In Supreme Court of India
(2016) 7 SCC 353
(AIR 2016 SC 2601
Modern Dental College and Research Centre and other unaided private medical and dental colleges
State of Madhya Pradesh
Date of Judgement
02 May 2016
Anil R. Dave, A.K. Sikri, R.K. Agrawal, Adarsh Kumar Goel, R. Banumathi
It all started with a batch of writ petitions filed under article 226 of the Constitution in the High Court of Madhya Pradesh, principal bench at Indore by three professional colleges namely Modern dental college and research centre(Indore), RD Gardi medical college (Ujjain), and people’s college of dental sciences and research centre(Bhopal) challenging the validity/vires of:
1. The provisions of the statute passed by the state legislature known as Niji Vyavasayik Shikshan Sanstha(pravesh ka viniyaman avam shulk ka nirdharan) adhiniyam, 2007
2. Admission rules, 2008
3. Madhya Pradesh private medical and dental postgraduate courses entrance examination rules, 2009, framed by the state govt in exercise the power conferred upon it vide section 12 of the act 2007
These regulate primarily the admission of students in post graduate courses in private professional educational institutions and provisions are also made for fee fixation (sec 4, 2007 act) and reservation of seats to persons belonging to the Scheduled castes, Scheduled Tribes and other backward classes.
4. order dated 28-02-2009 which allows the state government to conduct the common entrance test (section 6 and defined under section 3(d), 2007 act) for admission to postgraduate medical and dental colleges through Madhya Pradesh professional examination board (VYAPAM)
The challenge was laid to these provisions on four grounds: a) admission b) fee fixation c) reservation d) eligibility for admission
High Court held that the Judgement in TMA Pai Foundation as explained in P.A. Inamdar V. State of Maharashtra permits the government to regulate the admissions as well as fee even of the private Unaided educational institutions and that the impugned provisions are saved by article 19(6) of the Constitution as they amount to reasonable restrictions imposed on the right of admission and fixation of fee otherwise vested with the appellants.
High Court concluded
1. That the provisions of section 6 read with section 3(d) of the act 2007 which provides that admissions to the sanctioned intake shall be on the basis of CET followed by centralized counselling by the state government or by an agency authorized by the state Government are in consonance with the judgement of this court in TMA Pai foundation and PA Inamdar and do not impinge on the fundamental right to carry on the occupation of establishing and administering professional educational institutions. Citing these two cases court emphasized that the admission is to be made on the basis of merit which is usually determined either my marks that the student obtains at the qualifying examination followed by interview or by a Common entrance test (CET) conducted by the institution or in the case of professional colleges, by government agencies. Since merit has to be the prime consideration and one of the recognized modes of ascertaining the merit is through CET and insofar as professional colleges are concerned, TMA Pai foundation itself permitted such CET to be conducted by the government agencies. Also, high court permitted framing of regulations for Unaided private professional educational institutions both minority and non minority for conducting such admission tests to be able to achieve the objective of excellence in admission, curbing malpractices, maintenance of high standards and in the larger national interest of the welfare of students community.
2. Provisions dealing with fee fixation given in section 4(1),(8) and 9, high court recognized the right of these institutions as found in TMA Pai to set up their own fee structure. But this same judgement gives power to the state to regulate this and empower the committee to satisfy itself to ensure that there is no profiteering or commercialization of education. The factors mentioned in section 9 for fixation of fees takes into consideration the nature of professional courses, the cost of land and building, the available infrastructure, teaching, non teaching staff and equipment, expenditure on administration and maintenance as well as reasonable surplus required for growth and development of the professional institutions are precisely the mandate of TMA Pai Foundation.
3. Dealing with the matter of Reservations, court discussed the dictum laid down in M.R. Balaji & Ors V. State of Mysore that the interest of the society at large is subserved to promote the advancement of weaker sections of the society and thus it authorises the State to make special provision for such weaker sections with the only exception that it should not exclude and ignore the rest of the society. The insertion of clause (5) to article 15 by the Constitution 93rd amendment act 2005 empowers the state to make special provision by law for the advancement of any socially and educationally backward classes of citizens or for the SCs and STs relating to admission to the educational institutions including the private professional educational institutions whether aided or Unaided including minority institutions. In the present case the seats earmarked under rule 7 of rules 2009 for candidates belonging to different reserved category demonstrates that sufficient number of seats have also been allotted for unreserved categories.
The present appeal has been filed in the Supreme Court challenging the judgement passed by the High Court on 15th May 2009.
- That these medical and dental colleges being private unaided (self financing institutions running from their own funds and receiving no government aid) colleges, it is their fundamental right under article 19(1)(g) of the Constitution of India to lay down the eligibility criteria for Admission and admit the students as well as fix their fees and even if this right is regulated by the state the interference should be minimum and only for the purpose of maintaining academic standards and the institutions should be given requisite autonomy in their functioning, management and administration.
- Relying upon the decision of this court in TMA Pai Foundation & ors vs state of Karnataka, it was argued that right to administer educational institution is recognized as an occupation and is thus a fundamental right to carry on such an occupation as stipulated under article 19(1)( g).
- The provisions in the aforesaid act and rules impinge upon the fundamental rights guaranteed to these institutions under the Constitution and therefore the said provisions are violative of article 19(1)(g).
- For the provisions relating to reservation, their contention was twofold: a) private educational institutions cannot be foisted with the obligation to admit students as it was the obligation of State, and b) provisions of the act made excessive reservations leaving hardly any seats for unreserved category and that these provisions violated the judgement of the Supreme Court in Ashok Kumar Thakur’s case.
- Incompetency of state legislature to formulate rules on the subject matter dealing with admission in higher educational institution as it falls in entry 66 of list 1 to the seventh schedule and not under entry 25 of list 3 and so only parliament can make rules in this case.
Judgement of the high court was without blemish as it had given due and adequate consideration to all the aforesaid submissions of the appellant’s advanced before the high court as well and rightly negated these submissions by correctly reading out the ratio of TMA Pai Foundation as explained in Islamic academy of education and put beyond the pale of controversy by PA Inamdar and submitted that no interference was required.
- Whether the right claimed by the appellants is a fundamental right guaranteed under Article 19(1)(g) of the Constitution? If yes, what are the features it encompasses?
- Whether the impugned statute imposes any restrictions on the right given to the appellants?
- Whether such restrictions are reasonable and therefore protected under clause (6) of article 19 of the Constitution?
There has always been a conflict of interest between the State Government and the bodies that establish institutions and impart professional medical education to the youth of this country in the sense that while on the one hand state governments wants to control the instructions for socio political considerations, on the other hand the people who set up and establish the instructions have a desire to run and exercise functional control over the instructions. But with the coming up of modern age and liberalization, there has been a paradigm shift from the era of a complete government control to a situation where private players are allowed to be established as state lacks the required funds imperative to provide quality education and infrastructure facilities. These private institutions however have not been given complete freedom and they work within the regulatory regime formulated by the state to ensure maintenance of proper academic standards, atmosphere and infrastructure. They are put under shackles as at the end of the day education is a noble occupation and cannot be put at par with other professions and can not be treated as a business activity even though it is now treated as an occupation and has become a fundamental Right guaranteed under 19(1)(g). No profiteering and commercialization should take place 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 when it comes to higher education especially professional institutions. Some methodology for testing merit has been suggested under TMA Pai foundation which is determined either by the marks obtained at the qualifying examination followed by interview or a common entrance test conducted by the institute or government agencies in case of professional colleges. Aided and unaided professional institutions should not be subject to the same rules and regulations regulating admission as this would be unfair. Unaided are entitled to autonomy till the extent that they do not forego the principle of merit and the admission process meets the triple test of transparency, fairness and non-exploitativeness.
- Dealing with the first issue, right of professional institution to establish and manage educational institutions where a large number of persons are employed as teachers and administrative staff and an activity is carried on that results in imparting of knowledge to the students even if there is no element of profit generation has been regarded as an occupation befitting the recognition of this right as a fundamental right under Article 19(1)(g) in TMA Pai Foundation case. This right has further been delineated into four specific rights: a) right to admit students b) right to set up reasonable fee structure c) right to appoint staff d) right to take action in case of dereliction of duty by employees. But what has to be seen here is the scope of this right to occupation.
- Court answered the second issue in affirmation that the impugned legislation and Rules do impose restrictions. But what needs to be noted is are the restrictions reasonable?
- Dealing with the third issue, Court held that right under article 19(1)(g) is not absolute but subject to reasonable restrictions under clause (6)
Taking into consideration clause (6) of article 19, the state is empowered to make any law relating to the professional or technical qualifications necessary for practicing any profession or carrying any occupation or trade or business Reasonableness has to be determined having regard to the nature of the right alleged to be infringed, purpose and extent of restriction and in the interest of the general public.
To judge the reasonability of a statute, the exercise that is required to be undertaken is the balancing of fundamental right to carry on an occupation on one hand and the restrictions imposed on the other. This is known as Doctrine of Proportionality. The concept of Proportionality allows only those set of rules which imposes necessary and sufficient conditions for limitation of a constitutionally protected right by a law to be constitutionally permissible.
While determining the reasonableness of the restrictions imposed by the state on the freedom of occupation, the principles to be taken into account are summed up in MRF Ltd v inspector, Kerala government and ors:
1. the court has to keep in mind not just article 19 or part III of the Constitution but also the Directive Principles of State Policy set forth in part IV of the Constitution. A law or measure designed for promoting or having the effect of advancing directive principles is per SE reasonable and in public interest. A restriction placed on any fundamental right aimed at securing directive principles will be held as reasonable and hence intra vires subject to two limitations: i) it does not run in clear conflict with the fundamental right ii) it has been enacted with the legislative competence of the enacting legislature under part XI of the Constitution
2. Restrictions must be within the bounds of law and the interest of the general public and cannot be arbitrary or of an excessive nature.
3. No abstract or general pattern can be laid down, will vary from case to case depending on background of facts and circumstances under which the order was made, the nature of the evil sought to be achieved, ratio of harm caused to individual citizens by the proposed remedy, beneficial effect expected to result to the general public.
4. Just balance to be struck between restrictions imposed and social control envisaged by clause (6) of article 19
5. Restrictions should satisfy the prevailing social values and social needs.
6. Direct and proximate Nexus or reasonable connection between the restrictions imposed and the object sought to be achieved.
The state has a duty to balance the direct impact on the fundamental right of individuals as against the greater public or social interest. The interest of a citizen or section of a community, howsoever important, is secondary to the interest of the country or the community as a whole.
It is the obligation of the state under the Constitution to ensure the creation of conditions necessary for good health including provisions for basic curative and preventive health services and assurance of healthy living and working conditions. Under articles 39(e), (f) and 42, obligations are cast on the state to ensure health and strength of workers, men and women, ensure children are given opportunities & facilities to develop in a healthy manner and to secure just and humane conditions of work and for.maternity relief respectively. To discharge this obligation state must have doctors with professional excellence and commitment which can only happen when the aspiring students enter into profession based on merit.
Public interest and rights of the students at large are superior to the fundamental rights of private unaided professional colleges.. Right to be treated fairly and to get admission through a non arbitrary, non discriminatory, fair and transparent procedure is a fundamental right of the students under article 14. Any law which creates an artificial classification between private unaided institutions and other institutions and creates a disparity in the matter of admission whereby a meritorious student could be denied admission to pursue higher education in a private unaided institute solely because such institution has an unfettered right to choose it’s own students without following a uniform and transparent admission procedure would be violative of the rights of the aspiring students guaranteed under article 14. Right of the students to admission in private unaided medical colleges is a right of equality in opportunity.
Fundamental rights of colleges to run their administration includes fixation of fee. However such right has to be balanced with the rights of the students so that they are not subjected to exploitation in the form of profiteering. The act does not give unbridled power to the authority to determine the fee. This fee determination has to based on the factors stipulated in section 9 of the act. Further an opportunity of appeal is also provided for in the act 2007 to the aggrieved.
And so court answering the third issue stated citing the High Court judgement that regulations sought to be imposed including conducting of CET, fee fixation and reservation is a reasonable restriction and in compliance with the directions and observations in TMA Pai, Islamic academy of education and PA Inamdar.
Dealing with the question of whether State has the legislative competence to enact the impugned legislation act 2007 to hold common entrance test for admission to professional educational institutions and to determine the fee and matters related reservation , High Court has rightly upheld the validity of the impugned legislation by reasoning that when it comes to coordination and laying down of standards in the higher education or research and scientific and technical institutions, power rests with the union/ parliament under entry 66 of list 1 to the seventh schedule to the exclusion of state legislatures. However other facets of education, including technical and medical education as well as governance of universities is concerned, even state legislatures are given power by virtue of entry 25 of list 3 in the seventh schedule.
The concept of welfare of the society would apply more vigorously in the field of education as it is not treated just as a purely economic activity but welfare activity aimed at achieving more egalitarian and prosperous society by empowering the people of this country by educating them and regulatory mechanisms become all the more important as the purpose of education is to bring about social transformation and thereby a better society as it aims at creating better human resource which would contribute to the socio economic and political upliftment of the nation. Hence state cannot remain a mere spectator and has to necessarily step in order to prevent exploitation, privatization and commercialization by the private sector. And so there was no violation of right of autonomy of the educational institutions in conducting the CET, called NEET.
Edited by J. Madonna Jephi
Approved & Published – Sakshi Raje