TMI Blog1982 (9) TMI 240X X X X Extracts X X X X X X X X Extracts X X X X ..... ent No. 2, is admittedly a private institution registered under the Societies Registration Act. It is not in dispute that it is a charitable religious society privately managing the Daya Nand Medical College and Hospital, which is claimed to be a minority institution protected by the Constitution. Another similar organisation is that of the Christian Medical College and Hospital also located at Ludhiana. The 20 writ petitioners who are students seeking admission to the Daya Nand Medical College (hereinafter called 'the Medical College', aver that in the prospectus issued for this purpose, the admission to the M. B. B. S. Course was limited to categories (a) to (f) of para 7 thereof. However, category (f) was later scrapped and after interviewing the eligible candidates, the Selection Committee, on July 30, 1981 issued a provisional list of 50 selected candidates vide annexure P/3. The petitioners claim that respondent No. 5 to 9 in the said list do not belong to category 7(a) and apart from them other candidates who have been selected were not entitled to be considered in this category. It is the case of the writ petitioners that in the event of the aforesaid persons being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... than 25 percent of the total expenditure in this shape. 5. Gurpreet Singh's case, along with C. W. P. No. 3569 of 1981( Miss Smita Ohri v. Punjab University etc .) originally case up before my learned brother S. P. Goyal, J. sitting singly. The preliminary objection with regard tot he maintainability of the writ against a privately owned and privately managed institution was strenuously pressed before him. Noticing the recent decision in Ajay Hasia v. Khalid Mujib AIR 1981 SC 487 and the doubts raised against the ratio in Sh. Karan Singh's case ILR (1976) P H 859(supra) both the cases were referred to a larger Bench. The Division Bench before which the matter was thereafter placed, endorsed that view and took particular notice of the fact that the observations in Karan Singh's case (supra) had been doubted by Harbans Lal, J. in an exhaustive reference order in Jaswinder Singh v. Punjab University , C. W. P. No. 4521 of 1976, way back on September 9, 1976. However, when earlier the matter was placed before the Full Bench, the writ petition was withdrawn thus rendering the reference infructuous. The present reference was, therefore, necessitated (meanwhile C. W. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Medical College the primary attempt on behalf of the petitioners was to establish an indirect or remote control of the Central Government allegedly through the medium of the Medical Council of India. Indeed the core of the attack seems to be that the Medical Council constituted under Section 3 of the Indian Medical Council Act exercises such a degree of control over all institutions imparting higher medical education, that the Central Government, which would be presumed to be controlling the aforesaid Medical Council, may be deemed as exercising an all pervasive control over the Medical College. Reliance was sought to be placed on Ss. 3, 6, 16, 17, 18, 19A, 30, 32 and 33 of the Act in an attempt to inferentially show that the Central Government exercised a total control over the respondent-Medical College. 10. A close analysis discloses that the aforesaid contentions suffers from an insidious fallacy which in essence boomerangs on the stand taken by the petitioners so as to virtually demolish the same. A reference to Section 6 of the Act makes it manifest that the Medical Council of India is a body corporate having a perpetual succession and a common seal with powers to acq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ouncil shall be elected by the members of the Council from amongst themselves. (3) No act done by the Council shall be questioned on the ground merely of the existence of any vacancy in, or any defect in the constitution of the Council. S. 10 , The Executive Committee : (1) The Executive Committee, hereinafter referred to as the Committee, shall consist of the President and Vice-President, who shall be members ex officio, and not less than seven and not more than ten order members who shall be elected by the Council from amongst its members. (2) The President and Vice-President shall be the President and Vice-President respectively of the Committee. (3) In addition to the powers and duties conferred and imposed upon it by this Act, the Committee shall exercise and discharge such powers and duties as the Council may confer or impose upon it by any regulations which may be made in this behalf. Now a reference to clause (b) of S. 3(1) would show that this provide for one member from every University to be elected by the medical faculty or by the Senate in the composition of the Council. Similarly one member from each State is to be elected from persons on the State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of examinations and appoint visitors thereat. The powers to this nature can hardly be termed as an all pervasive or total control of the functioning of a privately owned and privately managed institution running a Medical College. Similarly Section 19(1)(a) empowering the laying down of minimum standard of medical education and Ss. 32 and 33 giving the usual powers to make rules and regulations do not in any way spell out an absoluteness of control envisaged in this context. 12. Learned counsel for the petitioners had also attempted to raise a half-hearted contention on the basis of the provisions of the Punjab University Act, 1949 and the Regulations framed thereunder. Our attention was drawn to Ss. 27, 29 and 30 of the said Act providing for the affiliation of Colleges and the obligation of such Colleges to make returns and reports of the University and the power of the latter to inspect them from time to time and lastly for the disaffiliation of such Colleges, if necessary. Regulations providing for the conditions of affiliation and admission and migration of students etc. were also referred to. The somewhat tenuous argument herein was that the Punjab University again ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... note of caution clearly in mind one may now proceed to notice the six tests and apply the same with particularity to the respondent-Medical College :-- (1) One thing is clear that if the entire share capital of the corporation is held by Government it would go a long way towards indicating that the corporation is an instrumentality or agency of Government; (2) Whether the financial assistance of the State is so much as to meet almost entire expenditure of the corporation, it would afford some indication of the corporation being impregnated with governmental character; (3) It may also be a relevant factor--whether the corporation enjoys monopoly status which is the State conferred or State protected; (4) Existence of deep and pervasive State control may afford an indication that the Corporation is a State agency or instrumentality; (5) If the functions of the corporation are of public importance and closely related to governmental functions, it would be a relevant factor in classifying the corporation as an instrumentality or agency of Government; (6) Specifically, if a department of Government is transferred to a corporation, it would be strong factor supportiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mparting higher medical education would become instrumentalities or agencies of the State merely because of the provisions of the Indian Medical Council Act or the Universities, to which they may be affiliated. 16. Repelled on his main ground that the respondent-Medical College was an instrumentality or agency of the State (with the consequent applicability of Article 14), Mr. Kuldip Singh had then raised an ancillary contention. This was rested wholly on Regulation II of the Medical Council of India with regard to the selection of students to the Medical Faculty. It was contended that this Regulation II has statutory force and it lays a mandatory duty on the respondent-College to make selections for admission in accordance therewith, which can be enforced by a writ of mandamus despite the fact that the respondent-College is a private body. 17. To appreciate this contention, one must first read the relevant part of Regulation II of the Medical Council of India :-- II Section of students :-- The selection of students to a medical college should be based solely on merit of the candidate and for determination of merit, the following criteria be adopted uniformly throughou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not only to show a clear public or statutory duty laid on the respondent but an equally clear legal right to enforce the same. In view of the findings above, it seems to be plain that neither of the two conditions is even remotely satisfied here and, therefore, the claim for a writ of mandamus must be rejected. 19. The last arrow to the bow of the petitioners was a firm reliance on the view expressed by the Division Bench in Karan Singh v. Kurukshetra University ILR (1976) P H 859. On those premises, it was contended that even though the respondent-Medical College was a private body yet Article 29(2) confers a fundamental right of the petitioners to be considered for admission thereto on merits alone and a corresponding duty on the respondent which can be enforced against it by mandamus. Undoubtedly, the observations in Karan Singh's case (supra) lend unstinted support to the stand, yet we must proceed to examine the correctness of the same in view of a frontal challenge raised thereto on behalf of the respondents. Indeed, as was noticed at the outset, a pointed doubt about the validity of this view had necessitated this reference to the larger Bench. 20. Now a clo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... right of equality of admission of all students in all State aided institutions then its rightful place should have been within the well-known rights to equality. Nor does this Article come within the ambit of the now celebrated rights of freedom generally and freedom of religion particularly and the prohibition against exploitation. The location of this Article and its express exclusion from the generic fundamental rights is thus a matter of patent significance which cannot be lost sight of. 23. In the converse Article 29(2) falls within the specific head of the 'Cultural and Educational Rights' which have been guaranteed to the minorities. The heading of the Article and its marginal note is not without significance and has been so construed authoritatively. In terms these provisions are declared to be for the protection of the interest of minorities. Similar language is again used in the heading in Article 30. It is well-settled that the two Article 29 and 30 are parts of the same integrated whole of the protection of cultural and educational rights of minorities and have to be read together. 24. Now part from the above Clause (2) of Article 29 is undoubtedly connect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... premise that Article 29(2) confers a fundamental right of equality of admission of all educational institutions is plainly untenable. In other words all private educational institutions not receiving aid out of State funds are wholly out of the ambit of Article 29(2). 25. Coming now to the specific language of Article 29(2) it deals specifically with two classes of educational institutions, namely, those maintained by the State itself or those receiving aid out of State funds. It is apt to deal with these separately and one may first advert to those educational institutions receiving aid out of State funds. Undoubtedly these institutions come within the ambit of this Article. What, however, calls for notice herein is that Article 29(2) is couched in the language of prohibition which is limited in terms and not in those of the conferment of a general or generic right of equality. The prohibition here is specific and confined to four grounds alone on which discrimination for admission into educational institutions receiving aid out of the State funds is barred. These are in terms those of religion, race, caste and language. Of particular significance is the use of the word 'o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ducational institutions of their choice is a guaranteed right which cannot be infringed by ordinary laws. Indeed it is the ignoring of this distinction betwixt the State action and private action which seems to have led to the fallacy of assuming that what would be true qua institutions exclusively maintained by the State would be applicable also to privately owned and privately managed educational institutions. 26. Again viewing Article 29 as an integral whole it would appear that whilst Clause (1) thereof guaranteed to a sectional minority a right to establish and administer educational institutions for conserving its language, script or culture yet at the same time by Clause (2) a fetter was placed thereon of such an institution received aid out of the State funds. To repeat if such a minority institution received no aid its right to admit or not to admit students was unfettered but if it received aid out of State funds then Clause (2) exacted a price therefore that even such an institution could then no longer discriminate on four express prohibited grounds of religion, race, caste and language. Now this Clause (2) was widely worded in order to alley any apprehension that mi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the larger fundamental right spelt out in the generic provisions of Article 15. 28. Lastly it would appear that carried to the abstruse length of reading Article 29(2) as a generic fundamental right of equality of admission on merits to all educational institutions receiving aid out of State funds would tend to conflict and erode the protection afforded of minorities to establish and administer educational institutions of their choice. That the establishment of such institutions by minorities and the freedom of internal administration thereof by them is the core of the protection of such cultural and educational rights is spelt out by a string of a cases of the final Court beginning with the reference on the Kerala Education Bill AIR 1958 SC 956. If a fundamental right of equality of admission to all citizens even into such minority educational institutions on the ground that they receive aid out of State funds is enforced it would be obvious that the minority right to administer their educational institutions (with State aid) including therein the right of admission would necessarily give way to such a claim and would be eroded. In fact the general citizenry would thus be a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y a remedy or protection against a species of wrong, namely, the limited discrimination on four grounds only specified therein, in those terms (at p. 566): -- ..... ...... ..... Article 15 protects all citizens against the State whereas the protection of Article 29(2) extends against the State or anybody who denies the right conferred by it. Further Article 15 protects all citizens against discrimination generally but Article 29(2) is a protection against a particular species of wrong namely denial of admission into educational institutions of the specified kind. Again in the celebrated reference in the matter of the Kerala Education Bill AIR 1958 SC 956, Chief Justice Das observed as follows (at p.,978) :-- ..... ....... ..... The real import of Art. 29(2) and Art. 30(1) seems to us to be that they clearly contemplate a minority institution with a sprinkling of outsiders admitted into it. The limited protection afforded by Article 29 was again reiterated in W. Proost v. State of Bihar , AIR 1969 SC 465. However, more pointed observations were made by their Lordships in the celebrated case of Kumari Chitra Ghosh v. Union of India , as under (at p. 38) :-- We ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earlier a fundamental right of admission to all private institutions as well or that a writ was maintainable against the same. 32. On the other hand, within this Court, there is a long line of precedent frontally contrary to the stand taken on behalf of the petitioners. Reference, in this context may instructively be made to Satishwar Singh v. Chief Commissioner, Union Territory of Chandigarh (1970) 72 Pun 76; Harish Kumar Jain v. Punjab University (1970) 72 PLR 989; Dewa Singh v. Kurukshetra, University and Chaman Lal Talwar v. Guru Nanak University AIR 1973 P Har 390. 33. Equally, there seems to be virtually unanimity in precedent of the other High Courts in line with the aforesaid view. Without quoting extensively therefrom, reference in this connection made be made to Ramesh Chandra Chaube v. Principal, Bipin Behari Intermediate Collage, Jhansi AIR 1953 All 90; Km. Asha Lata v. Principal, Meerut College, Meerut , AIR 1959 All 224; Vikaruddin v. Osmania University AIR 1954 Hyd 25; Anand Kumar Jain v. Government of Madhya Prasad ; Sardar Jaswant Singh v. Board of Secondary Education, West Bengal AIR 1962 Cal 20; Dr. R. Narayana Swamy v. State of Mysore AI ..... X X X X Extracts X X X X X X X X Extracts X X X X
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