S.B. Sinha, J.
1. Both these writ applications involving common questions of fact and law were taken up for hearing together and are being disposed of by a common judgment.
2. Before, however, adverting to the said questions, the fact of the matter may be noticed.
3. One trust commonly known as Dr. Abdul Khair, Educational and Charitable Fund Trust (hereinafter called and referred to as 'the trust') is said to have been founded by one Dr. Khalid Khair. The said trust allegedly is a Muslim Minority Trust. According to the petitioners the said trust administers and maintains a College known as Maulana Azad Institute of Medical Sciences (hereinafter referred to as 'the said College') as a minority Institution within the meaning of Article 30 of the Constitution of India. The said College was established in the year 1989 and in order to achieve the object of the said trust, the family members of the founder thereof had agreed to execute a deed of gift in respect of 14 acres of land in favour of the said trust. Allegedly, the Institution has a big building at Haridas Chatterjee Lane, Gaya and a nearby building is used as Hostel for the students. The authorities of the said College approached the State of Bihar for the purpose of grant of necessary approval as a minority Institution. The Governing body also filed an applications before the Medical Council of India by a letter dated 23-2-1989. By letter dated 5-4-1989, the Medical Council of India informed the trustee-in-chief of the said trust that it as also the Government of India are not in favour of starting any new Medical College in the country. The trust filed a representation on 15-12-1989 before the Chief Minister for grant of necesssary permission to run the aforementioned Medical College. By another letter dated 15-1-1990 another representation to the aforementioned effect was also made to the Health Minister. By a letter dated 2-4-1991, the Governing Body of the College filed an application before Magadh University for its affiliation in prescribed form. By a letter dated 14-6-1991, the University informed the College that without prior permission obtained from the State Government, the application for opening such technical Institute cannot be granted. Second representation was filed by the trust to the Secretary of Health Department on 30th October, 1991. The students of the said College also filed a representation on 7-2-1992 before the Governor of Bihar (Chancellor of the University), Chairman of the Inter University Board, copies whereof were also sent to the Prime Minister of India, President, Minority Commission and Vice-Chancellor, Magadh University. Petitioners have further brought on records that the Supreme Court of India by an order dated 16-7-1992 passed in S.L.P. No. 7502 of 1992 permitted holding of examination so far as the students of Katihar Medical College are concerned. The said Special Leave petition appears to have been filed against a judgment passed by learned single Judge of this Court in C.W.J.C. No. 7985 of 1990, reported in (1992) 1 Pat LJR 747, upon difference of opinion between two other Hon'ble Judges of this Court which is reported in (1991) 2 Pat LJR 56.
4. On 27-8-1992 the President of India in exercise of his power conferred upon him under Article 123 of the Constitution promulgated an Ordinance being Ordinance No. 13 of 1992 known as Indian Medical Council (Amendment) Ordinance, 1992; in terms whereof, inter alia, Sections 10A, 10B and 10C were inserted in the Indian Medical Council Act (hereinafter referred as the said Act).
5. Petitioners filed writ applications before the Supreme Court of India being writ petition No. 671 of 1992 and 668 of 1992 and by an order dated 22-9-1992 the said applications were permitted to be withdrawn with a liberty to move this Court. C.W.J.C. No. 11507 of 1992 was filed on behalf of the trust on 11-11-1992 whereas students of the said Institution filed a separate writ application being C.W.J.C. No. 11696 of 1992, on 16-11-1992 wherein it inter alia impleaded the said trust as Respondent No. 5.
6. By an order dated 27-11-1992 passed in C.W.J.C. No. 11696 pf 1992 a Division Bench of this Court passed the following order:
'Let this application come up after three weeks for admission. In the meantime the State of Bihar is directed to consider the application of Maulana Azad Institute of Medical Sciences, Gaya for permission to start medical college, as evident from Annexure-3. The State Govt. should consider the application having regard to the fact that the applicant claims to be a religious minority. It should, therefore, consider the application, if it is satisfied that it is a religious minority, on the: basis of the requirements of law. The Government must take firm decision and communicate the same to the college/trust within three weeks from today.
Let this matter come up for admission on the 18th of December, 1992 amongst priority cases. Let a copy of this order be given to S.C. VI'.
7. The petitioners have contended that in the meanwhile a newspaper publication was made on 30-12-1992 and 11-12-1992 where-from it appeared that Mata Gujri Memorial Medical College and Lions Seva Kendra Hospital, Kishanganj and Katihar Medical College communicated to all concerned that the Chancellor, University of Bihar had directed them to conduct the examination of the said Institutes in respect of phase I of Bachelor of Medicine and Bachelor of Surgery for the Session 1992.
8. Petitioners have further brought on records a letter dated 22-1-1993 issued by the Medical Council of India wherein the Principal of the College has been informed that further action with regard to starting of the College shall be taken after receipt of the copies of the letter of affiliation of the College and the letter from the University. By the said letter the trustee was requested to send a copy of the letter issued by the University to him by which the College is affiliated.
9. In C.W.J.C. No. 11507 of 1992 notice was directed to be issued to the Medical Council of India by another Bench. However, both these applications have been placed before this Bench and thus, they were heard together.
10. Mr. B.C. Ghosh, learned Senior counsel appearing on behalf of the petitioners in C.W.J.C. No. 11696 of 1992 has raised a short question in support of this application. Learned Counsel relying upon and on the basis of the decision of the Supreme Court of India in Unni Krishnan, J.P. v. State of Andhra Pradesh (1993) 1 SCC 645 : (1993) JT 1 SC 474 : (AIR 1993 SC 2178), submitted that the Central Government or the Medical Council of India as also the State of Bihar cannot take any decision that no further Medical College is required to be established; as the right to obtain education is a fundamental right as enshrined under Art. 21 of the Constitution of India. It was submitted that although the State is entitled to take regulatory measures by passing appropriate legislation for the Management of Institutions including Technical Institution but cannot prohibit establishment of a minority institution, inasmuch as such a policy decision will be violative of Article 30(1) of the Constitution of India.
11. It was further submitted that the State of Bihar should have followed the order of this Court dated 27-11-1992, as quoted hereinbefore, and should not have refused to consider the matter of grant of recognition on the plea that the Central Government and the Medical Council of India have taken a policy decision not to open any further Medical Institution.
12. It was submitted that Sections 10A, 10B and 10C of the Indian Medical Council Act, being prospective in nature, the same cannot have any application whatsoever in relation to a College which was established in the year 1989. It was further submitted that the provisions of Bihar Technical Educational Institution (Regulation and Control) Act, 1981 is hit by Article 30 of the Constitution of India inasmuch as minority Institution is not required to obtain previous permission for establishment of an Institution as has been held by this Court in Rahmania Primary Teachers Training College v. The State of Bihar (1991) 1 Pat LJR 595 : (AIR 1992 Pat 1) (FB)
13. Mr. Basudeo Prasad, learned Senior Counsel appearing on behalf of the petitioners in C.W.I.C. No. 11507 of 1992 further submitted that in view of an absolute right conferred upon the minorities in terms of Articles 29 and 30(1) of the Constitution of India, Sections 10A to 10C of the Amendment Act must be held to be invalid. It was submitted that from the statement of objects and reasons of the Indian Medical Council Act it would appear that the functions of the Medical Council of India is merely to take regulatory measures relating to standard of education etc. and thus it could not have been conferred any power to grant permission for establishment and/or grant of recognition thereof to a minority Institution. It was submitted that grant of recognition/affiliation is the function of the State and/or the concerned University in terms of the provisions of the Bihar State University Act, 1976, Learned counsel submitted that the order dated 12-1-1993 as contained in the letter of the Additional Secretary in the Department of Health whereby and whereunder the petitioner's application dated 15-12-1989 was issued only on the ground that no recognition can be accorded in view of the policy decision of the State which must be held to be illegal. It was submitted that the power of Medical Council is only confined to the power of co-ordination and such power cannot be arbitrarily exercised. Learned Counsel further submitted that Clause (1) of Article 30 of the Constitution of India is a complete code in itself and the same being subject to regulation i.e. excellence of education and proper Management of the Institution, no total embargo can be put prohibiting establishment of any Medical Institution.
14. According to the learned counsel, the State also cannot make any discrimination with regard to the Government College and non-Government College inasmuch as there cannot be any presumption that all the private Medical Colleges would establish their Institution with a dishonest purpose.
Learned counsel in support of his contentions relied upon the decisions in the State of Madras v. Smt. Champakam Dorairajan, AIR 1951 SC 226, Sidhrajbhai Sabbai v. State of Gujarat, AIR 1963 SC 540 and The Managing Board of the Milli Talimi Mission, Bihar v. The State of Bihar, AIR 1984 SC 1757.
15. Mr. Sunil Kumar, learned Additional Standing Counsel Central Government, on the other hand, submitted that from a conjoint reading of the provisions of Sections 19A, 20 and 33 (J) and (K) of the Act, it would appear that the Medical Council has been conferred with a wide power to take regulatory measures with regard to the excellence of medical education in India, According to the learned counsel Medical Council of India had to be conferred with the powers in terms of Sections 10A, 10B and 10C of the Amendment Act with a view to co-ordinate amongst the different States the standard of education in Medical Colleges inasmuch as different standards of education has been prescribed in different States and in different Medial Colleges so that uniformity in the standard of Medical education may be brought about.
16. Learned counsel submitted that the power of State to regulate the Management of an Institution cannot be denied in view of the decisions of the Supreme Court in All Bihar Christian Schools Association v. State of Bihar, AIR 1988 SC 305 and State of Maharashtra v. Vikas Sahebrao Roundate, (1992) 4 SCC 435 : (AIR 1992 SC 1926).
17. It was further submitted that the right to establish an Institution by the minority community cannot be higher than the right of majority community.
Learned counsel in support of this contention has relied upon a decision in In re The Kerala Education Bill 1957, AIR 1958 SC 956.
Learned Counsel has also relied upon paragraph 194(f) of Unni Krishnan's case (AIR 1993 SC 2178) (supra).
18. Learned counsel further submitted that in view of Entry 66 of List I) of the Seventh Schedule of the Constitution of India read with Entry 25 of List III thereof, even if it be held that there is a conflict between the Central Act and State Act, the Central Act shall prevail.
19. Mr. P. K. Shahi, learned Government Pleader No. 7, appearing on behalf of the State submitted that the right of the State Government to grant approval in terms of the provisions of the Bihar State University-Act, 1976 must be held to have been abrogated after coming into force of the Indian Medical Council (Amendment) Act, 1992 as the aforementioned State Act was subject to the provisions of the Indian Medical Council Act. It has been submitted that the right of minority community to establish an Institution and more so a technical Institution cannot be said to have an absolute right inasmuch as right of administration does not meant that the minority Institution has right to mal-administer.
Learned counsel, in this connection, has relied upon a decision of the Supreme Court in A.P. Christians Medical Educational Society v. Government of Andhra Pradesh, AIR 1986 SC 1490.
20. Learned counsel further submitted that in view of the several decisions of the Supreme Court of India, this Court should not grant permission to the students to appear at the examination.
21. Articles 29 and 30 of the Constitution of India read thus :--
29. Protection of interest of minorities -- (1) Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same.
(2) No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.
30. Right of minorities to establish and administer educational institutions -- (1) All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.
(1A) In making any law providing for the compulsory acquisition of any property of an educational institution established and administer by a minority, referred to in Clause (1), the State shall ensure that the amount fixed by or determined under such law for the acquisition of such property is such as would not restrict or abrogate the right guaranteed under that clause.
(2) The State shall not, in granting aid to educational institution discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language'.
22. There is no dispute that the right of minority community to establish and manage an Institution is not an absolute right.
23. The impugned provisions of the Medical Council of India Act read with Sections 10A, 10B and 10C of the Indian Medical Council (Amendment) Oridinance, 1993 read thus :--
'10A (1) Notwithstanding anything contained in this Act or any other law for the time
being in force -
(a) no person shall establish a medical college; or
(b) no medical college shall -
(i) open a new or higher course of study or training (including a post-graduate course of study or training) which would enable a student of such course or training to qualify himself for the award of any recognized medical qualification; or
(ii) increase its admission capacity in any course of study or training (including a postgraduate course of study or training); except with the previous permission of the Central Government obtained in accordance with the provisions of this section.
Explanation 1 -- For the purpose of this section 'persons' includes any University or a trust but does not include the Central Government.
Explanation 2 -- For the purposes of this section 'admission' capacity in relation to any course of study or training (including post graduate course of study or training) in a medical college, means the maximum number of students that may be fixed by the Council from time to time for being admitted to such course or training.
(2)(a) Every person or medical college shall, for purpose of obtaining permission under Sub-section (1), submit to the Central Government a scheme in accordance with the provisions of Clause (b) and the Central Government shall refer the scheme to the Council for its recommendation.
(b) The scheme referred to in Clause (a) shall be in such form and contain such particulars and be preferred in such manner and be accompanied with such fee as may be prescribed.
(3) On receipt of a scheme by the Council under Sub-section (2), the Council may obtain such other particulars as may be considered necessary by it from the person or the medical college concerned, and thereafter, it may,--
(a) if the scheme is defective and does not contain any necessary particulars, give a reasonable opportunity to the person or college concerned for making a written representation and it shall be open to such person or medical college to rectify the defects, if any, specified by the council :
(b) consider the scheme, having regard to the factors referred to in Sub-section (7) and submit the scheme together with its recommendations thereon to the Central Government.
(4) The Central Government may, after considering the scheme and the recommendations of the Council under Sub-section (3) and after obtaining, where necessary, such other particulars as may be considered necessary by it from the person or college concerned and having regard to the factors, referred to in Sub-section (7), either approve (with such conditions, if any, as it may consider necessary) or disapprove the scheme and any such approval shall be a permission under Subsection (1);
Provided that no scheme shall be disapproved by the. Central Government except after giving the person or college concerned a reasonable opportunity of being heard:
Provided further that nothing in this sub
section shall prevent any person or medical
college whose scheme has not been approved
by the Central Government to submit a fresh
scheme and the provisions of this section
shall apply to such scheme, as if such scheme,
has been submitted for the first time under
Sub-section (1).
(5) where, within a period of one year from the date of submission of the scheme to the Central Government under Sub-section (1), no order passed by the Central Government, has been communicated to the person or college submitting the scheme, such scheme shall be deemed to have been approved by the Central Government in the form in which it had been submitted, and accordingly, the permission of the Central Government required under Sub-section (1) shall also be deemed to have been granted.
(6) In computing the time-limit specified in Sub-section (5), the time taken by the person or college concerned submitting the scheme, in furnishing any particulars called for by the council, or by the Central Government, shall be excluded.
(7) The Council, while making its recommendations under Clause (b) of Sub-section (3) and the Central Government while passing an order, either approving or disapproving the scheme under Sub-section (4), shall have due regard to the following factors, namely :--
(a) whether the proposed medical college or the existing medical college seeking to open a new or higher course of study or training would be in a position to offer the minimum standards of medical education as prescribed by the council under Section 19A or, as the case may be, under Section 20 in the case of post-graduate medical education;
(b) whether the person seeking to establish a medical college or the existing medical college seeking to open a new or higher course of study or training or to increase its admission capacity has adequate financial resources;
(c) whether necessary facilities in respect of staff, equipment, accommodation, training and other facilities to ensure proper functioning of the medical college or conducting the new course of study or training or accommodating the increased admission capacity have been provided or would be provided within the time limit specified in the scheme;
(d) whether adequate hospital facilities, having regard to the number of students likely to attend such medical college or course of study or training or as result of the increased admission capacity have been provided or would be provided within the time limit specified in the scheme;
(e) whether any arrangement has been made or programme drawn to impart proper training to students likely to attend such medical college or course of study or training by persons having the recognised medical qualifications;
(f) the requirement of man power in the field of practice of medicine; and
(g) any other factors as may be prescribed.
(8) where the Central Government passes an order either approving or disapproving a scheme under this section, a copy of the order shall be communicated to the person or college concerned.
10B. Non-recognition of medical qualifications in certain cases -- (1) where any medical college is established except with the previous permission of the Central Government in accordance with the provisions of Section 10A, no medical qualification granted to any student of such medical college shall be a recognised medical qualification for the purposes of this Act.
(2) where any medical college opens a new or higher course of study or training (including a post-graduate course of study or training) except with the previous permission of Central Government in accordance with the provisions of Section 10A, no medical qualification granted to any student of such medical college on the basis of such study or training shall be a recognised medical qualification for the purposes of this Act.
(3) where any medical college increases its admission capacity in any course of study or training except with the previous permission of the Central Government in accordance with the provisions of Section 10A, no medical qualification granted to any student of such medical college on the basis of the increase in its admission capacity shall be a recognised medical qualification for the purposes of this Act.
Explanation -- For the purposes of this section the criteria for identifying a student who has been granted a medical qualification on the basis of such increase in the admission capacity shall be such as may be prescribed.
10C. Time for seeking permission for certain existing medical colleges, etc. (1) If, after the 1st day of June, 1992 and on and before the commencement of the Indian Medical Council (Amendment) Ordinance, 1992 (13 of 1992), any person has established a medical college or any medical college has opened a new or higher course of study or training or increased the admission capacity, such person or medical college, as the case may be, shall seek within a period of one year from the commencement of the Indian Medical Council (Amendment) Ordinance, 1992, the permission of the Central Government in accordance with the provisions of the Section 10A of the Principal Act.
(2) If any person or medical college, as the case may be, fails to seek the permission under Sub-section (1), the provisions of Section 10B shall apply, so far as may be, as if, permission of the Central Government under Section 10A has been refused.'
24. From a bare reading of the said provision it is evident that the same are regulatory in nature. The provisions do not put any total embargo on establishment of any Medical Institution be it privately managed or managed by the State. It, therefore, logically follows that the policy decision of the Central Government as also the Medical Council of India to the effect that no further Medical College is required to be established in India cannot be held to be operative as the said policy decision would be contrary to and inconsistent with the aforementioned provisions.
25. This aspect of the matter has, however, been considered by H. M. Seervai in his Constitutional Law, third edition (Supplement) at page 473 which reads as follows :--
'However, as the contention raised is one of great constitutional importance, the present writer will deal with it. For the purpose of answering the question raised, it will be assumed that a minority community has raised sufficient funds to establish a Medical College fulfilling the conditions for affiliation prescribed by the University, and sufficient funds to meet the running expenses of a hospital with 700 beds and a full-fledged medical college. On this assumption, it is submitted that any law, and any policy designed to prevent the establishment of such a college would be void as violating Article 30(1). First, purely factually, it is not correct that there are sufficient medical colleges, in India, Surpeme Court decisions on the reservation of seats for admission to medical college emphasize the need for establishing more medical colleges to ease the problem. Thus in Pradeep Jain's case (AIR 1984 SC 1420), Sen, J. observed (at p. 1444 of AIR) :--
'The problem of admission to medical colleges and the post-graduate medical studies can only be properly and effectively be solved by the setting up of more medical colleges and by increasing the number of seats in such colleges to enable aspirants to have their aim of being qualified as medical practitioners in various subjects.'
So the assumption that there are enough
medical colleges is wholly unfounded, and the
policy must fall with the unfounded assumption on which it is based. The contention that
the establishment of a medical college needed
heavy investment, and that it produce
doctors beyond need would be a national
waste is untenable for the heavy expense is not
the concern of Govt. but of the minority
community, if it is prepared to pay the price
for exercising the right conferred on it by Article
30(1). In this context the decision of Sidhrajbhai v. State of Gujarat (AIR 1963 SC 540) is
directly relevant (see para 13.12, of the text)
for any reference to 'National waste' made by
the Govt. of India is untenable in the face of
Sidhrajbahi's case. That case held that the
right conferred by Article 30(1) was in terms
aobsolute and not subject to reasonable
restrictions in the interest of the efficiency of
instruction, discipline, health, sanitation and
the like may not be imposed. Such regulations
were not restrictions on the substance of the
right. The right was intended to be effective
and was not 'to be whittled down by so called
regulative measures conceived not in the
interest of the minority educational institution but of the public or the nation as a whole.
If every order which while maintaining the
formal character of a minority institution
destroys the power of administration is held
justifiable because it is in the public or the
national interest, though not in the interest of
the educational institution, the right guaranteed by Article 30(1) will be but a 'testing
illusion', a promise of unreality 'Sidhraj-
bhai's case has been repeatedly followed. It is
submitted that the law laid down by the
Supreme Court is clear; the only restrictions
which can be imposed on minority educational Institutions are regulation in the interest of those institutions and not in the public
and/or the national interest'.
26. In this view of the matter, the stand taken by the State of Bihar to the effect that the petitioners' Institution is not entitled to grant of any recognition on the ground that no further Medical Colleges are required to be established, is untenable.
27. However, this does not mean that the
Central Government or the State of Bihar
cannot exercise its power of grant of approval
so as to enable the Magadh University to
affiliate the said college. In view of Entry 66 of
List-1 of the Seventh Schedule of the Constitution of India, the Parliament has wide
power to make legislation with regard to co
ordination and determination of standard in
Institution for higher education and researches and Scientific and Technical Institution.
Entry 25 of List III of the Constitution of
India is subject to the provisions of Entries 63,
64, 65 and 66 of List-I. Thus, where a field has
been covered by a parliamentary legislation
with regard to the co-ordination and determination of the standard in Institution for
higher education and/or research for Scientific and Technical Institution, the right of the
State to enact on the self-same subject matter
is denuded. The right of the State Government and the University to grant approval
and recognition to a Medical Institution
would, therefore, be subject of the provisions
of the Medical Council Act as by reason of
Sections 10A, 10B and 10C of the said Act, it
is now only the Central Government which is
entitled to grant permission with regard to the
establishment of Medical Institution but in
terms thereof also the terms and conditions
for grant of recognition thereof have been laid
down. Unless and until the Institution in
question is found to be fit to impart medical
education to the students, the Slate of Bihar
and consequently the University cannot have
any jurisdiction whatsoever to grant approval
and/or recognition thereto. Reference in this
connection may be made to Osmania University Teachers Association v. State of A.P.,
AIR 1987 SC 2034.
28. It is correct to contend that the provisions of the Amending Act of 1992 being prospective in nature the same will have no application in relation to the Institutions which had already been established. There cannot be any doubt that a Statute is presumed to have prospective operation unless it is given retrospective operation expressly or by necessary implication.
29. Section 10C of the said Act embraces within its fold even such cases where Medical Institutions have been established before the 1st day of June, 1992. A right to obtain affiliation is not an absolute right and the same would depend upon the fulfilment of the conditions laid down therefor by reason of the relevant statutes. As before the affiliation to the said college could be granted, a parliamentary statute has come into force which would prevail over the State Legislation. An affiliation can be granted only upon fulfilment of the terms and conditions as laid down by the parliamentary legislation. This view is being taken for the simple reason that admittedly the Medical Council of India has absolute right to lay down the standard of education which in turn means that it has also the right or jurisdiction to lay down such conditions for the purpose of grant of affiliation to a Medical Institution in order to see that the Institutions are properly equipped to impart medical education to the students as per the standard of excellence laid by it.
30. Provisions of Section 10A, 10B and 10C of the Medical Council of India Act have to be viewed in the light of the power of the Medical Council of India in terms of Sections 19A, 20 and 33 (J. & K.) thereof.
30A. In this view of the matter, the contention of Mr. Banssudeo Prasad to the effect that Section 10A, 10B and 10C of the Act are unconstitutional, cannot be accepted.
31. In All Bihar Christian Schools Association v. State of Bihar, AIR 1988 SC 305 it has been held as follows (at pp. 312-313 of AIR) :--
'The object and purpose of prescribing regulations are to ensure that minority institutions do not fall below the standard of excellence expected of an educational institution and that they do not fall outside the main stream of the nation. A minority institution must also be fully equipped with educational excellence to keep in step with others in the State; otherwise the students coining out of such institutions will not be fully equipped to serve the society or the nation. While the State has every right to prescribe conditions for granting recognition or disbursing aid, it cannot under the the guise of that power prescribe onerous conditions compelling the minority institutions to surrender their rights of administration to the Government. On the one hand the State is under an obligation to ensure that educational standards in the recognised institutions must be according to the need of the society and according to standards which ensure the development of personality of the students in turning out to be civilized, useful members of the society, and to ensure that the public funds disbursed to the minority institutions are properly utilised for the given purpose. On the other hand the State has to respect and honour minority rights under Act. 30(1) in the matter of establishing and carrying of administration of institution of their choice. In order to reconcile these two balance and statutory provisions should serve both the objects and such statutory provisions have to withstand the test of Article 30(1) of the Constitution. These principles have to be borne in mind in considering the question of validity of statutory provisions relating to minority educational institutions.'
32. In Rahmania Primary Teachers Training College v. State of Bihar, (1991) 1 Pat LJR 595 : (AIR 1992 Patna 2) upon which counsel appearing for both the petitioners and respondents have strongly relied upon, a Full Bench of this court held (at p. 8 of AIR) :
'Various requirements as condition precedent for establishing teachers training institutions have been laid down in the rules framed under the Act. All the requirements are for the excellence of the Institutions. I find no reason why these requirements shall not apply to minority institutions of course, the State Government must keep in mind for the purpose of recognition the observation of Supreme Court in Civil Appeal No. 4129 of 1989 (already noticed elsewhere) whether there has been substantial compliance. If substantial compliance of the requirements is to be considered for recognition, surely this shall apply at the time when the institution is established. Unless a truly educational institution by substantly complying the conditions of the rules is established, there is no question of admitting students. Again for the purpose of admitting students, the rules must be substantially complied.
I am, therefore, of the opinion that minority institutions shall not be required to obtain prior permission for establishing and admitting students. But they shall be bound to substantially comply the various conditions laid down in the rules both for establishing the institution and admitting students. If they do not they will come within the mischief of the Act and no recognition will be given to such institutions.'
33. In the Ahmedabad St. Xaviers College Society v. State of Gujarat, AIR 1974 SC 1389 it was held (at p. 1441 of AIR) :--
'Because Article 30(1) is couched in absolute terms, it does not follow that the right guaranteed is not subject to regulatory laws which would not amount to its abridgment. It is a total misconception to say that because the right is couched in absolute terms, the exercise of the right cannot be regulated or that every regulation of that right would be an abridgment of the right'.
34. In A.P. Christians Medical Educational Society v. Government of Andhra Pradcsh, AIR 1986 SC 1490 it has been held (at p. 1496 of AIR);
'these institutions must be educational institutions of the minorities in truth and reality and not mere masked phautoms. They may be institutions intended to give the children of the minorities the best general and professional education to make them complete men and women of the country and to enable them to go out into the world fully prepared and equipped. They may be institutions where special provision is made to the advantage and for the advancement of the minority children. They may be institutions where the parents of the children of the minority community may expect that education in accordance with the basic tenets of their religion would be imparted by or under the guidance of teachers, learned and steeped in the faith. They may be institutions where the parents expect their children to grow in a pervasive atmosphere which is in harmony with their religion or conducive to the pursuit of it. What is important and what is imperative is that there must exist some real positive index to enable the institution to be identified as an educational institution of the minorities.'
It was further observed (AIR 1986 SC 1490 at p. 1495) :--
'Obviously the so-called establishment of Medical College was in the nature of a financial adventure for the so-called society and its office bearers, but an educational misadventure for the students. Many, many conditions had to be fulfilled before affiliation could be granted by the University. Yet the society launched, into the venture without fulfilling a single condition beyond appointing someone as Principal. No one could have imagined that a Medical College could function without a teaching hospital, without the necessary scientific equipment, without the necessary staff, without the necessary building and without the necessary funds. Yet that is what the society did or pretended to do. There was no doubt that the society and the so called institutions were started as business ventures with a view to make money from gullible individuals anxious to obtain admission to professional College. It was nothing but a daring imposture and skull-duggery. By no stretch of imagination status and dignity of a minority institution can be conferred on it.'
35. In Nageshwaramma v. State of A.P., AIR 1986 SC 1188 it has been held (at p. 1191 of AIR) :--
'The Teachers Training Institutes are meant to teach children of impressionable age and we cannot let loose on the innocent and unwary children, teachers who have not received proper and adequate training. True they will be required to pass the examination but that may not be enough. Training for a certain minimum period in a properly organised and equipped training institute is probably essential before a teacher may be duly launched.'
36. Yet recently in State of Maharashtra v. Vikas Sahebrao Raoundale, (1992) 4 SCC 435 : (AIR 1992 SC 1926) it has been held as follows (at p. 1928 of AIR) :--
'In all Bihar Christian Schools Association v. State of Bihar, (1988) 1 SCC 206 : (1988) 2 SCR 49 : (AIR 1988 SC 305), this court, when the ill equipped and mismanaged schools were taken over by an Act whose validity was challenged on the anvil of Article 30 of the Constitution, held that even the minority Institutions are subject to statutory regulations and establishment and maintenance of such an educational institution should be in conformity with the statute and the State is entitled to regulate the establishment of the educational institutions of the minorities have no right to maladministration. Any rule or direction issued by the Government to prevent maladministration would be valid.'
37. Mr. Ghosh, however, has strongly relied upon a passage from Unni Krishnan's case (AIR 1993 SC 2178) (paragraph 181) which reads thus (para 148, at p. 2234 of AIR) :--
'Right to education after the child/citizan
completes the age of 14 years. The right to
education further means that a citizen has a
right to call upon the State to provide
educational facilities to him within the limits
of its economic capacity and development. By
saying so, we are not transferring Article 41
from Part IV to Part III. We are merely
relying upon Article 41 to illustrate the con
tent of the right to education following from
Article 21. We cannot believe that any State
would say that it need not provide education
to its people even within the limits of its
economic capacity and development. It goes
without saying that the limits of economic
capacity are, ordinarily speaking, matters
within the subjective satisfaction of the
State.'
38. In that case one of the contentions raised therein, has been noted in Sub-paragraph (f) of paragraph 184 which reads thus (para 151, at, p. 2236 of AIR) :--
'Even if the right to establish an educational institution is not trade or business within the meaning of Article 19(1)(g), it is certainly an 'occupation' within the meaning of the said Clause. Indeed, the use of the four expressions profession, occupation, trade or business -- in Article 19(1)(g) was meant to cover the entire field of human activity. In such a situation, it is not necessary for the petitioner to pinpoint to which particular expression does their activity relate. It is enough to say that the petitioners do have the right to establish private educational institutions -- at any rate, self-financing/cost-based private educational institutions. This right can be restricted only by a law as contemplated by Clause (6) of Article 19.'
39. The Supreme Court observed (AIR
1993 SC 2178 at p. 2245):
'Teaching may be a profession but establishing an institution, employing teaching and non-teaching staff, procuring the necessary infrastructure for running a school or college is not 'practising profession'. It may be anything but not practising a profession. We must make it clear that we have not gone into the precise meaning and content of the expressions profession, occupation, trade or business for the reasons that it is not necessary for us to do so in view of the approach we are adopting hereinafter, which would be evident from the succeeding paragraphs. Our main concern in the entire proceeding discussion is only to establish that the activity of establishing and/or running an educational institution cannot be a matter of commerce.'
It held upon proceeding on the assumption that a person or body of persons has a right to establish an educational institution in this country but cautioned 'But this right, we must make it clear, is not an absolute one. It is subject to such law as may be made by the State in the interest of general public.'
40. But it is not necessary for us to deal with this aspect of the matter inasmuch as in Unni Krishnan's case (AIR 1993 SC 2178) itself the Supreme Court upon taking into consideration the provisions of University Grants Commission Act, Indian Medical Council Act, All India Council for Teachnical Education Act, 1987 as also Indian Medical Council (Amendment) Ordinance, 1992 with which we are concerned in this case, held (at pp. 2245-46 of AIR) :
'We must, however, make it clear, and which is of crucial importance herein, that the right to establish an educational institution does not carry with it the right to recognition or the right to affiliation. In Ahmedabad St. Xaviers College Society v. State of Gujarat, (1974) 1 SCC 717 : (1975) 1 SCR 173 : (AIR 1974 SC 1389) it has been held uniformly by all the nine learned Judges that there is no fundamental right to affiliation. Ray, C.J., stated that this has been 'the consistent view of this Court'. They also recognised that recognition or affiliation is essential for a meaningful exercise of the right to establish and administer educational institutions. Recognition may be granted either by the Government or any other authority or body empowered to accord recognition. Similarly, affiliation may be granted either by the University or any other academic or other body empowered to grant affiliation to other educational institutions. In other words, it is open to a person to establish an educational institution, admit students, impart education, conduct examination and award certificates to them. But he, or the educational institution has no right to insist that the certificates or degrees (if they can be called as such) awarded by such institution should be recognised by the State-much less have they the right to say that the students trained by the institution should be admitted to examinations conducted by the University or by the Govt. or any other authority, as the case may be, The institution has to seek such recognition or affiliation from the appropriate agency. Grant of recognition and/or affiliation is not a matter of course nor is it a formality. Admission to the privileges of a University is a power to be exercised with great care, keeping in view the interest of the general public land the nation. It is a matter of substantial significance -- the very life-blood of a private educational institution. Ordinarily speaking, no educational institution can run or survive unless it is recognised by the Government or the appropriate authority and/or is affiliated to one or the other Universities in the country. Unless it is recognised and/or affiliated as stated above, it's certificates will be of no use. No one would join such educational institution. As a matter of fact, by virtue of the provisions of the U.G.C. Act, noticed hereinabove, no educational institution in this country except a University is entitled to award degrees. It is for this reason that all the private educational institutions seek recognition and/or affiliation with a view to enable them to send the students trained by them to appear at the examinations conducted by the Government/University; the idea is that if such students pass the said examination, the Government/University will award its degree/diploma/certificate to them. These educational institutions follow the syllabus prescribed by the Government/University, have the same courses of study, follow the same method of teaching and training. They do not award their own degrees/qualifications. They prepare their students for University/Government examinations, request the University/Government to permit them to appear at the examinations conducted by them and to award the appropriate degrees to them. Clearly and indubitably, the recognised/affiliated private educational institutions supplement the function performed by the institutions of the State. There is not an independent activity but one closely allied to and supplemental to the activity of the State. In the above circumstances, it is idle to contend that imparting of education is a business like any other business or that it is an activity akin to any other activity like building of roads, bridges etc. In short, the position is this: No educational institution except a University can award degrees (Sections 22 and 23 of the U.G.C. Act). The private educational institutions cannot award their own degrees. Even if they award any certificates or other testimonials they have no practical value inasmuch as they are not good for obtaining any employment under the State of for admission into higher courses of study. The private educational institutions merely supplement the effort of the State in educating the people, as explained above. It is not an independent activity. It is an activity supplemental to the principal activity carried on by the State. No private educational institution can survive or subsist without recognition and/or affiliation. The bodies which grant recognition and/or affiliation are the authorities of the State. In such a situation, it is obligatory -- in the interest of general public -- upon the authority granting recognition or affiliation to insist upon such conditions as are appropriate to ensure not only education of requisite standard but also fairness and equal treatment in the matter of admission of students. Since the recognition/affiliating authority is the State, it is under an obligation to impose such conditions as per of its duty enjoined upon it by Article 14 of the Constitution. It cannot allow itself or its power and privilege to be used unfairly. The incidents attaching to the main activity attach to supplemental activity as well. Affiliation/recognition is not there for anybody to get it gratis or unconditionally. In our opinion, no Government, authority or University is justified or is entitled to grant recognition/affiliation without imposing such conditions. Doing so would amount to abdicating its obligations enjoined upon it by Part III; its activity is bound to be characterised as unconstitutional and illegal. To reiterate, what applies to the main activity applies equally to supplemental activity. The State cannot claim immunity from the obligations arising from Article 14 and 19. If so, it cannot confer such immunity upon its affiliates. Accordingly, we have evolved -- with the help of the counsel appearing before us and keeping in view the positive features of the several Central and State enactments referred to hereinbefore -- the following scheme which every authority granting recognition/affiliation shall impose upon the institutions seeking such recognition/ affiliation.'
41. In that case a scheme was evolved which has been laid down in paragraphs 206 to 210. The Supreme Court further made it clear that it would also be open to the appropriate authority and the competent authority to issue such further instructions or directions as they may think appropriate, not inconsistent to the Scheme by way of elaboration. One of the restrictions imposed by the Supreme Court in the said scheme is as follows (AIR 1993 SC 2178 at pp. 2247-48):
'(1) A professional college shall be permitted to be established and/or administered only by a Society registered under the Societies Registration Act, 1860 (or the corresponding Act, if any, in force in a given State), or by a Public Trust, religious or charitable, registered under the Trusts Act, Wakfs Act (or the corresponding legislation, if any, e.g., Tamil Nadu Religious and Charitable Endowments Act and A. P. Religious and Charitable Endowments Act). No individual, firm, company or other body of individuals, by whatever appellation called --except those mentioned above will be permitted to establish and/or administer a professional college. All the existing professional Colleges which do not conform to the above norm shall be directed to take appropriate steps to comply with the same within a period of six months from today. In default whereof, recognition/affiliation accorded shall stand withdrawn. (In this connection reference may be had to Rule 86(2) of Maharashtra Grant-in-Aid Code (referred to in State of Maharashtra v. Lok Shikshan Sanstha, (1971) 2 SCC 410 : 1971 Supp SCR 879 : (AIR 1973 SC 588)) which provided that schools which are not registered under the Societies Registration Act, shall not be eligible for grant. Grant of recognition and affiliation is of no less significance).
42. Petitioner No. 2 of C.W.J.C.
No. 11507 of 1992 does not appear to be a
society registered under the Societies Registration Act nor is registered under the Wakfs
Act or any corresponding legislation. It,
therefore, appears that although Supreme
Court itself held that right to establish an
Institution by a minority is a fundamental
right but laid down the conditions for establishment. One of which is that the Institution
must be run by a Society governed by the
provisions of the Societies Registration Act
or Wakfs Act or other corresponding legislations.
43. For the reasons aforementioned, it cannot be said that the petitioners of C.W.J.C. No. 11696 of 1992 who are students of the College run by petitioners of C.W.J.C. No. 11507 of 1992 had the right to appear in the examination conducted by the University although the College has not received the recognition of the Medical Council of India and the State of Bihar has also the affiliation of the University.
44. The question which now arises for consideration is that as to whether at this juncture the University can be directed to hold the examination of the students of the said College.
It may be true that the Supreme Court of India in the matter of Katihar Medical College direction holding of examination of the students. Such an interim order, however, cannot be said to be a law laid down by the Supreme Court of India in terms of Article 141 of the Constitution of India. This Court while disposing the matter is bound by the law laid down by the Supreme Court of India. In view of the several decisions as noticed hereinbefore as also the recent decision of the Supreme Court in Unni Krishnan's case (AIR 1993 SC 2178) upon which petitioners themselves placed strong reliance, in my opinion, the students cannot be permitted to appear at the examination.
45. A Division Bench of this Court recently in Dr. Nityanand Prasad Gupta v. The State of Bihar (C.W.J.C. No. 8326 of 1992 disposed of on 20-1-1993) (of which I was a Member) held as follows :
'It is now well known that students of an unrecognised institution have no legal right to appear at the examination or getting the result published.
In view of my findings aforesaid, the purported temporary recognition granted to the institution being honest in the eyes of law cannot be acted upon.
The Supreme Court recently in State of Maharashtra v. Vikas Sahebrao Roundale reported in (1992) 5 JT (SC) 175 : (AIR 1992 SC 1926) upon taking into consideration a large number of decisions held as follow:--
'Article 51A enjoins every citizen by Clause (h) to develop the scientific temper, humanism, the spirit of inquiry and reform and Clause (j) enjoins as fundamental duty to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement; (a) respect for national flag and national anthem; (e) to promote harmony and spirit of common brotherhood amongst all the Indian people transcending religious, linguistic and regional or sectional diversities to renounce practice derogatory to the dignity of woman; (f) to value and preserve with heritage of our composite culture, etc. are some of the basic duties which the budding students need to be inculcated and imbibed. They should be sowed in the respective minds in their formative period so that they take deep roots at maturity. The teacher needs, not only the training at the inception, but also periodical orientations in this behalf so that the children would reap the rich benefit thereof. The ill equipped and ill house institutions and substandard staff therein are counter productive and detrimental to inculcate spirit of enquiry and excellence to the students. The disregard of statutory compliance would amount to let loose of innocence and unwary children. The proceedings of the recent seminar held in Delhi, as published by the Times of India dated 4th August, 1992, would demonstrate the admission by the teachers that they are not properly trained to cope up with the growing needs of the society and are unsuited to the duties they have to shoulder in imparting teaching to the children. The teacher plays pivotal role in moulding the career, character and moral fibres and aptitude for educational excellence in impressive young children. The formal education needs proper equipment by the teachers to meet the challenge of the day to impart lessons with latest technics to the students on secular, scientific and rational outlook. A well equipped teacher could bring the needed skills and intellectual capabilities of the students in their pursuits. The teacher is adorned as Gurudevobhava, next after parents, as he is a Principal instrument to awakening the child to the cultural ethos, intellectual excellence and discipline. The teachers, therefore, must keep abreast over changing technics, the needs of the society and to cope up with the psychological approach to the aptitude of the children to perform that pivotal role. In short teachers need to be endowed and energised with needed potential to serve the needs of the society. The qualitative training in the training colleges or schools would inspire and motive them into action to the benefit of the students. For equipping such trainee students in a school or a college all facilities and equipments are absolutely necessary and institutions benefit thereof have no place to exist nor entitled to recognition. In that behalf compliance of the statutory requirements is insisted upon. Blackening the standard and judicial flat to control the mode of education and examining system are detrimental to the efficient management of the education. The directions to the appellants to disobey the law is subversive of the rule of law, a breeding ground for corruption and feeding source for indiscipline.'
46. Yet recently in Bihar Pradesh Secondary Teachers' Association v. Proposed High School, reported in (1993) 1 Pat LJR 352, this Court held that the students of unrecognised institution have no legal right to appear at the Secondary School Examination. Similar views have been expressed in Koshi Physical Training College, Madhrpura v. The State of Bihar, reported in (1993) 2 Pat LJR 78.
Reference in this connection may also be made to State of Tamil Nadu v. St. Joseph Teachers Training Institute, reported in (1991) 3 SCC 87.
47. In view of the aforementioned findings, it is not necessary in this case to dwell upon other contentions raised at the Bar. However, in this case, the Medical Council of India has already been approached by the petitioners as far as back on 23-2-1989. As noticed hereinbefore the Medical Council of India has also replied to the letters issued by the College from time to time. As no Rule has yet been framed, petitioner's aforementioned application dated 23-2-1989 may be treated to be an application in terms of Section 10C of the Medical Council of India Act. Petitioners may supply such other information/informations as is required under Sections 10A and 10B thereof so as to enable the Medical Council of India to take a firm decision as soon as possible and preferably within a period of six months from the date of receipt of the copy of this order. The Medical Council of India, in view of the aforementioned provisions may ignore its letter dated 22-1-1993 in terms whereof it asked for the affiliation granted by the University to the College in question. The Central Government shall also pass necessary order keeping in view the recommendations of the Medical Council of India.
48. The State of Bihar shall act upon the decision of the Central Government and pass necessary order within 15 days from the date of receipt of the copy of the said order. In the event the Central Government decides to grant recognition of the College, it necessary follows that the State shall pass an order in conformity therewith. The university shall thereafter consider the matter of grant of affiliation and pass an order as early as possible but not later than one month.
49. This time schedule has been fixed keeping in view the fact that the Institution in question was established in the year 1989 and it has already admitted the students, whose examination the University may have to hold, in the event the Central Government grants recognition to the college in question.
50. These applications are, thus, disposed of.
A.N. Chaturvedi, J.
51. I agree.