M. Ramakrishna, C.J.
1. These appeals arise out of a judgment and order made in Writ petition No.: 379/1995 disposed of by a learned single Judge of this Court at Srinagar on 27-11-1995. The salient facts which are necessary for the disposal of these appeals are that the first respondent, Shri Chander Bada Akhara Udasin Society, registered office at Residency road, Srinagar is said to have established a private Medical College with the name Acharya Shri Chander College of Medical Sciences and Hospital at Sidhra village, Jammu, hereinafter referred to as the Private Medical College Jammu. It is stated that the society of first respondent has been registered under the Societies Registration Act 1989 (1941 AD) by the Registrar of Societies vide registration No. 1604-S of 1989 dated 20th October, 1989. The Society has been running certain other institutions before starting the Medical College and Hospital in the year 1987. It is stated further that according to the memorandum of Association of the Society and its Rules and Regulations, its aims and objectives inter alia included an establishment of a Medical College with Hospital with a view to promote, start and maintain the medical facilities, Child Welfare Centre and to provide aid and help to the needy persons. The society is a self financing institution and it is not anticipating any aid, financial or otherwise from the Government of Jammu and Kashmir.
2. It is further stated that the Society approached the State Government of Jammu and Kashmir and its functionaries for allotment of certain land for construction of a Medical College and associated hospital. The Jammu Development Authority with the approval of the State Government allotted land measuring 250 kanals at village Mujeen, Tehsil Samba, District Jammu. It is stated that on this allotted land the Medical College and Hospital had been constructed. The land in question has been allotted by the State Government on leasehold basis.
3. Thereafter, it is stated that the process for obtaining permission from the State Government and the Central Government and other institutions for starting the Medical College was initiated by the Society. The society also has sought for recognition and affiliation from the University of Jammu and the Medical Council of India. It is further stated that the Additional Secretary to the Govt. Department of Health and Medical Education vide its letter dated 17-1-1994 (Annexure R-9) to the writ petition, recommended to the Medical Council of India, New Delhi for a formal recognition for starting the Medical College. Similarly the Additional Secretary to Government has also recom-mended the Registrar of Jammu University vide communication dated 24-12-1993 (Annexure R-8 to the writ petition) for granting approval of the University of affiliation of the Medical College. It is stated that thereupon both the University of Jammu as well as the Medical Council of India have granted affiliation and permission approving the starting of Medical College set up by the Society. It is stated that the Govt. of India, Ministry of Health and Family Welfare Department in its letter dated 6-10-1995 granted the letter of intent in favour of the Society for establishing and to run the Medical College in terms of Section 10A of the Indian Medical Council Act, 1956, hereinafter referred to as 'the Act'. Thereupon the Central Govt. communicated its approval in that behalf on 9th October, 1995.
4. It is stated that the Society, first respondent has since constructed a full-fledged Medical College and a 300 bed Hospital attached to it. The foundation stone for the said College had been laid by His Excellency, the Governor of State of Jammu and Kashmir. Indeed, it is stated that on the completion of building, the Hospital was inaugurated by the State Governor. It is further stated that the first respondent-Society spent about Rupees seven crores for construction of buildings of both Hospital and College along with the necessary equipment.
5. It is stated that while the first respondent-Society was in the process of establishing the College and the Hospital as such and while the scheme was under the consideration of the Govt. of India, some students have approached the first respondent for grant of admission to them in the first year M.B.B.S. course. It is stated that in that way the first respondent-Society received about 64 applications in that behalf.
6. It has been alleged that as there was some delay in obtaining the necessary guidelines for constituting a committee for making the selection of the candidates to be admitted to the Private Medical College for the academic year 1995-96, certain students, who had approached the first respondent-Society, presented a writ petition invoking the provisions of Article 226 of the Constitution of India read with Section 103 of the Constitution of Jammu and Kashmir seeking for a writ of Mandamus to the State of Jammu and Kashmir for taking immediate steps in that behalf, impleading the Society and the Medical College as the necessary parties, at Srinagar. They have sought for appropriate N relief both against the State Government as well as the Society and the Medical College in this behalf. That writ petition came up for consideration at Srinagar wing of this Court and a learned single Judge by an order made on 27-11-1995 allowed the writ petition with the following directions:
'The petition accordingly is finally disposed of in the light of the observations made above. The following orders are passed and directions issued:
(1) A committee of the following persons is constituted;-
a. Mr. Justice J. N. Bhat (Retd.) Judge of J. & K. High Court: Chairman
b. A. M. Watali, former member, J. & K.Public Service Commission : Member
c. Dr. Krishan Lal Gupta, Former Director, Health Services, J. & K. State.
Member
d. Prof. Vidya Nath Gupta, formerly Prof,and Head, Department of (sic) Indi, University of Jammu.
Member
(2) The aforesaid committee shall immediately go into the complete selection process for admission of students in the 1st Year M.B.B.S. course in the Medical College of Respondents Nos. 2 and 3 in the categories of 'free seats' and 'paid seats' with reference to the applications that may have been received by the Society from various students and other applications that it shall invite or call for by publication through recognised modes including issuance of advertisement in at least one Lading newspaper having wide circulation, and based on the fair and objective criteria that it may adopt, with reference to the marks obtained by the students in the qualifying examination, or otherwise, draw-up a list of students that it thinks should be admitted in the college. For finalising the selection, it shall be desirable if the selection Committee also conducts oral interviews of the candidates, either generally or by shortlisting them on the basis of their inter se merit ; in the qualifying examination or as otherwise determined by the Selection Committee. The Selection Committee shall ensure that the selection of the students is based solely and strictly upon merit as would be determined by it and by no other considerations.
(3) The list prepared by the Selection Committee shall be submitted by it to respondents Nos. 2 and 3 who on receipt thereof shall inform the students selected of their selection and, without any further loss of time start and complete the entire admission process, culminating in the start of class work.
(4) The fees that the students would be liable to pay in the two categories would be strictly in accordance with the norms prescribed and the conditions laid down by the Supreme Court, as are in force at the relevant time or from time to time, or in such other manner that the Supreme Court may direct in future, or the relevant / applicable law, Rules or Regulations prescribe.
(5) The Chairman and the Members of theSelection Committee shall be paid Honorarium of Rs. 15,000/-and Rs. 10,000/- respectively for accomplishing the aforesaid task byrespondents Nos. 2 and 3.
(6) The entire selection process shall be completed by the aforesaid Selection Committee and Select-List of students submitted to the respondents Nos. 2 and 3 within four weeks from today. It shall be the responsibility of respondents Nos. 2 and 3 to intimate and inform the Chairman and Members of the Selection Committee about these directions immediately and without any loss of time for their immediate compliance and initiation of action, as directed.'
7. Aggrieved by this order and judgment of the learned single Judge in the above writ petition, these appeals have been presented. LPA No. 307/1995 is presented by the State of Jammu and Kashmir through its Commis-sioner-cum-Secretary to Govt.1 'Health and Medical Education Department, J. & K. Govt, Jammu. LPA No. 312/1995 has been presented by two students seeking to quash the judgment and order of the learned single Judge in the above writ petition and LPA No. 8/1996 is presented by two students challenging the correctness and legality of the order of the learned single Judge on the grounds taken in the respective appeals.
8. We have heard Shri M. L. Verma, Sr. Advocate and Mr. K. S. Johal appearing along with him in LPA Nos. 312/1995 and LPA No. 8/1996 and Mr. D. K. Jalali, learned Advocate General of the State in LPA No. 307/1995 appearing for the appellant-State. We have also heard Mr. M. Rohtigi, Senior Advocate appearing for respondents 1 and 2 and Mr. M. H. Beigh Sr. Counsel and Mr. P. Kohli appearing for the respondents in these appeals.
9. In the light of the arguments advanced by the learned counsel on both sides, the following questions arise for our consideration in these appeals:
(1) Whether the so called Scheme evolved by the learned single Judge constituting a committee of four persons for making the selection of the candidates to fill up 100 seats of the Private Medical College is valid and legal?
(2) Whether the scheme evolved by the learned single Judge in the course of his order is contrary to and in violation of the scheme evolved by the Supreme Court in Unni Krishnan, J. P. v. State of Andhra Pradesh, AIR 1993 SC 2178.
(3) Whether the guidelines contained in the said scheme evolved by the learned single Judge in the course of his order in the writ petition for purposes of making selection of the candidates to Medical College could be sustained ?
(4) If, on the other hand the scheme evolved by the learned single Judge for purposes of making selection of the candidates to the Medical College is not illegal, but only irregular, whether, it is possible to sustain and maintain the selection so made by the Committee ?
(5) Whether it is possible for this Court in view of the facts and circumstances of this case to maintain 15% quota of NRI candidates filled up by the College in terms of the scheme to be maintained and orders to be passed in the given circumstances?
(6) Whether the appeal as brought by the appellants in LPA No. 8/1996 U maintainable?
10. We will take up first questions 1 to 4 to begin with for consideration of these appeals. With a view to enlighten ourselves as to the law laid down by the Hon'ble Supreme Court in Unni Krishnan's case (AIR 1993 SC 2178) (supra) and the scheme expounded therein and with a view to answer these questions, it is better to extract that part of the judgment referring to Unni Krishnan:
'SCHEME
170. The scheme evolved herewith is in the nature of guidelines which the appropriate Government and recognising and affiliating authorities shall impose and implement in addition to such other conditions and stipulations as they may think appropriate as conditions for grant of permission, grant of recognition or grant of affiliation, as the case may be. We are confining the scheme - for the present - only to 'professional colleges'.
The expression 'professional colleges' in this scheme includes:
(i) medical colleges, dental colleges and other institutions and colleges imparting Nursing, Pharmacy and other courses allied to Medicine, established and/or run by private educational institutions,
(ii) colleges of engineering and colleges and institutions imparting technical education including electronics, computer sciences established and/ or run by private educational institutions, and
(iii) such other colleges to which this scheme is made applicable by the Government, recognising and/or affiliating authority.
The expression 'appropriate authroity' means the Government, University or other authority as competent to grant permission to establish or to grant recognition to a professional college.
The expression 'competent authority' in this scheme means the Government/University or other authority, as may be designated by the Government/ University or by law, as is competent to allot students for admission to various professional colleges in the given State.
It is made clear that only those institutions which seek permission to establish and/or recognition and/or affiliation from the appropriate authority shall alone be made bound by this scheme, This scheme is not applicable to colleges run by Government or to University colleges. In short, the scheme hereinafter mentioned shall be made a condition of permission, recognition or affiliation, as the case may be. For each of them viz, grant of permission, grant of recognition, grant of affiliation, these conditions shall necessarily be imposed, in addition to such other conditions as the appropriate authority may think appropriate. No private educational institution shall be allowed to send its students to appear for an examination held by any Government or other body constituted by it or under any law or to any examination held by any University unless the concerned institution and the relevant course of study is recognised by the appropriate authority and/or is affiliated to the appropriate University, as the case may be.
(1) A professional college shall be permitted to be established and/or administered only by a Society registered under the Societies Registration Act, 1860 (or the corresponding Act, if any, in force in a given State), or by a Public Trust religious or charitable, registered under the Trusts Act, Wakfs Act (or the corresponding legislation, if any, e.g. Tamil Nadu Religious and Charitable Endowments Act and A. P. Religious and Charitable Endowments Act). No individual, firm, company or other body of individuals, by whatever appellation called-except those mentioned above - will be permitted to establish and/ or administer a professional college. All the existing professional colleges which do not conform to the above norm shall he directed to take appropriate steps to comply with the same within a period of six months from today. In default whereof, recognition/affiliation accorded shall stand withdrawn. (In this connection reference may be had to Rule 86(2) of Maharashtra Grant-in-aid Code (referred to in State of Maharashtra v. Lok Shikshan Sanstha, 1971 (Suppl) SCR 879: AIR 1973 SC 588 which provided that schools which are not registered under the Societies Registration Act, shall not be eligible for grant or recognition and affiliation is of no less significance).
(2) At least, 50% of the seats in every professional college shall be filled by the nominees of the Government or University, a.s the case may be, hereinafter referred to as 'free seats'. There students shall be selected on the basis of merit determined on the basis of a common entrance examination where it is held or in the absence of an entrance examination, by such criteria as may be determined by the competent authority or the appropriate authority, as the case may be. It is, however, desirable and appropriate to have a common entrance exam, for regulating admissions to these colleges/institutions as is done in the State of Andhra Pradesh. The remaining 50% seats (payment seats) shall be filled by those candidates who are prepared to pay the fee prescribed therefore and who have complied with the instructions regarding deposit and furnishing of cash security/bank guarantee for the balance of the amount. The allotment of students against payment seats shall also be done on the basis of inter se merit determined on the same basis as in the case of free seats. There shall be no quota reserved for the management or for any family, caste, or community which may have established such college. The criteria of eligibility and all other conditions shall be the same in respect of both free seats and payment seats. The only distinction shall be the requirement of higher fee by the 'payment students'. The Management of a professional college shall not be entitled to impose or prescribe any other and further eligibility criteria or condition for admission either to free seats or to (sic). It shall, however be open to a professional college to provide for reservation of seats for constitutionally permissible classes with the approval of the affiliating University. Such reservations, if any, shall be made and notified to the competent authority and the appropriate authority at least one month prior to the issuance of notification calling for applications for admission to such category of colleges. In such a case, the competent authority shall allot students keeping in view the reservation provided by a college. The rule of merit shall be followed even in such reserved categories.
(3) The number of seats available in the professional colleges (to which this scheme is made applicable) shall be fixed by the appropriate authority. No professional college shall be permitted to increase its strength except under the permission or authority granted by the appropriate authority.
(4) No professional college shall call for applications for admission separately or individually. All the applications for admission to all the seats available in such colleges shall be called for by the competent authority alone, along with applications for admission to Government/University Colleges of similar nature. For example, there shall be only one notification by the competent authority calling for applications for all the medical colleges in the State and one notification for all the engineering colleges in the State and so on. The application forms for admission shall be issued by the competent authority (from such offices, centres and places as he may direct). The application form shall contain a column on a separate part wherein an applicant can indicate whether he wishes to be admitted against a payment seat and the order of preference, upto three professional colleges.
(5) Each professional college shall intimate the competent authority, the State Government and the concerned University in advance the fees chargeable for the entire course commencing that academic year. The total fees shall be divided into the number of years/semesters of study in that course. In the first instance, fees only for the first year/ semester shall be collected. The payment students will he, however, required to furnish either cash security or bank guarantee for the fees payable for the remaining years/semesters. The fees chargeable in each professional college shall be subject to the ceiling prescribed by the appropriate authority or by a competent Court. The competent authority shall issue a brochure, on payment of appropriate charges, along with the application form for admission, giving full particulars of the course and the number of seats available, the names of the colleges, their location and also the fees chargeable by each professional college. The brochure will also specify the minimum eligibility conditions, the method of admission (whether by entrance test or otherwise) and other relevant particulars.
(6)(a) Every State Government shall forthwith constitute a committee to fix the ceiling on the fees chargeable by a professional college or class of professional colleges, as the case may be. The Committee shall consists of Vice-Chancellor, Secretary, for Education (or such Joint Secretary, as he may nominate) and Director, Medical Education/ Director Technical Education. The Committee shall make such enquiry as it thinks appropriate. It shall, however, give opportunity to the professional Colleges (or their association(s), if any) to place such material, as they think fit. It shall, however, not be bound to give any personal hearing to any one or follow any technical rules of law. The Committee shall fix the fee once every three years or at such longer intervals, as it may think appropriate.
(b) It would be appropriate if the U.G.C. frames regulations under Section 12A(3) of the U.G.C. Act regulating the fees which the affiliated colleges, operating on no-grant-in-aid basis, are entitled to charge. The Council for Technical Education may also consider the advisability of issuing directions under Section 10 of the A.I.C.T.E. Act regulating the fees that may be charged in Private unaided educational institutions imparting technical education. The Indian Medical Council and the Central Government may also consider the advisability of such regulation as a condition for grant to permission to new medical Colleges under Section 10A and to impose such a condition on existing colleges under Section 10C.
(c) The several authorities mentioned in sub-paras (a) and (b) shall decide whether a private educational institution is entitled to charge only that fee as is required to run the College or whether the capita! cost involved in establishing a college can also be passed on to students and if so, in what manner. Keeping in view, the need, the interest of general public and of the nation, a policy decision may be taken. It would be more appropriate if the Central Government and these several authorities (UGC, IMC and AICTE) co-ordinate their efforts and evolve a broadly uniform criteria in this behalf. Until the Central Government, U.G.C., I.M.C. and A.I.C.T.E. issue orders/regulations in this behalf, the Committee referred to in the sub-para (a) of this para shall be operative. In other words, the working and orders of the committee shall be subject to the orders/regulations, issued by Central Government, U.G.C., I.M.C. or A.I.C.T.E., as the case may be.
(d) We must hasten to add that what we have said in this clause is merely a reiteration of the duty - nay, obligation - placed upon the Governments of Andhra Pradesh, Maha-rashtra, Karnataka and Tamil Nadu by their respective legislatures - to wit, Section 7 of Andhra Pradesh Act 5 of 1983, Section 4 of Maharashtra Act 6 of 1988, Section 5 of Karnataka Act of 1984 and Section 4 of Tamil Nadu Act 57 of 1992. Other States too may have to have similar provisions, carrying statutory force.
(7) Any candidate who fulfils the eligibility conditions would be entitled to apply for admission. After the free seats in professional Colleges are filled up, at least 10 days time will be given to the candidates (students) to opt to be admitted against payment seats. The candidates shall be entitled to indicate their choice for any three colleges (if available). In such a case, he shall comply with the deposit and cash security/Bank guarantee taking the institution charging the highest fees as the basis, within the said period often days. If he is admitted in an institution, charging less fee, the difference amount shall be refunded to him. (The cash security or Bank guarantee shall be in favour of the competent authority who shall transfer the same in favour of the appropriate college if that student is admitted).
8. The results of the entrance examination, if any, held should be published at least in two leading newspapers, one in English and the other in vernacular. The payment candidates shall be allotted to different professional Colleges on the basis of merit-cum-choice. The allotment shall be made by the competent authority. A professional College shall be bound to admit the students so allotted. The casual vacancies or unfilled vacancies, if any, shall also be filled in the same manner. The management of a professional college shall not, be permitted to admit any student other than the one allotted by the competent authority whether against free seat or payment seat, as the case may be. It is made clear that even in the matter of reserved categories, if any, the principle of inter se merit shall be followed. All allotments made shall be published in two leading newspapers as aforesaid and on the notice boards of the respective colleges and at such other places as the competent authority may direct, along with the marks obtained by each candidate in the relevant entrance test or qualifying examination, as the case may be. No professional college shall be entitled to ask for any other or further payment or amount, under whatever name it may be called, from any student allotted to it - whether against the free seat or payment seat.
(9) After making the allotments, the competent authority shall also prepare and publish a waiting list of the candidates alongwith the marks obtained by them in the relevant test/examination. The said list shall be followed for filling up any casual vacancies or 'drop-out' vacancies arising after the admissions are finalised. These vacancies shall be filled until such date as may be prescribed by the competent authority. Any vacancies still remaining after such date can be filled by the Management.
It is made clear that it shall be open to the appropriate authority and the competent authority to issue such further instructions or directions, as they may think appropriate not inconsistent with this scheme, by way of elaboration and elucidation.
This scheme shall apply to and govern the ad missions to professional colleges commencing from the academic year 1993-94.
We are aware that until the commencement of the current academic year, the Andhra Pradesh was following a somewhat different pattern in the matter of filling the seats in private unaided engineering colleges. Though all the available seats were being filled by the allottees of the Convenor (State) - and the managements were not allowed to admit any student on their own - a uniform fee was collected from all the students. The concepts of 'free seats' and 'payment seats' were therefore not relevant in such a situation - all were payment seats only. We cannot say that such a system is constitutionally not permissible. But our idea in devising this scheme has been to provide more opportunities to meritorious students who may not be able to pay the enhanced fee prescribed by the Government for such colleges. The system devised by us would mean correspondingly more financial burden of payment on students whereas in the aforesaid system (in vogue in Andhra Pradesh) the financial burden is equally distributed among all the students. The theoretical foundation for our method is that candidate/student who is stealing a march over his compatriot on account of his economic power should be made not only to pay for himself but also to pay for another meritorious student. This is social justification behind the fifty percent rule prescribed in clause (2) of this scheme. In the interest of uniformity and in the light of the above social theory, we direct the State of Andhra Pradesh to adhere to the system derived by us.'
11. In view of the law laid down by the Hon'ble Supreme Court in Unni Krishanan's case (AIR 1993 SC 2178), it has become imperative for all the State Governments to follow the scheme evolved in paragraph 170 sub-clauses I to 9 with a view to fall in line with the scheme expounded by the Hon'ble Supreme Court and to implement the said scheme, in addition to such other conditions and stipulations as they may think appropriate, as the conditions for grant of permission, grant of recognition and grant of affiliation, as the case may be.
12. In the light of the decision rendered by the Hon'ble Supreme Court in Unni Krishnan's case (AIR 1993 SC 2178) and subsequent decisions rendered by the Supreme Court, it is abundantly made clear that in the absence of the statute made available in the State of J. & K., we have to fall in line with the guidelines contained in the scheme referred to above. Indeed, as a matter of fact, the learned single Judge did agree with this view when he held in the course of his order disposing of the writ petition as follows:
'Respondents Nos. 2 and 3 however, have taken a definite, categorical and unequivocal plea that they on their own cannot admit the students in the 1st Year MBBS Course because they are not competent to do so, because they are forbidden from making any admission on their own, as laid down by the Supreme Court in the case of Unni Krishnan J.P. v. State of Andhra Pradesh, reported in AIR 1993 SC 2178. The attention of the court was invited to the scheme formulated and prescribed by the Supreme Court in Unni Krishnan, particularly paras 2, 4 and 7 of the scheme to contend that the management of the college on its own is not competent to admit any student, and that, in terms of the scheme, it is only State Government which has to allocate students in the Medical College. In short, therefore, respondents Nos. 2 and 3 expressed not only their inability, but helplessness in admitting the students, without the active involvement of the State Government.'
In other words the learned single Judge has noted the mandatory requirements of the compliance of the scheme evolved and expounded in Unni Krishnan's case (AIR 1993 SC 2178) for purpose of making selection of the candidates in the Private Medical College. That was the stand taken by the respondents 2 and 3 in the writ petition. As a matter of fact the learned senior counsel who argued on behalf of respondents I and 2 in these appeals do agree with this view taken by the learned single Judge in the course of his observations extracted above but according to them as there was inaction on the part of the State Govt., the learned single Judge had to seek for alternative method to provide relief to the writ petitioners. They have invited our attention to the observations made by the learned single Judge in the course of his order as follows:
'However, court's attention was drawn towards the communication sent by respondents Nos. 2 and 3 to the functionaries of the State Govt. wherein the establishment, opening and starting of the operations of the Medical College and the Hospital were communicated by respondents Nos. 2 and 3 to the State Govt. and the State Govt. was asked, in clear and categorical terms to initiate and complete the selection process, in terms of the scheme formulated by the Supreme Court in Unni Krishnan's case. The first communication on the subject was addressed on 8-4-1995 by the Society to the Commissioner/Secretary to Govt. (Health) J. & K. Jammu in which it was clearly mentioned that the Govt. Medical College, Jammu had already started classes and that any more delay in the decision to start admission process in the Medical College of respondents Nos. 2 and 3 would be detrimental to the interests of the students community. It was requested that the State Govt. may immediately take steps for the start of admission process. This letter was followed by a communication from the Trustee of the Society on Sept. 12, 1995 to Shri A. M. Moses, Advisor to State Govt. (looking after Health and Medical Education Department) with the request that the State Govt. should frame rules and issue guidelines for admission in the private colleges of the State so that the students are not made to suffer and that the admission process gets underway. The 3rd communication was sent on 5th October, 1995, once again by the Trustee of the Society to Shri A. M. Moses, Advisor in which his attention was invited to the earlier communication of 12-9-1995 and it was pointed out that the State Govt. had not even sent acknowledgment. The Govt. was requested to issue the guidelines so that the admission process gets started. The last communication on record was issued on 17-10-1995 by the Trustee of the Society to the Commissioner-Secretary to Government, Health and Medical Education wherein, the State Govt. was once again requested to take immediate necessary measures to enable the Society to start the admission in the college at once. It was pointed out that any delay in making admission would not only cause undue loss to the institution, but also a large number of students would loose their academic year. One important fact which cannot escape notice at this stage is that during the relevant and crucial period, the Competent Authority constituted by the State Government for conducting selection process for admission in the professional colleges of the State, including the Medical College run by the State Govt. started procedure for admission for the academic year 1995 by issuance of a notification about 3-4 months back whereby applications from eligible candidates were invited for appearance in the entrance examination to be conducted by the Competent Authority for admission to 1st Year MBBS course in the two Medical Colleges in Jammu and Srinagar run by the State Government. That selection process has since been completed by the issuance of a notification about a fortnight back whereby the admissions have been finalised and notified and, as has been reported by the parties, in fact the students have started taking admissions in the two Medical Colleges after their selection. What is of importance to note that during this entire selection process, right from the issuance of the notification by the Competent Authority inviting applications from deserving students, till its culmination, the State Govt. totally remained in different and unconcerned about the allocation of seats to the private Medical Colleges. This was despite the fact that the State Govt. all along knew that the respondent-Private College had started functioning and that the respondents were awaiting instructions and guidelines from the State Govt.'
13. Thus the learned single Judge with the above observations reached a conclusion against the State Govt. regarding the finding that the State Govt. failed to respond to the representations made by the respondents Nos. 1 and 2 in either framing the Rules or guidelines in terms of the scheme expounded in Unni Krishnan's case, for making selection of the candidates to the Private Medical College. Thus the learned single Judge proceeded to find fault with the State Govt. and then proceeded further to evolve a different scheme altogether with a view to give relief to the petitioners. It is this finding and the conclusion that is called in question in these appeals by the appellants.
14. The argument advanced in this context both by Mr. Verma learned senior counsel and Mr. Jalali, learned Advocate General, challenging the correctness and legality of this finding of the learned Single Judge, is that looking to the main prayer of the writ petitioners, some of the students seeking for the relief, they have sought for a writ of mandamus against the State Govt. by way of a writ of mandamus to enable the State Govt. to fall in line with the scheme and to take steps for either framing the guidelines or Rules by way of Statute and to constitute a Committee of Selection on par with the guidelines contained in the Scheme. The submission is that even if the writ Court considering the merit of the writ petition and intending to grant relief to the writ petitioners, at the most the writ court could have granted the relief as sought for by them. On the other hand according to them the learned single Judge has taken a very deviating view proceeding to constitute a committee consisting of four persons keeping away the instrument of instrumentality of the State Govt. which is contrary to the scheme expounded in the judgment of Unni Krishnan (AIR 1993 SC 2178). In the first place according to them the learned single Judge having noticed the scheme expounded in Unni Krishnan's case should not have deviated from the guidelines contained therein and, secondly the learned single Judge had no jurisdiction to constitute a Committee keeping away the State Govt. for making selection of the candidates, which is not only unsustainable in law but contrary to the object sought to be achieved in the scheme. Therefore, they submit that the view taken by the learned single Judge in proceeding to evolve a scheme incompatible with the scheme evolved in Unni Krishnan's case, therefore the said scheme is liable to be set aside.
14-A. Contrary to this argument of the learned counsel for the appellants, the argument advanced by senior counsel, Mr. Rohatgi and Mr. Beigh along with other counsel opposing the appellants is that if the State Government of J. & K. failed to take action promptly either to frame the guidelines or Rules constituting a committee for selection as contemplated in the scheme of Unni Krishnan and with a view to save the valuable time of a large number of students to enable them to get into the Medical College on par with the students entering in the Government Medical College at the relevant point of time, there is nothing wrong or illegal in the approach of the learned single Judge in having constituted a Committee of four persons for making selection. In the absence of any mala fides alleged and established against the nature of the selection made by this Committee, the appellate Court need not find fault with the said approach of the learned single Judge in proceeding to constitute a committee for doing the needful.
15. Their further argument is that in view of the law laid down by the Supreme Court a public duty is cast upon the State Govt. to have taken prompt action to frame the guidelines or Rules in that behalf. It is open to the High Court with a view to give relief to the petitioners to find an alternative remedy to save the career of the students and therefore the method adopted by the learned single Judge constituting a committee of four persons and issuing instructions to that Committee to make selections, cannot be said to be either improper or illegal.
16. Let us consider this very important aspect to answer the first four questions.
17. By a careful consideration of the decision rendered by the Hon'ble Supreme Court in Unni Krishnan's case (AIR 1993 SC 2178), we can gather that the main object of this decision is to put an end to the evil of Capitation fee. The idea behind the scheme is to eliminate discretion in the management altogether in the matter of admission. It is the discretion in the matter of admission that is at the root of the several evils complained of. It is the discretion that has mainly led to commercialisation of education. 'Capitation fee' means charging or collecting amount beyond what is permitted by law; all the Acts have defined this expression in this sense. We must strive to bring about a situation where there is no room or occasion for the Management or any one on its behalf to demand or collect any amount beyond what is permitted.
18. Thus in paragraph 169 amplifying the object of the scheme evolved in paragraph 170, their Lordships observed as follows:
'Our attempt in evolving the following scheme precisely is to give effect to the said Legislative policy. It would be highly desirable if this scheme is given a statutory shape by incorporating it in the rules that may be framed under these enactments.'
19. Therefore, in the light of the observations of the Supreme Court in the decision, it is obvious that the underlying policy of the scheme is to enable the appropriate Govt. to follow the guidelines contained in the scheme not only for the purposes of recognising, affiliating of Private Colleges, but also to implement the scheme for granting of permission or recognition as the case may be to a professional college. Thus the scheme has been confined for the present only to the professional Colleges.
20. The expression 'appropriate authority' used in the scheme means the Government, University or other authority as is competent to grant permission to establish or to grant recognition to a professional college. The expression 'Competent authority' in this scheme means the Government/ University or other authority, as may be designated by the Government/University or by law, as is competent to allot students for admission to various professional colleges in the given State.
21. Thus therefore what could be gathered from the part of the scheme is that the Competent authority for making selection of the students for filling the seats in Medical College or Engineering College is the Gdvt./ University or any other authority as may be designated by the Govt./University or by law as is competent to allot admission to the students for various professional colleges in the State. To emphasise it is unthinkable or inconceivable in the light of the definition clause in the scheme that whether there could be any scheme constituting a competent authority exclusively by certain private individuals keeping away the instrument of instrumentality of the State Govt. for purposes of making selection of the students to the various professional colleges. Our answer is a simple 'No', inasmuch as in the light of the scheme expounded by the Hon'ble Supreme Court) in Unni Krishnan's case (AIR 1993 SC 2178), it is not possible to contribute to the views expressed by the learned counsel in the instant cases that there can be a Competent authority for making selection of the students to the Medical College without involving the State Govt. or University or any authority that can be designated only by the Govt./ University or by law. In other words without involving the authorities of the State Govt. it is not possible to arrive at a conclusion that the Court can constitute a competent authority for making selection of the students keeping away the authorities of the State Government and conferring these powers on certain private individuals however high or experienced they may be in the said field.
22. It is needless to say that in view of the law laid down by the Supreme Court in Unni Krishnan's case (AIR 1993 SC 2178), learned counsel on both the sides do agree that there is no fundamental right as such for a private management to run a private Medical College by virtue of such right, inasmuch as it is held unequivocally that a public duty is cast upon the State Govt. to provide educational facilities for all citizens up to the age of 14 years but thereafter the private educational institutions can supplement such right to provide higher education in the professional colleges subject to the condition that such private educational institutions must do so only after obtaining affiliation, recognition and permission to do so in accordance with law. There is no difficulty to hold that such rights are available to Professional Colleges in terms of the law laid down by the Supreme Court in the said judgment. In this context an argument is advanced that the first respondent-Society has been registered by the Registrar of Societies on 21-10-1989 (Annexure Ex. R-1 to the writ petition) with a view to establish a private Medical College with an hospital at Jammu with the name and style of Satguru Shri Chander Medical College and Hospital. The Govt. allotted 250 kanals of land at the outskirts of Jammu by way of lease for that purpose. It is further seen that by a communication dt. 24-12-1993 (Annexure R. 8 to the writ petition), the Additional Secretary to Govt. Department of Health recommended the Registrar of the Jammu University to accord affiliation of the University to the College in question. It is the case of the respondents 1 and 2 that they obtained affiliation of the University of Jammu (no date of affiliation is given). It is further seen that in the course of judgment of the learned single Judge, though at page 3 of the judgment he has referred to the eventualities of several phases including the averments of the writ petitioners that the respondents 1 and 2 had obtained affiliation of the University of Jammu, the judgment nowhere indicates that in fact such an affiliation had been obtained and a copy of the certificate of affiliation has been produced. However, one of the documents produced by the respondents in a compilation along with the statement of objections in the appeal, a copy of letter dated 12-10-1994 duly signed by Sh. Ram Sarup, Director, Colleges Development of University of Jammu is produced on page 29. This document is extracted hereunder:
'University of Jammu
CDC/94/V/2859
Oct. 12, 1994
CERTIFICATE
As the State Government has already accorded permission for establishment of the proposed Acharya Shree Chander College of Medical Sciences & Hospital at Jammu and the Board of Directors of Jammu Development Authority have also approved allotment of 250 kanals of land for the purpose, the University of Jammu (within whose jurisdiction its location falls) consents to affiliation of the proposed college subject to fulfilment of the statutory requirements of the University.
Sd/-RAM SARUP
Director, Colleges Development'
It is seen therefrom that the authority, the Director has issued only a certificate as can be gathered from the said document and that it discloses that the 'University of Jammu consents to affiliation of the proposed college subject to fulfilment of the statutory requirements of the University'. It is therefore a pertinent fact to be considered in the instant case. Undoubtedly, by a careful consideration of the document dated 12-10-1994 what it directly says is that the University of Jammu will consider on fulfilment of the statutory requirements of the University, the grant of affiliation, though the letter indicates the consent to affiliation. At the outset it is clear that the document nowhere says that the affiliation is granted and, secondly on fulfilment of certain statutory requirements, the University would consider the grant of affiliation. Therefore, the irresistible presumption is that the affiliation is yet to be granted by the University of Jammu to the college in question. Again we will have to see whether the so called consent of affiliation to the proposed college issued by the Director, College Development would comply with the requirements of law to enable the Management to start the college. We perused Chapter IV of the University of Jammu Calendar, 1976 containing the statutory requirement of law in relation to grant of affiliation of any college to the University of Jammu. Chapter IV deals with the affiliation and recognition of colleges and other institutions. The Statute under this Chapter provide several requirements for granting affiliation. Rule 14 of the Statute provides as follows:
' 14. Application for grant of affiliation to new- colleges/institutions shall reach the Registrar by October 1st of the year preceding the one in which it is proposed to start the classes.
... ... ... ...'
Rule 16 provides:
'The application received on or before the due date shall be placed by the Registrar before the Syndicate and if the application is found in order, the Syndicate shall refer it to the Board of Inspection. The Board of Inspection shall appoint a committee for the inspection of the institution. The report of the committee shall be placed before the Syndiate with the recommendations of the Board of Inspection for final orders.'
23. Unfortunately in the absence of the University of Jammu having been impleaded a necessary party either in the writ petition or in the appeals, we have no benefit of getting the correct information from the Registrar of the University who is the competent authority to supply these facts. However, at the request of the Court the Registrar appeared through his counsel, Mr. D. S. Thakur. We have heard him. He has produced a copy of the revised draft statute prepared by the Syndicate and approved by the counsel of the Jammu University during 1987 for examination, to be adopted for providing degree of MBBS as per Annexure-I, We will refer to this aspect after sometime. But so far as the fulfilment of the requirements of Rules I4and I6of theStatute governed for obtaining affiliation of the University to the College is concerned, no documentary evidence whatever evidencing the compliance of requirement of Rule 16 is produced. Therefore, we presume that in the absence of a decision to be taken up by the Syndicate of the Jammu University in compliance with the requirements of law governing the subject, no affiliation could be granted to the College in question. Secondly by a perusal of the authorities of the University as given in Statutes, it is seen that there is no person by name Director, College Development who can act either for the University or for the Competent Authority who could grant affiliation to the College. Therefore, we hold the Director, College Development as not competent to issue either the consent letter or the consideration of affiliation to the University. The resultant position is that as on today there is no affiliation granted to the College in question by the University of Jammu.
24. Again it is needless to point out that the law is very clear on this point inasmuch as in the scheme expounded in Unni Krishnan's case (AIR 1993 SC 2178) it is abundantly made clear that obtaining affiliation is a condition precedent for a private College or for that matter a Govt. College to start a new course. Therefore, without the affiliation the respondents I and 2 would not have started the College in question. It is nobody's case that an application seeking for affiliation had been presented, seeking affiliation on 1st October of the relevant year with a view to start academic course and classes of the following year (1995). In that view of the matter we wonder how the Medical Council of India and Govt. of India, the competent authorities have granted letter of intent and permission to start Medical College, though admittedly these authorities vide their communications dated 6th October, 1995 and 9th October, 1995 have granted permission for establishment of a private college at Jammu with certain conditions. Neither the recommendations of the Medical Council of India under Section 10-A nor the letter of permission dated 6-10-1995 of the Govt. of India has in fact referred to the production of certificate of affiliation to the college in question by the University of Jammu anywhere in their correspondence. We will leave this aspect at that.
25. Coming to the real question with a view to enable us to give our findings in answer to the first four questions that we have raised, so far as we have referred to the salient facts of the case culminating in the judgment and order constituting a 'competent authority' for making selection of the candidates to the Medical College. We have already observed that regard being had to the law laid down and the scheme expounded in the course of the judgment of the Supreme Court in Unni Krishnan's case (AIR 1993 SC 2178), we have recorded our finding that it is inconceivable to have a Committee of four persons without involving the authorities of the State Govt. and the University for making selection of the candidates. In this context the argument advanced is that there had been certain delay on behalf of the State Govt. either for framing rules or for taking steps in terms of the scheme. It is stated that on receiving recognition and permission by the Govt. of India and the Medical Council of India under Section 10-A of the Medical Council Act on 9-10-1995, a representation was made to the State on 17-10-1995 which was received by Mr. Mosis, Advisor to the Governor in the Department of Education. Since there was no response from the State Govt. writ petition had been filed on 21-10-1995 by certain students who had presented their applications before respondents Nos. 1 and 2 seeking the admission. In this connection, Mr. Jalali, learned Advocate General of the State of J. and K. submits that at the outset State of J. and K. has not been in receipt of the copies of the communications either from the Medical Council of India or from the Govt. of India granting recognition or permission to start the private College though it may be true that such communications must have been sent by the authorities, but they were in transit before filing the writ petition before this Court. He further submits that it is true that the Govt. of Jammu and Kashmir did recommend the case of the College founded by the respondents 1 and 2 for purposes of granting recognition and permission, but it is not true according to the learned Advocate General that the State had been kept duly informed of the development at the hands of Medical Council of India or the Govt. of India. For that matter, according to him till 21-10-1995 when the writ petition had been presented, the State had been kept in darkness. The State did not receive the copies of communication in that behalf.
25-A. The alternative argument advanced by the learned Advocate General in support of the appeal is that a draft of the Statutes had been prepared falling in line with the decision rendered in Unni Krishnan's case for regulating admissions to the Professional Colleges including the private Medical College, other institutions imparting Nursing, Pharmacy and other courses allied to medicine run by the State of J. and K. There had been some delay in getting the consent of the competent authority and that SRO-46 dated 5-2-1996 had been issued after obtaining the consent of the Governor of the State was gazetted and published on 5-2-1996. Therefore, according to him, there was no time lost on the part of State Govt. in taking appropriate action in tune with the scheme in Unni Krishnan's case (AIR 1993 SC 2178).
26. Another alternative argument advanced by the learned Advocate General is that presuming for purposes of argument, but not conceding there had been certain inaction on the part of the State Govt. in this connection, but that does not mean that this Court while exercising power of judicial review under Article 226 of the Constitution of India read with Section 103 of the Constitution of Jammu and Kashmir could legislate in the absence of the Statute covering a specific area in the State of J. and K. In other words his submission is that the learned single Judge could not have proceeded to constitute a competent authority contrary to the law laid down by the Supreme Court. He has pointed out the view taken by the Hon'ble Supreme Court in Asif Hameed v. State of J. and K., reported in AIR 1989 SC 1899. In that case a Division Bench of the Hon'ble Supreme Court dealing with the power of judicial review and to strike down the State action as unconstitutional and illegal and referring to the scope thereof on Article 226 of the Constitution of India read with Article 162 of the Constitution of India held as follows:
'When a State action is challenged, the function of the Court is to examine the action in accordance with law and to determine whether the legislature or the executive has acted within the powers and functions assigned under the Constitution and if not, the Court must strike down the action. While doing so the Court must remain within its self-imposed limits. The Court sits in judgment on the action of a co-ordinate branch of the Government. While exercising power of judicial review of administrative action, the Court is not an appellate authority. The Constitution does not permit the Court to direct or advise the executive in matters of policy or to sermonize qua any matter which under the Constitution lies within the sphere of legislature or executive, provided these authorities do not transgress their constitutional limits or statutory powers.'
(Please see para 19)
Indeed referring to the powers of the State Govt. in relation to Medical education the Hon'ble Supreme Court further held as follows:-
'The legislature of Jammu and Kashmir having not made any law pertaining to medical education, the field is exclusively to be operated by the executive under Article 162 of the Constitution of India read with Section 5 of Jammu and Kashmir Constitution. When the Constitution gives power to the executive Government to lay down policy and procedure for admission to medical colleges in the State then the High Court has no authority to divest the executive of that power. The State Government in its executive power, in the absence of any law on the subject, is the competent authority to prescribe method and procedure for admission to the medical college by executive instructions but the High Court transgressed its self-imposed limits in issuing the aforesaid directions for constituting statutory authority. We would make it clear that the procedure for selection laid down by the executive as well as the selection is always open to judicial review on the ground of unreasonableness or any other constitutional or legal infirmity.'
27. In the light of the above decision of the Supreme Court, the submission of the learned Advocate General is that regard being had to the exigency and urgency of the matter, at the most even if the writ Court were to have reached a conclusion that a case is made out for relief in favour of the writ petitioners, the writ Court could have issued a writ of mandamus to the State Govt. for framing necessary guidelines or statutes in tune with the scheme expounded in Unni Krishnan's case (AIR 1993 SC 2178). However, according to him it is not open to the learned single Judge to have proceeded to constitute the competent authority as defined in Unni Krishnan's case. Keeping away the authorities of the State Govt. and the University in the said competent authority for making the selection is unthinkable according to him. He, however, - submits that according to the Statutes now provided in SRO-46 dated 5-2-1996, the State Government has now provided necessary machinery for making selection of the candidates to the private medical colleges in the State of J. and K, If that Statute is followed which is in tune with the scheme of Unni Krishnan, there is no difficulty for this Court to grant relief in favour of the writ petitioners. Learned Advocate General has pointed that in the course of the SRO-46 of 1996 the Statute also provides for reservation of the candidates representing persons claiming reservation in the State of J. and K. According to the Constitution, where as the selection now made by the Committee constituted by the learned single Judge in his order under appeal, there is no reservation policy followed whatsoever. We will refer to the Statute in SRO-46 dated 5-2-1996 in the course of this judgment.
28. One of the arguments advanced by the learned senior counsel Mr Rohtigi and Mr. Beig in support of the order under appeal is that though the competent authority constituting the Committee of four persons by the learned single Judge in the course of his order, not including the authorities of the State Government or the University, nonetheless it would subserve the purpose of making selection of the candidates without effecting the scheme of Unni Krishnan inasmuch as according to them the four persons constituting the Committee, competent authority, are experienced in their own field representing education, honesty, integrity etc. Therefore, if selection is made in tune with the scheme of Unni Krishnan, there is no reason why the appellate Court should disturb such selection, since these candidates selected by the said Committee have already paid their fee and joined the College. Therefore, it is submitted that the appellate Court may mould the relief in favour of the writ petitioners and other who have joined the College as on today. This submission is opposed to by the appellants and the State Government inasmuch as according to them there are some serious allegations of mala fides made against some of the members constituting the competent authority and Committee including the nature of selection made by them which would not stand the test of scrutiny of the law as enunciated in Unni Krishnan's case (AIR 1993 SC 2178).
29. Both the learned counsel, M/s. Rohtigi and Beig with a view to drive home their point have placed strong reliance upon the observations made by a Division Bench of the Hon'ble Supreme Court in Institute of Human Resources Development v. T. R. Rameshkumar, AIR 1995 SC 1587. The facts of the case briefly stated as arising out of the case before the Supreme Court are that two Colleges said to have been set up in the State of Kerala - one started by the Institute of Human Resources Development for Electronics (hereinafter referred to as 'HRDE') located at Chenganngur and the other started by Lal Bahadur Shastri Engineering Research and Consultancy Centre (hereinafter referred to as LBS Centre) located at Kasargod, a backward area in the State of Kerala in the erstwhile Malabar District. These two Colleges had been set up as self-financing institutions/colleges muter the control of Govt. of Kerala. The question arose whetner the scheme framed by the Hon'ble Supreme Court in the case of Unni Krishnan J.P. v. State of Andhra Pradesh, AIR 1993 SC 2178, applied to these Colleges? Answering the said questions at paragraph 14 the Division Bench of the Supreme Court has observed :
'It has been strongly urged before us by the respondents that such a departure from the scheme in Unni Krishnan, 1993 AIR SCW 863, cannot and should not be permitted. In the first place the scheme in Unni Krishnan does not strictly apply to the case which is before us. Nevertheless, we have applied the underlying principles of the scheme in Unni Krishnan to the scheme which is before us and have found that this scheme broadly meets the aims and objectives propounded in Unni Krishnan. .........'
In the same paragraph, there is the following observation:
'This Court has itself not considered the scheme in Unni Krishnan as sacrosanct.'
30. Based upon this observation of the Supreme Court, as argument has been advanced by the learned counsel appearing for respondents 1 and 2 that in view of the observations of the Division Bench of the Supreme Court in T.R. Ramesh Kumar's case (AIR 1995 SC 1587) (supra), it is not mandatory to follow the scheme in Unni Krishnan invariably in all cases. We do not agree with this submission of the learned counsel inasmuch as at the outset two Colleges set up in Kerala have been directly controlled by the Govt. of Kerala. Therefore, they are not strictly considered to be Private Colleges, whereas the scheme expounded in Unni Krishnan's case (AIR 1993 SC 2178) by the Supreme Court is applicable exclusively to the private professional Colleges. Therefore, the observations made by the Division Bench of the Supreme Court T. R. Ramesh-kumar are of no avail to the respondents.
31. One of the arguments advanced on behalf of the respondents in the appeal is that since the writ Court with a view to save the career of the students having constituted the Committee and that Committee having made selection based upon the marks secured by them in the viva voce examination, the selected students have already been admitted and this Court must take into consideration the equity arising out of such admission in their favour, therefore, even if there are certain flaws in the Selection, the appellate Court need not disturb and set aside the selection. To drive home this aspect of the matter certain authorities have been placed before us.
32. In Dr. Ajay Kumar Agrawal v. State of U.P., AIR 1991 SC 498 at paragraph 13, referring to the facts and circumstances of the case, the Division Bench of the Supreme Court reached at the following conclusion:
'We cannot lose sight of the fact that on account of the irregular steps taken by the State of Uttar Pradesh, a group of candidates have been invited to sit at a selection examination before they have acquired the requisite qualification and have been selected for admission. These candidates who are before us have been anxiously waiting for their admission. Similarly there is a group of students who have had the full qualification and has been selected.'
Again their Lordships have held:
'Specialisation is the main basis of Post-Graduate study. Every candidate has indicated his or her preference in regard to specialisation. We are of the view that admissions in respect of about 549 seats said to represent 75% of the State quota in the seven Medical Colleges for the session 1990-91, should, therefore, be completed on the basis as indicated below:
1. ...................................
2. ...................................
At paragraph 15 the conclusion reached is as follows:
'Keeping their respective merit in view, we have waived the requirement of completion of the internship as a condition precedent to admission into the Post-Graduate Degree. We would like to make it clear that hereafter no one shall be admitted without complying with the requirements of the Act, the Rules and the Regulations referred to above and no State Government or authority running a Medical College would be permitted to avoid compliance of the law.'
33. Therefore, in view of the foregoing, the argument is that the Court may take a liberal view and permit the students who have already been admitted to continue their studies in the said private College.
34. At the outset it is not possible to accede to this submission for the simple reason that the facts and circumstances including the questions of law that arise for consideration in Dr. Ajay Kumar Agrawal's case (AIR 1991 SC 498) are different from the real questions arising for consideration in the instant case. The question of fixing of cut-off date for completion of internship beyond date for selection examination and its legality was called in question in that case. Their Lords-ships of the Supreme Court considering the background and the inaction on the part of the State in fixing the cut-off date for completion of internship beyond the date of selection examination for post-graduate MBBS degree course, with a view to save their career, the conclusion had been reached by them in that view.
35. Contrary to this contention on behalf of the respondents, our attention was drawn to the decision rendered by the Supreme Court in Gurdeep Singh v. State of J. & K., 1995 Supp (I) SCC 188: (AIR 1993 SC 2638), where the Division Bench of the Surpeme Court considering the nature of the selection made by the competent authority for the Medical Colleges of J. and K. held as follows;
'What remains to be considered is whether the selection of Respondent 6 should be quashed. Unduly lenient view of the Courts on the basis of human consideration in regard to such excesses on the part of the authorities, has served to create an impression that even where an advantage is secured by stratagem and trickery, it could be rationalised in Courts of law. Considerations of judicial policy also dictate that a tendency of this kind where advantage gained by illegal means is permitted to be retained will jeopardise the purity of selection process itself, engender cynical disrespect towards the judicial process and in the last analysis embolden errant authorities and candidates into a sense of complacency and impunity that gains achieved by such wrongs could be retained by an appeal to the sympathy of the Court. Such instances reduce the jurisdiction and discretion of Courts into private benevolence.......
(Please see para 12) (of SCC) : (Para 9 of AIR):
Therefore, in the light of the abovesaid decision of the Supreme Court, it is not possible to hold that merely because selection is made and the candidates selected, have been admitted the College, irrespective of the nature of selection based upon which the admission is made, such admission must be sustained.
36. Two legal contentions have been urged by Mr. Verma, learned Sr. counsel in support of the LPA 8/1996 challenging the correctness and legality of selection made by the Committee. According to him the learned single Judge in the course of his order proceeded as though there was the consent of both the parties to pass such an order.
We will refer to that part of the order briefly as under:
'This suggestion was put forth by the Court and all the parties readily agreed to the proposal.
. In the light of facts stated hereinabove, the discussion and legal aspects of the case and the position which has emerged on consideration of respective stands taken by the parties as also the fact that despite opportunities, the State has chosen not to contest this petition (presumably because it has nothing to controvert, factually, legally or otherwise) keeping this petition pending, order formally admitting it to hearing would not serve any useful purpose In my view that shall be a mere ritualistic exercise. The circumstances are such that the petition deserves to be finally disposed of at this very stage. .........'
37. The legal contentions raised by Mr. Verma are that (i) the State is not a consenting party to the proposal put forth by the Court nor did it had occasion to appear and assist the Court in the writ petition, as at that stage the writ petition was yet to be admitted and it was premature for hearing and final disposal. Therefore, the learned single Judge could not have proceeded to say that there is consent by all the parties to the writ petition. Secondly, he urged that the Court could not have assumed jurisdiction to pass such an order by consent of the parties. Such jurisdiction cannot be assumed nor could it be conferred on the Court when such jurisdiction is lacking in the eye of law. To substantiate his argument, he brought to our notice that Article 162 of the Constitution of India confers necessary executive power in the State Govt. to deal with such questions. That such an executive power cannot be taken away nor is it open to the learned single Judge to legislate on this question in the absence of the rules or guidelines required to be framed by the State Government in the light of Unni Krishnan's case (AIR 1993 SC 2178). As to the first limb of the argument, he cited the authority of the Supreme Court in Prithvichand Ramchand Sablok v. S.Y. Shinde, AIR 1993 SC 1929. Dealing with the provisions of Order 23, Rule 3 of the Civil Procedure Code and passing of the consent decree by the Court, referring to the duty of the Court in that behalf the Division Bench of the Supreme Court held as follows:
'A decree passed on the basis of a compromise by and between the parties is essentially a contract between the parties which derives sanctity by the Court superadding its seal to the contract. But all the same the consent terms retain ail the elements of a contract to which the Court's imprimature is affixed to give it the sanctity of an executable Court order. The Court will not add its seal to the compromise terms unless the terms are consistent with the relevant law. .....'
(Please see para 4)'
38. In the absence of the State Govt. being a party to the so called consent, referred to by the learned single Judge in the course of his order, at the outset it is not possible for the learned single Judge to have proceeded in the manner in which he has concluded to dispose of the writ petition issuing the directions in that behalf which, according to the learned counsel are contrary to the scheme expounded by the Supreme Court in Unni Krishnan's case.
39. Another limb of the argument of Mr. Verma is that awarding of 50% marks toward interview test in the selection of candidates for professional Colleges is contrary to the law laid down by the Supreme Court. In this context learned counsel for the respondent placed very strong reliance upon a decision of the Supreme Court in Abid Asghar v. State of Bihar, AIR 1994 SC 141. In that case the Division Bench of the Supreme Court referring to the provisions of Articles 311 and 16 of the Constitution held that selection made as per past practice by allocating 50% marks for academic performance and 50% for interview, such a procedure is not arbitrary.
40. Whereas the authority on which Sh. Verma placed strong reliance is in Anzar Ahmad v. State of Bihar, (1994) 1 SCC 150: (AIR 1994 SC 141). The Division Bench of the Hon'ble Supreme Court considering such a question held as follows (Para 14 of AIR):
'Applying the aforesaid decision in Ashok Kumar Yadav case (AIR>J987 SC 454) this Court has held that in the matter of selection for two posts of Excise and Taxation Inspectors on the basis of written test and viva voce test where candidates are fresh from College/School the allocation of marks for viva voce test should not exceed 15 per cent.'
Thus there is a good deal of difference between allocation of marks in the viva voce and written examination and in the second case where there is no written examination; secondly if such an interview is to be held for purposes of making selections to the professional Colleges, the view taken by the Supreme Court is that it shall not be more than 15% of the total marks.
41. Under these circumstances and considering the several aspects in the foregoing paragraphs, we are of the view that the method adopted by the learned single Judge in proceeding to constitute a competent authority for making the selection of the candidates is not in tune with the law laid down by the Supreme Court and the scheme expounded in Unni Krishnan's case (AIR 1993 SC 2178).
42. There is one more aspect which we have got to consider in this case.
Referring to the right of education available to a citizen of India the Hon'ble Supreme Court while considering the directive principles of State policy in Part IV and reconsidering the decision rendered in Mohini Jain's case, AIR 1992 SC 858 held that:
'Private institution does not become instrumentality of the State because of the mere fact that it has received recognition or affiliation from the State.'
There is no fundamental rule as such for the respondents 1 and 2 to institute and start a private College of their own merely because they received recognition or affiliation from the State. Dealing with the right of education in the said judgment (Unni Krishnan), the Supreme Court observed:
'But the States obligation to provide education is not absolute but relative.'
In other words according to the decision of the Supreme Court in Unni Krishnan, (AIR 1993 SC 2178), though a public duty is cast upon the State Govt. to provide education, referring to the right of private educational institutions, it held that such private educational institutions will supplement the duty of the State Govt. and not to sub-plant the same. It is further held in the same decision (Unni Krishnan) that the right to run educational institutions though available to a society or a trust, but imparting education cannot be a trade or business inasmuch as education cannot be a commercial activity.
43. Keeping the above solitary principles in view, we will have to consider whether there is any remiss or inaction on the part of the State Govt. before the writ petition had been presented before this Court by certain candidates-students.
Mr. Jalali, learned Advocate General brought to our notice that even before the decision in Unni Krishnan, (AIR 1993 SC 2178) was rendered by the Supreme Court, when two Govt. Colleges were functioning, one in Srinagar and another in Jammu, there had been a competent authority for making selection of the candidates to the professional Colleges. Respondents as on the date when the writ petition had been presented, before this Court, that competent authority was functioning. It is now brought to our notice that by virtue of the Notification having been issued on 6-7-1995 when the representation of the respondents 1 and 2 had been pending consideration before the State of Jammu and Kashmir, applications have been called for filling up of the good number of seats in these two Colleges run by the Govt. Indeed according to the Advocate General the competent authority constituted for this purpose had been holding the common entrance examination and making selections. This is in accordance with SRO-1126 of 1993 read with SRO-126 of 1994 dated 28-6-1994 along with SRO-138 of 1994 dated 26-7-1994. We have perused the copy of the Information brochure of the entrance examination for admission to MBBS/BDS course in Session 1995 in Govt. Medical Colleges, Jammu/Srinagar and Govt. Dental Medical College, Srinagar. Thus, therefore, according to Mr. Advocate General, the present competent authority constituted by the State Govt. had been available as to the date of the representation made by respondents 1 and 2 for initiating process for making selection of the candidates for the present private Medical College as well, though the guidelines and rules regarding the private medical colleges in the State of J. and K. had yet to be framed by the State. In other words according to the learned Advocate General though representation had been made a little earlier than 17-10-1995 seeking for framing of the rules regarding admission to private medical colleges started by respondents 1 and 2, till that date it was not known to the State Govt. that the Govt. of India, Ministry of Health and Family Welfare in their letter No. U.12012/48/94-ME (P), dated 6-10-1995 granted the letter of intent for starting the private medical college by Annexure R-l and R-2. In other words the submission of learned Advocate General is that till 17-10-1995 (though a copy of the representation was received later on by the State Govt.), the State was not aware of the approval given by the Govt. of India and Medical Council of India. He submits, therefore, though a duty had been cast upon the State Govt. to initiate the procedure for issuing guidelines or rules for purposes of admission to such medical colleges, it is only after obtaining of the approval by the Govt. of India and the copy had been communicated to the State Govt., action had to be taken by the State to fall in line with the scheme in Unni Krishnan's case (AIR 1993 SC 2178). As a matter of fact, in this context he submits that the draft rules had been made and it was sent for the consent of the Governor of J. and K. and that there has been some delay, though the final rules came to be issued in the month of February, 1996 in SRO-146 of 1996. Another submission of Mr. Jalali in this context is that not only steps will have to be taken by the State Govt. for framing rules in regard to the admission of the candidates in the Medical Colleges, but also the State will have to constitute a Committee for fixing the scale of fee payable by such students in the private medical colleges as found in the scheme of Unni Krishnan. He submits that it needed sometime for the State Govt. to take appropriate action in this behalf and in the meanwhile writ petition had been presented before this Court. There is no such controversy about these facts, not to accept the factual submissions made by the learned Advocate General.
44. Therefore, if we consider these aspects, two things are made clear;
(i) That if there is already a competent authority constituted by the State Govt. for making selection of the candidates to the medical colleges run by the Govt. the same competent authority could have been availed of when notification came to be issued calling for applications in July, 1995, except for one reason as on that date respondents 1 and 2 had not obtained recognition and approval by the competent authority in the Govt. of India. Perhaps we believe that this was the reason why the State could not extend the benefit of this machinery for making selection of the candidates to the present private Medical College.
(ii) Secondly, it is seen that in the light of the scheme expounded by the Hon'ble Supreme Court in Unni Krishnan's case, (AIR 1993 SC 2178) not only certain guidelines are required to be framed by the State Govt. by way of rules, but also it needed, to constitute a Committee underlying the scale of fee payable by the students in the private medical colleges as on that day. That Committee was not in existence.
45. Let us presume that there had been some delay on the part of the State Govt. to act promptly and without wasting of time, even then till 9-10-1995, the respondents 1 and 2 could not have started the College because it is only on that date (9-10-1995) that they were able to secure necessary orders from the Govt. of India and Medical Council of India (Necesssary approval and recognition). In that view of the matter, it is only after 17-10-1995 when a communication was sent to the State Govt. stating that they have received such recognition and permission of the competent authority, that the Govt. should have taken action to frame the necessary guidelines. It is, therefore, unthinkable that on 21 -10-1995 writ petition had been presented before this Court, even without notice to the State Govt. which is a requirement under the CPC, that the State should have taken action to frame the necessary guidelines. We fail to understand why such hasty steps had been taken by the petitioners to approach this Court seeking for the relief.
Secondly, we believe that even if the writ Court having been satisfied that there is a prima facie case made out by the writ petitioners, then certainly the writ Court should have issued a writ of mandamus to the State Govt. as prayed for in the writ petition.
We are of the opinion that if such a writ of mandamus have been issued to the State Govt. perhaps the State Govt. should have acted to comply with the directions of the Court. On the other hand the Court proceeded to dispose of the writ petition hastily, taking altogether a different approach from the scheme expounded by the Hon'ble Supreme Court in Unni Krishnan's case (AIR 1993 SC 2178).
46. Referring to the law laid down by the Supreme Court in Unni Krishnan's case it is made clear that right to be admitted to a college is not a fundamental right, nor is it available to any such citizen of the country. At the most under Article 226 of the Constitution, a citizen, as the petitioners shall be entitled for consideration for admission into such professional colleges.
47. It is made clear that in the absence of statutory provisions made available by the State Govt. in regard to selection and admission of private professional colleges, the scheme expounded by the Hon'ble Supreme Court in Unni Krishnan's case (AIR 1993 SC 2178) will have to be followed. There is no alternative. Indeed this was the view taken by the learned single Judge in the first part of the judgment rendered by him. Unfortunately in the operative portion of the order the learned single Judge deviated from that scheme, in, his anxiety to give relief to the petitioners. Secondly, there is no second opinion that in the light of Article 141 of the Constitution of India, any decision to be rendered by any court in the country, must be in aid of the Supreme Court and that the law laid down by the Supreme Court in exercise of powers under Article 142 of the Constitution of India must be considered to be a law. In this context there is no alternative or other way open, that being so any direction given by any court, which is contrary to such law of the Supreme Court and not in compliance of the requirements of Article 141 of the Constitution, must be held to be incorrect and unconstitutional.
48. Although there are certain material placed before us in regard to the allegations of mala fides made against certain members of the committee attacking the selection made by them pursuant to the directions of the court, we refrain from making any observations, in that behalf. Be that as it may, the ultimate object of the court is to guide not only the private management but also hundreds of students seeking admission to such colleges in the proper line so as to enable them to pursue their education and to fulfil their goal. This must be done not resorting to certain arbitrary method to provide for education into the private medical colleges, but in the light of the specific, guidelines contained in the scheme. It is enough for us to say that in view of the foregoing, it is not possible to sustain the selections made by the committee of four persons constituted by the learned single Judge in the course of the orders. Therefore, we have no alternative but to set aside the said selection.
49. We will take up question No. 6. Dealing with the maintainability of the LPA No. 8/1996 as brought by the appellants challenging the correctness and legality of the order of the learned single Judge in the writ petition, the crux of the argument advanced by Mr. Kohli learned counsel for the respondents taking preliminary objection of the locus standi of the appellants is that since these appellants have not participated in the selection conducted by the committee constituted by the learned single Judge and not having been in the selection list, they cannot turn round and challenge the selections on the ground that the committee is not competent and that they cannot maintain this appeal on that ground.
50. To answer this question, Mr. Verma, learned Sr. counsel submitted that the appeal as brought in LPA No. 8/1996 is not solely on the ground of attack that the Competent authority selecting candidates to the Medical college is invalid in the eyes of law laid down by the Supreme Court in Unni Krishnan's case (AIR 1993 SC 2178), but there is another ground taken why the selection made by that committee is not in accordance with the law muchless, the statute now made by the State of Jammu and Kashmir on 5-2-1996. Another additional ground of attack is that the selection made by that committee is not in tune with the law laid down by the Supreme Court in the scheme. To substantiate his argument, Mr. Verma learned Sr. counsel stated that 64 applications received by the Management had been tagged with the total number of applications which is said to be 176. Out of this total number consisting 64 applications received by the Management, which is not competent to receive, had been considered by the said committee. In addition to this 15 seats have been given to the Management by way of NRI quota. As there was no NRI applicant, which means the Management had the benefit of considering total 64 applicants, plus 15 seats coming to total of 79 out of 100 seats being filled up. This is contrary to law laid down by the Supreme Court.
51. Mr. Kohli learned counsel for respondents 1 and 2 however submits that out of 64 applications received earlier to the filing of the writ petition only 32 persons were able to secure seats and out of 32, 13 payments seats and 11 coming from merit category and 8 from outside J. & K., thus in the order of merit 32 out of 64 applications received by the Management had been able to secure seats. Be that as it may, one thing is clear that in the LPA No. 8/1996 more than one grounds have been taken to attack the selection made by the Committee. Specifically, they have taken the ground that since the selection made by the competent authority is not in accordance with law that selection is invalid. To support this view the decision of this court in Bhim Singh v. D.D. Thakur reported in 1982 Kash LJ 369 : (AIR 1983 NOC 55) had been cited. It is seen therefrom that Justice A.S. Anand as his lordship then was sitting as a single Judge of this court had the occasion to deal with this question, i.e. the locus standi of a person to maintain the writ petition. In the said decision referring to the locus standi of a person, it is ' held:
'Before a party can be said to have locus standi to challenge a particular order before High Court in writ petition the following conditions should be satisfied.
(1) An 'aggrieved person' can apply for a writ of certiorari. However, a person can be said to be aggrieved only if he has suffered a legal grievance in the sense that his interest recognised by law, has been directly and prejudicially affected. A person who is disappointed only of a benefit which he might have received if the order had been differently, unless the denial of the benefit violates his legal rights or infringes some interest inhering in him, cannot be called an 'aggrieved person.'
(2) That a member of the public having sufficient interest can maintain an action, for judicial redress in 'public interest litigation' provided,
(i) There is a public injury,
(ii) The person bringing an action has sufficient interest to maintain an action for Judicial redress of public injury,
(iii) The injury must have arisen from the breach of a public duty or from violation of some provisions of the Constitution and the law, and
(iv) It must seek enforcement of such public duty and observance of such constitutional or legal provision.'
In the light of the law enunciated by this court it is clear that the appellants in LPA No. 8 1996 having not participated in the selection made by the committee constituted by the learned single Judge in his order in the writ petition, having not been selected and if such persons were able to show before this court that the selection was not in accordance with law resulting in the miscarriage of justice or suffered the legal grievance in the sense that his interest, recognised by law, has been directly and prejudicially affected, such persons, certainly can be aggrieved against such exercise. Therefore in that view of the matter we hold that the appellants had the locus standi. We accordingly answer question No. 6 in their favour.
52. We will now take up question No. 5. Mr. Hali learned counsel appearing for the candidates who have secured the quota of NRI, 15 seats out of 100 seats, submits that in the light of the scheme expounded by the Hon'ble Surpeme Court in Unni Krishnan's case, (AIR 1993 SC 2178) once NRI quota having been filled up by the Management, such quota cannot be disturbed on any ground. He submits that even if this court were to take the view that the selection made by the committee and the admissions made pursuant to selection is illegal and deserves to be set aside, still 15% quota of NRI cannot be disturbed.
53. It is interesting to point out, there was no proper publication and publicity of the notification calling for applications from eserving candidates throughout the country and even outside as pointed out by the Supreme Court in the scheme evolved in Unni Krishnan's case (AIR 1993 SC 2178). Normally there would be about 7000 applications received in the State of J. and K. to fill up the seats in Govt. Medical Colleges. It is further submitted that as there was no sufficient publication and sufficient time allowed by the writ court for making selection by the committee constituted by the writ court, there had been hardly 176 applications received by the Committee for selection and out of them there was none claiming NRI quota. Therefore it is stated, placing reliance upon the decision of the Supreme Court in Unni Krishnan's case, 15% quota of NRI was given to the Mangement for filling that quota as according to their discretion, collecting capitation fee. Mr. Verma learned counsel submits that this very action on the part of the Management is questionable inasmuch as if there had the compliance of the requirements of law as found in the scheme of Unni Krishnan, certainly there would have been enough number of applicants from NRIs. However, the managment wants to take advantage of the non-compliance of the State in this context. The submission is that the Court cannot allow such illegal benefit being snatched away by the Management. We do not want to dwell deep into the matter of answering this question, since we have taken a decision that the selection made by the authority is not in accordance with law laid down by the Surpeme Court, no purpose would be served in dealing with this question of NRI. We answer the question accordingly.
53A. One word is necessary to be mentioned in regard to the submission made by Mr. Verma learned Sr. counsel in regard to the permission granted by the Govt. of India, Ministry of Health and Family Welfare dated 6-10-1995. He brought to our notice that the Govt. order referred to above does not in so many words spell out that 100 seats have been allotted for the Acharya Shri Chandra College of Medical Sciences, Jammu;
On the other hand it reads as follows:-
'After careful consideration of the scheme and taking into consideration of the advice tendered by the Medical Council of India in this regard, this Ministry have come to the conclusion that a 'letter of Intent' for the establishment of a medical college at Jammu may be issued. Hence this letter of intent.
This 'letter of Intent' is subject to the fulfilment of the following conditions:
(i) The applicant should provide all infrastructural facilities in terms of teaching and non-teaching staff, buildings, equipments and hospital facilities as per the Medical Council of India norms;
the applicant should provide 300 bedded hospital and the beds should be allocated as per Medical Council of India norms for various specialities. The existing hospital should be expanded up to 700 beds within a period of four years, 100 beds being increased annually.
(ii) The applicants should provide bank guarantee of Rs. 200 lakhs in favour of the Secretary, Medical Council of India for 100 admissions for establishment of medical college and its infrastructural facilities and for a teaching hospital and its infrastructural facilities.
(iv) The other facilities as pointed in the inspection report should be rectified.
Action to issue the grant of permission for admission to MBBS course will be taken on receipt of a letter accepting the conditions enunciated in para (4) above and after the bank guarantee are received in this Ministry.'
54. Therefore, Mr. Verma, Sr. Counsel submits that the letter of Intent does not permit the college to start with 100 students. A perusal of the scheme expounded by the Supreme Court in Unni Krishnan's case (AIR 1993 SC 2178), makes it clear that to start with 100 students, the Medical college must possess infrastructure including 700 bedded hospital. The submission of Mr. Kohli, learned counsel appearing for respondents 1 and 2 is that this scheme is to be completed in phased manner. Therefore, it is enough at this stage to say that the Letter of Intent does not grant 100 seats to begin with in the College.
55. Now the next stage is how to safeguard the interests of the selected students. We are of the view that there is no difficulty for us to provide them the relief without affecting their careeer.
56. In the light of the SRO 46 of 1996 dated 5-2-1996 issued by the Govt. of J. & K. and published in the Gazette on the same day, we can consider for providing a time schedule for making selection of the students in accordance with the said SRO. The short title and commencement of the SRO reads as follows:
'These rules shall be called the Jammu and Kashmir Private Medical Education Institutions (Selection and Admission) Rules, 1966.'
The definition clause as contained in section is on par with the definition as found in the scheme expounded in Unni Krishnan's case (AIR 1993 SC 2178). Clause (m) of Section 2 defines 'Professional courses' meaning thereby the courses as prescribed from time to time by the Government and shall initially include MBBS, BDS, EUMS, and BAMS and Degree Courses in Nursing Pharmacy and courses allied to Medicine for purposes of these rules. As to the Competent Authority and Entrance examination the definition which can be gathered from clause (d) of Section 2 means the authority constituted by the Government for purposes of conducting Common Entrance Examination and making selection for admission to various professional courses. Therefore, as on today, the Competent Authority and the entrance examination as defined in clause (d), of Section 2 makes it abundantly clear that the said Competent Authority is in existence and functioning as brought to our notice by the learned Advocate General.
57. To conclude, considering these several aspects, we make the following orders:
(1) These appeals are allowed; the order of the learned single Judge passed in OWP No.: 379/1995 dated November 27, 1995 is set aside.
(2) We issue a writ of Mandamus to the State Govt. to issue a Notification calling for applications from the eligible candidates in the prescribed form for appearing in the common Viva Voce entrance examination. There shall be no common entrance written examination. Notification calling for applications shall be published in one local Daily Vernacular language and in one daily widely circulated English newspaper providing enough time. The writ petitioners, the contesting respondents, the appellants of the LPAs; who have already applied need not apply once again except those who have not applied.
(3) The last date for receiving the applications in the prescribed form shall be 5th April, 1996. Applications received after the date fixed above either by post or by hand would not be entertained.
(4) The Roll Nos. to the eligible candidates shall be supplied by 8th April, 1996. The date for holding the common entrance viva voce examination is fixed on 10th April, 1996.
(5) The Competent Authority shall make selection and announce the results on or before 17th April, 1996, The selection list so prepared shall be got published in at least two leading local dailies of Srinagar and Jammu and it shall also be displayed at the office of Competent Authority, Entrance Examinations in Jammu and Srinagar.
(6) Out of 100 marks awardable for selection of the candidates, 75% shall be for academic qualification and 25% shall be for common Entrance Viva Voce examination.
(7) The number of 100 seats shall be filled up by selecting candidates from the order of merit.
(8) At least, 50% of the seats out of the 100 seats shall be filled up by the nominees of the Govt, or University as the case may be, hereinafter referred to as 'free seats'. These students shall be selected on the basis of merit determined on the basis of merit list by such criteria as may be determined by the Competent Authority or appropriate authority as the case may be. The remaining 50% of the seats (Payment Seats) shall be filled up by those candidates who are prepared to pay the fee prescribed therefor and who have complied with the instructions regarding deposit and furnishing of cash security/ Bank guarantee for the balance of the amount. The allotment of students against payment seats shall also be done on the basis of inter se merit determined on the same basis as in the case of free seats.
9. In so far as the reservation of the seats for persons claiming constitutionally permissible reserved, the SRO issued by the State of J & K in relation to the reservation of seats shall be followed.
10. In so far as the fixation of the scale of fee payable by these students, the State Govt. shall constitute a committee within a period of ten days and that committee shall fix the scale of fee payable by the students in accordance with the guidelines contained in the scheme of Unni Krishnan J.P., AIR 1993 SC 2178.
It is needless to point out that since theaffiliation to the University of the College inquestion having not been issued so far, thecertificate of affiliation shall be obtained bythe respondents 1 and 2 before the commencement of the classes in the MBBScourse.