AI OCR 
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2020 (4) TMI 904
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....endran, Uma Prasuna Bachu, Rohit Rathi, Sheena Taqui, Bina Gupta, Kshitij Vaibhav, K.S.T. Thambi Pillai, Hitesh Kumar Sharma, Akhileshwar Jha, Miria Jasmin, Samrat Shinde, Sachin Patil, Anil Kumar Mishra, Idrish Mohammed, Supantha Sinha, A.K. Mishra, G.N. Reddy, T. Vijaya Bhaskar Reddy, A.P. Mayee, A. Rajarajan, Rupesh Kumar, Pankhuri Shrivastava, Rajeev Sharma, Neelam Sharma, V.N. Raghupathy, Manendra Pal Gupta, Md. Apzal Ansari, Amol Chitale, Pragya Baghel, P.V. Dinesh, Sindhu T.P., Bineesh K., Mukund P. Unny, Ashwini Kumar Singh, Advs., India Law, Sheffali Chaudhary, Vipasha Singh, Sushil Balwada, Ramesh Allanki, Syed Ahmad Naqvi, Savita Devi, N.V.R.S.S.S. Vara Prasad, Aruna Gupta, Ganni Krishna, R. Radha Krishna, Shilp Gupta, C.S.N. Mohan Rao, Anil Kumar Mishra-I, Shivaji M. Jadhav, Ashwarya Sinha, Ravindra Keshavrao Adsure, Dharmendra Kumar Sinha, Ramesh Babu M.R., Rakesh K. Sharma, Dushyant Parashar, Lakshmi Raman Singh, Udita Singh, Vivek Singh, A. Venayagam Balan, Alok Shukla, Advs., Arputham Aruna and Co., E.R. Kumar, Krishna Srinivasan, Geeti Aara, Udayaditya Banerjee, Sudipto Sircar, Bhav Ratab, Tanya Chaudhry, Raghav Bansal, Nitika Pandey, Advs., Parekh & Co., Ambhoj Ku....
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....nduct 'National Eligibility-cum-Entrance Test for admission to MBBS course. (ii) In order to be eligible for admission to MBBS course for a particular academic year, it shall be necessary for a candidate to obtain minimum of 50% (fifty percent) marks in each paper of National Eligibility-cum-Entrance Test held for the said academic year. However, in respect of candidates belonging to the Scheduled Castes, the Scheduled Tribes, and the Other Backward Classes, the minimum percentage shall be 40% (forty percent) in each paper, and in respect of candidates with locomotory disability of lower limbs, the minimum percentage marks shall be 45% (forty-five percent) in each paper of National Eligibility-cum-Entrance Test: Provided when sufficient number of candidates belonging to respective categories fail to secure minimum marks as prescribed in National Eligibility-cum-Entrance Test in any academic year for admission to MBBS course, the Central Government in consultation with the Medical Council of India may at its discretion lower the minimum marks required for admission to MBBS course for candidates belonging to respective categories and marks so lowered by the Central Government....
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....urses. 4. Similar notifications were issued by DCI providing for procedure for selection of candidates for MBBS Course and Post-graduate Course and also for BDS and MDS. Thus, National Eligibility-cum-Entrance Test (for short, 'the NEET') for admission to the MBBS course and the Post-graduate course and similarly for BDS and MDS came to be introduced. Now the statutory provisions Under Section 10D of the Act of 1956 providing for uniform entrance examination for undergraduate and post-graduate level which came into force on 24.5.2016. Section 10D is extracted hereunder: 10D. Uniform entrance examination for undergraduate and post-graduate level.-- There shall be conducted a uniform entrance examination to all medical educational institutions at the undergraduate level and post-graduate level through such designated authority in Hindi, English and such other languages and in such manner as may be prescribed and the designated authority shall ensure the conduct of uniform entrance examination in the aforesaid manner: Provided that notwithstanding any judgment or order of any court, the provisions of this Section shall not apply, in relation to the uniform entrance examin....
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.... In Chapter II, Clause 5 under the heading "Procedure for selection to MBBS" has been substituted by MCI in 2017 as under: 7. In Chapter-II, Clause 5 under the heading "Procedure for selection to MBBS course shall be as follows" shall be substituted as under: Procedure for selection to MBBS course shall be as follows: (1) There shall be a uniform entrance examination to all medical educational institutions at the under graduate level namely 'National Eligibility-cum-Entrance Test for admission to MBBS course in each academic year and shall be conducted under overall supervision of the Ministry of Health & Family Welfare, Government of India. (2) The "designated authority" to conduct the 'National Eligibility-Cum-Entrance Test' shall be the Central Board of Secondary Education or any other body/organization so designated by the Ministry of Health & Family Welfare, Government of India, in consultation with the Medical Council of India. (3) The language and manner of conducting the 'National Eligibility-Cum-Entrance Test' shall be determined by the "designated authority" in consultation with the Medical Council of India and the Ministry of Health and Fam....
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....th. The authority/institution which grants admission to any student in contravention/violation of the Regulations and/or the judgments passed by the Hon'ble Supreme Court, shall also be liable to face such action as may be prescribed by the Council, including surrender of seats equivalent to the extent of such admission made from its sanctioned intake capacity for the succeeding academic year/years. (8) All admission to MBBS course within the respective categories shall be based solely on the marks obtained in the 'National Eligibility-Cum-Entrance Test. 6. Initially, the matters filed in 2012-2013 were heard by a Bench of three Judges, and the matters were decided vide judgment and order dated 18.7.2013. As per the majority opinion, the petitions were allowed. The notifications issued by MCI and DCI providing for NEET were quashed. However, the admissions, which were made, were not interfered with. Review petitions were filed, which were entertained and were ultimately allowed on 11.4.2016, and judgment dated 18.7.2013 was recalled. 7. In Writ Petition (C) No. 443 of 2016, prayer has been made to protect the rights of the Petitioner-institutions guaranteed Under Articl....
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....er to compel an unaided minority institution to admit students through a single centralized national examination such as NEET. The unaided minority professional colleges have the fundamental rights to choose the method and manner in which to admit its students, subject to satisfying the triple test of having a fair, transparent, and non-exploitative process. 11. It was also argued on behalf of Petitioners that they have a time-tested admission procedure without any complaints. Their process is fair and transparent, and they have a fundamental right to protect autonomy and reputation by continuing to admit students using their admission process. The NEET cannot be the only parameter to determine the merit of a student. Some of the institutions are providing best medical professional by having their procedure for admission. They have fundamental rights Under Articles 19(1)(g) and 30(1) of the Constitution to conduct and manage the affairs of the institution. The State, while imposing reasonable restrictions, can fix the threshold criterion of merit, but cannot restrict the Petitioners from having any additional criteria of merit over and above the threshold fixed by the State. The r....
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.... departments. There are complaints of lack of clinical competence among students admitted to speciality courses like general medicine. 14. The Petitioners further submitted that they have a fundamental right to admit students of their own choice Under Article 30 of the Constitution. It is submitted that the admission procedure adopted by them passes the triple test, i.e., fair, transparent, and non-exploitative. Various orders were passed by this Court recognising fair method adopted in individual institutions while admitting students through their admission procedure as apparent from interim orders passed in the years 1993, 1994, 1995, and 1998. 15. This Court on 28.4.2016 passed an order in Sankalp Charitable Trust and Anr. v. Union of India and Ors., (Writ Petition (C) No. 261 of 2016), in which it was clarified that order passed in the said matter shall not affect the hearing of the petitions. Most of petitions remained pending after recall of the order earlier passed by this Court. As per Appellants, the ratio laid down in Modern Dental College and Research Centre and Ors. v. State of Madhya Pradesh and Ors., (2016) 7 SCC 353, is not applicable. While deciding the said case,....
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....nce examination could not be introduced by way of subordinate legislation and under the Act of 1956 and MCI had no power to conduct the said examination. After the introduction of Section 10D, both the said lacunas have been plugged. The introduction of NEET is constitutionally valid. In Modern Dental College and Research Centre (supra), the Court considered the question of conduct of examination by private medical colleges in the State of Madhya Pradesh for admitting students in their colleges. In State of Madhya Pradesh v. Jainarayan Chouksey and Ors., (2016) 9 SCC 412, while deciding the contempt petition it was observed that judgment dated 2.5.2016 passed in the case of Modern Dental College and Research Centre (supra), held that admission should be made through a centralised procedure to be conducted by the State Government. The Court again in the State of Maharashtra v. D.Y. Patil Vidyapeeth and Ors., (2016) 9 SCC 401, decided on 28.9.2016 reiterated that the decision in Modern Dental College and Research Centre (supra) makes it unequivocally clear that centralised counselling is an adjunct and part of the uniform common entrance test. The notifications were also challenged b....
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....hus stated: The gist of the right of administration of a school is the power of appointment, control, and dismissal of teachers and other staff. But under the said Bill such power of management is practically taken away. Thus the manager must submit annual statements (Clause 5). The fixed assets of the aided schools are frozen and cannot be dealt with except with the permission of the authorised officer (Clause 6). No educational agency of an aided school can appoint a manager of its choice and the manager is completely under the control of the authorised officer, for he must keep accounts in the manner he is told to do and to give periodical inspection of them and on the closure of the school the accounts must be made over to the authorised officer (Clause 7). All fees etc. collected will have to be made over to the Government (Clause 8(3)). Government will take up the task of paying the teachers and the non-teaching staff (Clause 9). Government will prescribe the qualification of teachers (Clause 10). The school authorities cannot appoint a single teacher of their choice, but must appoint persons out of the panel settled by the Public Service Commission (Clause 11). The school au....
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....nment is in reality confiscating the school fund and taking away the prestige of the school, for none will care for the school authority. Likewise Clause 11 takes away an obvious item of management, for the manager cannot appoint any teacher at all except out of the panel to be prepared by the Public Service Commission which, apart from the question of its power of taking up such duties, may not be qualified at all to select teachers who will be acceptable to religious denominations and in particular Sub-clause (2) of that Clause is objectionable for it thrusts upon educational institutions of religious minorities teachers of Scheduled Castes who may have no knowledge of the tenets of their religion and may be otherwise weak educationally. Power of dismissal, removal, reduction in rank, or suspension is an index of the right of management, and that is taken away by Clause 12(4). These are, no doubt, serious inroads on the right of administration and appear perilously near violating that right. But considering that those provisions are applicable to all educational institutions and that the impugned parts of Clauses 9, 11 and 12 are designed to give protection and security to the il....
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....f reasonableness and that it is regulative of the educational character of the institution and is conducive to making the institution a capable vehicle of education for the minority community or other persons who resort to it. In Rev. Father W. Proost and Ors. v. State of Bihar and Ors. AIR 1969 SC 465, the Court observed thus: 8. In our opinion, the width of Article 30(1) cannot be cut down by introducing in it considerations on which Article 29(1) is based. The latter Article is a general protection which is given to minorities to conserve their language, script, or culture. The former is a special right to minorities to establish educational institutions of their choice. This choice is not limited to institution seeking to conserve language, script, or culture, and the choice is not taken away if the minority community having established an educational institution of its choice also admits members of other communities. That is a circumstance irrelevant for the application of Article 30(1) since no such limitation is expressed and none can be implied. The two articles create two separate rights, although it is possible that they may meet in a given case. 22. In Ahmedabad St. X....
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.... 30. Educational institutions are temples of learning. The virtues of human intelligence are mastered and harmonised by education. Where there is complete harmony between the teacher and the taught, where the teacher imparts and the student receives, where there is complete dedication of the teacher and the taught in learning, where there is discipline between the teacher and the taught, where both are worshippers of learning, no discord or challenge will arise. An educational institution runs smoothly when the teacher and the taught are engaged in the common ideal of pursuit of knowledge. It is, therefore, manifest that the appointment of teachers is an important part in educational institutions. The qualifications and the character of the teachers are really important. The minority institutions have the right to administer institutions. This right implies the obligation and duty of the minority institutions to render the very best to the students. In the right of administration, checks, and balances in the shape of regulatory measures are required to ensure the appointment of good teachers and their conditions of service. The right to administer is to be tempered with regulatory....
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....nstitution in unhealthy surroundings as also to prevent the setting up or continuation of an educational institution without qualified teachers. The State can prescribe Regulations to ensure the excellence of the institution. Prescription of standards for educational institutions does not militate against the right of the minority to administer the institutions. Regulations made in the true interests of efficiency of instruction, discipline, health, sanitation, morality, public order, and the like may undoubtedly be imposed. Such Regulations are not restrictions on the substance of the right, which is guaranteed: they secure the proper functioning of the institution, in matters educational [see observations of Shah, J. in Rev. Sidhajbhai Sabhai (supra), [(1963 3 SCR 837) p. 850]. Further, as observed by Hidyatullah, C.J. in the case of Very Rev. Mother Provincial (supra) [(1971) 1 SCR 734], the standards concern the body politic and are dictated by considerations of the advancement of the country and its people. Therefore, if universities establish syllabi for examinations, they must be followed, subject, however, to special subjects which the institutions may seek to teach, and to....
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....h before it would grant affiliation or recognition to an educational institution. To deny the power of making Regulations to the authority concerned would result in robbing the concept of affiliation or recognition of its real essence. No institution can claim affiliation or recognition until it conforms to a certain standard. The fact that the institution is of the prescribed standard indeed inheres in the very concept of affiliation or recognition. It is, therefore, permissible for the authority concerned to prescribe Regulations which must be complied with before an institution can seek and retain affiliation and recognition. Question then arises whether there is any limitation on the prescription of Regulations for minority educational institutions. So far as this aspect is concerned, the authority prescribing the Regulations must bear in mind that the Constitution has guaranteed a fundamental right to the minorities for establishing and administering their educational institutions. Regulations made by the authority concerned should not impinge upon that right. Balance has, therefore, to be kept between the two objectives, that of ensuring the standard of excellence of the inst....
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....recognition, but the character of the permissible Regulations must depend upon their purpose. As we said, such Regulations will be permissible if they are relevant to the purpose of securing or promoting the object of recognition or affiliation. There will be borderline cases where it is difficult to decide whether a Regulation really subserves the purpose of recognition or affiliation. But that does not affect the question of principle. In every case, when the reasonableness of a Regulation comes up for consideration before the Court, the question to be asked and answered is whether the Regulation is calculated to subserve or will in effect subserve the purpose of recognition or affiliation, namely, the excellence of the institution as a vehicle for general secular education to the minority community and to other persons who resort to it. The question whether a Regulation is in the general interest of the public has no relevance if it does not advance the excellence of the institution as a vehicle for general secular education as, ex-hypothesi, the only permissible Regulations are those which secure the effectiveness of the purpose of the facility, namely, the excellence of the ed....
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....ch constitute barriers between various Sections of the nation will crumble and fall. It may refuse to accept the choice made by the State of the kind of secular education the State wants or of the way in which it should be given. But, in that event, should it not be prepared to forego the benefits of recognition by the State? The State is bound to permit and protect the choice of the minority Institution, whatever that might be. But, can it be compelled to give it a treatment different from that given to other Institutions making such a choice? 221. Evidently, what was meant was that the right to exclusive management of the institution is separable from the right to determine the character of education and its standards. This may explain why "standards" of education were spoken as "not part of management" at all. It meant that the right to manage, having been conferred in absolute terms, could not be interfered with at all although the object of that management could be determined by a general pattern to be laid down by the State, which could prescribe the syllabi and standards of education. Speaking for myself, I find it very difficult to separate the objects and standards of te....
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....ords, the degree of reasonably permissible control must vary from situation to situation. For the reasons already given above, I think that, apart from Sections 5, 40 and 41 of the Act, which directly and unreasonably impinge upon the rights of the petitioning minority managed college, protected by Article 30(1) of the Constitution, I do not think that the other provisions have that effect. On the situation under consideration before us, the minority institution affected by the enactment has, upon the claims put forward on its behalf, a means of escape from the impugned provisions other than Sections 5, 40 and 41 of the Act by resorting to Section 38B of the Act. 23. In The Gandhi Faiz-e-am College, Shahjahanpur v. University of Agra and Anr., (1975) 2 SCC 283, the Court considered whether statute framed by University of Agra infringed fundamental rights of the minority community and observed thus: 16. The discussion throws us back to a closer study of Statute 14-A to see if it cuts into the flesh of the management's right or merely tones up its health and habits. The two requirements the University asks for are that the managing body (whatever its name) must take in (a) the....
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....ts employees any more than any other private employee. Oppression or exploitation of the teaching staff of an educational institution is bound to lead, inevitably, to discontent and deterioration of the standard of instruction imparted in the institution affecting adversely the object of making the institution an effective vehicle of education for the minority community or other persons who resort to it. The management of minority institution cannot complain of invasion of the fundamental right to administer the institution when it denies the members of its staff the opportunity to achieve the very object of Article 30(1) which is to make the institution an effective vehicle of education. 25. In Bihar State Madarasa Education Board, Patna v. Madarasa Hanfia Arabic College, Jamalia and Ors. (1990) 1 SCC 428, the Court held that minorities have the right to establish and administer educational institution of their own choice. Still, they have no right to maladminister, and the State has the power to regulate the management and administration of such institutions in the interest of educational need and discipline of the institution. The Court held thus: 6. The question which arises....
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....phen's College after being affiliated to the Delhi University has lost its minority character. The argument was based on some of the provisions in the Delhi University Act and the Ordinances made thereunder. It was said that the students are admitted to the University and not to the College as such. But we find no substance in the contention. In the first place, it may be stated that the State or any instrumentality of the State cannot deprive the character of the institution, founded by a minority community by compulsory affiliation since Article 30(1) is a special right to minorities to establish educational institutions of their choice. The minority institution has a distinct identity and the right to administer with continuance of such identity cannot be denied by coercive action. Any such coercive action would be void being contrary to the constitutional guarantee. The right to administer is the right to conduct and manage the affairs of the institution. This right is exercised by a body of persons in whom the founders have faith and confidence. Such a management body of the institution cannot be displaced or reorganised if the right is to be recognised and maintained. Rea....
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....guaranteed to the minority Under Article 30(1). The Court restricted the operation of the Rule and made it inapplicable to the minority educational institution. In Director of School Education, Government of T.N. v. Rev. Brother G. Arogiasamy AIR 1971 Mad 440, the Madras High Court had an occasion to consider the validity of an uniform procedure prescribed by the State Government for admission of candidates to the aided training schools. The government directed that the candidates should be selected by the school authorities by interviewing every candidate eligible for admission and assessing and awarding marks in the interview. The marks awarded to each candidate in the interview will be added to the marks secured by the candidate in the SSLC public examination. On the basis of the aggregate of marks in the SSLC examination and those obtained at the interview the selection was to be made without any further discretion. The High Court held that the method of selection placed serious restrictions on the freedom of the minority institution to admit their own students. It was found that the students of the minority community could not compete with the students belonging to other commu....
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....en's College gives preference to Christian students. The Allahabad Agricultural Institute reserves 50 per cent of the seats for Christian students. The Christian students admitted by preference or against the quota reserved are having less merit in the qualifying examination than the other candidates. The other candidates with more merit are denied admission on the ground that they are not Christians. 69. It was argued for the University and the Students Union that since both the institutions are receiving State aid, the institutional preference for admission based on religion is violative of Article 29(2) of the Constitution. The institutions shall not prefer or deny admission to candidates on ground of religion. For institutions, on the other hand, it was claimed that any preference given to the religious minority candidates in their own institutions cannot be a discrimination falling Under Article 29(2). The institutions are established for the benefit of their community and if they are prevented from admitting their community candidates, the purpose of establishing the institutions would be defeated. The minorities are entitled to admit their candidates by preference or b....
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....he aim and the means employed. The individual rights will necessarily have to be balanced with competing minority interests. In Sidhajbhai case (1963) 3 SCR 837 the government order directing the minority run college to reserve 80 per cent of seats for government nominees and permitting only 20 per cent of seats for the management with a threat to withhold the grant-in-aid and recognition was struck down by the Court as infringing the fundamental freedom guaranteed by Article 30(1). Attention may also be drawn to Article 337 of the Constitution which provided a special concession to Anglo-Indian community for ten years from the commencement of the Constitution. Unlike Article 30(2) it conferred a positive right on the Anglo-Indian community to get grants from the government for their educational institutions, but subject to the condition that at least 40 per cent of annual admission were made available to members of other communities. 102. In the light of all these principles and factors, and in view of the importance which the Constitution attaches to protective measures to minorities Under Article 30(1), the minority aided educational institutions are entitled to prefer their c....
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...., Dr. B.R. Ambedkar said in relation to draft Article 23(2) corresponding to the present Article 28 of the Constitution that even in relation to Articles 30 and 29 the State was completely free to give or not to give aid to the educational institutions of the religious or linguistic minorities. He said: Now, with regard to the second Clause I think it has not been sufficiently well understood. We have tried to reconcile the claim of a community which has started educational institutions for the advancement of its own children either in education or in cultural matters, to permit to give religious instruction in such institutions; notwithstanding the fact that it receives certain aid from the State. The State, of course, is free to give aid, is free not to give aid; the only limitation we have placed is this, that the State shall not debar the institution from claiming aid under its grant-in-aid code merely on the ground that it is run and maintained by a community and not maintained by a public body. We have there provided also a further qualification, that while it is free to give religious instruction in the institution and the grant made by the State shall not be a bar to the ....
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....ple. In Re The Kerala Education Bill (supra), it was considered and observed that the minorities cannot establish educational institution only for the benefit of their community. Every educational institution, irrespective of community to which it belongs, is a 'melting pot' in our national life and that there should be mixing up of students of different communities in all educational institutions. The intake for the community cannot exceed 50% of the annual admission, which is to be provided to other than the minority community. The admission should be made purely on the basis of merit. 27. In T.M.A. Pai Foundation (supra), decided by Bench of 11 Judges of the Court, on consideration of the rights Under Article 30 of the Constitution of India, held thus: 3. The hearing of these cases has had a chequered history. Writ Petition No. 350 of 1993 filed by the Islamic Academy of Education and connected petitions were placed before a Bench of five Judges. As the Bench was prima facie of the opinion that Article 30 did not clothe a minority educational institution with the power to adopt its own method of selection and the correctness of the decision of this Court in St. Stephe....
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....of medical and technical education which call for substantial outlays. While education is one of the most important functions of the Indian State it has no monopoly therein. Private educational institutions -- including minority educational institutions -- too have a role to play. 40. Any system of student selection would be unreasonable if it deprives the private unaided institution of the right of rational selection, which it devised for itself, subject to the minimum qualification that may be prescribed and to some system of computing the equivalence between different kinds of qualifications, like a common entrance test. Such a system of selection can involve both written and oral tests for selection, based on principle of fairness. 45. In view of the discussion hereinabove, we hold that the decision in Unni Krishnan case, (1993) 1 SCC 645 insofar as it framed the scheme relating to the grant of admission and the fixing of the fee, was not correct, and to that extent, the said decision and the consequent directions given to UGC, AICTE, the Medical Council of India, the Central and State Governments etc. are overruled. 50. The right to establish and administer broadly compr....
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....quire a private unaided institution to provide for merit-based selection while, at the same time, giving the management sufficient discretion in admitting students. This can be done through various methods. For instance, a certain percentage of the seats can be reserved for admission by the management out of those students who have passed the common entrance test held by itself or by the State/university and have applied to the college concerned for admission, while the rest of the seats may be filled up on the basis of counselling by the State agency. This will incidentally take care of poorer and backward Sections of the society. The prescription of percentage for this purpose has to be done by the Government according to the local needs and different percentages can be fixed for minority unaided and non-minority unaided and professional colleges. The same principles may be applied to other non-professional but unaided educational institutions viz. graduation and post graduation non-professional colleges or institutes. 71. While giving aid to professional institutions, it would be permissible for the authority giving aid to prescribe by Rules or Regulations, the conditions on t....
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....ld the minority while establishing educational institutions not be bound by town planning Rules and Regulations? Can they construct and maintain buildings in any manner they desire without complying with the provisions of the building bye-laws or health Regulations? 105. In Rev. Sidhajbhai Sabhai v. State of Bombay, (1963) 3 SCR 837, this Court had to consider the validity of an order issued by the Government of Bombay whereby from the academic year 1955-56, 80% of the seats in the training colleges for teachers in non-government training colleges were to be reserved for the teachers nominated by the Government. The Petitioners, who belonged to the minority community, were, inter alia, running a training college for teachers, as also primary schools. The said primary schools and college were conducted for the benefit of the religious denomination of the United Church of Northern India and Indian Christians generally, though admission was not denied to students belonging to other communities. The Petitioners challenged the government order requiring 80% of the seats to be filled by nominees of the Government, inter alia, on the ground that the Petitioners were members of a religio....
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....stablished by Article 30(1) is a fundamental right declared in terms absolute. Unlike the fundamental freedoms guaranteed by Article 19, it is not subject to reasonable restrictions. It is intended to be a real right for the protection of the minorities in the matter of setting up of educational institutions of their own choice. The right is intended to be effective and is not to be whittled down by so-called regulative measures conceived in the interest not of the minority educational institution, but of the public or the nation as a whole. If every order which while maintaining the formal character of a minority institution destroys the power of administration is held justifiable because it is in the public or national interest, though not in its interest as an educational institution, the right guaranteed by Article 30(1) will be but a 'teasing illusion', a promise of unreality. Regulations which may lawfully be imposed either by legislative or executive action as a condition of receiving grant or of recognition must be directed to making the institution while retaining its character as a minority institution effective as an educational institution. Such Regulation must ....
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....f minorities. Those minorities may be based either on religion or on language. The right conferred upon the said minorities is to establish and administer educational institutions of their choice. The word 'establish' indicates the right to bring into existence, while the right to administer an institution means the right to effectively manage and conduct the affairs of the institution. Administration connotes management of the affairs of the institution. The management must be free of control so that the founders or their nominees can mould the institution as they think fit and in accordance with their ideas of how the interest of the community in general and the institution in particular will be best served. The words 'of their choice' qualify the educational institutions and show that the educational institutions established and administered by the minorities need not be of some particular class; the minorities have the right and freedom to establish and administer such educational institutions as they choose. Clause (2) of Article 30 prevents the State from making discrimination in the matter of grant of aid to any educational institution on the ground that the ....
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....r are otherwise suffering from some kind of infirmity. The Constitution and the laws made by civilized nations, therefore, generally contain provisions for the protection of those interests. It can, indeed, be said to be an index of the level of civilization and catholicity of a nation as to how far their minorities feel secure and are not subject to any discrimination or suppression. 122. The learned Judge then observed that the right of the minorities to administer educational institutions did not prevent the making of reasonable Regulations in respect of these institutions. Recognizing that the right to administer educational institutions could not include the right to maladminister, it was held that Regulations could be lawfully imposed, for the receiving of grants and recognition, while permitting the institution to retain its character as a minority institution. The Regulation "must satisfy a dual test -- the test of reasonableness, and the test that it is regulative of the educational character of the institution and is conducive to making the institution an effective vehicle of education for the minority community or other persons who resort to it". (SCC p. 783, para 92) ....
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....acter and though great weight should be attached to it because of its persuasive value, the said opinion cannot override the opinion subsequently expressed by this Court in contested cases. It is the law declared by this Court in the subsequent contested cases which would have a binding effect. The words 'as at present advised' as well as the preceding sentence indicate that the view expressed by this Court in Re Kerala Education Bill, 1957 in this respect was hesitant and tentative and not a final view in the matter. 135. We agree with the contention of the learned Solicitor-General that the Constitution in Part III does not contain or give any absolute right. All rights conferred in Part III of the Constitution are subject to at least other provisions of the said Part. It is difficult to comprehend that the framers of the Constitution would have given such an absolute right to the religious or linguistic minorities, which would enable them to establish and administer educational institutions in a manner so as to be in conflict with the other Parts of the Constitution. We find it difficult to accept that in the establishment and administration of educational institutions....
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....1 SCR 173 at SCR p. 192 that: (SCC p. 743, para 9) The whole object of conferring the right on minorities Under Article 30 is to ensure that there will be equality between the majority and the minority. If the minorities do not have such special protection they will be denied equality. In other words, the essence of Article 30(1) is to ensure equal treatment between the majority and the minority institutions. No one type or category of institution should be disfavoured or, for that matter, receive more favourable treatment than another. Laws of the land, including Rules and Regulations, must apply equally to the majority institutions as well as to the minority institutions. The minority institutions must be allowed to do what the non-minority institutions are permitted to do. 139. Like any other private unaided institutions, similar unaided educational institutions administered by linguistic or religious minorities are assured maximum autonomy in relation thereto; e.g. method of recruitment of teachers, charging of fees and admission of students. They will have to comply with the conditions of recognition, which cannot be such as to whittle down the right Under Article 30. ....
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....napplicable. Like Article 28(1) and Article 28(3), Article 29(2) refers to "any educational institution maintained by the State or receiving aid out of State funds". A minority institution would fall within the ambit of Article 29(2) in the same manner in which Article 28(1) and Article 28(3) would be applicable to an aided minority institution. It is true that one of the rights to administer an educational institution is to grant admission to the students. As long as an educational institution, whether belonging to the minority or the majority community, does not receive aid, it would, in our opinion, be its right and discretion to grant admission to such students as it chooses or selects subject to what has been clarified before. Out of the various rights that the minority institution has in the administration of the institution, Article 29(2) curtails the right to grant admission to a certain extent. By virtue of Article 29(2), no citizen can be denied admission by an aided minority institution on the grounds only of religion, race, caste, language or any of them. It is no doubt true that Article 29(2) does curtail one of the powers of the minority institution, but on receiving ....
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....itution is to be located, the State properly balances the interests of all by providing for such a percentage of students of the minority community to be admitted, so as to adequately serve the interest of the community for which the institution was established. 152. At the same time, the admissions to aided institutions, whether awarded to minority or non-minority students, cannot be at the absolute sweet will and pleasure of the management of minority educational institutions. As the Regulations to promote academic excellence and standards do not encroach upon the guaranteed rights Under Article 30, the aided minority educational institutions can be required to observe inter se merit amongst the eligible minority applicants and passage of common entrance test by the candidates, where there is one, with regard to admissions in professional and non-professional colleges. If there is no such test, a rational method of assessing comparative merit has to be evolved. As regards the non-minority segment, admission may be on the basis of the common entrance test and counselling by a State agency. In the courses for which such a test and counselling are not in vogue, admission can be on....
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....t. The procedure adopted or selection made should not be tantamount to maladministration. Even an unaided minority institution ought not to ignore the merit of the students for admission, while exercising its right to admit students to the colleges aforesaid, as in that event, the institution will fail to achieve excellence. Q. 5. (b) *** A. *** Q. 5. (c) Whether the statutory provisions which regulate the facets of administration like control over educational agencies, control over governing bodies, conditions of affiliation including recognition/withdrawal thereof, and appointment of staff, employees, teachers and principals including their service conditions and Regulation of fees, etc. would interfere with the right of administration of minorities? A. So far as the statutory provisions regulating the facets of administration are concerned, in case of an unaided minority educational institution, the regulatory measure of control should be minimal and the conditions of recognition as well as the conditions of affiliation to a university or board have to be complied with, but in the matter of day-to-day management, like the appointment of staff, teaching and non-teaching, ....
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....ring educational standards and maintaining excellence and more so, in the matter of admission to the professional institutions. It may not interfere with the rights so long as the admissions to the unaided minority institutions are on transparent basis and the merit is adequately taken care of. 28. In Brahmo Samaj Education Society v. State of West Bengal, (2004) 6 SCC 224, the Court opined that State can impose such conditions as are necessary for the proper maintenance of standards of education and to check maladministration. The decision of T.M.A. Pai Foundation (supra) was followed in which it was observed that the State could regulate the method of selection and appointment of teachers after prescribing requisite qualifications for the same. In Brahmo Samaj Education Society (supra), it was further opined that the State could very well provide the basic qualification for teachers. The equal standard of teachers has been maintained by the NET/SLET. 29. This Court in P.A. Inamdar (supra) also considered the difference between professional and non-professional educational institutions, thus: 104. Article 30(1) speaks of "educational institutions" generally and so does Article....
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....ate opinion in Islamic Academy, (2003) 6 SCC 697, described (in para 199) the situation as a pyramid-like situation and suggested the right of minority to be read along with the fundamental duty. Higher the level of education, lesser are the seats and higher weighs the consideration for merit. It will, necessarily, call for more State intervention and lesser say for the minority. 107. Educational institutions imparting higher education i.e. graduate level and above and in particular specialised education such as technical or professional, constitute a separate class. While embarking upon resolving issues of constitutional significance, where the letter of the Constitution is not clear, we have to keep in view the spirit of the Constitution, as spelt out by its entire scheme. Education aimed at imparting professional or technical qualifications stands on a different footing from other educational instruction. Apart from other provisions, Article 19(6) is a clear indicator and so are Clauses (h) and (j) of Article 51-A. Education up to the undergraduate level aims at imparting knowledge just to enrich the mind and shape the personality of a student. Graduate-level study is a doorwa....
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....he concept of affiliation to such institutions. Of course, the Court held that there was no fundamental right of a minority institution to get affiliation from a university. When a minority institution applies to a university to be affiliated, it expresses its choice to participate in the system of general education and courses of instructions prescribed by that university, and it agrees to follow the uniform courses of study. Therefore, measures which will regulate the courses of study, the qualifications and appointment of teachers, the conditions of employment of teachers, the health, hygiene of students and the other facilities are germane to affiliation of minority institutions. 55. The Respondents have placed reliance upon the law stated by the Bench that any Regulation framed in the national interest must necessarily apply to all educational institutions, whether run by majority or the minority. Such a limitation must be read into Article 30. The Rule Under Article 30(1) cannot be such as to override the national interest or to prevent the Government from framing Regulations in that behalf. It is, of course, true that government Regulations cannot destroy the minority char....
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....inister their institutions. Such right of administration includes the right of appointing teachers of its choice but does not denude the State of its power to frame Regulations that may prescribe the conditions of eligibility for appointment of such teachers. The Regulations can also prescribe measures to ensure that the institution is run efficiently for the right to administer does not include the right to maladministration. While grant-in-aid is not included in the guarantee contained in the Constitution to linguistic and religious minorities for establishing and running their educational institutions, such grant cannot be denied to such institutions only because the institutions are established by linguistic or religious minority. Grant of aid cannot, however, be made subservient to conditions which deprive the institution of their substantive right of administering such institutions. Suffice it to say that once Respondent 4 Institution is held to be a minority institution entitled to the protection of Articles 26 and 30 of the Constitution of India the right to appoint teachers of its choice who satisfy the conditions of eligibility prescribed for such appointments under the r....
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....d entrance examination held by various institutions failing the triple test of having fair, transparent, and non-exploitative process. The Court held that reasonable restriction can be imposed to regulate admission and fee structure. The Court also observed about statutory functioning of the healthcare system in the country and the poor functioning of the MCI. (c) The Court further considered the criteria of proportionality and emphasised for proper balance between the two facets viz. the rights and limitations imposed upon it by a statute. The concept of proportionality is an appropriate criterion. The law imposing restrictions will be treated as proportional if it is meant to achieve a proper purpose. If the measures taken to achieve such a goal are rationally connected to the object, such steps are necessary. The Court considered the concept of proportionality thus: 57. It is well settled that the right Under Article 19(1)(g) is not absolute in terms but is subject to reasonable restrictions under Clause (6). Reasonableness has to be determined having regard to the nature of right alleged to be infringed, purpose of the restriction, extent of restriction and other relevant fa....
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.... 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 constitutionally permissible. According to Aharon Barak (former Chief Justice, Supreme Court of Israel), there are four sub-components of proportionality which need to be satisfied [Aharon Barak, Proportionality: Constitutional Rights and Their Limitation (Cambridge University Press 2012)], a limitation of a constitutional right will be constitutionally permissible if: (i) it is designated for a proper purpose; (ii) the measures undertaken to effectuate such a limitation are rationally connected to the fulfilment of that pur....
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....imit those rights is granted where such a limitation will be justified to protect public interest or the rights of others. This phenomenon--of both the right and its limitation in the Constitution--exemplifies the inherent tension between democracy's two fundamental elements. On the one hand is the right's element, which constitutes a fundamental component of substantive democracy; on the other hand is the people element, limiting those very rights through their representatives. These two constitute a fundamental component of the notion of democracy, though this time in its formal aspect. How can this tension be resolved? The answer is that this tension is not resolved by eliminating the "losing" facet from the Constitution. Rather, the tension is resolved by way of a proper balancing of the competing principles. This is one of the expressions of the multi-faceted nature of democracy. Indeed, the inherent tension between democracy's different facets is a "constructive tension". It enables each facet to develop while harmoniously coexisting with the others. The best way to achieve this peaceful coexistence is through balancing between the competing interests. Such balanc....
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....cient importance". The more severe the deleterious effects of a measure, the more important the objective must be if the measure is to be reasonable and demonstrably justified in a free and democratic society. 64. The exercise which, therefore, is to be taken is to find out as to whether the limitation of constitutional rights is for a purpose that is reasonable and necessary in a democratic society and such an exercise involves the weighing up of competitive values, and ultimately an assessment based on proportionality i.e. balancing of different interests. (d) In Modern Dental College and Research Centre (supra), the Court, while dealing with reasonable restriction on rights Under Article 19 observed: 65. We may unhesitatingly remark that this doctrine of proportionality, explained hereinabove in brief, is enshrined in Article 19 itself when we read Clause (1) along with Clause (6) thereof. While defining as to what constitutes a reasonable restriction, this Court in a plethora of judgments has held that the expression "reasonable restriction" seeks to strike a balance between the freedom guaranteed by any of the Sub-clauses of Clause (1) of Article 19 and the social control....
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....in economic activities, as the recognition has drawn to the realities that the economic activities, including profession, business, occupation, etc. are not normal forte of the State and the State should have minimal role therein. It is for this reason, many sectors which were hitherto State monopolies, like telecom, power, insurance, civil aviation, etc. have now opened up for private enterprise. Even in the field of education the State/Government was playing a dominant role inasmuch as it was thought desirable that in a welfare State it is the fundamental duty, as a component of directive principles, to impart education to the masses and commoners as well as weaker Sections of the society, at affordable rates. It was almost treated as solemn duty of the Government to establish adequate number of educational institutions at all levels i.e. from primary level to higher education and in all fields including technical, scientific and professional, to cater to the varied Sections of the society, particularly, when one-third of the population of the country is poverty-stricken with large percentage as illiterate. With liberalisation, the Government has encouraged establishments of priv....
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....ism for centralised examination is legal and constitutional and does not infringe on the fundamental rights of the minority or non-minority to establish and administer educational institutions. It observed: 57. It is well settled that the right Under Article 19(1)(g) is not absolute in terms but is subject to reasonable restrictions under Clause (6). Reasonableness has to be determined having regard to the nature of right alleged to be infringed, purpose of the restriction, extent of restriction and other relevant factors. In applying these factors, one cannot lose sight of the directive principles of State policy. The Court has to try to strike a just balance between the fundamental rights and the larger interest of the society. The Court interferes with a statute if it clearly violates the fundamental rights. The Court proceeds on the footing that the legislature understands the needs of the people. The Constitution is primarily for the common man. Larger interest and welfare of student community to promote merit, achieve excellence and curb malpractices, fee and admissions can certainly be regulated. 97. The very object of setting up institutions for the State is a welfare f....
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....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. 172. 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. The State can satisfactorily discharge its constitutional obligation only when the aspiring students enter into ....
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....t comes under regulatory regime. Though education is now treated as an "occupation" and, thus, has become a fundamental right guaranteed Under Article 19(1)(g) of the Constitution, at the same time shackles are put insofar as this particular occupation is concerned which is termed as "noble". Therefore, profiteering and commercialisation are not permitted and no capitation fee can be charged. The admission of students has to be on merit and not at the whims and fancies of the educational institutions. Merit can be tested by adopting some methodology and few such methods are suggested in T.M.A. Pai Foundation, (2002) 8 SCC 481, which includes holding of CET. It is to be ensured that this admission process meets the triple test of transparency, fairness and non-exploitativeness. 37. 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 a....
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....e abovequoted observations in Sodan Singh case, (1989) 4 SCC 155, correctly interpret the expression "occupation" in Article 19(1)(g). 40. 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 education is, the same is not put on a 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, (2002) 8 SCC 481. 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 institutions are not expected to indulge in profiteering or commercialising this noble activity. Keeping this objective in mind, the Court did not give complete freedom to the educational institutions in respect of right to admit the students and also with regard to fixation of fee. As far as admission of students is concerned, the Court was categorical that such admissions have to be on the basis of me....
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...., to require a private unaided institution to provide for merit-based selection while, at the same time, giving the management sufficient discretion in admitting students. This can be done through various methods. For instance, a certain percentage of the seats can be reserved for admission by the management out of those students who have passed the common entrance test held by itself or by the State/university and have applied to the college concerned for admission, while the rest of the seats may be filled up on the basis of counselling by the State agency. This will incidentally take care of poorer and backward Sections of the society. The prescription of percentage for this purpose has to be done by the Government according to the local needs and different percentages can be fixed for minority unaided and non-minority unaided and professional colleges. The same principles may be applied to other non-professional but unaided educational institutions viz. graduation and post graduation non-professional colleges or institutes. 44. A plea was raised by the Appellants that by exercising the power to frame Regulations, the State could not usurp the very function of conducting this ....
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....005) 6 SCC 537. It was held that the two committees for monitoring admission procedure and determining fee structure as per the judgment in Islamic Academy of Education, (2003) 6 SCC 697, were permissible as regulatory measures aimed at protecting the student 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: (P.A. Inamdar case, (2005) 6 SCC 537, SCC p. 607, para 145) 145. ... 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. 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 was rejected. The committees were, thus, allowed to continue for regulating the admissions and the fee structure until a suitable legislation or Regulations were framed by the States. It was lef....
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.... 558, may not be of much help as that case did not concern with professional educational institutions. 67. 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, (2002) 8 SCC 481. Even while doing so, this right came with certain clutches and shackles. The Court made it clear that it is a noble occupation which would not permit commercialisation or profiteering and, therefore, such educational institutions are to be run on "no profit no loss basis". While explaining the scope of this right, right to admit students and right to fix fee was accepted as facets of this right, the Court again added caution thereto by mandating that admissions to the educational institutions imparting higher education, and in particular professional education, have to admit the students based on merit. For judging the merit, the Court indicated that there can be a CET. While doing so, it also specifically stated that in case of admission to professional courses such a CET can be conducted by the....
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....he sole purpose of holding CET is to adjudge merit and to ensure that admissions which are done by the educational institutions, are strictly on merit. This is again to ensure larger public interest. It is beyond comprehension that merely by assuming the power to hold CET, fundamental right of the Appellants to admit the students is taken away. Likewise, when it comes to fixation of fee, as already dealt with in detail, the main purpose is that the State acts as a regulator and satisfies itself that the fee which is proposed by the educational institution does not have the element of profiteering and also that no capitation fee, etc. is charged. In fact, this dual function of regulatory nature is going to advance the public interest inasmuch as those students who are otherwise meritorious but are not in a position to meet unreasonable demands of capitation fee, etc. are not deprived of getting admissions. The impugned provisions, therefore, are aimed at seeking laudable objectives in larger public interest. Law is not static, it has to change with changing times and changing social/societal conditions. (k) The Court held that MCI Act and the Rules prescribed reasonable restriction....
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.... entrance test conducted by the State or an agency authorised by the State and that students without excellence and merit do not make entry into these professional educational institutions through malpractices and influence. As has been held both in the judgments in T.M.A. Pai Foundation, (2002) 8 SCC 481 and P.A. Inamdar, (2005) 6 SCC 537, the right of private unaided professional educational institutions to admit students of their choice is subject to selection of students on the basis of their merit through a transparent, fair and non-exploitative procedure. In our considered opinion therefore, Sections 3(d), 6 and 7 of the 2007 Act do not in any way violate the fundamental right of citizens guaranteed Under Article 19(1)(g) of the Constitution. In view of this conclusion, it is not necessary for us to decide whether the provisions of Sections 3(d), 6 and 7 of the 2007 Act 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. 32. In Sankalp Charitable Trust (supra), various orders passed by this Court on different....
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....o the MBBS/BDS course. The said Notifications were struck down in Christian Medical College, Vellore v. Union of India, (2014) 2 SCC 305. The said judgment stands recalled vide order dated 11-4-2016 in Medical Council of India v. Christian Medical College, Vellore, (2016) 4 SCC 342. 32. In a recent Constitution Bench judgment dated 2-5-2016, in Modern Dental College & Research Centre v. State of M.P., (2016) 7 SCC 353, the stand of the private medical colleges (including minorities) that conducting of entrance test by the State violated the right of autonomy of the said colleges, has been rejected. The State law providing for conducting of entrance test was upheld, rejecting the contention that the State had no legislative competence on the subject. At the same time, it was held that the admission involved two aspects. First, the adoption of setting up of minimum standards of education and coordination of such standards which aspect was covered exclusively by List I Entry 66. The second aspect is with regard to implementation of the said standards which was covered by List III Entry 25. On the said aspect, the State could also legislate. The two entries overlap to some extent and....
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.... (Writ Petition (C) No. 267 of 2017) opined that common counselling does not in any manner affect the right of minority institutions to admit students of their own minority community. The Court held thus: 10. Common counselling conducted by the DGHS/State Government will not in any manner affect the rights of minority institutions to admit students of their respective minority community. The minority quota seats, if any, in institutions run by minorities will be filled up by minority students only. Therefore, the rights of minority institutions are fully protected. Needless to say this arrangement will not apply to the States of Andhra Pradesh, Telangana and Jammu & Kashmir. As far as the other States are concerned, needless to say, this arrangement shall apply to all the colleges unless this Court has passed any different or separate order. 36. In Yatinkumar Jasubhai Patel (supra), the Court held that introduction of NEET does not affect the 50% State quota seat in PG medicine course. The Court also considered Section 10D of the Act of 1956 and Regulations as amended by MCI. It opined as under: 9.4. However, it is the case on behalf of the Petitioners that in view of the intr....
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....l preference/reservation as approved by this Court from time to time in a catena of decisions, more particularly the decisions referred to hereinabove. Under the guise of introduction of the NEET Scheme, the Petitioners cannot be permitted to re-agitate and/or reopen the issue with respect to institutional preference which has been approved and settled by this Court in a catena of decisions, more particularly the decisions referred to hereinabove. 37. The notifications, which are questioned in the matters and the amendment made to Section 10D as introduced in the Act of 1956 and Regulations as amended by the MCI and similar provisions inserted in the Dentists Act & Regulations, cannot be said to be taking away the rights of the unaided minority institutions or private institutions of making admission in any manner as it is permissible to provide regulatory mechanism at the national level and the entrance test applies even to All India Institute of Medical Science (AIIMS) - the most reputed Institute of India. It is open to provide the regulatory mechanism for admission for such courses as held in T.M.A. Pai Foundation (supra) the qualification and conditions of eligibility in the ....
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.... by the nine-Judge Bench on the issue. Apart from the decisions rendered by this Court in Jagadish Saran case, (1980) 2 SCC 768 and Pradeep Jain case, (1984) 3 SCC 654, the issue also fell for consideration in Preeti Srivastava case, (1999) 7 SCC 120, which was also decided by a Bench of five Judges. While in Jagadish Saran case, (1980) 2 SCC 768 and in Pradeep Jain case, (1984) 3 SCC 654, it was categorically held that there could be no compromise with merit at the superspeciality stage, the same sentiments were also expressed in Preeti Srivastava case, (1999) 7 SCC 120, as well. 23. In Preeti Srivastava case, (1999) 7 SCC 120, the Constitution Bench had an occasion to consider Regulation 27 of the Post Graduate Institute of Medical Education and Research, Chandigarh Regulations, 1967, whereby 20% of seats in every course of study in the institute was to be reserved for candidates belonging to the Scheduled Castes, Scheduled Tribes or other categories of persons, in accordance with the general Rules of the Central Government promulgated from time to time. The Constitution Bench came to the conclusion that Regulation 27 could not have any application at the highest level of super....
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....r scientific and technical posts. The Court directed the Union of India to take appropriate steps in accordance with views expressed in the case of Dr. Preeti Srivastava and Anr. v. State of M.P. and Ors. (1999) 7 SCC 120. 40. In Re The Kerala Education Bill (supra), it was opined that minority could not ask for aid and recognition of educational institution, when such institutions are recognized it would be open to make the institution retaining its character as effective as an educational institution without destroying its minority character for the purpose as enshrined in Article 30. The institution has to be an effective vehicle of education for all concerned. 41. In Gandhi Faiz-e-am College, Shahjahanpur (supra), it was opined that Regulation which imposes restrictions is bad; but Regulation which facilitates is good. We find that in Frank Anthony Public School Employees' Association (supra) it has been observed that institution has to be an effective vehicle of education for the minority community or other persons who resort to it. There cannot be any complaint of invasion of the fundamental right to administer the institution when it denies the members of its staff th....
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....ight guaranteed Under Article 30 of the Constitution. 43. In Brahmo Samaj Education Society (supra), it was held that State could impose necessary conditions for proper maintenance of standards of education and to check maladministration. 44. On behalf of the Appellants, it was submitted that individual autonomy is the concern of any Government. There should not be interference to defeat the rights conferred by the Constitution. Reliance has been placed on Gobind v. State of Madhya Pradesh (supra) in which this Court held: 20. There can be no doubt that the makers of our Constitution wanted to ensure conditions favourable to the pursuit of happiness. They certainly realized as Brandeis, J. said in his dissent in Olmstead v. United States, 277 US 438, 471, the significance of man's spiritual nature, of his feelings and of his intellect and that only a part of the pain, pleasure, satisfaction of life can be found in material things and therefore they must be deemed to have conferred upon the individual as against the Government a sphere where he should be let alone. 21. "The liberal individualist tradition has stressed, in particular, three personal ideals, to each of which....
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....ght to privacy. 26. As Ely says: There is nothing to prevent one from using the word 'privacy' to mean the freedom to live one's life without governmental interference. But the Court obviously does not so use the term. Nor could it, for such a right is at stake in every case. [See The Wage of Crying Wolf: A Comment on Roe v. Wade, 82 Yale LJ 920, 932]. 45. The reliance has also been placed on K.S. Puttaswamy and Anr. v. Union of India and Ors., 2017 (10) SCC 1, the decision relating to privacy in which this Court held: 351. The Constitution of any country reflects the aspirations and goals of the people of that country voiced through the language of the few chosen individuals entrusted with the responsibility of framing its Constitution. Such aspirations and goals depend upon the history of that society. History invariably is a product of various forces emanating from religious, economic, and political events However, various forced which go into the making of history are dynamic. Those who are entrusted with the responsibility of the working of the Constitution must necessarily keep track of the dynamics of such forces. Evolution of science and growth of technol....
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....e like. Man is not a creature of the State. Life and liberty are not granted by the Constitution. Constitution only stipulates the limitations on the power of the State to interfere with our life and liberty. Law is essential to enjoy the fruits of liberty; it is not the source of liberty and emphatically not the exclusive source. 46. It was argued that certain colleges have produced doctors of renowned fame, and they are an asset for India. There is no doubt about it that doctors of international fame have been produced by various institutions. They are an asset not only for India but also for the entire humanity. They are pioneers in various fields of medical science such as Oncology, Surgery, and other branches of medical science. But, when it comes to the eradication of the malpractices that have crept into the system, we have to take into consideration larger interest of the education countrywide. The NEET has been prescribed by the Legislature in the larger public interest that has to prevail. We find the provisions to be reasonable conditions of recognition/affiliation are binding for the very existence of all such institution whether they are run by majority or minority fa....
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....cle 51A(j) deals with the duty to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement. For that purpose, recognition of merit is necessary, and one has to be given a full opportunity in pursuit of his/her aim. The prescription of NEET is to provide equal opportunity and level launching platform to an individual to perform his duty as enshrined Under Article 51A(j). Thus, we find that there is no violation of the aforesaid provisions as argued by Appellants, rather action is in furtherance of the constitutional aims and directions to achieve intendment of Article 51A(j) and is in the national interest. 49. In Secretary, Malankara Syrian Catholic College v. T. Jose and Ors., (2007) 1 SCC 386, Court considered T.M.A. Pai Foundation (supra), and held that all laws made by the State to regulate the administration of educational institutions and grant of aid will apply to minority educational institutions also, but dilution of right Under Article 30 is not permissible. The right Under Article 30 is not above the law. The Regulations or conditions concerning the welfare of the stu....
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....ed; they secure the proper functioning of the institution. The institution cannot be allowed to fall below the standards of excellence under the guise of the exclusive right of the management. Minorities are as much part of the nation as the majority, and anything that impinges upon national interest must necessarily in its ultimate operation affect the interests of all. 52. It was further opined in Ahmedabad St. Xavier's College Society (supra) in paragraph 94 quoted above that there are conditions of affiliation or recognition of an educational institution, it is implicit in the request for grant thereof that the educational institution would abide by the Regulations which are made by the authority granting affiliation or recognition. When Government and MCI/DCI or concerned Universities grant affiliation and recognition, the institutions are bound by the conditions prescribed for affiliation and recognition. It has also been observed that recognition or affiliation creates an interest in the university to ensure that the educational institution is maintained for the purpose intended and any Regulation which will subserve or advance that purpose will be reasonable and no min....
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....cess, defeating merit and aspiration of the common incumbent with no means, the State has the right to frame regulatory regime for aided/unaided minority/private institutions as mandated by Directives Principles, Articles 14 and 21 of the Constitution. The first step has been taken to weed out the evils from the system, and it would not be in the national interest to step back considering the overall scenario. If we revert to the old system, posterity is not going to forgive us. Still, complaints are galore that merit is being ignored by private institutions; there is still a flood of litigation. It seems that unfettered by a large number of regulatory measures, unscrupulous methods and malpractices are yet being adopted. Building the nation is the main aspect of education, which could not be ignored and overlooked. They have to cater to national interest first, then their interest, more so, when such conditions can be prescribed for recognition, particularly in the matter of professional education. 56. In St. Stephen's College v. University of Delhi (supra), it was held that there has to be balancing of interest of rights of minorities. It was observed that 50% of the annual ....
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....rofiteering, and commercialisation of education. The institution has to be a capable vehicle of education. The minority institutions are equally bound to comply with the conditions imposed under the relevant Acts and Regulations to enjoy affiliation and recognition, which apply to all institutions. In case they have to impart education, they are bound to comply with the conditions which are equally applicable to all. The Regulations are necessary, and they are not divisive or disintegrative. Such regulatory measures enable institutions to administer them efficiently. There is no right given to maladminister the education derogatory to the national interest. The quality of medical education is imperative to sub-serve the national interest, and the merit cannot be compromised. The Government has the right for providing regulatory measures that are in the national interest, more so in view of Article 19(6) of the Constitution of India. 59. The rights of the religious or linguistic minorities Under Article 30 are not in conflict with other parts of the Constitution. Balancing the rights is constitutional intendment in the national and more enormous public interest. Regulatory measures....