MODERN DENTAL COLLEGE AND RESEARCH CENTRE & ORS. v. STATE OF MADHYA PRADESH & ORS.

"The Committee observes that the Medical Council of Jndia as the regulator of medical education in the country has repeatedly failed on all it mandates over the decades. The Committee in the earlier part of this Report has dealt with these failures in some details. In this section, the Committee before suggesting remedy to the problem, would like to briefly touch upon the following prominent failures of MCI in order to put things into proper perspective:- (i) failure to create a curriculum that produces doctors suited to working in Indi.an context especially in the rural health services and poor urban areas; this has created a disconnect between medical education system and health system; c (ii) failure to maintain uniform standards of medical education, both undergraduate and post-graduate; (iii) development of merit in admission, particularly in private medical institutions due to prevalence of capitation fees, which D make medical education available only to the rich and not necessarily to the most deserving; (iv) failure to produce a competent basic doctor; (v) non-involvement of the MCI in any standardized summative evaluation of the medical graduates and post-graduates; E (vi) failure to put in place a robust quality assurance mechanism when a fresh graduate enters the system and starts practicing; (vii) very little oversight to PG medical education leading to huge variations in standards; F (viii) heavy focus on nitty-gritty of infrastructure and human staff during inspections but no substantial evaluation of quality of teaching, training and imparting of skills; (ix) abysmal doctor-population ratio; (x) failure to create a transparent system of medical college G inspections and grant ofrecognition or de-recognition; (xi) failure to guide setting up of medical college in the country as per need, resulting in geographical mal-distribution of medical colleges with clustering in some states and absence in several H

666 SUPREME COURT REPORTS [2016] 3 S.C.R.

A other states and the disparity in healthcare services across states; (xii) acute shortage of medical teachers; · (xiii) fai Iure to oversee and guide the Continuing Medical Education in the country, leaving this important task in the hands of the commercial private industry; B (xiv) failure to instill respect for a professional code of ethics in the medical professional and take disciplinary action against doctor$ found violating the code of Ethics, etc. (Para 13.1) The Committee simultaneously observes that the onus of failure c of medical education system cannot be laid exclusively on the Medical Council of India. The successive Govenunents have also their share in it. The fact that there is imbalance in the distribution of medical college across States is not so mucn MCI's fault; it is the fault of the successive Governments that they have not pushed the MCI in that direction. There is also failure on the D pa11 of the State Government. (Para 13.2) The need for radical reforms it1 the regulatory framework of the medical profession has been on the agenda for several years now. The National Commission for Human Resources. for Heal Bill, 2011 which was introduced in the Rajya Sabha on the 22"d E December, 2011 was reported upon by this Committee and the 6Qth Report thereon presented to Parliament on the 23'd November,

2012. In its 60'" Report, the Committee had recommended to the Ministry of Health and Family Welfare to re-examine the concerns expressed by it and bring forward a fresh Bill. Rather than seizing the opportunity to come up with a better Bill, the Ministry remained apathetic to the state of affairs and did nofrespond with vigorous corrective measures. (Para 13.3) Due to massive failures of the MCI and lack of initiatives on the part of the Government in unleashing reforms, there is total system failure due to which the medical education system is fast sliding downwards and quality has been hugely side-lined in the context of increasing commercialization of medical education and practice. The situation has gone far beyond the point where incremental tweaking of the existing system or piecemeal approach can give the contemplated dividends. That is why the Committee is H

MODERN DENTAL COLLEGE AND RESEARCH CENTRE v. 667 . STATE OF MADHYA PRADESH [A.K. Sil~RI, J.]

convinced that the MCI cannot be remedied according to the existing provisions of the Indian Medical Council Act, J956 which is certainly outdated. If we try to amend or modify the existing Act; ten years down the line we< will still be grappling with the same problems that we are facing today. Nowhere in the world is there an educational process oversight, especially, of medical education done by an elected body of the kind that· MCI is. Managing everything of more than 400 medical colleges is too humongous a task to be done by the MCI alone because the · chall~nges facing medical education of the :21 ''Century are truly gigantic and cannot be addressed -with an ossified and opaque body like MCI. Transformation will happen only if we change the . C. innards of the system. (Para 13.4) Game changer reforms of.transformational nature are therefor-e · the need of the hour and they need t~ be carried out urgently and immediately. Because, ifrevamping of the regulatory structure is delayed any further on any grounds including political expedfoncy, it will be too late as too much momentum will have·been built to offset ~tteQipts at reversing the direction later, with the result that ourmecJical education system will fall into a bottomless pit and the:country will have "to -s~ffer greatsocial, politi~al and financial costs. (Para 13 :5) '-E ' Keeping all these facts in mind, the Committee is ~onvinced that . . the -much needed refonns will have to be led by the Central ' Government. · The MCI can no longer be entrusted with that . responsibility in view of its massive failures. The people of!ndi~ will not be we.II-served by letting the rilo~us operandi" of MCI continue unaltered to' the detriment of medical ~dl!Cation and decay· F of health system. The Government must therefore fulfill its · commitment to preserve, protect and promote the h~alth of all Indians by leading the way, for a radical reform which cleanses the present ills anp elevates medical education to contemporary glob;tl pedagogy. and practices ~hile.n~taining focus on national. G relevance. (Para p.6) · · . .

The expert co~mittee led by (late) Pr-of. Ranit Roy Chaudhury constituted by the Government h~ Juiy, 2014 to suggest reforms i11-- the regulatory framework of riledi.cal profession has subl)litted i-ts· ·. report in February, 2015, a copy of which has been supplied to H

668 SUPREME COURT REPORTS [2016] 3 S.C.R.

A this Parliamentary Committee. The expert committee has recommended major changes in the ethos of the regulatory body and. major structural reconfiguration of its.functions. The expert .committee has suggested the, formation of a National' Medical Commission (NMC) through a 1'i'ew Act. The NMC will have B. four verticals (i) UG Board of Medical Education and Training, '(ii) PG Board of Medical Education and Training (iii) National Assessment and Accreditation Board and (iv) NationarBoard for Medical Registration. Besides these vertical heads, the expert committee has also· recommended the formation fa National Advisory Council which will consist of members from the State c Governments, Union Territories, State Medical Councils, Medical Universities and members of NMC. The {;ommittee has been informed that the creation of National Medical Commission and the structure (at Appendix.) envisaged has been endorsed by a group of eminent medical educationists, experts and pubic health persons. (Para 13. 7) D- Th!: Committee has done a rigorous analysis of the suggested new regulatory structure and found that several of its concerns have been addressed in the suggested new model ofregulation of medical education and practice. The Committee is therefore in general agreement with the suggested regulatory structure, and recommends to the government to examine the structure proposed by the Ranjit Roy Chaudhury Committee subject to the recommendations made by this Committee in this report. (Para 13.8) - To sum up, the Committee observes, even at the risk of sounding repetitive, that t11e need for major institutional changes in the regulatory oversight of the n1edical profession in the country is so· urgent that it cannot be deferred any longer. The Committee is, however, aware that any attempt at overhauling the regulatory framework will face huge challenges from the deeply entrenched vested interests who will try to stall ad derail the entire exercise. But if the medical education system has to be saved from total collapse, the Government can no longer look the other way and has to exercise its constitutional authority and take decisive and exemplary action to restructure and revamp India's regulatory systein of medical education and practice. The Committee, H

MODERN DENTAL COLLEGE AND RESEARCH CENTRE v. 669 STATE OF MADHYA PRADESH [A.K. SIKRI, J.]

therefore, exhorts the Ministry of Health, and Family Welfare to implement the recommendations made by it in this report immediately and bring a new comprehensive Bill. in Parliament for this purpose at.the earliest. (Para 13.9)"

101. In view of the above, while-the Expert Committee Report mentioned above is yet to be ac~ed upon by the Government, we do not express any view on its contents. We direct the Central Government to consider and take furtlier appropriate action in the matter at the earliest. I 02. At the same time, we do feel that pending consideration at appropriate executive or legislature level, an Oversight Committee needs to be set in place in exercise of powersofthisCourt under Article 142 of c the Constitution to oversee the functioning of the MCI and all other matters considered by the Parliamentary Commi~tee. ..

103. In view of the above, while we do not find any error in the view taken by the High Court and dismiss these appeals, we direct the constitution of an Oversight Committee consisting of the following D members: I. Justice R.M. Lodha {former Chief Justice of India)

2. Prof. (Dr.) Shiv Sareen E (Director, Institute of Liver and Bil.iary Sciences)

3. Shri Vinod Rai (former Comptroller & Auditor General of india) F I 04. A Notification with respectto constitution.ofthe said Committee . · be issued within two weeks from today. The Committee be given all facilities to function. The remuneration o'fthe Members of the Committee may be fixed in consultation with them. ·

105. The said C. ommittee will have the authority to oversee all · G statutory functions under the MCI Act. All policy decisions of the MCI will require approval of the Oversight Committee, The Committee will be free to issue appropriate remedial directions. The Committee will function till the Central Government puts in place any other appropriate mechanism after due consideration of the Expert Committee Report. H

670 SUPREME COURT REPORTS [2016] 3 S.C.R.

A Initially the Committee will function for a period of one year, unless · suitable mechanism is brought in place earlier which will substitute the said Committee. We do hope that within the said period the Central Goverriment will come out with an appropriate mechanism.

106. List the matter after one year for such further directions as B may become necessary.

R. BANUMATHI, J. 1. I have had the advantage of going through the draft judgment proposed by my esteemed brother Hon'ble Justice A.K. Sikri. I entirely agree with the conclusions which my erudite brother c has drawn, based on a remarkable process ofreasoning. I would all the same Iike to add some of my own reasonings, not because the judgment requires any further elaboration but because the substantial questions or' law that arise for determination are of considerable importance.

D 2.In compliance with the directions of this Court in T.MA. Pai Foundation and Ors. v. State of Karnataka and Ors. (2002) 8 SCC 481, Islamic Academy of Education and Am: v. State of Karnataka and Ors. (2003) 6 SCC 697 and P.A. lnamdar and Ors. v. State of Maharashtra and Ors. (2005) 6 SCC 537, the State of Madhya Pradesh has enacted MP. Niji Vyavasayik Shikshan Sanstha (Pravesh Ka E Viniyaman Avam Shulk Ka Nirdharan) Adhiniyam, 2007 (MP. Act No.21 of 2007). Association of Private Dental and Medical Colleges of State of Madhya Pradesh has filed Writ Petition No.1975 of 2008 challenging the provisions of Act 2007 as unconstitutional beyond legislative competence of the State Legislature and therefore without jurisdiction. In W.P. No.9496 of2008, the association has also challenged F the Admission Rule 2008 framed under Act 2007 as ultra vires the Constitution and M.P. Act 2007. The State Government issued orders on 28.02.2009 that the State Government shall conduct the Common pntrance Test (CET) for admission to the post-graduate medical and dental courses for the academic session 2008-2009 through Madhya G · Prade~h Professional-Examination Board (VYAPAM). The Association has challenged the order dated 28.02.2009 authorizing VYAPAM to conduct the CET for admission to post~graduate medical and dental courses as arbitrary and contrary to the law laid down in T.MA. Pai Foundation and P.A. lnamdar cases in W.P. No.2764 of2009. Madhya H

MODERN DENTAL COLLEGE AND RESEARCH CENTRE v. 671. STATE OF MADHYA PRADESH [R. BANUMATHI, J.]

Pradesh High Comt by the common impugned judgment upheld the A validity of the provisions of the Act and also the Rules and dismissed all the Writ Petitions. Rule 10(2)(iii) of2009 Rules which prescribed that. the candidate should have obtained permanent registration with the State Medical Council of Madhya Pradesh and not from State Medical Councils of other States for securjng admission to post-graduate medical courses. 8 in any of the medical institution in the State of Madhya Pradesh was ~held to be ultra ,;ires.

3. Contentions: Though in the pleadings and submissions, appellants . have raised various contentions, in essence, substance of their contentions are:- c Madhya Pradesh Act of2007 is not referable to entry 25 in the concurrent list·and common entrance· test for admission is an important facet of the standards of higher education falling within entry 66 of Union List and State Legislatu(e was not competent to legislate on the subject covered in the Union D List. ·. In para (50) of T.MA. Pai Folmdation it was held that the right to establish and administer the educational institution in- cludes iilteralia.the rights to (a) admit students; (b) to set up a reasonable fee structure; and (c) to constitute a governing E body ..... ; while so, Section 3(d) and Section 6 of the M.P. Act 2007 stipulating that admission shall be on the basis of common entrance test in sucl~ manner as may be prescribed by the State infringes the fundamental right of u~aided private . educational institutions and the rights.ofthe institutions as iaid .- down in T.MA. Pai Foundation case and the same would be F · an unreasonable restrictions as held in T.MA. Pai Founda- tion case.

Section 9 read with Section 4( I) of Act 2007 empowering the committee to determine the fee. structure to be charged by the unaided private educational institutions infringes the G autonomy of the institutions who have a right to determine their own fee· structure in terms of Article 19( I )(g) of the Constitution of India. In terms of Section 4 and Regulation 5 Committee is given unbridled power to determine the fees H

672 SUPREME COURT REPORTS [2016] 3 S.C.R.

A that may be_ charged by the institution and the Committee can scrutinize the stipulated amounts in various heads which is not in ·accordance with the right of the unaided private educa- tional institutions as laid down in T.MA. Pai Foundation case.

Section 8 of the Act 2007 providing for reservation -in un- B aided private educational institutions is unknown to the constiutional scheme and it would be an unreasonable restrition which would run afoul of A11icle 19( I )(g) of the Constitution of India and such unreasonable restriction in effect violates A11icles 14 and 15(1) of the Constitution oflndia. c 4. Challenge to Section 8 providing for reservation: Section 8 -. of ACt 2007 provides Jor reservation of seats in admission in private unaided professional _educational institutions for the persons belonging to Scheduled Castes and Scheduled Tribes and other backward classes as may be prescribed by-the-state Government. This ~eservation is pursu- ant to the Ninety Third Constitution Amendment-insertingArticle.15(5) of the Constitution. In para ( 41) of the impugned judgment, it is ob- served that Ninety Third Constitution Amendment inserting Article I 5(5) _ of the Constitution has been challenged by some of the petitioners in separate writ petitions and therefore no arguments was advanced in the E writ petitions chaUenging the views of Act 2007. It is, therefore, not to necessary go into the vtr-es ofSection 8 of Act 2007.

5. Re-contention: Lack of legislative competence of the State ·to enµctAct 2007 as the field is occupied by entry 66 of Union List: It is to be pointed out that the issue of legislative competence was neither F, raised nor argued befort;i the High Court as is apparent from the lack of discussion on this issue of constitutional importance in the impugned judgment. Be that ash may, to appreciate the conten.tions, it would be - advantageous. to have a glimpse into the relevant constitutional provisions on the distribution oflegislative fields between the Centre and the States. The legislative powers of the Centi:.iit and State Governments are G governed by the relevant entries in tl)e three Lists given in Seventh Schedule-. Entry 66 in Union List provides for 'co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions'. Prior to Constitution Forty-Second Amendment, "education including universities subject H

MODERN DENTAL COLLEGE AND RESEARCH CENTRE. v. 673 STATE OF MADHYA PRADESH [R. BANUMATHi, J.]

to the provisions of the entries 63, 64, 65, 66 of Union List and entry 25 qf Concurrent List" was shown in entry 11 of the State List..· By the Constitution (Forty-second Amendment) Act I976with effect from 03.01.1977, entry 11 was deleted from the State List and amalgamated with ent.ry 25 of the Concurrent List.,

Entry 66 of List I-Union List reads as under:- B

. .Entry 66~ Co-ordination and determination of standards ..in· institutions for higher education 'or. research and scientific and technical institutions. c Entry 25 of List III-Concurrent List is as under:-

Entry 25. Education; including technical education,.medical education and universities, ;~bje<!t''f0·' the provi§iOI~ of 'entries 63, 64, 65 and 66 of List /,"vocational and technical training of labour. D Under entry 66 of the Union List, Government oflndia is required to co-ordinate and maintain standards in institutions for higher education or research and scientific and technical institution, Upion oflndia·has the right to make policy decisions to maintain standards in higher education and these will be bind1ng upon State Governments. Entry 25 of the E Concurrent List is subject to the provisions of entries 63, 64, 65 and 66 of List I and the State cannot have a policy contrary to the Central Act. Under Article 257(1 ), the exe9utive power .ofthe State Go".ern.men.t_ . shall be so exer<:ised as not to"impe~e or prejudice the exercise of the .executive. power. of the Union. . · F

6. While 'education' is a concurrent subject under entry 25 of . concurrent list as substitut~d by Constitution (Forty-second Amendment). Act 1976, entries 65 and 66 of.Union List give ·union the power. to ensure that the standards. of research etc. - is not lowered at the hands of particular State or States to the detriment of national progress and that G .• , the P?Wer of the State Legislature must be so exereised as not to directly encroach upon the power of Union under the present entry. Though the field of legislation ava'ilable to the Parliament and the States has been definite. as stated. above, more often, a certain amount ofove~lapping · might become unavoidable; the legislation ·which tl)us . . overlaps would H ().. . ).

674 ~UPh·'"vfE COURT REPORTS [2016] 3 S.C.R.

A not however be rendered invalid, if, in 'pith and substance' th~ legislation _is on the subject reserved in favour of that Legislature. In order to enable smooth functioning offederal structure of our Constitution, 'incidental _encroachment' into or 'overlapping' of the field covered by one of the · entries in the other Lists is permissible so long as it does not transgress the limit oflegislation earmarked forthe legislature making the law, judged by the standards fixed by the doctrine of 'pith and substance'. . .

7. In Dr. Preeti Srivastava and Anr. v. State of MP. and Ors. ( 1999) 7 sec 120. it was held that the word •e_ducation. under entry 25 of Schedule VII List III.is of wide import. It would include in its fold the c taught, the teacher, the textbook and also training as practical training is : - required to be imparted to students pursuing_the course of post-graduate medical education. Curricula is also covered by the term 'education'. . -

8. While elaborating the concept of 'education' after referring to the dictionary meaning and '.India Vision~2020', in P.A. fnamdar case, in paras (88) to (90), it was held as urrder:-

"88.1E.ducation is:

" ... continual growth of personality, steady development of character, ~nd the qualitative improvement of Life; A trained mind has the capacity to draw spiritual n.ourishment from every experience,_be it defeat or victory, sorrow or joy. Education is training the mind and 11ot stuffing the brain,"·

(See Eternal Values for A Changing Society, Vol. III- F EducationforHwnan Excellence, published by Bharatiya Vidya Bhavan, Bombay, at p. 19.)

"We want that education by which cha'racter is formed, strength of mind is increased, the intellect is expanded, and by which one can stand on one's own feet. ... The end of all education, G all training, should be man·-making. 1he end and aim of all training is to ml\ke the man grow.' The. training by which the current and expression of will are brought under control and l:iecome fruitful is called education." (Swami Vivekanand as H

MODERN DENTAL COLLEGE AND RESEARCH CENTRE v. 675 STATE OF MADHYA PRADESH [R. BANUMATHI, J.)

quoted ibid., at p. 20.) A

89. Eoucation, accepted as a useful activity, whether for charity or for profit, is an occupation. Nevertheless, it does not cease to be a service to society. And even though an occupation, it cannot be equated to a trade or a business. B

90. In short, education is .national wealth essential for the nation's progress and prosperity."

9. By virtue of entry 66 of Union List "Co-ordination and determination of standards in institutions for higher education or c research, scientific and technical institutions" is reserved with Union of India. Power to co-ordinate is not merely power to evaluate but to · harmonise or secure relationship for concerted action.

Oxford Concise Dictionary (7 1h Edn.) defines 'co-ordinate' as:- D "make co-ordinate; bring {parts, movements etc.) into proper relation, cause to function together or in pi·oper order". Black's Law Dictionary (I 01h Edn.) defines 'determinate' as:- E "Having defined limits; fixed; definite" ai1d 'determination' is defined as; "The act of deciding something officially; esp.. a final decision by a court or administrative agency".

From these definitions, it flows that' determination' is the official characterization of an expression and 'co-ordinati~n ' means' · F through which detennined nonns or standards are kept in harmony with each other.

10, In Concise Oxford English Dictionary (Tenth Edition, Revised) the meaning ofthe·w<?rd 'standard' is given as:- G •·a level of quality or attailiment, a required or agreed level of q.uality or attai11111ei1t (in elementary schools) a grad'e ofproficiency tested by examination, something used as a measure, norm or rn.odel in comparative evaluations. "

676 SUPREME COURT REPORTS [2016] 3 S.C.R . .....

A Black's Law Dictionary (IO'h Edn) defines 'standard' as:-

"a model accepted as correct by custom, consent, or authority; a criterion for measuring acceptability, quality or accuracy._ " B RamanathaAiyar's Law Lexicon 3rd E~n. also defines 'standard' as:-

"something that is established by authority, customs or general consent as a model or example to be followed [s.18(4), expln, Beedi and Cigar Workers (Conditions of c Employment) A.If (32 of 1966)} ' . .. Specifications approved and prescribed by a recognized body for repeated and continuous application. Standard usually prescribe a basic though higher than average level of quality." D

11. The legislative history of entry 66, Union List might lay down a better picture in this regard. Profitably, we may refer to the history of 'education' as a subject of legislation in the ltidian perspective must be ascertained. The Government oflndiaAct, 1935 laid down the legislative

E State List reads as under:- · · -' · .. lists in the Seventh Schedule. Entry 17 cifList II therein..,i.e. the Provincial

·"Education including universities otl]er than those. specified in paragraph 13' <>f List I" Paragraph 13 of List I i.e. the federal legislative list reads as under: F "The B~iaras Hindu University and the Aligarh Muslim University"· . Evidently, '.education' as a field oflegislation including universities was available to the Provinces except the two Universities i.e. the Benaras Hindu University andAligarl~ Muslim Univers·itywhich lay_ in the domain G of the federal legislative competence. 'Even when the constitution was being drafted, the idea of 'education' being a State subject and the role of Union to be limited only to co-ordinate educational institution was very firm in the minds of our cpnstitution framers.

MODERN DENTAL COLLEGE AND RESEARCH CENTRE v. 677 STATE OF MADHYA PRADESH [R. BANUMATHI, J.)

12. Ifwe refer to volume IX of the Constituent Assembly Debates · A held on Wednesday, the 31st August 1949, it transpires that while introducing entry 66 of List I (as it stands in its·present form), Dr. B.R. Ambedkar proposed nothing more than empowering the Union to set mere standards for higher education and to co-ordinate oetween the institutions. Relevant excerpts from the debate is quoted below:- B

'"The Honourable Df. B.R. Ambedkar: Sir; I move:

'"That after entry 57 of List/, the following new entry be inserted:- c '57(A) Co-ordination and maintenance of standards in institutions for higher education, scientific and technical institutions and institutions for research'. "

This entry is merely complementary to the earlier entry No. 57. In D dealing.with institutions maintained by the provinces, entry 57 A proposes to give power to the Cei1tre to the limited extent of coordinating the research institutions and of maintaining the standards i1;those institutions to prevent their being lowered. E

13. Sir, °J also move:-

"That in amendment No. 28 of List I (Sixth Week) in the· proposed new entry 5 7A of List l, for the word 'maintenance' !}?..e ward 'determination be substituted. " F The said proposal. of Dr. Ambedkar was opposed by Shri V.S. Sarwate (Madhya Bharat).by sugges_ting that only "Promotion by . financial assistance or ot~erwise of standards in instit.utions for higher education, scientific and technical institutions and institutions.for research" be left i_n the domain of the Union, so as to G avoid unnecessary interference with the State's power to legislate.in relation to 'education'. While highlighting the import11nce of' education' a being State subject, Shri V.S. Sarw,ate observed as unde-r:-

678 SUPREME COURT REPORTS [2016] 3 S.C.R.

A "The modern trend in education is that education should be adapted to each individual so that the personality of each individual might be developed to its fullest extent, of course consistently with the personalities of other individuals. If this is the desideratum in education, then there must be fit!! scope B for variety. There should not be any uniformity in education as un(for111ity ll'ould kill the growth of the individual. Nobody can say that there should be a standard of intellectual ll'eights and measures for human beings. Therefore I thi11k that education should be left e11tirely to the provinces." c Shri V.S. Sarwate went to oppose introduction of entry 66 of List I (in the present form) by observing that the Union would not be competent enough to lay down standards for technical education such as that ofrriedical education. His observation is quoted as under:- D "011e word 111ore, Sil; I think' that it will be difficult for Parlia111e11t or the Ce11tra/, Government to fix standards of higher education, for example in higher 111edical education. Would it be possible/or the Parliament to find out what are the sta11dards for medical education? " Jn order to answer the concern of other constitution framers, Dr. Ambedkar went Oil to clarify the limited scope of entry 66 of List,, _. (as in the present form), as proposed by him in the following words:- "Emry 57A merely deals with the 111aintenance of certain standards in certaii1 classes of institutions, namely, institutions imparting higher education, scientific and technical institutions, institutions for research, etc. You may ask, "why this entry?" I shall show why it is necessary. Take for instance the B.A. Degree examination which is co11ducted by the different universities in India. Now, most provinces and the Centre, when advertising for candidates, merely say that the candidate should be a graduate of a university. Now, suppose the Madras University says that a ca11didate at the B.A. H

MODERN DENTAL COLLEGE AND RESEARCH CENTRE v. 679 STATE OF MADHYA PRADESH [R. BANUMATHI, J.J

Examination, if he abtained 15 per cent of the total marks shall be deemed to have passed that examination; and suppose the Bjhar University says that a candidate who has obtained 20 per cent. of marks shall be deemed to have passed the B.A. Degree exa111ination; and so111e other university fixes some other standard, then it would be quite a chaotic condition, and the expression that is usually used, that the candidate should be a graduate, I think, would be meaningless. Similarly, there are certain research institutes, on the results of which so many activities of the Central and Provincial Governments depend. Obviously you cannot ·permit the results of these c technical and scientific institutes to deteriorate ji-0111 the normal standard and yet allow them to be recognized either for the Central purposes, for all-India purposes or the purposes of the State." D

14. The intent of our constitution framers while introducing entry 66 of the Union List was thus limited only to empowering the Union to lay down a uniform standard of higher education throughout the country". and not to bereft the State Legislature of its entire power to legislate in relation to 'education' and organizing its own common entrance examination. I 5. If we consider the ambit of the present entry 66 of the U11ion List; no doubt the field of legislation is of very wide import and determination of standards in institutions for higher education. In the federal structure of India, as there are many States, it is for the Un ion to co-ordinate between the States to cause them to work in the field of higher education in their respective States as per the standards determined by the Union. Entry 25 in the Concurrent List is available both to the Centre and the States. However, power of the State is subj~ct to the provisions of entries 63, 64, 65_, and 66 of Union List; while the State is competent to legislate on the education including technical education, medical education and universities, it should be as per the standards set by the Union. H

680 SUPREME COURT REPORTS r

A 16. The words 'co-ordination' and 'determination of the standards in higher education' are the preserve of the Parliament and are exclusively covered by entry 66 of Union List. The word '<:o- ordination' means harmonisation with a view to forge a uniform pattern for concerted action. The term 'fixing of standards of institutions for B higher education' is for the purpose ofharmonising co-ordination of the various institutions for higher education across the country. Looking at the present distribution oflegislative powers between the Union and the States with regard to the field of 'education ', that State's power to legislate in relation to "education, including technical education, c medical education and universities" is analogous to that of the Union. However, such power is subject to entries 63, 64, 65 and 66 of Union List, as laid down in entry 25 of Concurrent List. It is the responsibility of the Central Government to determine the standards of higher education and the same should not'be lowered at the hands of any particular State. D

17. Even the National Educational Policy recognised that the Union shall take the larger responsibility of setting.the standards. The Policy of.1986 states:- "3 .13 ... While the role and responsibility of.the States in regard to education will remain essentially unchanged, the Union·· Government would accept a larger responsibility to reinforce the national and integrative character of education, to maintain quality and standarcfs (including those of the teaching projession at all level5), to study and monitor the educational requirements of the country as a whole in regard to manpower for development, to cater to the needs of research and advanced study, to look after the international aspects of education, culture and Human Resource Development and, in general, to promote excellence at all levels of the educational pyramid th_roughout the country. Concurre1icy signifies a partnership, which is at once meaningful- and challenging; the Nationql Policy will, be oriented towards giving effect to it in letter and spirit . . H

MODERN DENTAL COLLEGE AND RESEARCH CENTRE v. 681 STATE OF MADHYA PRADESH [R. BANUMATHI, J.]

5.30 State level planning and co-ordination of higher A .education will be done through Councils of Higher .Education. The UGC qnd these Councils will develop coordinative methods to keep a watch on standards.

xxx B

10.4 State Government may establish State Advisory Boards of Education on the lines of CABE. Effectu'e measures should be taken to integrate mechanisms in the various State depar11i1e11ts concerned with Human Resource· Development. c

10. 5 Special attention will be paid to the training of educational planners, administrators and heads of institutions. bistitutional arrangements for this purpose should be set up in stages. " (mhrd.gov. inls itesluploadJileslmhrd/fi /es/ upload_ document/NPE86-mod92.pdf) D

The policy clearly recognised that the State would continue to fulfill its responsibilities. This is also discernible from the amendment to entry 25 of Concurrent List. Had the intention been to keep higher education solely in the hands of the Union, only the omission of entry 11 from State E ·List would have sufficed. The legislative intent was to allow the Union to set the standards through its organs, which the States would facilitate. 18 . .Thus, what emerges is that under List I, responsibility of the Union is with respect to formulation and co-ordination of standards for htgher education institutions. ""Determinaiion of Standard in Higher F Education" implies that the Parliament is empowered to prescribe such norms to maintain quality in the institutions for higher education. The expressiqn 'co-ordination and determination of standards in higher edu- cation' n1eans that it is for the Parliament to take concerted action to- wards maintaining the standards. The reason for empowering the Cen- G tral Legislature with entry 66 was to ensure that the standards of higher education were not lowere.d at the hands of a particular State to the detriment of the national progress and that the power exercised by the State did not directly encroach upon power of the Union entry 66.

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A I9. An elucidation of the connotation, "co-ordination" as it appears in entry 66 of list (is contained in the discussion by Shah J., while expressing th~ majority view in The Gl{jarat University & Am: v. Shri Krishna Ranganath Mudholkar & Ors. .[I 963] Supp. I SCR I I 2. In this case, the Constitution Bench of this Court considered whether the State Legislature could impose Gujarati and/or Hindi in Devnagari script B as exclusive medium ofinstniction and examination in institutions affiliated to the university and constituent colleges. It was held that:- "if a legislation imposing a regional-language or Hindi as the exclusive medium of instruction is likely to result in lowering of standards, it must necessarily fall within Item 6.6 of List I and be c excluded to that extent from Item I I of List 11" Medium of instruction was held to have an imp01tant bearing on the effectiveness of instruction and resultant standards achieved thereby. It was further held as under:

D "If adequate textbooks are not available or competent instructors in the medium, through which instruction i~ directed to pe imparted,' are not available, or the students are not able to receiv~ or imbibe instructions througli the medium in which it is impa_rted, standards must of necessity fall, and legislation for coordination of standards . in such matters would include legislation reliiting to medium of . E instruction. If legislation relating to imposition of an exclusive medium of instruction in a regional language or in Hindi; having regard to the absence of textbooks and journals, compete'nt teachers and incapacity of the students to understand.the subjects, is likely to result in the lowering of standards, that legislation would, in our judgment, necessarily fall within Item 66 of List I and would be deemed to be excluded to· that extent froni the amplitude of the power.conferred by Item 11 of List II." . .

20. Subba Rao, J. in Gujarat University case, in his ·dissenting view stated thatno authority.had gone so far as to hold that even if the · pith and substance of an Act fell squarely within the ambit ofa particular entry, it should be struck down on the speculative and anticipatory ground that it might come into conflict with a la'". made by a co-ordinated legislafure by virtue of another entry; if the· impact of a State law on a H

MODERN DENTAL COLLEGE AND RESEARCH CENTRE v. 683 STATE OF MADHYA PRADESH [R. BANUMATHI, J.]

Central Legislation was so heavy and devastating as to wipe out or A appreciably abridge the central field, then it might be a ground for holding that the State law was a colourable exercise of power and in pith and substance it fell not under the State entry, but under the Union entry.

21. In R. Chitralekha & Am: v. State of Mysore & Ors. (1964) 6 B SCR 368, State Government informed the Director ofTechnical Education that it had been decided to fix 25% of the maximum 1:narks for the examination in optional subjects as interview marks and on that basis, selections were made for admission to Engineering and Medical Colleges. Considering the impact of State law providing for such standards it was c held that the State law prescribing a higher percentage of marks for extra-curricular activities in the matter ofadmission to colleges cannot be said to be encroaching on the field cove~ed by entry66 of Union List and that the State Government would be witliin its rights to prescribe qualifications for admission to colleges so long as its action does not D contravene aiiy other law.

22. lt was observed in the case of Government ofAndhra Pradesh & Am: v. Medll'in Educational Society & Ors. (2004) I SCC 86, that "keeping in view the practical difficulties faced by the Central Government E or the statutory bodies like MCI or UGC, some power is s~ught to be delegated to the State so as to make the Parliamentary statute workable. Such 'play in joint' is also desirable having regard to the federal structure of our Constitution".

23. In State of T.N. and Am: v. Adhiyaman Educational a11d F Research Institute and Ors., ( 1995) 4 SCC 104, the question involved was whether after coming into force of the Central Act, All h1dia Council, Technical Education Act, 1987, the State Government had the power to grant and withdraw permission to start educational institution. It was held thii.t to that extent after coming into operation of the Central Act G under entry·66 of Union List, to co-ordinate and determine the standards of technical institutions as in entry25 of Concurrent List; the provisions of the University Act will be deemed to have become unenforceable in

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A case of technical colleges like engineering colleges. In para (41), this Court summarized the principles as under:-

"41. What emerges from the above discussion is as follows:

(i) The expression 'coordination' used in Entry 66 of the Union B List of the Seventh Schedule to the Constitution does not merely mean evaluation. It means harmonisation with a view to forge a uniform pattern for a concerted action according to a certain design, scheme or plan of development. It, therefore, includes action not only for removal of disparities in standards but also for preventing c the occurrence of such disparities. It would, therefore, also include power to do all things which are necessary to prevent what would make 'coordination' either impossible or difficult. This power is absolute and unconditional and in the absence of any valid compelling reasons, it must be given its full effect according to its plain and express intention.

(ii) To the extent that the State legislation is in conflict with the Central legislation though the former is purported to have been made under Entry 25 of the Concurrent List but in effect encroaches upon legislation including subordinate legislation made by the Centre under Entry 25 of the Concurrent List or to give effect to Entry 66 of the Union List, it would be void and inoperative.

F . (iii) If there is a conflict between the two legislations. unless the State legislation is saved by the provisions of the main part of clause (2) of Article 254, the State legislation being repugnant to the Central legislation, the same would be inoperative.

G (iv) Whether the State law encroaches upon Entty 66 of the Union List or is repugnant to the law made by the Centre under Entry 25 of the Concurrent List. will have to be determined by the examination of the two laws and will depend upon the facts of each case. H

MODERN DENTAL COLLEGE AND RESEARCH CENTRE v. 685 STATE OF MADHYA PRADESH [R. BANUMATHI, J.]

(r) When there are more applicants than the available situations/ A seats. the State authority is not prevented from laying down higher standards or qua Iifications than those laid down by the Centre or the Central authority to short-list the applicants. When the State authority does so, it does not encroach upon Entry 66 of the Union List or make a law which is repugnant to the Central law. B

(vi) However, when the situations/seats arc available and the State authorities deny an applicant the same 011 the ground that the applicant is not qualified according to its standards or qualifications, as the case may be, although the applicant satisfies the standards C or qualifications laid down by the Central law, they act unconstitutionally. So also when the State authorities de-recognise or disaffiliate an institution for not satisfying the standards or requirement laid down by them. although it satisfied the norms and requirements laid down by the Central authority, the State D authorities act illegally."

24.ln D1: Preeti Srivastava case, this Co11rt considered the question whether it was open to the State to prescribe different admission criteria, in the sense of prescribing different minimum qualifying marks, for special E categoty candidates seeking admission to the post-graduate medical courses under the reserved seats category as compared to the general category candidates. While considering the question whether norms for admission have any connection with the standards of education. nbs1:rving that norms for admission haw a nexus with standards of 1.:clucation or I'° rules of admission which ar1: cover1:d under entry 25 of concurrent 1ist. it was held that the minimum standards as laid clown by the Central Statute have to be complied with by the States. In paras (35) and (36) it was held as under:- G "35 ..... Both the Union as well as the States have the power to legislate on education including medical education, subject, inter alia, to Entry66 of List I which deals with laying down standards in institutions for higher education or research and scientific and 1-1

686 SUPREME COURT REPORTS [2016) 3 S.C.R.

A technical institutions as also coordination of such standards. A State has, therefore, the rightto control education including medical education so long as the field is not occupied by any Union legislation. Secondly, the State cannot, while control Iing education in the State, impinge on standards in institutions for higher B education. Because this is exclusively within the purview of the Union Government. Therefore, while prescribing the criteria for admission to the institutions for higher education including higher medical education, the State cannot adversely affect the standards laid down by the Union oflndia under Entry 66 of List I. Secondly, c while considering the cases on the subject it is also necessary to remember that from 1977, education, including, inter alia, medical and university education, is now in the Concurrent List so that the Union can legislate on admission criteria also. If it does so, the State will not be able to legislate in this field, except as provided in D Article 254.

36~ It would not be correct to say that the norms for admission have no connection with the standard of education, or that the rules for admission are covered only by Entry 25 of List Ill. Norms E of admission can have a direct impact on the standards of education. Of course, there can be rules for admission which are consistent with or do not affect adversely the standards of education prescribed by the Union in exercise of powers under Entry 66 of List I. For example, a State may, for admission to the postgraduate medical courses, lay down qualifications in addition to those prescribed under Entry 66 of List I. This would be consistent with promoting higher standards for admission to the higher educational courses. But any lowering of the norms laid down can and does have an adverse effect on the standards of education in the institutes of higher education. Standards of education in an institution or college depend on various factors. Some of these are:

(1) the calibre of the teaching staff; H

MODERN DENTAL COLLEGE AND RESEARCH CENTRE v. 687 STATE Of MADHYA PRADESH [R. BANUMATHI, J.]

(2) a proper syllabus designed to achieve a high level of education in the given span of time;

( 3) the student-teacher ratio;

( ./) the ratio between the students and the hospital beds available to each student;

(5) the calibre of the students admitted to the institution;

( 6) equipment and laboratory facilities, or hospital facilities for training in the case of medical colleges; c ( 7) adequate accommodation for the college and the attached hospital; and

(8) the standard of examinations held including the manner in which the papers are set and examined and the clinical performance is judged."

25. As laid down in the decision in Preeti Srivastava, it is within the legislative competence of the State Legislature, in exercise of power under entry 25 of concurrent list to prescribe higher educational qualifications and higher marks for admission in addition to the one fixed by the Indian Medical Council in order to bring out the higher qualitative output from the students who pursue medical course. Following the above dictum, in paragraphs (13) and (14) of the decision of this Court in Visveswaraiah Technological University & Anr. v. Krishnendu Halder F & Ors., reported in (2011) 4 SCC 606, held as under:-

"13. The object of the State or University fixing eligibility criteria higher than those fixed by AICTE, is twofold. The first and foremost is to maintain excellence in higher education and ensure G thatthere is no deterioration in the quality ofcandidates participating in professional engineering courses. The second is to enable the State to shortlistthe applicants for admission in an effective manner, when there are more applicants than available seats. Once the H

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A power of the State and the examining body, to fix higher qualifications is recognised, the rules and regulations made by them prescribing qualifications higherthan the minimum suggested by AICTE, will be binding and will be applicable in the respective State, unless AICTE itself subsequently modifies its norms by B increasing the eligibility criteria beyond those fixed by the University and the State. It should be noted that the eligibility criteria fixed by the State and the University increased the standards only marginally, that is, 5% over the percentage fixed by AICTE. It cannot be said that the higher standards fixed by c the State or University are abnormally high or unattainable by normal students, so as to require a downward revision, when there are unfilled seats. During the hearing it was mentioned thatAICTE itself has revised the eligibility criteria. Be that as it may.

14. The respondents (colleges and the students) submitted that in that particular year (2007-2008) nearly 5000 engineering seats remained unfilled. They contended that whenever a large number of seats remained unfilled, on account of non-availability of adequate candidates, paras 41 (r) and (vi) of Adh~i·aman (1995) E 4 sec 104 would come into play and automatically the lower minimum standards prescribed by AICTE alone would apply. This contention is liable to be rejected in view of the principles laid down in the Constitution Bench decision in Preeti Srivastava F (D1:)(1999) 7 SCC 120 and the decision of the larger Bench in S. V. Bratheep (2004) 4 SCC 513 which explains the observations in Adhiyaman (1995) 4 SCC 104 in the correct perspective. We summarise below the position, emerging from these decisions:

(i) While prescribing the eligibility criteria for admission to G institutions of higher education, the State/University cannot adversely affect the standards laid down by the central body/ f\ICTE. The term ··adversely affect the standards" refers to lowering of the norms laid down by the central body/ AICTE. H

MODERN DENTAL COLLEGE AND RESEARCH CENTRE v. 689 STATE OF MADHYA PRADESH [R. BANUMATHI, J.] • Prescribing higher standards for admission by laying down A qualifications in addition to or higher than those prescribed by AICTE, consistent with the object of promoting higher standards and excellence in higher education, will not be considered as adversely affecting the standards laid down by the central body/ AICTE. B

(ii) The observation in para 41 (vi) of Adhiyaman (1995) 4 SCC 104 to the effect that where seats remain unfilled, the State authorities cannot deny admission to any student satisfying the minimum standards laid down by AICTE, even though he is not c qualified according to its standards, is not good law.

(iii) The fact that.there are unfilled seats in a particular year, does not mean that in that year, the eligibility criteria fixed by the State/ University would cease to apply or that the minimum eligibility criteria suggested by AICTE alone would apply. Unless and until the State or the University chooses to modify the eligibility criteria fixed by them, they will continue to apply in spite of the fact that there are vacancies or unfilled seats in any year. The main object of prescribing eligibility criteria is not to ensure that all seats in colleges are filled, but to ensure that excellence in standards of higher education is maintained.

(iv) The State/University (as also AICTE) should periodically (at such intervals as they deem fit) review the prescription of eligibility criteria for admissions, keeping in balance, the need to maintain excellence and high standard in higher education on the one hand, and the need to maintain a healthy ratio between the total number of ~eats available in the State and the number of students seeking admission, on the other. If necessary, they may revise the eligibility criteria so as to continue excellence in education and at the same time being realistic about the attainable standards of marks in the qualifying examinations."

690 SUPREME COURT REPORTS [2016] 3 S.C.R.

A It is clear from the above decision that the State legislation fixing higher qualification than the one prescribed by the AICTE is not outside the legislative competence of the State.

26. In Ambesh Kumar (Dr) v. Principal. L.L.R.M. Medical ColleKe. Me.erut and Ors:. (I 986) Supp SCC 543, the State prescribed B 55% as minimum marks for admission to post-graduate medical courses. The Court considered the questio_n whether the State can impose qualifications in addition to those laid down by the Medical Council of India and the regulations framed by the Central Government. This Court c held thatthe State Government laying down eligibility qualification, namely, obtaining ofcertain minimum marks in the examination by candidates is neither an encroachment upon regulation made under the Medical Council Act nor any infringement of Union's power provided in entry 66 of Union List. It was held as under:- D " ... The State Government by laying down the eligibility qualification namely the obtai11ing of certain minimum marks in the MBBS Examination by the candidates has not in any way encroached upon the regulations made under the Indian Medical Council Act nor does it infringe the Central power provided in E Entry 66 of List 1 0f the Seventh Schedule to the Constitution. The order merely provides an additional eligibility qualification."

27. Observing that the scope of the relevant entries in the Seventh Schedule of the Constitution has to be understood in the manner as stated in Dr. Pree ti Srivastava case, in State of T. N. and Am: v. S. V. Bratheep (minor) and Ors. (2004) 4 SCC 513, this Court held as under:-

9. Entry 25 of List Ill and Entry 66 of List I have to be read together and it cannot be read in such a manner as to form an exclusivity in the matter ofadmission but if certain prescription of standards have been made pursuant to Entry 66 of List I, then those standards will prevail over the standards fixed by the State in exercise of powers under Entry 25 of List III insofar as they adversely affect the standards laid down by the Union of India or .H any other authority functioning under it. Therefore, what is to be

MODERN DENTAL COLLEGE AND RESEARCH CENTRE v. 691 STATE OF MADHYA PRADESH [R. BANUMATHI, J.]

seen in the present case is whether the prescription of the A standards made by the State Government is in any way adverse to, or lower than, the standards fixed by AICTE. It is no doubt true that AICTE prescribed two modes of admission - one is merely dependent on the qualifying examination and the other, dependent upon the marks obtained at the common entrance test. B The appellant in the present case prescribed the qualification of having secured certain percentage of marks in the related subjects which is higherthan the minimum in the qualifying examination in order to be eligible for admission. If higher minimum is prescribed by the State Government than what had been prescribed by c AICTE, can it be said that it is in any manner adverse to the standards fixed by AICTE or reduces the standard fixed by it? In our opinion, it does not. On the other hand, if we proceed on the basis that the norms fixed by AICTE would allow admission only on the basis of the marks obtained in the qualifying examination, the additional test made applicable is the common entrance test by the State. Government. If we proceed to take the standard fixed by AICTE to be the common entrance test then the prescription made by the State Government of having obtained certain marks higher than the minimum in the qualifying examination in order to be eligible to participate in the common entrance test is in addition to the common entrance test. In either event, the streams proposed by AICTE are not belittled in any manner. The manner in which the High Court has proceeded is that what has been prescribed by AICTE is inexorable and that that minimum alone should be taken into. consideration and no other standard could be fixed even the higher as stated by this Court in Dr Preeti Srivastal'a case (1999) 7 SCC 120. It is no doubt true, as noticed by this Court in Adhiyaman case ( 1995) 4 G SCC I 04 that there may be situations when a large number of seats may fall vacant on account of the higher standards fixed. The standards fixed should always be realistic which are attainable and are within the reach of the candidates. It cannot be said that H

692 SUPREME COURT REPORTS [2016] 3 S.C.R.

A the prescriptions by the State Government in addition to those of A!CTE in the present case are such which are not attainable or which are not within the reach of the candidates who seek admission for engineering colleges. It is not a very high percentage of marks that has been prescribed as minimum of60% downwards, B but definitely higher than the mere pass marks. Excellence in higher education is always insisted upon by a series of decisions of this Court including Dr Preeti Srivastava case 0999) 7 SCC 120. If higher minimum marks have been prescribed, it would certainly add to the excellence in the matter of admission of the students in c higher education.

28. Another argument that has been putforth is that the power to enact laws laying down process of admission in universities etc. vests in both Central and State Governrnents under entry 25 of the concurrent D list only. Under entry 25 of concurrent list and erstwhile entry 11 of State List, the State Government has enacted various legislations that inter alia regulate admission process in various institutions. For instance, Jawaharlal Nehru Krishi Vishll'avidyalaya Adhiniyam, Raj iv Gandhi Prodyogiki Vishwavidyalaya Adhiniyam, Rashtriya Vidhi Sa11Satha11 E Vislnvavidyalaya Adhiniyam etc. were established by the State Government in exercise of power under entry 25 of concurrent list. Similarly, the Central Government has also enacted various legislations relating to higher education under entry 25 of concurrent list pertaining to centrally funded universities such as Babasaheb Bhimrao Ambedkar F University Act 1994, MaulanaAzad National Urdu University Act, 1996, Indira Gandhi National Tribal University Act, 2007 etc. Central Government may have the power to regulate the admission process for centrally funded institutions like I!Ts, NIT, J!PMER etc. but not in respect ofother institutions running in the State. G

29. In view of the above discussion, it can be clearly laid down power of Union under entry 66 of Union List is limited to prescribing standards of higher education to bring about uniformity in the level of education imparted throughout the country Thus, the scope of entry 66 H must be construed limited to its actual sense of 'determining the

MODERN DENTAL COLLEGE AND RESEARCH CENTRE v. 693 STATE OF MADHYA PRADESH [R. BANUMATHI, J.]

standards of higher education' and not of laying down admission process. In no case is the State denuded of its power t6 legislate under Entry 25 of List Ill. More so, pertaining to the admission process in universities imparting higher education.

30. I have no hesitation in upholding the vires of the impugned legislation which empowers the state government to regulate admission process in institutions imparting higher education within the state. In fact, the State being responsible for welfare and development of the people of the State, ought to take necessary steps for welfare of its student community. The field of'higher education' being one such field c which directly affects the growth and development of the state, it becomes prerogative of the State to take such steps which further the welfare of the people and in particular pursuing higher education. In fact, the State Government should be the sole entity to lay down the procedure for admission and fee etc. governing the institutions running in that particular D state except the centrally funded institutions like llT, NIT etc. because no one can be a better judge of the requirements and inequalities-in- opportunity of the people of a particular state than that state itself. Only the State legislation can create equal level playing field for the students who are coming out from the State Board and other streams. E

31. Whether the i111pug11ed legislation imposes reasonable restriction under Article 19(6) of the Constitution of India on the fimdamental rights of the Unaided Private Educationai Institutions in its "'Right to Occupation" under Article 19(1) (g): In T.MA. Pai F case, eleven-Judge Bench in paras (20) and (25) held that running of an educational institution was an occupation within the meaning of Article 19(l)(g) and that the right to establish and administer an educational institution is guaranteed to all the citizens under Article 19( I )(g) of the Constitution oflndia and to minorities specifically under Aiiicles 26 and G 30 of the Constitution oflndia. These rights to establish an educational institution also stand affirmed in P.A. lnamdm:

32. Object of the Act 2007 is ·· ... to provide.for the regulation of admission and fixatio11 of.fee in private pr<1fessio11al educational H

694 SUPREME COURT REPORTS [2016] 3 S.C.R.

A inslitutions in the Siale of Mudh)la p,., ides/I ... ". Section 6 of the Act 2007 provides that admission to sanctioned intake in private unaided professional educational institution shall be on the basis of common entrance test in such manner as may be prescribed by the State Government. In Section 3( d) 'co111111011 entrance test' has been defined B to mean an entrance test conducted for determination of the merit of the candidates followed by centralized counselling based on merit to professional colleges or institutions through a single window procedure by the State Government or by any agency authorized by it.

c 33. Contention of the appellants is that Section 6 read with Section 3( d) of the Act, 2007 creates a monopoly in favour of the State in the matter of conducting common entrance test and that it directly encroaches upon the fundamental right of private unaided educational institutions under A1ticle 19( 1)(g) of the Constitution oflndia. It is further submitted D that as held in para ( 13 7) of P.A. Inamdar case only if the admission procedure adopted by the private institutions or a group of institutions fails to satisfy the triple test of fairness, transparency and non- exploitativeness, can the State take over the admission procedure by sub,1 ituting its own procedure; but by the impugned provision in Section E 6 and Section 3(d) of the Act, 2007 even in the absence of any material to show that the entrance test conducted by the private unaided institution failed to satisfy the triple test, the State had taken over the admission procedure. Much emphasis was also laid upon para (65) of T.MA. Pai case to contend that private educational institutions have the right to select students and a common entrance test by the State decimates the right of autonomy of the private educational institutions which amounts to an unreasonable restriction and the same is liable to be struck down.

34. The claim of absolute 'right to occupation' which the appellants have raised on the basis of TMA. Pai, P.A. lnamdar cases is not sustainable. Jn T.MA. Pai and P.A. Inamdm: no unfettered right was granted to private unaided educational institutions to carry on trade and business without being restricted by statutory regulations enacted by the competent legislature. A fundamental right is not without measure of control and it will always be subject to reasonable restriction which the

MODERN DENTAL COLLEGE AND RESEARCH CENTRE v. 695 STATE OF MADHYA PRADESH [R. BANUMATHI, J.]

State is duty bound to impose in the larger public interest. In Sree11ivasa A General Traders and Ors. v. State ofA11dhra Pradesh a11d Ors. ( 1983) 4 sec 353, it was held as under:-

"17. The fundamental right of al I citizens to practise any profession or to carry on any occupation or trade or business guaranteed B under Article 19( l )(g) has its own limitations. The liberty of an individual to do as he pleases is not absolute. It must yield to the common good. Absolute or unrestricted individual rights do not and cannot exist in any modern State. There is no protection of the rights themselves unless there is a measure of control and c regulation of the rights of each individual in the interests of all."

35. M.P. Act 2007 was enacted for "the reg11latio11 of ad111issio11 and fixation offee in private professional educational i11sti111tions in the State <~l A1adhya Pradesh and to provide for reservation iif seats to persons belonging to the Scheduled Casles. the Scheduled Tribes and Other Backward Classes". Act 2007 is thus in furtherance of the constitutional obligation imposed upon the State to ensure equality of opportunity in admission to meritorious candidates who seek to pursue the medical education. Act 2007 enables the State to conduct common entrance test in the interest of securing higher standards of medical education so that quality doctors are trained leading to advancement in health sector of the nation. Point to be considered is whether the common entrance test to be conducted by the State Government or any agency authorized by it amounts to a reasonable restriction. F

36. From time to time, it has been held that 'in the interests of the general public', the State would be justified in imposing reasonable restriction, even if it affects the interests of particular individuals, or even causes hardship to particular individuals owing to the peculiar conditions in which they are placed. Reference can be made to the G decision of this Court in Narendra Kumar & Ors. v. Union of India & Ors. AIR 1960 SC 430, wherein it was held as under:-

"15. It is clear that in the following three cases viz. Chintaman Rao ( 1950) I SCR 759, Cooverjee AIR 1954 SC 220 and Madhya H

696 SUPREME COURT REPORTS [2016] 3 S.C.R.

A Bharat Association Ltd. AIR 1954 SC 634, the Cou11 considered the real question to be whether the interference with the funda111ental right was "reasonable'' or not in the interests of the general public and that if the answer to the question \\as in the affir111ative, the law would be valid and it would be invalid if the B test ofreasonableness was not passed. Prohibition was in all these cases treated as only a kind of"restriction".

18. In applying the test of reasonableness, the Court has to c consider the question in the background of the facts and circumstances under which the order was made, taking into account the nature of the evil that was sought to be remedied by such law, the ratio of the harm caused to individual citizens by the proposed re111edy, to the beneficial effect reasonably expected to result to the general public. It will also be necessary to consider in that connection whether the restraint caused by the law is 111ore than was necessary in the interests of the general public."

37. While determining the reasonableness of the restrictions imposed by the State on the 'freedom of occupation' guaranteed by Article 19( I )(g), the principles which can be taken into account were summed up by this Court in MR. F. Ltd. v. lnspectm~ Kera/a Gover11111e11t and Ors .. (1998) 8 SCC 227, in the following relevant extraction:- "On a conspectus of various decisions of this Cou11, the following principles are clearly discernible: (1) While considering the reasonableness of the restrictions, the court has to keep in 111ind the Directive Principles of State Policy. G (2) Restrictions 111ust not be arbitrary or of an excessive nature so as to go beyond the requirement of the interest of the general pub Iic. (3) In order to judge the reasonableness of the restrictions, no abstract or general pattern or a fixed principle can be laid

MODERN DENTAL COLLEGE AND RESEARCH CENTRE v. 697 STATE OF MADHYA PRADESH [R. BANUMATHI, J.]

down so as to be ofuniversal 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. B (./) A just balance has to be struck between the restrictions imposed and the social control envisaged by clause (6) of Article I9.

(5) Prevailing social values as ·also social needs which are intended to be satisfied by restrictions have to be borne in c mind. (See: State of U.P. v. Kaushailiya AIR I96./ SC 4I6.) ( 6) There must be a direct and proximate nexus or a reasonable connection between the restrictions imposed and the object D 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. (See: Kavalappara Kottarathil Kochuni v. States of Madras and Kera/a AIR I 960 SC I 080; O.K. E Ghosh v. E.X .Joseph AIR 1963 SC 812.)" A similar view was also expressed in State of Madras v. V.G Row, AIR 1952 SC 196 and K.K. Kochuni v. Stale of Madras and Kera/a, AIR 1960 SC I 080. • F

38. In T.M.A. Pai, while this Court acknowledged 'right to occupation' of private educational institutions as guaranteed under Article 19( I )(g) of the Constitution of India, in para (54), this Court laid down general law pertaining to the authority of State Government to impose regulatory means in respect of private aided and unaided educational G institutions, which reads 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, H

698 SUPREME COURT REPORTS [2016] 3 S.C.R.

A 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 B admissions would be unacceptable restrictions."

39. In TMA. Pai, in paras (58) and (59), the Constitution Bench reiterated that for seeking admission into the professional educational institutions, merit plays an impo1tant role and held as under:- c ''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 coi11petent professional, it is necessary that meritorious candidates are not unfairly treat~d or put at a disadvantage by preferences shown to less meritorious but more influential applicants. Excellence in professional education would require that greater emphasis be laid on the merit of a student seeking admission. Appropriate regulations for this purpose may be made keeping in view the other observations made in this judgment in the context of admissions to unaided institutions.

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

G 40. In order to clarify the doubts/anomalies 1n TM.A. Pai, Constitution Bench was constituted in Islamic Academy of Educalion wherein this Court reiterated that admission to professional colleges should be based on merit by a common entrance test conducted by of government agencies. Furthermore, in exercise power under Article H 142, this Court directed setting up of two committees headed by a retired

MODERN DENTAL COLLEGE AND RESEARCH CENTRE v. 699 STATE OF MADHYA PRADESH [R. BANUMATHI, J.]

High Court Judge nominated by the Chief Justice of the State to oversee the entrance test conducted by the association and also to approve.the fee structure proposed by the institute.· In paras ( 19) and (20) of the said judgment, it was held as under:- "19. we· now direct that the respective State Governments do appoint a permanent Committee which will ensure that the tests conducted by the association of colleges is fair and transparent. For each State a separate Committee shall be formed. The Committee would be headed by a retired Judge of the High Court. The Judge is to be nominated by the Chief Justice of that ~C State ..... The Committee shall have powers to oversee the tests to be conducted by the association. This would include the power to call for the proposed question paper(s), to know the names·of the paper-setters and examiners and to check the method adopted to ensure papers are not leaked. The Committee shall supervise D and ensure that the test is conducted in a fair and,transparent manner. The Committee shall have the power to permit an· institution, which has been established and which has been permitted to adopt its own admission procedu_re for the last, at least, 25 years, to adopt its own admission procedure and ifthe E Committee feels that the needs of such an institute are genuine, to admit, students of their community, in excess of the quota allotted . to them by the State Government .... .It is also clarified that no institute, which has not been established and which has not followed its own admission procedure for the last, at least, 25 years, shall F be permitted to apply for or be g_ranted exemption from admitting students in the manner set out hereinabove.

20. Our direction for setting up two sets of Committees in the States has been passed under Article 142 of the Constitution of G India which shall remain in force till appropriate legislation is enacted by Parliament. The expenses incurred .on the setting up of such Committees shall be borne by each State. The infrastru~tural needs and provision for allowance and remuneration of the Chairman and other members of the Committee shall also H·

700 SUPREME COURT REPORTS [2016] 3 S.C.R.

A be borne by the respective State Government."

41. In P.A. Jnamdar; this Court observed that there has to be one common entrance examination to be conducted by the State Government or by the competent authority appointed by the State Government in B case more than one university exist in the State and tn para ( 136) of the judgment held as under:- "136. Whether minority or non-minority institutions, there may be more than one similarly situated institutions impl!rting education in · ·any one discipline, jn any State. The same aspirant seeking c admission to take education in any one discipline of education shall have topurchase admission forms from several institutions and appear at several admission tests conducted at different places on the same or different dates and there may be a clash of dates. If the same candidate is required to appear in several tests, he would be subjected to unnecessary and avoidable expenditure arid inconvenience. There is nothing wrong in an entrance test being held for one group of institutions imparting same or similar education. Such institutions situated in one State or in mori; t)lan one State may join together and hold a cominon entrance test or the State may itself or through an agency arrange for holdirig of such test. Out of such common merit list the successful candidates can be identified and chosen for being allotted to different institutions depending on the courses of study offered, the number of seats, the kind of minority to which the institution belongs and other relevant factors. Such an agency conducting the common entrance test ("CET" for short) must be one enjoying utmost credibility and expertise in the matter. Th_is would better ensure the fulfilment of twin objects of transparency and merit. CET is necessary in the interest of-achieving the said objectives and also for saving the- student comp1unity from harassment and exploitation. Holding of such common entrance test followed by centralised counselling or, in other words, single-window system regulating admissions does not cause any dent in the right of - H -mino~~ty unaided educational institutions to admit students of their

.. i. > MODERN DENTAL COLLEGE AND RESEARCH CENTRE v, 701 STATE OF. MADHYA PRADESH [R. BANUMATm, J.] . ./

/ '. choice. Such.choice can be exercised'from out of the list of. A .. successful candidates prepared at CET without altering the order·. of merit inter se of the students-so chosen." ' •.·. .'' 4°2; [n para"(138), lt was further held that having regard to the larger' interest 'and welfare of thestlldent co~muhity, it "would be . B. permissible to regula:te the admi~sions by providing centralized and .. ' . a : , single~window procedure. Pa;.a (l:iS)"read_s as under:~ • · '· · · · . -. , ' .··' " '· .. - ... ... ~ -

. "lJ8~1t needs to be specifically stated that hi\ving regardto the . l ... farge~ int~rest.aod We!fa~e Of th~ St~de.nt C~Jh~unity: to.pl'"Or:;,Oie · .•

merit: achih~' • e~cellence ..... ' . • - - ' . • • ' '~ _.-.--·' ~d curb'.malpractices, ~- . ·: '. _, ·.: _,_ - ·._ ·-' -· .>_... - _- ', "it would -, - ·. ' : -. . be . -~ ··.• penitis"sible _to regulate:adtnissions by"providing a centralised and· .single-wind~\~ pro~edu~. ·such' a proce~ure, to a l~rge extent, .. ' .·.' . .. - ,.._ . -· '·-. . '._~ __ . ', ., ·; - . - ,_ . .... - , - - .. . : . ·.: ·.• ' ·; l:- :· • - .· can "se,ctire •.•• -:. grant ofmedt,based ' . • -· • :·;."· . ' ,. _.. '· , .. .·:. . : . : admissions • ' ;. - on a. transparent ' basis. . . . ; •, :. - - .• -..• :· .

. " . Till regulations ilre framed,theAdmission Committees ~an qversee · . .. -:_~·>-:; ad~i~Si~~S ~~·a-~. to: ~~s~re th~t- itieiit. i~ :flot.ih~, cas~aiiy::~:.: -~; ~-~- 0 ·-.: ;:- · . · .. .· );j3 .i#i~i·~i the:vi1,~:iak~ni~·Isfam;cAcademy o~ ~~hst,iiution . · · ,; , .· • 1 ·. ·.· or!ivo ~6iridiiti~~s,Wiil i1ie ~esponsihiliii~s nfthe siate ciovernirierit~ '-<; , ;. < ·• .•-..·. 1 ·.· 'to ~orii~;;u!;ith 3,v~!i-t~o~ght ~u·; le~islatiori-0ri.thesubject,it ~~s >-·>;,11'<, :; .. ,:~ · hei~l"iri'Jii1~h,;1da/i;paras (i.i4) and(°ISS.)as~nd~r:- . ..·,. ·-. . - .. ' . , - - , , . . '· :. . . .- ' - ' -... '~ - i .... , -·-.· ,_;-_ .·.-· .· - . . _... ,·~- •. , .. -. - .·. __ ., . ._- .. :.-:::'4 ·. : ~'144. The two Committees-for monitoring ad1iiission procedure,: . · ':: a~d determi1iing fee; strziciu;e :in the judg~ent ofJ.;fm~i~ L. ·. , . · .,Academy (2003)'6 sec 697,"are in our.view, permissible as-~ - ·: .. · -. regulato~ r:ieasu~s aimed at pr.ot~~ti~~ '.he i~t.ef,estoft_h,e ~t~de~t =· F., · .. C community as a whole as also the mmoqt1es themselv.es, in. . . ·· • • . . m~intainlng requi;_ecl .sta~da~ds of pr~fessiori~I educatibni>n non" ·., '··· . - . , , e~ploitaiivet~~s iri their ihstitutio~s.Legalprovisions ;nade.by -~ - ' - ..... , .,_ '. . - ' ' . '"',•' '"' . -- - - . ·-.' . . - . . ',' - - -- . . ' -~ ' - ,. - .. - ' _, . . ,, . '".

the State. Legislatures or, the scheme evolved by the Court. for.··.· .: .. ~o~i.t_~ii_ng.ad.~ls~~~~ proc~d~r~ and fe(:fi~~.tion d6n5Jl viol~t~.: o· ·.·.,·the right ofminorities'under Articl.e 30(1) or the rightofminorities · .··.. : mid no~-nii11o;ities u~de'r Article 19(I)(g), Tb~y arer~a;o~able ·~. resi~ictkms.inlhel~te'~st ·..'>4-.:··,,,- '._,,_.-.,·.. -- bf~iil6rii; · , ,._.,,,_ ·-. - . institutforis - ._,· p~i-;;iis'~ible"·••u~d~r. .• , . . . . . . . • -- ~

Article 30(1) and in the.interest ofgeneral public imder Article »,19(6)ofth,eConstititi~li. ~- -. . . .:'·' :. >-'-°;:;.'. 'H': ...·_·;... :

702 SUPREME COURT REPORTS [2016] 3 S.C.R..

A · 155. It is for the Central Government, or for the State "Governments, in the absence of a Central legislation, to come out with a detailed well-thought-out legislation on the subject. Such a ·legislation is long awahed. The States must act towards this direction. The judicial wing of the State is called upon to act when B the othe.r two wings, the legislature and the executive, do not act. The earlier the Union oflndia and the State Governments act, the , better it would be. The Committees regulating admission procedure .. and fee structure shall continue to exist, but only as a temporary ·- measure and an inevitab'le passing phase until the Central c Government or the State Governments are able to devise a suitable mechanism and appoint a competent authority in consonance with the observations made hereinabove. Needless to say, any decision taken by such Committees and by the Central or the State , Governments, shall be open to judicial review in accordance with · D the settled parameters for the exercise of su.ch jurisdiction."

44. In para ( 155) of P.A. Inamdar, as quoted above, State Governments have been directed to frame a detailed well-thought out legislation on the subject with a further observation that any decision taken by the Committees and by the Central or State Governments shall be open to judicial review in accordance with the settled parameters for the exercise of such jurisdiction. The impugned legislation-Act 2007 . has thus' been enacted in compliance with the directions issued by this Court in T.MA. Pai, Islamic Academy and P.A. lnamdar with a view to ensu_re fairness and transparency in the admissions process.

45. Common·entrance test-single window system which regulates admission to unaided private professional educational instituiions does not cause any dent in the fundamental rights of those institutions: In T.M.A. Pai and P.A. bwmdar. this Com1 categorically held that admission to professional courses must be on the basis of merit. The word 'merit' is word of Latin origin, deriving roots from meritum, meaning 'due reward' and mereri ·meaning 'earn, deserve'. Concise Oxfor<l English Dictionary ( 1Ph Edn) defines 'merit' as 'excel~ence: worth'. P. Ramanatha Aiyar's Advanced.Law Lexicon (3'a Edn.) on

MODERN DENTAL COLLEGE AND RESEARCH CENTRE v. 703 STATE OF MADHYA PRADESH [R. BANUMATHI, J.]

the topic of merit makes mention of Gu111a11 Singh v. State ofRajasthan A (197,1) 2 sec 452, wherein it was observed as under:- " .. ,merit is a sum total of various qualities and attributes of an employee such as his academic qualifications, his distinction iri the university, his character, integrity, devotion to duty and the. B manner in which he discharges his official duties. Allied to this may be various other matters, or factors, such as his punctuality in work, the quality and -out-turn of work. done by him and the manner of his dealings with his superiors and subordinates officers and the general public, his rank it1 th·e service and annual c confidential report All these and other factors may have to be taken into account in assessing the merit." Additionally, in Dr. Pradeep Jain and Ors. v. Union of India and Ors., (1.984) 3 SCC 654, it was held as llllder:- D " ... Merit consists of a high degree of intelligence coupled with a keen an~ incisive mind, sound knowledge of the basic subjects and infinite capacity for hard work-and·alsp calls for a sense of social commitment and dedication to the cause of the poor."

46. It is well known that study o_f medicine is much sq,ught after by · E students in India. Due to the high demand for admission in Medi.cal Colleges and limited·number of seats, selection and/or screening methods have evolved to select the creme de la creme. Given the. surfeit of academically well-qualified applicants, the selection inethod ought to become highly competitive by placii1g exceptionally high academic thresholds. It is fn this context that 'merit' comes into play in determining the parameters for admissions in institutions ofhiglwr cducatio1\.

47. Merit is the cumulative assessment of worth of any individual based on different screening methods. Ideally, there should be one common entrance test .conducted by ~he State both for government colleges and for private unaided educatioiml institutions to ensure e(frcacy, fairness and pub! ic confidence, As rightly contended by Mr. Purushaindra Kaurav, Addi. Advocate General for the St~te of Madhya Pradesh . appearing for AFRC, a common entrance test conducted by the State is H

704. SUPREME COURT REPORTS . [2016] 3 S,C.R.

A more advantageous viz.:- (i) having adhered to the time schedule as laid down in Mridul Dhar case (2005) 2 SCC 65; (ii) multiple centres of examination and counselling throughout the State and a single window system for admission; (iii) standard question papers, preservation of ·.question pape.rs and a'.hswer books, prevention of leakage of question B paper8-and fair evaluation and (iv) minimal litigation. That apart, procedure for preparation of merit list, counselling and allotments to vatious colleges is subject to Right to. Information Act and thus ensures-fairness and transparency in the entire process. c 48.Having regard to the prev!liling conditions relating to admissions · ·in private professional educational ins!itutions in the State of Madhya .. Pradesh, the Legislature in· its wisdom has taken the view that merit .based admissions can be ensured only through a common entrance test .. followed bycentralizt:d counselling either by the Sta~e or by an agency authorized by the State. In order to ens.ure rights of the applicants aspiring for medical courses under Articles 14, IS and 16 of the Constitution of India, legislature by the impugned legislation introduced the system of Common Entrance Test (CET) to secure merit pased admission on a transparent basis. If private unaided educational institutions are given unfettered right to devise thei~ own admission procedure and fee structure, it would lead to situation where it would impinge upon the "right to equality" of the students who aspire to take admissions in such educational ·institutions. Common Entrance Test by State or its agency will ensure !XJUal opportunity to all meritorious and suitable candidates and meritorious candidates can be identified for being allotted to different institutions depending on the courses of study, the number of seats and other relevant factors .. .'.fhi~would ensl!re twin objects:- (i.) fairness and transparency and (ii) merit apart from preventing mal-administration. Thus, having regard to the larger _interest and welfare of the student ~ommun ity to promote merit.and achieve excellenci<..and curb mal-practices, it would be permissible for the State to regulate admissions by providing a centralized.and single window procedu~e . .Holding such CET followed ( .by centralized counselling or sit!gle window system reguJatingadmissi9.nS H does not cause any dent on the fundame~tal ti~ts ofthe. institutions in

MODERN DENTAL COLLEGE AND RESEARCH CENTRE v. 705 STATE OF MADHYA PRADESH [R. BANUMATHI, J.]

tunning the institution. While private educational institutions have a 'right A ofoccupaiion' in running the educational institutions, equally they have the responsibility of selecting meritorious and suitable candidates, 'in order to bring out professionals with excellence. Rights of private educational institutions have to yield to the larger interest of the community. B

49. By holding common entrance test and identifying meritorious candidates, the State is merely providing the merit list of the candidates prepared on the basis of a fair common entrance test. If the screening test is conducted on merit basis, no loss will be caused to the private educational inst(tutions. There is neither restriction on the entry ofthe c students in the sanctioned intake of the institutions nor on the fr right to collect fees from the students. The freedom of private educational institutions to establish and run institution, impart education, recruit staff, take disciplinary action, .admit students, participate in fixation ?f fees is 'in noway being abridged by the impugned legislation; it remains intact. D SO. While considering the reasonableness of the restriction, the court has to keep in mind the Directive Principles a/State Policy: For deciding the constitutional validity of any statute or executive order or considering the reasonableness of a restriction cast by the law on the exercise of any fundamental right, the court has to keep in mind the Directive Principles of State Policy. A law or measure designed for promoting or having the effect ofadvancing directive principles is per se reasonable and in public interest. The State fias a duty to balance the direct impact_QJ1 the fundamental right of individuals as against the greater public or social interest. In State of Bombay and A.nr. v. F.N Balsara [195 I] SCR 682, a Constitution Bench of this Court held that in judging "the reasonableness of the restriction itnposed on the fundamental right, one has to bear in mind the Directive Principles of State Policy set forth in Part ·IV of the Constitution, while examining the challenge to the constitutional validity of law by reference to Article 19(1 )(g) of the Constitution. ~n Stale of Gujarat v. Mirzapur Moti Kurf!shiKassab Jamat and Ors. (2005) 8 SCC 534; this Couti held that banon slaughter .of cow p~ogeny is not a prohibition btit only a reasonable restriction. A · seven-Jticige Bench of this Court in para (41) held as under:- H

SUPREME COURT REPORTS [2016) 3 S.C.R.

A : "41._The message of Kesavananda Bharati (1973) 4 SCC 225 is clear. The interest of a citizen ·or section of a co1nmunity, howsoever important, is secondary to the interest of the country or community as a whole. -For judging the reasonability of restrictions imposed 01.1 fundamental rights the relevant B considerations are not only those as stated in Article 19 itself or in Part Ill of the Constitution: the directive principles stated in Part IV are also relevant. Changing factuaLconditions and State policy, in~luding the one reflected in the impugned enactment, have to be considered and given weightage to by the courts while deciding c the constitutional validity oflegislative enactments. 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: first, that it does not run in clear conflict with D • the fundamental right, and secondly, that it has been enacted within the legislative competence of the enacting legislature under P~rt XI Chaptet I of the Constitution." 51: 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 Jiving and working conditions. Under Articles 39( e), J9(f) and 42 of the Constitutia°n, obligations are cast on the State to ensure health and strength· of . workers,. men and- women; ensure children . are given opportunities . & facilities to devel9p in a healthy manner and to secure just & humane conditions of~ork arid for 111aternity relief, respectively. A11icle 47 of · the .Constitution makes improvement of public health a primary duty of the State. However, right to health is no longer in the sole domain of 'Part IV,of the ConstittJtion. In Kirloskar Brathers Ltd. v. Eluployees ' State 1n~u1'ance Corp. (1996) 2 SCC 682, it was held that right to health is a fundamental right 'of workers K and the maintenance . . of health . is most imperative constitutional goal whose realization requires interaction of many social and economic factors.· In Raiasthan Pradesh Vaidya . Samiti, Sardarshahar and another v. Union of lnqia qnd others (2010) 12 sec 609, this Court held that the citizens of this country have H

MODERN DENTAL COLLEGE AND RESEARCH CENTRE v. 707 STATE OF MADHYA PRADESH [R. BANUMATHI, J.]

a right under Article 21 of the Constitution of India which includes the A protection and safeguarding the health and life of pub Iic from ma I-medical treatment. More recently in Centre for Public Interest Litigation v. l)nion of India (2013) 9 SCR 1103, again this Court has recognized that right to life under Article 21_ includes right to health.· 8 52.'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 an~ commitment who are ready_ to give medical advice and services to the public at large. State can c 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. D ..-

53. Fundamental Rights ofprivate unaided professional colleges '

must yield to public interest and rights of the students at large: 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 institution solely because such institution has an unfettered right to choose its own stude.nts 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 3maided medical colleges is a right of equality in oppo11unity. On many occasions, this has led to a conflict between fundamental rights of private educational institutions ~[l the one hand and the rights of students and public at large on the other. However, the law is now settled. In such .. cases where there is a conflict between fundamental right of two parties, this Com1 in para (59) in Sharda v. Dharmpal (2003) 4 sec 493 held that only that right which would advance public morality or public interest would prevail. In para (39) in Kureshi Kassab case · H

708 SUPREME COURT REPORTS [2016] 3 S.C.R.

A (supra), this Court held that when a fundamental right clashes with the ·larger interest of society, it must yield to the latter. The interest of citizens or section of community, howsoever important, is secondary to the interest of the nation public at large and of the right of the students to avail · · opportunity of merit-based admis~ion in professional unaided educational B institutions would advance the public interest and as such the rights of the students would prevail over the rights of the private unaided professional educational institutions.

54Copy pinpoint54. Re-contention: No material to show that the private unaided c professional educational institutions failed in triple test-fairness, transparency and non-exploitativeness: In para (137) of the judgment in P.A. Jnamda,r. this Court has observed that if the admission procedure adopted by private institutions fails to satisfy all or any of the triple test, then admission yrocedure can be taken over by the State substituting its own procedure and not otherwise. Contention of the appellants is that there is absolutely no material to· show that private educational institutions were not able to ensure a fair, transparent and non-exploitative admission procedure and that the impugned legislation empowering the State or agency nominated by i(to conduct common entrance test is in violation of the directions of this Court. In so far as this contention, High Court has observed thus:-

" ... Sufficient materials have been filed before us by the respondents to show that prior to the enactment of the Act 2007, F this Court as well .as the committee constituted as per the orders of the Supreme Court in Islamic Academy of Education (supra) had to enquire into complaints of mai-practice in admi.ssions in private professional educational institutions and after finding the complaints to be true, directed the institutions to give admission to G the aggrieved students in the next academic sessions and this would show that the private professional educational institutions were not able. to ensure a fair, transparent and non-exploitative admission procedure before Act, 2007 was enacted ...."

. 55. Our attention was drawn to the advertisement ofDMAT 2006 H ..

MODERN DENTAL COLLEGE AND RESEARCH CENTRE v. 709 STATE OF MADHYA PRADESH [R. BANUMATHI, J.]

for admission in MBBS/BDS course in the private colleges in Madhya A Pradesh scheduled to be conducted on 16.07 .2006 and number of writ petitions fiJed by the students pertaining to DMAT 2006. l(was submitted that - in. W.P. (C) No. 1796 of2006, . High Court , stayed DMAT . 2006 and directed the State to a~p~int a committee as per Islamic Academy of Education and the committee managing DMAT cancelled DMAT 2006. 8 Having regard to the number of complaints and litigations, High Court was right in observing that sufficient materials had been placed before it to show that prior to enactment of Act 2007, the High_ Court as well as the committee had to enquire into the complaints of mal-practice. in · admissions. It is not a case of no materials, where state would not be c . justified in taking over the admission procedure.

56Copy pinpoint56. Learned Senior Counsel for the respondents submitted that the State Government had filed complaints before the AFRC against so.me of private colleges and criminal proceedings had also been initiated against • D unaided private professional .institutions at the behest Of the students a11eging irregularities and mal-practices. Our attention is orawn to the alleged violation of the order of this Court in Priya Gupta v. State of Chhattisgarh and Ors. (2012) 7 SCC 433, as per which it was made mandatory for each college and university to inform 'the State and the E competent authority of the seats which 'are lying vacant after each counselling and they shall furnish the complete details, list of seats fell vacant in the respective States immediately after each counselling. Ms. Vibha Dutta Makhija, learned Senior Counsel appearing for the State of F Madhya Pradesh and Mr. Purushaindra Kaurav learned AAG appearing for AFRG-have submitted that inspite of requests, the private colleges· deliberately did not report vacant seats under the State quota after each round of counselling even after the admission procedure was complete and in this context,have relied on a.number ofletters (Annexure A-14 to G I.A. 83/20 IS) addressed to the private colleges by Director of Medical Education, Madhya Pradesh. It was submitted that in the year 2013-