Madhya Pradesh High Court
H.K. Kalchuri Educational Trust vs The State Of Madhya Pradesh on 3 April, 2025
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SURESH KUMAR KAIT,
CHIEF JUSTICE
&
HON'BLE SHRI JUSTICE VIVEK JAIN
WRIT PETITION No. 14145 of 2017
H.K. KALCHURI EDUCATIONAL TRUST AND OTHERS
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
........................................................................................................
Appearance:
Shri Siddharth Radhe Lal Gupta - Advocate (through V.C.) with Shri Aryan
Urmaliya - Advocate for the petitioners.
Shri B.D. Singh - Deputy Advocate General for respondents No. 1 & 4 / State.
Shri Dheerendra Mishra - Advocate for respondent No.5.
Shri Mihir Lunawat - Advocate for respondent No.5.
..........................................................................................................
ORDER
(Reserved on : 18 .03.2025)
(Pronounced on : 03.04.2025)
Per: Hon’ble Shri Justice Vivek Jain.
The present petition has been filed by a society running private
medical college in the State of Madhya Pradesh in the name of L.N. Medical
College, Bhopal. The petitioner has put to challenge the validity of
Mukhyamantri Medhavi Vidyarthi Yojna, 2017 (Chief Minister
Meritorious Student Scheme, 2017) as amended subsequently vide
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amending order dated 30.08.2017 and consequential allotment list issued by
the State Government for the session 2017-2018. By way of amendment, the
subsequent Scheme known as Mukhya Mantri Jankalyan Shiksha
Protsahan Yojana (Chief Minister’s Public Welfare Education
Encouragement Scheme) has been put to challenge that also contains similar
provisions. It is not in dispute that the said scheme still continuing till date
and therefore, the challenge to the said scheme is stated to be still valid.
2. It is the case of the petitioners that the State of Madhya Pradesh has
instituted a scheme Annexure P-1 known as Chief Minister Meritorious
students scheme which is originally in Hindi and named as Mukhyamantri
Medhavi Vidyarthi Yojna, 2017 (for short referred to as ‘MMMVY
Scheme’) as replaced later by Mukhya Mantri Jankalyan Shiksha
Protsahan Yojana (for short, referred to as “MMJKY Scheme”). Learned
counsel for the petitioners while pressing the challenge to validity of said
schemes submits that the said schemes are a piece of delegated legislation
by way of executive instructions issued by the State Government wihout any
legal authority and as per the said schemes it has been provided that the
student who is original resident of/domicile of Madhya Pradesh and having
annual income of his parents/guardian below Rs.6.00 lacs per annum would
be covered under the scheme. Different criteria for coverage under the said
scheme are laid down for below poverty line students and students of SC/ST
category. As per the said schemes the State Government has given guarantee
to bear the fees of meritorious students in Government and Private Colleges
who are studying in Engineering, Medical and Law streams. So far as the
coverage for medical education is concerned, the said schemes provide that
those persons who got admission on basis of merit in NEET Examination in
any Medical/Dental College run by the Central or State Government within
limits of State of Madhya Pradesh or any private college imparting
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Medical/Dental education within the limits of State of M.P., then if the
annual income of the family falls in the eligibility criteria of the scheme,
then the fees shall be borne by the State of M.P. and the student(s) admitted
under the said scheme would execute a bond to serve rural area of State of
M.P. for a period of two years in case he studies in Government college and
five years in case he studies in private college.
3. The learned counsel for the petitioner has vehemently argued that the
institution in question is a private unaided non-minority institution imparting
medical education. The students admitted in the said institution are charged
fees which are not fixed arbitrarily by the institution but as per the fees
determined by Admission and Fees Regulatory Committee of the State
Government (AFRC for short) established under the M.P. Niji Vyavsayik
Shikshan Sansthan Adhiniyam, 2007 (for short ‘Adhiniyam of 2007’) and
therefore it is not the case that any fees is charged by the petitioner
institution out of its own sweet will. It already faces regulatory mechanism
in the manner of charging of fees and it has a right to admit students which
includes a right to refuse admission and therefore, as held by the
Constitution Bench of the Supreme Court in the case of T.M.A. Pai
Foundation v. State of Karnataka, (2002) 8 SCC 481, the institution has
independence in the matter of its management and the impugned policy of
the State Government forcing students who are otherwise not in financial
capacity to pay fees of the petitioner institution, on the petitioner institution
amounts to over-regulation and disproportionate legislation which should be
set aside on the ground of over regulation and proportionality. It is
contended that the institution has right to admit only those students who are
having financial means to pay the fees of the institution and the State
Government having decided the fees payable to the petitioner institution is
sufficient regulatory measure, and cannot now thrust students over the
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petitioner institution who though may be meritorious but are not otherwise
having any financial capacity to pay the fees of petitioner institution. This
will lead to nothing but loss to the petitioner institution in financial terms
because the students admitted are otherwise not eligible on basis of their
financial means to seek admission in the petitioner institution.
4. It is further argued that the petitioner being a private unaided self
financing institution has fundamental right to admit students of its choice
and said right is guaranteed under Article 19(1)(g) of the Constitution of
India and that though running of education institution may not be business
or profession but it is certainly an occupation and carrying out occupation
deserves same degree of protection as available to other fundamental rights
enshrined under Article 19 of the Constitution of India. It is argued that in
the case of T.M.A. Pai Foundation (supra), the Hon’ble Supreme Court
has unequivocally held that right to establish and administer a private
institution includes right to admit students. Therefore, the restriction which
State seeks to impose in the present case should require an objective and
rationale procedure of selection of students which is already in place by way
of adherence to NEET merit in admissions, or may require compliance of
other reasonable conditions. The right to admit students of its choice
includes the right not to admit and right to refuse to admit students who do
not agree to pay the fees structure of concerned college, and therefore, the
petitioner is being forced into an arbitrary regulatory measure.
5. It is contended that in the case of Modern Dental College &
Research Centre v. State of M.P., (2016) 7 SCC 353 it has been held that
the fundamental right of colleges to run educational institution includes four
specific rights including the right to admit students of their own choice. It is
reiterated that the restrictions placed by the impugned MMMVY and
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MMJKY Schemes are manifest arbitrary, unreasonable, disproportionate,
irrational and discriminatory.
6. It is argued that because of the operation of MMMVY & MMJKY
Scheme the majority of seats in general unreserved quota are being allotted
to students under MMMVY & MMJKY Schemes who otherwise would not
have been interested to participate in admission process of private medical
college owing to high fees which is not arbitrary but fixed by a committee of
the Government itself. The State Government to implement its public
welfare scheme through private sector cannot put the private sector to
damage and harm and scuttle the rights of the private medical college and
put their financial interests in jeopardy.
7. It is further contended that MMMVY & MMJKY Schemes operate as
reservation scheme in favour of EWS category students without any upper
ceiling limit on mumbers and is thus, ultravires to the provisions of the
Constitution as well as to the Adhiniyam 2007. It is contended that as per
Section 8 of the Adhiniyam 2007 the reservation of seats is permissible only
for SC, ST and OBC category students and now a different category has
been carved out by the impugned scheme.
8. It is further argued that apart from the above the institutions are
suffering because inordinate delay in reimbursement and payment of fees
either by the State Government or by the concerned student leads to grave
financial losses of interest on amount and investment which violates Article
300-A of Constitution of India. It also leads to financial bleeding of the
institution by not receiving the fees within time because the institution has to
spend the fees while teaching the students but actual reimbursement takes
place by the State Government with a time lag of 2 to 2 ½ years and
therefore, the manner in which the scheme is being operated, should be a
sufficient ground to quash the scheme or in the alternative, to pass
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appropriate orders to smoothen out these practical difficulties in the manner
in which the scheme is being operated.
9. It is further contended that freedom enshrined under Article 19(1)(g)
enjoyed by the petitioner institution can be subjected to or regulated only by
a law duly enacted which does not include executive instructions within its
ambit and therefore, impugned executive instructions do not fall within the
definition of “law” as per Article 13(3)(a) of the Constitution of India. It is
further argued that the impugned MMMVY & MMJKY Schemes and the
mode of allotment stipulated thereunder of students along with the
accompanying conditions pertaining to their fees payment are all
unconstitutional and cannot be saved from the vice of unconstitutionality
and therefore, the impugned Schemes have to be struck down as a whole and
not in parts. It is contended by relying to various clauses of MMMVY &
MMJKY Schemes that in what manner the scheme is oppressive towards the
private medical colleges and the losses to be faced by the private medical
colleges have not been taken into consideration in case the students leave the
course mid way.
10. It is contended that the selection criteria under the impugned schemes
is arbitrary and unconstitutional because it is based on financial and
economic status of the concerned student and therefore, it is opposed to the
constitutional grounds of social, educational and caste backwardness
whereas economic indicators cannot be a sufficient ground to bring out any
such scheme as it was brought into force prior to 103rd amendment of the
Constitution of India whereby the State has been empowered to make any
special provision for advancement of economically weaker section of the
society and exception to Article 19(1)(g) has been carved out by Article
15(6) of the Constitution of India.
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11. The counsel for the petitioner had further argued that State is paying
the amount under the schemes not to the colleges, but to the account of the
students and it is a routine feature that the students do not remit the fees to
the account of the institution timely and they go on utilizing the fees and the
fees is remitted to the college only at the time of examination after
completing the education for the entire session whereas if the fees is
remitted to the colleges directly in the account of colleges immediately after
admission then there would be timely payment of fees to the college and the
unholy practice of students misutilising the fees for their own purposes
would be curbed.
12. Per contra, it is contended by learned counsel for the State while
opposing the petition that the scheme is to achieve the constitutional goals of
equality comprised in Article 15(1) and 16(1) of the Constitution of India so
also various provisions of the Constitution of India to achieve the objectives
of public health. It is contended that the MMMVY Scheme of 2017 was
replaced by MMJKY Scheme in 2018 that has also been put to challenge by
carrying out amendment and placed on record as Annexure P-21.
13. It is contended that the petitioner’s notion of fundamental right to
admit students is misconceived as in the judgments of T.M.A. Pai
Foundation (supra) and Modern Dental College (supra) nowhere it has
been held that right to admit students includes the right to refuse admission
to meritorious students and the impugned schemes only help the meritorious
students who are not in a position to afford actual fees of the college. The
contention that the State is thrusting students upon the petitioner institution
is also misconceived as evident from provisions of the scheme that students
are allotted on merit basis through NEET centralized counselling conducted
under overall supervision of MCI/NMC and strictly as per merit which is in
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accordance with the law settled by the Constitution Bench of Supreme Court
in the case of Modern Dental College (Supra).
14. So far as the constitutionality of the scheme is concerned, it is
contended that the scheme is for facilitating free higher education for
meritorious students under Article 41 of the Constitution of India by giving a
chance to the students to pursue medical education by securing rank in
NEET and to take admission in College of their choice and not be hampered
by economic deprivation. The impugned scheme is stated to be a law in
terms of Article 162 of the Constitution of India.
15. It is further contended that the dues of fees of the students are being
cleared timely and as soon as the budget of the Stage Government permits,
the dues are being cleared without fail and though there may be some delay
in payment of the fees but the fees are being paid without fail. Therefore, it
is contended that the schemes are absolutely constitutional and legal and
with an objective to be achieved and schemes do not suffer from vice of not
being proportionate nor from the vice of arbitrariness nor unconstitutionality
in any manner. It is denied that the scheme creates a reservation in favour of
EWS candidates without any upper ceiling of numbers.
16. So far as the issue of remittance of fees directly in the account of
students in place of it being remitted to the account of college is concerned,
it is argued by learned counsel for the State that when the fees was being
reimbursed to the account of the institution directly then there were various
instances where one single student to take admission in various courses in
different colleges and get reimbursement of fees or scholarship for all
courses parallely pursued by the student and he would draw the scholarship
or reimbursement of fees of first year for all such colleges and then pursue
with further education in only one of the colleges. If the fees is reimbursed
to the account of institution directly then monitoring of such malpractice
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would not be possible and it is possible only if the fees is reimbursed
directly in the Aadhar linked account of the student so that one student
availing more than one scholarships or fees reimbursement can be easily
monitored, which is only to save malpractices and not to give any undue
benefit to the students, and there is no objective to cause harm or damage to
the educational institutions. Therefore, the practice of direct remittance of
fees to the account of students has been defended vehemently.
17. Heard learned counsel for the parties.
18. In the present case, initially the State Government came out with
MMMY Scheme 2017, which was later on replaced by the consequential
Scheme, which placed on record as Annexure P-21 is known as Mukhya
Mantri Jankalyan Shiksha Protshahan Yojana (MMJKY) Scheme. It is not in
dispute that the provisions of both the Schemes are more or less analogous
with only differences being in some fine details.
19. The aforesaid Scheme still in force has been vehemently objected to
on the grounds that the said scheme severely curtails the rights of the private
medical collages to administer the institution as per their will and is
therefore, contrary to the Constitution Bench judgment of the Hon’ble
Supreme Court in the case of T.M.A. Pai (supra). Before we embark on
examination of the scheme from the said angle, the objectives of the
schemes are required to be taken note of. The Schemes in question, i.e.
MMMVY and MMJKY Scheme relate to providing financial assistance to
those meritorious students, who seek admission in Engineering Colleges on
merit basis as per JEE Examination and in Medical Colleges as per NEET
Examination and Law Colleges as per CLAT Examination or such other
examinations of State or National level, which assess the merits of the
students.
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20. The said Scheme relates to provision made by the State Government
to reimburse the fees of such students, who otherwise secure admission in
Government or private colleges situated within the limits of the State of
Madhya Pradesh on merit basis and the students are also domiciled in the
State of Madhya Pradesh. The Scheme enables a student not having financial
means to attain college education in college of his choice based on his merit.
The students who are reimbursed fees are not forced on the college, but are
those students, who get the particular college allotted on the basis of their
merit in the NEET examination and the scheme in question enables those
students to be able to take admission in the college to which they are allotted
on the basis of merit in NEET Examination and not to opt for any other
college lower in merit or to avoid waiting for one more year or take a drop
of one more year and take chance in the next year to get a college charging
lesser fees, which may be in their financial capacity.
21. The Scheme in question, therefore, is basically a Scheme enabling
candidates having lesser financial means to take admission in colleges with
support of financial assistance of the State Government and without
financial assistance of the State Government such admissions otherwise
could not have been made possible for such meritorious students and they
may not have been able to secure admissions at all.
22. Therefore, the Scheme is not a Scheme creating any reservation for
economically weaker sections of the society, but enables students otherwise
not having means to get admission in a college, which they get as per their
merit to have a chance to study in that college and to save merit from being
scuttled by financial deprivation. A reservation for economically weaker
sections would mean lowering of merits by fixation of a fixed number of
seats by way of vertical reservation to candidates having lower or lesser
financial means. The impugned Schemes are not so but on the other hand,
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the impugned schemes remove a bar for the meritorious students to take
admission in the colleges of their choice. The Scheme does not lower the
merit for economically weaker sections, but it respects the merit for those
candidates who are belonging to economically deprived sections and were
being forced to forego the colleges, which they got as per their merit and
were either being forced to opt for courses of lesser importance or were
being made to take a drop of succeeding year so as to explore chance of
securing admission in college charging less fees. Therefore, the Schemes in
the question are the Schemes to save merit. Hence, the argument of learning
counsel for the petitioners that the schemes create unlimited reservation in
favor of EWS category is utterly misconceived and is discarded.
23. So far as the issue of the impugned scheme being not a law under
Article 13(3)(a) of the Constitution of India is concerned, the said argument
also is misconceived, because Article 13 is as under:-
“13. Laws inconsistent with or in derogation of the
fundamental rights –
(1) All laws in force in the territory of India immediately
before the commencement of this Constitution, in so far as
they are inconsistent with the provisions of this Pan, shall,
to the extent of such inconsistency, be void.
(2) The State shall not make any law which takes away or
abridges the rights conferred by this Part and any law made
in contravention of this clause shall, to the extent of the
contravention, be void.
(3) In this article, unless the context otherwise requires,-
(a) “law” includes any Ordinance, order, bye-law, rule,
regulation, notification, custom or usage having in the
territory of India the force of law;
(b) “laws in force” includes laws passed or made by
Legislature or other competent authority in the territory of
India before the commencement of this Constitution and not
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12any part thereof may not be then in operation either at all or
in particular areas.
(4) Nothing in this article shall apply to any amendment of
this Constitution made under article 368.”
24. As per Article 13(3)(a) law includes any ordinance, order, bye laws,
rule, notification, regulation, custom etc. The impugned schemes have been
issued in the name of the Governor of the State and are undisputedly within
the Legislative power of the State. Even it is not the case of the petitioners
that these are beyond the legislative power of the State. As per Article 162 of
the Constitution of India, the executive power of the State extends to the
matters with respect to which the legislature of the State has power to frame
laws. The impugned scheme therefore is clearly within the power of the
State to frame delegated legislation and is authorized as such under Article
162 of the Constitution of India and therefore is a law in terms of Article 13
of the Constitution of India.
25. So far as the argument raised by the petitioner that the impugned
scheme hampers the right of the institution to refuse admissions to those
candidates, who otherwise are not having financial means to bear the
financial burden of peace of the petitioners college is concerned, the said
issue is taken up. Learned council for the petitioner had heavily relied on the
judgment of the Supreme Court in the case of T.M.A. Pai Foundation
(supra). As per the said judgment, five rights of the private non-minority
education institutions were recognized in para 50 as under :-
“50. The right to establish and administer broadly comprises
the following rights:
(a) to admit students;
(b) to set up a reasonable fee structure;
(c) to constitute a governing body;
(d) to appoint staff (teaching and non-teaching); and
(e) to take action if there is dereliction of duty on the part of
any employees.”
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26. The Constitutional Bench held that the right to establish an education
institution can be regulated, but regulatory measures should be to ensure
maintenance of proper academic standards interalia with various other
conditions as laid down in para 54 as under :-
“54. The right to establish an educational institution can be
regulated; but such regulatory measures must, in general, be to ensure
the maintenance of proper academic standards, atmosphere and
infrastructure (including qualified staff) and the prevention of
maladministration by those in charge of management. The fixing of a
rigid fee structure, dictating the formation and composition of a
governing body, compulsory nomination of teachers and staff for
appointment or nominating students for admissions would be
unacceptable restrictions.”
27. The Constitution Bench further held that the objective of regulatory
measures should be to ensure excellence in education by holding in para 57
and 59 as under:-
“57. We, however, wish to emphasize one point, and that is that
inasmuch as the occupation of education is, in a sense, regarded as
charitable, the Government can provide regulations that will ensure
excellence in education, while forbidding the charging of capitation
fee and profiteering by the institution. Since the object of setting up an
educational institution is by definition “charitable”, it is clear that an
educational institution cannot charge such a fee as is not required for
the purpose of fulfilling that object. To put it differently, in the
establishment of an educational institution, the object should not be to
make a profit, inasmuch as education is essentially charitable in
nature. There can, however, be a reasonable revenue surplus, which
may be generated by the educational institution for the purpose of
development of education and expansion of the institution.
59. Merit is usually determined, for admission to professional and
higher education colleges, by either the marks that the student obtains
at the qualifying examination or school-leaving certificate stage
followed by the interview, or by a common entrance test conducted by
the institution, or in the case of professional colleges, by government
agencies.”
28. It is further held in the said judgment that education institutions
cannot grant admissions on their whims and fancies and must follow some
reasonable methodology of admitting students and the rejection of students
must not be whimsical or for extraneous reasons. It is further held that
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unaided institutions are entitled to autonomy, but at the same time they
should not be allowed to discard the principle of merit and also that the
Government can frame regulations to ensure fair, transparent and merit
based admissions. The Constitution Bench held as under:-
“65. The reputation of an educational institution is established by the
quality of its faculty and students, and the educational and other
facilities that the college has to offer. The private educational
institutions have a personality of their own, and in order to maintain
their atmosphere and traditions, it is but necessary that they must have
the right to choose and select the students who can be admitted to
their courses of studies. It is for this reason that in St. Stephen’s
College case¹ this Court upheld the scheme whereby a cut-off
percentage was fixed for admission, after which the students were
interviewed and thereafter selected. While an educational institution
cannot grant admission on its whims and fancies, and must follow
some identifiable or reasonable methodology of admitting the
students, any scheme, rule or regulation that does not give the
institution the right to reject candidates who might otherwise be
qualified according to, say, their performance in an entrance test,
would be an unreasonable restriction under Article 19(6), though
appropriate guidelines/modalities can be prescribed for holding the
entrance test in a fair manner. Even when students are required to be
selected on the basis of merit, the ultimate decision to grant admission
to the students who have otherwise qualified for the grant of
admission must be left with the educational institution concerned.
However, when the institution rejects such students, such rejection
must not be whimsical or for extraneous reasons.
68. It would be unfair to apply the same rules and regulations
regulating admission to both aided and unaided professional
institutions. It must be borne in mind that unaided professional
institutions are entitled to autonomy in their administration while, at
the same time, they do not forego or discard the principle of merit. It
would, therefore, be permissible for the university or the Government,
at the time of granting recognition, to require a private unaided
institution to provide for merit-based selection while, at the same time,
giving the management sufficient discretion in admitting students. This
can be done through various methods. For instance, a certain
percentage of the seats can be reserved for admission by the
management out of those students who have passed the common
entrance test held by itself or by the State/university and have applied
to the college concerned for admission, while the rest of the seats may
be filled up on the basis of counselling by the State agency. This will
incidentally take care of poorer and backward sections of the society.
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The prescription of percentage for this purpose has to be done by the
Government according to the local needs and different percentages
can be fixed for minority unaided and non-minority unaided and
professional colleges. The same principles may be applied to other
non-professional but unaided educational institutions viz. graduation
and postgraduation non-professional colleges or institutes.”
29. When the impugned schemes are examined in juxtaposition to the
aforesaid law laid down by the Constitution Bench of Hon’ble Supreme
Court, it is seen that the impugned schemes are with laudable objective of
preserving merit and to permit in meritorious student to get admission in a
college to which he is allotted as per merit. The private medical colleges in
the name of autonomy cannot impugn any scheme, which seeks to preserve
merit and to remove hurdles on the basis of economic deprivation, because
such a law would be in consonance with the constitution ideals of Articles
16(1) of the Constitution of India, which, as held by the Hon’ble Supreme
Court in a series of cases, is in itself a separate provision enabling the State
to frame laws to create a equality of opportunity to all citizens. The
impugned schemes do create equality of opportunity to the citizens having
economic deprivation.
30. It has been held by the Supreme Court in a number of cases that
provisions of Article 16(1) are independent of reservation provisions as
contained in Article 16 (4), which are now further extended by insertion of
Article 16 (6) in the Constitution of India with 103rd amendment.
31. Reservations to candidates belonging to reserved categories under
various categories of vertical reservation are contained in Articles 15 (4), (5)
& (6) and 16 (4), (5) & (6) of the Constitution of India. The said provisions
were earlier considered as exceptions to Articles 15(1) and 16(1) of the
Constitution of India, which provide equality of opportunity in the matter of
public employment and prohibition of discrimination on the various grounds
including on the grounds of caste and race, though later there was shift in
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perception as Article 16 (1) was perceived as a separate enabling provision
in itself.
32. A Constitution Bench of the Supreme Court as far as back in the year
1976 in the case of State of Kerala v. N.M. Thomas, (1976) 2 SCC 310 has
held by majority that Article 16(4) seems to be an Exception to Article
16(1), but in fact, it is not a proviso only to Article 16(1), but covers the
whole field of Article 16. It was held therein that granting concessions apart
from reservations are in the matter of providing equality of opportunity to all
citizens in the matters relating to employment and concessions like further
chances for passing a test etc. can only be done under Article 16(1) to
provide equality in the matters of employment etc., and the Constitution
Bench held as under :-
“78. I agree that Article 16(4) is capable of being interpreted as an
exception to Article 16(1) if the equality of opportunity visualized in
Article 16(1) is a sterile one, geared to the concept of numerical
equality which takes no account of the social, economic, educational
background of the members of Scheduled Castes and scheduled tribes.
If equality of opportunity guaranteed under Article 16(1) means
effective material equality, then Article 16(4) is not an exception to
Article 16(1). It is only an emphatic way of putting the extent to which
equality of opportunity could be carried viz., even up to the point of
making reservation.
79. The State can adopt any measure which would ensure the
adequate representation in public service of the members of the
Scheduled Castes and scheduled tribes and justify it as a
compensatory measure to ensure equality of opportunity provided the
measure does not dispense with the acquisition of the minimum basic
qualification necessary for the efficiency of administration.
185. In the first place if we read Article 16(4) as an exception to
Article 16(1) then the inescapable conclusion would be that Article
16(1) does not permit any classification at all because an express
provision has been made for this in clause (4). This is, however,
contrary to the basic concept of equality contained in Article 14 which
implicitly permits classification in any form provided certain
conditions are fulfilled. Furthermore, if no classification can be made
under Article 16(1) except reservation contained in clause (4) then the
mandate contained in Article 335 would be defeated.
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186. I have already observed that the fundamental guarantees
provided by the Constitution have to be read in harmony with the
directive principles contained in Part IV. Again if Article 16(4) is
deemed to be the only mode of classification, then it would follow that
the Constitution permits only one form of classification, namely,
reservation and no other form so far as the services are concerned.
This will render the concept of equality nugatory and defeat the very
purpose which is sought to be achieved by Article 16(1). Equality of
opportunity to all citizens does not mean equality to some and
inequality to others. As I have already pointed out that in our country
there are a large number of backward classes of citizens who have to
be granted certain concessions and facilities in order to be able to
compete with others. Does it mean that such citizens should be denied
these facilities which may not fall under the term “reservation”? Let
us take a few instances. A notification provides that all candidates for
a particular post must apply before a specified date. A person
belonging to a backward class of citizens living in a very remote area
gets information late. The Government, however, in case of such a
backward class candidate makes a relaxation and extends the date.
Can it be said that this has resulted in violation of Article 16(1)
because it does not fall within the reservation contemplated by clause
(4) of Article 16? It is obvious that the intention of the Government is
merely to help the backward class of citizens to apply for the job
along with others by condoning the delay for special reasons. Another
instance may be where the State makes a relaxation regarding the age
in case of backward classes of citizens in view of the farfetched and
distant area to which that class of citizens belongs. Lastly let us take
the instance of the present case. The clerks belonging to the scheduled
castes and tribes were given a further extension of time to pass the test
because of their backwardness. They were not exempted from passing
the test. This could only be done under Article 16(1) and not under
clause (4) of Article 16.”
33. In the case of Indra Sawhney v. Union of India, 1992 Supp (3) SCC
217, it was held by the Constitutional Bench by majority that Article 16(4) is
not an exception to Article 16(1).
34. After 103rd amendment in 2019, the newly inserted Article 15 (6)
creates an exception to Article 19 (1) (g). The schemes were instituted prior
to 103rd amendment. However, even irrespective of Article 15 (6), the
constitution has ample provisions enabling the State to frame such schemes
and as noted by us above, irrespective of Article 15 (6) and 16 (6), which
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create reservation for EWS category candidates, such schemes to bring out
equality of opportunity could always be framed by exercising powers under
Article 16 (1) of the Constitution of India, which is to achieve constitutional
goals as contained interalia in the preamble of the Constitution as economic
justice and equality of opportunity are the constitutional goals, which are
enshrined in the preamble itself, in addition to various other provisions of
the Constitution that are being considered infra.
35. There are certain other provisions of the Constitution, which may be
taken note of here. As per Article 38 of the Constitution of India, it is the
duty of the State to secure a social order for promotion of welfare of the
people and to minimize the inequalities in income status, facilities and
opportunities. As per Article 39(b)(e) the provisions are laid down to ensure
proper distribution of resources of the community to ensure common good
and to ensure health and strength of workers, men and women and to ensure
that citizens are not forced by economic necessity to enter vocations
unsuited to their age or strength.
36. Further by Article 41, the State is under obligation to make effective
provisions of right to work, right to education and public assistance subject
to limits of its economic capacity and further by virtue of Article 47 the duty
of the State is to raise the level of nutrition and to improve public health.
The relevant provisions are as under :-
“38. State to secure a social order for the promotion of welfare of the
people.–
(1)] The State shall strive to promote the welfare of the people by securing
and protecting as effectively as it may a social order in which justice, social,
economic and political, shall inform all the institutions of the national life.
[(2) The State shall, in particular, strive to minimise the inequalities in
income, and endeavour to eliminate inequalities in status, facilities and
opportunities, not only amongst individuals but also amongst groups of
people residing in different areas or engaged in different vocations.]
39. Certain principles of policy to be followed by the State.–The State
shall, in particular, direct its policy towards securing–
(a) that the citizens, men and women equally, have the right to an
adequate means of livelihood;
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(b) that the ownership and control of the material resources of the
community are so distributed as best to subserve the common good;
(c) that the operation of the economic system does not result in the
concentration of wealth and means of production to the common
detriment;
(d) that there is equal pay for equal work for both men and women;
(e) that the health and strength of workers, men and women, and the
tender age of children are not abused and that citizens are not forced
by economic necessity to enter avocations unsuited to their age or
strength
(f) that children are given opportunities and facilities to develop in a
healthy manner and in conditions of freedom and dignity and that
childhood and youth are protected against exploitation and against
moral and material abandonment.
41. Right to work, to education and to public assistance in certain cases.–
The State shall, within the limits of its economic capacity and development, make
effective provision for securing the right to work, to education and to public
assistance in cases of unemployment, old age, sickness and disablement, and in
other cases of undeserved want.
47. Duty of the State to raise the level of nutrition and the standard of living
and to improve public health.–
The State shall regard the raising of the level of nutrition and the standard of
living of its people and the improvement of public health as among its primary
duties and, in particular, the State shall endeavour to bring about prohibition of
the consumption except for medicinal purposes of intoxicating drinks and of
drugs which are injurious to health.”
37. The schemes when examined from the aforesaid perspective lead to a
conclusion that the schemes are having twin objectives, both of which are
laudable and within limits of Constitutional powers and to achieve
Constitutional goals. Firstly, to preserve merit, enabling meritorious
economically deprived students to take admission in colleges as per their
merit and to achieve equality of opportunity and economic justice, and
secondly to ensure that meritorious students take admission in medical
colleges so that the society would have better doctors and the meritorious
persons being able to take admissions would only lead to betterment of
standard of public health. Therefore, the twin objectives would be achieved
by operation of the said schemes.
38. The schemes when considered from the aforesaid prospective do not
lead to any conclusion that the aforesaid schemes are amounting to any
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disproportionate limitations on constitutional rights. It is well settled that
democracy is based on balance between public interest in constitutional
rights and the State having power and competence to balance constitutional
rights in public interest, which has been upheld in the case of Modern
Dental College (supra), which we will discuss infra.
39. So far as the argument raised by the petitioners that by operation of
the scheme, those students would take admission, who are otherwise not
financially competent to take admission and in case of dropouts after one or
two years, the colleges will face loss of fees of those students. The aforesaid
argument though is very attractive in the first flush, but has no basis in law
and on facts. If a lesser meritorious student takes admission in a college
having high fees and is having to pay fees out of his own pocket, then the
probabilities of dropouts would be more in case he is unable to cope up with
academic pressure. However, if a meritorious student takes admission and
not having to pay fees from his own pocket, the possibility and probability
of drop-out would be less.
40. When a meritorious student, who is not having to pay fees out of his
own pocket and looking to his economic deprivation, the State is bearing his
fees, then the only natural consequence would be that the said meritorious
student would be having better probability to complete the course, because
there will be lesser chances of failing the examination and higher chances of
completing the course. Therefore, the argument that the impugned scheme
would lead to more dropouts has to be rejected. At the time of arguments,
we put a query to learned counsel for the petitioner that how many dropouts
have taken place in this manner of the students, who are admitted under the
impugned scheme, then learned counsel for the petitioner was unable to
answer this query and also unable to answer whether there is a difference
between dropout rates of students admitted under this scheme or students
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admitted outside this scheme. Therefore, this argument is only to be
discarded.
41. The other arguments, which were raised to impugn the
constitutionality of the scheme have been considered in detail by the
Constitution Bench of the Supreme Court, which we will discuss below.
42. Initially the view of the Hon’ble Supreme Court was in favour of
greater autonomy of Medical Education Institutes and even the validity of
NEET examination was negated in the case of Christian Medical College
vs. Union of India, reported in (2014) 2 SCC 305. The Hon’ble Supreme
Court held that it amounts to over regulation and disproportionate restriction
on the rights of private medical institution.
43. Later on the said judgment was recalled in the case of Medical
Council of India v. Christian Medical College, reported in (2016) 4 SCC
342 and ultimately the entire law was reconsidered by Constitution Bench
in the case of Modern Dental College & Research Centre v. State of M.P.,
reported in (2016) 7 SCC 353.
44. In the case of Modern Dental College (supra) the concept of
permissible limitations and constitutional rights was considered in paragraph
62 and it was held that democracy is based on balance between public
interest and constitutional rights. It was held that though certain guarantees
are laid down under Article 19(1) of the Constitution of India but at the same
time Constitution empowers the State to impose reasonable restrictions on
those freedoms in public interest under Articles 19(2) to 19(6) of the
Constitution which accepts the modern theory that constitutional rights are
related. It is further held in the aforesaid judgment that the right to admit
students does not mean that there can be whims and fancies of the institution
concerned and though management of private institution may be an
occupation but it certainly not business or profession and that admission has
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to be on merits only and a great thrust was made for preserving merit. The
Constitution Bench also considered the judgment of earlier constitution
Bench in the case of T.M.A. Pai (supra) and upheld the theory that when it
comes to higher education i.e. professional institutions then merits has to be
the sole criteria as laid down in para-58 in the case of T.M.A. Pai (supra).
The constitutional Bench further held that merit is to be adjudged suitably
and appropriately, the admission process should be so devised, which
satisfies the triple test of being fair, transparent and non-exploitative. The
constitution Bench further went on to hold that merit cannot be
compromised and that State run admission test as being conducted by the
State of M.P. were held valid. The matter was examined from the angle of
proportionality and held that extent of restriction has to be viewed keeping
in view the factors in the larger interest of welfare of student community and
to promote merit, and aid excellence among other needs. It was held that
extent of restriction has to be viewed keeping in view all these factors and
the impugned provisions were held not amounting to restriction on the right
of the Colleges to carry out the occupation and were held to have satisfied
the test of proportionality. The Constitution Bench held as under:-
34. In the modern age, therefore, particularly after the policy of
liberalisation adopted by the State, educational institutions by
private bodies are allowed to be established. There is a
paradigm shift over from the era of complete government control
over education (like other economic and commercial activities)
to a situation where private players are allowed to mushroom.
But at the same time, regulatory mechanism is provided thereby
ensuring that such private institutions work within such
regulatory regime. When it comes to education, it is expected
that unaided private institutions provide quality education and at
the same time they are given “freedom in joints” with minimal
Government interference, except what comes under regulatory
regime. Though education is now treated as an “occupation”
and, thus, has become a fundamental right guaranteed under
Article 19(1)(g) of the Constitution, at the same time shackles
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are put insofar as this particular occupation is concerned which
is termed as “noble”. Therefore, profiteering and
commercialisation are not permitted and no capitation fee can
be charged. The admission of students has to be on merit and not
at the whims and fancies of the educational institutions. Merit
can be tested by adopting some methodology and few such
methods are suggested in T.M.A. Pai Foundation [T.M.A. Pai
Foundation v. State of Karnataka, (2002) 8 SCC 481 : 2 SCEC
1] , which includes holding of CET. It is to be ensured
39. Having recognised it as an “occupation” and giving the
status of a fundamental right, the Court delineated four specific
rights which encompass right to occupation, namely:
(i) a right to admit students;
(ii) a right to set up a reasonable fee structure;
(iii) a right to appoint staff (teaching and non-teaching); and
(iv) a right to take action if there is dereliction of duty on the
part of any employees.
In view of the aforesaid recognition of the right to admit the
students and a right to set up a reasonable fee structure treating
as part of occupation which is recognised as fundamental right
under Article 19(1)(g) of the Constitution, the appellants have
easily crossed the initial hurdle. Here comes the second facet of
this issue viz. — what is the scope of this right of occupation?
40. It becomes necessary to point out that while treating the
managing of educational institution as an “occupation”, the
Court was categorical that this activity could not be treated as
“business” or “profession”. This right to carry on the
occupation that education is, the same is not put on a par with
other occupations or business activities or even other
professions. It is a category apart which was carved out by this
Court in T.M.A. Pai Foundation [T.M.A. Pai Foundation v. State
of Karnataka, (2002) 8 SCC 481 : 2 SCEC 1] . There was a
specific purpose for not doing so. Education is treated as a noble
“occupation” on “no profit no loss” basis. Thus, those who
establish and are managing the educational institutions are not
expected to indulge in profiteering or commercialising this noble
activity. Keeping this objective in mind, the Court did not give
complete freedom to the educational institutions in respect of
right to admit the students and also with regard to fixation of fee.
As far as admission of students is concerned, the Court was
categorical that such admissions have to be on the basis of merit
when it comes to higher education, particularly in professional
institutions.
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41. Ms Vibha Datta Makhija is right in her submission that the
significant feature of T.M.A. Pai Foundation [T.M.A. Pai
Foundation v. State of Karnataka, (2002) 8 SCC 481 : 2 SCEC
1] is that it expounded on the nature and extent of its control on
the basis of level of education. When it comes to higher
education, that too in professional institutions, merit has to be
the sole criteria. This is so explained in para 58 of the judgment
which reads as under: (SCC pp. 545-46)
“58. For admission into any professional institution, merit must
play an important role. While it may not be normally possible to
judge the merit of the applicant who seeks admission into a
school, while seeking admission to a professional institution and
to become a competent professional, it is necessary that
meritorious candidates are not unfairly treated or put at a
disadvantage by preferences shown to less meritorious but more
influential applicants. Excellence in professional education
would require that greater emphasis be laid on the merit of a
student seeking admission. Appropriate regulations for this
purpose may be made keeping in view the other observations
made in this judgment in the context of admissions to unaided
institutions.”
42. In order to see that merit is adjudged suitably and
appropriately, the Court candidly laid down that the procedure
for admission should be so devised which satisfies the triple test
of being fair, transparent and non-exploitative. The next question
was as to how the aforesaid objective could be achieved? For
determining such merit, the Court showed the path in para 59 by
observing that such merit should be determined either by the
marks that students obtained at qualifying examination or at
CET conducted by the institutions or in the case of professional
colleges, by government agencies. Para 59 suggesting these
modes reads as under: (T.M.A. Pai Foundation case [T.M.A. Pai
Foundation v. State of Karnataka, (2002) 8 SCC 481 : 2 SCEC
1] , SCC p. 546)
“59. Merit is usually determined, for admission to professional
and higher education colleges, by either the marks that the
student obtains at the qualifying examination or school leaving
certificate stage followed by the interview, or by a common
entrance test conducted by the institution, or in the case of
professional colleges, by government agencies.”
This paragraph very specifically authorises CET to be conducted
by government agencies in the case of professional colleges.
49. Thus, the contention raised on behalf of the appellants that
the private medical colleges had absolute right to make
admissions or to fix fee is not consistent with the earlier
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decisions of this Court. Neither merit could be compromised in
admissions to professional institutions nor capitation fee could
be permitted. To achieve these objects it is open to the State to
introduce regulatory measures. We are unable to accept the
submission that the State could intervene only after proving that
merit was compromised or capitation fee was being charged. As
observed in the earlier decisions of this Court, post-audit
measures would not meet the regulatory requirements. Control
was required at the initial stage itself. Therefore, our answer to
the first question is that though “occupation” is a fundamental
right, which gives right to the educational institutions to admit
the students and also fix the fee, at the same time, scope of such
rights has been discussed and limitations imposed thereupon by
the aforesaid judgments themselves explaining the nature of
limitations on these rights.
53. After referring to paras 136 and 137 in P.A. Inamdar [P.A.
Inamdar v. State of Maharashtra, (2005) 6 SCC 537 : 2 SCEC
745] , it was observed: (Assn. of Private Dental case [Assn. of
Private Dental and Medical Colleges v. State of M.P., 2009 SCC
OnLine MP 760] , SCC OnLine MP paras 34 & 37)
“34. It will be thus clear from paras 136 and 137 of the
judgment in P.A. Inamdar [P.A. Inamdar v. State of
Maharashtra, (2005) 6 SCC 537 : 2 SCEC 745] , quoted above,
that admissions to private unaided professional educational
institutions can be made on the basis of merit of candidates
determined in the common entrance test followed by centralised
counselling by the institutions imparting same or similar
professional education together or by the State or by an agency
which must enjoy utmost credibility and expertise and that the
common entrance test followed by centralised counselling must
satisfy the triple test of being fair, transparent and non-
exploitative. Thus, the judgments of the Supreme Court in T.M.A.
Pai Foundation [T.M.A. Pai Foundation v. State of Karnataka,
(2002) 8 SCC 481 : 2 SCEC 1] and P.A. Inamdar [P.A.
Inamdar v. State of Maharashtra, (2005) 6 SCC 537 : 2 SCEC
745] , permit holding of a common entrance test for
determination of merit for admission to private unaided
professional educational institutions by the State as well as any
agency which enjoy utmost credibility and expertise in the matter
and which should ensure transparency in merit.
37. Sections 3(d), 6 and 7 of the 2007 Act by providing that the
common entrance test for determining merit for admissions in
the private unaided professional educational institutions by a
common entrance test to be conducted by the State or by an
agency authorised by the State do not interfere with the
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autonomy of private unaided professional educational
institutions, as such private professional educational institutions
are entitled to collect the fees from the students admitted to the
institutions on the basis of merit, appoint their own staff
(teaching and non-teaching), discipline and remove the staff,
provide infrastructure and other facilities for students and do all
such other things as are necessary to impart professional
education to the students. Sections 3(d), 6 and 7 of the 2007 Act,
therefore, do not impinge on the fundamental right to carry on
the occupation of establishing and administering professional
educational institutions as an occupation. The only purpose of
Sections 3(d), 6 and 7 of the 2007 Act is to ensure that students
of excellence are selected on the basis of a common entrance test
conducted by the State or an agency authorised by the State and
that students without excellence and merit do not make entry into
these professional educational institutions through malpractices
and influence. As has been held both in the judgments in T.M.A.
Pai Foundation [T.M.A. Pai Foundation v. State of Karnataka,
(2002) 8 SCC 481 : 2 SCEC 1] and P.A. Inamdar [P.A.
Inamdar v. State of Maharashtra, (2005) 6 SCC 537 : 2 SCEC
745] , the right of private unaided professional educational
institutions to admit students of their choice is subject to
selection of students on the basis of their merit through a
transparent, fair and non-exploitative procedure. In our
considered opinion therefore, Sections 3(d), 6 and 7 of the 2007
Act do not in any way violate the fundamental right of citizens
guaranteed under Article 19(1)(g) of the Constitution. In view of
this conclusion, it is not necessary for us to decide whether the
provisions of Sections 3(d), 6 and 7 of the 2007 Act are saved by
Article 15(5) of the Constitution or by the second limb of Article
19(6) of the Constitution relating to the power of the State to
make a law for creation of monopoly in its favour in respect of
any service.”
67. Undoubtedly, right to establish and administer educational
institutions is treated as a fundamental right as it is termed
“occupation”, which is one of the freedoms guaranteed under
Article 19(1)(g). It was so recognised for the first time in T.M.A.
Pai Foundation [T.M.A. Pai Foundation v. State of Karnataka,
(2002) 8 SCC 481 : 2 SCEC 1] . Even while doing so, this right
came with certain clutches and shackles. The Court made it
clear that it is a noble occupation which would not permit
commercialisation or profiteering and, therefore, such
educational institutions are to be run on “no profit no loss
basis”. While explaining the scope of this right, right to admit
students and right to fix fee was accepted as facets of this right,
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the Court again added caution thereto by mandating that
admissions to the educational institutions imparting higher
education, and in particular professional education, have to
admit the students based on merit. For judging the merit, the
Court indicated that there can be a CET. While doing so, it also
specifically stated that in case of admission to professional
courses such a CET can be conducted by the State. If such a
power is exercised by the State assuming the function of CET,
this was so recognised in T.M.A. Pai Foundation [T.M.A. Pai
Foundation v. State of Karnataka, (2002) 8 SCC 481 : 2 SCEC
1] itself, as a measure of “reasonable restriction on the said
right”. Islamic Academy of Education [Islamic Academy of
Education v. State of Karnataka, (2003) 6 SCC 697 : 2 SCEC
339] further clarified the contour of such function of the State
while interpreting T.M.A. Pai Foundation [T.M.A. Pai
Foundation v. State of Karnataka, (2002) 8 SCC 481 : 2 SCEC
1] itself wherein it was held that there can be committees
constituted to supervise conducting of such CET. This process of
interpretative balancing and constitutional balancing was
remarkably achieved in P.A. Inamdar [P.A. Inamdar v. State of
Maharashtra, (2005) 6 SCC 537 : 2 SCEC 745] by not only
giving its premature to deholding (sic imprimatur to the holding)
of CET but it went further to hold that agency conducting the
CET must be the one which enjoys the utmost credibility and
expertise in the matter to achieve fulfilment of twin objectives of
transparency and merit and for that purpose it permitted the
State to provide a procedure of holding a CET in the interest of
securing fair and merit-based admissions and preventing
maladministration.
68. We are of the view that the larger public interest warrants
such a measure. Having regard to the malpractices which are
noticed in the CET conducted by such private institutions
themselves, for which plethora of material is produced, it is,
undoubtedly, in the larger interest and welfare of the student
community to promote merit, add excellence and curb
malpractices. The extent of restriction has to be viewed keeping
in view all these factors and, therefore, we feel that the
impugned provisions which may amount to “restrictions” on the
right of the appellants to carry on their “occupation”, are
clearly “reasonable” and satisfied the test of proportionality.
45. The constitution Bench further considered the judgment in the case of
P.A. Inamdar v. State of Maharashtra, reported in (2005) 6 SCC 537
and held that such rights can be regulated to ensure maintenance of proper
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academic standards, atmosphere etc. In the present case the impugned
schemes are with a laudable purpose to enable meritorious students to get
admission in colleges as per choice and as per the merits of the student
concerned.
46. The aforesaid judgment was considered further by the Supreme Court
in the case of Christian Medical College Vellore vs. Union Of India
reported in (2020) 8 SCC 705. In the aforesaid case it was held that merit
based selection is in national interest and even if private unaided institutions
have right to administer the institutions, it cannot be done in such way that
will defeat merit. It was held that reasonable restriction can be imposed in
that education is not a trade nor a profession and reasonableness of
provisions of restriction can be assessed by the Court. However, as we have
already noted above in the present case even no restrictions are placed on the
education institution but only merit is being preserved by reimbursing the
entire fees of those students which will be by the State Government and the
institution shall be getting the entire fees that is fixed by the Admission and
Fees Regulatory Committee, not putting it to any loss or prejudice
whatsoever.
47. It is further held by the Supreme Court in the case of Christian
Medical College (supra) that it is duty of the State to provide health care
and improve public health so as to ensure doctors with professional
excellence enter the society which is in the larger interest of the nation
which is more important then rights of private medical colleges in the name
of autonomy. It is further held that the concept of limited government and
least interference is welcome but national interest would always have
priority over such a right.
“21. In Kerala Education Bill, 1957, In re [Kerala Education
Bill, 1957, In re, AIR 1958 SC 956 : 1959 SCR 995] , questionSignature Not Verified
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29arose concerning right of the Government to prescribe
qualification to be possessed by the incumbents for appointment
as teachers in aided or recognised schools. The State Public
Service Commission was empowered to select candidates for
appointment as teachers in government and aided schools. The
Court opined that minority cannot ask for the aid or recognition
for an educational institution without competent teachers and
fair standards. The choice does not necessarily militate against
the claim of the State to insist on reasonable regulations to
ensure the excellence of the institutions to be aided or even
recognised. The Court held thus: (AIR pp. 981-84, paras 29 &
31)
“29. Their grievances are thus stated: The gist of the right of
administration of a school is the power of appointment, control,
and dismissal of teachers and other staff. But under the said Bill
such power of management is practically taken away. Thus the
manager must submit annual statements (Clause 5). The fixed
assets of the aided schools are frozen and cannot be dealt with
except with the permission of the authorised officer (Clause 6).
No educational agency of an aided school can appoint a
manager of its choice and the manager is completely under the
control of the authorised officer, for he must keep accounts in the
manner he is told to do and to give periodical inspection of them
and on the closure of the school the accounts must be made over
to the authorised officer (Clause 7). All fees, etc. collected will
have to be made over to the Government [Clause 8(3)].
Government will take up the task of paying the teachers and the
non-teaching staff (Clause 9). Government will prescribe the
qualification of teachers (Clause 10). The school authorities
cannot appoint a single teacher of their choice, but must appoint
persons out of the panel settled by the Public Service
Commission (Clause 11). The school authorities must provide
amenities to teachers and cannot dismiss, remove, reduce, or
even suspend a teacher without the previous sanction of the
authorised officer (Clause 12). …
***
31. We are thus faced with a problem of considerable
complexity apparently difficult of solution. There is, on the one
hand the minority rights under Article 30(1) to establish and
administer educational institutions of their choice and the duty
of the Government to promote education, there is, on the other
side the obligation of the State under Article 45 to endeavour to
introduce free and compulsory education. We have to reconcile
between these two conflicting interests and to give effect to both
if that is possible and bring about a synthesis between the two.
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The directive principles cannot ignore or override the
fundamental rights but must, as we have said, subserve the
fundamental rights. We have already observed that Article 30(1)
gives two rights to the minorities, (1) to establish and (2) to
administer educational institutions of their choice. The right to
administer cannot obviously include the right to maladminister.
The minority cannot surely ask for aid or recognition for an
educational institution run by them in unhealthy surroundings,
without any competent teachers, possessing any semblance of
qualification, and which does not maintain even a fair standard
of teaching or which teaches matters subversive of the welfare of
the scholars. It stands to reason, then, that the constitutional
right to administer an educational institution of their choice does
not necessarily militate against the claim of the State to insist
that in order to grant aid the State may prescribe reasonable
regulations to ensure the excellence of the institutions to be
aided. Learned Attorney-General concedes that reasonable
regulations may certainly be imposed by the State as a condition
for aid or even for recognition. … Clauses 6, 7, 9, 10, 11, 12, 14,
15, and 20 relate to the management of aided schools. Some of
these provisions e.g. Clauses 7, 10, 11(1), 12(1), (2), (3) and (5)
may easily be regarded as reasonable regulations or conditions
for the grant of aid. Clauses 9, 11(2) and 12(4) are, however,
objected to as going much beyond the permissible limit. It is said
that by taking over the collections of fees, etc., and by
undertaking to pay the salaries of the teachers and other staff the
Government is in reality confiscating the school fund and taking
away the prestige of the school, for none will care for the school
authority. Likewise Clause 11 takes away an obvious item of
management, for the manager cannot appoint any teacher at all
except out of the panel to be prepared by the Public Service
Commission which, apart from the question of its power of
taking up such duties, may not be qualified at all to select
teachers who will be acceptable to religious denominations and
in particular sub-clause (2) of that clause is objectionable for it
thrusts upon educational institutions of religious minorities
teachers of Scheduled Castes who may have no knowledge of the
tenets of their religion and may be otherwise weak educationally.
Power of dismissal, removal, reduction in rank, or suspension is
an index of the right of management, and that is taken away by
Clause 12(4). These are, no doubt, serious inroads on the right
of administration and appear perilously near violating that right.
But considering that those provisions are applicable to all
educational institutions and that the impugned parts of Clauses
9, 11 and 12 are designed to give protection and security to the
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31
ill-paid teachers who are engaged in rendering service to the
nation and protect the backward classes, we are prepared, as at
present advised, to treat these Clauses 9, 11(2) and 12(4) as
permissible regulations which the State may impose on the
minorities as a condition for granting aid to their educational
institutions. We, however, find it impossible to support Clauses
14 and 15 of the said Bill as mere regulations. The provisions of
those clauses may be totally destructive of the rights under
Article 30(1). It is true that the right to aid is not implicit in
Article 30(1) but the provisions of those clauses, if submitted to
on account of their factual compulsion as condition of aid, may
easily be violative of Article 30(1) of the Constitution. The
learned counsel for the State of Kerala recognises that Clauses
14 and 15 of the Bill may annihilate the minority communities’
right to manage educational institutions of their choice but
submits that the validity of those clauses is not the subject-matter
of Question 2. But, as already explained, all newly established
schools seeking aid or recognition are, by Clause 3(5), made
subject to all the provisions of the Act. Therefore, in a discussion
as to the constitutional validity of Clause 3(5) a discussion of the
validity of the other clauses of the Bill becomes relevant, not as
and by way of a separate item but in determining the validity of
the provisions of Clause 3(5). In our opinion, sub-clause (3) of
Clause 8 and Clauses 9, 10, 11, 12 and 13 being merely
regulatory do not offend Article 30(1), but the provisions of sub-
clause (5) of Clause 3 by making the aided educational
institutions subject to Clauses 14 and 15 as conditions for the
grant of aid do offend against Article 30(1) of the Constitution.”
22. In Sidhrajbhai Sabbai v. State of Gujarat [Sidhrajbhai
Sabbai v. State of Gujarat, (1963) 3 SCR 837 : AIR 1963 SC
540] , the Court again considered the matter and observed that
educational institutions cater to the needs of the citizens or
section thereof. Regulation made in the real interests of
efficiency of instruction, discipline, health, sanitation, morality,
public order, and the like may undoubtedly be imposed. Such
regulations are not restrictive on the substance of the right,
which is guaranteed, they secure the proper functioning of the
institution in the matter of education. It was also observed that
regulation must satisfy a dual test — the test of reasonableness
and that it is regulative of the educational character of the
institution and is conducive to making the institution a capable
vehicle of education for the minority community or other persons
who resort to it. In W. Proost v. State of Bihar [W.
Proost v. State of Bihar, AIR 1969 SC 465 : (1969) 2 SCR 73] ,
the Court observed thus: (AIR pp. 468-69, para 8)
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“8. In our opinion, the width of Article 30(1) cannot be cut
down by introducing in it considerations on which Article 29(1)
is based. The latter article is a general protection which is given
to minorities to conserve their language, script, or culture. The
former is a special right to minorities to establish educational
institutions of their choice. This choice is not limited to
institution seeking to conserve language, script, or culture, and
the choice is not taken away if the minority community having
established an educational institution of its choice also admits
members of other communities. That is a circumstance irrelevant
for the application of Article 30(1) since no such limitation is
expressed and none can be implied. The two articles create two
separate rights, although it is possible that they may meet in a
given case.”
32. In T.M.A. Pai Foundation [T.M.A. Pai Foundation v. State
of Karnataka, (2002) 8 SCC 481 : 2 SCEC 1] , the Court held
that some system of computing equivalence between different
kinds of qualifications like a common entrance test, would not be
in violation of the rights conferred. The unaided minority
institutions under Article 30(1) of the Constitution of India have
the right to admit students, but the merit may be determined by
common entrance test and the rights under Article 30(1) are not
absolute so as to prevent the Government from making any
regulations. The Government cannot be prevented from framing
regulations that are in national interest. However, the safeguard
is that the Government cannot discriminate any minority
institution and put them in a disadvantageous position vis-à-vis
to other educational institutions and has to maintain the concept
of equality in real sense. The minority institutions must be
allowed to do what non-minority institutions are permitted. It is
open to State/bodies concerned to frame regulations with respect
to affiliation and recognition, to provide a proper academic
atmosphere. While answering Question 4, it was held that the
Government or the university can lay down the regulatory
measures ensuring educational standards and maintaining
excellence and more so, in the matter of admission to the
professional institutions. It may not interfere with the rights so
long as the admissions to the unaided minority institutions are
on transparent basis and the merit is adequately taken care of.
33. In Brahmo Samaj Education Society v. State of
W.B. [Brahmo Samaj Education Society v. State of W.B., (2004)
6 SCC 224 : 2 SCEC 618] , the Court opined that the State can
impose such conditions as are necessary for the proper
maintenance of standards of education and to check
maladministration. The decision of T.M.A. Pai
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Foundation [T.M.A. Pai Foundation v. State of Karnataka,
(2002) 8 SCC 481 : 2 SCEC 1] was followed in which it was
observed that the State could regulate the method of selection
and appointment of teachers after prescribing requisite
qualifications for the same. In Brahmo Samaj Education
Society [Brahmo Samaj Education Society v. State of W.B.,
(2004) 6 SCC 224 : 2 SCEC 618] , it was further opined that the
State could very well provide the basic qualification for teachers.
The equal standard of teachers has been maintained by the
NET/SLET.
34. This Court in P.A. Inamdar [P.A. Inamdar v. State of
Maharashtra, (2005) 6 SCC 537 : 2 SCEC 745] also considered
the difference between professional and non-professional
educational institutions, thus: (SCC pp. 594-96, paras 104-107)
“104. Article 30(1) speaks of “educational institutions”
generally and so does Article 29(2). These articles do not draw
any distinction between an educational institution dispensing
theological education or professional or non-professional
education. However, the terrain of thought as has developed
through successive judicial pronouncements culminating in Pai
Foundation [T.M.A. Pai Foundation v. State of Karnataka,
(2002) 8 SCC 481 : 2 SCEC 1] , is that looking at the concept of
education, in the backdrop of the constitutional provisions,
professional educational institutions constitute a class by
themselves as distinguished from educational institutions
imparting non-professional education. It is not necessary for us
to go deep into this aspect of the issue posed before us inasmuch
as Pai Foundation [T.M.A. Pai Foundation v. State of
Karnataka, (2002) 8 SCC 481 : 2 SCEC 1] , has clarified that
merit and excellence assume special significance in the context
of professional studies. Though merit and excellence are not
anathema to non-professional education, yet at that level and
due to the nature of education which is more general, the need
for merit and excellence therein is not of the degree as is called
for in the context of professional education.
105. Dealing with unaided minority educational
institutions, Pai Foundation [T.M.A. Pai Foundation v. State of
Karnataka, (2002) 8 SCC 481 : 2 SCEC 1] , holds that Article 30
does not come in the way of the State stepping in for the purpose
of securing transparency and recognition of merit in the matter
of admissions. Regulatory measures for ensuring educational
standards and maintaining excellence thereof are no anathema
to the protection conferred by Article 30(1). However, a
distinction is to be drawn between unaided minority educational
institution of the level of schools and undergraduate colleges on
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34
the one side and institutions of higher education, in particular,
those imparting professional education, on the other side. In the
former, the scope for merit-based selection is practically nil and
hence may not call for regulation. But in the case of the latter,
transparency and merit have to be unavoidably taken care of and
cannot be compromised. There could be regulatory measures for
ensuring educational standards and maintaining excellence
thereof. (See para 161, answer to Question 4, in Pai
Foundation [T.M.A. Pai Foundation v. State of Karnataka,
(2002) 8 SCC 481 : 2 SCEC 1] .) The source of this distinction
between two types of educational institutions referred to
hereinabove is to be found in the principle that right to
administer does not include a right to maladminister.
106. S.B. Sinha, J. has, in his separate opinion in Islamic
Academy [Islamic Academy of Education v. State of Karnataka,
(2003) 6 SCC 697 : 2 SCEC 339] , described (in para 199) the
situation as a pyramid-like situation and suggested the right of
minority to be read along with the fundamental duty. Higher the
level of education, lesser are the seats and higher weighs the
consideration for merit. It will, necessarily, call for more State
intervention and lesser say for the minority.
107. Educational institutions imparting higher education i.e.
graduate level and above and in particular specialised education
such as technical or professional, constitute a separate class.
While embarking upon resolving issues of constitutional
significance, where the letter of the Constitution is not clear, we
have to keep in view the spirit of the Constitution, as spelt out by
its entire scheme. Education aimed at imparting professional or
technical qualifications stands on a different footing from other
educational instruction. Apart from other provisions, Article
19(6) is a clear indicator and so are clauses (h) and (j) of Article
51-A. Education up to the undergraduate level aims at imparting
knowledge just to enrich the mind and shape the personality of a
student. Graduate-level study is a doorway to admissions in
educational institutions imparting professional or technical or
other higher education and, therefore, at that level, the
considerations akin to those relevant for professional or
technical educational institutions step in and become relevant.
This is in the national interest and strengthening the national
wealth, education included. Education up to the undergraduate
level on the one hand and education at the graduate and
postgraduate levels and in professional and technical institutions
on the other are to be treated on different levels inviting not
identical considerations, is a proposition not open to any more
debate after Pai Foundation [T.M.A. Pai Foundation v. State of
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Karnataka, (2002) 8 SCC 481 : 2 SCEC 1] . A number of
legislations occupying the field of education whose
constitutional validity has been tested and accepted suggest that
while recognition or affiliation may not be a must for education
up to undergraduate level or, even if required, may be granted
as a matter of routine, recognition or affiliation is a must and
subject to rigorous scrutiny when it comes to educational
institutions awarding degrees, graduate or postgraduate,
postgraduate diplomas and degrees in technical or professional
disciplines. Some such legislations are found referred in paras
81 and 82 of S.B. Sinha, J.’s opinion in Islamic
Academy [Islamic Academy of Education v. State of Karnataka,
(2003) 6 SCC 697 : 2 SCEC 339] .”
35. Dealing with unaided minority educational institutions
in T.M.A. Pai Foundation [T.M.A. Pai Foundation v. State of
Karnataka, (2002) 8 SCC 481 : 2 SCEC 1] , the Court observed
that Article 30 does not come in the way of the State stepping in
to secure transparency and recognition of merit in the matter of
admissions. Regulatory measures for ensuring educational
standards can be framed. In the case of professional education,
transparency and merit have to be unavoidably taken care of and
cannot be compromised.
36. In Sindhi Education Society v. State (NCT of Delhi) [Sindhi
Education Society v. State (NCT of Delhi), (2010) 8 SCC 49 :
(2010) 2 SCC (L&S) 522 : 3 SCEC 743] , the Court opined that
measures to regulate the courses of study, qualifications, and
appointment of teachers, the conditions of employment are
germane to the affiliation of minority institutions. The Court held
thus: (SCC pp. 73, 76-77 & 100-101, paras 47, 55-56 & 92)
“47. Still another seven-Judge Bench of this Court,
in Ahmedabad St. Xavier’s College Society [Ahmedabad St.
Xavier’s College Society v. State of Gujarat, (1974) 1 SCC 717 :
1 SCEC 125] , was primarily concerned with the scope of
Articles 29 and 30 of the Constitution, relating to the rights of
minorities to impart general education and applicability of the
concept of affiliation to such institutions. Of course, the Court
held that there was no fundamental right of a minority institution
to get affiliation from a university. When a minority institution
applies to a university to be affiliated, it expresses its choice to
participate in the system of general education and courses of
instructions prescribed by that university, and it agrees to follow
the uniform courses of study. Therefore, measures which will
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36hygiene of students and the other facilities are germane to
affiliation of minority institutions.
***
55. The respondents have placed reliance upon the law stated
by the Bench that any regulation framed in the national interest
must necessarily apply to all educational institutions, whether
run by majority or the minority. Such a limitation must be read
into Article 30. The rule under Article 30(1) cannot be such as to
override the national interest or to prevent the Government from
framing regulations in that behalf. It is, of course, true that
government regulations cannot destroy the minority character of
the institution or make a right to establish and administer a mere
illusion; but the right under Article 30 is not so absolute as to be
above the law.
56. The appellant also seeks to derive benefit from the view that
the courts have also held that the right to administer is not
absolute and is subject to reasonable regulations for the benefit
of the institutions as the vehicle of education consistent with the
national interest. Such general laws of the land would also be
applicable to the minority institutions as well. There is no reason
why regulations or conditions concerning generally the welfare
of the students and teachers should not be made applicable in
order to provide a proper academic atmosphere. As such, the
provisions do not, in any way, interfere with the right of
administration or management under Article 30(1). Any law,
rule or regulation, that would put the educational institutions
run by the minorities at a disadvantage, when compared to the
institutions run by the others, will have to be struck down. At the
same time, there may not be any reverse discrimination.
***
92. The right under clause (1) of Article 30 is not absolute but
subject to reasonable restrictions which, inter alia, may be
framed having regard to the public interest and national interest
of the country. Regulation can also be framed to prevent
maladministration as well as for laying down standards of
education, teaching, maintenance of discipline, public order,
health, morality, etc. It is also well settled that a minority
institution does not cease to be so, the moment grant-in-aid is
received by the institution. An aided minority educational
institution, therefore, would be entitled to have the right of
admission of students belonging to the minority group and, at the
same time, would be required to admit a reasonable extent of
non-minority students, to the extent, that the right in Article
30(1) is not substantially impaired and further, the citizen’s right
under Article 29(2) is not infringed.”
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37
37. In Chandana Das v. State of W.B. [Chandana Das v. State
of W.B., (2015) 12 SCC 140 : 7 SCEC 248] , the Court observed
that the Government can frame the conditions of eligibility for
appointment of such teachers, thus: (SCC p. 155, para 21)
“21. It is unnecessary to multiply decisions on the subject for
the legal position is well settled. Linguistic institution and
religious are entitled to establish and administer their
institutions. Such right of administration includes the right of
appointing teachers of its choice but does not denude the State of
its power to frame regulations that may prescribe the conditions
of eligibility for appointment of such teachers. The regulations
can also prescribe measures to ensure that the institution is run
efficiently for the right to administer does not include the right to
maladministration. While grant-in-aid is not included in the
guarantee contained in the Constitution to linguistic and
religious minorities for establishing and running their
educational institutions, such grant cannot be denied to such
institutions only because the institutions are established by
linguistic or religious minority. Grant of aid cannot, however, be
made subservient to conditions which deprive the institution of
their substantive right of administering such institutions. Suffice
it to say that once Respondent 4 Institution is held to be a
minority institution entitled to the protection of Articles 26 and
30 of the Constitution of India the right to appoint teachers of its
choice who satisfy the conditions of eligibility prescribed for
such appointments under the relevant rules is implicit in their
rights to administer such institutions. Such rights cannot then be
diluted by the State or its functionaries insisting that the
appointment should be made only with the approval of the
Director or by following the mechanism generally prescribed for
institutions that do not enjoy the minority status.”
38. In Modern Dental College & Research Centre [Modern
Dental College & Research Centre v. State of M.P., (2016) 7
SCC 353 : 7 SCEC 1] , the Constitution Bench of this Court
considered the provisions of Articles 19(1)(g), 19(6), 26 and 30
in relation to the right to freedom of occupation of private
unaided minority and non-minority educational institutions. This
Court observed that the activity of education is neither trade
nor profession i.e. commercialisation and profiteering cannot
be permitted. It is open to impose reasonable restrictions in the
interest of general public. The education cannot be allowed to
be a purely economic activity; it is a welfare activity aimed at
achieving more egalitarian and prosperous society to bring
about social transformation and upliftment of the nation.
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38.1. This Court further opined that private unaided minority
and non-minority institutions have a right to occupation under
Article 19(1), the said right is not absolute and subject to
reasonable restriction in larger public interest of students
community to promote merit, achieve excellence and curb
malpractices by holding common entrance test for admission and
fee structure can undoubtedly be regulated in such institutions.
38.3. The Court further considered the criteria of
proportionality and emphasised for proper balance between the
two facets viz. the rights and limitations imposed upon it by a
statute. The concept of proportionality is an appropriate
criterion. The law imposing restrictions will be treated as
proportional if it is meant to achieve a proper purpose. If the
measures taken to achieve such a goal are rationally connected
to the object, such steps are necessary. The Court considered the
concept of proportionality thus: (Modern Dental College &
Research Centre case [Modern Dental College & Research
Centre v. State of M.P., (2016) 7 SCC 353 : 7 SCEC 1] , SCC pp.
411-15, paras 57-64)
“57. It is well settled that the right under Article 19(1)(g) is not
absolute in terms but is subject to reasonable restrictions under
clause (6). Reasonableness has to be determined having regard
to the nature of right alleged to be infringed, purpose of the
restriction, extent of restriction and other relevant factors. In
applying these factors, one cannot lose sight of the directive
principles of State policy. The Court has to try to strike a just
balance between the fundamental rights and the larger interest
of the society. The Court interferes with a statute if it clearly
violates the fundamental rights. The Court proceeds on the
footing that the legislature understands the needs of the people.
The Constitution is primarily for the common man. Larger
interest and welfare of student community to promote merit,
achieve excellence and curb malpractices, fee and admissions
can certainly be regulated.
58. Let us carry out this discussion in some more detail as this
is the central issue raised by the appellants.
Doctrine of proportionality explained and applied
59. Undoubtedly, the right to establish and manage the
educational institutions is a fundamental right recognised under
Article 19(1)(g) of the Act. It also cannot be denied that this
right is not “absolute” and is subject to limitations i.e.
“reasonable restrictions” that can be imposed by law on the
exercise of the rights that are conferred under clause (1) of
Article 19. Those restrictions, however, have to be reasonable.
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39
Further, such restrictions should be “in the interest of general
public”, which conditions are stipulated in clause (6) of Article
19, as under:
’19. (6) Nothing in sub-clause (g) of the said clause shall affect
the operation of any existing law insofar as it imposes, or
prevent the State from making any law imposing, in the interests
of the general public, reasonable restrictions on the exercise of
the right conferred by the said sub-clause, and, in particular,
nothing in the said sub-clause shall affect the operation of any
existing law insofar as it relates to, or prevent the State from
making any law relating to–
(i) the professional or technical qualifications necessary for
practising any profession or carrying on any occupation, trade
or business, or
(ii) the carrying on by the State, or by a corporation owned or
controlled by the State, of any trade, business, industry or
service, whether to the exclusion, complete or partial, of citizens
or otherwise.’
60. Another significant feature which can be noticed from the
reading of the aforesaid clause is that the State is empowered to
make any law relating to the professional or technical
qualifications necessary for practising any profession or
carrying on any occupation or trade or business. Thus, while
examining as to whether the impugned provisions of the statute
and rules amount to reasonable restrictions and are brought out
in the interest of the general public, the exercise that is required
to be undertaken is the balancing of fundamental right to carry
on occupation on the one hand and the restrictions imposed on
the other hand. This is what is known as “doctrine of
proportionality”. Jurisprudentially, “proportionality” can be
defined as the set of rules determining the necessary and
sufficient conditions for limitation of a constitutionally protected
right by a law to be constitutionally permissible. According to
Aharon Barak (former Chief Justice, Supreme Court of Israel),
there are four sub-components of proportionality which need to
be satisfied [ Aharon Barak, Proportionality: Constitutional
Rights and Their Limitation (Cambridge University Press,
2012). a limitation of a constitutional right will be
constitutionally permissible if:
(i) it is designated for a proper purpose;
(ii) the measures undertaken to effectuate such a limitation are
rationally connected to the fulfilment of that purpose;
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(iii) the measures undertaken are necessary in that there are no
alternative measures that may similarly achieve that same
purpose with a lesser degree of limitation; and finally
(iv) there needs to be a proper relation (“proportionality
stricto sensu” or “balancing”) between the importance of
achieving the proper purpose and the social importance of
preventing the limitation on the constitutional right.
61. Modern theory of constitutional rights draws a fundamental
distinction between the scope of the constitutional rights, and the
extent of its protection. Insofar as the scope of constitutional
rights is concerned, it marks the outer boundaries of the said
rights and defines its contents. The extent of its protection
prescribes the limitations on the exercises of the rights within its
scope. In that sense, it defines the justification for limitations
that can be imposed on such a right.
62. It is now almost accepted that there are no absolute
constitutional rights [Per Sikri, J.– Though, debate on this
vexed issue still continues and some constitutional experts claim
that there are certain rights, albeit very few, which can still be
treated as “absolute”. Examples given are: (a) Right to human
dignity which is inviolable, (b) Right not to be subjected to
torture or to inhuman or degrading treatment or punishment.
Even in respect of such rights, there is a thinking that in larger
public interest, the extent of their protection can be diminished.
However, so far such attempts of the States have been thwarted
by the judiciary.] and all such rights are related. As per the
analysis of Aharon Barak [ Aharon Barak, Proportionality:
Constitutional Rights and Their Limitation (Cambridge
University Press, 2012).] , two key elements in developing the
modern constitutional theory of recognising positive
constitutional rights along with its limitations are the notions of
democracy and the rule of law. Thus, the requirement of
proportional limitations of constitutional rights by a sub-
constitutional law i.e. the statute, is derived from an
interpretation of the notion of democracy itself. Insofar as the
Indian Constitution is concerned, democracy is treated as the
basic feature of the Constitution and is specifically accorded a
constitutional status that is recognised in the Preamble of the
Constitution itself. It is also unerringly accepted that this notion
of democracy includes human rights which is the cornerstone of
Indian democracy. Once we accept the aforesaid theory (and
there cannot be any denial thereof), as a fortiori, it has also to
be accepted that democracy is based on a balance between
constitutional rights and the public interests. In fact, such a
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41certain freedoms in clause (1) of Article 19 and at the same time
empowers the State to impose reasonable restrictions on those
freedoms in public interest. This notion accepts the modern
constitutional theory that the constitutional rights are related.
This relativity means that a constitutional licence to limit those
rights is granted where such a limitation will be justified to
protect public interest or the rights of others. This
phenomenon–of both the right and its limitation in the
Constitution–exemplifies the inherent tension between
democracy’s two fundamental elements. On the one hand is the
right’s element, which constitutes a fundamental component of
substantive democracy; on the other hand is the people element,
limiting those very rights through their representatives. These
two constitute a fundamental component of the notion of
democracy, though this time in its formal aspect. How can this
tension be resolved? The answer is that this tension is not
resolved by eliminating the “losing” facet from the Constitution.
Rather, the tension is resolved by way of a proper balancing of
the competing principles. This is one of the expressions of the
multi-faceted nature of democracy. Indeed, the inherent tension
between democracy’s different facets is a “constructive tension”.
It enables each facet to develop while harmoniously coexisting
with the others. The best way to achieve this peaceful
coexistence is through balancing between the competing
interests. Such balancing enables each facet to develop
alongside the other facets, not in their place. This tension
between the two fundamental aspects–rights on the one hand
and its limitation on the other hand–is to be resolved by
balancing the two so that they harmoniously coexist with each
other. This balancing is to be done keeping in mind the relative
social values of each competitive aspect when considered in
proper context.
63. In this direction, the next question that arises is as to what
criteria is to be adopted for a proper balance between the two
facets viz. the rights and limitations imposed upon it by a statute.
Here comes the concept of “proportionality”, which is a proper
criterion. To put it pithily, when a law limits a constitutional
right, such a limitation is constitutional if it is proportional. The
law imposing restrictions will be treated as proportional if it is
meant to achieve a proper purpose, and if the measures taken to
achieve such a purpose are rationally connected to the purpose,
and such measures are necessary. This essence of doctrine of
proportionality is beautifully captured by Dickson, C.J. of
Canada in R. v. Oakes [R. v. Oakes, 1986 SCC OnLine Can SC 6
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: (1986) 1 SCR 103] in the following words (at p. 138): (SCC
OnLine Can SC paras 69-71)
69. To establish that a limit is reasonable and demonstrably
justified in a free and democratic society, two central criteria
must be satisfied. First, the objective, which the measures,
responsible for a limit on a Charter right or freedom are
designed to serve, must be “of” sufficient importance to warrant
overriding a constitutional protected right or freedom …
70. Second … the party invoking Section 1 must show that the
means chosen are reasonable and demonstrably justified. This
involves “a form of proportionality test”… Although the nature
of the proportionality test will vary depending on the
circumstances, in each case courts will be required to balance
the interests of society with those of individuals and groups.
There are, in my view, three important components of a
proportionality test. First, the measures adopted must be …
rationally connected to the objective. Second, the means …
should impair “as little as possible” the right or freedom in
question … Third, there must be a proportionality between the
effects of the measures which are responsible for limiting
the Charter right or freedom, and the objective which has been
identified as of “sufficient importance”.
71. … The more severe the deleterious effects of a measure, the
more important the objective must be if the measure is to be
reasonable and demonstrably justified in a free and democratic
society.’
64. The exercise which, therefore, is to be taken is to find out as
to whether the limitation of constitutional rights is for a purpose
that is reasonable and necessary in a democratic society and
such an exercise involves the weighing up of competitive values,
and ultimately an assessment based on proportionality i.e.
balancing of different interests.”
38.4. In Modern Dental College & Research Centre [Modern
Dental College & Research Centre v. State of M.P., (2016) 7
SCC 353 : 7 SCEC 1] , the Court, while dealing with reasonable
restriction on rights under Article 19 observed: (SCC pp. 415-
16, para 65)
“65. We may unhesitatingly remark that this doctrine of
proportionality, explained hereinabove in brief, is enshrined in
Article 19 itself when we read clause (1) along with clause (6)
thereof. While defining as to what constitutes a reasonable
restriction, this Court in a plethora of judgments has held that
the expression “reasonable restriction” seeks to strike a balance
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between the freedom guaranteed by any of the sub-clauses of
clause (1) of Article 19 and the social control permitted by any
of the clauses (2) to (6). It is held that the expression
“reasonable” connotes that the limitation imposed on a person
in the enjoyment of the right should not be arbitrary or of an
excessive nature beyond what is required in the interests of
public. Further, in order to be reasonable, the restriction must
have a reasonable relation to the object which the legislation
seeks to achieve, and must not go in excess of that object
(see P.P. Enterprises v. Union of India [P.P.
Enterprises v. Union of India, (1982) 2 SCC 33 : 1982 SCC (Cri)
341] ). At the same time, reasonableness of a restriction has to
be determined in an objective manner and from the standpoint of
the interests of the general public and not from the point of view
of the persons upon whom the restrictions are imposed or upon
abstract considerations (see Mohd. Hanif Quareshi v. State of
Bihar [Mohd. Hanif Quareshi v. State of Bihar, AIR 1958 SC
731] ). In MRF Ltd. v. State of Kerala [MRF Ltd. v. State of
Kerala, (1998) 8 SCC 227 : 1999 SCC (L&S) 1] , this Court held
that in examining the reasonableness of a statutory provision
one has to keep in mind the following factors:
(1) The directive principles of State policy.
(2) Restrictions must not be arbitrary or of an excessive
nature so as to go beyond the requirement of the interest of the
general public.
(3) In order to judge the reasonableness of the restrictions, no
abstract or general pattern or a fixed principle can be laid
down so as to be of universal application and the same will
vary from case to case as also with regard to changing
conditions, values of human life, social philosophy of the
Constitution, prevailing conditions and the surrounding
circumstances.
(4) A just balance has to be struck between the restrictions
imposed and the social control envisaged by Article 19(6).
(5) Prevailing social values as also social needs which are
intended to be satisfied by the restrictions.
(6) There must be a direct and proximate nexus or reasonable
connection between the restrictions imposed and the object
sought to be achieved. If there is a direct nexus between the
restrictions, and the object of the Act, then a strong
presumption in favour of the constitutionality of the Act will
naturally arise.”
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38.7. The Court also took note of prevailing situation of
corruption in the field of education and commercialisation of
education thus: (Modern Dental College & Research Centre
case [Modern Dental College & Research Centre v. State of
M.P., (2016) 7 SCC 353 : 7 SCEC 1] , SCC pp. 416-17, 425,
428, 465 & 473, paras 68, 86, 96, 172 & 190)
“68. We are of the view that the larger public interest warrants
such a measure. Having regard to the malpractices which are
noticed in the CET conducted by such private institutions
themselves, for which plethora of material is produced, it is,
undoubtedly, in the larger interest and welfare of the student
community to promote merit, add excellence and curb
malpractices. The extent of restriction has to be viewed keeping
in view all these factors and, therefore, we feel that the
impugned provisions which may amount to “restrictions” on the
right of the appellants to carry on their “occupation”, are
clearly “reasonable” and satisfied the test of proportionality.
***
86. It is, therefore, to be borne in mind that the occupation of
education cannot be treated on a par with other economic
activities. In this field, the State cannot remain a mute
spectator and has to necessarily step in in order to prevent
exploitation, privatisation and commercialisation by the private
sector. It would be pertinent to mention that even in respect of
those economic activities which are undertaken by the private
sector essentially with the objective of profit-making (and there
is nothing bad about it), while throwing open such kind of
business activities in the hands of private sector, the State has
introduced regulatory regime as well by providing regulations
under the relevant statutes.
***
96. As is evident from the facts mentioned by the State of
Madhya Pradesh in its reply filed in IA No. 83 of 2015, the
Association of Private Colleges has failed to hold their CETs in
a fair, transparent and rational manner. The accountability and
transparency in State actions is much higher than in private
actions. It is needless to say that the incidents of corruption in
the State machinery were brought in the public eye immediately
and have been addressed expeditiously. The same could never
have been done in case of private actions. Even on a keel of
comparative efficiency, it is more than evident that the State
process is far more transparent and fair than one that is devised
by the private colleges which have no mechanism of any checks
and balances. The State agencies are subject to the Right to
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Information Act, audit, State Legislature, anti-corruption
agencies, Lokayukta, etc.
***
172. Maintenance and improvement of public health and to
provide health care and medical services is the constitutional
obligation of the State. To discharge this constitutional
obligation, the State must have the doctors with professional
excellence and commitment who are ready to give medical
advice and services to the public at large. The State can
satisfactorily discharge its constitutional obligation only when
the aspiring students enter into the profession based on merit.
None of these lofty ideals can be achieved without having good
and committed medical professionals.
***
190. For the foregoing discussion, I hold that the State has the
legislative competence to enact the impugned legislation–the
2007 Act to hold common entrance test for admission to
professional educational institutions and to determine the fee
and the High Court has rightly upheld the validity of the
impugned legislation. Regulations sought to be imposed by the
impugned legislation on admission by common entrance test
conducted by the State and determination of fee are in
compliance with the directions and observations in T.M.A.
Pai [T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC
481 : 2 SCEC 1], Islamic Academy of Education [Islamic
Academy of Education v. State of Karnataka, (2003) 6 SCC 697 :
2 SCEC 339] and P.A. Inamdar [P.A. Inamdar v. State of
Maharashtra, (2005) 6 SCC 537 : 2 SCEC 745] . Regulations on
admission process are necessary in the larger public interest and
welfare of the student community to ensure fairness and
transparency in the admission and to promote merit and
excellence. Regulation on fixation of fee is to protect the rights of
the students in having access to higher education without being
subjected to exploitation in the form of profiteering. With the
above reasonings, I concur with the majority view in upholding
the validity of the impugned legislation and affirm the well-
merited decision of the High Court [Assn. of Private Dental &
Medical Colleges v. State of M.P., 2009 SCC OnLine MP 760] .”
54. There is no doubt as to the concept of limited Government
and least interference is welcomed, but in which field and to
what extent balancing with the larger public and national
interest is required. The individual autonomy, rights, and
obligations are to be free from official interference except
where the rational basis for intrusion exists. The Constitution
provides a limitation on the power of the State to interfere with
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life, liberty, and rights, however, the concept of limited
Government cannot be extended to a level when it defeats the
very national interest. The maladies with which professional
education suffers in this country are writ large. The regulatory
framework created by the MCI/DCI is concomitant of conditions,
affiliation and recognition, and providing central examination in
the form of NEET cannot be said to be violative of the rights
under Articles 19(1)(g) and 30. The regulatory framework is not
restrictive, but caters to the effective enjoyment of the rights
conferred under the aforesaid provisions. The provisions qualify
the doctrine of proportionality considered in Modern Dental
College & Research Centre [Modern Dental College &
Research Centre v. State of M.P., (2016) 7 SCC 353 : 7 SCEC 1]
. What has been held therein for State-level examination holds
good for NEET also.
(Emphasis supplied)
Apart from the above, in para-31, the Constitutional Bench also dealt
with the consideration on all relevant issues made by the 11-judges
Constitution Bench in T.M.A. Pai (supra) in detail in paragraphs 3, 38, 40,
45, 50, 53, 68, 71, 90, 93, 105 to 107, 119-23, 135-39, 144, 151 to 152 &
161 thereof.
48. In view of the above, we have no hesitation in upholding the
constitutionality of the impugned schemes which are framed with a laudable
objective of promoting merit in medical colleges in the State, have a rational
nexus with a lawful and Constitutional object, and are not found
disproportionate in any manner.
49. Now coming to the alternative argument of the counsel for the
petitioner that there are some provisions in the scheme that are creating
hurdles for the medical colleges and also that the State is not timely
reimbursing the fees, we embark on consideration on those aspects.
50. So far as the issue of direct remittance of fee in the account of
educational institution is concerned, it has been explained by the State that
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there were various instances which were being detected when earlier fees
were being reimbursed directly to the account of the colleges and there uses
to be instances when students used to take admissions in number of Colleges
as per their qualification in examination of class-12 and then draw
scholarship of first year or fees reimbursement of first year in all those
colleges and then continue education only in one of the colleges for the
succeeding year. By paying the fees directly to the college, monitoring of
such type of malpractices is not possible and the consistent practice now is
to remit fees to the accounts of students which is in case of remittance of fee
or even in case of scholarship, both to ensure prevention of malpractices of
one student drawing multiple reimbursement for scholarship. We do not find
any illegality in the said clause of the scheme which provides for
reimbursement of fees directly in the account of the students.
51. However, there seems to some force in the contention of the petitioner
that the fees when remitted to the account of the students, most often it is
utilized by the students for its own purposes and is remitted only at the time
of examination when the college has no option but to withhold admit cards
for want of payment of fees. However, no instance was pointed out to this
Court where students in private medical college of the petitioner have
pocketed the fees and not deposited to the College at all, all that was argued
that the fees was paid by student with delay. However, this would require
some directions in the matter.
52. The other issue raised was that as per clause 4.1 of the MMJKY
Scheme-2018 if a student fails in a single year he would be out of purview
of the scheme. We cannot lose sight of the fact that there may be genuine
contingencies like a student falling ill at the time of admission, meeting with
an accident at the time of admission or any other contingencies on account
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of which either he cannot take the examination or fails in the examination
though he may be meritorious. Otherwise there is no reason why a student
having merit would leave course in mid way even when he is being funded
by the State Government and does not have to bear the fees itself. Therefore,
some directions are needed on this issue also.
53. The third issue raised was matter of late remittance of fees. It is
brought on record that there have been late remittances of fees since a long
time and it is admitted by counsel for State before us that in case of
petitioner even on 17.02.2025 for the session 2023-24 almost 40% of the
fees is balance to be paid and no amount has been paid at all for the session
2024-25. We note that the private medical colleges have to bear their
expenses from their own resources and late payment of fees would harm and
damage their interest to some extent and some directions needs to be issued
in that matter also.
54. Therefore, while dismissing the petition as to legality of Schemes i.e.
MMMVY and MMJKY Schemes, we issue the following directions:-
(i) The students would not come out of purview of the scheme as
per clause 4.1 automatically and once the student passes the
next examination, the State would be required to take note of
the representation to be submitted by the students through the
college mentioning the reasons on account of which he failed
in a particular examination and if the reasons are found to be
genuine like accident, illness or death in the family etc. or the
like unforeseen situations, then his coverage under the
Scheme shall be continued.
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49and ensure remittance of fees of succeeding years within
three months of declaration of result of having passed
previous year and having received information from the
college concerned about the student having started to attend
classes of the next year.
(iii) So far as the issue of fees being remitted directly in the bank
account of the students is concerned, the aforesaid system has
already been upheld as to be reasonable. However, to
smoothen out the difficulties faced in application of the said
scheme, we direct that the fees would be remitted in a joint
account to be opened by the students alongwith the
institution which would be e-Aadhar verified (of the student)
and debits from the said account would not be permitted to
the students but only be permitted to the institution and the
said account would not be enabled for online transactions and
UPI transactions, nor issued with ATM/Debit cards.
55. With the aforesaid directions, upholding the validity of the impugned
Schemes, the petition is disposed of.
(SURESH KUMAR KAIT) (VIVEK JAIN)
CHIEF JUSTICE JUDGE
Nks/ /RJ/ MISHRA
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