TMI Blog2016 (5) TMI 1366X X X X Extracts X X X X X X X X Extracts X X X X ..... contained in the Act and the Rules are not offensive of Article 19(1)(g) of the Constitution. Though the fee can be fixed by the educational institutions and it may vary from institution to institution depending upon the quality of education provided by each of such institution, commercialisation is not permissible. In order to see that the educational institutions are not indulging in commercialisation and exploitation, the Government is equipped with necessary powers to take regulatory measures and to ensure that these educational institutions keep playing vital and pivotal role to spread education and not to make money. So much so, the Court was categorical in holding that when it comes to the notice of the Government that a particular institution was charging fee or other charges which are excessive, it has a right to issue directions to such an institution to reduce the same. When we scan through Section 9 of the Act, 2007 we find that the parameters which are laid down therein that has to be kept in mind while fixing the fee are in fact the one which have been enunciated in the judgments of this Court referred to above. It is also significant to note that the Committee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e CET called 'NEET' become operative, it will be a matter between the States and the Union, which will have to be sorted out on the touchstone of Article 254 artof the Constitution. We need not dilate on this aspect any further. State has the legislative competence to enact the impugned legislation-Act 2007 to hold common entrance test for admission to professional educational institutions and to determine the fee and the High Court has rightly upheld the validity of the impugned legislation. Regulations sought to be imposed by the impugned legislation on admission by common entrance test conducted by the State and determination of fee are in compliance of the directions and observations in T.M.A. Pai [2002 (10) TMI 739 - SUPREME COURT], Islamic Academy of Education [2003 (8) TMI 469 - SUPREME COURT] and P.A. Inamdar [2005 (8) TMI 614 - SUPREME COURT ]. Regulations on admission process are necessary in the larger public interest and welfare of the student community to ensure fairness and transparency in the admission and to promote merit and excellence. Regulation on fixation of fee is to protect the rights of the students in having access to higher education without being subje ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lating to admission, eligibility for admission and fixation of fee are concerned, the main contention of the appellants was that these medical and dental colleges being private unaided colleges, it is their fundamental right under Article 19(1)(g) of the Constitution of India to lay down the eligibility criteria for admission and admit the students as well as fix their fee. Relying upon the eleven Judge Bench decision of this Court in T.M.A. Pai Foundation Ors. v. State of Karnataka Ors.[ (2002) 8 SCC 481], it was argued that right to administer educational institution is recognised as an 'occupation' and is, thus, a fundamental right to carry on such an occupation as stipulated in Article 19(1)(g). According to the appellants, the provisions in the aforesaid Act and Rules impinge upon the fundamental right guaranteed to these institutions under the Constitution and, therefore, the said provisions are violative of Article 19(1)(g) of the Constitution. Insofar as provision relating to reservation of seats to Scheduled Castes, Scheduled Tribes, etc. is concerned, the emphasis of the appellants was two fold: First, it was argued that private educational institutions cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vance against the aforesaid enactment only by medical and dental educational institutions. Institutions imparting other kind of professional education have not felt aggrieved. Be that as it may, for regulating the admission and fixation of fee under Section 4 of the Act, a committee known as 'Admission and Fee Regulatory Committee' (hereinafter referred to as the 'Committee') is constituted for the supervision and guidance of the admission process and for the fixation of fee to be charged from candidates seeking admission in a private professional educational institution. This Section further provides for composition, disqualification and functions of the Committee. Chapter III which comprises of Sections 5 to 8 deals with 'Admission'. As per Section 5, the eligibility for admission to such institutions shall be such as may be notified by the appropriate authority. These eligibility conditions are provided in Rules, 2008. Section 6 prescribes 'Common Entrance Test' (for short, 'CET') on the basis of which admissions would be made and the same reads as under: 6. Common Entrance Test In private unaided professional educational insti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Government to make Regulations consistent with the Act and the Rules made thereunder, inter alia, relating to the eligibility of admission, manner of admission and allocation of seats in a professional educational institution, including the reservation of seats, as well as the manner or criteria for determination of fee to be charged by professional educational institutions from the students and the fee that is to be charged by the professional educational institutions. It may be mentioned that Circular/Notification dated February 28, 2009 and March 15, 2009 was issued by the State Government under Section 6 of the Act, 2007 appointing the Professional Examination Board, Bhopal (which is known as VYAPAM) as the agency to conduct the entrance examination for the Post-graduate Entrance Examination of Private Medical and Dental universities and under-graduate examination respectively. The Impugned Judgment As already mentioned above, the High Court classified the challenge to the provisions of the aforesaid Act and Rules into four heads and then dealt with each head separately. Insofar as challenge to the provision relating to admission is concerned, the High Court has concluded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ploitativeness thereby compelling the State to substitute the same by its own procedure and sufficient material was produced by the respondents on record to show that prior to the enactment of the Act, 2007, there were number of complaints of malpractices in admissions in the private professional educational institutions which were found to be true. In nutshell, the High Court took the opinion that having regard to the larger interest of the welfare of the students community to promote merit, achieve excellence, curb malpractices and to secure grant of merit based admission in transparent manner, the Legislature in its wisdom had passed the Act in question, also keeping in mind the prevailing conditions relating to admissions in such institutions in the State of Madhya Pradesh. It, thus, concluded on this aspect that Sections 3(d), 6 and 7 of the Act, 2007 do not impinge on the fundamental right to carry on the 'occupation' of establishing and administering professional educational institutions. Dealing with the challenge to the provisions relating to fixation of fees, viz. Sections 4(1), 4(8) and 9 of the Act in question, the High Court recognised the right of these ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y-Third Amendment) Act, 2005, another enabling provision was introduced empowering the State to make any special provision by law for advancement of any socially and educationally backward classes of citizens or for the Scheduled Tribes or the Scheduled Castes insofar as such special provision relates to admission to the educational institutions, including the private professional educational institutions, whether aided or unaided. Thus, in terms of Article 15(5) of the Constitution, the State was empowered to provide reservation to such weaker sections even in respect of unaided institutions, including minority institutions. In that context, the High Court went into the arithmetic of the seats that have been earmarked under Rule 7 of Rules, 2009 for candidates belonging to different reserved categories in different disciplines or subjects and on that basis came to the conclusion that the distribution of seats to those categories clearly demonstrates that sufficient number of seats have been allotted also for unreserved categories in different disciplines or subjects of post graduate medical and dental courses in Medical and Dental colleges in the State of Madhya Pradesh. In the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the enactment of the Act, 2007 clearly exhibited that private unaided institutions were not able to ensure a fair, transparent and non- exploitative admission procedure. As such, the High Court upheld the provisions of the Act, 2007 and the Rules, 2008 read with notifications issued thereunder to be constitutionally valid. (ii) Re.: Fee Regulation With regard to the challenge to Sections 4(1), 4(8) and 9 of the Act, 2007 read with Rule 10 of the Rules, 2008, it is held that the power of the Fee Regulatory Committee under the provisions was only 'regulatory' and the purpose of which was to empower the Committee to be satisfied that the fee proposed by the private professional institutions did not amount to profiteering or commercialisation of education and was based on intelligible factors mentioned in Section 9(1) of Act, 2007 providing a canalised power which was not violative of the fundamental rights of the private professional institutions to charge their own fee. (iii) Re.: Reservation The challenge to Section 8 of Act, 2007 and Rules 4 7 of Rules, 2008 relating to reservations were not seriously pressed by the appellants in view of the amendment to Art ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by conducting CET and even counseling would fall foul of the fundamental right to carry on occupation guaranteed under Article 19(6) of the Constitution and such provisions cannot be saved under Article 19(6) of the Constitution as well as they disturb the Doctrine of Proportionality. It was submitted that the State's intervention, if at all, can only be with consensual arrangement and not otherwise. (ii) Likewise, it is argued by the appellants that as a facet of Article 19(1)(g) of the Constitution, right to fix the fee is conferred upon these educational institutions which are unaided and, therefore, the State cannot assume that power to itself. Here again, the power of the State was limited to that of 'policing', viz., to ensure that the fee fixed by the educational institutions does not amount to 'profiteering' and that it does not result in 'commercialisation' of the education. According to the appellants, to ensure this, the only mechanism that can be provided is the 'Complaint Mechanism' whereunder after the fee is fixed by the educational institution and if there is grievance of the students or parents or even the authorities against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with Section 3(d) necessitate that the admission be carried out only on the basis of a CET to be conducted by the State Government or any agency appointed by it. Section 7 of the Act provides that the admission in violation of the provisions of the Act (i.e. in a manner otherwise than by a CET conducted by the State Government or the agency appointed by it) would be void. In addition, Section 9 of the Act provides for the Committee defined under Section 3(c) of the Act to 'determine' and 'fix' the fees to be charged by the appellants and thereby completely trample the rights of the appellants to determine and charge the fee. The Committee is not an independent Committee but is manned by Government officials and, therefore, effectively the State Government has devised the said mechanism to fix the fees of the private colleges. Section 8 provides for reservation in private institutions, including post-graduate courses, which the appellants submit is impermissible in light of the law laid down by this Court in the case of Ashok Kumar Thakur v. Union of India Ors.[ (2007) 4 SCC 361]. It is their submission that right available to the appellants institutions is to d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at if the institutions are entirely self-financing, the State shall have minimal interference and the interference can be made only for the purposes of Maintaining Academic Standards. Besides this, it was held that the colleges enjoy the greatest autonomy and the same ought to be protected. The Court has considered the scope of the 'reasonable restrictions' that can be provided by the State under Article 19(6) of the Constitution and held that the said power does not confer upon the State to take over the control of the affairs of the institutions which have been held to be reasonable restrictions. The appellants referred to the observations made in paragraph 54 with great emphasis: 54. The right to establish an educational institutional can be regulated; but such regulatory measures must, in general, be to ensure the maintenance of proper academic standards, atmosphere and infrastructure (including qualified staff) and the prevention of mal-administration by those in charge of management. The fixing of a rigid fee structure, dictating the formation and composition of a governing body, compulsory nomination of teachers and staff for appointment or nominating students fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were challenged before this Court. The matter was referred to a larger Bench, which answered the reference in the case of P.A. Inamdar, wherein it was held as under: 132. Our answer to the first question is that neither the policy of reservation can be enforced by the State nor any quota or percentage of admissions can be carved out to be appropriated by the State in a minority or non-minority unaided educational institution. Minority institutions are free to admit students of their own choice including students of non- minority community as also members of their own community from other States, both to a limited extent only and not in a manner and to such an extent that their minority educational institution status is lost. If they do so, they lose the protection of Article 30(1). There is nothing wrong in an entrance test being held for one group of institution imparting same or similar education. Such institutions situated in one State or in more than one State may join together and hold a common entrance test...... xx xx xx 141. Our answer to Question 3 is that every institution is free to devise its own fee structure but the same can be regulated in the interest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s well as Rules framed thereunder were unconstitutional/ violative of fundamental rights of the appellants guaranteed under Article 19(1)(g) of the Constitution of India. Her submission was that undoubtedly the Court recognised the right of the citizens to establish and manage educational institutions, as fundamental right, by regarding the same as an 'occupation' under Article 19(1)(g) of the Constitution in T.M.A. Pai Foundation and also bringing them at par with the similar rights which were already conferred upon minorities to establish and manage professional/technical institutions under Article 30(1) of the Constitution. She, however, sought to highlight that analogously the Court also made it clear that these were subject to reasonable restrictions which can be imposed under Article 19(6) of the Constitution. She argued that T.M.A. Pai Foundation, in this process, expounded on the nature and extent of control on the basis of levels of education which has to be kept in mind and cannot be glossed over. This was explained in paragraph 61 of the judgment by observing that insofar as school level education is concerned, unaided private schools must have maximum autonomy s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olleges do not have a right to choose their own 'source' from a general pool. It was held that 'neither the minority nor non-minority institutions could mal-administer their educational institutions, especially professional institutions, that affect the quality of education, and by choosing students arbitrarily from within the sources that they are entitled to choose from'. Insofar as provision regarding fee regulations are concerned, her submission was that the mechanism which was provided did not take away the power of the educational institutions to fix the fee. On the contrary, even as per the procedure laid down the fee which the appellants intend to charge had to be placed before the Committee constituted under the Rules and the Committee was to consider whether proposed fee is proper or not and on that basis fix the fee keeping in view the parameters laid down in the Act and Rules which were in consonance with the principles enunciated in T.M.A. Pai Foundation and P.A. Inamdar as well as Modern School v. Union of India[(2004) 5 SCC 583]. She, thus, argued that this was only a regulatory mechanism. Ms. Makhija further submitted that principles of natural justi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for socio- political considerations and on the other the people who invest, set up and establish the institutions have a genuine desire to run and exercise functional control over the institution in the best interests of the students, it cannot be disputed that the State does not enjoy monopoly in the field of imparting medical education and the private medical colleges play a very significant role in this regard. The State lacks funds that is imperative to provide best infrastructure and latest facilities to the students so that they emerge as the best in their respective fields. In the modern age, therefore, particularly after the policy of liberalization 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 within such regulatory regime. When it comes to education, it is expected that unaided private institutions provide quality edu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d administer educational institutions. Insofar as Article 26 is concerned, it comes under the caption 'Right to Freedom of Religion'. As far as Article 30 is concerned, it is under the heading 'Cultural and Educational Rights'. Thus, rights of the minorities to establish and administer educational institutions was always recognised as fundamental rights. Further, the right of private unaided professional institutions to establish and manage educational institutions was not clearly recognised as a fundamental right covered under Article 19(1)(g) and categorically rejected by the Constitution Bench of this Court comprising of five Judges in the case of Unni Krishnan. It was held in paragraph 198 of the judgment that (w)e are, therefore, of the opinion adopting the line of reasoning in State of Bombay v. RMD Chamarbaugwala Anr.[1957 SCR 874] that imparting education cannot be treated as trade or business. Education cannot be allowed to be converted into commerce nor can petitioners seek to obtain the said result by relying on the wider meaning of 'occupation' . In that case, this Court also rejected the argument that the said activity could be classified as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #39;no profit no loss' basis. Thus, those who establish and are managing the educational institutions are not expected to indulge in profiteering or commercialise 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 merit when it comes to higher education, particularly in professional institutions. Ms. Vibha Datta Makhija is right in her submission that the significant feature of T.M.A. Pai Foundation is that it expounded on the nature and extent of its control on the basis of level of education. When it comes to higher education, that too in professional institutions, merit has to be the sole criteria. This is so explained in paragraph 58 of the judgment which reads as under: 58. For admission into any professional institution, merit must play an important role. While it may not be normally possible to judge the merit of the applicant who seeks admission into a school, while seeking admission to a pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it. 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 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. A plea was raised by the appellants that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udgment in T.M.A. Pai Foundation, a group of writ petitions were filed in this Court, which were dealt with by a Bench of five judges in Islamic Academy of Education. Four of the Judges were the same who were party to the judgment in T.M.A. Pai Foundation. The issue considered was the extent of autonomy in fixing the fee structure and making admissions. This Court held that while there was autonomy with the institutions to fix fee structure, there could be no profiteering and no capitation fee could be charged as imparting of education was essentially charitable in nature. This required setting up of a Committee by each of the States to decide whether fee structure proposed by an institute was justified and did not amount to profiteering or charging of capitation fee. The fee so fixed shall be binding for three years at the end of which a revision could be sought. With regard to the autonomy in admission, it was noted that the earlier judgment kept in mind the 'the sad reality that there are a large number of professional colleges which indulge in profiteering and/or charging capitation fees'. For this reason, it was provided that admission must be based on merit. It was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocedure and fee structure. Paragraph 68 in T.M.A. Pai Foundation case was explained by stating that observations permitting the management to reserve certain seats was meant for poorer and backward sections as per local needs. It did not mean to ignore the merit. It was also held that CET could be held, otherwise merit becomes casualty. There is, thus, no bar to CET being held by a State agency when law so provides. Thus, the contention raised on behalf of the appellants that the private medical colleges 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 submissions 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be further clear from Para 59 of the judgment in TMA Pai Foundation (supra), quoted above, that merit is usually determined for admission to a professional educational institution either by the marks that the students obtain at qualifying examination or at a common entrance test conducted by the institution or 'in the case of professional colleges, by Government agencies . In TMA Pai Foundation (supra), therefore, the Supreme Court was of the view that merit for admission to a professional institution could be determined by common entrance test conducted by the Government agencies. Referring to paragraphs 67 and 68 in T.M.A. Pai Foundation, it was observed: 29. ..It will be clear from the aforesaid portion of the judgment in TMA Pai Foundation (supra), that unaided professional educational institutions are entitled to autonomy in admissions but they cannot forego or discard the principle of merit and it would therefore be permissible for the Government to require the private unaided educational institutions to provide for a merit based admission while at the same time giving the management sufficient discretion in admissions. In the aforesaid portion of the judgment in TMA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e institutions imparting same or similar professional education together or by the State or by an agency which must enjoy utmost credibility and expertise and that the common entrance test followed by centralised counselling must satisfy the triple test of being fair, transparent and non-exploitative. Thus, the judgments of the Supreme Court in TMA Pai Foundation and PA. Inamdar (supra), 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. 34. Sections 3(d), 6 and 7 of the Act, 2007 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 mer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... help as that case did not concern with professional educational institutions. At this juncture, we would like to deal with the arguments of the appellants that the provisions contained in the Act and the Rules have the effect of completely taking away the rights of these educational institutions to admit the students. 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. 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 admiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 [Proportionality: Constitutional Rights and Their Limitation by Aharon Barak, 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 fulfillment of that purpose; (iii) the measures undertaken are necessary in that there are no alternative measures that may similarly achieve that same purpose with a lesser degree of limitation; and finally (iv) there needs to be a proper relation ('proportionality stricto sensu' or 'balancing') between the importance of achieving the proper purpose and the social importance of preventing the limitation on the constitutional right. Modern theory of constitutional rights draws a fundamental distinction between the scope of the cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts are related. This relativity means that a constitutional license to limit those rights is granted where such a limitation will be justified to protect public interest or the rights of other. 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 co-existing with the others. The best way to achieve t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r limiting the Charter right or freedom, and the objective which has been identified as of sufficient importance . The more severe the deleterious effects of a measure, the more important the objective must be if the measure is to be reasonable and demonstrably justified in a free and democratic society. The exercise which, therefore, 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. 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 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 permitted by any of the clauses (2) to (6). It is held t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pation', which is one of the freedoms guaranteed under Article 19(1)(g). It was so recognised for the first time in T.M.A. Pai Foundation. Even while doing so, this right 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 State. If such a power is exercised by the State assuming the function of CET, this was so recognised in T.M.A. Pai Foundation itself, as a measure of 'reasonable restriction on the said right'. Islamic Academy of Education further c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the problems of human being in a society. The High Court in its judgment has analysed the provisions of the Act and found that provisions for merit based admissions and procedure for fee fixation did not violate fundamental right of the private institutions to conduct admissions and to fix fee. We are in agreement with the said view and hold that provisions relating to admission as contained in the Act and the Rules are not offensive of Article 19(1)(g) of the Constitution. II. Re.: Provisions in the Act Rules relating to fixation of fee are unconstitutional being violative of Article 19(1)(g) of the Constitution? We may again remind ourselves that though right to establish and manage educational institution is treated as a right to carry on 'occupation', which is the fundamental right under Article 19(1)(g), the Court in T.M.A. Pai Foundation had also cautioned such educational institution not to indulge in profiteering or commercialisation. That judgment also completely bars these educational institutions from charging capitation fee. This is considered by the appellants themselves that commercialisation and exploitation is not permissible and the educational i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Delhi School Education Act, 1973 inter alia directing that no fees/funds collected from parents/students would be transferred from the Recognised Unaided School Fund to a Society or Trust or any other institution. After examining the directions and the accounting principles in detail, this Court upheld the said directions on the ground that it was open to the State to regulate the fee in such a manner so as to ensure that no profiteering or commercialisation of education takes place. To put it in nutshell, though the fee can be fixed by the educational institutions and it may vary from institution to institution depending upon the quality of education provided by each of such institution, commercialisation is not permissible. In order to see that the educational institutions are not indulging in commercialisation and exploitation, the Government is equipped with necessary powers to take regulatory measures and to ensure that these educational institutions keep playing vital and pivotal role to spread education and not to make money. So much so, the Court was categorical in holding that when it comes to the notice of the Government that a particular institution was charging ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ivate educational institutions to perform State functions. It was submitted that the Government had a statutory right to fix the fees to ensure that there was no profiteering. Both sides relied upon various passages from the majority judgment in T.M.A. Pai Foundation case. In view of rival submissions, four questions were formulated. We are concerned with the first question, namely, whether the educational institutions are entitled to fix their own fee structure. It was held that there could be no rigid fee structure. Each institute must have freedom to fix its own fee structure, after taking into account the need to generate funds to run the institution and to provide facilities necessary for the benefit of the students. They must be able to generate surplus which must be used for betterment and growth of that educational institution. The fee structure must be fixed keeping in mind the infrastructure and facilities available, investment made, salaries paid to teachers and staff, future plans for expansion and/or betterment of institution subject to two restrictions, namely, non-profiteering and non-charging of capitation fees. It was held that surplus/profit can be generated but t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of development of education and expansion of the institution. In paragraph 69 of the judgment, while dealing with this issue, this Court again observed that an appropriate machinery can be devised by the State or University to ensure that no capitation fee is charged and that there is no profiteering, though a reasonable surplus for the furtherance of education is permissible. Although the Court overruled the earlier judgment in Unni Krishnan, which was to the extent of the scheme framed therein and the directions to impose the same, part of the judgment holding that primary education is a fundamental right was held to be valid. Similarly, the principle that there should not be capitation fee or profiteering was also held to be correct. When we come to the judgment in Islamic Academy of Education, the first question framed by this Court was whether the educational institutions are entitled to fix their own fee structure. It is pertinent to note that this judgment brought in a Committee to regulate the fee structure which was to operate until the Government/appropriate authorities consider framing of appropriate Regulations. It is also material to note that in paragraph 20 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h have been enunciated in the judgments of this Court referred to above. It is also significant to note that the Committee which is set up for this purpose, namely, Admission and Fee Regulatory Committee, is discharging only regulatory function. The fee which a particular educational institution seeks to charge from its students has to be suggested by the said educational institution itself. The Committee is empowered with a purpose to satisfy itself that the fee proposed by the educational institution did not amount to profiteering or commercialisation of education and was based on intelligible factors mentioned in Section 9(1) of the Act, 2007. In our view, therefore, it is only a regulatory measure and does not take away the powers of the educational institution to fix their own fee. We, thus, find that the analysis of these provisions by the High Court in the impugned judgment, contained in paragraph 39, is perfectly in order, wherein it is observed as under: 39. We are of the view that Sections 4 (1) and 4 (8) of the Act, 2007 have to be read with Section 9 (1) of the Act, 2007, which deals with factors which have to be taken into consideration by the Committee while deter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it was based on the factors mentioned in Section 9 (1) of the Act, 2007 and there was no profiteering or commercialisation of education. The expression 'fixation of fees' in Section 4 (1) of the Act, 2007 means that the fee to be charged from candidates seeking admission in the private professional educational institution did not vary from student to student and also remained fixed for a certain period as mentioned in Section 4(8) of the Act, 2007. As has been held by the Supreme Court in Peerless General Finance v. Reserve Bank of India (supra), the Court has to examine the substance of the provisions of the law to find out whether provisions of the law impose reasonable restrictions in the interest of the general public. The provisions in Sections 4 (1), 4 (8) and 9 of the Act, 2007 in substance empower the Committee to be only satisfied that the fee proposed by a private professional educational institution did not amount to profiteering or commercialisation of education and was based on the factors mentioned in Section 9 (1) of the Act, 2007. The provisions of the Act, 2007 do not therefore, violate the right of private professional educational institution to charge its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ell. In such an economy, private players are undoubtedly given much more freedom in economic activities, as the recognition has drawn to the realities that the economic activities, including profession, business, 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 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 illiter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omy in which a Central Government determines the price of goods and services using a fixed price system. Market economies are also contrasted with mixed economy where the price system is not entirely free, but under some Government control or heavily regulated, which is sometimes combined with State led economic planning that is not extensive enough to constitute a planned economy. With the advent of globalization and liberalization, 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 Regul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... derations make out a case for setting up of a stable Regulatory mechanism. In this sense, when imparting of quality education to cross-section of the society, particularly, the weaker section and when such private educational 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. Pai Foundation gives autonomy to such institutions which remain intact. Holding of CET under the control of the State does not impinge this autonomy. Admission is still in the hands of these institutions. Once it is even conceded by the appellants that in admission of students 'triple test' is to be met, the impugned legislation aims at that. After all, the sole purpose of hold ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmitted that the extent and the manner in which the right can be regulated has been set out under Article 19(6) of the Constitution. It is submitted that in P.A. Inamdar, this Court has held that the provision for reservation in private institutions would be an 'unreasonable' restriction and, therefore, would fall foul of 19(1)(g) and would not be protected by 19(6) of the Constitution of India. It is, thus, submitted that the reasoning on the basis of which reservations in private institutions have been rejected is that this Court found that such restrictions would be 'unreasonable' restrictions and, therefore, effectively violate Articles 14 and 15(1) of the Constitution of India. It is submitted that the provisions of Article 15(5) are not an exception to Article 14 and, therefore, when the Court has held that the said reservations in private institutions are unreasonable, the impugned provisions would be in violation of Article 14 of the Constitution of India. In any case, since this Court in P.A. Inamdar has held that there cannot be any fixation of Quota or appropriation of seats by the State, reservation which inheres setting aside Quotas, would not be per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to Information Act, Audit, State Legislature, Anti-Corruption agencies, Lokayukta, etc. The very object of setting up institutions for the State is a welfare function, for the purpose of excelling in educational standards. On the other hand, the primary motivation for private parties is profit motive or philanthropy. When the primary motivation for institutions is profit motive, it is natural that many means to achieve the same shall be adopted by the private institutions which leads to a large degree of secrecy and corruption. As such, the mechanism of regulations as envisaged under the impugned laws is legal, constitutional, fair, transparent and uphold the primary criteria of merit. The same does not infringe on the fundamental rights of either the minorities or the non-minorities to establish and administer educational institutions and must as such be upheld as valid. IV. Whether the impugned legislation is beyond the legislative competence of the State of Madhya Pradesh? The next issue to be considered is whether the subject matter of admissions was covered exclusively by Entry 66 of List I, thereby the States having no legislative competence whatsoever to deal with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstitution as well as co-ordination of standards and that of educational institutions. When it comes to regulating 'education' as such, which includes even medical education as well as universities (which are imparting higher education), that is prescribed in Entry 25 of List III, thereby giving concurrent powers to both Union as well as States. It is significant to note that earlier education, including universities, was the subject matter of Entry 11 in List II[Entry 11: 'Education' including universities, subject to provisions of Entries 63, 64, 65 and 66 of List I and Entry 25 of List III]. Thus, power to this extent was given to the State Legislatures. However, this Entry was omitted by the Constitution (Forty-Second Amendment) Act, 1976 with effect from July 03, 1977 and at the same time Entry 25 in List II was amended [Unamended Entry 25 in List III read as: 'Occasional and Technical Training of Labour]. Education, including university education, was thus transferred to Concurrent List and in the process technical and medical education was also added. Thus, if the argument of the appellants is accepted, it may render Entry 25 completely otiose. When two E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ile Entry 66 List I dealt with determination and coordination of standards, on the other hand, the original Entry 11 of List II granted the States the exclusive power to legislate with respect to all other aspects of education, except the determination of minimum standards and coordination which was in national interest. Subsequently, vide the Constitution (Forty-second Amendment) Act, 1976, the exclusive legislative field of the State Legislature with regard to Education was removed and deleted, and the same was replaced by amending Entry 25, List III, granting concurrent powers to both Parliament and State Legislature the power to legislate with respect to all other aspects of Education, except that which was specifically covered by Entry 63 to 66 of the List I. No doubt, in Bharti Vidyapeeth it has been observed that the entire gamut of admission falls under Entry 66 of List I. The said judgment by a Bench of two Judges is, however, contrary to law laid down in earlier larger Bench decisions. In Gujarat University, a Bench of five Judges examined the scope of Entry 2 of List II (which is now Entry 25 of List III) with reference to Entry 66 of List I. It was held that the powe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State or in fixing fee. The right of a State to do so is subject to a central law. Once the notifications under the Central statutes for conducting the CET called 'NEET' become operative, it will be a matter between the States and the Union, which will have to be sorted out on the touchstone of Article 254 artof the Constitution. We need not dilate on this aspect any further. Epilogue: Before parting with the matter, we may observe that we have decided the lis between the parties, but that by itself does not cure all the ills with which the system suffers and something more needs to be done on that front as well. It would be necessary to refer to the grievance voiced on behalf of the appellants that admissions conducted even by an agency nominated by the State, under a state law or a central law may lack credibility. This concern has also been noticed by this Court in P.A. Inamdar. An astute and segacious approach is also necessary to deal with the ground realities. This Court had earlier appointed committees headed by the retired High Court Judges in all the States to regulate the admissions and fee structure. This was a stopgap arrangement till suitable legislation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ectoral processes brought about a lot of compromises and tend to attract professionals who may not be best fitted for the regulatory body. Regulators of highest standards of professional integrity and excellence could be appointed through an independent selection process. The Committee concurred with recommendation of the Ranjit Roy Chaudhury Committee Report that regulatory structure should be run by persons selected through transparent mechanism rather than by election or nomination. The Central Government had no power to disagree with the MCI though the Government was the main stakeholder in shaping the health schemes. The Government should have power to give policy directives to the regulatory body. The existing system of graduate medical education was required to be re-invented. The admission process was not satisfactory as majority of seats in private medical colleges were being allotted for capitation fee. The system keeps out most meritorious and underprivileged students. The unitary CET will tackle the capitation fee and bring about transparency. The post graduate seats were being sold in absence of transparent and streamlined process of admission. It also noted deficiency ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dical teachers; (xiii) failure to oversee and guide the Continuing Medical Education in the country, leaving this important task in the hands of the commercial private industry; (xiv) failure to instill respect for a professional code of ethics in the medical professional and take disciplinary action against doctors found violating the code of Ethics, etc. (Para 13.1) The Committee simultaneously observes that the onus of failure of medical education system cannot be laid exclusively on the Medical Council of India. The successive Governments have also their share in it. The fact that there is imbalance in the distribution of medical college across States is not so much MCI s fault; it is the fault of the successive Governments that they have not pushed the MCI in that direction. There is also failure on the part of the State Government. (Para 13.2) The need for radical reforms in the regulatory framework of the medical profession has been on the agenda for several years now. The National Commission for Human Resources for Heal Bill, 2011 which was introduced in the Rajya Sabha on the 22nd December, 2011 was reported upon by this Committee and the 60th Report thereon prese ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... can no longer be entrusted with that responsibility in view of its massive failures. The people of India will not be well-served by letting the modus operandi of MCI continue unaltered to the detriment of medical education and decay of health system. The Government must therefore fulfill its commitment to preserve, protect and promote the health of all Indians by leading the way for a radical reform which cleanses the present ills and elevates medical education to contemporary global pedagogy and practices while retaining focus on national relevance. (Para 13.6) The expert committee led by (late) Prof. Ranit Roy Chaudhury constituted by the Government in July, 2014 to suggest reforms in the regulatory framework of medical profession has submitted its report in February, 2015, a copy of which has been supplied to this Parliamentary Committee. The expert committee has recommended major changes in the ethos of the regulatory body and major structural reconfiguration of its functions. The expert committee has suggested the formation of a National Medical Commission (NMC) through a new Act. The NMC will have four verticals (i) UG Board of Medical Education and Training, (ii) PG Board of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time, we do feel that pending consideration at appropriate executive or legislature level, an Oversight Committee needs to be set in place in exercise of powers of this Court under Article 142 of the Constitution to oversee the functioning of the MCI and all other matters considered by the Parliamentary Committee. In view of the above, while we do not find any error in the view taken by the High Court and dismiss these appeals, we direct the constitution of an Oversight Committee consisting of the following members: 1. Justice R.M. Lodha (former Chief Justice of India) 2. Prof. (Dr.) Shiv Sareen (Director, Institute of Liver and Biliary Sciences) 3. Shri Vinod Rai (former Comptroller Auditor General of India) A Notification with respect to constitution of the said Committee be issued within two weeks from today. The Committee be given all facilities to function. The remuneration of the Members of the Committee may be fixed in consultation with them. The said Committee will have the authority to oversee all statutory functions under the MCI Act. All policy decisions of the MCI will require approval of the Oversight Committee. The Committee will be free to issue app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... down in T.M.A. Pai Foundation and P.A. Inamdar cases in W.P. No.2764 of 2009. Madhya Pradesh High Court by the common impugned judgment upheld the validity of the provisions of the Act and also the Rules and dismissed all the Writ Petitions. Rule 10(2)(iii) of 2009 Rules which prescribed that the candidate should have obtained permanent registration with the State Medical Council of Madhya Pradesh and not from State Medical Councils of other States for securing admission to post-graduate medical courses in any of the medical institution in the State of Madhya Pradesh was held to be ultra vires. 3. Contentions: Though in the pleadings and submissions, appellants have raised various contentions, in essence, substance of their contentions are:- Madhya Pradesh Act of 2007 is not referable to entry 25 in the concurrent list and common entrance test for admission is an important facet of the standards of higher education falling within entry 66 of Union List and State Legislature was not competent to legislate on the subject covered in the Union List. In para (50) of T.M.A. Pai Foundation it was held that the right to establish and administer the educational institution include ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2007. 5. Re-contention: Lack of legislative competence of the State to enact Act 2007 as the field is occupied by entry 66 of Union List: It is to be pointed out that the issue of legislative competence was neither raised nor argued before the High Court as is apparent from the lack of discussion on this issue of constitutional importance in the impugned judgment. Be that as it may, to appreciate the contentions, it would be advantageous to have a glimpse into the relevant constitutional provisions on the distribution of legislative fields between the Centre and the States. The legislative powers of the Central and State Governments are governed by the relevant entries in the three Lists given in Seventh Schedule. Entry 66 in Union List provides for co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions . Prior to Constitution Forty- Second Amendment, education including universities subject to the provisions of the entries 63, 64, 65, 66 of Union List and entry 25 of Concurrent List was shown in entry 11 of the State List. By the Constitution (Forty-second Amendment) Act 1976 with effect from 03 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the standards fixed by the doctrine of pith and substance . 7. In Dr. Preeti Srivastava and Anr. v. State of M.P. and Ors. (1999) 7 SCC 120, it was held that the word education under entry 25 of Schedule VII List III is of wide import. It would include in its fold the taught, the teacher, the textbook and also training as practical training is required to be imparted to students pursuing the course of post-graduate medical education. Curricula is also covered by the term education . 8. While elaborating the concept of education after referring to the dictionary meaning and India Vision-2020 , in P.A. Inamdar case, in paras (88) to (90), it was held as under:- 88. Education is: continual growth of personality, steady development of character, and the qualitative improvement of life. A trained mind has the capacity to draw spiritual nourishment from every experience, be it defeat or victory, sorrow or joy. Education is training the mind and not stuffing the brain. (See Eternal Values for A Changing Society, Vol. III- Education for Human Excellence, published by Bharatiya Vidya Bhavan, Bombay, at p. 19.) We want that education by which character is formed, str ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be followed [s.18(4), expln, Beedi and Cigar Workers (Conditions of Employment) Act (32 of 1966)] Specifications approved and prescribed by a recognized body for repeated and continuous application. Standard usually prescribe a basic though higher than average level of quality. 11. The legislative history of entry 66, Union List might lay down a better picture in this regard. Profitably, we may refer to the history of education as a subject of legislation in the Indian perspective must be ascertained. The Government of India Act, 1935 laid down the legislative lists in the Seventh Schedule. Entry 17 of List II therein i.e. the Provincial State List reads as under:- Education including universities other than those specified in paragraph 13 of List I Paragraph 13 of List I i.e. the federal legislative list reads as under: The Benaras Hindu University and the Aligarh Muslim University Evidently, education as a field of legislation including universities was available to the Provinces except the two Universities i.e. the Benaras Hindu University and Aligarh Muslim University which lay in the domain of the federal legislative competence. Even when the constitution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there should be a standard of intellectual weights and measures for human beings. Therefore I think that education should be left entirely to the provinces. Shri V.S. Sarwate went to oppose introduction of entry 66 of List I (in the present form) by observing that the Union would not be competent enough to lay down standards for technical education such as that of medical education. His observation is quoted as under:- One word more, Sir, I think that it will be difficult for Parliament or the Central Government to fix standards of higher education, for example in higher medical education. Would it be possible for the Parliament to find out what are the standards for medical education? In order to answer the concern of other constitution framers, Dr. Ambedkar went on to clarify the limited scope of entry 66 of List I (as in the present form), as proposed by him in the following words:- Entry 57A merely deals with the maintenance of certain standards in certain classes of institutions, namely, institutions imparting higher education, scientific and technical institutions, institutions for research, etc. You may ask, why this entry? I shall show why it is necessary. Take fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds in higher education are the preserve of the Parliament and are exclusively covered by entry 66 of Union List. The word co-ordination means harmonisation with a view to forge a uniform pattern for concerted action. The term fixing of standards of institutions for higher education is for the purpose of harmonising co-ordination of the various institutions for higher education across the country. Looking at the present distribution of legislative powers between the Union and the States with regard to the field of education , that State s power to legislate in relation to education, including technical education, medical education and universities is analogous to that of the Union. However, such power is subject to entries 63, 64, 65 and 66 of Union List, as laid down in entry 25 of Concurrent List. It is the responsibility of the Central Government to determine the standards of higher education and the same should not be lowered at the hands of any particular State. 17. Even the National Educational Policy recognised that the Union shall take the larger responsibility of setting the standards. The Policy of 1986 states:- 3.13 While the role and responsibility of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ducation means that it is for the Parliament to take concerted action towards maintaining the standards. The reason for empowering the Central Legislature with entry 66 was to ensure that the standards of higher education were not lowered at the hands of a particular State to the detriment of the national progress and that the power exercised by the State did not directly encroach upon power of the Union entry 66. 19. An elucidation of the connotation, co-ordination as it appears in entry 66 of list I, is contained in the discussion by Shah J., while expressing the majority view in The Gujarat University Anr. v. Shri Krishna Ranganath Mudholkar Ors. [1963] Supp.1 SCR 112. In this case, the Constitution Bench of this Court considered whether the State Legislature could impose Gujarati and/or Hindi in Devnagari script as exclusive medium of instruction and examination in institutions affiliated to the university and constituent colleges. It was held that:- if a legislation imposing a regional language or Hindi as the exclusive medium of instruction is likely to result in lowering of standards, it must necessarily fall within Item 66 of List I and be excluded to that extent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be encroaching on the field covered by entry 66 of Union List and that the State Government would be within its rights to prescribe qualifications for admission to colleges so long as its action does not contravene any other law. 22. It was observed in the case of Government of Andhra Pradesh Anr. v. Medwin Educational Society Ors. (2004) 1 SCC 86, that keeping in view the practical difficulties faced by the Central Government or the statutory bodies like MCI or UGC, some power is sought to be delegated to the State so as to make the Parliamentary statute workable. Such play in joint is also desirable having regard to the federal structure of our Constitution . 23. In State of T.N. and Anr. v. Adhiyaman Educational and Research Institute and Ors., (1995) 4 SCC 104, the question involved was whether after coming into force of the Central Act, All India Council Technical Education Act, 1987, the State Government had the power to grant and withdraw permission to start educational institution. It was held that to that extent after coming into operation of the Central Act under entry 66 of Union List, to co-ordinate and determine the standards of technical institutions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ituations/seats are available and the State authorities deny an applicant the same on the ground that the applicant is not qualified according to its standards or qualifications, as the case may be, although the applicant satisfies the standards or qualifications laid down by the Central law, they act unconstitutionally. So also when the State authorities de-recognise or disaffiliate an institution for not satisfying the standards or requirement laid down by them, although it satisfied the norms and requirements laid down by the Central authority, the State authorities act illegally. 24. In Dr. Preeti Srivastava case, this Court considered the question whether it was open to the State to prescribe different admission criteria, in the sense of prescribing different minimum qualifying marks, for special category candidates seeking admission to the post-graduate medical courses under the reserved seats category as compared to the general category candidates. While considering the question whether norms for admission have any connection with the standards of education, observing that norms for admission have a nexus with standards of education or rules of admission which are covere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ege depend on various factors. Some of these are: (1) the calibre of the teaching staff; (2) a proper syllabus designed to achieve a high level of education in the given span of time; (3) the student-teacher ratio; (4) the ratio between the students and the hospital beds available to each student; (5) the calibre of the students admitted to the institution; (6) equipment and laboratory facilities, or hospital facilities for training in the case of medical colleges; (7) adequate accommodation for the college and the attached hospital; and (8) the standard of examinations held including the manner in which the papers are set and examined and the clinical performance is judged. 25. As laid down in the decision in Preeti Srivastava, it is within the legislative competence of the State Legislature, in exercise of power under entry 25 of concurrent list to prescribe higher educational qualifications and higher marks for admission in addition to the one fixed by the Indian Medical Council in order to bring out the higher qualitative output from the students who pursue medical course. Following the above dictum, in paragraphs (13) and (14) of the decision of this Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation, the State/University cannot adversely affect the standards laid down by the central body/AICTE. The term adversely affect the standards refers to lowering of the norms laid down by the central body/AICTE. Prescribing higher standards for admission by laying down qualifications in addition to or higher than those prescribed by AICTE, consistent with the object of promoting higher standards and excellence in higher education, will not be considered as adversely affecting the standards laid down by the central body/AICTE. (ii) The observation in para 41(vi) of Adhiyaman (1995) 4 SCC 104 to the effect that where seats remain unfilled, the State authorities cannot deny admission to any student satisfying the minimum standards laid down by AICTE, even though he is not qualified according to its standards, is not good law. (iii) The fact that there are unfilled seats in a particular year, does not mean that in that year, the eligibility criteria fixed by the State/University would cease to apply or that the minimum eligibility criteria suggested by AICTE alone would apply. Unless and until the State or the University chooses to modify the eligibility criteria fixed by them ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nner as stated in Dr. Preeti Srivastava case, in State of T.N. and Anr. v. S.V. Bratheep (minor) and Ors. (2004) 4 SCC 513, this Court held as under:- 9. Entry 25 of List III and Entry 66 of List I have to be read together and it cannot be read in such a manner as to form an exclusivity in the matter of admission but if certain prescription of standards have been made pursuant to Entry 66 of List I, then those standards will prevail over the standards fixed by the State in exercise of powers under Entry 25 of List III insofar as they adversely affect the standards laid down by the Union of India or any other authority functioning under it. Therefore, what is to be seen in the present case is whether the prescription of the standards made by the State Government is in any way adverse to, or lower than, the standards fixed by AICTE. It is no doubt true that AICTE prescribed two modes of admission - one is merely dependent on the qualifying examination and the other, dependent upon the marks obtained at the common entrance test. The appellant in the present case prescribed the qualification of having secured certain percentage of marks in the related subjects which is higher than t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rsities etc. vests in both Central and State Governments under entry 25 of the concurrent list only. Under entry 25 of concurrent list and erstwhile entry 11 of State List, the State Government has enacted various legislations that inter alia regulate admission process in various institutions. For instance, Jawaharlal Nehru Krishi Vishwavidyalaya Adhiniyam, Rajiv Gandhi Prodyogiki Vishwavidyalaya Adhiniyam, Rashtriya Vidhi Sansathan Vishwavidyalaya Adhiniyam etc. were established by the State Government in exercise of power under entry 25 of concurrent list. Similarly, the Central Government has also enacted various legislations relating to higher education under entry 25 of concurrent list pertaining to centrally funded universities such as Babasaheb Bhimrao Ambedkar University Act 1994, Maulana Azad National Urdu University Act, 1996, Indira Gandhi National Tribal University Act, 2007 etc. Central Government may have the power to regulate the admission process for centrally funded institutions like IITs, NIT, JIPMER etc. but not in respect of other institutions running in the State. 29. In view of the above discussion, it can be clearly laid down power of Union under entry 66 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect of the Act 2007 is to provide for the regulation of admission and fixation of fee in private professional educational institutions in the State of Madhya Pradesh . Section 6 of the Act 2007 provides that admission to sanctioned intake in private unaided professional educational institution shall be on the basis of common entrance test in such manner as may be prescribed by the State Government. In Section 3(d) common entrance test has been defined to mean an entrance test conducted for determination of the merit of the candidates followed by centralized counselling based on merit to professional colleges or institutions through a single window procedure by the State Government or by any agency authorized by it. 33. Contention of the appellants is that Section 6 read with Section 3(d) of the Act, 2007 creates a monopoly in favour of the State in the matter of conducting common entrance test and that it directly encroaches upon the fundamental right of private unaided educational institutions under Article 19(1)(g) of the Constitution of India. It is further submitted that as held in para (137) of P.A. Inamdar case only if the admission procedure adopted by the private in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed upon the State to ensure equality of opportunity in admission to meritorious candidates who seek to pursue the medical education. Act 2007 enables the State to conduct common entrance test in the interest of securing higher standards of medical education so that quality doctors are trained leading to advancement in health sector of the nation. Point to be considered is whether the common entrance test to be conducted by the State Government or any agency authorized by it amounts to a reasonable restriction. 36. From time to time, it has been held that in the interests of the general public , the State would be justified in imposing reasonable restriction, even if it affects the interests of particular individuals, or even causes hardship to particular individuals owing to the peculiar conditions in which they are placed. Reference can be made to the decision of this Court in Narendra Kumar Ors. v. Union of India Ors. AIR 1960 SC 430, wherein it was held as under:- 15. It is clear that in the following three cases viz. Chintaman Rao (1950) 1 SCR 759, Cooverjee AIR 1954 SC 220 and Madhya Bharat Association Ltd. AIR 1954 SC 634, the Court considered the real question t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction between the restrictions imposed and the object sought to be achieved. If there is a direct nexus between the restrictions and the object of the Act, then a strong presumption in favour of the constitutionality of the Act will naturally arise. (See: Kavalappara Kottarathil Kochuni v. States of Madras and Kerala AIR 1960 SC 1080; O.K. Ghosh v. E.X. Joseph AIR 1963 SC 812.) A similar view was also expressed in State of Madras v. V.G. Row, AIR 1952 SC 196 and K.K. Kochuni v. State of Madras and Kerala, AIR 1960 SC 1080. 38. In T.M.A. Pai, while this Court acknowledged right to occupation of private educational institutions as guaranteed under Article 19(1)(g) of the Constitution of India, in para (54), this Court laid down general law pertaining to the authority of State Government to impose regulatory means in respect of private aided and unaided educational institutions, which reads as under:- 54. The right to establish an educational institution can be regulated; but such regulatory measures must, in general, be to ensure the maintenance of proper academic standards, atmosphere and infrastructure (including qualified staff) and the prevention of maladministration by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... colleges is fair and transparent. For each State a separate Committee shall be formed. The Committee would be headed by a retired Judge of the High Court. The Judge is to be nominated by the Chief Justice of that State. .The Committee shall have powers to oversee the tests to be conducted by the association. This would include the power to call for the proposed question paper(s), to know the names of the paper-setters and examiners and to check the method adopted to ensure papers are not leaked. The Committee shall supervise and ensure that the test is conducted in a fair and transparent manner. The Committee shall have the power to permit an institution, which has been established and which has been permitted to adopt its own admission procedure for the last, at least, 25 years, to adopt its own admission procedure and if the Committee feels that the needs of such an institute are genuine, to admit, students of their community, in excess of the quota allotted to them by the State Government ..It is also clarified that no institute, which has not been established and which has not followed its own admission procedure for the last, at least, 25 years, shall be permitted to apply fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from harassment and exploitation. Holding of such common entrance test followed by centralised counselling or, in other words, single-window system regulating admissions does not cause any dent in the right of minority unaided educational institutions to admit students of their choice. Such choice can be exercised from out of the list of successful candidates prepared at CET without altering the order of merit inter se of the students so chosen. 42. In para (138), it was further held that having regard to the larger interest and welfare of the student community, it would be permissible to regulate the admissions by providing a centralized and single-window procedure. Para (138) reads as under:- 138. It needs to be specifically stated that having regard to the larger interest and welfare of the student community to promote merit, achieve excellence and curb malpractices, it would be permissible to regulate admissions by providing a centralised and single-window procedure. Such a procedure, to a large extent, can secure grant of merit-based admissions on a transparent basis. Till regulations are framed, the Admission Committees can oversee admissions so as to ensure that merit i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the Central or State Governments shall be open to judicial review in accordance with the settled parameters for the exercise of such jurisdiction. The impugned legislation-Act 2007 has thus been enacted in compliance with the directions issued by this Court in T.M.A. Pai, Islamic Academy and P.A. Inamdar with a view to ensure fairness and transparency in the admissions process. 45. Common entrance test-single window system which regulates admission to unaided private professional educational institutions does not cause any dent in the fundamental rights of those institutions: In T.M.A. Pai and P.A. Inamdar, this Court categorically held that admission to professional courses must be on the basis of merit. The word merit is word of Latin origin, deriving roots from meritum, meaning due reward and mereri meaning earn, deserve . Concise Oxford English Dictionary (11th Edn) defines merit as excellence; worth . P. Ramanatha Aiyar s Advanced Law Lexicon (3rd Edn.) on the topic of merit makes mention of Guman Singh v. State of Rajasthan (1971) 2 SCC 452, wherein it was observed as under:- merit is a sum total of various qualities and attributes of an employee such as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rit list, counselling and allotments to various colleges is subject to Right to Information Act and thus ensures fairness and transparency in the entire process. 48. Having regard to the prevailing conditions relating to admissions in private professional educational institutions in the State of Madhya Pradesh, the Legislature in its wisdom has taken the view that merit based admissions can be ensured only through a common entrance test followed by centralized counselling either by the State or by an agency authorized by the State. In order to ensure rights of the applicants aspiring for medical courses under Articles 14, 15 and 16 of the Constitution of India, legislature by the impugned legislation introduced the system of Common Entrance Test (CET) to secure merit based admission on a transparent basis. If private unaided educational institutions are given unfettered right to devise their own admission procedure and fee structure, it would lead to situation where it would impinge upon the right to equality of the students who aspire to take admissions in such educational institutions. Common Entrance Test by State or its agency will ensure equal opportunity to all meritorio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has a duty to balance the direct impact on the fundamental right of individuals as against the greater public or social interest. In State of Bombay and Anr. v. F.N. Balsara [1951] SCR 682, a Constitution Bench of this Court held that in judging the reasonableness of the restriction imposed on the fundamental right, one has to bear in mind the Directive Principles of State Policy set forth in Part IV of the Constitution, while examining the challenge to the constitutional validity of law by reference to Article 19(1)(g) of the Constitution. In State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat and Ors. (2005) 8 SCC 534, this Court held that ban on slaughter of cow progeny is not a prohibition but only a reasonable restriction. A seven- Judge Bench of this Court in para (41) held as under:- 41. The message of Kesavananda Bharati (1973) 4 SCC 225 is clear. The interest of a citizen or section of a community, howsoever important, is secondary to the interest of the country or community as a whole. For judging the reasonability of restrictions imposed on fundamental rights the relevant considerations are not only those as stated in Article 19 itself or in Part III of the Consti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e this constitutional obligation, the State must have the doctors with professional excellence and commitment who are ready to give medical advice and services to the public at large. State can satisfactorily discharge its constitutional obligation only when the aspiring students enter into the profession based on merit. None of these lofty ideals can be achieved without having good and committed medical professionals. 53. Fundamental Rights of private unaided professional colleges must yield to public interest and rights of the students at large: Right to be treated fairly and to get admission through a non-arbitrary, non- discriminatory, fair and transparent procedure is a fundamental right of the students under Article 14. Any law which creates an artificial classification between private unaided institutions and other institutions and creates a disparity in the matter of admission whereby a meritorious student could be denied admission to pursue higher education in a private unaided institution solely because such institution has an unfettered right to choose its own students without following a uniform and transparent admission procedure would be violative of the rights of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dmissions in private professional educational institutions and after finding the complaints to be true, directed the institutions to give admission to the aggrieved students in the next academic sessions and this would show that the private professional educational institutions were not able to ensure a fair, transparent and non-exploitative admission procedure before Act, 2007 was enacted . 55. Our attention was drawn to the advertisement of DMAT 2006 for admission in MBBS/BDS course in the private colleges in Madhya Pradesh scheduled to be conducted on 16.07.2006 and number of writ petitions filed by the students pertaining to DMAT 2006. It was submitted that in W.P. (C) No. 1796 of 2006, High Court stayed DMAT 2006 and directed the State to appoint a committee as per Islamic Academy of Education and the committee managing DMAT cancelled DMAT 2006. Having regard to the number of complaints and litigations, High Court was right in observing that sufficient materials had been placed before it to show that prior to enactment of Act 2007, the High Court as well as the committee had to enquire into the complaints of mal-practice in admissions. It is not a case of no materials, whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to occupation of private educational institutions: As stated earlier, the object of Madhya Pradesh Act 2007 is to provide for the regulation of admission and fixation of fee in private professional educational institutions in the State of Madhya Pradesh and to provide for reservation of seats to persons belonging to Scheduled Castes, the Scheduled Tribes and Other Backward Classes in professional educational institutions and the matters connected therewith or incidental thereto . The Act authorizes the State to fix the fees to be charged by the private educational institutions, while taking relevant factors into consideration and also after ensuring an opportunity of being heard to the private educational institutions. 58. As per Section 3(e), fee means all fees including tuition fee and development charges. Section 4 of the Act deals with constitution and functions of the Committee. As per Section 4(1), Committee is constituted for supervision and guidance of the admission process and for the fixation of the fees to be charged by private educational institutions. Section 9 deals with factors to be taken into consideration by the Committee for determination of fee that may b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not seek or is not dependent upon any funds from the Government. , then private institutions have an indefeasible right to fix their own fee structure and there is no occasion for the Government to enact such legislation empowering the committee to determine the fees to be charged. 61. Drawing our attention to para (39) of T.M.A. Pai, it has also been contended that T.M.A. Pai recognizes the importance of private unaided educational institutions by citing figures as to how numbers of government colleges have remained stagnant whereas numbers of private educational institutions have increased. It was submitted that as the eleven-Judge Bench recognised the right of private educational institutions to admit students and determine their own fee structure, the right of private unaided institutions to charge their own fees cannot be curtailed by the impugned legislation and therefore Sections 4(1), 4(8) and Section 9 of Act 2007 are liable to be struck down. 62. Per contra, learned counsel for the respondents submitted that relevant provisions of the Act empowering the committee to determine the fee that are only to ensure that the fees charged are not exorbitant and such regulatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of students seeking professional education. 65. Observing that education has been a business for a long time, in Modern School v. Union of India and Ors. (2004) 5 SCC 583, in paras (3) to (5), this Court has held as under:- 3. In modern times, all over the world, education is big business. On 18-6-1996, Professor G. Roberts, Chairman of the Committee of Vice- Chancellors and Principals commented: The annual turnover of the higher education sector has now passed the 10 billion mark. The massive increase in participation that has led to this figure, and the need to prepare for further increases, now demands that we make revolutionary advances, in the way we structure, manage and fund higher education. 4. In the book titled Higher Education Law (2nd Edn.) by David Palfreyman and David Warner, it is stated that in modern times, all over the world, education is big business. On account of consumerism, students all over the world are restless. That schools in private sector which charge fees may be charitable provided they are not run as profit-making ventures. That educational charity must be established for the benefit of the public rather than for the benefit of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ai case the respective State Governments/concerned authority shall set up, in each State, a committee headed by a retired High Court Judge who shall be nominated by the Chief Justice of that State The Committee shall then decide whether the fees proposed by that institute are justified and are not profiteering or charging capitation fee. The Committee will be at liberty to approve the fee structure or to propose some other fee which can be charged by the institute. The fee fixed by the Committee shall be binding for a period of three years, at the end of which period the institute would be at liberty to apply for revision... 68. Referring to paras (69) and (70) of T.M.A. Pai and reiterating that fee charged by private educational institutions should not amount to profiteering, in P.A. Inamdar case, it was held as under:- 129. In Pai Foundation, it has been very clearly held at several places that unaided professional institutions should be given greater autonomy in determination of admission procedure and fee structure. State regulation should be minimal and only with a view to maintain fairness and transparency in admission procedure and to check exploitation of the stud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... right in turn has to be balanced with the rights of the students, so that they are not subjected to exploitation in the form of profiteering. 70. For the foregoing discussion, I hold that the State has the legislative competence to enact the impugned legislation-Act 2007 to hold common entrance test for admission to professional educational institutions and to determine the fee and the High Court has rightly upheld the validity of the impugned legislation. Regulations sought to be imposed by the impugned legislation on admission by common entrance test conducted by the State and determination of fee are in compliance of the directions and observations in T.M.A. Pai, Islamic Academy of Education and P.A. Inamdar. Regulations on admission process are necessary in the larger public interest and welfare of the student community to ensure fairness and transparency in the admission and to promote merit and excellence. 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 im ..... X X X X Extracts X X X X X X X X Extracts X X X X
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