:
1. : IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH R DATED THIS THE17H DAY OF APRIL, 2015 PRESENT THE HON’BLE MR.JUSTICE B.S.PATIL AND THE HON’BLE MR.JUSTICE P.S.DINESH KUMAR W.P.Nos.102850-102851/2015 (EDN-MED-ADM) C/W. W.P.Nos.102852-102853/2015 & W.P.Nos.102916-102917/2015 IN W.P.Nos.102850-102851/2015: BETWEEN1 SHRI BASAVESHWAR VIDYA VARDHAK SANGHA, O/A. S.N.MEDICAL COLLEGE, NAVANAGAR, BAGALKOTE – 587 102, REPRESENTED BY ITS CHAIRMAN, MR.VEERANNA C.CHARANTIMATH, S/O.SRI.CHANDRASHEKHARAYYA, AGED ABOUT55YEARS.
2. S.NIJALINGAPPA MEDICAL COLLEGE, O/A. NAGAVANAGAR, BAGALKOTE–587 102, REPRESENTED BY ITS CHAIRMAN, MR.VEERANNA C.CHARINTIMATH, S/O.SRI.CHANDRASHEKHARAYYA, AGED ABOUT55YEARS. (BY SRI.M.R. NAIK & SRI.SHASHI KIRAN SHETTY, SENIOR COUNSEL FOR SRI.MAHANTESH R.PATIL ... PETITIONERS :
2. : & FARAH FATHIMA, ADVOCATES) AND THE MEDICAL COUNCIL OF INDIA, POCKET14 SECTOR8 DWARKA PHASE1 NEW DELHI - 110 077, THROUGH ITS SECRETARY (BY SRI.N.KHETTY, ADVOCATE) ... RESPONDENT THESE WRIT PETITIONS ARE FILED UNDER ARTICLES226AND227OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE CIRCULAR DATED1601.2015 ISSUED BY THE RESPONDENT TO CONDUCT ENTRANCE EXAMINATION FOR NRI STUDENTS FOR ADMISSION IN MBBS COURSE FROM ACADEMIC YEAR201516 (ANNEXUER-A) AND ETC., IN W.P.NOS.102852-102853/2015 BETWEEN1 2. KLE UNIVERSITY, JNMC CAMPUS, NEHRU NAGAR, BELAGAVI-590 010, REPRESENTED BY ITS REGISTRAR, DR.V.D.PATIL S/O DUNDAPPA PATIL, AGED ABOUT66YEARS. JAWAHARLAL NEHRU MEDICAL COLLEGE, JNMC CAMPUS, BELAGAVI-590 010, REPRESENTED BY ITS PRINCIPAL, DR. NIRANJANA, W/O: MR.SHAMBULINGAPPA MANTH SETTY, AGE:
57. YEARS. (BY SRI.M.R. NAIK & SRI.SHASHI KIRAN SHETTY, SENIOR COUNSEL FOR SRI.MAHANTESH R.PATIL & FARAH FATHIMA, ADVOCATES) ... PETITIONERS :
3. : AND THE MEDICAL COUNCIL OF INDIA, POCKET14 SECTOR8 DWARKA PHASE I, NEW DELHI - 110 077 THROUGH ITS SECRETARY (BY SRI.N.KHETTY, ADVOCATE) ... RESPONDENT THESE WRIT PETITIONS ARE FILED UNDER ARTICLES226AND227OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE CIRCULAR DATED1601.2015 ISSUED BY THE RESPONDENT TO CONDUCT ENTRANCE EXAMINATION FOR NRI STUDENTS FOR ADMISSION IN MBBS COURSE FROM ACADEMIC YEAR201516 (ANNEXUER-A) AND ETC., IN W.P.Nos.102916-102917/2015 BETWEEN1 2. SHRI DHARMASTHALA MANJUNATHESHWARA EDUCATION SOCIETY REP. BY ITS SECRETARY DR. K. JINENDRA PRASAD S/O: MR.B.T.ARIGA JAIN AGE69YEARS, OCC. SECRETARY SDM EDUCATION SOCIETY R/O SATTUR, TQ & DIST. DHARWAD SDM COLLEGE OF MEDICAL SCIENCES AND HOSPITAL, DHARWAD, REP. BY ITS PRINCIPAL DR.J.V.CHOWTI S/O MR.VENKATARAO CHOWTI AGE68YEARS, OCC. PRINCIPAL SDM COLLEGE OF MEDICAL SCIENCES & HOSPITAL SATTUR, TQ & DIST. DHARWAD ... PETITIONERS (BY SRI.M.R. NAIK & SRI.SHASHI KIRAN SHETTY, :
4. : SENIOR COUNSEL FOR SRI.MAHANTESH R.PATIL & FARAH FATHIMA, ADVOCATES) AND THE MEDICAL COUNCIL OF INDIA POCKET14 SECTOR8DWARKA PHASE1 NEW DELHI - 110077 THROUGH ITS SECRETARY (BY SRI.N.KHETTY, ADVOCATE) ... RESPONDENT THESE WRIT PETITIONS ARE FILED UNDER ARTICLES226AND227OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE CIRCULAR DATED1601.2015 ISSUED BY THE RESPONDENT TO CONDUCT ENTRANCE EXAMINATION FOR NRI STUDENTS FOR ADMISSION IN MBBS COURSE FROM ACADEMIC YEAR201516 (ANNEXURE-A) AND ETC., THESE PETITIONS BEING HEARD AND RESERVED FOR
JUDGMENT, THIS DAY COMING ON FOR PRONOUNCEMENT OF
JUDGMENT, P.S.DINESH KUMAR J., MADE THE FOLLOWING:
ORDERCommon questions of facts and law are involved in all these writ petitions challenging Circular dated 16.01.2015 issued by the respondent – Medical Council of India (‘the MCI’ for short), directing inter alia that from the Academic Year 2015-16 onwards all admissions in NRI category shall be on merit determined thorough Common Entrance Test. Hence, they are heard and disposed of by this common order. :
5. :
2. Gravamen of Petitioners’ case is that they are Private Unaided Medical Colleges; their right to admit students under NRI and Management quota has been recognized by the Supreme Court in various authoritative pronouncements; there is no ambiguity with regard to admission of student under the NRI Quota in Private Unaided Medical Colleges; having misconstrued the observations of the Supreme Court contained in paragraph 131 in the case of P.A.INAMDAR AND OTHERS VS. STATE OF MAHARASHTRA AND OTHERS1 the respondent MCI has issued a circular dated 16.01.2015 in the teeth of the Judgement of Supreme Court and therefore, it is unsustainable in law and liable to be quashed.
3. After notice, the MCI has entered appearance and filed statement of objections contending inter alia that the Circular in question is issued pursuant to the observations contained in paragraph 131 of P.A. INAMDAR case, wherein 1 2005(6) SCC537:
6. : the Apex Court has consciously referred to the aspect of merit and held that the right of petitioners/Private Unaided Medical Colleges to admit students under Management and NRI quota is not completely unfettered and on the other hand it is expressly stated therein that merit should not be given a complete go-by thereby meaning that all admissions shall be in accordance with inter se merit within respective categories; MCI being the only highest regulatory body for maintenance of standards of medical education, has rightly issued the circular in question which is in consonance with the observations contained in PA INAMDAR’s case. On these among other grounds, MCI prays for dismissal of Writ Petitions.
4. We have heard Sri.Shashi Kiran Shetty and Sri.M.R.Naik learned Senior Counsel appearing for the petitioners and Sri. N.Khetty, learned counsel appearing for the respondent. :
7. :
5. Sri.Shashi Kiran Shetty, the learned Senior counsel submits that the circular in question is contrary to observations of the Supreme Court in the case of P.A.INAMDAR. He submits that admission of students in the Medical colleges is done pursuant to entrance test conducted by COMED-K, Deemed Universities etc., as per the Consensual Agreement between the State Government and Private Medical Colleges. He submits that pursuant to judgment in P.A INAMDAR the State Government enacted Karnataka Professional educational Institutions (Regulation of Admission and determination of fee) Act 2006 [Act 8 of 2006]. which has defined non-resident Indians in Section 2(n) of the said Act and allocation of seats is governed by Section 9(iv) of the said Act, which mandates that admission to Medical Course in un-aided professional colleges except seats reserved for NRI candidates shall be made on the basis of merit by following procedure of common entrance test. He, further, submits that subsequently Act 13 of 2006 was brought in to force keeping Act 8 of 2006 in abeyance and :
8. : admission of seats were being regulated in terms of Sec. 5 thereof where under the Petitioners were entitled to fill up 20 % seats. It is further submitted by him that in terms of consensual agreement 42% of the seats are allotted to the Government and in the remaining 58%, 38% seats are allotted on merit basis through entrance test conducted by Comed-K and the remaining 20% seats are allotted under NRI and Management quota (15% under NRI quota and 5% under Management quota) and the said arrangement continues as on date.
6. The learned Senior Counsel Sri.M.R.Naik submits that admission to Private Unaided Medical colleges has been considered by the Supreme Court in various judgments. He submits that in UNNI KRISHNAN, J.P. AND OTHERS vs. STATE OF ANDHRA PRADESH AND OTHERS2, the Apex Court has recognized right of the Private Medical Colleges to admit NRI students under discretionary quota. He further submits that 2 (1993) 1 SCC645:
9. : principles of fair, transparent and non-exploitative mode of admission of students in Unaided Private Medical Colleges enunciated by the Apex Court are being strictly adhered to by the petitioners. The impugned circular is unsustainable in law as the same is not traceable to any express Regulation in this behalf. MCI was a party in all the cases before the Apex Court and whilst the directions contained in paragraph 131 of P.A. INAMDAR are in force, it was State alone which could have brought in a legislation and therefore, the impugned circular runs counter to the said directions and liable to be quashed.
7. Sri. M.R. Naik next submits that the circular in question is issued not by the Council after deliberating the issue in the light of the existing law on the point, but on the other hand, it has emanated out of proceedings of executive committee of the MCI in the meeting held on 16.12.2014 and therefore, the impugned circular cannot be construed as the one issued by the Council in as much as executive committee :
10. : cannot be equated to that of Council itself. He submits that the non-resident students and children of non-resident citizen, who opt for seats in the Private Medical Colleges are scattered around the globe and would have studied in different schools and environment and therefore it would be not only unfair but practically impossible to call upon them to undergo common entrance test. Choice of the students will be college specific and if the selection process is to be made in accordance with the impugned circular, students may not get the desired college and consequently opt out to pursue their career in India. Such resultant position would defeat the entire purpose for which reservation is provided for admitting students under NRI and Management quota.
8. In sum and substance, it is submitted on behalf of the petitioners that the Supreme Court has recognized the right of Private Unaided Colleges and permitted seats under NRI quota to be filled up by devising their own method of assessing inter se merit. Thus, Private Unaided Medical :
11. : Colleges have an unfettered right to admit students under NRI and Management quota and the same has been recognized by the State Government in the statutory consensual agreement; the colleges have been following transparent method to allot seats on merit, which is manifest by the fact that there are no grievances by any NRI student or their parents and even if there should be one, such rare incidents are justiceable before a Court of Law. The learned counsel for the petitioners submit that the impugned notification is therefore patently illegal and runs counter to various judgment of the Supreme Court and pray that the same may be quashed.
9. Per contra, the learned counsel Shri N.Khetty appearing for the MCI, while adverting to the pleadings contained in the writ petition itself points out that in the case of T.M.A. PAI FOUNDATION AND OTHERS (I) vs. STATE OF KARNATAKA AND OTHERS3 and other judgments referred to 3 (1993) 4 SCC276:
12. : by the petitioners, the Supreme Court has stressed the need for merit and unequivocally held that merit must play an important role and meritorious candidates are not unfairly treated or put at a disadvantage by preferring less meritorious but more influential applicants. He adopts the contents of the judgments of the Apex Court as his submissions to contend that excellence in professional education would require greater emphasis on the merit of students seeking admission even in cases where discretion to grant admission is left with educational institutions. The admission if any made by the unaided Private Medical Colleges must not be whimsical or for extraneous reasons. He vehemently contends that at every stage, wherever and whenever the Private Management Institutions are given a discretion to admit students, such permission is always supplemented with a note of caution against a possible lapse in maintaining merit. He submits that at any rate, the judgments of Supreme Court cannot be construed to mean that Unaided Private Medical Colleges :
13. : have unfettered right to admit students of their choice without reference to merit.
10. He submits that foundation for the circular in question is drawn from the judgment of the Supreme Court in the case of P.A.INAMDAR as is manifest from a portion of judgment finding its place in the preamble of the circular. In furtherance of the said judgment, the MCI has rightly brought in the circular in question which does not in any way affect either the Unaided Private Medical Colleges or NRI students desirous of studying India. By the circular in question, MCI has sought to bring in higher degree of transparency which would result in most meritorious among the applicants to get admission. He submits that the circular is in consonance with the intent and purport of MCI Act and in furtherance of it’s solemn duties under the Act. At any rate primacy in merit will ensure that students having higher qualification are not deprived of an opportunity of studying due to arbitrary allotment of seats by the Private Medical Colleges for :
14. : extraneous reasons. In sum and substance, he contends that the circular in question directing the admission under NRI quota through a Common Entrance Test on All India basis or State wide basis cannot be termed as unreasonable by any stretch of imagination in as much as the same is issued in pursuance of directions contained in paragraph No:
131. of P.A. INAMDAR’s case and prays for dismissal of the writ petitions.
11. We have considered the submissions made at the bar on behalf of the petitioners as well as the MCI and perused the material on record. In the premise, following questions fall for our consideration. (1) What is the historical background for recognizing admissions under NRI quota as discernible from the various pronouncements of the Apex Court?. Whether Apex Court has directly or indirectly suggested a CET in the past for filling up the seats under NRI quota?. (2) In the light of the State legislation enacting a law as per Act No.8/2006, particularly Section 9(4) wherein :
15. : admission to NRI has been excluded while providing for conducting CET or Centralized Counseling for admissions to medical colleges, does the impugned Circular come in the way of implementation of the State legislation, particularly because under Act No.13/2006 consensual agreement conceived between the State and the Association of Private Medical Colleges and the implementation of consensual agreement is provided for under Section 5 of the said Act and also in view of the fact that consensual agreement periodically reached had been placed before the Apex Court and approval of the Apex Court has been secured ?. (3) What is the effect of the observations made by the Apex Court in para 131 of P.A.Inamdar’s case – (2005) 6 SCC537 Whether it can be construed that the Apex Court has left it to the discretion of the MCI to regulate admissions to NRI category by prescribing CET and Centralized Counseling?. (4) What is the effect of the ratio laid down in Christian Medical College case (2014) 2 SCC305 (5) Whether the Circular issued by MCI based on the deliberations/report of the Executive Committee of the Council in its meeting held on 16.12.2014 :
16. : prescribing CET to fill up seats in NRI category can be said to be in exercise of the power and authority conferred as per the MCI Act, particularly Sections 19A and 33, or for that matter can it be traceable to Regulation 5(2) of Graduate Medical Education Regulations, 1997?. What is the scope, purport and effect of Regulation 5(1) & 5(2) of Graduate Medical Education Regulations, 1997?. (6) Whether the principles embodied under Regulation 5(2) of the Graduate Medical Education Regulations, 1997 can be imported for NRI candidates in the face of the tenor of the provision?. Whether the Circular has impinged upon the rights recognized in the medical colleges through their associations to have their own method of selection of NRI students exercising their discretion as long as it has not found to be and shown to be whimsical and arbitrary. Particularly because admissions to medical colleges, to deemed universities, private college associations, COMED-K, Association of Minority Institutions and in some cases individual institutions like St. John’s Medical College and CMC Vellore have been permitted by having their own CET for assessing the inter se merit of students other than NRI category students. In the wake of this, whether a State-wide :
17. : CET for NRI students can be introduced by virtue of the impugned Circular?. Re: Point No.:
1. to 4 12. At the outset, it is to be noticed that the MCI in the impugned circular has extracted a portion of paragraph 131 of P.A. INAMDAR’s case which deals with the NRI seats. In order to appreciate the purport of any judgment, it is necessary to read the judgment in it’s entirety or in the least, the whole portion which deals with a particular issue. We therefore feel it appropriate to extract the entire paragraph, which deals with the NRI seats. It reads as under: “NRI Seats 131* Here itself we are inclined to deal with the question as to seats allocated for Non-Resident Indians (‘NRI’, for short) or NRI seats. It is common knowledge that some of the institutions grant admissions to certain number of students under such quota by charging a higher amount of fee. In fact, the term ‘NRI’ in relation to admissions is a misnomer. By and large, we have noticed in cases after cases coming to this Court, neither the :
18. : students who get admissions under this category nor their parents are NRIs. In effect and reality, under this category, less meritorious students, but who can afford to bring more money, get admission. During the course of hearing, it was pointed out that a limited number of such seats should be made available as the money brought by such students admitted against NRI quota enables the educational institutions to strengthen its level of education and also to enlarge its educational activities. It was also pointed out that people of Indian origin, who have migrated to other countries, have a desire to bring back their children to their own country as they not only get education but also get reunited with Indian cultural ethos by virtue of being here. They also wish the money which they would be spending elsewhere on education of their children should rather reach their own motherland. A limited reservation of such seats, not exceeding 15%, in our opinion, may be made available to NRIs depending on the discretion of the management subject to two conditions. First, such seats should be utilized bona fide by the NRIs only and for their children or wards. Secondly, within this quota, the merit should not be given a complete go-by. The amount :
19. : of money, in whatever form collected from such NRIs, should be utilized for benefiting students such as from economically weaker sections of the society, whom, on well defined criteria, the educational institution may admit on subsidized payment of their fee. To prevent misutilisation of such quota or any malpractice referable to NRI quota seats, suitable legislation or regulation needs to be framed. So long as the State does not do it, it will be for the Committees constituted pursuant to Islamic Academy’s direction to regulate. (underlining is by us) 13. Though, seats under NRI quota is dealt in paragraph 132 also, the same is not necessary in the present context in as much as it deals with the seats in minority institutions. A careful perusal of the entire paragraph leads to an irresistible inference that the Supreme Court while dealing with the issue of NRI seats has recognized the right of management of Private Unaided Medical Colleges to fill up 15% seats in their discretion subject to two conditions. First being that the said seats must be utilized bona fide by the :
20. : NRIs only and for their children or wards and second being that within this quota merit should not be given a complete go-by. The Apex Court has also enunciated the reasons for such concessions in the subsequent sentences and those reasons being that the funds so collected from the NRI candidates to enure to the benefit of students from economically weaker sections. In order to prevent any mis- utilization of NRI quota, the Apex Court has directed that there is need for a legislation on the issue and so long as the States do not bring in legislation, it will be for the Committees constituted pursuant to the directions contained in the case of ISALMIC ACADEMY OF EDUCATION AND ANOTHER vs. STATE OF KARNATAKA AND OTHERS4 to regulate admissions. Thus, what emerges from a reading of the entire paragraph No:
131. is that a limited number of seats not exceeding 15% are made available to NRI students without merit being given a complete go-by. It was expected of States to bring necessary legislation in this behalf and in the 4 (2003) 6 SCC697:
21. : absence of legislation committee referred to in Islamic Academy case would be regulating admissions. Therefore, in our considered view, if at all any regulatory mechanism to over see the admission under NRI quota in the Private Unaided Medical Colleges was to be brought in, it was for the State to enact a suitable legislation. It is necessary to note here that pursuant to the directions contained in P.A. INAMDAR, State has brought in a legislation namely The Karnataka Professional Educational Institutions (Regulations of Admissions And determination of fee) Act 2006 (Act 8 of 2006). In terms of Sec 9(iv) of the said Act which deals with allocation and reservation of seats, admissions to all seats in Private Unaided Educational Institutions excluding seats which may be filled by NRI candidates is required to be made on the basis of merit by following common entrance test. Thus, even in this legislation, a specific exception is carved out in that, seats to be filled by NRI candidates have been kept out of the purview of the common entrance test. The Act 8/2006 was kept in abeyance by enacting Karnataka :
22. : Professional Educational Institutions (Regulation of Admission and determination of fee) Act 2006 (Special Provisions) Act 2006 [Act 13 of 2006]. and as per Sec. 5 thereof Petitioners were entitled to fill up 20 % seats. The said arrangement continues to be in force with the enactment of Act 23/2011.
14. While we set out to examine historic background of allotment of seats in professional colleges, we commence our task with the judgement of the Apex Court in the case of UNNIKRISHNAN J.P. AND OTHERS, wherein Karnataka Education Institutions (Prohibition of Capitation Fee) Act 1984 was challenged in a Writ Petition under Article 32 of the Constitution. It was held therein that the said Act was Constitutional and a scheme was evolved in the nature of guidelines for professional colleges with a direction to the State Governments and recognizing and affiliating authorities to impose restrictions to collect fees in addition to such other conditions for grant of permission. :
23. :
15. The above scheme was modified by a Constitutional Bench of the Apex court in the case of T.M.A. PAI FOUNDAITON AND OTHERS (II) Vs. STATE OF KARNATKA AND OTHERS5. By a Judgement in the same case reported in (1993) 4 SCC286 the Constitution Bench having noticed that certain questions such as meaning and content of expression “minorities” in Article 30 of the Constitution and other questions having surfaced for consideration referred the matter to a larger bench and in the judgement reported in (1993) 4 SCC788certain further directions were issued. Subsequently a Constitution Bench of the Supreme Court consisting of 11 Judges in (2002) 8 SCC481while answering the question with regard to rights of minority institutions to establish and administer education institutions at page 588 has held thus: A. A minority institution may have it’s own procedure and method of admission as well as selection of students, but such procedure must be 5 (1993) 4 SCC286:
24. : fair and transparent, and selection of students in professional and higher education colleges should be on the basis of merit. The procedure adopted or selection made should not be tantamount to maladministration. Even an unaided minority institution ought not to ignore the merit of the students for admission, while exercising it’s right to admit students to the colleges aforesaid, as in that event, the institution will fail to achieve excellence.
16. In the case of P.A. INAMDAR after considering various earlier judgments, vis-à-vis the NRI seats, the Apex court issued directions as contained in paragraph No.131 extracted supra.
17. In MODERN DENTAL COLLEGE AND RESEARCH CENTRE AND OTHERS vs. STATE OF MADHYA PRADESH AND OTHERS6 the Apex Court has while dealing with the fundamental rights of the private unaided medical/dental colleges to establish educational institutions and the reasonable restrictions that can be placed under Article 19 (6) 6 (2009) 7 SCC751:
25. : of the Constitution of India on the said rights, has after referring to the previous judgments including that of T.M.A.PAI FOUNDATION AND OTHERS vs. STATE OF KARNATAKA AND OTHERS7 and P.A.INAMDAR observed as under in paragraphs 29 to 31. “29. In our view, a balance has hence to be struck because while on the one hand, the state Government does have an element of interest in the private unaided professional institutions, this does not mean that there will be no autonomy to the private unaided institutions. After all, the private unaided institutions have to generate their own resources and funds and consequently they must have a larger degree of autonomy as compared to the aided institutions or the State Governments institutions.
30. In this situation, we are of the opinion that this Court must use its creativity and find out a workable, balanced via media to safeguard the interest of both parties, namely State Government on the one hand, and private unaided institutions 7 (2002) 8 SCC481:
26. : on the other, and also to keep the interest of the students in mind.
31. We, therefore, direct that the admissions in the private unaided medical/dental colleges in the State of Madhya Pradesh will be done by first excluding 15% N.R.I. seats (which can be filled up by the private institutions as per para 131 of Inamdar’s case), and allotting half of the 85% seats for admission to the under-graduate and post- graduate courses to be filled in by an open competitive examination by the State Government, and the remaining half by the Association of the Private Medical and Dental Colleges. Both the State Government as well as the Association of Private Medical and Dental Colleges will hold their own separate entrance examination for this purpose. As regards the ‘NRI Seats’, they will be filled as provided under the Act and Rules, in the manner they were done earlier.
18. We have to also notice here the observations made by the Apex Court in the judgment rendered on 01.04.2003 in STATE OF KARNATAKA vs. DR T.M.A. PAI FOUNDATION :
27. : AND OTHERS8. In paragraph 3, the Apex Court has stated that all statutory enactments, orders, schemes, regulations will have to be brought in conformity with the decision of the Constitution Bench in TMA PAI FOUNDATION decided on 31.10.2002. This being the position, the MCI was not justified in issuing the Circular to introduce a compulsory entrance test for NRI students for various medical colleges that too on the basis of a decision taken by the Executive Committee of the Council.
19. Further in the case of CHRISTIAN MEDICAL COLLEGE, VELLORE AND OTHERS vs. UNION OF INDIA AND OTHERS9, Supreme Court while dealing with the matter of power of MCI to conduct common entrance test for post graduate medical courses has held as follows.
146. Nowhere in the 1956 Act nor in the MCI Regulations, has the Council been vested with any authority to either conduct examinations or to direct that all admissions into different medical colleges and 8 (2003) 6 SCC7909 (2014) 2 SCC305:
28. : institutions in India would have to be on the basis of one common National Eligibility- cum-Entrance Test, thereby effectively taking away the right of the different medical colleges and institutions, including those run by religious and linguistic minorities, to make admissions on the basis of their own rules and procedures.
152. As far as private unaided professional colleges are concerned, the majority view was that it would be unfair to apply the same rules and regulations regulating admission to both aided and unaided professional institutions. In that context, it was suggested that it would 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, which could be done by reserving a certain percentage of seats for admission by the management out of those students who had passed a common entrance test held by itself, while the rest of the seats could be filled up on the basis of counselling by the State agency, which would take care of the poorer and backward sections of society.
157. What can ultimately be culled out from the various observations made in the decisions on this issue, :
29. : commencing from the Kerala Education Bill case (supra) to recent times, is that admissions to educational institutions have been held to be part and parcel of the right of an educational institution to administer and the same cannot be regulated, except for the purpose of laying down standards for maintaining the excellence of education being provided in such institutions. In the case of aided institutions, it has been held that the State and other authorities may direct a certain percentage of students to be admitted other than by the method adopted by the institution.
20. Thus, it is clear that the issue with regard to admission of students in Unaided Private Medical Colleges having been considered by the Apex Court on more than one occasion, their right to admit NRI students by evolving their own method of assessing the inter se merit among the applicants has been recognized pending any legislation on the point to be brought in by the State. Re: Point No:
5. and 6 21. Admittedly, the circular in question is issued on 16.01.2015 based on the recommendation of the Executive :
30. : Committee. Respondent MCI has been a party before the Supreme Court in all cases concerning admission of students in the Medical Colleges and particularly in the case of P.A. INAMDAR and CHRISTIAN MEDICAL COLLEGE, VELLORE and is bound by the directions contained in the said judgements. As observed supra, only a portion of paragraph 131 in the judgement of P.A. INAMDAR has been extracted in the impugned circular by the MCI to draw support to their stand. The underlining principle and reasons for recognizing the right of Private unaided Medical Colleges to admit a percentage of students under NRI and management quotas has been explained in the sentences following the extracted portion. Respondent MCI has omitted to refer to the reasons portion. Further, while writing the epilogue of the judgement, the Apex Court has reiterated its concerns and issued following directions.
155. It is for the Central Government, or for the State Governments, in the absence of a Central legislation, to come out with a detailed well thought :
31. : out legislation on the subject. Such a legislation is long awaited. States must act towards this direction. Judicial wing of the State is called upon to act when the other two wings, the Legislature and the Executive, do not act. Earlier the Union of India and the State Governments act, the better it would be. The Committees regulating admission procedure and fee structure shall continue to exist, but only as a temporary measure and an inevitable passing phase until the Central Government or the State Governments are able to devise a suitable mechanism and appoint competent authority in consonance with the observations made hereinabove. Needless to say, any decision taken by such Committees and by the Central or the State Governments, shall be open to judicial review in accordance with the settled parameters for the exercise of such jurisdiction.
22. It is no doubt true that MCI is the highest body in the country to over see the quality of medical education. Admittedly, MCI was party before the Supreme Court in the case of P.A. Inamdar which was decided on 12.08.2005. Subsequently, several judgments have been pronounced by :
32. : the Apex Court touching the aspect of admission of students by Private medical Colleges. It is nearly ten years since the judgment in P.A.Inamdar’s case has been pronounced. Regulation 5(ii) of Graduate Medical education Regulations, 1997 came into force with the publication in the Gazette dated 17.05.1997. These Regulations after amendment were notified vide Notification No.MCI-31(1)/2010-MED/49068 described as "Regulations on Graduate Medical Education (Amendment) 2010, which were subject matter in the case of CHRISTIAN MEDICAL COLLEGE, VELLORE The judgment of the Apex Court in P.A. INAMDAR is of the year 2005. The foundation for the impugned circular is a portion of para 131 of P.A.Inamdar’s case. The words used in P.A. Inamdar are very specific and they are “legislation” or “regulation”. As per the pronouncements of the Apex Court, it was either for the Central Government or the State Government to bring in legislations if any to regulate admissions. The impugned circular in our considered opinion is contrary to the pronouncements of the Apex Court and runs counter to the :
33. : tenor of the directions contained therein and therefore unsustainable.
23. It is also necessary to notice here that the Graduate Medical Education Regulations, 1997, particularly Regulation 5 cannot be made applicable to introduce CET for NRI category students. These regulations cannot be read dehors the observations made in paragraph 131 of the judgment of the Apex Court in P.A.Inamdar’s case. It is also necessary to point out here that provisions contained in Section 19A of the IMC Act, 1956, provide for prescription of minimum standards of medical education and the method and manner of providing such regulations. The Executive Committee of the Council cannot proceed to amend or interpret the regulations by issuing the impugned Circular without following the prescribed procedure under Section 19A of the IMC Act. Section 19A provides that the Council may prescribe the minimum standards for medical education by Universities or Medical Institutions. Copies of the draft :
34. : regulations shall be furnished by the Council to all State Governments and the Council is enjoined with the duty to take into consideration the comments of State Government. Section 33 which deals with the power of the Council to make regulations makes it clear that prior sanction of the Central Government has to be obtained for making regulations in respect of matters provided for under the said Section. Without following any such procedure, by issuing a Circular, the MCI has sought to introduce entrance test for NRI category students as per the report of the Executive Committee of the Council, which is apparently contrary to the nature of the power invested with the Committee and the procedure prescribed under the IMC Act, 1956.
24. The next question that falls for consideration is whether there is any arbitrariness in not subjecting the NRI students to a common entrance test and leave it to the discretion of the private medical colleges. In our considered view, this issue is no more res integra. With the exodus of :
35. : students aspiring for joining medical courses and in the absence of commensurate number of medical colleges in the country, the private medical colleges came into existence. With the number of private colleges increasing, the State Government brought in legislation, to prohibit capitation fee. The private medical colleges having agitated the issue up to the Supreme Court, the right of the private medical colleges to fill up small percentage of seats by the NRI students is now fairly well settled. Freedom to run the private education institutions and their right to conduct examination for admitting students is also recognized. We hasten to add that the recognition of this right has been made subject to future ‘legislation’ or ‘regulation’ by the State. The State of Karnataka has enacted a legislation and provision has been made for consensual agreement between the colleges of the State.
25. In the circumstances, we are of the considered view that the impugned circular issued by the MCI is not :
36. : sustainable in view of the pronouncement of the Supreme Court in P.A.INAMDAR and other judgments referred to above and for the reasons stated supra. Accordingly, the circular dated 16.01.2015 (Annexure – A) stands quashed. No costs. SD/- JUDGE SD/- JUDGE Vnp* & Rsh