TaxTMI 
TaxTMI 
2020 (4) TMI 904
X X X X Extracts X X X X
X X X X Extracts X X X X
....ogesh Kanna, S. Raja Rajeshwaran, Karthik Rajendran, 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, ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....roval of the Central Government, shall select organisation(s) to conduct '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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....evious approval of the Central Government shall select organisation(s) to conduct National Eligibility-cum-Entrance Test for admission to Postgraduate courses. 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 mann....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ge of 17 years on or before 31st December of the year of admission to the MBBS. (1A) He/She has obtained a minimum of marks in National Eligibility-Cum-Entrance Test as prescribed in Clause 5 of Chapter II. 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 Coun....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e in contravention of the criteria/procedure as laid down by these Regulations and/or in violation of the judgments passed by the Hon'ble Supreme Court in respect of admissions. Any candidate admitted in contravention/violation of aforesaid shall be discharged by the Council forthwith. 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 n....
X X X X Extracts X X X X
X X X X Extracts X X X X
....atters of admissions of students. The NEET prescribes no alternative to the institution, impinges upon the fundamental rights of an unaided minority institution to establish and administer educational institution of their choice. 10. It was further urged on behalf of Petitioners that State has no power 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e, in the Oncology Department. Some of the candidates are not able to bear the burden of the procedure and have expressed their inability to go with very sick patients. Some of them were not able to undertake procedures in a sterile manner to avoid infections. Similar is the position in other super-speciality 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t Section 10D has been inserted in the Act of 1956 it provides that there shall be a uniform common entrance conducted by the designated authority. The main reasoning of this Court in Christian Medical College Vellore v. Union of India, (2014) 2 SCC 305, which decision has been recalled, was that uniform common entrance 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 Maharash....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ecognition for an educational institution without competent teachers and fair standards. The choice does not necessarily militate against the claim of the State to insist on reasonable Regulations to ensure the excellence of the institutions to be aided or even recognized. The Court held thus: (29) Their grievances are thus 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 wil....
X X X X Extracts X X X X
X X X X Extracts X X X X
....(2)(3) and (5) may easily be regarded as reasonable Regulations or conditions for the grant of aid. Clauses 9, 11(2) and 12(4) are, however, objected to as going much beyond the permissible limit. It is said that by taking over the collections of fees etc., and by undertaking to pay the salaries of the teachers and other staff the Government 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 i....
X X X X Extracts X X X X
X X X X Extracts X X X X
....discipline, health, sanitation, morality, public order, and the like may undoubtedly be imposed. Such Regulations are not restrictive on the substance of the right, which is guaranteed, they secure the proper functioning of the institution in the matter of education. It was also observed that Regulation must satisfy a dual test-the test of 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 establishe....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nt of minority institutions, similarly, regulatory measures are necessary for ensuring orderly, efficient, and sound administration. Das, C.J., in the Kerala Education Bill case (supra) 1959 SCR 995 : AIR 1958 SC 956, summed up in one sentence the true meaning of the right to administer by saying that the right to administer is not the right to mal-administer. 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 adm....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t of those institutions. The Regulations have necessarily to be made in the interest of the institution as a minority educational institution. They have to be so designed as to make it an effective vehicle for imparting education. The right to administer educational institutions can plainly not include the right to maladminister. Regulations can be made to prevent the housing of an educational institution 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....minority community or other persons who resort to it. 94. If a request is made for the affiliation or recognition of an educational institution, it is implicit in the request that the educational institution would abide by the Regulations which are made by the authority granting affiliation or recognition. The said authority can always prescribe Regulations and insist that they should be complied with 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....iliation, an educational institution conducted by a religious minority is granted aid, further Regulations for ensuring that the aid is utilized for the purpose for which it is granted will be permissible. The heart of the matter is that no educational institution established by a religious or linguistic minority can claim total immunity from Regulations by the legislature or the university if it wants affiliation or 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 ed....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... part of a minority's rights to make such a choice, it should also be part of its obligations, which necessarily follow from the choice to adhere to the general pattern. The logical basis of such a choice is that the particular minority Institution, which chooses to impart such general secular education, prefers that higher range of freedom where, according to the poet Rabindranath Tagore, "the narrow domestic walls" which 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"....
X X X X Extracts X X X X
X X X X Extracts X X X X
....o are not members of the particular minority concerned, and when it derives large parts of its income from the fees paid by those who are not members of the particular minority in question. Such greater degree of control could be justified by the need to secure the interests of those who are affected by the management of the minority institution and the education it imparts but who are not members of the minority in management. In other words, 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., (....
X X X X Extracts X X X X
X X X X Extracts X X X X
....re security, contentment and decent living standards to teachers and which will consequently enable them to render better service to the institution and the pupils cannot surely be said to be violative of the fundamental right guaranteed by Article 30(1) of the Constitution. The management of a minority Educational Institution cannot be permitted under the guise of the fundamental right guaranteed by Article 30(1) of the Constitution, to oppress or exploit its 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he instant case Section 7(2)(n) is clearly violative of constitutional right of minorities Under Article 30(1) of the Constitution insofar as it provides for dissolution of Managing Committee of a Madarasa. We agree with the view taken by the High Court. 26. In St. Stephen's College v. University of Delhi, (1992) 1 SCC 558, concerning admission process adopted by aided minority institutions, various questions were raised thus: 41. It was contended that St. Stephen'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 ad....
X X X X Extracts X X X X
X X X X Extracts X X X X
....their own community. They did not think it in their interest to send their children to the Muslim girls school run by the other minority community. The withholding of permission for admission of girl students in the boys minority school was violative of Article 30(1). It was also observed that the Rule sanctioning such refusal of permission crosses the barrier of regulatory measures and comes in the region of interference with the administration of the institution, a right which is 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 ma....
X X X X Extracts X X X X
X X X X Extracts X X X X
....University of Delhi, (1992) 1 SCC 558 a Bench of five Judges of this Court had an occasion to consider the admission process adopted by two aided minority institutions viz. St. Stephen's College at Delhi and Allahabad Agricultural Institute at Naini. The factual context as summed-up in the majority judgment authored by Shetty, J., was as under: 68. It is not in dispute that St. Stephen's College and Allahabad Agricultural Institute are receiving grant-in-aid from the government. St. Stephen'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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... is there they develop respect for, and tolerance of, the cultures and beliefs of others. It is essential therefore, that there should be proper mix of students of different communities in all educational institutions. *** 28.3. The majority Judgment, then, considered the matter from the perspective of "Rights of Minorities and Balancing Interest" and observed: 101. Laws carving out the rights of minorities in Article 30(1) however, must not be arbitrary, invidious or unjustified; they must have a reasonable relation between the 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 comme....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nstitution is not taken a way, the State is competent to make regulatory legislation. Regulations, however, shall not have the effect of depriving the right of minorities to educate their children in their own institution. That is a privilege which is implied in the right conferred by Article 30(1). 28.5. The dissenting opinion of Kasliwal, J. quoted a passage from the Constituent Assembly Debates (CAD) touching upon the matter in issue as under: 137. These were Articles 23(1) on the one hand and 23(3)(a) and 23(3)(b) on the other hand in the Draft Constitution. Firstly, 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 rel....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ust abide by the rigor of Article 29(2) in the matter of admission of students in the college" and "as already held by me, St. Stephen's College and Allahabad Agricultural Institute are not entitled to claim any preferential right or reservation in favour of students of Christian community as they are getting grant-in-aid and as such I do not consider it necessary to labour any more on the question of deciding as to what percentage can be considered as reasonable. The Court held that the choice of institution does not mean that the minorities could establish educational institution for the benefit of their own community people. 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 shou....
X X X X Extracts X X X X
X X X X Extracts X X X X
....vernments legislating in conformity with the scheme, the private institutions are indistinguishable from the government institutions; curtailing all the essential features of the right of administration of a private unaided educational institution can neither be called fair nor reasonable. Even in the decision in Unni Krishnan case it has been observed by Jeevan Reddy, J., at p. 749, para 194, as follows: 194. The hard reality that emerges is that private educational institutions are a necessity in the present-day context. It is not possible to do without them because the governments are in no position to meet the demand -- particularly in the sector 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....g and administering educational institutions. For the same reasons, nomination of teachers either directly by the department or through a service commission will be an unreasonable inroad and an unreasonable restriction on the autonomy of the private unaided educational institution. 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 recognition, 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 admissio....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e Government or the majority or a minority community cannot deny admission to a citizen on the grounds only of religion, race, caste or language. 93. Can Article 30(1) be so read as to mean that it contains an absolute right of the minorities, whether based on religion or language, to establish and administer educational institutions in any manner they desire, and without being obliged to comply with the provisions of any law? Does Article 30(1) give the religious or linguistic minorities a right to establish an educational institution that propagates religious or racial bigotry or ill will amongst the people? Can the right Under Article 30(1) be so exercised that it is opposed to public morality or health? In the exercise of its right, would 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 f....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ion in Kerala Education Bill, 1957 case, 1959 SCR 995, but distinguished it by observing that the Court did not, in that case, lay down any test of reasonableness of the Regulation. No general principle on which the reasonableness of a Regulation may be tested was sought to be laid down in Kerala Education Bill, 1957 case, 1959 SCR 995 and, therefore, it was held in Sidhajbhai Sabhai case, (1963) 3 SCR 837 that the opinion in that case was not an authority for the proposition that all regulative measures, which were not destructive or annihilative of the character of the institution established by the minority, provided the Regulations were in the national or public interest, were valid. In this connection it was further held at SCR pp. 856-57, as follows: The right established 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the Constitution. This decision, therefore, cannot be an authority for the proposition canvassed before us. 119. In a concurrent judgment, while noting (at SCC p. 770, para 73) that "clause (2) of Article 29 forbids the denial of admission to citizens into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them", Khanna, J. then examined Article 30, and observed at SCR p. 222, as follows: (SCC p. 770, para 74) 74. Clause (1) of Article 30 gives right to all minorities, whether based on religion or language, to establish and administer educational institutions of their choice. Analysing that Clause it would follow that the right which has been conferred by the Clause is on two types of 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 institu....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the majority and the approach has been to ensure that nothing should be done as might deprive the minorities of a sense of belonging, of a feeling of security, of a consciousness of equality and of the awareness that the conservation of their religion, culture, language and script as also the protection of their educational institutions is a fundamental right enshrined in the Constitution. The same generous, liberal and sympathetic approach should weigh with the courts in construing Articles 29 and 30 as marked the deliberations of the Constitution-makers in drafting those articles and making them part of the fundamental rights. The safeguarding of the interest of the minorities amongst Sections of population is as important as the protection of the interest amongst individuals of persons who are below the age of majority or 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 discrim....
X X X X Extracts X X X X
X X X X Extracts X X X X
....1). The Court's attention was drawn to the fact that in Kerala Education Bill, 1957 case, 1959 SCR 995, this Court had opined that clauses 11 and 12 made it obligatory for all aided schools to select teachers from a panel selected from each district by the Public Service Commission and that no teacher of an aided school could be dismissed, removed or reduced in rank without the previous sanction of the authorized officer. At SCR p. 245, Khanna, J., observed that in cases subsequent to the opinion in Kerala Education Bill, 1957 case, (1959) SCR 995 this Court had held similar provisions as Clause 11 and Clause 12 to be violative of Article 30(1) of the minority institutions. He then observed as follows: (SCC p. 792, para 109). The opinion expressed by this Court in Re Kerala Education Bill, 1957, 1959 SCR 995, was of an advisory character 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 we....
X X X X Extracts X X X X
X X X X Extracts X X X X
....right to establish and administer educational institutions of their choice. Secularism and equality being two of the basic features of the Constitution, Article 30(1) ensures protection to the linguistic and religious minorities, thereby preserving the secularism of the country. Furthermore, the principles of equality must necessarily apply to the enjoyment of such rights. No law can be framed that will discriminate against such minorities with regard to the establishment and administration of educational institutions vis-a-vis other educational institutions. Any law or Rule or Regulation that would put the educational institutions run by the minorities at a disadvantage when compared to the institutions run by the others will have to be struck down. At the same time, there also cannot be any reverse discrimination. It was observed in St. Xavier's College case, (1975) 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 w....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... State funds, not to take part in any religious instruction, if imparted by such institution, without his/her consent (or his/her guardian's consent if such a person is a minor). Just as Articles 28(1) and (3) become applicable the moment any educational institution takes aid, likewise, Article 29(2) would also be attracted and become applicable to an educational institution maintained by the State or receiving aid out of State funds. It was strenuously contended that the right to give admission is one of the essential ingredients of the right to administer conferred on the religious or linguistic minority, and that this right should not be curtailed in any manner. It is difficult to accept this contention. If Articles 28(1) and (3) apply to a minority institution that receives aid out of State funds, there is nothing in the language of Article 30 that would make the provisions of Article 29(2) inapplicable. 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....community candidates so as to maintain the minority character of the institution, and that the State may regulate the intake in this category with due regard to the area that the institution was intended to serve, but that this intake should not be more than 50% in any case. Thus, St. Stephen's endeavoured to strike a balance between the two articles. Though we accept the ratio of St. Stephen's which has held the field for over a decade, we have compelling reservations in accepting the rigid percentage stipulated therein. As Article 29 and Article 30 apply not only to institutions of higher education but also to schools, a ceiling of 50% would not be proper. It will be more appropriate that, depending upon the level of the institution, whether it be a primary or secondary or high school or a college, professional or otherwise, and on the population and educational needs of the area in which the institution 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ional institutions of their choice, as contemplated Under Article 30 of the Constitution, the State Government or the university may not be entitled to interfere with that right, so long as the admission to the unaided educational institutions is on a transparent basis and the merit is adequately taken care of. The right to administer, not being absolute, there could be regulatory measures for ensuring educational standards and maintaining excellence thereof, and it is more so in the matter of admissions to professional institutions. ... Q. 5. (a) Whether the minorities's rights to establish and administer educational institutions of their choice will include the procedure and method of admission and selection of students? A. A minority institution may have its own procedure and method of admission as well as selection of students, but such a procedure must be fair and transparent, and the selection of students in professional and higher education colleges should be on the basis of merit. 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 stud....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n different kinds of qualifications like a common entrance test, would not be in violation of the rights conferred. The unaided minority institutions Under Article 30(1) of the Constitution of India have the right to admit students, but the merit may be determined by common entrance test and the rights Under Article 30(1) is not absolute so as to prevent the Government from making any Regulations. The Government cannot be prevented from framing Regulations that are in national interest. However, the safeguard is that the Government cannot discriminate any minority institution and put them in a disadvantageous position vis-a-vis to other educational institutions and has to maintain the concept of equality in real sense. The minority institutions must be allowed to do what non-minority institutions are permitted. It is open to State/concerned bodies to frame Regulations with respect to affiliation and recognition, to provide a proper academic atmosphere. While answering question No. 4, it was held that the Government or the University can lay down the regulatory measures ensuring educational standards and maintaining excellence and more so, in the matter of admission to the professio....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ion of merit in the matter of admissions. Regulatory measures for ensuring educational standards and maintaining excellence thereof are no anathema to the protection conferred by Article 30(1). However, a distinction is to be drawn between unaided minority educational institution of the level of schools and undergraduate colleges on the one side and institutions of higher education, in particular, those imparting professional education, on the other side. In the former, the scope for merit-based selection is practically nil and hence may not call for Regulation. But in the case of the latter, transparency and merit have to be unavoidably taken care of and cannot be compromised. There could be regulatory measures for ensuring educational standards and maintaining excellence thereof. (See para 161, answer to Question 4, in Pai Foundation, (2002) 8 SCC 481.) The source of this distinction between two types of educational institutions referred to hereinabove is to be found in the principle that right to administer does not include a right to maladminister. 106. S.B. Sinha, J. has, in his separate opinion in Islamic Academy, (2003) 6 SCC 697, described (in para 199) the situati....
X X X X Extracts X X X X
X X X X Extracts X X X X
.....'s opinion in Islamic Academy, (2003) 6 SCC 697. Dealing with unaided minority educational institutions in T.M.A. Pai Foundation (supra), the court observed that Article 30 does not come in the way of the State stepping in to secure transparency and recognition of merit in the matter of admissions. Regulatory measures for ensuring educational standards can be framed. In the case of professional education, transparency and merit have to be unavoidably taken care of and cannot be compromised. 30. In Sindhi Education Society and Anr. v. Chief Secretary, Government of NCT of Delhi and Ors., (2010) 8 SCC 49, the Court opined that measures to regulate the courses of study, qualifications, and appointment of teachers, the conditions of employment are germane to the affiliation of minority institutions. The Court held thus: 47. Still another seven-Judge Bench of this Court, in Ahmedabad St. Xavier's College Society, (1974) 1 SCC 717, was primarily concerned with the scope of Articles 29 and 30 of the Constitution, relating to the rights of minorities to impart general education and applicability of the concept of affiliation to such institutions. Of course, the Cour....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ing regard to the public interest and national interest of the country. Regulation can also be framed to prevent maladministration as well as for laying down standards of education, teaching, maintenance of discipline, public order, health, morality, etc. It is also well settled that a minority institution does not cease to be so, the moment grant-in-aid is received by the institution. An aided minority educational institution, therefore, would be entitled to have the right of admission of students belonging to the minority group and, at the same time, would be required to admit a reasonable extent of non-minority students, to the extent, that the right in Article 30(1) is not substantially impaired and further, the citizen's right Under Article 29(2) is not infringed. In Chandana Das (Malakar) v. State of West Bengal and Ors., (2015) 12 SCC 140, the Court observed that the Government can frame the conditions of eligibility for appointment of such teachers, thus: 21. It is unnecessary to multiply decisions on the subject for the legal position is well settled. Linguistic institution and religious are entitled to establish and administer their institutions. Such righ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....subject to reasonable restriction in larger public interest of students community to promote merit, achieve excellence and curb malpractices by holding common entrance test for admission and fee structure can undoubtedly be regulated in such institutions. (b) This Court in Modern Dental College and Research Centre (supra) also held that unless the admission procedure and fixation of fees are 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. The Court also noted the menace of the fee prevailing in the various educational professional institutions and in the context of Articles 19(1)(g), 19(6), 30, 41 and 47, and considering the Schedule VII, Entry 25 of List III and Entry 63-66 of List I, this Court held that concerning "professional unaided minority" and "non-minority institutions", common entrance test has to be conducted by the State and Regulation of the fee structure by it is permissible. The Court took note of the large-scale malpractices, exploitation of students, profiteering, and commercialisation and entrance examination held by ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....er, such restrictions should be "in the interest of general public", which conditions are stipulated in Clause (6) of Article 19, as under: 19. (6) Nothing in Sub-clause (g) of the said Clause shall affect the operation of any existing law insofar as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said Sub-clause, and, in particular, nothing in the said Sub-clause shall affect the operation of any existing law insofar as it relates to, or prevent the State from making any law relating to-- (i) the professional or technical qualifications necessary for practising 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. 60. 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 qualificatio....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... recognising positive constitutional rights along with its limitations are the notions of democracy and the Rule of law. Thus, the requirement of proportional 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 the 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 cornerstone 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... C.J. of Canada in R. v. Oakes, (1986) 1 SCR 103 (Can SC) in the following words (at p. 138): To establish that a limit is reasonable 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s must not be arbitrary or of an excessive nature so as to go beyond the requirement of the interest of the general 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 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 of the constitutionality of the Act will naturally arise. (e) Concerning necessity of regulatory framework, the Court opined: 85. No doubt, we have entered into an era of l....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ion, though the market economy is restored, at the same time, it is also felt that market economies should not exist in pure form. Some Regulation of the various industries is required rather than allowing self-Regulation by market forces. This intervention through regulatory bodies, particularly in pricing, is considered necessary for the welfare of the society and the economists point out that such regulatory economy does not rob the character of a market economy which still remains a market economy. Justification for regulatory bodies even in such industries managed by private sector lies in the welfare of people. Regulatory measures are felt necessary to promote basic well being for individuals in need. It is because of this reason that we find regulatory bodies in all vital industries like, insurance, electricity and power, telecommunications, etc. 90. Thus, it is felt that in any welfare economy, even for private industries, there is a need for regulatory body and such a regulatory framework for education sector becomes all the more necessary. It would be more so when, unlike other industries, commercialisation of education is not permitted as mandated by the Constit....
X X X X Extracts X X X X
X X X X Extracts X X X X
....T conducted by such private institutions themselves, for which plethora of material is produced, it is, undoubtedly, in the larger interest and welfare of the student community to promote merit, add excellence and curb malpractices. The extent of restriction has to be viewed keeping in view all these factors and, therefore, we feel that the impugned provisions which may amount to "restrictions" on the right of the Appellants to carry on their "occupation", are clearly "reasonable" and satisfied the test of proportionality. 86. It is, therefore, to be borne in mind that the occupation of education cannot be treated on a par with other economic activities. In this field, the State cannot remain a mute spectator and has to necessarily step in order to prevent exploitation, privatisation and commercialisation by the private sector. It would be pertinent to mention that even in respect of those economic activities which are undertaken by the private sector essentially with the objective of profit-making (and there is nothing bad about it), while throwing open such kind of business activities in the hands of private sector, the State has introduced regulatory regime as well by p....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Regulation on fixation of fee is to protect the rights of the students in having access to higher education without being subjected to exploitation in the form of profiteering. With the above reasonings, I concur with the majority view in upholding the validity of the impugned legislation and affirm the well-merited decision of the High Court. (h) The Court in Modern Dental College and Research Centre (supra) while considering the decision in T.M.A. Pai Foundation (supra) opined that Court did not give complete freedom to admit the students and also as to fixation of fee. Admission has to be based on merit, particularly in professional educational institutions. This Court observed thus: 34. In the modern age, therefore, particularly after the policy of liberalisation adopted by the State, educational institutions by private bodies are allowed to be established. There is a paradigm shift over from the era of complete government control over education (like other economic and commercial activities) to a situation where private players are allowed to mushroom. But at the same time, regulatory mechanism is provided thereby ensuring that such private institutions work withi....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... held in para 198 of the judgment that: (SCC p. 752) 198. [w]e are, therefore, of the opinion, adopting the line of reasoning in State of Bombay v. R.M.D. Chamarbaugwala AIR 1957 SC 699, that imparting education cannot be treated as a trade or business. Education cannot be allowed to be converted into commerce nor can Petitioners seek to obtain the said result by relying upon the wider meaning of "occupation". 38. In Unni Krishnan case, (1993) 1 SCC 645, this Court also rejected the argument that the said activity could be classified as a "profession". However, the right of professional institutions to establish and manage educational institutions was finally regarded as an "occupation" befitting the recognition of this right as a fundamental right Under Article 19(1)(g) in T.M.A. Pai Foundation, (2002) 8 SCC 481, in the following words: (SCC p. 535, para 25) 25. The establishment and running of an educational institution where a large number of persons are employed as teachers or administrative staff, and an activity is carried on that results in the imparting of knowledge to the students, must necessarily be regarded as an occupation, even if there is n....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... agencies. Para 59 suggesting these modes reads as under: (T.M.A. Pai Foundation case, (2002) 8 SCC 481, SCC p. 546) 59. Merit is usually determined, for admission to professional and higher education colleges, by either the marks that 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. 43. In order to ensure that the said CET is fair, transparent and merit-based, T.M.A. Pai Foundation, (2002) 8 SCC 481, also permitted the Government to frame Regulations for unaided private professional educational institutions. Paras 67 and 68 which permit framing of such Regulations are reproduced below: (SCC p. 549) 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 ins....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d the extent of government Regulation of the said right. It was held that the right to establish and administer an institution included the right to admit students and to set up a reasonable fee structure. But the said right could be regulated to ensure maintenance of proper academic standards, atmosphere and infrastructure. Fixing of rigid fee structure, dictating the 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s had absolute right to make admissions or to fix fee is not consistent with the earlier decisions of this Court. Neither merit could be compromised in admissions to professional institutions nor capitation fee could be permitted. To achieve these objects it is open to the State to introduce regulatory measures. We are unable to accept the submission that the State could intervene only after proving that merit was compromised or capitation fee was being charged. As observed in the earlier decisions of this Court, post-audit measures would not meet the regulatory requirements. Control was required at the initial stage itself. Therefore, our answer to the first question is that though "occupation" is a fundamental right, which gives right to the educational institutions to admit the students and also fix the fee, at the same time, scope of such rights has been discussed and limitations imposed thereupon by the aforesaid judgments themselves explaining the nature of limitations on these rights. 55. 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, (2002) 8 SCC 48....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he matter to achieve fulfilment of twin objectives of transparency and merit and for that purpose it permitted the State to provide a procedure of holding a CET in the interest of securing fair and merit-based admissions and preventing maladministration. This Court also considered the balancing of rights even if there is a violation of fundamental rights of the Appellants to admit students by Central Examination Test by State. It held as under: 92. In this sense, when imparting of quality education to cross-section of the society, particularly, the weaker Section and when such private educational institutions are to rub shoulders with the State managed educational institution to meet the challenge of the implementing ambitious constitutional promises, the matter is to be examined in a different hue. It is this spirit which we have kept in mind while balancing the right of these educational institutions given to them Under Article 19(1)(g) on the one hand and reasonableness of the restrictions which have been imposed by the impugned legislation. The right to admission or right to fix the fee guaranteed to these Appellants is not taken away completely, as feared. T.M.A. P....
X X X X Extracts X X X X
X X X X Extracts X X X X
....satisfy the triple test of being fair, transparent and non-exploitative. Thus, the judgments of the Supreme Court in T.M.A. Pai Foundation, (2002) 8 SCC 481 and P.A. Inamdar, (2005) 6 SCC 537, permit holding of a common entrance test for determination of merit for admission to private unaided professional educational institutions by the State as well as any agency which enjoy utmost credibility and expertise in the matter and which should ensure transparency in merit. * ** 37. Sections 3(d), 6 and 7 of the 2007 Act by providing that the common entrance test for determining merit for admissions in the private unaided professional educational institutions by a common entrance test to be conducted by the State or by an agency authorised by the State do not interfere with the autonomy of private unaided professional educational institutions, as such private professional educational institutions are entitled to collect the fees from the students admitted to the institutions on the basis of merit, appoint their own staff (teaching and non-teaching), discipline and remove the staff, provide infrastructure and other facilities for students and do all such other things as ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....se who are not parties to this petition have made submissions that in view of the judgment passed in Christian Medical College, Vellore v. Union of India, it would not be proper to hold NEET and this order should not affect pending matters. 12. We do not agree with the first submission for the reason that the said judgment has already been recalled on 11-4-2016 and therefore, the Notifications dated 21-12-2010 are in operation as on today. On 6.5.2016, the Court directed that no examination shall be permitted to be held for admission to MBBS or BDS studies by any private college or association or any private/deemed university. Relevant portion is extracted hereunder: 23. In view of the request made by the learned Solicitor General, hearing is adjourned to 9-5-2016. However, it is clarified that no examination shall be permitted to be held for admission to MBBS or BDS studies by any private college or association or any private/deemed university. 24. The issue with regard to those students, who had appeared or who are due to appear in examinations conducted by the States in accordance with their State laws, shall be decided after hearing the learned Sol....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ned that the said decision encompasses not only the State-conducted centralised test but also State-conducted centralised counselling. This Court issued a mandate for both the purposes, i.e., examination as well as counselling and held: 5. We have heard the learned Counsel for the parties at length. We observe that mandate of our judgment was to hold centralised entrance test followed by centralised State counselling by the State to make it a one composite process. We, therefore, direct that admission to all medical seats shall be conducted by centralised counselling only by the State Government and none else. 6. If any counselling has been done by any college or university and any admission to any medical seat has been given so far, such admission shall stand cancelled forthwith and admission shall be given only as per centralised counselling done by the State Government. 34. In D.Y. Patil Vidyapeeth (supra), the Court again clarified that the decision in Modern Dental College and Research Centre (supra) encompasses not only centralised State-conducted test but also centralised State-conducted counselling. 35. The MCI amended vide notification dated 10.3.20....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e given solely on the basis of the merits and/or marks obtained in the NEET examination only. It is required to be noted that earlier the respective universities including Gujarat University used to hold examination for postgraduate admission to medical courses and now instead of such tests by Gujarat University/universities concerned, merit is to be determined on the basis of the NEET examination results only and admissions are required to be given on the basis of such merits or marks obtained in NEET. The only obligation by virtue of introduction of NEET is that, once centralised admission test is conducted, the State, its agencies, universities and institutions cannot hold any separate test for the purpose of admission to postgraduate and PG and diploma courses and such seats are to be filled up by the State agencies, universities/institutions for preparing merit list as per the score obtained by the applicants in NEET examination and therefore by introduction of NEET, Section 10-D of the MCI Act has been amended, consequently amendment to the Post-Graduate Education Regulations, 2000, admission to postgraduate courses are made providing for solely on the basis of the score secu....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s gauged in Modern Dental College and Research Centre (supra) in a broader perspective considering prevailing situation of capitation fee and education becoming saleable commodity. A decision has been taken to regulate admission in professional colleges on national basis so as to wipe out the corruption and various evils from the system. Even, the NEET has been made applicable to such premier institution like All India Institute of Medical Sciences (AIIMS) and so many others. The decision has been taken considering the overall national scenario, there cannot be any exemption, otherwise, there would be no end to such claims and multiple examinations. It would not be possible to eradicate evils. We cannot restore overall derogatory situation which prevailed before introduction of NEET. Still, there are several loopholes, which are to be plugged in the admission procedure. Unscrupulous practices are being adopted by private colleges of not admitting students sponsored by centralised counselling committee. The minority and private institutions have to admit students based on merit in the permissible category, based on NEET as per procedure prescribed under the Act and Regulations. 3....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s person. It was also observed that at the same time such a price would have to be paid if the constitutional promise of social justice was to be redeemed. However, after making such suggestions, a note of caution was introduced in the very next paragraph in the light of Article 15 of the Constitution. A distinction was, however, made with regard to the provisions of Article 16 and it was held that Article 335 would be relevant and it would not be permissible not to prescribe any minimum standard at all. of course, the said observation was made in the context of admission to medical colleges and reference was also made to the decision in State of M.P. v. Nivedita Jain, (1981) 4 SCC 296, where admission to medical courses was regulated by an entrance test. It was held that in the matter of appointment of medical officers, the Government or the Public Service Commission would not be entitled to say that there would not be minimum qualifying marks for Scheduled Castes/Scheduled Tribes candidates while prescribing a minimum for others. In the very next paragraph, the nine-Judge Bench while discussing the provisions of Article 335 also observed that there were certain services and posts....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sures can be carved out. They do not impinge upon the rights of institutions guaranteed Under Articles 14, 19(1)(g), 25 and 30 of the Constitution of India. 42. In T.M.A. Pai Foundation (supra), this Court opined that State maintained or aided educational institutions, whether established by the Government or the majority or a minority community cannot deny admission to a citizen on the grounds only of religion, race, caste or language. While considering the issue In Re The Kerala Education Bill (supra), it was observed that the right of the private training colleges to admit students of their choice was severely restricted. It further observed that the right Under Article 30(1) is not so absolute as to prevent the State from making any Regulation whatsoever. The Government cannot be prevented from framing Regulations that are in the national interest. This Court observed that it is difficult to comprehend that right to the religious or linguistic minorities are given by the Constitution, which would enable them to establish and administer educational institutions in a manner to conflict with the other Parts of the Constitution. There is no reason why conditions for the welfare ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Constitution our contemplation cannot only be of what has been but what may be. Time works changes and brings into existence new conditions. Subtler and far reaching means of invading privacy will make it possible to be heard in the street what is whispered in the closet. Yet, too broad a definition of privacy raises serious questions about the propriety of judicial reliance on a right that is not explicit in the Constitution. of course, privacy primarily concerns the individual. It therefore relates to and overlaps with the concept of liberty. The most serious advocate of privacy must confess that there are serious problems of defining the essence and scope of the right. Privacy interest in autonomy must also be placed in the context of other rights and values. 24. Any right to privacy must encompass and protect the personal intimacies of the home, the family, marriage, motherhood, procreation and child rearing. This catalogue approach to the question is obviously not as instructive as it does not give analytical picture of the distinctive characteristics of the right of privacy. Perhaps, the only suggestion that can be offered as unifying principle underlying the concep....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ns to follow. The Constitution cannot be seen as a document written in ink to replace one legal regime by another. It is a testament created for securing the goals professed in Preamble Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225. "91. ... Our Preamble outlines the objectives of the whole Constitution. It expresses "what we had thought of dreamt for so long"." (SCC p. 323, para 91). Part III of the Constitution is incorporated to ensure the achievement of the objects contained in the Preamble Kerala Education Bill, 1957, In re AIR 1958 SC 956 "5. ... To implement and fortify these supreme purposes set forth in the Preamble, Part III of our Constitution has provided for us certain fundamental rights." (AIR p. 965, para 5). "We the People" of this country are the intended beneficiaries Bidi Supply Co. v. Union of India AIR 1956 SC 479 "23. After all, for whose benefit was the Constitution enacted? What was the point of making all this bother about fundamental rights? I am clear that the Constitution is not for the exclusive benefit of governments and States; it is only for lawyers and politicians and officials and those highly placed. It also exists for the common man, f....
X X X X Extracts X X X X
X X X X Extracts X X X X
....onal interest is required. The individual autonomy, rights, and obligations are to be free from official interference except where the rational basis for intrusion exists. The Constitution provides a limitation on the power of the State to interfere with life, liberty, and rights, however, the concept of limited government cannot be extended to a level when it defeats the very national interest. The maladies with which professional education suffers in this country are writ large. The regulatory framework created by the MCI/DCI is concomitant of conditions, affiliation and recognition, and providing central examination in the form of NEET cannot be said to be violative of the rights Under Articles 19(1)(g) and 30. The regulatory framework is not restrictive, but caters to the effective enjoyment of the rights conferred under the aforesaid provisions. The provisions qualify the doctrine of proportionality considered in Modern Dental College and Research Centre (supra). What has been held therein for State level examination holds good for NEET also. 48. The prescription of NEET is definitely in order to improve the medical education, co-related to the improvement of public health,....
X X X X Extracts X X X X
X X X X Extracts X X X X
....fessional educational institutions. It observed that professional educational institutions constitute a class by themselves and are distinguished from educational institutions imparting non-professional education. With respect to unaided minority educational institutions, Article 30 of the Constitution does not come in the way of the State stepping in for the purpose of securing transparency and recognition of merit in the matter of admissions, and the conditions of recognition are binding on such institutions. In P.A. Inamdar (supra), the Court opined that the admissions based on merit were in the national interest and strengthening the national welfare. 51. In Ahmedabad St. Xavier's College Society (supra), the Court held that minority institutions have a right to admit students of their choice subject to reasonable restriction for the academic qualification and the Regulation, which will serve the interest of the students, can be imposed for ensuring efficiency and fairness. Education is vital for the nation; it develops the ethos of the nation. Regulations are necessary to see that there are no divisive or disintegrating forces in administration. It observed that it is n....
X X X X Extracts X X X X
X X X X Extracts X X X X
....lling the seats in derogation to rights of meritorious students. The charitable activity of education became a saleable commodity and prerogative of wealthy persons and poor students were forced to get education funded from Banks making it difficult for them to come out of tentacular octave of interest. They are exploited in bud before they bloom into flower. The ill-reputation developed by MCI forced to change its entire structure. The national interest requires further improvement in the system to eradicate evils from the system. The situation is still grim and require to be dealt with firm hand and steely determination. 54. In Dr. Preeti Srivastava and Anr. v. State of M.P. and Ors. (supra), it was opined that at super speciality level there cannot be any reservation or lowering of the minimum qualifying marks. In Modern Dental College and Research Centre (supra), considering various malpractices, it was observed that education is being used as exploitative financial device. Education is not a commodity to be purchased by money power and deserving one as per merit cannot be deprived of the right to obtain it. The State cannot remain a mute spectator, and it must step in to pr....
X X X X Extracts X X X X
X X X X Extracts X X X X
....iliation are binding apart from that, we find that when it comes to national standards and the objects sought to be achieved by NEET, to conduct individual examinations by some institutions cannot be permitted. The system is not yet out of clutches of unscrupulous devices and dubious means are adopted to defeat merit, the interest of education would further suffer and very purpose of centralised examination would be defeated. It is not possible to prescribe further examination over and above NEET that cannot be said to be workable, no exemption can be granted from NEET, considering the objective with which it has been introduced. We find that the uniform Entrance Examination cannot be said to be unreasonable regulatory framework. Considering the terms and conditions for affiliation and recognition for professional medical and such other professional courses are binding, and no relaxation can be permitted in the conditions. 58. Thus, we are of the opinion that rights Under Articles 19(1)(g) and 30 read with Articles 25, 26 and 29(1) of the Constitution of India do not come in the way of securing transparency and recognition of merits in the matter of admissions. It is open to reg....