Association of Private Dental and Medical Colleges and ors. Vs. the State of M.P. and ors. - Court Judgment

Excerpt:
- indian penal code, 1890.section 306 :[dalveer bhandari & harjit singh bedi,jj] abetment of suicide deceased, a married woman, committed suicide - allegation of abetment of suicide against appellant husband and in-laws - ocular evidence was sketchy - dying declaration recorded by tahsildar completely exonerated all accused in-laws of any misconduct dispelling any suspicion as to their involvement - letter of threat allegedly written by appellant to father of victim was concocted piece of evidence held, though presumption against appellant can be raised, it cannot be said that onus shifts exclusively and heavily on him to prove his innocence. conviction of appellant is liable to be set aside. - pai foundation (supra), and observed inter alia, that it is for the central government or.....ordera.k. patnaik, c.j.1. in this batch of writ petitions filed under article 226 of the constitution, the common questions which arise for decision are that how far is it permissible under the constitution for the state to control and regulate admissions and fees in private unaided professional educational institutions in the state of madhya pradesh.2. the background facts are that in unni krishnan v. state of andhra pradesh : (1993) 1 scc 645, a five judge bench of the supreme court held that there was no fundamental right to professional education which flows from article 21 of the constitution but framed a scheme in the nature of guidelines which the appropriate governments and recognising and affiliating authorities were to implement as conditions for grant of permission, recognition.....

Judgment:
ORDER

A.K. Patnaik, C.J.

1. In this batch of writ petitions filed under Article 226 of the Constitution, the common questions which arise for decision are that how far is it permissible under the Constitution for the State to control and regulate admissions and fees in private unaided professional educational institutions in the State of Madhya Pradesh.

2. The background facts are that in Unni Krishnan v. State of Andhra Pradesh : (1993) 1 SCC 645, a five Judge Bench of the Supreme Court held that there was no fundamental right to professional education which flows from Article 21 of the Constitution but framed a scheme in the nature of guidelines which the appropriate Governments and recognising and affiliating authorities were to implement as conditions for grant of permission, recognition or affiliation under which the seats in professional colleges were to be divided into free seats and payment seats and a common entrance test was to be conducted by the State Government and the first 50% students in the merit list were to be admitted in free seats with nominal fees and the second 50% students in the merit list were to be admitted in payment seats and the fees payable for the payment seats were to take care of the costs of education of the professional college. This scheme of Unni Krishnan (supra), was implemented by the State Governments all over the country until in T.M.A. Pai Foundation v. State of Karnataka (2002) 8 SCC 364, eleven Judges Bench of the Supreme Court held that education will fall under the expression 'occupation' in Article 19(1)(g) of the Constitution and therefore, a citizen has a fundamental right to establish and administer an educational institution and this right will include the right of the private educational institution to admit students and to charge its own fees from students and the decision Unni Krishnan (supra), in so far as framing of scheme relating to grant of admission and fixing the fees was not correct. In T.M.A. Pai Foundation (supra), however, the Supreme Court held that the admission procedure must be merit based transparent and non-exploitative and the fees to be charged from the students cannot be unreasonable and exhorbitant. To ensure that admissions in Private Unaided Professional Educational Institutions is merit based, transparent and non-exploitative and that the fees charged are reasonable and non-exhorbitant and there is no profiteering, a five Judges Bench of the Supreme Court in Islamic Academy of Education v. State of Karnataka : (2003) 6 SCC 697, directed constitution of two Committees of State Government, each headed by sitting or retired High Court Judges to be nominated by the Chief Justice of the State, the Admission Committee which was to supervise and ensure that the test conducted for admission to Private Professional Colleges is fair and transparent and the Fees Committee which was to ensure that the fees proposed by the Private Unaided Professional Colleges are reasonable and there is no profiteering and no charging of capitation fee. Accordingly, the two Committees were constituted by the State Governments with retired High Court Judges as Chairman of the Committees. On a reference made on certain questions, a seven Judges Bench of the Supreme Court in PA. Inamdar and Ors. v. State of Maharashtra and Ors. (2005) 6 SCC 535, again clarified the law as laid down by the eleven Judges Bench in T.M.A. Pai Foundation (supra), and observed inter alia, that it is for the Central Government or the State Government in the absence of a Central Legislation, to come out with a detailed well-thought-out legislation on the subject and that the State must act towards the direction. Accordingly, the State Legislature of Madhya Pradesh has enacted the M.P. Niji Vyavasayik Shikshan Sanstha (Pravesh Ka Viniyaman Avam Shulk Ka Nirdharan) Adhiniyam, 2007 (for short 'the Act, 2007').

3. The Association of Private Dental and Medical Colleges of the State of Madhya Pradesh (for short 'the Association') has challenged the provisions of the Act, 2007 as ultra vires the Constitution in W.P. No. 1975/2008. Under Section 12 of the Act, 2007 the State Government has power to make rules and in exercise of such power, the State Government has made the Admission Rules, 2008 (for short 'the Rules, 2008'). The Association has also challenged the Rules, 2008 as ultra vires the Constitution and the Act, 2007 in W.P. No. 9496/2008. Under the Scheme of the Act, 2007 and the Rules, 2008, admissions to private unaided professional educational institutions are to be based on merit determined in the common entrance test followed by centralised counselling by the State Government or any agency authorised by the State Government. The State Government issued orders on 28-2-2009 that the State Government shall conduct the common entrance test for admission to Postgraduate Medical and Dental Courses for the academic session 2008-09 through Madhya Pradesh Professional Examination Board (VYAPAM). The Association has challenged this order dated 28-2-2009 of the State Government authorising VYAPAM to conduct the common entrance test for admissions to Postgraduate Medical and Dental Courses for grant of admission for the academic session 2008-09 as illegal, arbitrary and contrary to the law as laid down in T.M.A. Pai Foundation and PA. Inamdar (supra), in W.P. No. 2764/2009.

4. Three Professional Colleges, Modern Dental College & Research Centre at Indore, R.D. Gardi Medical College at Ujjain and People's College of Dental Sciences & Research Centre, Bhopal have filed W.P. No. 2732/2009 challenging the provisions of the 2007 Act and the 2008 Rules as well as the order dated 28-2-2009 of the State Government authorising VYAPAM to conduct common entrance test for admissions to the Postgraduate Professional Medical and Dental Courses in the Private Professional Colleges in the State of Madhya Pradesh as ultra vires the Constitution. The State Government issued another order dated 5-3-2009 authorising VYAPAM to conduct the common entrance test for admissions to the graduate medical and dental courses in the private medical and dental colleges in the State of Madhya Pradesh. Guru Gobind Singh College of Dental Sciences & Research Centre, Burhanpur which claims to be a minority unaided professional educational institution college has filed W.P. No. 2880/2009 challenging the vires of the Act, 2007 and the orders dated 28-2-2009 of the State Government and 5-3-2009 authorising VYAPAM to conduct common entrance tests for admissions to postgraduate and graduate medical and dental courses in the private medical and dental colleges in the State of Madhya Pradesh as ultra vires Article 30 of the Constitution.

5. The State Government in exercise of its powers under Section 12 of the Act, 2007 has also framed the Madhya Pradesh Private Medical and Dental Postgraduate Course Entrance Examination Rules, 2009 (for short 'the 2009 Rules') and two private professional colleges, namely Modern Dental College & Research Centre, Indore and R.D. Gardi Medical College, Ujjain have filed W.P. No. 3732/2009 challenging the 2009 Rules as ultra vires the Constitution. Three medical graduates residing in Bihar, Maharashtra and Rajasthan have also challenged the 2009 Rules as ultra vires the Constitution in W.P. No. 3886/2009.

6. The challenge to the provisions of the 2007 Act, the 2008 Rules, the 2009 Rules and the orders dated 28-2-2009 and 5-9-2009 of the State Government can be classified into four heads:

(i) The challenge to the provisions relating to admission;

(ii) The challenge to the provisions relating to fixation of fee;

(iii) The challenge to the provisions of reservation; and

(iv) The challenge to the provisions relating to eligibility for Admission.

We may now deal each head of challenge separately.

Challenge to the provisions relating to admission:

7. Sections 3 (d), 6 and 7 of the Act, 2007, which relate to admission are quoted hereinbelow:

3. (d) 'common entrance test' means an entrance test, conducted for determination of merit of the candidates followed by centralised counselling for the purpose of merit based admission to professional colleges or institutions through a single window procedure by the State Government or by any agency authorised by it.

6. Common entrance test.- In private unaided professional educational institution, admission to sanctioned intake shall be on the basis of the common entrance test in such manner as may be prescribed by the State Government.

7. Admission.- Every admission to private unaided professional educational institution shall be made in accordance with the provisions of this Act or the rules made thereunder and every admission made in contravention shall be void.

8. Sub-sections (1), (9), (10) and (12) of Section 4 which deal with power of the Act, 2007 which deal with the powers of the Admission and Fee Regulatory Committee regarding admission are also extracted hereinbelow:

(1) The State Government shall, by notification in the Official Gazette, constitute a Committee to be called the Admission and Fee Regulatory Committee, for the supervision and guidance of the admission process and for the fixation of fee to be charged from candidates seeking admission in a private professional educational institution.

(9) The Committee may hear complaint with regard to admission in contravention of the provisions contained herein, collecting of capitation fee or fee in excess of fee determined or profiteering by any institution, and if the Committee after enquiry finds that there has been any violation of the provisions for admission on the part of the unaided professional colleges or institution, it shall make appropriate recommendations for returning any excess amount collected to the person concerned, and also recommend to the Government for imposing a fine upto rupees ten lakhs, and the Government may on receipt of such recommendation, fix the fine and collect the same in the case of each such violation or decide any other course of action as if it deem fit and the amount so fixed together with interest thereon shall be recovered as if it is an arrear of land revenue and the committee may also declare admission made in respect of any or all seats in a particular college or institution to be de hors merit and therefore, invalid and communicate the same to the concerned university, and on the receipt of such communication, the University shall debar such candidates from appearing in the examination and cancel the results of examination already appeared for.

(10) The Committee may, if satisfied that any unaided professional college or institution has violated any of the provision of this Act and after approval of the State Government, recommend to the University or Appropriate Authority for withdrawal of the affiliation or recognition of such college or institution or decide any other course of action as it deems fit.

(12) The Committee shall ensure that the admission in an institution is done in a fair and transparent manner.

Contentions of the petitioners:

9. Mr. L.K. Verma and Vivek Tankha, learned Senior Counsel appearing for the petitioners, submitted that in T.M.A. Pai Foundation (supra), the Supreme Court has held that private unaided non-minority educational institution has a fundamental right under Article 19(1)(g) of the Constitution to carry on its occupation and this right will include the right to select and admit students of its choice and that the scheme framed in Unni Krishnan (supra), and followed by the Government cannot be reasonable restrictions under Article 19(1)(6) of the Constitution on this fundamental right. They submitted that the Supreme Court has also held in T.M.A. Pai Foundation (supra), that the right to establish and administer an educational institution can be regulated, but such regulatory measures must, in general, be to ensure the maintenance of proper academic standards, atmosphere and infrastructure including qualified staff and the prevention of mal-administration by those in charge of management and cannot include nomination of students for admissions which would be unacceptable restrictions on the fundamental right of the educational institution. They referred to the observations in Para 55 of the judgment of the Supreme Court in T.M.A. Pai Foundation (supra), as reported in the SCC that the essence of a private unaided educational institution is the autonomy that the institution must have in its management and administration. They also referred to Para 65 of the judgment of Supreme Court in T.M.A. Pai Foundation (supra), in which the Supreme Court has further held that a private educational institution has a personality of its own, and in order to maintain its atmosphere and tradition, it is but necessary that it must have the right to choose and select students who can be admitted to its courses of studies. They referred to the observations of the Court in T.M.A. Pai Foundation (supra), that any scheme, rule or regulation that does not give the institution the right to reject the students who might otherwise be qualified according to their performance in the entrance test, would be an unreasonable restriction on the right under Article 19(1)(g) of the Constitution. They submitted that the Supreme Court has also held in T.M.A. Pai Foundation (supra), that unaided educational institutions administered by linguistic or religious minorities must have assured maximum autonomy in relation to admission of students and conditions of recognition cannot be such as to whittle down the right of minority institutions under Article 30 of the Constitution.

10. Mr. Verma and Mr. Tankhasubmitted that in P.A. Inamdar (supra), the Supreme Court referring to the law laid down in T.M.A. Pai Foundation (supra), reiterated that the right to establish an educational institution being an occupation is protected by Article 19(1)(g) of the Constitution and such right is available to all citizens, minority or non-minority. They submitted that in PA. Inamdar (supra), however the Supreme Court also held that the right to impart education under Article 19(1)(g) is subject to control by Clause (6) of Article 19 of the Constitution but made it clear that the State has no power to insist on seat sharing in unaided private professional educational institutions by fixing a quota of seats between the management and the State and that State cannot insist on private educational institutions which receive no aid from the State to implement the State's policy on reservation for granting admission on lesser percentage of marks or any criteria except merit. They submitted that in PA. Inamdar (supra), the Supreme Court referring to T.M.A. Pai Foundation (supra), reiterated that professional institutions should be given greater autonomy in determination of admission procedure and State Regulation should be minimal and only with a view to maintain fairness and transparency in admission procedure. They referred to Paras 137 and 138 of the judgment in P.A. Inamdar (supra), as reported in the SCC in which it is observed that unaided educational institutions may have their own procedure fulfilling the test of being fair, transparent and non-exploitative and that the admission procedure so adopted by the private educational institutions can be taken over by the State substituting its own procedure if it fails to satisfy by the triple tests of being fair, transparent and non-exploitative.

11. Mr. Verma and Mr. Tankha submitted that in Section 6 of the Act, 2007, it is provided that admission to sanctioned intake in private unaided professional educational institution shall be on the basis of common entrance test in such manner as may be prescribed by the State Government and in Section 3(d) 'common entrance test' has been defined to mean an entrance test, conducted for determination of merit of candidates followed by centralised counselling based on merit to professional colleges or institutions through a single window procedure by the 'State Government or by any agency authorised by it'. They submitted that Section 6 read with Section 3 (d) of the Act, 2007, therefore, empowers the State Government or any agency authorised by the State Government to conduct the common entrance test and directly encroach upon the fundamental right of private unaided educational institutions under Article 19(1)(g) of the Constitution as well as the fundamental right of the minority unaided educational institutions under Article 30 of the Constitution in selecting and admitting students of their choice, as explained in T.M.A. Pai Foundation and PA. Inamdar (supra). They submitted that Para 137 of the judgment of Supreme Court in PA. Inamdar (supra) as reported in the SCC is clear that only if the admission procedure adopted by the private institution or a group of institutions fails to satisfy all or any of the triple tests of being fair, transparent and non-exploitative that the State can take over the admission procedure by substituting its own procedure, but by the impugned provisions in Sections 6 and 3 (d) of the Act, 2007, the State has taken over the admission procedure from the private unaided educational institutions even when the procedure has been fair, transparent and non-exploitative.

12. Mr. Verma and Mr. Tankha submitted that from the return filed by the respondents it appears that the Admission and Fee Regulatory Committee made recommendation on 6-3-2009 that the Association should not be allowed to hold the common entrance test but the decision authorising VYAPAM to conduct the common entrance test for postgraduate medical courses was taken by the State Government on 28-2-2009 much prior to the recommendation of the Admission and Fee Regulatory Committee and this would go to show that when the decision was taken by the State Government on 28-2-2009, there were actually no materials before the State Government to take a view that the entrance test conducted by the Association was not fair or not transparent or was exploitative. They further submitted that in any case the report of the Admission and Fee Regulatory Committee and the materials furnished along with report would show that there was no complaint with regard to the common entrance tests conducted by the Association or with regard to counselling and that the complaints were confined to admissions not given to candidates after the common entrance test and counselling. They submitting that such complaints can be dealt with by the Admission and Fee Regulatory Committee which has vast powers under Section 4 of the Act, 2007.

13. Mr. Verma and Mr. Tankha submitted that a reading of Sub-section (9) of Section 4 of the Act, 2007 would make it clear that the Admission and Fee Regulatory Committee may hear complaint with regard to admission in contravention of the provisions of the Act and if the Committee after enquiry finds that there has been any violation of the provisions for admission on the part of any private unaided professional institution, it can make recommendations to the Government for imposing a fine of rupees ten lakhs and the Government may on receipt of such recommendation fix the fine and collect the same in the case of each such violation or decide any other course of action as it deems fit and the amount so fixed together with interest thereon shall be recovered as if it is an arrear of land revenue. They submitted that under Sub-section (9) of Section 4 of the Act, the Admission and Fee Regulatory Committee may also declare admission made in respect of any or all seats in a particular college or institution to be de hors merit and invalid and communicate the same to the University and on such communication the University shall debar the candidates from examination and cancel the results of the examination already taken by the candidate. They also referred to Sub-section (10) of Section 4 quoted above to show that the Admission and Fee Regulatory Committee also has power to recommend to the University after approval of the State Government for withdrawal of the affiliation of any unaided professional college or institution if it has violated the provisions of the Act. They submitted that considering these vast powers available with the Admission and Fee Regulatory Committee to deal with a case of admission not based on merit, it was not necessary for the State to take over the procedure of admission in seats in private professional colleges or institutions and to authorise an agency to conduct the common entrance tests.

14. Mr. Verma and Mr. Tankha submitted that in any case before taking over the procedure for admission and authorising VYAPAM to conduct the common entrance test by orders dated 28-2-2009 and 5-3-2009, principles of natural justice ought to have been followed and the materials before the State Government on the basis of which the orders were passed should have been furnished to the Association and an opportunity should have been given to the Association to show cause against the proposed take over of the admission procedure by the State Government or authorisation of VYAPAM as an agency to conduct the common entrance tests. Mr. Tankha cited the decision in Mardia Chemicals Ltd. and Ors. v. Union of India and Ors. : (2004) 4 SCC 311, in which the Supreme Court has held that all those who defaulted according to the Banks and Financial Institutions must not be condemned unheard. He also cited the decision of the Supreme Court in Rajesh Kumar and Ors. v. Dy. CIT and Ors. : (2007) 2 SCC 181, for the proposition that principles of natural justice have to be followed where civil consequences ensue. He submitted that if one medical or dental college resorts to unfair practice, the management of such college can be dealt with by the Admission and Fee Regulatory Committee under Sub-sections (9) and (10) of Section 4 of the Act, 2007, but because of lapse of one such Dental or Medical College, the other Dental and Medical Colleges should not be made to suffer and their fundamental rights under Article 19(1)(g) and Article 30 of the Constitution should not be infringed.

15. Mr. Verma cited the decision in State of Kerala, etc. v. Very Rev. Mother Provincial, etc. 0065/1970 : (1970) 2 SCC 417, in which the Supreme Court relying on its earlier decisions has held that the right of minority educational institution under Article 30(1) of the Constitution may be subject to only regulations relating to standards of education which are not part of the management as such and the other aspects of management must be left out to the minority institutions. He also cited the decision in Bihar State Madarasa Education Board, Patna v. Madarasa Hanfia Arabic College, Jamalia and Ors. : (1990) 1 SCC 428, in which the Supreme Court has held that the State has no power to completely take over the management of a minority institution and under the guise of regulating the educational standards to secure efficiency in the institution, the State is not entitled to frame rules or regulations compelling the management to surrender its right of administration.

Contentions of the respondents

16. Mr. R.N. Singh, learned Advocate General appearing for the State of Madhya Pradesh, submitted that in Unni Krishnan, T.M.A. Pal Foundation and PA. Inamdar (supra), there was no challenge to any Act similar to the Act, 2007. He submitted that in Para 134 of the judgment in PA. Inamdar (supra), the Supreme Court has observed that excellence in education and maintenance of high standards at this level are a must in professional colleges and to fulfill these objectives, the State can and rather must, in national interest, step in. He submitted that in Paras 135, 136 and 137 of the judgment in PA. Inamdar (supra), the Supreme Court has further observed that transparency and merit shall have to be assured and that the fundamental right to choose the students to be allowed admission is subject to it being fair, transparent and non-exploitative in minority unaided institutions and the State can also provide a procedure for holding a common entrance test in the interest of securing fair and merit-based admissions and preventing mal-administration. He submitted that the Supreme Court has also suggested in Para 155 of the judgment in PA. Inamdar (supra), that it is for the Central Government or for the State Government, in the absence of Central Legislation, to come out with a detailed well thought out legislation on the subject and such a legislation is long awaited and the States must act towards this direction. Mr. Singh submitted that to achieve the objectives of fairness, transparency, merit based and non-exploitative admissions in professional colleges, the Act, 2007 has been enacted in accordance with the suggestion of the Supreme Court in PA. Inamdar (supra). He referred to the long title of the Act, 2007 as well as the Statement of objects and reasons appended to the Bill which became the Act, 2007 to show that the Act, 2007 was enacted for making special provisions for advancement of socially and educationally backward classes and for Scheduled Castes and Scheduled Tribes in relation to admission in the light of Article 15(5) of the Constitution of India, inserted by the Constitution (Ninety-third Amendment) Act, 2005 and to provide for regulation of admission and determination of fees in private unaided professional institutions in the State of M.P. He submitted that Section 6 read with Section 3 (d) of the Act of 2007, which provides that the common entrance test will be conducted by the State Government or by any agency authorised by it and admissions will be based on such common entrance test are regulatory measures made by the State Legislature in exercise of its powers under Article 246 read with Entry 25, List III to the Seventh Schedule of the Constitution and are meant to ensure that professional educational institutions maintain proper standards in professional educational institutions and there is fairness, transparency and no exploitation in the admission procedure.

17. Mr. Singh cited Peerless General Finance v. Reserve Bank of India : (1992) 2 SCC 343, in which the Supreme Court has held that Clause (6) of Article 19 of the Constitution empowers the State to make any law imposing in the interest of the general public reasonable restrictions on the exercise of the right under Article 19(1)(g) of the Constitution and when the law has imposed restrictions on the fundamental rights, what the Court has to examine is the substance of the legislation without being guided by the mere appearance of the legislation. Mr. Singh pointed out that in the aforesaid decision, the Supreme Court has further held that the Court cannot question the wisdom, the need or the desirability of the regulation and the State can regulate the exercise of fundamental rights to save the public from a substantive evil and the existence of the evil as well as the means adopted to check it are the matters for the Legislative judgment. He submitted that in Mylapore Club v. State of Tamil Nadu and Anr. : (2005) 12 SCC 752, the Supreme Court has further observed that the power to legislate is a plenary power vested in the Legislature and unless those who challenge the legislation clearly establish that their fundamental rights under the Constitution are affected or that the Legislature lacks the Legislative competence they would not succeed in the challenge to the enactment brought forward in the wisdom of the Legislature.

18. Mr. Singh also cited Charan Lal Sahu v. Union of India : (1990) 1 SCC 613, in which Chief Justice Sabyasachi Mukharji observed that the State has the power and jurisdiction and for this purpose unless the impugned Act is otherwise unreasonable and violative of constitutional provisions, no question of giving a hearing to the parties for taking over the rights of the parties arises and for legislation of Parliament, no principles of natural justice are attracted provided such legislation is within the competence of the Legislature. He cited the decision in Krishnan Kakkanth v. Government of Kerala : AIR 1997 SC 128, wherein the Supreme Court has held that reasonableness of restriction under Article 19(6) of the Constitution is to be determined in an objective manner and from the standpoint of the interests of general public and not from the standpoint of the interests of the persons upon whom the restrictions are imposed and a restriction cannot be said to be unreasonable merely because in a given case, it operates harshly. He pointed out that in the aforesaid decision, the Supreme Court has further held that in determining the infringement of the right guaranteed under Article 19(1), the nature of the right alleged to have been infringed, the underlying purpose of the restriction imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, all enter into judicial verdict.

19. Mr. Singh cited the observations of Jeevan Reddy, J. in State of A.P. and Ors. v. Mcdowell & Company and Ors. : (1996) 3 SCC 709, that if an enactment is challenged as violative of any of the fundamental rights guaranteed by Clauses (a) to (g) of Article 19(1) of the Constitution, it can be struck down only if it is found not saved by any of the Clauses (2) to (6) of the Article 19 of the Constitution and no enactment can be struck down just by saying that it is arbitrary or unreasonable or because the Court thinks that the enactment is unjustified because the Parliament and the Legislatures, composed as they are of the representatives of the people, are supposed to know and be aware of the needs of the people and what is good and bad for them and the Court cannot sit in judgment over their wisdom. He also relied on a recent decision of Supreme Court in Karnataka Bank Limited v. State of Andhra Pradesh and Ors. : (2008) 2 SCC 254, for the proposition that where the validity of a statute is in question and there are to interpretations, one which would make the law valid and the other void, the former must be preferred and the validity of law will be upheld and in pronouncing the constitutional validity of a statute, the Court is not concerned with the wisdom or unwisdom, justice or injustice of law and if that which is passed into law is within the scope of power conferred on a Legislature and violates no restrictions on that power, the law must be upheld whatever a Court may think of it.

20. Mr. Singh finally submitted that the agency authorised by the State Government by orders dated 28-2-2009 and 5-3-2009 to conduct the Common Entrance Tests for admissions to the Private Dental and Medical Colleges in the State of M.P., VYAPAM has been conducting common entrance tests for admissions to different professional courses in the State for 20 years without any complaints and has advertised the programme of the common entrance tests and counselling for admissions to the postgraduate medical and dental courses in the different medical and dental colleges in the State in both local newspapers and national newspapers, such as Dainik Bhaskar, Dainik Jagaran, Nai Duniya, Pioneer, Hindustan Times, Indian Express, The Hindu and Rojgar Aur Nirman and a large number of centres have been opened up in different places in the State and outside the State to receive the applications from candidates and in response to the advertisement, more than 2000 candidates have applied whereas in response to the advertisement issued by the Association on behalf of the Private Dental and Medical Colleges in the State of M.P., only about 200 applications have been received. He argued that this shows that when an agency of the State Government, such as VYAPAM, is entrusted the work of conducting a common entrance test, candidates from all sections of the society are likely to get an opportunity to participate in the common entrance test for admissions in the Private Dental and Medical Colleges in the State of M.P. and therefore Section 6 read with Section 3 (d) of the Act, 2007 and the orders dated 28-2-2009 and 5-3-2009 of the State Government authorising VYAPAM to conduct the common entrance tests should not be struck down by the Courts as ultra vires.

21. Mr. Sunil Gupta, learned Counsel appearing for the respondents in some of the writ petitions, submitted that after the decisions of the Supreme Court in T.M.A. Pai Foundation and PA. Inamdar (supra), Article 15(5) was inserted in the Constitution by the Constitution Ninety Third Amendment Act, 2005, and it was provided therein that nothing in Article 15 or in Article 19(1)(g) of the Constitution will prevent the State from making any special provision by law for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provision relates to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in Clause (1) of Article 30 of the Constitution. He submitted that by the Constitution Ninety Third Amendment Act, 2005, therefore, the decisions of the Supreme Court in T.M.A. Pai Foundation and PA. Inamdar (supra), that all citizens have a fundamental right to establish educational institutions under Article 19(1)(g) of the Constitution have been overcome by inserting Clause (5) in Article 15 of the Constitution and special provisions made in any law for the advancement of a socially and educationally backward classes or for the Scheduled Castes or the Scheduled Tribes for admission to educational institutions, including private educational institutions, whether aided or unaided are saved from challenges under Articles 15 and 19(1)(g) of the Constitution. In support of this contention, he relied on the judgment of Balakrishnan, CJ., in Ashok Kumar Thakur v. Union of India : (2008) 6 SCC 1. He submitted that Clause (5) of Article 15 of the Constitution enables the State to make any special provision by law for the advancement of any educationally and socially backward classes of citizens, or for the Scheduled Castes or the Scheduled Tribes, and reservation is only one of the tools of advancement of socially and educationally backward classes, Scheduled Castes and Scheduled Tribes, as has been held in the judgment of the Balakrishnan, CJ. and Dr. Arijit Pasayat, J., in Ashok Kumar Thakur (supra). He submitted that the directive principle in Article 46 of the Constitution also provides that the State shall promote with special care the educational and economic interests of the weaker sections of the people and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation. He submitted that to achieve the objects mentioned in Article 15(5), Article 38(2), Article 41 and Article 46 of the Constitution, the State Legislature has made the Act, 2007 as would be clear from the Long Title of the Act as well as the Statement of Objects and Reasons appended to the Bill which became the Act, 2007 and all the provisions of the Act including the provision relating to admission, fixation of fees and reservation are to be tested in the light of the provisions of Article 15(5) and Article 46 of the Constitution. He argued that to discharge these constitutional obligations imposed on the State under Article 15(5) and Article 46 of the Constitution, the State must take over the admission process and conduct the entrance examination and counselling and must ensure that only such agency is authorised by the State, which will advance the educational interests of the weaker sections of the people and the Scheduled Castes and Scheduled Tribes and will conduct the common entrance test and the counselling in a fair, transparent and non-exploitative manner. Mr. Gupta submitted that the objects of Articles 15(5) and 46 can be ensured by the State by reduction in application fee or even total waiver thereof, a single window common entrance test procedure for both the State aided institutions and private professional educational institutions, opening more centres throughout the State particularly in rural, remote and backward areas, providing transport, boarding and lodging facilities, relaxing marks for eligibility and relaxing cut off marks for selection.

22. Mr. Gupta next submitted that Clause (6) of Article 19 of the Constitution provides that nothing in Article 19(1)(g) of the Constitution shall prevent the State from making any law imposing in the interests of general public reasonable restrictions on the exercise of the right conferred by Article 19(1)(g) and in particular, prevent the State from making any law relating to carrying on by the State or by a corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise. He submitted that it is now settled by a series of decisions of the Supreme Court in Ram Chandra v. State of Orissa : AIR 1956 SC 298, J.Y. Kondala v. A.P.S.R.T. Corporation : AIR 1961 SC 82, Akadasi v. State of Orissa : AIR 1963 SC 1047 and Virajlal Manilal v. State of M.P. : (1969) 2 SCC 248, that any law which relates to the carrying on by the State, of any trade, business, industry or service, need not satisfy the test of reasonableness of restrictions. He argued that the private professional educational institutions hold common entrance test on payment of consideration or application fee by candidates and invariably the application fee charged by private educational institutions is quite substantial and therefore, the holding of the common entrance test by the Private Professional Educational Institute is a business or service and by the provisions of Section 6 read with Section 3 (d) of the Act, 2007, this business or device of holding common entrance test has been taken over by the State and the provisions of Section 6 read with Section 3 (d) of the Act, 2007 need not satisfy the test of reasonableness of restrictions and are clearly saved by the second limb of Clause (6) of Article 19 of the Constitution on the ground that these provisions are violative of fundamental right guaranteed under Article 19(1)(g) of the Constitution of India.

23. Mr. Gupta submitted that in the event the Court holds that the provisions of Section 6 read with Section 3 (d) of the Act, 2007 are not saved by the second limb of Clause (6) of Article 19 of the Constitution, Section 6 read with Section 3 (d) of the Act, 2007 are reasonable restrictions in the interest of general public. He submitted relying on Virendra v. State of Punjab : AIR 1957 SC 896, that the expression 'in the interest of general public' in Article 19(6) of the Constitution makes the ambit of the protection of a reasonable restriction under Article 19(6) very wide. He cited Laxmi Khandsari v. State of U.P. : (1981) 2 SCC 600, in which the Supreme Court has laid down how the expression 'reasonable restrictions' in Clauses (2) to (6) of Article 19 of the Constitution is to be construed and has held that as to what are 'reasonable restrictions' would naturally depend on the nature and circumstances of the case, the character of the statute, the object which it seeks to serve, the existing circumstances, the extent of the evil sought to be remedied as also the nature of the restraint or restriction placed on the right of the citizen and it was difficult to lay down any hard and fast rule of universal application. He also relied on Sreenivasa G. Traders v. State of A.P. (1984) 4 SCC 353, for the proposition that the fundamental right of citizens to practice any profession or to carry on any occupation or trade or business guaranteed under Article 19(1)(g) has its own limitations and there is no protection of this right unless there is a measure of control and regulation of the right of each individual in the interests of all and in order to determine the reasonableness of a restriction imposed upon the right guaranteed by Article 19(1)(g), the Court must have regard to the nature and the conditions prevailing in the trade in respect of which reasonable restrictions are sought to be imposed by the impugned law. He pointed out that in Krishnan Kakkanth v. Government of Kerala and Ors. : (1997) 9 SCC 495, the Supreme Court has further held that reasonableness of restriction is to be determined in an objective manner and from the standpoint of interest of general public and not from the stand point of interest of person upon whom the restrictions are imposed.

24. Mr. Gupta argued that a law which implements a directive principle of State policy must be held to be imposing a reasonable restriction on the fundamental rights under Article 19(1) of the Constitution and in support of this argument, cited Kesavanand Bharti v. State : (1973) 4 SCC 225, Workmen, Minakshi Mills Limited and Anr. v. Minakshi Mills Limited and Anr. (1992) 3 SCC 339 and State of Gujarat v. Mirzapur Moti Qureshi Kassab Jamat and Ors. : (2005) 8 SCC 534. He submitted that in T.M.A. Pai Foundation and PA. Inamdar (supra), the Supreme Court has held that an educational institution had the fundamental right to carry on its occupation guaranteed by Article 19(1)(g) of the Constitution and that this fundamental right included the right to admit students of its choice subject to selection of students for admission by a rational method such as the common entrance test. He submitted relying on Dr. Preeti Shrivastava v. State of M.P. : (1999) 7 SCC 120, that a common entrance test only provides uniform criteria for judging merit of candidates, who come from different universities with different standards of teaching and evaluation, by a common yardstick. He submitted that this being the underlying purpose of common entrance test, Section 6 read with Section 3 (d) of the Act, 2007, which provides for a common entrance test to be conducted by the State or by an agency authorised by the State is a reasonable restriction in the interest of general public as the objection of Section 6 read with Section 3 (d) of the Act, 2007 is to ensure that admissions to private unaided institutions are merit based, fair, transparent and non-exploitative. He further submitted that Section 6 read with Section 3 (d) of the Act, 2007 providing for common entrance test by the State or an agency authorised by it, also implements the directive principle in Article 38 of the Constitution which provides that the State shall promote the welfare of the people by securing and protecting as effectively as it may, a social order in which justice social, economic and political, shall inform all the institutions of the national life. He argued that Section 6 read with Section 3 (d) of the Act, 2007 also implements Article 41 of the Constitution which provides that the State shall, within the limits of its economic capacity and development, make effective provision for securing the right to education. He submitted that Section 6 read with Section 3 (d) of the Act, 2007, therefore, satisfies the tests laid down by the Supreme Court in the decisions relating to reasonable restrictions in the interest of general public.

25. Finally, Mr. Gupta argued that the judgments of the Supreme Court in T.M.A. Pai Foundation and PA. Inamdar (supra), are to be read not as statutes which should cover all future contingencies but as law which temporarily occupy the filed until the State makes a legislation. He submitted that when the judgments in T.M.A. Pai Foundation and PA. Inamdar (supra), were delivered by the Supreme Court, there was no law regulating professional education and the Act, 2007, which has been made by the State Legislature in exercise of its plenary powers under Article 246 read with Entry 25 of List III to the Seventh Schedule of the Constitution cannot be struck down on the ground that it violates any prior decision of the Court. He submitted that in any case, on a correct and complete reading of decisions of the Supreme Court in T.M.A. Pai Foundation and PA. Inamdar (supra), the Act, 2007 is in consonance with the judgments in T.M.A. Pai Foundation and PA. Inamdar (supra), and is merely regulatory in nature and does not affect the fundamental right of the citizens to carry on the occupation of imparting professional education inasmuch as it does not interfere with the autonomy of the professional educational institutions and their income through collection of fees as determined by the Admission and Fees Committee.

Rejoinder on behalf of the petitioners

26. In rejoinder, Mr. Verma and Mr. Tankha submitted that Article 15(5) of the Constitution inserted by the Ninety Third Constitution Amendment is only an enabling provision providing that the State may make a law for advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and for the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions covered under Article 30(1) of the Constitution and such special provisions would be saved from the challenge of violation of the right of private educational institutions under Article 19(1)(g) of the Constitution. They submitted that the highest form of special provision for advancement of socially and educationally backward classes of citizens or for the Scheduled Castes or for the Scheduled Tribes is reservation of seats for admissions in educational institutions including private educational institutions and this is what is sought to be done in Section 8 of the Act, 2007. They submitted that Article 15(5) of the Constitution, therefore, will only save Section 8 of the Act, 2007 from the challenge of violation of the fundamental right of educational institutions under Article 19(1)(g) of the Constitution but will not save other provisions of the Act, 2007, which encroach upon the fundamental right of such educational institutions under Article 19(1)(g) of the Constitution. They submitted that the contention of Mr. Gupta that by insertion of Article 15(5) of the Constitution by the Ninety Third Constitution Amendment, the judgments of the Supreme Court in T.M.A. Pai Foundation and PA. Inamdar (supra), on the fundamental right of private educational institutions under Article 19(1)(g) of the Constitution have been overcome, is thus misconceived. They submitted referring to the various paragraphs of the judgment of Balakrishnan, C.J., in Ashok Kumar Thakur v. Union of India (supra), that Balakrishnan, C.J. has not held that the decisions of the Supreme Court in T.M.A. Pai Foundation and P.A. Inamdar (supra), that all citizens have a fundamental right to establish educational institution under Article 19(1)(g) of the Constitution have been overcome. They submitted that Article 19(1)(g) of the Constitution is a very important fundamental right of the citizens and cannot be held to be totally annihilated by the insertion of Article 15(5) in the Constitution by the Ninety Third Constitution Amendment. They submitted that the contention of Mr. Gupta that the service being carried on by professional educational institutions to hold the common entrance test has been taken over by the State under the second limb of Article 19(6) of the Constitution is wholly misconceived. They submitted that regulations made by the Government must be in accordance with the observations of the Supreme Court in T.M.A. Pai Foundation and PA. Inamdar (supra), because this is what has been directed by the Supreme Court in Para 155 of the judgment in PA. Inamdar (supra). They further submitted that neither the Long Title of the Act, 2007 nor the Statement of Objects and Reasons appended to the Bill which became the Act, 2007 anywhere state that the Act, 2007 has been made to implement any of the directive principles of State policy and, therefore, the contention of Mr. Gupta that the Act, 2007 has been made to implement the directive principles of the State Policy is misconceived. They submitted that in State of Gujarat v. Mirzapur Moti Qureshi Kassab Jamat and Ors. (supra), cited by Mr. Gupta, the Supreme Court has also held that a restriction placed on any fundamental right aimed at securing directive principles will be held as reasonable and intra vires subject to two limitations: first that it does not run in clear conflict with fundamental rights and second that it has been enacted within the Legislative competence of the enacting Legislature under Part XI, Chapter 1 of the Constitution. They argued that even if the Act, 2007 is held to be implementing any directive principle of the State Policy as contended by Mr. Gupta, the provisions of the Act, 2007 cannot violate the fundamental right under Article 19(1)(g) of the Constitution and the provisions of the Act, 2007 will therefore, have to be in consonance with the judgments of the Supreme Court in T.M.A. Pai Foundation and PA. Inamdar (supra).

Conclusions with reasons

27. We are of the considered opinion that Section 6 read with Section 3 (d) of the Act, 2007, which provide that admissions to sanctioned intake shall be on the basis of common entrance test followed by centralised counselling by the State Government or by any agency authorised by the State Government are in consonance with the judgments of the Supreme Court in T.M.A. Pai Foundation v. Stale of Karnataka (2002) 8 SCC 364 and PA. Inamdar and Ors. v. State of Maharashtra and Ors. (2005) 6 SCC 535. Section 2 of the Act, 2007 makes it clear that it only applies to private unaided educational institutions which impart professional education. Hence, we will have to examine the judgments in T.M.A. Pai Foundation and PA. Inamdar (supra), to find out whether these judgments permit admission to professional educational institutions on the basis of merit as determined in a common entrance test followed by centralised counselling by the State Government or its agencies.

28. In T.M.A. Pai Foundation (supra), the Supreme Court has dealt with admission to professional institutions in Paragraphs 58 and 59 at Pages 545 and 546 of the SCC, which are quoted herein below:

58. For admission into any professional institution, merit must play an important role. While it may not be normally possible to judge the merit of the applicant who seeks admission into a school, while seeking admission to a professional institution and to become a competent professional, it is necessary that meritorious candidates are not unfairly treated or put at a disadvantage by preferences shown to less meritorious but more influential applicants. Excellence in professional education would require that greater emphasis be laid on the merit of a student seeking admission. Appropriate regulations for this purpose may be made keeping in view the other observations made in this judgment in the context of admissions to unaided institutions.

59. Merit is usually determined, for admission to professional and higher education colleges, by either the marks that the student obtains at the qualifying examination or school leaving certificate stage followed by the interview, or by a common entrance test conducted by the institutions, or in the case of professional colleges, by Government agencies.

It is thus clear from Para 58 of the judgment that in TMA Pai Foundation (supra), quoted above that the Supreme Court has held that the applicant who seeks admission to a professional educational institution in order to become a competent professional must be a meritorious candidate and he cannot be put at a disadvantage by preferences shown to less meritorious but more influential applicants and, therefore, excellence in professional education would require that greater emphasis be laid on the merit of the students seeking admission. It will be further clear from Para 59 of the judgment in TMA Pai Foundation (supra), quoted above, that merit is usually determined for admission to a professional educational institution either by the marks that the students obtain at qualifying examination or at a common entrance test conducted by the institution or 'in the case of professional colleges, by Government agencies'. In TMA Pai Foundation (supra), therefore, the Supreme Court was of the view that merit for admission to a professional institution could be determined by common entrance test conducted by the Government agencies.

29. In T.M.A. Pai Foundation (supra), the Supreme Court has dealt with the regulations that can be framed for unaided private professional educational institutions and in Paragraphs 67 and 68, has held:

67. We now come to the regulations that can be framed relating to private unaided professional institutions.

68. It would be unfair to apply the same rules and regulations regulating admission to both aided and unaided professional institutions. It must be borne in mind that unaided professional institutions are entitled to autonomy in their administration while, at the same time, they do not forego or discard the principle of merit. It would, therefore, be permissible for the university or the Government, at the time of granting recognition, to require a private unaided institution to provide for merit based selection while, at the same time, giving the management sufficient discretion in admitting students. This can be done through various methods. For instance, a certain percentage of the seats can be reserved for admission by the management out of those students who have passed the common entrance test held by itself or by the State/University and have applied to the college concerned for admission, while the rest of the seats may be filled up on the basis of counselling by the State agency. This will incidentally take care of poorer and backward sections of the society. The prescription of percentage for this purpose has to be done by the Government according to the local needs and different percentages can be fixed for minority unaided and non-minority unaided and professional colleges....

It will be clear from the aforesaid portion of the judgment in TMA Pai Foundation (supra), that unaided professional educational institutions are entitled to autonomy in admissions but they cannot forego or discard the principle of merit and it would therefore be permissible for the Government to require the private unaided educational institutions to provide for a merit based admission while at the same time giving the management sufficient discretion in admissions. In the aforesaid portion of the judgment in TMA Pai Foundation (supra), the Supreme Court has further held that this can be ensured through various methods and one method is by providing that certain percentage of seats can be reserved for admission by the management out of those students who have passed the common entrance test held by itself or by the State and have applied to the college concerned for admission, while the rest of the seats may be filled up on the basis of counselling by the State agency. Here also, the judgment of the Supreme Court in TMA Pai Foundation (supra), is clear that in the seats reserved for admissions by the management, only those students who have passed the common entrance test held by the management or by the State can be admitted.

30. Mr. Verma and Mr. Tankha, however, submitted that these observations in Paragraphs 59 and 68 of the judgment of the Supreme Court in TMA. Pai Foundation (supra), that the merit is to be determined for admission to professional educational institutions by common entrance test to be conducted by Government agencies were explained by the Supreme Court in PA. Inamdar (supra), in Paragraphs 125 and 126 of the judgment at Page 601 of the SCC and it was held therein that in judgment of T.M.A. Pai Foundation (supra), there was nothing which allows the State to control admissions in private unaided professional educational institutions so as to compel them to give up a share of the available seats to the candidates chosen by the State as if it was filling the seats available to be filled up at its discretion in such private institutions and this would amount to nationalisation of seats which has been specifically disapproved in T.M.A. Pai Foundation (supra). They submitted that in P.A. Inamdar (supra), the Supreme Court has further held that imposition of quota of State seats or enforcing reservation policy of the State on available seats are acts constituting a serious encroachment on the right of autonomy of private unaided professional educational institutions and such appropriation of seats cannot be held to be regulatory measure in the interest of the minority within the meaning of Article 30(1) or reasonable restriction within the meaning of Article 19(6) of the Constitution. They submitted that the Supreme Court further held in PA. Inamdar (supra), that merely because the resources of the State in providing professional education are limited, the private unaided professional educational institutions, which intend to provide better education, cannot be forced by the State to make admissions on the basis of reservation policy to less meritorious candidates and unaided institutions, as they are not deriving any funds from State, can have their own admission in a fair, transparent, non-exploitative manner based on merit. They also referred to the portions of judgment of the Supreme Court in PA. Inamdar (supra), in which the observations in Paragraph 68 of the judgment in T.M.A. Pai Foundation (supra), were interpreted to merely permit unaided private professional educational institutions to maintain merit as the criteria of admission by voluntarily agreeing for seat sharing with the State or adopting selection based on common entrance test by the State. They submitted that from the judgment of the Supreme Court in T.M.A. Pai Foundation (supra), as explained in PA. Inamdar (supra), it would thus be clear that the common entrance test was to be held by the private unaided professional educational institutions and not by the State or its agency.

31. We are unable to accept the aforesaid submission of Mr. Verma and Mr. Tankha. In PA. Inamdar (supra), the Supreme Court dealt with the admission procedure of unaided professional educational institutions, both minority and non-minority, in Paragraphs 133 to 138 at Pages 603,604 and 605 of the SCC. In Paragraph 134 in P.A. Inamdar (supra), the Supreme Court has held that for professional educational institutions, excellence in admission and maintenance of high standard are a must and to fulfil these objectives, the State can and rather must in the national interest step in because the education, knowledge and learning possessed by individuals collectively constitute national wealth and in Paragraph 135 of the judgment in PA. Inamdar (supra), the Supreme Court has further held that in minority professional educational institutions also, aided or unaided, admission should be at the State Level and transparency and merit have to be assured in admissions. In Paragraphs 136 and 137 in PA. Inamdar (supra), the Supreme Court has observed that admissions in professional educational institutions can be made on the basis of a common entrance test either conducted by the institutions joined together or by the State itself or an agency for holding such test. Paragraphs 136 and 137 of the judgment of the Supreme Court in PA. Inamdar (supra), are quoted hereinbelow:

136. Whether minority or non-minority institutions, there may be more than one similarly situated institutions imparting education in any one discipline, in any State. The same aspirant seeking admission to take education in any one discipline of education shall have to purchase admission forms from several institutions and appear at several admission tests conducted at different places on the same or different dates and there may be a clash of dates. If the same candidate is required to appear in several tests, he would be subjected to unnecessary and avoidable expenditure and inconvenience. There is nothing wrong in an entrance test being held for one group of institutions imparting same or similar education. Such institutions situated in one State or in more than one State may join together and hold a common entrance test or the State may itself or through an agency arrange for holding of such test. Out of such common merit list the successful candidates can be identified and chosen for being allotted to different institutions depending on the courses of study offered, the number of seats, the kind of minority to which the institution belongs and other relevant factors. Such an agency conducting the common entrance test ('CET' for short) must be one enjoying utmost credibility and expertise in the matter. This would better ensure the fulfilment of twin objects of transparency and merit. CET is necessary in the interest of achieving the said objectives and also for saving the student community from harassment and exploitation. Holding of such common entrance test followed by centralised counselling or, in other words, single-window system regulating admissions does not cause any dent in the right of minority unaided educational institutions to admit students of their choice. Such choice can be exercised from out of the list of successful candidates prepared at CET without altering the order of merit inter se of the students so chosen.

137. Pai Foundation has held that minority unaided institutions can legitimately claim unfettered fundamental right to choose the students to be allowed admission and the procedure therefore subject to its being fair, transparent and non-exploitative. The same principle applies to non-minority unaided institutions. There may be a single institution imparting a particular type of education which is not being imparted by any other institution and having its own admission procedure fulfilling the test of being fair, transparent and non-exploitative. All institutions imparting same or similar professional education can join together for holding a common entrance test satisfying the aforesaid triple tests. The State can also provide a procedure of holding a common entrance test in the interest of securing fair and merit-based admissions and preventing mal-administration. The admission procedure so adopted by a private institution or group of institutions, if it fails to satisfy all or any of the triple tests, indicated herein above, can be taken over by the State substituting its own procedure. The second question is answered accordingly.

It will be thus clear from the Paragraphs 136 and 137 of the judgment in PA. Inamdar (supra), quoted above, that admissions to private unaided professional educational institutions can be made on the basis of merit of candidates determined in the common entrance test followed by centralised counseling by the institutions imparting same or similar professional education together or by the State or by an agency which must enjoy utmost credibility and expertise and that the common entrance test followed by centralised counselling must satisfy the triple test of being fair, transparent and non-exploitative. Thus, the judgments of the Supreme Court in TMA Pai Foundation and PA. Inamdar (supra), permit holding of a common entrance test for determination of merit for admission to private unaided professional educational institutions by the State as well as any agency which enjoy utmost credibility and expertise in the matter and which should ensure transparency in merit.

32. Mr. Verma and Mr. Tankha, however, submitted that in Paragraph 136 of the judgment in PA. Inamdar (supra), the Supreme Court has also observed that the admission procedure adopted by private institutions if it fails to satisfy all or any of the triple tests, can be taken over by the State substituting its own procedure and not otherwise. Sufficient materials have been filed before us by the respondents to show that prior to the enactment of the Act, 2007, this Court as well as the Committee constituted as per the orders of the Supreme Court in Islamic Academy of Education (supra), had to enquire into complaints of malpractice in admissions in private professional educational institutions and after finding the complaints to be true, directed the institutions to give admission to the aggrieved students in the next academic session and this would show that the private professional educational institutions were not able to ensure a fair, transparent and non-exploitative admission procedure before Act, 2007 was enacted. In Paragraph 138 of the judgment in PA. Inamdar (supra), the Supreme Court has held that having regard to the larger interest and welfare of the students' community to promote merit, achieve excellence and curb malpractices, it would be permissible to regulate admissions by providing a centralised and single window procedure and such a procedure can secure grant of merit based admissions on a transparent basis. Sections 6 and 7 read with Section 3 (d) of the Act, 2007 are such regulatory measures legislated by the State Legislature of Madhya Pradesh having regard to the larger interest and welfare of the students' community to promote merit, achieve excellence, curb malpractices and to secure grant of merit based admissions in a transparent manner. The Legislature in its wisdom has taken the view, looking at the prevailing conditions relating to admissions in private professional educational institutions in the State of Madhya Pradesh that merit based admissions could be ensured through a common entrance test followed by centralised counselling either by the State or by an agency authorised by the State. Sections 3 (d), 6 and 7 of the Act, 2007 do not compel the private unaided professional educational institutions to give up a share of the seats available to candidates chosen by the State and do not amount to nationalisation of seats because for all the seats to which admissions take place on the basis of a common entrance test followed by centralised counselling by the State or an agency authorised by the State, the private unaided professional institutions are entitled to charge their own fees from the students as finalised by the Admission and Fees Regulatory Committee. The impugned provisions of the Act, 2007 do not impose a quota of State seats on available seats of unaided private professional educational institutions and, therefore, do not constitute serious encroachment on the right of autonomy of the unaided private professional educational institutions. All that Sections 3 (d), 6 and 7 of the Act, 2007 do is to ensure that admissions to private professional educational institutions are based on merit, determined in a common entrance test followed by centralised counselling by a single window procedure either by the State or by an agency authorised by the State. The underlying purpose of Sections 3 (d), 6 and 7 of the Act, 2007 is not to enable the State to fill up all the seats in the private unaided professional educational institutions but to achieve excellence and to promote merit and curb malpractices in admissions by providing that either the State or an agency authorised by the State, which has utmost credibility and expertise, conducts the common entrance test followed by centralised counselling and such regulatory measures have been held by the Supreme Court in PA. Inamdar (supra), to be reasonable restrictions in the interest of minority institutions permissible under Article 30(1) of the Constitution and in the interest of general public permissible under Article 19(6) of the Constitution. In Paragraph 144 of the judgment in P.A. Inamdar (supra), at Page 606 of the SCC, which is quoted herein below:

144. The two Committees for monitoring admission procedure and determining fee structure in the judgment of Islamic Academy are in our view, permissible as regulatory measures aided at protecting the interest of the student community as a whole as also the minorities themselves, in maintaining required standards of professional education or non-exploitative terms in their institutions. Legal provisions made by the State Legislatures or the scheme evolved by the Court for monitoring admission procedure and fee fixation do not violate the right of minorities under Article 30(1) or the right of minorities and non-minorities under Article 19(1)(g). They are reasonable restrictions in the interest of minority institutions permissible under Article 30(1) and in the interest of general public under Article 19(6) of the Constitution.

33. We are also unable to accept the contention of Mr. Verma and Mr. Tankha that the Admission and Fee Regulatory Committee has sufficient powers under Sub-sections (1), (9), (10) and (12) of Section 4 of the Act, 2007 to ensure fairness and transparency in the admission process and, therefore, it was not necessary to provide in Section 3 (d) of the Act, 2007 that the common entrance test should be conducted by the State or by an agency authorised by the State. As has been held by the Supreme Court in PA. Inamdar (supra), in Para 136 quoted above, the agency conducting the common entrance test must be one enjoying utmost credibility and expertise in the matter so as to ensure the fulfilment of the twin objects of transparency and merit and must save the student community from harassment and exploitation. Hence, the choice of the agency for conducting the common entrance test is very crucial for ensuring transparency and merit in the common entrance test as well as for ensuring that student community is not exploited and since it is the responsibility of the State to ensure a merit based, transparent, fair and non-exploitative common entrance test, the agency must be one which the State Government thinks, will fulfil these objectives. In Sub-section (1) of Section 4 of the Act, 2007, the Admission and Fee Regulatory Committee has only the power to supervise and guide the admission process but no power to choose the agency which will conduct the common entrance test. Under Sub-section (9) of Section 4 of the Act, 2007, the Committee has the power to hear complaints with regard to admission in contravention of the provisions contained in the Act, 2007. Under Sub-section (10) of Section 4 of the Act, 2007, the Committee has the power to recommend to the university or appropriate authority for withdrawal of the affiliation or recognition of such college which violates any provision of the Act, 2007. Under Sub-section (12) of Section 4 of the Act, 2007, the Committee is under an obligation to ensure that the admission in an institution is done in a fair and transparent manner. All these powers and duties of the Committee relate to stages after the common entrance test and the centralised counselling.

34. Sections 3 (d), 6 and 7 of the Act, 2007 by providing that the common entrance test for determining merit for admissions in the private unaided professional educational institutions by a common entrance test to be conducted by the State or by an agency authorised by the State do not interfere with the autonomy of private unaided professional educational institutions, as such private professional educational institutions are entitled to collect the fees from the students admitted to the institutions on the basis of merit, appoint their own staff (teaching and non-teaching), discipline and remove the staff, provide infrastructure and other facilities for students and do all such other things as are necessary to impart professional education to the students. Sections 3 (d), 6 and 7 of the Act, 2007, therefore, do not impinge on the fundamental right to carry on the occupation of establishing and administering professional educational institutions as an occupation. The only purpose of Sections 3 (d), 6 and 7 of the Act, 2007 is to ensure that students of excellence are selected on the basis of a common entrance test conducted by the State or an agency authorised by the State and that students without excellence and merit do not make entry into these professional educational institutions through malpractices and influence. As has been held both in the judgments in T.M.A. Pai Foundation and PA. .Inamdar (supra), the right of private unaided professional educational institutions to admit students of their choice is subject to selection of students on the basis of their merit through a transparent, fair and non-exploitative procedure. In our considered opinion therefore, Sections 3 (d), 6 and 7 of the Act, 2007 do not in any way violate the fundamental right of citizens guaranteed under Article 19(1)(g) of the Constitution. In view of this conclusion, it is not necessary for us to decide whether the provisions of Sections 3 (d), 6 and 7 of the Act, 2007 are saved by Article 15(5) of the Constitution or by the second limb of Article 19(6) of the Constitution relating to the power of the State to make a law for creation of monopoly in its favour in respect of any service.

35. We now come to the challenge to the orders dated 28-2-2009 and 5-3-2009 of the State Government authorising VYAPAM to conduct common entrance tests for admissions to the professional courses. The grounds urged by Mr. Verma and Mr. Tankha in support of the challenge are that when the decision was taken by the State Government on 28-2-2009 to authorise VYAPAM do conduct the common entrance test, there were actually no materials before the State Government to take a view that the entrance test conducted by the Association was not fair or was not transparent or was not non-exploitative. This argument is based on the observations in the last portion of Paragraph 137 of the judgment of the Supreme Court in PA. Inamdar (supra), that if the admission procedure adopted by private institutions fails to satisfy all or any of the triple tests of fairness, transparency and non- exploitative character, then the admission procedure can be taken over by the State. But we have already held that both in T.M.A. Pai Foundation and P.A. Inamdar (supra), the Supreme Court has observed that common entrance test may be conducted either by the private professional educational institutions or by the State or by an agency which enjoys utmost credibility and expertise in the matter. The State Legislature in its wisdom has provided in Sections 3 (d), 6 and 7 of the Act, 2007 that the common entrance test followed by centralised counselling must be conducted by the State or an agency authorised by the State Government, presumably because the Legislature had thought that the responsibility of conducting the common entrance test should be entrusted to the State Government which can better promote the larger interest and welfare of the students by ensuring that merit and excellence are the basis of admission and by curbing malpractices and the Legislature had also thought that such a responsibility should not be entrusted to private unaided professional educational institutions which may not be able to promote such larger interest and welfare of the student community and promote merit, achieve excellence and curb malpractices. Once such a responsibility is entrusted to the State Government by the Legislature under Section 3 (d) of the Act, 2007, it is for the State Government to decide which agency has the utmost credibility and has the expertise to hold the common entrance test and if the State Government has decided in its order dated 28-2-2009 to entrust VYAPAM, which had been holding such common entrance tests for twenty years with expertise and credibility, the Court cannot quash this order of the State Government on the ground that sufficient materials were not before the State Government not to authorise the Association for conducting the common entrance test. Yet another ground urged by Mr. Verma and Mr. Tankha for assailing the orders dated 28-2-2009 and 5-3-2009 of the State Government to authorise VYAPAM to conduct the common entrance tests is that no opportunity was given to the Association before the State Government took the decisions on 28-2-2009 and 5-3-2009 to authorise VYAPAM instead of the Association to conduct the common entrance tests for Postgraduate and Graduate medical and dental courses in the unaided private institutions. This ground is based on an erroneous premise that the Association had a right to hold the common entrance test and such right had been affected by the orders dated 28-2-2009 and 5-3-2009. Under Sections 3 (d), 6 and 7 of the Act, 2007, the Legislature has vested powers on the State Government to hold the common entrance test or authorise an agency to hold the common entrance test and the Legislature was not required to follow the principles of natural justice before enacting Sections 3 (d), 6 and (7) of the Act, 2007. The Association, however, could be entrusted to hold the common entrance test by the State Government as its agency if the State Government was convinced about its credibility and its expertise to hold the common entrance test.

Challenge to the provisions relating to fixation of fees:

36. Sections 4 (1), 4 (8) and 9 of the Act, 2007, which relate to fixation of fees are quoted herein below:

4. Constitution, composition, disqualifications and functions of Committee.:

(1) The State Government shall, by notification in the Official Gazette, constitute a Committee to be called the Admission and Fee Regulatory Committee, for the supervision and guidance of the admission process and for the fixation of fee to be charged from candidates seeking admission in a private professional educational institution.

*** *** ***

(8) The Committee may require a private aided or unaided professional educational institution or, a deemed University to furnish, by a prescribed date, information as may be necessary for enabling the Committee to determine the fee that may be charged by the institution in respect of each professional course, and the fee so determined shall be valid for such period as notified by the State Government.

9. Factors.:

(1) Having regard to:

(i) the location of the private unaided professional educational institution,

(ii) the nature of the professional course;

(iii) the cost of land and building;

(iv) the available infrastructure, teaching, non-teaching staff

and equipment;

(v) the expenditure on administration and maintenance;

(vi) a reasonable surplus required for growth and development of the professional institution;

(vii) any other relevant factor;

the committee shall determined, in the manner prescribed, the fee to be charged by a private unaided professional educational institutions.

(2) The Committee shall give the institution and opportunity of being heard before fixing any fee:

Provided that no such fees, as may be fixed by the Committee, shall amount to profiteering or commercialisation of education.

Contentions of the petitioners:

37. Mr. Verma and Mr. Tankha submitted that a reading of Section 4 (1) of the Act, 2007 shows that power has been vested in the Admission and Fee Regulatory Committee to fix the fee to be charged from candidates seeking admission in private unaided professional educational institutions and a reading of Section 4 (8) of the Act, 2007 would show that the Committee has been empowered to determine the fee that may be charged by the institution in respect of each professional course. They submitted that in Paragraph 56 of the judgment in T.M.A. Pai Foundation (supra), the Supreme Court has held that providing good amenities to the students in the form of competent teaching faculty and other infrastructure costs money and, therefore, it has to be left to the institution, if it chooses not to seek any aid from the Government, to determine the scale of fee that it can charge from the students. They submitted that the Supreme Court has further observed in Paragraph 56 in T.M.A. Pai Foundation (supra), that the decision on the fee to be charged must necessarily be left to the private educational institution that does not seek or is not dependent upon any funds from the Government. They pointed out that in Paragraph 56 of the judgment in T.M.A. Pai Foundation (supra), however, the Supreme Court has held that in establishment of an educational institution, the object should not be to make a profit inasmuch as education is essentially charitable in nature but there can be a reasonable surplus which may be generated by the educational institution for purposes of development of education and expansion of the institution. They submitted that in P.A. Inamdar (supra), the Supreme Court has further clarified in Paragraph 139 that as per the law declared in T.M.A. Pai Foundation (supra), to set up a reasonable fee structure is also a component of 'right to establish and administer an institution' and, therefore, every institution is free to devise its own fee structure subject to the limitation that there can be no profiteering and no capitation fee. They submitted that in Paragraph 141 of the judgment in P.A. Inamdar (supra), the Supreme Court has further held that every institution is free to devise its own fee structure but the same can be regulated in the interest of preventing profiteering and charging of capitation fee. They also referred to Paragraph 149 of the judgment in P.A. Inamdar (supra), in which the Supreme Court has observed that the decisions of some of the Committees for regulating fee constituted pursuant to the order passed in Islamic Academy of Education (supra), was subject to the serious criticism by pointing out that the fee structure approved by them was abysmally low which had rendered the functioning of the institution almost impossible or made the institutions run into losses and has further observed that in some of the institutions, teachers had left their jobs and migrated to other institutions as it was not possible for the management to restrain highly talented and qualified teachers against the salary permitted by the Committees. They submitted that in the aforesaid Paragraph 149 of the judgment in P.A. Inamdar (supra), the Supreme Court has further observed that the Committees should be more sensitive and should act rationally and reasonably with due regard for realities and they should refrain from generalising fee structure and where needed, should go into account, schemes, plans and budgets of an individual institution for the purpose of finding out what would be an ideal and reasonable fee structure for that institution. They submitted that from the aforesaid observations of the Supreme Court in both T.M.A. Pai Foundation and P.A. Inamdar (supra), it is clear that each individual institution can charge its own fee depending upon its costs of providing professional education and yet by Section 4 (1), Section 4 (8) and Section 9(1) of the Act, 2007, power has been vested in the Committee to fix and determine the fees to be charged by a private unaided professional educational institutions.

Contention of the respondents:

38. Mr. R.N. Singh, learned Advocate General, on the other hand, submitted that the provisions of Section 4(1) and Section 4 (8) of the Act, 2007 have to be read with Section 9 of the Act, 2007 and so read, it will be clear that the private professional educational institutions propose their own fees and the Committee only examines whether the fees proposed are based on factors mentioned in Section 9 (1) of the Act, 2007 and are not exorbitant and do not amount to commercialisation of education, and profiteering and these provisions do not in any way encroach on the right of private educational institutions to charge their own fees. Mr. Gupta, learned Counsel appearing for the respondents in some of the cases further submitted that if exploitation of weaker sections of the Society is to be prevented and the educational advancement of socially and educationally backward classes and Scheduled Castes and Scheduled Tribes is to be ensured in accordance with Article 15(5) of the Constitution as well as the directive principles of State Policy in Articles 38 - 41 and 46 of the Constitution, the Committee must have the power to ensure that the fees charged by private professional educational institutions are reasonable and affordable.

39. We are of the view that Sections 4 (1) and 4 (8) of the Act, 2007 have to be read with Section 9 (1) of the Act, 2007, which deals with factors which have to be taken into consideration by the Committee while determining the fee to be charged by a private unaided professional educational institution. A reading of Sub-section (1) of Section 9 of the Act, 2007 would show that the location of private unaided professional educational institution, the nature of the professional course, the cost of land and building, the available infrastructure, teaching, non-teaching staff and equipment, the expenditure on administration and maintenance, a reasonable surplus required for growth and development of the professional institution and any other relevant factor, have to be taken into consideration by the Committee while determining the fees to be charged by a private unaided professional educational institution. Thus, all the cost components of the particular private unaided professional educational institution as well as the reasonable surplus required for growth and development of the institution and all other factors relevant for imparting professional education have to be considered by the Committee while determining the fee. Section 4 (8) of the Act, 2007 further provides that the Committee may require a private aided or unaided professional educational institution to furnish information that may be necessary for enabling the Committee to determine the fees that may be charged by the institution in respect of each professional course. Each professional educational institution, therefore, can furnish information with regard to the fees that it proposes to charge from the candidates seeking admission taking into account all the cost components, the reasonable surplus required for growth and development and other factors relevant to impart professional education as mentioned in Section 9 (1) of the Act, 2007 and the function of the Committee is only to find out, after giving due opportunity of being heard to the institution as provided in Section 9 (2) of the Act, 2007 whether the fees proposed by the institution to be charged to the student are based on the factors mentioned in Section 9 (1) of the Act, 2007 and did not amount to profiteering and commercialisation of the education. The word 'determination' has been defined in Black's Law Dictionary, Eighth Edition, to mean a final decision by the Court or an administrative agency. The Committee, therefore, while determining the fee only gives the final approval to the proposed fee to be charged after being satisfied that it was based on the factors mentioned in Section 9 (1) of the Act, 2007 and there was no profiteering or commercialisation of education. The expression 'fixation of fees' in Section 4 (1) of the Act, 2007 means that the fee to be charged from candidates seeking admission in the private professional educational institution did not vary from student to student and also remained fixed for a certain period as mentioned in Section 4(8) of the Act, 2007. As has been held by the Supreme Court in Peerless General Finance v. Reserve Bank of India (supra), the Court has to examine the substance of the provisions of the law to find out whether provisions of the law impose reasonable restrictions in the interest of the general public. The provisions in Sections 4 (1), 4 (8) and 9 of the Act, 2007 in substance empower the Committee to be only satisfied that the fee proposed by a private professional educational institution did not amount to profiteering or commercialisation of education and was based on the factors mentioned in Section 9 (1) of the Act, 2007. The provisions of the Act, 2007 do not therefore, violate the right of private professional educational institution to charge its own fee.

Challenge to the provisions for reservation:

40. Article 15(5) of the Constitution, Section 8 of the Act, 2007, Rule 4 (2) of the 2008 Rules, relevant portion of Rule 7 of the 2009 Rules and Rule 15 (9) of the 2009 Rules are quoted herein below:

Article 15(5) of the Constitution of India

15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.:

*** *** ***

(5) Nothing in this article or in Sub-clause (g) of Clause (1) of Article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in Clause (1) of Article 30.

Section 8 of the Act, 2007

8. Reservation of seats.- In admission to private unaided professional educational institutions, other than the minority educational institutions referred to in Clause (1) of Article 30 of the Constitution of India, there shall be reservation at the stage of admission for the persons belonging to the Scheduled Castes, Scheduled Tribes and Other Backward Classes of Citizens as may be prescribed by the State Government.Rule 4 (2) of the 2008 Rules

4. Admission Rules.:

(1)*** *** ***

(2) Allocation/Reservation of seats in every institutions and in its branch 16%, 20% and 14% seats of General pool (85% of total intake) shall be served for the candidates belonging to Scheduled Castes, Scheduled Tribes and Other Backward Classes (excluding creamy layer Other Backward Classes category) respectively as notified by the State Government in this regard.

Relevant portion of Rule 7 and Rule 15 (9) of the 2009 Rules

7. Reservation.:

*** *** ***

20% seats are reserved for candidates belonging to Scheduled Tribes, 16% seats are reserved for candidates belonging to Scheduled Castes and 14% seats are reserved for candidates belonging to Other Backward Classes other than creamy layer of OBC of Madhya Pradesh or as amended from time to time....

15. Counselling.:

*** *** ***

(9) Counselling of candidates will be done according to following sequence categorywise:

A. ST Category

B. SC Category

C. OBC Category

D. Unreserved Category.

In case the eligible candidates to the extent of reservation in any category not available, the vacant seats of that category will be filled up by making available to other categories as given below:

(a) The vacant seats of ST category shall be filled up by the eligible SC category candidates.

(b) The vacant seats of SC category shall be filled up by eligible ST category candidates.

(c) In case the eligible candidates to the extent of reservation in ST and SC categories are not available, the vacant seats shall be filled up by eligible OBC category candidates.

(d) In case the eligible candidates are not available in these three reserved categories in the above manner, the vacant seats shall then be filled up by the eligible unreserved category candidates.

Contentions of the petitioners:

41. Mr. Verma and Mr. Tankha, learned Senior Counsel for the petitioners submitted that since the petitioners have not challenged in the present batch of writ petitions the Ninety Third Constitution Amendment inserting Article 15(5) of the Constitution, the petitioners are not in a position to challenge the reservation provisions in the Act, 2007, in the 2008 Rules and in the 2009 Rules. They, however, submitted that in separate writ petitions, the Ninety Third Constitution Amendment inserting Article 15(5) in the Constitution has been challenged by some of the petitioners and the decision of this Court on this point should be without prejudice to the contentions of the petitioners in such separate writ petition in which Article 15(5) of the Constitution is challenged.

42. Mr. A.M. Mathur, learned Senior Counsel appearing for the petitioners in W.P. No. 2732 of 2009, however, submitted that a reading of the reservation provisions in Rule 7 of the 2009 Rules, would show that 20% seats are reserved for candidates belonging to Scheduled Tribes, 16% seats are reserved for candidates belonging to Scheduled Castes and 14% seats are reserved for candidates belonging to Other Backward Classes, other than creamy layer of OBC in Madhya Pradesh. He submitted that the number of seats in the Postgraduate Dental and Medical Courses in different specialised disciplines or subjects are so few that the percentage of reservation of 20%, 16% and 14% for ST, SC and OBCs cannot be worked out. He cited the decision of the Supreme Court in Dr. Chakradhar Paswan v. State of Bihar and Ors. : (1988) 2 SCC 214, in which there were only three posts of Deputy Director, one in Homoeopathic, one in Unani and one in Ayurvedic and the Supreme Court held that these three posts are distinct and separate as they pertain to different disciplines and the posts cannot be grouped together and relying on T. Devadasan v. Union of India : AIR 1964 SC 179, held that no reservation could be made under Article 16(4) of the Constitution as reservation coming under Article 16(4) of the Constitution pre-supposes the availability of atleast one post in that cadre. He also cited the decision in State of Karnataka and Ors. v. K. Govindappa and Anr. : (2009) 1 SCC 1, in which also the Supreme Court has held that reservation cannot be applied to a single post under Article 16(4) of the Constitution as that would amount to 100% reservation.

43. Mr. Mathur next submitted that the provisions in Rule 15 (9) of the 2009 Rules further show that as per the sequence of counselling, the ST category candidates, SC category candidates and the OBC category candidates will have preference over the unreserved category candidates. He submitted that Rule 15 (9) of the 2009 Rules therefore would be in clear violation of the right to equality of the unreserved category candidates inasmuch as the unreserved category candidates despite their higher marks in the common entrance test would be forced to take seats in the Postgraduate Medical and Dental Courses left out by ST, SC and OBC category candidates. Mr. Tankha submitted that Rule 15 (9) of the 2009 Rules amounts to reverse discrimination against unreserved category candidates and cited the judgment in M. Nagraj v. Union of India : AIR 2007 SC 71, in which the Supreme Court has observed that in matters relating to affirmative action by the State, such as reservation, the rights under Articles 14 and 16 of the Constitution are required to be protected and a reasonable balance is to be struck so that there is no reverse discrimination.

Contentions of the respondents:

44. Mr. R.N. Singh, learned Advocate General and Mr. Gupta, learned Counsel appearing for some of the respondents, on the other hand, submitted that the reservation provision in the 2009 Rules are meant to achieve the objects of Article 15(5) of the Constitution. Mr. Singh further submitted that the sequence of counselling in Rule 15 (9) of the 2009 Rules is in accordance with the directions of a Division Bench of this Court in Dr. Amit Kumar Aritwal v. State of M.P. 2004 (3) MPLJ 82.

Conclusions with reasons:

45. Article 15(4) of the Constitution provides that nothing in Article 15 or in Clause (2) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes. In M.R. Balaji and Ors. v. State of M.P. and Ors. : AIR 1963 SC 649, a Constitution Bench of the Supreme Court interpreting Article 15(4) of the Constitution held that it is because the interest of the society at large will be served by promoting the advancement of the weaker sections in the society that Article 15(4) of the Constitution authorises special provision to be made, but if a provision which is in the nature of an exception completely excludes the rest of the society, that clearly is outside the scope of Article 15(4) and, therefore, it would be extremely unreasonable to assume that in enacting Article 15(4), the Constitution intended to provide that where the advancement of the Backward Classes or the Scheduled Castes and Tribes is concerned, the fundamental rights of the citizens constituting the rest of the society were to be completely and absolutely ignored (Para 31 at Page 662 of the AIR). In the aforesaid decision, the Supreme Court also held that when the State makes a special provision for advancement of weaker sections of the society specified in Article 15(4), it has to approach its task objectively and in a rational manner and it has to take reasonable and even generous steps to help the advancement of weaker elements; the requirements of the community at large must be born in mind and a formula must be evolved which should strike a reasonable balance between the several relevant considerations. Since Article 15(5) inserted by Ninety Third Constitution Amendment also is an enabling provision for the State to make any special provision by law for advancement of any socially and educationally backward classes of citizens or for the Scheduled Tribes or the Scheduled Castes in so far as such special provision relates to admission to the educational institutions including the private professional educational institutions, whether aided or unaided by the State, we have to bear in mind the aforesaid principles laid down by the Supreme Court in M.R. Balaji (supra), in the context of Article 15(4) of the Constitution.

46. The portion of Rule 7 of the 2009 Rules quoted above, shows that 20% seats, 16% seats and 14% seats are reserved for candidates belonging to Scheduled Tribes, Scheduled Castes and Other Backward Classes, other than creamy layer of OBCs of Madhya Pradesh. The word 'seats' in Rule 7 would mean the total seats in all the specialised disciplines or subjects of the Postgraduate Medical and Dental Courses in the private unaided Medical and Dental Colleges in the State of Madhya Pradesh and not seats in specific specialised disciplines/subjects in the Postgraduate Medical and Dental Courses in the private unaided Medical and Dental Colleges in the State of Madhya Pradesh. If the word 'seats' in Rule 7 of the 2009 Rules was to mean seats in specific specialised disciplines or subjects in Postgraduate Medical and Dental Courses in the private unaided Medical and Dental Colleges in the State of Madhya Pradesh, as contended by Mr. Mathur, then the percentages of 20%, 16% and 14% reservations in favour of Scheduled Tribes, Scheduled Castes and OBCs cannot be worked out and the provision in the newly inserted Article 15(5) of the Constitution cannot be implemented. For advancement of socially and educationally backward classes of citizens and for the Scheduled Tribes and for the Scheduled Castes, it is, therefore, necessary that a formula has to be evolved which would strike a reasonable balance between rights of Unreserved Category candidates and the rights of the Scheduled Tribes, Scheduled Castes and OBCs mentioned in Rule 7 have to be worked out. As a matter of fact, we find that by notification dated 27th April, 2009 of the State Government, the distribution of the seats of Postgraduate Medical and Dental Courses in the three private unaided Medical Colleges are as follows:

DISTRIBUTION OF DEGREE SEATS PRE-PG COUNSELLINGAPRIL-MAY, 2009R.D. Gardi Medical College, Ujjain--------------------------------------------------------------------------------S. No. Subject UR ST SC OBC Total--------------------------------------------------------------------------------(1) (2) (3) (4) (5) (6) (7)--------------------------------------------------------------------------------1. Anatomy 1 1 - 1 3--------------------------------------------------------------------------------2. Community 2* 1 1 - 4Medicine--------------------------------------------------------------------------------3. Dermatology 1 - - - 1--------------------------------------------------------------------------------4. TB Chest - - - 1 1--------------------------------------------------------------------------------5. General Medicine 1 1 1 - 3--------------------------------------------------------------------------------6. General Surgery 2 1 1 - 4--------------------------------------------------------------------------------7. Obst. & Gynae. 1 - - 1 2--------------------------------------------------------------------------------8. Ophthalmology 1 - - - 1--------------------------------------------------------------------------------9. Oto-Rhino- 1 - - - 1Laryngology--------------------------------------------------------------------------------10. Paediatrics 1 - - 1 2--------------------------------------------------------------------------------11. Pathology 2 1 1 - 4--------------------------------------------------------------------------------12. Pharmacology 1 - - 1 2--------------------------------------------------------------------------------13. Microbiology 1 1 - - 2--------------------------------------------------------------------------------14. Radiology 1 1 1 - 3--------------------------------------------------------------------------------15. Psychiatry 1 - - - 1--------------------------------------------------------------------------------UkskV% dE;wfuVh esMhflu us UR Js.kh * ls n'kkZbZ lhV fodykax Js.kh ds fy, vkjf{kr gS A DISTRIBUTION OF DEGREE SEATS PRE-PG COUNSELLINGAPRIL-MAY, 2009--------------------------------------------------------------------------------S. No. Subject Modern Dental Peoples College of GrandCollege, Indore Dental Science, Bhopal Tot.--------------------------------------------------------------------------------UR ST SC OBC Tot. UR ST SC OBC Tot.--------------------------------------------------------------------------------(1) (2) (3) (4) (5) (6) (7) (8) (9) (10) (11) (12) (13)--------------------------------------------------------------------------------1. Prosthodontics 2 1 - - 3 1 - 1 1 3 6--------------------------------------------------------------------------------2. Periodontics 1 - 1 1 3 2 1 1 1 3 6--------------------------------------------------------------------------------3. Conservative 2 1 - - 3 1 - 1 1 3 6Dentistry--------------------------------------------------------------------------------4. Oral Pathology 1 - 1 1 3 2 1 - - 3 6--------------------------------------------------------------------------------5. Oral Surgery 2 1 1 - 4 2 1* - - 3 7--------------------------------------------------------------------------------6. Oral Medicine 1 1 - 1 3 2 1 - - 3 6& Radiology--------------------------------------------------------------------------------7. Orthodontics 2 1 - - 3 1 - 1 1 3 6--------------------------------------------------------------------------------8. Pedodontics 2 - 1* 1 4 2 1 - - 3 7--------------------------------------------------------------------------------9. Community - - - - 0 1 1 1 1 3 3Dentistry--------------------------------------------------------------------------------Total 13 5 4 4 26 14 6 4 3 27 53--------------------------------------------------------------------------------uskV % 1- ihiqYl dkWyst vkWQ MsaVy lkbal] Hkksiky dh ST Js.kh dh vksjy ltZjh * ls n'kkZbZ lhV fodykax Js.kh ds fy, vkjf{kr gS A

2- ekMZu MsaVy dkWyst] bUnkSj dh SC Js.kh dh ihMksMksfVDl * ls n'kkZbZ lhV fodykax Js.kh ds fy, vkjf{kr gS A

The aforesaid distribution of seats between Unreserved, Scheduled Tribes, Scheduled Castes and OBC category candidates shows that sufficient number of seats have been allotted also for Unreserved category candidates in different disciplines or subjects of Postgraduate Medical and Dental Courses in Medical and Dental Colleges in the State of Madhya Pradesh and a reasonable balance has been struck between the rights of the Unreserved category candidates and of Scheduled Tribes, Scheduled Castes and Other Backward Classes. We are, therefore, unable to accept the contention of Mr. Mathur and Mr. Tankha that there is a reverse discrimination against the Unreserved category candidates in the 2009 Rules.

47. Once the seats in specific specialised disciplines or subjects have been allotted to Unreserved, Scheduled Tribes, Scheduled Castes and OBC categories of candidates, there can be no apprehension that the unreserved category candidates scoring higher marks than the Scheduled Tribes, Scheduled Castes and OBC categories candidates will not get seats in the disciplines or subjects of their choice because of the sequence of counselling given in Rule 15 (9) of the 2009 Rules. As a matter of fact, we find that Rule 15 (9) of the 2009 Rules has been framed in accordance with the directions of this Court in a Division Bench judgment in Dr. Amit Kumar Arihit (supra). The rationale for the sequence of counselling followed in Rule 15 (9) has been given in Paragraph 11 of the judgment of the Division Bench in Dr. Amit Kumar Arihit (supra) and the object of the sequence of counselling in Rule 15 (9) of the 2009 Rules is to ensure that Unreserved category candidates participate in the counselling at the end not only for the seats allotted to Unreserved category candidates but also, for the seats which have been reserved for Scheduled Tribes, Scheduled Castes and OBC categories of candidates but which could not be filled up on account of non-availability of Scheduled Tribes, Scheduled Castes or OBC categories of candidates so that the Unreserved category candidates get maximum opportunity to get the subjects of their choice. The challenge to the reservation provisions of Rule 15 (9) of the 2009 Rules, therefore, also fails.

Challenge to the provision relating to eligibility for admission:

48. Sections 3 (a) and 5 of the Act, 2007 and Rule 10 of the 2009 Rules which relates to eligibility of a candidate for taking the common entrance examination for admission to the Postgraduate Medical and Dental Courses in private Unaided Medical and Dental Colleges in the State of Madhya Pradesh are quoted herein below:

Sections 3 (a) and 5 of the Act, 2007:

3. Definitions.- In this Act, unless the context otherwise requires,:

*** *** ***

(a) 'Appropriate Authority' means a Central or State Authority established by the Central or the State Government for laying down norms and conditions for ensuring standards of professional education.5. Eligibility.- The eligibility for admission to a private unaided professional educational institution shall be such as may be notified by the Appropriate Authority.

Rule 10 of the 2009 Rules: 10. Eligibility.:

(1) The candidate must be citizen of India; and

The candidate must have passed all MBBS/BDS Examination from any recognized Medical/Dental College of India.

(2) (i) Eligible Candidate must have undertaken studies in an institution recognised by MCI/DCI.

(ii) Eligible Candidate must have completed compulsory internship from a MCI/DCI recognised institution on or before 31-3-2009.

(iii) Eligible Candidate must permanently be registered by Madhya Pradesh Medical/Dental Council (and/or MCI/DCI) on or before 30-4-2009.

Contentions of the petitioners:

49. The petitioners in W.P. No. 3732 of 2009 and W.P. No. 3886 of 2009 have contended that Rule 10 (2) (iii) of the 2009 Rules provides that eligible candidate must be permanently registered with Madhya Pradesh Medical/Dental Council (and/or MCI/DCI) on or before 30-4-2009 and therefore, bars candidates who are permanently registered with other States Medical/Dental Councils from taking the common entrance test. The contention on behalf of the petitioners is that Section 5 of the Act, 2007 is clear that eligibility for admission to the private unaided professional educational institution shall be such as may be notified by the 'Appropriate Authority' and 'Appropriate Authority' has been defined in Section 3 (a) of the Act, 2007 to mean a Central or State Authority established by the Central or the State Government for laying down norms and conditions for ensuring standards of professional education. On behalf of the petitioners, it was submitted that Medical Council of India and the Dental Council of India are the authorities established under the Acts of Parliament to lay down the norms and conditions for ensuring standards of medical and dental education and the regulations made by the Medical Council of India and the Dental Council of India do not limit the eligibility for admission to Postgraduate Medical and Dental Courses to only those candidates who are permanently registered by the M.P. Medical/Dental Council and, therefore, the provision in Rule 10 (2) (iii) of the 2009 Rules are ultra vires.

Contentions of the respondents:

50. In the return filed on behalf of the respondents in W.P. No. 3732 of 2009, it is contended in Para 15 that a candidate who undergoes any of the Postgraduate Courses in an institution of a particular State is mandatorily required to be registered with the concerned State Medical or Dental Council or MCI/DCI for the reason that the curriculum of postgraduate courses contains the examination of out-door/in-door patients, their treatment and to operate and deal with post operative care, besides studies and research and, therefore, a person who is not registered with the Medical Council of the particular State cannot perform his/her studies in a valid manner, rather he/she cannot be allowed to study as per the Medical Council of India norms.

Conclusions with reasons:

51. We find that in Postgraduate Medical Education Regulations, 2000, as amended, the following provision is made with regard to eligibility for admission to Postgraduate Colleges:.Every student, selected for admission to a Postgraduate medical course in any of the medical institutions on acquiring MBBS degree or an equivalent qualification thereto shall have obtained permanent registration with the Medical Council of India, or any of the State Medical Council(s) or shall obtain the same within a period of one month from the date of his/her admission, failing which his/her admission shall stand cancelled.

It is clear from the aforesaid provision that a student, who has obtained permanent registration with Medical Council of India or any of the State Councils, is eligible for admission to Postgraduate Medical courses in any of the medical institutions. Hence the provision in Rule 10 (2) (iii) of the 2009 Rules that the candidate should have obtained permanent registration with the State Medical Council of Madhya Pradesh and not State Medical Councils of other States is ultra vires Section 5 read with Section 3 (a) of the Act, 2007.

52. In the Dental Council of India Revised MDS Course Regulations, 2007, it is provided:

ELIGIBILITY:

A candidate for admission to the MDS course (Master of Dental Surgery) must have a recognised degree of BDS (Bachelor of Dental Surgery) awarded by an Indian University in respect of recognised Dental College under Section 10 (2) of the Dentists Act, 1948 or an equivalent qualification recognised by the Dental Council of India and should have obtained permanent registration with the State Dental Council. Candidates not possessing a recognised Dental qualification for the above purpose should secure the prior approval of his qualifications by the Dental Council of India before he can be admitted to the MDS Course of any University in India.

It will be clear from the language of the eligibility provision in the Dental Council of India Revised MDS Course Regulations, 2007 that a candidate for admission to MDS course should have obtained permanent registration with the State Dental Council besides having a recognised degree of BDS or an equivalent qualification recognised by the Dental Council of India. Hence the provision in Rule 10 (2) (iii) of the 2009 Rules that a candidate must be permanently registered with the State Dental Council and not with State Dental Councils of other States is ultra vires Section 5 read with Section 3 (a) of the Act, 2007.

53. Our judgment declaring Rule 10 (2) (iii) of the 2009 Rules as ultra vires will be operative only from the academic session 2010-11 because the common entrance examination for admissions to Postgraduate Medical Courses in private unaided professional educational institutions in Madhya Pradesh for the academic session is already over and if our judgment on this point is allowed to apply to also the common entrance examination which has already taken place, the entire common entrance examination will have to be cancelled, leading to grave consequences for the students who will not be able to get admission to the seats in the Postgraduate Medical and Dental Courses in the academic session 2009-10 by 31st May, 2009, the last date fixed for the admissions.

54. Although a challenge was made also to some of the provisions of the 2008 Rules, the Counsel for the petitioners did not seriously address the Court on the validity of the provisions of the 2008 Rules and, therefore, we have not dealt with the same.

55. In the result, while we do not find any merit to the challenge to the Act, 2007, the 2008 Rules and the orders dated 28-2-2009 and 5-3-2009 of the State Government, we declare that the provisions of Rule 10 (2) (iii) of the 2009 Rules are ultra vires, but such declaration will not affect the common entrance test already conducted by VYAPAM for admissions to the Postgraduate Medical and Dental Courses in the private unaided educational institutions in the State of M.P. for the year 2009-10. The candidates who have succeeded in the common entrance test conducted by VYAPAM, we are told, have participated in the counselling. The successful candidates after counselling be admitted to the Postgraduate Medical and Dental Courses in the Private Unaided Medical and Dental Colleges in the State of Madhya Pradesh by 31st May, 2009.

All interim orders passed are vacated.