dwivedi, learned senior counsel, who supported them in great measure. Their forceful onslaught was bravely faced and defended by Ms. Vibha Dutta Makhija, learned senior counsel who appeared for the State of Madhya Pradesh. Others, who supported her in countering the submissions of the appellants, depicting in the process the other side with terse and astute aphorisms of the stark ground realities, were Ms. Pinky Anand, learned Additional Solicitor General, Mr. Vikas Singh, learned senior advocate and Mr. C.D. Singh, learned Additional Advocate General. Whether the defence has been able to blunt the attack of the appellants and has emerged successful in its endeavor would be known at the final stages of the judgment when the arguments of both sides are suitably dealt with by this Court. The central theme of the arguments of the learned counsel for the appellants was that by the impugned legislation the State seeks to wipe out the choice available with the appellants institutions to devise their own admission procedure and the provisions of Section 6 read with Section 3(d) necessitate that the admiss....
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.... courses. The extent to which the fee could be charged by such institutions and the manner in which admissions could be granted was also considered. The Court thereafter devised a scheme of 'free seats' or the state quota seats and 'payment seats' or the management quota seats, under which a higher fee could be charged from the students taking admission against the 'payment seats' and a lesser fee would be charged from students occupying the 'free seats'. This Court held that a fee higher than that charged by the Government institutions for similar courses for the 'payment seats' can be imposed, but that such fee could not exceed the maximum limit fixed by the State. With regard to private aided recognized/affiliated educational institutions, the Court upheld the power of the Government to frame rules and regulations in matters of admission and fees, as well as in matters such a recruitment and conditions of service of teachers and staff. The learned counsel emphasised that the aforesaid control mechanism failed and the position was remedied by this Court in T.M.A. Pai Foundation. It held that if the institutions are entirely self-financing,....
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....and composition of a governing body, compulsory nomination of teachers and staff for appointment or nominating students for admissions would be unacceptable restrictions which would not be protected under Article 19(6) of the Constitution. Continuing the narration of judicial pronouncement, the appellants' counsel submitted that in spite of the said observations and the law laid down by this Court in T.M.A. Pai Foundation defining the scope of the right of the private institutions to run and manage the professional colleges, some States did not adhere to the same and issued Government Orders relying on the observations made by this Court in paragraph 68 of the said judgment. The said orders were challenged before this Court, which came to be decided in the case of Islamic Academy or Education & Anr. v. State of Karnataka & Ors.[(2003) 6 SCC 697], which laid down certain broad modalities and creation of Committees for 'regulating' the admission procedure and the fee structure. It was submitted that certain States enacted laws which were again in violation of the fundamental rights and, therefore, the same were challenged before this Court. The matter was referred to a l....
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....touch upon the power of the State to enact such a legislation inasmuch as it is argued that the matter of admission in higher educational institutional falls in Entry 66 of List I to the Seventh Schedule of the Constitution (Union List) and is not covered by Entry 25 of List III of Seventh Schedule (Concurrent List). Learned counsel appearing for the State of Madhya Pradesh put stiff resistance to the aforesaid submissions of the learned counsel for the appellants and submitted with all vehemence at her command that the impugned judgment of the High Court was without blemish, which had given due and adequate consideration to all the aforesaid submissions of the appellants which were advanced before the High Court as well and rightly negated these submissions by correctly reading the ratio of T.M.A. Pai Foundation as explained in Islamic Academy of Education and put beyond pale of controversy by P.A. Inamdar. She referred to and relied upon the reasoning given in the impugned judgment by the High Court and submitted that no interference therein was called for. In nutshell, her submission was that Act, 2007 as well as Rules framed thereunder were unconstitutional/ violative of funda....
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.... its power of the State to hold CET coupled with counseling of the students to be admitted in the professional institutions. She further submitted that in P.A. Inamdar the seven Judge Bench rather exhorted the States to come out with legislations regulating admissions and fee in private unaided/aided professional or technical institutions. She pointed out that after the pronouncement of judgment in P.A. Inamdar, many States have enacted laws regulating admissions and fee in such institutions. She submitted that once such a law enacted by the Delhi State was considered by this Court in the case of Indian Medical Association v. Union of India & Ors.[(2011) 7 SCC 179], where the challenge was to the ACMS prescribing for granting admission to only wards of army personnel in colleges managed by ACMS, while upholding the constitutional validity of the Delhi Professional Colleges/Institutions (Prohibition of Capitation Fee, Regulation of Administration, Fixation of Non-Exploitative Fee & Other Measures) Act, 2007, this Court struck down the ACMS notification holding that non- minority private unaided professional colleges do not have a right to choose their own 'source' from a gen....
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....led with emotional exchange between the two sides, had its foundation on the bedrock of same case law. Therefore, in carrying out our analysis, while dealing with the arguments of the counsel on both sides, we would be adverting to the aforesaid judgments, as well as some other judgments which have a bearing on the issue, to arrive at the desirable and just conclusions based upon the foundation laid down therein. We may also observe that in pondering over these arguments and submissions, we have endeavoured to undertake the task sagaciously and with keen penetrative analysis using the periscope of sound legal principles and doing a diagnostic of sorts. ANALYSIS, REASONING & CONCLUSIONS: The history of the dispute regarding Government control over the functioning of private medical colleges is quite old now but the tug of war continues. There seems to be some conflict of interest between the State Government and the bodies that establish institutions and impart professional medical education to the youth of this country. While on the one hand the State Governments want to control the institutions for socio- political considerations and on the other the people who invest, set up an....
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....aranteed under Article 19(1)(g) of the Constitution, and if so, what are the features it encompasses? The second stage would be to find out - whether the statute, which is impugned, imposes any restrictions on the right given to the appellants? If there are restrictions, the third poser would be - whether such restrictions are 'reasonable' and, therefore, protected under clause (6) of Article 19 of the Constitution? Insofar as the first part of the question is concerned, it does not pose any problem and the answer goes in favour of the appellants. We may recapitulate here that Article 26 of the Constitution gives freedom to every religious denomination or any section thereof by conferring certain rights which include right to establish and maintain institutions for religious and charitable purposes. Thus, insofar as religious denominations or any section thereof are concerned, they were given right to establish and maintain institutions for religious and charitable purposes making it a fundamental right. Likewise, Article 30 confers upon minorities fundamental right to establish and administer educational institutions. Insofar as Article 26 is concerned, it comes under the....
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.... staff (teaching and non-teaching); and (iv) a right to take action if there is dereliction of duty on the part of any employees. In view of the aforesaid recognition of the right to admit the students and a right to set up a reasonable fee structure treating as part of occupation which is recognised as fundamental right under Article 19(1)(g) of the Constitution, the appellants have easily crossed the initial hurdle. Here comes the second facet of this issue, viz. - what is the scope of this right of occupation? It becomes necessary to point out that while treating the managing of educational institution as an 'occupation', the Court was categorical that this activity could not be treated as 'business' or 'profession'. This right to carry on the occupation that the education is, the same is not put at par with other occupations or business activities or even other professions. It is a category apart which was carved out by this Court in T.M.A. Pai Foundation. There was a specific purpose for not doing so. Education is treated as a noble 'occupation' on 'no profit no loss' basis. Thus, those who establish and are managing the educational ins....
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.... the student obtains at the qualifying examination or school-leaving certificate stage followed by the interview, or by a common entrance test conducted by the institution, or in the case of professional colleges, by government agencies." This paragraph very specifically authorises CET to be conducted by Government agencies in the case of professional colleges. In order to ensure that the said CET is fair, transparent and merit based, T.M.A. Pai Foundation also permitted the Government to frame Regulations for unaided private professional educational institutions. Paragraphs 67 and 68 which permit framing of such regulations are reproduced below: "67. We now come to the regulations that can be framed relating to private unaided professional institutions. 68. It would be unfair to apply the same rules and regulations regulating admission to both aided and unaided professional institutions. It must be borne in mind that unaided professional institutions are entitled to autonomy in their administration while, at the same time, they do not forego or discard the principle of merit. It would, therefore, be permissible for the university or the Government, at the time of granting rec....
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....formation and composition of a governing body, compulsory nomination of teachers and staff for appointment or nominating students for admissions would be unacceptable restrictions. However, occupation of education was not business but profession involving charitable activity. The State can forbid charging of capitation fee and profiteering. The object of setting up educational institution is not to make profit. There could, however, be a reasonable revenue surplus for development of education. For admission, merit must play an important role. The State or the University could require private unaided institution to provide for merit based selection while giving sufficient discretion in admitting students. Certain percentage of seats could be reserved for admission by management out of students who have passed CET held by the institution or by the State/University. Interpretation of certain observations in paragraph 68 of the judgment in T.M.A. Pai Foundation has been a matter of debate to which we advert to in detail hereinafter. As pointed out above, immediately after the judgment in T.M.A. Pai Foundation, a group of writ petitions were filed in this Court, which were dealt with b....
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....res aimed at protecting the students community as a whole as also the minority themselves in maintaining required standards of professional education on non-exploitative terms. This did not violate Article 30(1) or Article 19(1)(g). It was observed that unless the admission procedure and fixation of fees is regulated and controlled at the initial stage, the evil of unfair practice of granting admission on available seats guided by the paying capacity of the candidates would be impossible to curb (emphasis added). On this ground, suggestion of the institutions to achieve the purpose for which Committees had been set up by post-audit checks after the institutions adopted their own admission procedure and fee structure were rejected. The Committees were, thus, allowed to continue for regulating the admissions and the fee structure until a suitable legislation or regulations framed by the States. It was left to the Central Governments and the State Governments to come out with a detailed well thought out legislation setting up a suitable mechanism for regulating admission procedure and fee structure. Paragraph 68 in T.M.A. Pai Foundation case was explained by stating that observations ....
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....rashtra and Ors. (2005) 6 SCC 535. Section 2 of the Act, 2007 makes it clear that it only applies to private unaided educational institutions which impart professional education. Hence, we will have to examine the judgments in T.M.A. Pai Foundation and PA. Inamdar (supra), to find out whether these judgments permit admission to professional educational institutions on the basis of merit as determined in a common entrance test followed by centralised counselling by the State Government or its agencies. xx xx xx 28......It is thus clear from Para 58 of the judgment that in TMA Pai Foundation (supra), quoted above that the Supreme Court has held that the applicant who seeks admission to a professional educational institution in order to become a competent professional must be a meritorious candidate and he cannot be put at a disadvantage by preferences shown to less meritorious but more influential applicants and, therefore, excellence in professional education would require that greater emphasis be laid on the merit of the students seeking admission. It will be further clear from Para 59 of the judgment in TMA Pai Foundation (supra), quoted above, that merit is usually determined....
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....in because the education, knowledge and learning possessed by individuals collectively constitute national wealth and in Paragraph 135 of the judgment in PA. Inamdar (supra), the Supreme Court has further held that in minority professional educational institutions also, aided or unaided, admission should be at the State Level and transparency and merit have to be assured in admissions. In Paragraphs 136 and 137 in PA. Inamdar (supra), the Supreme Court has observed that admissions in professional educational institutions can be made on the basis of a common entrance test either conducted by the institutions joined together or by the State itself or an agency for holding such test." After referring to paragraphs 136 and 137 in P.A. Inamdar, it was observed: "It will be thus clear from the Paragraphs 136 and 137 of the judgment in PA. Inamdar (supra), quoted above, that admissions to private unaided professional educational institutions can be made on the basis of merit of candidates determined in the common entrance test followed by centralised counseling by the institutions imparting same or similar professional education together or by the State or by an agency which must enjoy ut....
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....n view of this conclusion, it is not necessary for us to decide whether the provisions of Sections 3 (d), 6 and 7 of the Act, 2007 are saved by Article 15(5) of the Constitution or by the second limb of Article 19(6) of the Constitution relating to the power of the State to make a law for creation of monopoly in its favour in respect of any service." We are broadly in agreement with the approach adopted by the High Court having gone through the relied upon judgments which are discussed by us as well as in the earlier part. It would be necessary to clarify the position in respect of educational institutions run by minorities. Having regard to the pronouncement in T.M.A. Pai Foundation, with lucid clarifications to the said judgment given by this Court in P.A. Inamdar, it becomes clear that insofar as such regulatory measures are concerned, the same can be adopted by the State in respect of minority run institutions as well. Reliance placed by the appellants in the case of St. Stephen's College v. University of Delhi[(1992) 1 SCC 558] may not be of much help as that case did not concern with professional educational institutions. At this juncture, we would like to deal with the....
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....or practicing any profession or carrying on any occupation, trade or business, or (ii) the carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise." Another significant feature which can be noticed from the reading of the aforesaid clause is that the State is empowered to make any law relating to the professional or technical qualifications necessary for practicing any profession or carrying on any occupation or trade or business. Thus, while examining as to whether the impugned provisions of the statute and Rules amount to reasonable restrictions and are brought out in the interest of the general public, the exercise that is required to be undertaken is the balancing of fundamental right to carry on occupation on the one hand and the restrictions imposed on the other hand. This is what is known as 'Doctrine of Proportionality'. Jurisprudentially, 'proportionality' can be defined as the set of rules determining the necessary and sufficient conditions for limitation of a constitutionally protected right by a law to be constitu....
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....al limitations of constitutional rights by a sub-constitutional law, i.e. the statute, is derived from an interpretation of the notion of democracy itself. Insofar as Indian Constitution is concerned, democracy is treated as the basic feature of the Constitution and is specifically accorded a constitutional status that is recognised in the Preamble of the Constitution itself. It is also unerringly accepted that this notion of democracy includes human rights which is the corner stone of Indian democracy. Once we accept the aforesaid theory (and there cannot be any denial thereof), as a fortiori, it has also to be accepted that democracy is based on a balance between constitutional rights and the public interests. In fact, such a provision in Article 19 itself on the one hand guarantees some certain freedoms in clause (1) of Article 19 and at the same time empowers the State to impose reasonable restrictions on those freedoms in public interest. This notion accepts the modern constitutional theory that the constitutional rights are related. This relativity means that a constitutional license to limit those rights is granted where such a limitation will be justified to protect public ....
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....and demonstrably justified in a free and democratic society, two central criteria must be satisfied. First, the objective, which the measures, responsible for a limit on a Charter right or freedom are designed to serve, must be "of" sufficient importance to warrant overriding a constitutional protected right or freedom...Second ... the party invoking Section 1 must show that the means chosen are reasonable and demonstrably justified. This involves "a form of proportionality test..." Although the nature of the proportionality test will vary depending on the circumstances, in each case courts will be required to balance the interests of society with those of individuals and groups. There are, in my view, three important components of a proportionality test. First the measures adopted must be ...rationally connected to the objective. Second, the means ...should impair "as little as possible" the right or freedom in question...Third, there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of "sufficient importance". The more severe the deleterious effects of a mea....
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....ry from case to case as also with regard to changing conditions, values of human life, social philosophy of the Constitution, prevailing conditions and the surrounding circumstances. ((4) A just balance has to be struck between the restrictions imposed and the social control envisaged by Article 19(6). (5) Prevailing social values as also social needs which are intended to be satisfied by the restrictions. (6) There must be a direct and proximate nexus or reasonable connection between the restrictions imposed and the object sought to be achieved. If there is a direct nexus between the restrictions, and the object of the Act, then a strong presumption in favour the constitutionality of the Act will naturally arise. Keeping in mind the aforesaid principles, we have adjudged the issue in our detailed discussion undertaken above. We may summarise the said discussion as follows: Undoubtedly, right to establish and administer educational institutions is treated as a fundamental right as it is termed 'occupation', which is one of the freedoms guaranteed under Article 19(1)(g). It was so recognised for the first time in T.M.A. Pai Foundation. Even while doing so, this right cam....
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....easonable' and satisfied the test of proportionality. Apart from the material placed before the High Court, our attention has also been drawn to a recent report of the Parliamentary Committee to which we will refer in later part of this judgment. The report notes the dismal picture of exploitation in making admissions by charging huge capitation fee and compromising merit. This may not apply to all institutions but if the Legislature which represents the people has come out with a legislation to curb the menace which is generally prevalent, it cannot be held that there is no need for any regulatory measure. "An enactment is an organism in its environment"[ Justice Frankfuter: 'A Symposium of Statutory Construction: Forward', 3, Vand L. Rev. 365, 367 (1950)]. It is rightly said that the law is not an Eden of concepts but rather an everyday life of needs, interests and the values that a given society seeks to realise in a given time. The law is a tool which is intended to provide solutions for the problems of human being in a society. The High Court in its judgment has analysed the provisions of the Act and found that provisions for merit based admissions and procedure ....
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.... been felt that the only way to achieve this goal, recognising the private participation in this welfare goal, is to ensure that there is no commercialisation or profiteering by educational institutions. In view of the said objectives, this Court had devised the means of setting up regulatory committees to oversee the process of admissions and fee regulations in the case of Islamic Academy of Education. However, while indirectly approving the concept of regulatory bodies, this Court in P.A. Inamdar was of the view that the scheme should not be directed by this Court exercising its powers under Article 142 of the Constitution, but must be statutorily regulated by the Center or the State laws. The principles enunciated in T.M.A. Pai Foundation and P.A. Inamdar were applied in the case of Islamic Academy of Education where a challenge was mounted against the directions issued by the Director of Education to the recognised unaided schools under Section 24(3) read with Section 18(4) and 18(5) of the Delhi School Education Act, 1973 inter alia directing that no fees/funds collected from parents/students would be transferred from the Recognised Unaided School Fund to a Society or Trust ....
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....lete autonomy not only as regards admission of students but also as regards determination of their own fee structure. It was submitted that these institutions were entitled to fix their own fee structure which could include a reasonable revenue surplus for the purpose of development of education and expansion of the institution. It was submitted that so long as there was no profiteering, there could be no interference by the Government. As against this, on behalf of the Union of India, State Governments and some of the students, it was submitted, that the right to set up and administer an educational institution is not an absolute right and it is subject to reasonable restrictions. It was submitted that such a right is subject to public and national interests. It was contended that imparting education was a State function but due to resource crunch, the States were not in a position to establish sufficient number of educational institutions and consequently the States were permitting private educational institutions to perform State functions. It was submitted that the Government had a statutory right to fix the fees to ensure that there was no profiteering. Both sides relied upon ....
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....tent in case of private institutions? What the Court has observed in paragraph 57 of the judgment is instructive for our purposes and the same is reproduced below: "57. We, however, wish to emphasize one point, and that is that inasmuch as the occupation of education is, in a sense, regarded as charitable, the Government can provide regulations that will ensure excellence in education, while forbidding the charging of capitation fee and profiteering by the institution. Since the object of setting up an educational institution is by definition "charitable", it is clear that an educational institution cannot charge such a fee as is not required for the purpose of fulfilling that object. To put it differently, in the establishment of an educational institution, the object should not be to make a profit, inasmuch as education is essentially charitable in nature. There can, however, be a reasonable revenue surplus, which may be generated by the educational institution for the purpose of development of education and expansion of the institution." In paragraph 69 of the judgment, while dealing with this issue, this Court again observed that an appropriate machinery can be devised by the....
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....ged. In paragraph 145, the suggestion for post-audit or checks is rejected if the institutions adopt their own admission procedure and fee structure since this Court was of the view that fixation of fees should be regulated and controlled at the initial stage itself. It is in the aforesaid context that we have to determine the question as to whether the provisions relating to fixation of fee are violative of Article 19(1)(g) of the Constitution or they are regulatory in nature, which is permissible in view of clause (6) of Article 19 of the Constitution, keeping in mind that the Government has the power to regulate the fixation of fee in the interest of preventing profiteering and further that fixation of fee has to be regulated and controlled at the initial stage itself. When we scan through Section 9 of the Act, 2007 from the aforesaid angle, we find that the parameters which are laid down therein that has to be kept in mind while fixing the fee are in fact the one which have been enunciated in the judgments of this Court referred to above. It is also significant to note that the Committee which is set up for this purpose, namely, Admission and Fee Regulatory Committee, is disch....
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....tion with regard to the fees that it proposes to charge from the candidates seeking admission taking into account all the cost components, the reasonable surplus required for growth and development and other factors relevant to impart professional education as mentioned in Section 9 (1) of the Act, 2007 and the function of the Committee is only to find out, after giving due opportunity of being heard to the institution as provided in Section 9 (2) of the Act, 2007 whether the fees proposed by the institution to be charged to the student are based on the factors mentioned in Section 9 (1) of the Act, 2007 and did not amount to profiteering and commercialisation of the education. The word "determination" has been defined in Black's Law Dictionary, Eighth Edition, to mean a final decision by the Court or an administrative agency. The Committee, therefore, while determining the fee only gives the final approval to the proposed fee to be charged after being satisfied that it was based on the factors mentioned in Section 9 (1) of the Act, 2007 and there was no profiteering or commercialisation of education. The expression 'fixation of fees' in Section 4 (1) of the Act, 2007 m....
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....issions to meritorious students. In paragraphs 32 to 39 of the Reply filed by the State Government in the High Court of Madhya Pradesh, it was duly mentioned that numerous complaints were being received with regard to the CET being conducted by the Association of the Private Colleges. It is worthwhile to note that even for the period after the coming in force of the State laws, under the interim order dated May 27, 2009[21] passed by this Court where the private colleges were allowed to continue holding their examinations for 50% seats, excluding the NRI seats, a large number of complaints were received by the State. If a particular law is necessitated to curb malpractices and/or ills that have prevailed in a system, Legislature is fully competent to enact such laws, provided it meets the test of constitutionality, which it does in the instant case. No doubt, we have entered into an era of liberalization of economy, famously termed as 'globalization' as well. In such an economy, private players are undoubtedly given much more freedom in economic activities, as the recognition has drawn to the realities that the economic activities, including profession, business, occupatio....
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....the key industries like Aviation, Insurance, Railways, Electricity/Power, Telecommunication, etc. were monopolized by the State. License/permit raj prevailed during this period with strict control of the Government even in respect of those industries where private sectors were allowed to operate. However, Indian economy experienced major policy changes in early 90s on LPG Model, i.e., Liberalization, Privatization and Globalization. With the onset of reforms to liberalize the Indian economy, in July 1991, a new chapter has dawned for India. This period of economic transition has had a tremendous impact on the overall economic development of almost all major sectors of the economy. When we have liberal economy which is regulated by the market forces (that is why it is also termed as market economy), prices of goods and services in such an economy are determined in a free price system set up by supply and demand. This is often contrasted with a planned economy in which a Central Government determines the price of goods and services using a fixed price system. Market economies are also contrasted with mixed economy where the price system is not entirely free, but under some Governmen....
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.... the purpose of education is to bring about social transformation and thereby a better society as it aims at creating better human resource which would contribute to the socie-economic and political upliftment of the nation. The concept of welfare of the society would apply more vigorously in the field of education. Even otherwise, for economist, education as an economic activity, favourably compared to those of other economic concerns like agriculture and industry, has its own inputs and outputs; and is thus analyzed in terms of the basic economic tools like the laws of return, principle of equimarginal utility and the public finance. Guided by these principles, the State is supposed to invest in education up to a point where the socio-economic returns to education equal to those from other State expenditures, whereas the individual is guided in his decision to pay for a type of education by the possibility of returns accruable to him. All these considerations make out a case for setting up of a stable Regulatory mechanism. In this sense, when imparting of quality education to cross-section of the society, particularly, the weaker section and when such private educational institu....
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.... the ratio of the judgment of this Court in P.A. Inamdar, the Parliament amended the Constitution and introduced Article 15(5) . The said Article 15(5) reads as under: "15(5) Nothing in this article or in sub-clause (g)of clause (1) of Article 19 shall prevent the state from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause(1) of Article30. It is submitted that the caste based reservation policy or a social engineering policy of the State Government cannot be run on the shoulders of the private institutions which enjoy fundamental rights under Part III of the Constitution. It is submitted that the extent and the manner in which the right can be regulated has been set out under Article 19(6) of the Constitution. It is submitted that in P.A. Inamdar, this Court has held that the provision for reservation in private insti....
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....t find any merit in the challenge to the reservation of seats for SC/ST and OBC etc. which is in consonance with Article 15(5) of the Constitution. As is evident from the facts mentioned by the State of Madhya Pradesh in its reply filed in IA No. 83 of 2015, the Association of Private Colleges has failed to hold their CETs in a fair, transparent and rational manner. The accountability and transparency in State actions is much higher than in private actions. It is needless to say that the incidents of corruption in the State machinery were brought in the public eye immediately and have been addressed expeditiously. The same could never have been done in case of private actions. Even on a keel of comparative efficiency, it is more than evident that the State process is far more transparent and fair than one that is devised by the private colleges which have no mechanism of any checks and balances. The State agencies are subject to the Right to Information Act, Audit, State Legislature, Anti-Corruption agencies, Lokayukta, etc. The very object of setting up institutions for the State is a welfare function, for the purpose of excelling in educational standards. On the other hand, the ....
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....ination of standards in institution of higher education or research as well as scientific and technical institutions. The words 'co-ordination and determination of standards' would mean laying down the said standards. Thus, when it comes to prescribing the standards for such institutions of higher learning, exclusive domain is given to the Union. However, that would not include conducting of examination, etc. and admission of students to such institutions or prescribing the fee in these institutions of higher education, etc. In fact, such co-ordination and determination of standards, insofar as medical education is concerned, is achieved by Parliamentary legislation in the form of Medical Council of India Act, 1956 and by creating the statutory body like Medical Council of India (for short, 'MCI') therein. The functions that are assigned to MCI include within its sweep determination of standards in a medical institution as well as co-ordination of standards and that of educational institutions. When it comes to regulating 'education' as such, which includes even medical education as well as universities (which are imparting higher education), that is prescri....
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....inimum standards of education at various levels, particularly at the level of research institutions, higher education and technical education institutions. As such, while balancing the needs of States to impart education as per the needs and requirements of local and regional levels, it was essential to lay down a uniform minimum standard for the nation. Consequently, the Constitution makers provided for Entry 66 in List I with the objective of maintaining uniform standards of education in fields of research, higher education and technical education. The second/other aspect of Education is with regard to the implementation of the standards of education determined by the Parliament, and the regulation of the complete activity of Education. This activity necessarily entails the application of the standards determined by the Parliament in all educational institutions in accordance with the local and regional needs. Thus, while Entry 66 List I dealt with determination and coordination of standards, on the other hand, the original Entry 11 of List II granted the States the exclusive power to legislate with respect to all other aspects of education, except the determination of minimum s....
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....s covered by Entry 66 of List I could apply only post admissions was overruled in Dr. Preeti Srivastava, it was not held that the entire gamut of admissions was covered by List I as wrongly assumed in Bharti Vidyapeeth. We do not find any ground for holding that Dr. Preeti Srivastava excludes the role of states altogether from admissions. Thus, observations in Bharti Vidyapeeth that entire gamut of admissions was covered by Entry 66 of List I cannot be upheld and overruled to that extent. No doubt, Entry 25 of List III is subject to Entry 66 List I, it is not possible to exclude the entire gamut of admissions from Entry 25 of List III. However, exercise of any power under Entry 25 of List III has to be subject to a central law referable to Entry 25. In view of the above, there was no violation of right of autonomy of the educational institutions in the CET being conducted by the State or an agency nominated by the State or in fixing fee. The right of a State to do so is subject to a central law. Once the notifications under the Central statutes for conducting the CET called 'NEET' become operative, it will be a matter between the States and the Union, which will have to b....
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.... of medical education was at its lowest ebb, the right type of health professionals were not able to meet the basic health need of the country. Products coming out of medical colleges are ill- prepared to serve in poor resource settings like Primary Health Centre and even at the district level. The medical graduates lacked competence in performing basic health care tasks. Instances of unethical practices continued to grow. The MCI was not able to spearhead any serious reforms in medical education. The MCI neither represented the professional excellence nor its ethos. Nominees of Central Government and State Governments were also from corporate private hospitals which are highly commercialized. They were also found to be violating value framework and indulging in unethical practices such as carrying out unnecessary diagnostics tests and surgical procedures in order to extract money from hapless patients. The electoral processes brought about a lot of compromises and tend to attract professionals who may not be best fitted for the regulatory body. Regulators of highest standards of professional integrity and excellence could be appointed through an independent selection process. The ....
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....tion of the medical graduates and post-graduates; (vi) failure to put in place a robust quality assurance mechanism when a fresh graduate enters the system and starts practicing; (vii) very little oversight to PG medical education leading to huge variations in standards; (viii) heavy focus on nitty-gritty of infrastructure and human staff during inspections but no substantial evaluation of quality of teaching, training and imparting of skills; (ix) abysmal doctor-population ratio; (x) failure to create a transparent system of medical college inspections and grant of recognition or de-recognition; (xi) failure to guide setting up of medical college in the country as per need, resulting in geographical mal-distribution of medical colleges with clustering in some states and absence in several other states and the disparity in healthcare services across states; (xii) acute shortage of medical teachers; (xiii) failure to oversee and guide the Continuing Medical Education in the country, leaving this important task in the hands of the commercial private industry; (xiv) failure to instill respect for a professional code of ethics in the medical professional and take disc....
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....ng medical education of the 21st Century are truly gigantic and cannot be addressed with an ossified and opaque body like MCI. Transformation will happen only if we change the innards of the system. (Para 13.4) Game changer reforms of transformational nature are therefore the need of the hour and they need to be carried out urgently and immediately. Because, if revamping of the regulatory structure is delayed any further on any grounds including political expediency, it will be too late as too much momentum will have been built to offset attempts at reversing the direction later, with the result that our medical education system will fall into a bottomless pit and the country will have to suffer great social, political and financial costs. (Para 13.5) Keeping all these facts in mind, the Committee is convinced that the much needed reforms will have to be led by the Central Government. The MCI can no longer be entrusted with that responsibility in view of its massive failures. The people of India will not be well-served by letting the modus operandi of MCI continue unaltered to the detriment of medical education and decay of health system. The Government must therefore fulfill its c....
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....ntrenched vested interests who will try to stall ad derail the entire exercise. But if the medical education system has to be saved from total collapse, the Government can no longer look the other way and has to exercise its constitutional authority and take decisive and exemplary action to restructure and revamp India's regulatory system of medical education and practice. The Committee, therefore, exhorts the Ministry of Health, and Family Welfare to implement the recommendations made by it in this report immediately and bring a new comprehensive Bill in Parliament for this purpose at the earliest. (Para 13.9) " In view of the above, while the Expert Committee Report mentioned above is yet to be acted upon by the Government, we do not express any view on its contents. We direct the Central Government to consider and take further appropriate action in the matter at the earliest. At the same time, we do feel that pending consideration at appropriate executive or legislature level, an Oversight Committee needs to be set in place in exercise of powers of this Court under Article 142 of the Constitution to oversee the functioning of the MCI and all other matters considered by the Parl....
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....rivate Dental and Medical Colleges of State of Madhya Pradesh has filed Writ Petition No.1975 of 2008 challenging the provisions of Act 2007 as unconstitutional beyond legislative competence of the State Legislature and therefore without jurisdiction. In W.P. No.9496 of 2008, the association has also challenged the Admission Rule 2008 framed under Act 2007 as ultra vires the Constitution and M.P. Act 2007. The State Government issued orders on 28.02.2009 that the State Government shall conduct the Common Entrance Test (CET) for admission to the post-graduate medical and dental courses for the academic session 2008-2009 through Madhya Pradesh Professional Examination Board (VYAPAM). The Association has challenged the order dated 28.02.2009 authorizing VYAPAM to conduct the CET for admission to post-graduate medical and dental courses as arbitrary and contrary to the law laid down in T.M.A. Pai Foundation and P.A. Inamdar cases in W.P. No.2764 of 2009. Madhya Pradesh High Court by the common impugned judgment upheld the validity of the provisions of the Act and also the Rules and dismissed all the Writ Petitions. Rule 10(2)(iii) of 2009 Rules which prescribed that the candidate shoul....
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....tes Articles 14 and 15(1) of the Constitution of India. 4. Challenge to Section 8 providing for reservation: Section 8 of Act 2007 provides for reservation of seats in admission in private unaided professional educational institutions for the persons belonging to Scheduled Castes and Scheduled Tribes and other backward classes as may be prescribed by the State Government. This reservation is pursuant to the Ninety Third Constitution Amendment inserting Article 15(5) of the Constitution. In para (41) of the impugned judgment, it is observed that Ninety Third Constitution Amendment inserting Article 15(5) of the Constitution has been challenged by some of the petitioners in separate writ petitions and therefore no arguments was advanced in the writ petitions challenging the views of Act 2007. It is, therefore, not necessary to go into the vires of Section 8 of Act 2007. 5. Re-contention: Lack of legislative competence of the State to enact Act 2007 as the field is occupied by entry 66 of Union List: It is to be pointed out that the issue of legislative competence was neither raised nor argued before the High Court as is apparent from the lack of discussion on this issue of constitu....
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....ates to the detriment of national progress and that the power of the State Legislature must be so exercised as not to directly encroach upon the power of Union under the present entry. Though the field of legislation available to the Parliament and the States has been definite as stated above, more often, a certain amount of overlapping might become unavoidable; the legislation which thus overlaps would not however be rendered invalid, if, in 'pith and substance' the legislation is on the subject reserved in favour of that Legislature. In order to enable smooth functioning of federal structure of our Constitution, 'incidental encroachment' into or 'overlapping' of the field covered by one of the entries in the other Lists is permissible so long as it does not transgress the limit of legislation earmarked for the legislature making the law, judged by the standards fixed by the doctrine of 'pith and substance'. 7. In Dr. Preeti Srivastava and Anr. v. State of M.P. and Ors. (1999) 7 SCC 120, it was held that the word 'education' under entry 25 of Schedule VII List III is of wide import. It would include in its fold the taught, the teacher, the textbook and also training as practical ....
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.... official characterization of an expression and 'co-ordination' means through which determined norms or standards are kept in harmony with each other. 10. In Concise Oxford English Dictionary (Tenth Edition, Revised) the meaning of the word 'standard' is given as:- "a level of quality or attainment, a required or agreed level of quality or attainment (in elementary schools) a grade of proficiency tested by examination, something used as a measure, norm or model in comparative evaluations." Black's Law Dictionary (10th Edn) defines 'standard' as:- "a model accepted as correct by custom, consent, or authority; a criterion for measuring acceptability, quality or accuracy." Ramanatha Aiyar's Law Lexicon 3rd Edn. also defines 'standard' as:- "something that is established by authority, customs or general consent as a model or example to be followed [s.18(4), expln, Beedi and Cigar Workers (Conditions of Employment) Act (32 of 1966)] Specifications approved and prescribed by a recognized body for repeated and continuous application. Standard usually prescribe a basic though higher than average level of quality." 11. The legislative history of entry 66, Union List might lay down a....
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....e or otherwise of standards in institutions for higher education, scientific and technical institutions and institutions for research" be left in the domain of the Union, so as to avoid unnecessary interference with the State's power to legislate in relation to 'education'. While highlighting the importance of 'education' being a State subject, Shri V.S. Sarwate observed as under:- "The modern trend in education is that education should be adapted to each individual so that the personality of each individual might be developed to its fullest extent, of course consistently with the personalities of other individuals. If this is the desideratum in education, then there must be full scope for variety. There should not be any uniformity in education as uniformity would kill the growth of the individual. Nobody can say that there should be a standard of intellectual weights and measures for human beings. Therefore I think that education should be left entirely to the provinces." Shri V.S. Sarwate went to oppose introduction of entry 66 of List I (in the present form) by observing that the Union would not be competent enough to lay down standards for technical education such as that of....
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....nt entry 66 of the Union List; no doubt the field of legislation is of very wide import and determination of standards in institutions for higher education. In the federal structure of India, as there are many States, it is for the Union to co-ordinate between the States to cause them to work in the field of higher education in their respective States as per the standards determined by the Union. Entry 25 in the Concurrent List is available both to the Centre and the States. However, power of the State is subject to the provisions of entries 63, 64, 65, and 66 of Union List; while the State is competent to legislate on the education including technical education, medical education and universities, it should be as per the standards set by the Union. 16. The words 'co-ordination' and 'determination of the standards in higher education' are the preserve of the Parliament and are exclusively covered by entry 66 of Union List. The word 'co-ordination' means harmonisation with a view to forge a uniform pattern for concerted action. The term 'fixing of standards of institutions for higher education' is for the purpose of harmonising co-ordination of the various institutions for higher e....
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.... would continue to fulfill its responsibilities. This is also discernible from the amendment to entry 25 of Concurrent List. Had the intention been to keep higher education solely in the hands of the Union, only the omission of entry 11 from State List would have sufficed. The legislative intent was to allow the Union to set the standards through its organs, which the States would facilitate. 18. Thus, what emerges is that under List I, responsibility of the Union is with respect to formulation and co-ordination of standards for higher education institutions. "Determination of Standard in Higher Education" implies that the Parliament is empowered to prescribe such norms to maintain quality in the institutions for higher education. The expression 'co-ordination and determination of standards in higher education' means that it is for the Parliament to take concerted action towards maintaining the standards. The reason for empowering the Central Legislature with entry 66 was to ensure that the standards of higher education were not lowered at the hands of a particular State to the detriment of the national progress and that the power exercised by the State did not directly encroach u....
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....g as to wipe out or appreciably abridge the central field, then it might be a ground for holding that the State law was a colourable exercise of power and in pith and substance it fell not under the State entry, but under the Union entry. 21. In R. Chitralekha & Anr. v. State of Mysore & Ors. (1964) 6 SCR 368, State Government informed the Director of Technical Education that it had been decided to fix 25% of the maximum marks for the examination in optional subjects as interview marks and on that basis, selections were made for admission to Engineering and Medical Colleges. Considering the impact of State law providing for such standards it was held that the State law prescribing a higher percentage of marks for extra-curricular activities in the matter of admission to colleges cannot be said to be encroaching on the field covered by entry 66 of Union List and that the State Government would be within its rights to prescribe qualifications for admission to colleges so long as its action does not contravene any other law. 22. It was observed in the case of Government of Andhra Pradesh & Anr. v. Medwin Educational Society & Ors. (2004) 1 SCC 86, that "keeping in view the practical....
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.... Article 254, the State legislation being repugnant to the Central legislation, the same would be inoperative. (iv) Whether the State law encroaches upon Entry 66 of the Union List or is repugnant to the law made by the Centre under Entry 25 of the Concurrent List, will have to be determined by the examination of the two laws and will depend upon the facts of each case. (v) When there are more applicants than the available situations/seats, the State authority is not prevented from laying down higher standards or qualifications than those laid down by the Centre or the Central authority to short-list the applicants. When the State authority does so, it does not encroach upon Entry 66 of the Union List or make a law which is repugnant to the Central law. (vi) However, when the situations/seats are available and the State authorities deny an applicant the same on the ground that the applicant is not qualified according to its standards or qualifications, as the case may be, although the applicant satisfies the standards or qualifications laid down by the Central law, they act unconstitutionally. So also when the State authorities de-recognise or disaffiliate an institution for ....
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.... rules for admission are covered only by Entry 25 of List III. Norms of admission can have a direct impact on the standards of education. Of course, there can be rules for admission which are consistent with or do not affect adversely the standards of education prescribed by the Union in exercise of powers under Entry 66 of List I. For example, a State may, for admission to the postgraduate medical courses, lay down qualifications in addition to those prescribed under Entry 66 of List I. This would be consistent with promoting higher standards for admission to the higher educational courses. But any lowering of the norms laid down can and does have an adverse effect on the standards of education in the institutes of higher education. Standards of education in an institution or college depend on various factors. Some of these are: (1) the calibre of the teaching staff; (2) a proper syllabus designed to achieve a high level of education in the given span of time; (3) the student-teacher ratio; (4) the ratio between the students and the hospital beds available to each student; (5) the calibre of the students admitted to the institution; (6) equipment and laboratory facilitie....
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....seats remained unfilled. They contended that whenever a large number of seats remained unfilled, on account of non-availability of adequate candidates, paras 41(v) and (vi) of Adhiyaman (1995) 4 SCC 104 would come into play and automatically the lower minimum standards prescribed by AICTE alone would apply. This contention is liable to be rejected in view of the principles laid down in the Constitution Bench decision in Preeti Srivastava (Dr.)(1999) 7 SCC 120 and the decision of the larger Bench in S.V. Bratheep (2004) 4 SCC 513 which explains the observations in Adhiyaman (1995) 4 SCC 104 in the correct perspective. We summarise below the position, emerging from these decisions: (i) While prescribing the eligibility criteria for admission to institutions of higher education, the State/University cannot adversely affect the standards laid down by the central body/AICTE. The term "adversely affect the standards" refers to lowering of the norms laid down by the central body/AICTE. Prescribing higher standards for admission by laying down qualifications in addition to or higher than those prescribed by AICTE, consistent with the object of promoting higher standards and excellence in....
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....marks in the examination by candidates is neither an encroachment upon regulation made under the Medical Council Act nor any infringement of Union's power provided in entry 66 of Union List. It was held as under:- "...The State Government by laying down the eligibility qualification namely the obtaining of certain minimum marks in the MBBS Examination by the candidates has not in any way encroached upon the regulations made under the Indian Medical Council Act nor does it infringe the Central power provided in Entry 66 of List I of the Seventh Schedule to the Constitution. The order merely provides an additional eligibility qualification." 27. Observing that the scope of the relevant entries in the Seventh Schedule of the Constitution has to be understood in the manner as stated in Dr. Preeti Srivastava case, in State of T.N. and Anr. v. S.V. Bratheep (minor) and Ors. (2004) 4 SCC 513, this Court held as under:- 9. Entry 25 of List III and Entry 66 of List I have to be read together and it cannot be read in such a manner as to form an exclusivity in the matter of admission but if certain prescription of standards have been made pursuant to Entry 66 of List I, then those standard....
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....ptions by the State Government in addition to those of AICTE in the present case are such which are not attainable or which are not within the reach of the candidates who seek admission for engineering colleges. It is not a very high percentage of marks that has been prescribed as minimum of 60% downwards, but definitely higher than the mere pass marks. Excellence in higher education is always insisted upon by a series of decisions of this Court including Dr Preeti Srivastava case (1999) 7 SCC 120. If higher minimum marks have been prescribed, it would certainly add to the excellence in the matter of admission of the students in higher education. 28. Another argument that has been putforth is that the power to enact laws laying down process of admission in universities etc. vests in both Central and State Governments under entry 25 of the concurrent list only. Under entry 25 of concurrent list and erstwhile entry 11 of State List, the State Government has enacted various legislations that inter alia regulate admission process in various institutions. For instance, Jawaharlal Nehru Krishi Vishwavidyalaya Adhiniyam, Rajiv Gandhi Prodyogiki Vishwavidyalaya Adhiniyam, Rashtriya Vidhi ....
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....treams. 31. Whether the impugned legislation imposes reasonable restriction under Article 19(6) of the Constitution of India on the fundamental rights of the Unaided Private Educational Institutions in its "Right to Occupation" under Article 19(1) (g): In T.M.A. Pai case, eleven-Judge Bench in paras (20) and (25) held that running of an educational institution was an occupation within the meaning of Article 19(1)(g) and that the right to establish and administer an educational institution is guaranteed to all the citizens under Article 19(1)(g) of the Constitution of India and to minorities specifically under Articles 26 and 30 of the Constitution of India. These rights to establish an educational institution also stand affirmed in P.A. Inamdar. 32. Object of the Act 2007 is "...to provide for the regulation of admission and fixation of fee in private professional educational institutions in the State of Madhya Pradesh...". Section 6 of the Act 2007 provides that admission to sanctioned intake in private unaided professional educational institution shall be on the basis of common entrance test in such manner as may be prescribed by the State Government. In Section 3(d) 'common en....
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....der Article 19(1)(g) has its own limitations. The liberty of an individual to do as he pleases is not absolute. It must yield to the common good. Absolute or unrestricted individual rights do not and cannot exist in any modern State. There is no protection of the rights themselves unless there is a measure of control and regulation of the rights of each individual in the interests of all." 35. M.P. Act 2007 was enacted for "the regulation of admission and fixation of fee in private professional educational institutions in the State of Madhya Pradesh and to provide for reservation of seats to persons belonging to the Scheduled Castes, the Scheduled Tribes and Other Backward Classes". Act 2007 is thus in furtherance of the constitutional obligation imposed upon the State to ensure equality of opportunity in admission to meritorious candidates who seek to pursue the medical education. Act 2007 enables the State to conduct common entrance test in the interest of securing higher standards of medical education so that quality doctors are trained leading to advancement in health sector of the nation. Point to be considered is whether the common entrance test to be conducted by the State ....
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....public. (3) In order to judge the reasonableness of the restrictions, no abstract or general pattern or a fixed principle can be laid down so as to be of universal application and the same will vary from case to case as also with regard to changing conditions, values of human life, social philosophy of the Constitution, prevailing conditions and the surrounding circumstances. (4) A just balance has to be struck between the restrictions imposed and the social control envisaged by clause (6) of Article 19. (5) Prevailing social values as also social needs which are intended to be satisfied by restrictions have to be borne in mind. (See: State of U.P. v. Kaushailiya AIR 1964 SC 416.) (6) There must be a direct and proximate nexus or a reasonable connection between the restrictions imposed and the object sought to be achieved. If there is a direct nexus between the restrictions and the object of the Act, then a strong presumption in favour of the constitutionality of the Act will naturally arise. (See: Kavalappara Kottarathil Kochuni v. States of Madras and Kerala AIR 1960 SC 1080; O.K. Ghosh v. E.X. Joseph AIR 1963 SC 812.)" A similar view was also expressed in State of Madras v. V.G.....
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....titution Bench was constituted in Islamic Academy of Education wherein this Court reiterated that admission to professional colleges should be based on merit by a common entrance test conducted by government agencies. Furthermore, in exercise of power under Article 142, this Court directed setting up of two committees headed by a retired High Court Judge nominated by the Chief Justice of the State to oversee the entrance test conducted by the association and also to approve the fee structure proposed by the institute. In paras (19) and (20) of the said judgment, it was held as under:- "19. We now direct that the respective State Governments do appoint a permanent Committee which will ensure that the tests conducted by the association of colleges is fair and transparent. For each State a separate Committee shall be formed. The Committee would be headed by a retired Judge of the High Court. The Judge is to be nominated by the Chief Justice of that State.....The Committee shall have powers to oversee the tests to be conducted by the association. This would include the power to call for the proposed question paper(s), to know the names of the paper-setters and examiners and to check ....
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....han one State may join together and hold a common entrance test or the State may itself or through an agency arrange for holding of such test. Out of such common merit list the successful candidates can be identified and chosen for being allotted to different institutions depending on the courses of study offered, the number of seats, the kind of minority to which the institution belongs and other relevant factors. Such an agency conducting the common entrance test ("CET" for short) must be one enjoying utmost credibility and expertise in the matter. This would better ensure the fulfilment of twin objects of transparency and merit. CET is necessary in the interest of achieving the said objectives and also for saving the student community from harassment and exploitation. Holding of such common entrance test followed by centralised counselling or, in other words, single-window system regulating admissions does not cause any dent in the right of minority unaided educational institutions to admit students of their choice. Such choice can be exercised from out of the list of successful candidates prepared at CET without altering the order of merit inter se of the students so chosen." ....
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.... procedure and fee structure shall continue to exist, but only as a temporary measure and an inevitable passing phase until the Central Government or the State Governments are able to devise a suitable mechanism and appoint a competent authority in consonance with the observations made hereinabove. Needless to say, any decision taken by such Committees and by the Central or the State Governments, shall be open to judicial review in accordance with the settled parameters for the exercise of such jurisdiction." 44. In para (155) of P.A. Inamdar, as quoted above, State Governments have been directed to frame a detailed well-thought out legislation on the subject with a further observation that any decision taken by the Committees and by the Central or State Governments shall be open to judicial review in accordance with the settled parameters for the exercise of such jurisdiction. The impugned legislation-Act 2007 has thus been enacted in compliance with the directions issued by this Court in T.M.A. Pai, Islamic Academy and P.A. Inamdar with a view to ensure fairness and transparency in the admissions process. 45. Common entrance test-single window system which regulates admission t....
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....both for government colleges and for private unaided educational institutions to ensure efficacy, fairness and public confidence. As rightly contended by Mr. Purushaindra Kaurav, Addl. Advocate General for the State of Madhya Pradesh appearing for AFRC, a common entrance test conducted by the State is more advantageous viz.:- (i) having adhered to the time schedule as laid down in Mridul Dhar case (2005) 2 SCC 65; (ii) multiple centres of examination and counselling throughout the State and a single window system for admission; (iii) standard question papers, preservation of question papers and answer books, prevention of leakage of question papers and fair evaluation and (iv) minimal litigation. That apart, procedure for preparation of merit list, counselling and allotments to various colleges is subject to Right to Information Act and thus ensures fairness and transparency in the entire process. 48. Having regard to the prevailing conditions relating to admissions in private professional educational institutions in the State of Madhya Pradesh, the Legislature in its wisdom has taken the view that merit based admissions can be ensured only through a common entrance test followed ....
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....nd run institution, impart education, recruit staff, take disciplinary action, admit students, participate in fixation of fees is in no way being abridged by the impugned legislation; it remains intact. 50. While considering the reasonableness of the restriction, the court has to keep in mind the Directive Principles of State Policy: For deciding the constitutional validity of any statute or executive order or considering the reasonableness of a restriction cast by the law on the exercise of any fundamental right, the court has to keep in mind the Directive Principles of State Policy. A law or measure designed for promoting or having the effect of advancing directive principles is per se reasonable and in public interest. The State has a duty to balance the direct impact on the fundamental right of individuals as against the greater public or social interest. In State of Bombay and Anr. v. F.N. Balsara [1951] SCR 682, a Constitution Bench of this Court held that in judging the reasonableness of the restriction imposed on the fundamental right, one has to bear in mind the Directive Principles of State Policy set forth in Part IV of the Constitution, while examining the challenge to....
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....e realization requires interaction of many social and economic factors. In Rajasthan Pradesh Vaidya Samiti, Sardarshahar and another v. Union of India and others (2010) 12 SCC 609, this Court held that the citizens of this country have a right under Article 21 of the Constitution of India which includes the protection and safeguarding the health and life of public from mal-medical treatment. More recently in Centre for Public Interest Litigation v. Union of India (2013) 9 SCR 1103, again this Court has recognized that right to life under Article 21 includes right to health. 52. Maintenance and improvement of public health and to provide health care and medical services is the constitutional obligation of the State. To discharge this constitutional obligation, the State must have the doctors with professional excellence and commitment who are ready to give medical advice and services to the public at large. State can satisfactorily discharge its constitutional obligation only when the aspiring students enter into the profession based on merit. None of these lofty ideals can be achieved without having good and committed medical professionals. 53. Fundamental Rights of private unaid....
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....rwise. Contention of the appellants is that there is absolutely no material to show that private educational institutions were not able to ensure a fair, transparent and non- exploitative admission procedure and that the impugned legislation empowering the State or agency nominated by it to conduct common entrance test is in violation of the directions of this Court. In so far as this contention, High Court has observed thus:- "...Sufficient materials have been filed before us by the respondents to show that prior to the enactment of the Act 2007, this Court as well as the committee constituted as per the orders of the Supreme Court in Islamic Academy of Education (supra) had to enquire into complaints of mal-practice in admissions in private professional educational institutions and after finding the complaints to be true, directed the institutions to give admission to the aggrieved students in the next academic sessions and this would show that the private professional educational institutions were not able to ensure a fair, transparent and non-exploitative admission procedure before Act, 2007 was enacted...." 55. Our attention was drawn to the advertisement of DMAT 2006 for a....
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....ty (Annexure A-17 to I.A. 83/2015). The order affirming the fine is the subject matter of writ petitions pending before the High Court and I do not propose to go into the merits of this aspect. Suffice it to note that there are prima facie materials to indicate that the private unaided professional educational institutions have not passed triple test as laid down in P.A. Inamdar. In this factual background, it does not seem inappropriate on the part of the State to come up with the Act 2007 which lays down a mechanism for conducting common entrance test in order to ensure merit based admission in the private institutions. 57. Whether the provisions of Act 2007 regarding determination of fees are violative of 'right to occupation' of private educational institutions: As stated earlier, the object of Madhya Pradesh Act 2007 is to "provide for the regulation of admission and fixation of fee in private professional educational institutions in the State of Madhya Pradesh and to provide for reservation of seats to persons belonging to Scheduled Castes, the Scheduled Tribes and Other Backward Classes in professional educational institutions and the matters connected therewith or incident....
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....ose provisions "in substance empower the committee to be only satisfied that the fee proposed by a private professional educational institutions did not amount to profiteering or commercialization of education and was based on the factors mentioned in Section 9(1) of the Act 2007...". 60. Contention of the appellants is that Sections 4(1), 4(8) and Section 9 relating to fixation of fees in the Act 2007 are violative of their right to occupation" guaranteed under Article 19(1)(g) of the Constitution of India. It is submitted that when eleven-Judge Bench of this Court in T.M.A. Pai held that "...The decision on the fee to be charged must necessarily be left to the private educational institution that does not seek or is not dependent upon any funds from the Government.", then private institutions have an indefeasible right to fix their own fee structure and there is no occasion for the Government to enact such legislation empowering the committee to determine the fees to be charged. 61. Drawing our attention to para (39) of T.M.A. Pai, it has also been contended that T.M.A. Pai recognizes the importance of private unaided educational institutions by citing figures as to how numbers....
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....ons are a necessity becomes evident from the fact that the number of government-maintained professional colleges has more or less remained stationary, while more private institutions have been established. For example, in the State of Karnataka there are 19 medical colleges out of which there are only 4 government- maintained medical colleges. Similarly, out of 14 dental colleges in Karnataka, only one has been established by the Government, while in the same State, out of 51 engineering colleges, only 12 have been established by the Government. The aforesaid figures clearly indicate the important role played by private unaided educational institutions, both minority and non-minority, which cater to the needs of students seeking professional education." 65. Observing that education has been a business for a long time, in Modern School v. Union of India and Ors. (2004) 5 SCC 583, in paras (3) to (5), this Court has held as under:- "3. In modern times, all over the world, education is big business. On 18-6-1996, Professor G. Roberts, Chairman of the Committee of Vice- Chancellors and Principals commented: "The annual turnover of the higher education sector has now passed the GBP....
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....rder to expound the aforesaid position, in Islamic Academy of Education, the first question that came up for consideration was whether private unaided educational institutions are entitled to fix their own fee structure. This Court in order to harmonize the plea of private educational institutions to earn a reasonable surplus and with the aim of preventing commercialization of education, directed the State to set up a committee headed by a retired High Court Judge to approve the fee structure or propose some other fee which can be charged by the institute. In para (7) of Islamic Academy of Education this Court directed as under:- "7. ....we direct that in order to give effect to the judgment in T.M.A. Pai case the respective State Governments/concerned authority shall set up, in each State, a committee headed by a retired High Court Judge who shall be nominated by the Chief Justice of that State...... The Committee shall then decide whether the fees proposed by that institute are justified and are not profiteering or charging capitation fee. The Committee will be at liberty to approve the fee structure or to propose some other fee which can be charged by the institute. The fee fixe....