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Thursday, July 25, 2013

the NEET’= the Medical Council of India (hereinafter referred to as ‘the MCI’) should not be entrusted with a right to conduct National Eligibility-cum- Entrance Test (hereinafter referred to as ‘the NEET’) and whether introduction of the NEET would violate fundamental rights of the petitioners guaranteed under the provisions of Articles 19(1)(g), 25, 26, 29(1) and 30 of the Constitution of India.= whether the legal provisions which permit the aforestated apex bodies to conduct the NEET, so as to regulate admission of the students to medical institutes, are in accordance with legal and Constitutional provisions. The aforestated question has been rightly answered by this court in the case of Dr. Preeti Srivastava and Another vs. State of M.P. and Others (1999) 7 SCC 120 to the effect that norms of admission will have a direct impact on the standards of education. This court has observed that the standards of education in any institution or college would depend upon several factors and the caliber of the students to be admitted to the institutions would also be one of the relevant factors. Moreover, in view of entry 25 of List III of the Seventh Schedule to the Constitution, Union as well as the States have power to legislate on the subject of medical education, subject to the provisions of entry 66 of List I of the Seventh Schedule, which deals with determination of standards in institutions for higher education. In the circumstances, a State has the right to control education, including medical education, so long as the field is unoccupied by any Union legislation. By virtue of entry 66 in List I to the Seventh Schedule, the Union can make laws with respect to determination of standards in institutions for higher education. Similarly, subject to enactments, laws made with respect to the determination of standards in institutions for higher education under power given to the Union in entry 66 of List I of the Seventh Schedule, the State can also make laws relating to education, including technical education and medical education. In view of the above position clarified in the case of Dr. Preeti Srivastava (supra), the NEET can be conducted under the supervision of the MCI as per the regulations framed under the Act. As stated hereinabove, Section 33 of the Act enables the MCI to make regulations to carry out the purposes of the Act and therefore, conducting the NEET is perfectly legal. So far as the rights guaranteed under Article 19(1)(g) of the Constitution with regard to practising any profession or carrying on any occupation, a trade or business, are concerned, it is needless to say that the aforestated rights are not unfettered. - So far as the rights guaranteed to the petitioners under the provisions of Articles 25, 26, 29 and 30 are concerned, in my opinion, none of the rights guaranteed under the aforestated Articles would be violated by permitting the NEET. It is always open to the petitioners to select a student subject to his being qualified by passing the examination conducted by the highest professional body. This is to assure that the students who are to undergo the professional training are suitable for the same. Regulations relating to admission of the students i.e. admitting eligible, deserving and bright students would ultimately bring reputation to the educational institutes. I fail to understand as to why the petitioners are keen to admit undeserving or ineligible students when eligible and suitable students are available. I am sure that even a scrupulous religious person or an educational institution would not like to have physicians or dentists passing through its institution to be substandard so as to bring down reputation of the profession or the college in which such a substandard professional was educated. Minorities - be it religious or linguistic, can impart training to a student who is found worthy to be given education in the field of medicine or dentistry by the professional apex body. In my opinion, the Regulations and the NEET would not curtail or adversely affect any of the rights of such minorities as apprehended by the petitioners. On the contrary, standard quality of input would reasonably assure them of sterling quality of the final output of the physicians or dentists, who pass out through their educational institutions. The Government authorities or the professional bodies named hereinabove would not be creating any hindrance in the administrative affairs of the institutions. Implementation of the NEET would only give better students to such institutions and from and among such highly qualified and suitable students, the minority institutions will have a right to select the students of their choice. At this stage, the institutions would be in a position to use their discretion in the matter of selection of students. It would be open to them to give weightage to the religion, caste, etc of the student. The institutions would get rid of the work of conducting their separate examinations and that would be a great relief to them. Except some institutions having some oblique motive behind selecting students who could not prove their mettle at the common examination, all educational institutes should feel happy to get a suitable and eligible lot of students, without making any effort for selecting them. 23. For the reasons recorded hereinabove, in my opinion, it cannot be said that introduction of the NEET would either violate any of the fundamental or legal rights of the petitioners or even adversely affect the medical profession. In my opinion, introduction of the NEET would ensure more transparency and less hardship to the students eager to join the medical profession. Let us see the consequence, if the apex bodies of medical profession are not permitted to conduct the NEET. A student, who is good at studies and is keen to join the medical profession, will have to visit several different States to appear at different examinations held by different medical colleges or institutes so as to ensure that he gets admission somewhere. If he appears only in one examination conducted by a particular University in a particular State and if he fails there, he would not stand a chance to get medical education at any other place. The NEET will facilitate all students desirous of joining the medical profession because the students will have to appear only at one examination and on the basis of the result of the NEET, if he is found suitable, he would be in a position to get admission somewhere in the country and he can have the medical education if he is inclined to go to a different place. Incidentally, I may state here that learned senior counsel Mr. Gupta had informed the Court that some medical colleges, who are more in a profiteering business rather than in the noble work of imparting medical education, take huge amount by way of donation or capitation fees and give admission to undeserving or weak students under one pretext or the other. He had also given an instance to support the serious allegation made by him on the subject. If only one examination in the country is conducted and admissions are given on the basis of the result of the said examination, in my opinion, unscrupulous and money minded businessmen operating in the field of education would be constrained to stop their corrupt practices and it would help a lot, not only to the deserving students but also to the nation in bringing down the level of corruption. 24. For the aforestated reasons, I am of the view that the petitioners are not entitled to any of the reliefs prayed for in the petitions. The impugned notifications are not only legal in the eyes of law but are also a boon to the students aspiring to join medical profession. All the petitions are, therefore, dismissed with no order as to costs.

Reported in http://judis.nic.in/supremecourt/imgst.aspx?filename=40580
                                                                  REPORTABLE



                        IN THE SUPREME COURT OF INDIA

                         CIVIL ORIGINAL JURISDICTION

                            T.C.(C) NO.98 OF 2012


CHRISTIAN MEDICAL COLLEGE
VELLORE & ORS                           ...Petitioners

                 VERSUS

UNION OF INDIA AND ORS.                 ...Respondents

WITH T.C.(C) NO.99/2012
T.C.(C) NO.101/2012
T.C.(C) NO.100/2012
T.C.(C) NO.102/2012
T.C.(C) NO.103/2012
W.P.(C) NO.480/2012
T.C.(C) NO.104/2012
T.C.(C) NO.105/2012
W.P.(C) NO.468/2012
W.P.(C) NO.467/2012
W.P.(C) NO.478/2012
T.C.(C) NO.107/2012
T.C.(C) NO.108/2012
W.P.(C) NO.481/2012
W.P.(C) NO.464/2012
T.C.(C) NO.110/2012
T.C.(C) NOS.132-134/2012
T.C.(C) NOS.117-118/2012
T.C.(C) NOS.115-116/2012
T.C.(C) NOS.125-127/2012
T.C.(C) NOS.113-114/2012
T.C.(C) NOS.128-130/2012
T.C.(C) NOS.121-122/2012
T.C.(C) NO.112/2012
T.C.(C) NO.131/2012
T.C.(C) NOS.123-124/2012
T.C.(C) NO.111/2012
T.C.(C) NO.120/2012
T.C.(C) NO.119/2012
T.C.(C) NOS.135-137/2012
T.C.(C) NOS.138-139/2012
W.P.(C) NO.495/2012
W.P.(C) NO.511/2012
W.P.(C) NO.512/2012
W.P.(C) NO.514/2012
W.P.(C) NO.516/2012
W.P.(C) NO.519/2012
W.P.(C) NO.535/2012
T.C.(C) NO.142/2012 @ T.P.(C) NO.364/2012
W.P.(C) NO.544/2012
W.P.(C) NO.546/2012
W.P.(C) NO.547/2012
T.C.(C) NO.144/2012 @ T.P.(C) NO.1524/2012 & 1447/2012
T.C.(C) NO.145/2012
T.C.(C) NO.1/2013 @ T.P.(C) NO.1527/2012
T.C.(C) NOS.14-15/2013 @ T.P.(C) NOS.1672-1673/2012
T.C.(C) NO.76/2013 @ T.P.(C) NO.1702/2012
T.C.(C) NO.12-13/2013
T.C.(C) NO.4/2013
T.C.(C) NO.11/2013
T.C.(C) NOS.21-22/2013 @ T.P.(C) NO.1714-1715/2012
T.C.(C) NO.5/2013 @ T.P.(C) NO.1718/2012
W.P.(C) NO.2/2013
W.P.(C) NO.1/2013
T.C.(C) NO.60/2013 @ T.P.(C) NO.12/2013
W.P.(C) NO.13/2013
W.P.(C) NO.15/2013
W.P.(C) NO.16/2013
W.P.(C) NO.20/2013
T.C.(C) NO....../2013 @ T.P.(C) NO.31/2013
T.C.(C) NO.2/2013 @ T.P.(C) NO.1532/2012
T.C.(C) NO.8/2013
T.C.(C) NO.3/2013 @ T.P.(C) NO.1533/2012
W.P.(C) NO.24/2013
T.C.(C) NO.9/2013
T.C.(C) NO.17/2013 @ T.P.(C) NO.1588/2012
W.P.(C) NO.483/2012
W.P.(C) NO.501/2012
W.P.(C) NO.502/2012
W.P.(C) NO.504/2012
W.P.(C) NO.507/2012
T.C.(C) NO.10/2013
T.C.(C) NO.7/2013 @ T.P.(C) NO.1644/2012
T.C.(C) NO.18/2013 @ T.P.(C) NO.1645/2012
T.C.(C) NO.75/2013 @ T.P.(C) NO.1647/2012
T.C.(C) NO.19/2013 @ T.P.(C) NO.1653/2012
T.C.(C) NO.20/2013 @ T.P.(C) NO.1654/2012
T.C.(C) NO.59/2013 @ T.P.(C) NO.1656/2012
T.C.(C) NO.53/2013 @ T.P.(C) NO.1658/2012
T.C.(C) NO.25/2013 @ T.P.(C) NO.1671/2012
T.C.(C) NO.23-24/2013 @ T.P.(C) NO.1697-1698/2012
T.C.(C) NO.58/2013 @ T.P.(C) NO.1/2013
W.P.(C) NO.27/2013
T.C.(C) NO.72/2013 @ T.P.(C) NO.58/2013
T.C.(C) NO.16/2013
T.C.(C) NO.61/2013
T.C.(C) NO.73/2013 @ T.P.(C) NO.75/2013
T.C.(C) NO....../2013 @ T.P.(C) NO.79/2013
T.C.(C) NO.62/2013
W.P.(C) NO.47/2013
T.C.(C) NO.28-29/2013
T.C.(C) NO.30/2013
T.C.(C) NO.31-32/2013
T.C.(C) NO.33-36/2013
T.C.(C) NO.37-38/2013
T.C.(C) NO.39/2013
T.C.(C) NO.40/2013
T.C.(C) NO.41/2013
T.C.(C) NO.42/2013
T.C.(C) NO.43/2013
T.C.(C) NO.44/2013
T.C.(C) NO.45/2013
T.C.(C) NO.46/2013
T.C.(C) NO.47/2013
T.C.(C) NO.48/2013
T.C.(C) NO.49/2013
W.P.(C) NO.66/2013
W.P.(C) NO.76/2013
W.P.(C) NO.74/2013
T.C.(C) NOS.63-65/2013
T.C.(C) NOS.66-69/2013
T.C.(C) NOS.70-71/2013
W.P.(C) NO.41/2013
W.P.(C) NO.228/2013




                               J U D G M E N T



ALTAMAS KABIR, CJI.


1.      Four notifications, two dated 21.12.2010 and  the  other  two  dated
31.5.2012, issued by the Medical Council of India and the Dental Council  of
India, are the subject matter of challenge in all these matters  which  have
been  heard  together  by  us.   Notification  No.  MCI-31(1)/2010-MED/49068
described as "Regulations  on Graduate Medical Education  (Amendment)  2010,
(Part II)" has been published by the Medical Council of India to  amend  the
"Regulations   on   Graduate   Medical   Education,   1997".    Notification
No.MCI.18(1)/2010-MED/49070 described as  "Post-graduate  Medical  Education
(Amendment) Regulation, 2010 (Part II)" has been issued by the said  Council
to amend the "Post Graduate Medical Education Regulations, 2000".  Both  the
Regulations came into force  simultaneously  on  their  publication  in  the
Official Gazette.  The third and fourth Notifications both bearing  No.  DE-
22-2012 dated 31.5.2012, relating to admission in the BDS  and  MDS  courses
published by the Dental Council of India, are similar to  the  notifications
published by the MCI.


2.      The four aforesaid Notifications have  been  challenged  on  several
grounds.  The major areas of challenge to the aforesaid Notifications are:


(i)     The powers of the Medical Council of India and  the  Dental  Council
       of India to regulate the process of admissions into medical  colleges
       and institutions run by the State  Governments,  private  individuals
       (aided and unaided), educational institutions run  by  religious  and
       linguistic minorities, in the guise of laying down minimum  standards
       of medical education, as provided for in Section 19A of  the   Indian
       Medical Council Act, 1956, and under  Entry  66  of  List  I  of  the
       Seventh Schedule to the Constitution.


(ii)    Whether the introduction of  one  National  Eligibility-cum-Entrance
       Test (NEET) offends the fundamental right guaranteed to  any  citizen
       under Article 19(1)(g) of the Constitution to practise any profession
       or to carry on any occupation, trade or business?


(iii)   Whether  NEET  violates  the  rights  of  religious  and  linguistic
       minorities to establish and administer  educational  institutions  of
       their choice, as guaranteed under Article 30 of the Constitution?


(iv)     Whether  subordinate  legislation,  such  as  the  right  to  frame
       Regulations, flowing from a power given under a statute, can have  an
       overriding  effect  over  the  fundamental  rights  guaranteed  under
       Articles 25, 26, 29(1) and 30 of the Constitution?


(v)     Whether the exclusion of Entry  11  from  the  State  List  and  the
       introduction of Entry 25 in the Concurrent List by  the  Constitution
       Forty Second (Amendment) Act, 1976, makes any difference  as  far  as
       the Regulations framed by the Medical Council of India under  Section
       33 of the 1956 Act and those framed by the Dental  Council  of  India
       under Section 20 of  the  Dentists  Act,  1948,  are  concerned,  and
       whether such Regulations would have primacy over State legislation on
       the same subject?


(vi)    Whether the aforesaid questions have  been  adequately  answered  in
       T.M.A. Pai Foundation Vs. State of Karnataka [(2002) 8 SCC 481],  and
       in the subsequent decisions in Islamic Academy of Education Vs. State
       of  Karnataka  [(2003)  6  SCC  697],  P.A.  Inamdar  Vs.  State   of
       Maharashtra [(2005) 6 SCC 537] and  Indian  Medical  Association  Vs.
       Union of India [(2011) 7 SCC 179]? and


(vii)   Whether the views expressed by the Constitution Bench  comprised  of
       Five Judges in Dr. Preeti Srivastava Vs. State of M.P. [(1999) 7  SCC
       120] have any impact on the issues raised in this batch of matters?


3.       In  order  to  appreciate  the  challenge  thrown   to   the   four
notifications, it is necessary to understand the  functions  and  duties  of
the Medical Council of India under the Indian  Medical  Council  Act,  1956,
and the Dental Council of India  constituted under the Dentists  Act,  1948.
The submissions advanced in regard to the  MBBS  and  Post-graduate  courses
will apply to the BDS and MDS courses also.


4.      The Indian Medical Council Act, 1933, was  replaced  by  the  Indian
Medical Council Act, 1956, hereinafter referred to as "the 1956 Act",  inter
alia, with the following objects in mind :-


           "(a) to give representation to licentiate members of the medical
           profession, a large number of whom are still practicing  in  the
           country;


           (b)  to provide for the registration of the names of citizens of
           India who have obtained foreign     medical qualifications which
           are not at present recognized under the existing Act;


           (c)  to provide for  the  temporary  recognition  of     medical
           qualifi-cations granted by  medical  institutions  in  countries
           outside India with which no  scheme  of  reciprocity  exists  in
           cases   where   the   medical   practitioners   concerned    are
           attached for the time being to any medical  institution in India
           for the purpose of   teaching or research or for any  charitable
           objects;


           (d)  to provide for the formation of a Committee of         Post-
           graduate Medical Education for  the  purpose  of  assisting  the
           Medical Council of India to prescribe standards of post-graduate
           medical education for the guidance of universities  and       to
           advise universities in the matter of securing uniform  standards
           for post-graduate medical education throughout India;

           (e)   To  provide  for   the   maintenance   of   an   all-India
           register by the Medical Council of India, which will contain the
           names of all the medical     practitioners possessing recognized
           medical qualifications."




5.      The Medical Council of India, hereinafter referred to as "MCI",  has
been defined in Section 2(b) of the 1956 Act to mean the Medical Council  of
India constituted under the said Act.   The Council  was  constituted  under
Section 3 of the Indian Medical  Council  Act,  1956.    Section  6  of  the
aforesaid Act provides for the  incorporation  of  the  Council  as  a  body
corporate by  the  name  of  Medical  Council  of  India,  having  perpetual
succession and a common seal, with power to acquire and hold property,  both
movable and immovable, and to contract, and to sue and be sued by  the  said
name.

6.      The powers vested in  the  MCI  are  essentially  recommendatory  in
nature. Section 10A, which was introduced in the 1956 Act  by  Amending  Act
31 of 1993, with effect from 27th August, 1992, inter alia,   provides  that
notwithstanding anything contained in the Act or any other law for the  time
being in force:-


(a)     no person shall establish a medical college; or


(b)     no medical college shall :-


        (i)     open a new or higher  course  of  study  or         training
(including a postgraduate course  of      study  or  training)  which  would
enable a student        of such course or training to qualify  himself   for
the award of any recognised medical     qualification; or


        (ii)      increase its admission capacity  in  any        course  of
study or training (including a  postgraduate course of study or training),


except with the previous permission of the Central  Government  obtained  in
accordance with the provisions of this section.


        Under Section 10A the function of the MCI is  purely  recommendatory
for the purpose  of  grant  of  permission  by  the  Central  Government  to
establish a new medical college or to introduce a new course of study.

7.      Section 19A which was introduced into the 1956  Act  by  Act  24  of
1964 with  effect  from  16th  June,  1964,  provides  for  the  Council  to
prescribe "minimum standards of medical education".  Since Section 19A  will
have some bearing on the judgment itself, the same is extracted  hereinbelow
in full :-
           "19A. Minimum standards of medical education - (1)  The  Council
           may  prescribe  the  minimum  standards  of  medical   education
           required for granting recognised medical  qualifications  (other
           than postgraduate medical  qualifications)  by  universities  or
           medical institutions in India.

           (ii) Copies of the  draft  regulations  and  of  all  subsequent
           amendments thereof shall be furnished  by  the  Council  to  all
           State Governments and the Council shall  before  submitting  the
           regulations or any amendment thereof, as the case may be, to the
           Central Government for sanction,  take  into  consideration  the
           comments of any State Government received  within  three  months
           from the furnishing of the copies as aforesaid.


           (3)  The Committee shall from time to time report to the Council
           on the efficacy of the regulations  and  may  recommend  to  the
           Council such amendments thereof as it may think fit."


8.      Section 20 of the 1956 Act, provides  for  a  Post-graduate  Medical
Education Committee to assist  the Medical Council  of  India  to  prescribe
standards of  post-graduate  medical  education  for  the  guidance  of  the
Universities.  For the sake of reference, the relevant portions  of  Section
20 of the  1956  Act  with  which  we  are  concerned,  are  also  extracted
hereinbelow :-


           "20. Post-graduate Medical  Education  Committee  for  assisting
           Council in matters relating to post-graduate medical education -
           (1) The Council may prescribe standards of Postgraduate  Medical
           Education for the  guidance  of  Universities,  and  may  advise
           Universities in the matter of  securing  uniform  standards  for
           Postgraduate Medical Education through out India, and  for  this
           purpose the Central Govt. may constitute from among the  members
           of  the  Council  a  Postgraduate  Medical  Education  Committee
           (hereinafter referred to as the Post-graduate Committee).





9.      By the first of the two Notifications  dated  21st  December,  2010,
being MCI-31(1)/2010-Med./49068, the Medical Council of India, in  purported
exercise of the powers conferred  by  Section  33  of  the  1956  Act,  made
various amendments to the 1997 Regulations on  Graduate  Medical  Education.
The most  significant  amendment,  which  is  also  the  subject  matter  of
challenge in some of these writ petitions and transferred cases,  is  clause
5 in  Chapter  II  of  the  Regulations.   The  relevant  paragraph  in  the
Amendment Notification reads as follows:

           "6.  In Chapter II, Clause 5 under the  heading  "Procedure  for
           selection  to  MBBS  Course  shall  be  as  follows"  shall   be
           substituted as under:-

           I.    There  shall  be  a  single   eligibility   cum   entrance
           examination namely 'National Eligibility-cum-Entrance  Test  for
           admission to MBBS course' in each academic  year.   The  overall
           superintendence, direction and control of National  Eligibility-
           cum-Entrance Test shall vest  with  Medical  Council  of  India.
           However, Medical Council of India with the previous approval  of
           the Central Government shall select  organization/s  to  conduct
           'National Eligibility-cum-Entrance Test for  admission  to  MBBS
           course.


           II.  In order to be eligible for admission to MBBS course for  a
           particular academic year, it shall be necessary for a  candidate
           to obtain minimum of 50% (Fifty Percent) marks in each paper  of
           National  Eligibility-cum-Entrance  Test  held  for   the   said
           academic year.  However, in respect of candidates  belonging  to
           Scheduled Casts, Scheduled Tribes and  Other  Backward  Classes,
           the minimum percentage shall be  40%  (Forty  Percent)  in  each
           paper and in respect of candidates with locomotory disability of
           lower limbs, the minimum percentage marks shall  be  45%  (Forty
           Five Percent) in each paper of National Eligibility-cum-Entrance
           Test:


           Provided when  sufficient  number  of  candidates  belonging  to
           respective categories fail to secure minimum marks as prescribed
           in National Eligibility-cum-Entrance Test in any  academic  year
           for  admission  to  MBBS  Course,  the  Central  Government   in
           consultation with Medical Council of India may at its discretion
           lower the minimum marks required for admission  to  MBBS  Course
           for candidates belonging to respective categories and  marks  so
           lowered by the Central Government shall be  applicable  for  the
           said year only.


           III. The reservation of seats in medical colleges for respective
           categories shall be as per applicable laws prevailing in States/
           Union Territories.  An all India merit list as  well  as  State-
           wise merit list of the eligible candidates shall be prepared  on
           the basis of the marks  obtained  in  National  Eligibility-cum-
           Entrance Test and candidates shall be admitted  to  MBBS  course
           from the said lists only.


           IV.   No  candidate  who  has  failed  to  obtain  the   minimum
           eligibility marks as prescribed in Sub Clause(ii) above shall be
           admitted to MBBS Course in the said academic year.


           V.    All  admissions  to  MBBS  course  within  the  respective
           categories shall be  based  solely  on  marks  obtained  in  the
           National Eligibility-cum-Entrance Test.

                                                        (Dr. P. Prasannaraj)
                                                        Additional Secretary
                                                   Medical Council of India"



10.     Similarly, by virtue of Notification No.  MCI.18(1)/2010-Med./49070,
in purported exercise of the powers conferred by  Section  33  of  the  1956
Act, the Medical Council  of  India,  with  the  previous  approval  of  the
Central Government, made similar  amendments  to  the  Postgraduate  Medical
Education   Regulations,  2000,  providing  for  a  single  eligibility  cum
entrance examination.  For  the  sake  of  reference,  the  portion  of  the
notification which is relevant for our purpose is extracted hereinbelow:
           "No. MCI.18(1)/2010-Med./49070. –  In  exercise  of  the  powers
           conferred by Section 33  of  the  Indian  Medical  Council  Act,
           1956(102 of  1956),  the  Medical  Council  of  India  with  the
           previous approval of the Central  Government  hereby  makes  the
           following regulations to further amend the “Postgraduate Medical
           Education Regulations, 2000”, namely:-


           1. (i) These Regulations may be called the Postgraduate  Medical
           Education (Amendment) Regulations, 2010 (Part-II)”.


           (ii)  They  shall  come  into  force  from  the  date  of  their
           publication in the Official Gazette.


           2. In the “Postgraduate Medical  Education  Regulations,  2000”,
           the   following   additions   /modifications   /   deletions   /
           substitutions, shall be as indicated therein:-


           3.  Clause  9  under  the  heading  ‘SELECTION  OF  POSTGRADUATE
           STUDENTS’ shall be substituted as under:-


           “9.  Procedure  for  selection  of  candidate  for  Postgraduate
           courses shall be as follows:


           I.    There  shall  be  a  single   eligibility   cum   entrance
           examination namely ‘National Eligibility-cum-Entrance  Test  for
           admission to Postgraduate  Medical  Courses’  in  each  academic
           year. The overall  superintendence,  direction  and  control  of
           National Eligibility-cum-Entrance Test shall vest  with  Medical
           Council of India.  However, Medical Council of  India  with  the
           previous  approval  of  the  Central  Government  shall   select
           organization/s  to  conduct  ‘National  Eligibility-cum-Entrance
           Test for admission to Postgraduate courses’."



         Two  similar  Notifications  both   bearing   No.DE-22-2012   dated
31.5.2012, were published by the  Dental  Council  of  India  for  the  same
purpose.


11.     The challenge to these Notifications has thrown up  various  issues,
which include the powers  of  the  Central  and  the  State  Governments  to
legislate on matters relating to education under Entry 66 of List I  of  the
Seventh Schedule to the Constitution and Entry 25  of  List  III  which  was
introduced by way of the Constitution (Forty-second  Amendment)  Act,  1976,
having particular regard to the fact that the previous Entry No. 11  in  the
State List, was omitted by the said amendment, doing away with education  as
a State subject and denuding  the  State  of  its  powers  to  legislate  on
matters relating to education except in accordance  with  Entry  25  of  the
Concurrent List.  In fact, what has been pointed out on behalf  of  some  of
the parties is that by omitting Entry 11 from the State List  and  including
Entry 25  in  the  Concurrent  List  of  the  Seventh  Schedule,  the  Union
Government acquired the authority to also legislate on matters  relating  to
education, which it did not have previously.


12.     Another common submission, which is of great significance as far  as
these matters are concerned, was with regard to the adverse  impact  of  the
single entrance examination on the   fundamental  right  guaranteed  to  all
citizens  under  Article  19(1)(g)  of  the  Constitution  to  practise  any
profession,  or  to  carry  on  any  occupation,  trade  or  business.   The
provisions of Article  30,  preserving  the  right  of  both  religious  and
linguistic minorities, to establish and administer educational  institutions
of their choice, were also highlighted by learned counsel for  some  of  the
Petitioners.


13.     The major challenge, however, was with regard to the  MCI's  attempt
to regulate admissions to the M.B.B.S.  and  Post-graduate  Courses  in  all
medical colleges  and  medical  institutions  in  the  country  run  by  the
different State Governments and  by  private  agencies  falling  within  the
ambit of Article 19(1)(g) and in some cases Article 30 of  the  Constitution
as well by introducing NEET. One of the facets of  such  challenge  was  the
inter-play of Article 29(2) and Article 30(1), as also Article 30(2) of  the
Constitution.   Various  authorities  have  been  cited  on  behalf  of  the
different parties, harking back to the Presidential Reference in the  Kerala
Education Bill case [(1959] S.C.R. 995], and  the  subsequent  views,  which
have been expressed on most of the aforesaid issues by various  combinations
of Judges, which include combinations of Eleven-Judges, Nine-Judges,  Seven-
Judges, Five-Judges and Three-Judges, of this  Court.   While  most  of  the
decisions touch upon the main theme in these matters regarding the right  of
either the Central  Government  or  the  State  Government  or  the  MCI  to
regulate admissions into  medical  colleges,  the  issue  raised  before  us
concerning the authority of the MCI and the DCI  to  conduct  an  All  India
Entrance Examination, which will form  the  basis  of  admissions  into  the
M.B.B.S. as well as  Post-graduate  Courses  in  all  medical  colleges  and
institutions all over the country, could not be considered  in  the  earlier
judgments.  As a result, after the introduction of NEET, admissions  to  the
M.B.B.S. and Post-graduate courses and the BDS and MDS courses can  be  made
only on the basis of  the  Select  List  prepared  in  accordance  with  the
results of the All India Entrance Test, which would  not  only  eliminate  a
large number of applicants from  admission  to  the  medical  colleges,  but
would also destroy the very essence of Articles 25, 26, 29(1) and 30 of  the
Constitution, since admission is one of the more important functions  of  an
institution.


14.     The submissions in these cases were commenced by Mr.  Harish  Salve,
learned  senior  counsel  appearing  for  the  Christian  Medical   College,
Vellore, and the Christian Medical College,  Ludhiana,  the  Petitioners  in
Transferred Cases (C) Nos. 98-99 of  2012.   Mr.  Salve's  submissions  were
supplemented by Mr. K. Parasaran, Dr. Rajiv Dhawan, Mr. K.K.  Venugopal  and
Mr. R. Venkataramani, learned senior counsel, and several  others  appearing
for some of the religious and linguistic minorities referred to  in  Article
30 of the Constitution.


15.     Mr. Salve submitted that  the  two  Notifications  both  dated  21st
December, 2010, incorporating amendments  in  the  Regulations  on  Graduate
Medical  Education,   1997   and   the   Post-Graduate   Medical   Education
Regulations,  2000,  and  introducing  a  single  National  Eligibility-cum-
Entrance Test (NEET) for admission to the MBBS course and the  Post-graduate
course in each academic year throughout the country, had been challenged  by
the Petitioners before the Madras High Court, in Writ Petition Nos.24109  of
2011 and 24110 of 2011.  Mr. Salve urged that the  said  amendments  stifled
and stultified the fundamental rights  guaranteed  to  religious  minorities
under Articles 25, 26, 29(1) and 30  of  the  Constitution  of  India.   Mr.
Salve submitted that Article 25 secures to every person, subject  to  public
order, health and morality and to the other provisions of  Part-III  of  the
Constitution, freedom  of  conscience  and  the  right  freely  to  profess,
practise and propagate religion.  The said right guarantees to every  person
freedom not only to entertain such religious belief,  but  also  to  exhibit
his belief in such outward acts as he thought proper  and  to  propagate  or
disseminate his ideas for the edification of others.  Mr. Salve  urged  that
this proposition was settled by this Court as far  back  as  in  1954  by  a
Bench of  Seven-Judges  in   Commr.,  H.R.E.  Vs.  Sri  Lakshmindra  Thirtha
Swamiar of Sri Shirur Mutt [1954 SCR 1005].


16.     Mr. Salve submitted that  subject  to  public  order,  morality  and
health, Article  26  of  the  Constitution  guarantees  to  every  religious
denomination or a section thereof,  the  right  to  establish  and  maintain
institutions for religious and charitable purposes and  to  manage  its  own
affairs in matters of religion.  Mr. Salve urged that in regard  to  affairs
in matters of religion, the right of management given to  a  religious  body
is a guaranteed fundamental right which no legislation can take  away.   Mr.
Salve submitted that Article 30(1) of the Constitution gives  religious  and
linguistic minorities the right to establish and to  administer  educational
institutions of their choice, which was reiterated and emphasised in  T.M.A.
Pai Foundation Vs. State of Karnataka [(2002)  8  SCC  481],  decided  by  a
Bench of Eleven Judges.


17.     Mr. Salve submitted that the  Christian  Medical  College,  Vellore,
hereinafter referred to as "CMC Vellore", was established 113 years  ago  as
a one-bed clinic by one Dr. Ida Sophia Scudder, the daughter of an  American
Medical Missionary. She started training Compounders (Health Assistants)  in
1903 and Nurses in 1909, and was able  to  establish  a  Missionary  Medical
School for women leading to the  Licentiate  in  Medical  Practice  in  1918
which was upgraded to the MBBS course affiliated to the  Madras  University.
Admission was thrown open to men for  the  MBBS  course  in  1947.   As  the
college grew, from 1948  it  started  admitting  students  by  an  All-India
Entrance Examination, followed  by  an  in-depth  interview.  By  1950,  the
affiliation to the University was confirmed and the intake was increased  to
60 under-graduate MBBS students in 1964, which  has  now  increased  to  100
MBBS students.  To meet the needs of the local population,  a  large  number
of Higher Speciality Courses, Post-graduate Medical Courses,  Allied  Health
Sciences Courses and Courses in Nursing, have also been developed  over  the
years.


18.     Currently, there are 11 Post-graduate Medical  Diploma  Courses,  23
Post-graduate  Medical  Degree  Courses  and  17  Higher  Specialty  Courses
approved by the Medical Council of India and affiliated to  the  Tamil  Nadu
Dr. MGR Medical University.  Today, the CMC Vellore,  a  minority,  unaided,
non-capitation  fee  educational  institution,  is  run  by  the  Petitioner
Association comprised of 53 Christian Churches and  Christian  Organizations
belonging to the Protestant and Orthodox traditions.  The stated  object  of
the Petitioner Association, as mentioned in its Memorandum  of  Association,
Constitution  and  the  Bye-laws  is  "the  establishment,  maintenance  and
development of a Christian Medical College and Hospitals,  in  India,  where
women and men shall receive education of the highest grade in  the  art  and
science of medicine and of nursing, or  in  one  or  other  of  the  related
professions, to equip them in the  spirit  of  Christ  for  service  in  the
relief of suffering and the promotion of health".


19.     Out of 100 seats available for the under-graduate  MBBS  Course,  84
are reserved for candidates from the Christian community and  the  remaining
are available for selection  in  the  open  category  with  reservation  for
candidates  belonging  to  the  Scheduled  Castes  and   Scheduled   Tribes.
Similarly, 50%  of  the  Post-graduate  seats  are  reserved  for  Christian
candidates and the remaining 50% are available for open selection on an All-
India basis.  Mr. Salve submitted that all students selected  for  the  MBBS
course are required to sign a bond agreeing to serve for  a  period  of  two
years in areas of need, upon completion of their courses.  Similarly,  Post-
graduate students selected in the Christian minority category have  also  to
give a similar undertaking.


20.     Mr. Salve submitted that the Medical Colleges and  institutions  run
by the Writ Petitioners charge fees  which  are  subsidised  and  are   even
lower than  the  fees  charged  by   Government  Medical  Colleges.  Liberal
scholarships are given by the  College  to  those  who  have  difficulty  in
making the payments, which include boarding, lodging and University  charges
(which  are  considerably  higher).  Learned  counsel   submitted  that  the
institution was established by a Christian minority doctor  in  response  to
her religious  beliefs  and  the  command  of  Jesus  Christ  exhorting  His
disciples and followers to heal  the  sick  and  has  evolved  an  admission
process for both its undergraduate and post graduate  courses  in  order  to
ensure  that  the  selected  candidates  are  suitable  for  being   trained
according to the ideology professed at Vellore.  Mr. Salve  urged  that  the
selection process is comprised of an All India Entrance Test followed  by  a
searching interview and special test devised  in  1948.   Such  process  has
been improved and fine-tuned over the years so that the candidates  are  not
only trained as health professionals, but to also serve in areas of need  in
difficult circumstances.


21.     It was pointed out that this system of admission resorted to by  the
Petitioner has successfully reflected the  ideals  with  which  the  medical
college was founded and a survey conducted  in  1992  established  the  fact
that the majority of graduates and post-graduates, who have passed out  from
the college, have been working in India for more than 10 years  after  their
graduation and the majority among  them  were  working  in  non-metropolitan
areas of the country.   This  evaluation  remained  the  same,  even  during
surveys conducted in 2002 and 2010, and is in striking contrast  to  similar
surveys carried out by other medical institutions of equal  standard,  where
only a small number of  graduates  have  been  working  in  non-metropolitan
areas.


22.     Mr. Salve submitted that  in  1993,  an  attempt  was  made  by  the
Government of Tamil Nadu to interfere with  the  admission  process  in  the
institution by a letter dated 7th May, 1993,  directing  the  Petitioner  to
implement the scheme framed by this Court in the case of Unni  Krishnan  Vs.
State of U.P. [(1993) 1 SCC 645], insofar as  the  undergraduate  course  in
Nursing was  concerned.   The  Petitioner-institution  filed  Writ  Petition
No.482  of  1993  before  this  Court  challenging  the  State  Government's
attempts to interfere with the  admission  process  of  the  institution  as
being contrary to and in violation of the  rights  guaranteed  to  it  under
Article 30 of the  Constitution.  In  the  pending  Writ  Petition,  various
interim  orders  were  passed  by  the  Constitution  Bench  of  this  Court
permitting the institution to take resort to  its  own  admission  procedure
for the undergraduate course in the same manner in which it had  been  doing
in the past.  The said Writ Petition was  heard  in  2002,  along  with  the
T.M.A. Pai Foundation  case  (supra),  wherein  eleven  questions  had  been
framed.


        While hearing the matters, the Chief Justice formulated five  issues
to encompass all the eleven questions, on the basis  of  which  the  hearing
was conducted, and the same are extracted below:


           "1.   Is  there  a  fundamental  right  to  set  up  educational
           institutions and, if so, under which provision?


           2.    Does  Unni  Krishnan  case  [(1993)  4  SCC  111]  require
           reconsideration?


           3.   In case of private institutions (unaided  and  aided),  can
           there be government regulations and, if so, to what extent?


           4.   In order to determine  the  existence  of  a  religious  or
           linguistic minority in relation to Article 30, what is to be the
           unit - the State or the country as a whole?


           5.   To what extent can the rights  of  aided  private  minority
           institutions to administer be regulated?"

        Out of the eleven questions framed by the Bench, Questions  3(b),  4
and 5(a) are extremely relevant for deciding the  questions  raised  in  the
Writ  Petition  filed  by  the  Petitioner-institution.   For  the  sake  of
reference, the said three Questions are extracted hereinbelow:
           "Q3(b).       To  what  extent  can  professional  education  be
           treated as a matter coming under minorities rights under Article
           30?

           Q4.  Whether the admission of students to  minority  educational
           institutions, whether aided or unaided, can be regulated by  the
           State Government or by the University to which  the  institution
           is affiliated?

           Q5(a).       Whether the  minority's  rights  to  establish  and
           administer educational institutions of their choice will include
           the  procedure  and  method  of  admission  and   selection   of
           students?"




23.     Mr. Salve submitted that the answer given by the Eleven-Judge  Bench
to the first Question is that  Article  30(1)  re-emphasises  the  right  of
religious and linguistic minorities to establish and administer  educational
institutions of their choice.  The  use  of  the  words  "of  their  choice"
indicates that even professional educational institutions would  be  covered
by Article 30.

24.     The answer to the second Question is that, except for providing  the
qualifications and minimum conditions of  eligibility  in  the  interest  of
academic standards, admission of students to  unaided  minority  educational
institutions cannot be regulated by the State or University concerned.   Mr.
Salve pointed out that a note of caution was,  however,  introduced  and  it
was observed that the right to administer,  not  being  an  absolute  right,
there  could  be  regulatory  measures  for  ensuring   proper   educational
standards and maintaining the excellence thereof, particularly in regard  to
admissions to  professional  institutions.   It  was  further  held  that  a
minority institution does not cease to be so, when it receives  grant-in-aid
and it would, therefore, be entitled to  have  a  right  to  admit  students
belonging to the minority group, but at the same time it would  be  required
to admit a reasonable number of non-minority students so that  rights  under
Article 30(1) were not substantially impaired and the rights  of  a  citizen
under Article 29(2) of the Constitution were not  infringed.   However,  the
concerned State Governments would have to  notify  the  percentage  of  non-
minority students to be admitted in the institution.   Amongst  students  to
be admitted from the minority  group,  inter  se  merit  would  have  to  be
ensured and, in the case of aided professional institutions, it  could  also
be submitted that in regard to the seats relating to non-minority  students,
admission should normally be on the basis of the common entrance  test  held
by the State agency, followed by counselling wherever it exists.


25.     In reply to  the  third  Question,  it  was  held  that  a  minority
institution may have its own procedure and method of admission  as  well  as
selection of students, but such a  procedure  would  have  to  be  fair  and
transparent and  the  selection  of  students  in  professional  and  higher
educational colleges should  be  on  the  basis  of  merit.   The  procedure
selected for admission by the minority institution ought not to  ignore  the
merit of  students  for  admission  while  exercising  the  right  to  admit
students by the colleges aforesaid, as in that event, the  institution  will
fail to achieve  excellence.   The  said  procedure  should  not  amount  to
maladministration.


26.     Some of the issues decided in the T.M.A. Pai  Foundation  case  came
up for clarification in the Islamic Academy of Education  case  (supra)  and
for further interpretation in P.A. Inamdar's case (supra),  before  a  Bench
of Seven-Judges, wherein the Petitioner-Association  was  duly  represented.
The Hon'ble  Judges  reiterated  the  views  expressed  in  the  T.M.A.  Pai
Foundation case that there cannot be  any  reservation  in  private  unaided
institutions, which had the right to have their own  admission  process,  if
the same was fair, transparent, non-exploitative and based  on  merit.   Mr.
Salve referred to paragraph 125 of  the  judgment  in  P.A.  Inamdar's  case
(supra), which is relevant for our purpose, and reads as follows:

           "125. As per our understanding, neither in the judgment  of  Pai
           Foundation [(2002) 8 SCC 481]  nor  in  the  Constitution  Bench
           decision in Kerala Education  Bill  [1959  SCR  995]  which  was
           approved by Pai Foundation, is there anything which would  allow
           the State to regulate  or  control  admissions  in  the  unaided
           professional educational institutions so as to  compel  them  to
           give up a share of the available seats to the candidates  chosen
           by the State, as if it was filling the  seats  available  to  be
           filled up at its discretion in such private  institutions.  This
           would  amount  to  nationalisation  of  seats  which  has   been
           specifically disapproved in Pai Foundation [(2002) 8  SCC  481].
           Such imposition of quota of State seats or enforcing reservation
           policy of the State on available seats in  unaided  professional
           institutions are acts constituting serious encroachment  on  the
           right  and  autonomy   of   private   professional   educational
           institutions. Such appropriation of seats can also not  be  held
           to be a regulatory measure  in  the  interest  of  the  minority
           within the meaning of Article 30(1) or a reasonable  restriction
           within the meaning of  Article  19(6)  of  the  Constitution  of
           India. Merely because the resources of the  State  in  providing
           professional  education   are   limited,   private   educational
           institutions,  which  intend  to  provide  better   professional
           education, cannot be forced by  the  State  to  make  admissions
           available on the basis of reservation policy to less meritorious
           candidates. Unaided institutions, as they are not  deriving  any
           aid from State funds, can have their  own  admissions  if  fair,
           transparent, non-exploitative and based on merit."



27.     Mr.  Salve  submitted  that  after  this  decision,  the  Petitioner
Institution continued to admit students to its various  graduate  and  post-
graduate courses by following its own admission procedure, as  it  had  been
doing for the last several decades.  Mr. Salve submitted that the  Committee
set up by the Government of Tamil Nadu  has  permitted  the  Institution  to
follow its own admission procedure for  undergraduate  M.B.B.S.  course  for
the academic year 2012-2013.


28.     While matters were thus poised, the Medical Council of India  framed
the impugned amended Regulations, which, according to Mr.  Salve,  not  only
violated the fundamental rights guaranteed under Articles 25, 26 and  30  of
the Constitution to minority run institutions,  but  if  implemented,  would
destroy the very objective with which  the  hospital  had  been  set  up  in
response to Christ's mission of healing the sick.  Mr. Salve submitted  that
the impugned Notifications were inconsistent with the law laid down  by  the
Supreme Court in its various decisions dealing with the rights  of  unaided,
non-capitation fee minority institutions to admit students of their  choice.


29.      Mr.  Salve  submitted  that  right  from  the  decision  in    Unni
Krishnan's  case  (supra),  when  the  State  Government  first  sought   to
interfere with the admission process adopted by the Petitioner  Institution,
this Court has, by virtue of different interim and final orders,  held  that
there could be no reservation of seats in institutions like the ones run  by
the Petitioner, which are wholly unaided and have always been  permitted  to
admit students of their choice, in keeping with  their  status  as  minority
unaided professional institutions.  It was urged that Clause  9(vi)  of  the
Post-Graduate Notification, which provides for reservation, is  ultra  vires
the provisions of Article 30(1) of the Constitution.  Furthermore, when  the
State Government tried to reserve 50% of the  seats  in  the  Under-graduate
courses, this Court granted a stay which continues to be operative.



30.     Mr. Salve submitted that the question of  reservation  of  seats  in
minority  institutions,  which  has  been   introduced   by   the   impugned
amendments, both in respect of  the  Under-graduate  and  the  Post-Graduate
courses, does violence to the rights conferred on minorities  under  Article
30(1) of the Constitution of India, as interpreted by this Court in  various
judgments starting from 1957  till  2002,  when  the  question  was  finally
decided by an Eleven-Judge Bench in the T.M.A. Pai Foundation case  (supra).
 Even the reservation created for NRIs in Unni Krishnan's case (supra)  case
was declared to be ultra vires the Constitution of India.



31.     It was urged that in a recent decision of this Court in  the  Indian
Medical Association case (supra), it has, inter alia,  been  held  that  the
level of regulation that the State could impose under Article 19(6)  on  the
freedoms enjoyed pursuant to Sub-Clause (g) of Clause (1) of Article  19  by
non-minority educational institutions, would be greater than what  could  be
imposed  on  minority  institutions  under  Article  30(1)  thereof,   which
continued to maintain their minority status  by  admitting  students  mostly
belonging to the minority  community  to  which  the  minority  institutions
claim to belong, except  for  a  sprinkling  of  non-minority  students,  an
expression which has been used in P.A. Inamdar's case and earlier  cases  as
well. Mr. Salve contended that the Petitioner  Institution,  from  its  very
inception reserved up to 85% of its seats in the Under-graduate courses  and
50% of the Post-Graduate seats for Christian students exclusively.   In  the
remaining 15% of the seats in the Under-graduate courses, reservations  have
been made for Scheduled Castes and Scheduled Tribes candidates.



32.      Mr.  Salve  contended  that  the  impugned  Notifications  and  the
amendments to the MCI Regulations  sought  to  be  introduced  thereby   are
contrary to the judgments delivered  by  the  Constitution  Bench.   Learned
counsel submitted that till the amendments were  introduced,  the  concerned
institutions had been conducting their own  All  India  Entrance  Tests  for
admission to the MBBS and Post-Graduate medical courses.   Mr.  Salve  urged
that there has  been  no  complaint  of  maladministration  as  far  as  the
institutions run by the Petitioner Association are concerned.



33.     It was further submitted that all the Petitioners in this  batch  of
cases are either religious minority educational institutions  or  linguistic
minority institutions; non-minority self-financing colleges,  self-financing
"Deemed to be  Universities"  under  Section  3  of  the  University  Grants
Commission Act and the State Governments which run State  medical  colleges.
However, it is the Christian Medical College, Vellore, which  is  among  the
very few institutions that fall in the first category.  The learned  counsel
urged  that without demur, the Christian Medical College, Vellore, has  been
consistently rated among the top ten medical colleges  in  the  country  and
usually ranked first or second. The excellence of patient care and  academic
training has been  recognised,  both  at  the  national   and  international
levels, and its contribution to health research has also been recognised  as
pioneering  work  by  both  national  and  international  research   funding
agencies.  Mr. Salve submitted  that  a  part  of  the  teachings  of  Jesus
Christ, as documented in the Gospels, which form part of the New  Testament,
was to  reach  out  to  and  to  heal  the  sick,  which  command  has  been
institutionalised by the Petitioner ever since it was established as a  one-
bed mission clinic-cum-hospital  in  1900.  Mr.  Salve  submitted  that  the
activities of the Petitioner Institution clearly attract the provisions   of
Article 25 of the Constitution and through the  Christian  Medical  College,
Vellore, its activities are designed to  achieve  the  avowed  objective  of
providing human resources for  the  healing  ministry  of  the  Church.  The
activity of running medical courses and allied health sciences  and  nursing
courses, in order to ensure constant  supply  of  doctors  and  other  para-
medical staff to those hospitals, engaged in the healing of  the  sick,  are
acts performed by the Petitioner in furtherance of its religious  faith  and
beliefs. It was submitted that in the decision of the Constitution Bench  of
Seven  Hon'ble  Judges  in  the  case  of  Commissioner,   Hindu   Religious
Endowments, Madras Vs. Sri Lakshmindra Thirtha Swamiar of  Sri  Shirur  Mutt
(1954 SCR 1005), this Court  held  that  Article  25  of  the  Constitution,
protects not only the freedom  of religious opinion, but also acts  done  in
pursuance of religious beliefs, as is clear from  the  expression  "practice
of religion".



34.     Mr. Salve also referred to the  decision  in  the  case  of  Ratilal
Panachand Gandhi Vs. The State of Bombay &  others,  reported  in  1954  SCR
1055, which was also a decision rendered by a  Constitution  Bench  of  this
Court relying upon the decision in the Shirur  Mutt  case  (supra),  wherein
similar sentiments were expressed.  Various  other  decisions  on  the  same
issue were also referred to, which, however, need not detain us.



35.     Mr. Salve further urged that the  Petitioner  Institution  is  still
one of the largest tertiary care hospitals in the  country,  where  patients
come from all over India for expert treatment. The medical college  combines
both medical treatment  and  education  which,  besides  being  a  religious
activity, is also a charitable activity,  thereby  bringing  it  within  the
ambit of Article 26(a) and (b) of  the  Constitution.  Mr.  Salve  submitted
that, in fact, the said activities had been recognised by this Court in  the
T.M.A. Pai Foundation  case (supra), wherein in paragraph 26,  it  was  held
as follows :-
           "26.  The  right   to   establish   and   maintain   educational
           institutions may also be sourced to Article 26(a), which grants,
           in positive terms, the right to every religious denomination  or
           any section thereof to establish and maintain  institutions  for
           religious and charitable  purposes,  subject  to  public  order,
           morality and health.  Education is a recognised head of charity.
            Therefore, religious denominations or sections  thereof,  which
           do not fall within the special categories carved out in  Article
           29(1) and 30(1),  have  the  right  to  establish  and  maintain
           religious and educational institutions."


36.      Today  the  Petitioner   has  in  place  a  selection  process  for
admission to its Under-graduate  and  Post-graduate  courses,  by  which  it
seeks to select candidates imbibed in the spirit of Christ for  the  purpose
of healing the sick and to dedicate their lives to serve the needy, both  in
the Petitioner Institution and also in far flung areas,  where  people  have
no ready access to medical care, through  the  Christian  Mission  Hospitals
run by the members of the Petitioner Association.  Mr. Salve submitted  that
the doctors, who are the product of  the  Petitioner  Institution,  are  not
only well-trained in medicine, but have also been imparted  with  values  in
the treatment of the sick and the needy in keeping  with  the  teachings  of
Christ, who looked on everybody with compassion.  Mr. Salve urged  that  the
admission  process has proved to be highly successful and effective, and  in
the case of St. Stephen's College Vs.  University of  Delhi  [(1992)  1  SCC
558], this Court upheld the same as it was found to meet the objectives  for
which the Institution itself had been established, despite the fact that  it
was an aided minority institution.  Mr. Salve pointed out that in  paragraph
54 of the judgment, this Court had occasion  to  deal  with  the  expression
"management of the affairs of the institution” and it  was  held  that  this
management must be free from control so that the founder or  their  nominees
could mould the Institution as they thought fit and in accordance  with  the
ideas of how the interests of the community in general and  the  institution
in particular could be served.



37.      As  far  as  unaided,  non-capitation   fee,   religious   minority
institutions are  concerned,  Mr.  Salve  submitted  that  so  long  as  the
admission procedure adopted is fair, transparent  and  non-exploitative  and
there is no complaint of maladministration, it would be grossly  unjust  and
unconstitutional  to  interfere  with  the   administration   of   such   an
institution, in complete violence of the freedoms guaranteed under  Articles
25, 26 and 30 of  the  Constitution.    Mr.  Salve  submitted  that  if  the
National Eligibility-cum-Entrance Test was to be  applied  and  followed  in
the case  of  minority  institutions  protected  under  Article  30  of  the
Constitution, it would result in complete denudation  of  the  freedoms  and
rights guaranteed to such institutions under the Constitution, as  it  would
run counter to the very principles on which admissions in such  institutions
are undertaken.



38.     Mr. Salve submitted that neither Section 10A nor Section 19A of  the
1956 Act, which  were  inserted  in  the  principal  Statute  by  amendment,
contemplate that the MCI would itself be entitled to conduct entrance  tests
for admission into  different  medical  colleges  and  hospitals  in  India.
Learned  counsel submitted that the main purpose of  constituting  the   MCI
was to ensure excellence in the field of medical education and for the  said
purpose, to regulate  the  standards  of  teaching  and  the  infrastructure
available for establishment of a new medical college or to introduce  a  new
course of study in an existing college.  What is  made  clear  from  Section
10A is that no new medical college could be established  and  recognised  by
the Central Government without the recommendation of the Medical Council  of
India.   Such  recognition  would   be   dependent   upon   inspection   and
satisfaction that  the  proposed  new  medical  college  satisfied  all  the
conditions stipulated by the Medical Council of India  for  starting  a  new
medical college.  Section 19A, which was inserted  into  the  principal  Act
much before  Section  10A,  speaks  of  the  minimum  standards  of  medical
education,  other  than  post-graduate  medical  qualification,  which   the
Medical Council of India may  prescribe  as  being  required  for  grant  of
recognition to medical institutions in India.



39.     Mr. Salve urged that while Section 33 of the 1956 Act empowered  the
Council, with the previous sanction  of  the  Central  Government,  to  make
Regulations to carry out the purposes of the Act and  clause  (l)  empowered
the Council to make Regulations with regard to the conduct  of  professional
examinations, qualifications of examiners and the  conditions  of  admission
to such examinations, the same did not  empower  the  Council   to  actually
conduct the examinations, which continues  to  be  the  prerogative  of  the
institution concerned.



40.      Mr.  Salve   submitted   that   in   State   of   A.P.   Vs.   Lavu
Narendranath[(1971) 1 SCC 607], this Court had considered the validity of  a
test held by the State Government for admission to medical colleges  in  the
State of Andhra Pradesh and had held that  although  the  Andhra  University
Act, 1926, prescribed the minimum qualification of  passing  HSC,  PUC,  ISC
examinations for entry into a higher course of study, owing to  the  limited
number of seats, the Government, which  ran  the  medical  colleges,  had  a
right to select students out of the  large  number  of  candidates  who  had
passed the entrance examination prescribed by it.  It  was  also  held  that
merely because the Government had supplemented the eligibility  rules  by  a
written test  in  the  subjects  with  which  the  candidates  were  already
familiar, there was nothing  unfair  in  the  test  prescribed  nor  did  it
militate against the powers of the Parliament under  Entry  66  of  List  I,
which is not relatable to a screening test prescribed by the  Government  or
by a University for selection of students out of a large number of  students
applying for admission to a particular course of  study.   This  Court  held
that such a test necessarily partakes of the  character  of  an  eligibility
test as also a screening test.  Mr. Salve urged that in  such  a  situation,
minimum qualifying marks were necessary, but the said question has not  been
addressed at all in Lavu Narendranath's  case  (supra),  since  it  did  not
arise in that case.



41.     Mr.  Salve  submitted  that  the  Petitioner  Institution  has  been
supplementing the primary duty enjoined on the State under Articles  21  and
47 of the Constitution in providing health care to the people  in  different
parts of the country, including the rural  and  remote  areas,  through  the
several  hospitals  run  by  Christian  Churches  and  organizations.    Any
interference with the manner in which these minority institutions are  being
administered, except where the  standards  of  excellence  are  compromised,
would not only strike at the very reason  for  their  existence,  but  would
disturb  the  health  care  services  being  provided  by  them.  Mr.  Salve
submitted that the MCI, which  is  a  creature  of  Statute,  cannot  travel
beyond the powers vested in it by the Statute and its attempt   to  regulate
and control the manner in which admissions are to  be  undertaken  in  these
institutions, by introducing a single  entrance  examination,  goes  against
the very grain of  the  fundamental  rights  vested  in  the  religious  and
linguistic minorities to establish and administer  educational  institutions
of their choice and to impart their religious values  therein,  so  long  as
the same was not against the peace and security of the State.



42.      Mr. Salve urged that the amended provisions of the MCI  Regulations
as impugned, were liable  to  be  struck  down  as  being  contrary  to  the
provisions of Articles  25,  26  and  30  of  the  Constitution,  read  with
Sections 10A and 19A of the Indian Medical Council Act, 1956.



43.     Having heard Mr. Harish Salve on the  rights  claimed  by  religious
minority medical institution enjoying the protection  of  Articles  25,  26,
29(1) and 30 of the Constitution, we may now turn to  the  submissions  made
by Mr. K. Parasaran, learned Senior Advocate, appearing  on  behalf  of  the
Vinayaka Missions University, run by a linguistic  minority,  also  enjoying
the rights guaranteed under Article 19(1)(g) and the protection  of  Article
30 of the Constitution.



44.  Mr. Parasaran began by reiterating Mr. Salve's  submission  that  while
minority institutions enjoyed  the  fundamental  rights  guaranteed  to  any
other individual or institution under Article 19(1)(g) of the  Constitution,
in addition, linguistic minorities, like  religious  minorities,  enjoy  the
special protection afforded under  Article  30  of  the  Constitution.   Mr.
Parasaran submitted that just  as  in  the  case  of  religious  minorities,
linguistic minorities also  have  the  right  to  establish  and  administer
educational institutions of their choice, which included the right to  admit
students therein.



45.      Mr. Parasaran submitted that the  impugned  Regulations  are  ultra
vires,  unconstitutional  and  violative  of   Article   19(1)(g)   of   the
Constitution, not only in respect of institutions  run  by  minorities,  but
also to all institutions covered by NEET.  Mr. Parasaran submitted  that  if
the Indian Medical Council Act, 1956, is to be  understood  to  empower  the
MCI to nominate the students for admission, it would be invalid,  since  the
said Act and the amendments to the Act, which are relevant for  the  present
cases, were enacted before the 42nd Constitution  Amendment,  whereby  Entry
11 was removed from List II of the Seventh Schedule  and  was  relocated  as
Entry 25 in List III of the said Schedule, came into force on  3rd  January,
1977.



46.     Mr. Parasaran also urged that as was held by this  Court  in  Indian
Express Newspapers Vs. Union of India  [(1985)  1  SCC  641],  even  if  the
Regulations are accepted to be subordinate legislation, the same  were  also
open to challenge:
     (a) on the ground on which plenary legislation is questioned.


     (b) on the ground that it does not conform to the statute  under  which
     it is made.


     (c) on the ground that it is contrary  to  some  other  statute  as  it
     should yield to plenary legislation, and/or


     (d) that it is manifestly unreasonable.



47.     Mr. Parasaran submitted that in  Deep  Chand  Vs.  State  of  Uttar
Pradesh and Others [(1959) Suppl. 2 SCR 8] wherein the validity of  certain
provisions of the Uttar Pradesh Transport Service (Development) Act,  1955,
came to be considered on the passing of the Motor Vehicles (Amendment) Act,
1956, the majority view was that the entire Act did not become wholly  void
under Article 254(1) of the Constitution, but continued to be valid  in  so
far as it supported  the Scheme already framed under the U.P. Act.



48.      Mr.  Parasaran  contended  that  a  standard  must   have   general
application and inter se merit does  not  relate  to  standards,  but  is  a
comparison of an assessment of merit among the eligible candidates.



49.      Mr. Parasaran submitted that the legislative power under  Entry  11
of List II stood transferred to List III only by virtue of the  Forty-second
Amendment with effect from 3rd January, 1977 and  the power so  acquired  by
virtue of the amendment, could  not  validate  an  Act  enacted  before  the
acquisition of such  power.  Mr.  Parasaran  urged  that  while  the  Indian
Medical Council Act  was  enacted  in  1956,  Section  19A  on  which  great
reliance was placed by Mr. Nidhesh Gupta,  learned  Advocate  appearing  for
the  MCI,  was  brought  into  the  Statute  Book  on   16th   June,   1964.
Consequently the 1956 Act, as also the Regulations, are ultra vires,  except
to the extent covered by Entry 66 of List  I,  which  is  confined  to  "co-
ordination and determination of standards".



50.     Referring to the decision of this Court in State of Orissa Vs.  M.A.
Tulloch & Co. [(1964) 4 SCR  461],  Mr.  Parasaran  contended  that  as  the
State's powers of  legislation  are  subject  to  Parliamentary  legislation
under Entry 66  of List I, when Parliament legislates, to that extent  alone
the State is denuded of its legislative power.  A denudation  of  the  power
of the State legislature can be effected only by a plenary  legislation  and
not by subordinate legislation.  The Regulations, which are not  plenary  in
character,  but  have  the  effect  of  denuding  the  power  of  the  State
legislature, are, therefore, ultra vires.



51.     Another interesting submission urged by Mr. Parasaran was  that  the
principle of "Rag Bag” legislation,  as  was  explained  by  this  Court  in
Ujagar Prints etc. Vs. Union of India [(1989) 3 SCC 488], cannot be  invoked
by combining the Entries in List I and List III in cases where the field  of
legislation in List III is expressly made subject to an  Entry  in  List  I.
In such cases, while enacting a  legislation  on  a  subject  in  List  III,
Parliament is also subject to the Entry in List I in the  same  way  as  the
State legislature, as the field of legislation in  the  Concurrent  List  is
the same as far as the Parliament and the State legislatures  for  admission
of students to professional courses, are  concerned.   Mr.  Parasaran  urged
that the decision in Preeti Srivastava's case (supra) has to be  interpreted
harmoniously with the decision  in  M.A.  Tulloch's  case  (supra),  Ishwari
Khetan Vs. State of U.P. [(1980) 4 SCC 136] and Deep Chand's  case  (supra),
as otherwise the findings in  Preeti  Srivastava's  case  (supra)  would  be
rendered per incuriam for not taking note of the  fact  that  the  power  of
Parliament under Entry 25 of List III was  an  after  acquired  power.   Mr.
Parasaran emphasised the fact that  the  reasoning  in  Preeti  Srivastava's
case (supra) related only to the question of the State's power to  prescribe
different admission criteria to the  Post-graduate  courses  in  Engineering
and medicine and cannot be held to govern the admission of students  to  the
said courses.   Learned  counsel  submitted  that  the  decision  in  Preeti
Srivastava's case (supra) has to be confined only to  eligibility  standards
for  admission  and  not  to  issues  relating  to  admission  itself.   Mr.
Parasaran also pointed out that in Preeti  Srivastava's  case  (supra),  the
decision in Deep Chand's case (supra) had not been considered and  the  fact
that Parliament had no power to legislate with regard to matters which  were
then in Entry 11 of List II had  been  overlooked.   The  Court,  therefore,
erroneously proceeded on the basis of the  powers  given  to  Parliament  by
virtue of  Entry  25  of  List  III  by  the  Forty-second  Amendment.   Mr.
Parasaran urged that to the extent it is inconsistent with the  decision  in
the T.M.A. Pai Foundation case (supra), as to  the  right  of  admission  by
private institutions, the decision in Preeti Srivastava's case (supra)  will
have to yield to the principles laid down by the larger Bench in the  T.M.A.
Pai Foundation case (supra).  Mr. Parasaran submitted  that  the  effect  of
the impugned Regulations in the  context  of  the  prevailing  law  is  that
private institutions may establish educational institutions  at  huge  costs
and provide for teaching and lectures,  but  without  any  right,  power  or
discretion to run the college, even to  the  extent  of  admitting  students
therein.  Mr. Parasaran contended that  by  the  introduction  of  NEET  the
States and Universities in States stand completely  deprived  of  the  right
to deal with admissions, which has the  effect  of  destroying  the  federal
structure of the Constitution.



52.     Mr. Parasaran urged that the executive power of the State, which  is
co-extensive with the legislative  power  with  regard  to  matters  in  the
Concurrent List, cannot be taken away except as expressly  provided  by  the
Constitution or by any law made by Parliament. It was urged that  the  power
of subordinate legislation or statutory power conferred by  a  Parliamentary
legislation cannot be exercised to take away the legislative  power  of  the
State legislature, which could only be done  by  plenary  legislation  under
Article 73 of the Constitution.  Mr. Parasaran submitted that  the  impugned
Regulations, not being plenary legislation, are unconstitutional  and  ultra
vires the Constitution.



53.     Mr. Parasaran submitted that the impugned Regulations  provide  that
if sufficient number of candidates in  the  respective  categories  fail  to
secure minimum marks as prescribed in NEET, held both for Post-graduate  and
graduate courses, the Central Government, in consultation with  the  Medical
Council of India,  may  at  its  discretion  lower  the  minimum  marks  for
admission, which itself indicates that the  Regulations  are  concerned  not
with determination of standards, but with admissions.



54.     Mr. Parasaran further submitted  that  the  Scheme  framed  in  Unni
Krishnan's  case  (supra)  completely  excluded  the   discretion   of   the
institution to admit students and the same was, therefore, overruled in  the
T.M.A. Pai Foundation  case as having the effect of nationalising  education
in  respect  of  important  features  viz.  right  of  a   private   unaided
institution to give admission and to fix the fees.  Mr. Parasaran  submitted
that the impugned Regulations suffer from the same vice of a complete  take-
over of the process of admission, which rendered  the  impugned  Regulations
unconstitutional.



55.     Mr. Parasaran  further  urged  that  minorities,  whether  based  on
religion or language, also have a fundamental right under Article  19(1)(g),
like any other citizen, to practise any  profession,  or  to  carry  on  any
occupation, trade or business in the interest of  the  general  public,  but
subject to reasonable restrictions that may be imposed by the State  on  the
exercise of such rights.  In addition, minorities have the right  guaranteed
under Article 30 to establish and  administer  educational  institutions  of
their choice. Considering  the  right  of  both  minority  and  non-minority
citizens to establish and administer educational  institutions,  this  Court
had in the T.M.A. Pai Foundation case  (supra)  held  that  the  said  right
includes the right to admit students and to nominate students for  admission
and even when students are required to be selected on the  basis  of  merit,
the ultimate decision to grant admission to the students who have  otherwise
qualified  for  the  said  purpose,  must  be  left  with  the   educational
institutions concerned. Mr. Parasaran  submitted  that  in  the  T.M.A.  Pai
Foundation case (supra), this Court, inter alia, observed  that  the  fixing
of a rigid fee structure, compulsory nomination of teachers  and  staff  for
appointment or nominating  students  for  admission  would  be  unreasonable
restrictions.



56.  Mr. Parasaran also urged that the right of minority institutions  under
Article 30 is in the national interest and as indicated in the  decision  in
Unni Krishnan's case (supra), the hard reality that emerges is that  private
educational institutions are a necessity in the  present-day  circumstances.
It is not possible today without them because  the  Governments  are  in  no
position to meet the demand, particularly in  the  sectors  of  medical  and
technical education, which call for substantial  investments  and  expenses.
Mr. Parasaran submitted that  the  impugned  Regulations  were  not  in  the
national interest and would only discourage good private institutions  being
established by people dedicated to the cause of  providing  health  care  to
all sections of the  citizens  of  this  country  and,  in  particular,  the
marginalized sections in the metropolitan and rural areas.



57.     Mr. Parasaran then urged that 50% of the total seats  available,  as
per Clause VI of the Post-Graduate Medical Education  Regulations,  were  to
be filled up by the State Governments or the Authorities appointed by  them.
 The remaining 50% seats are to  be  filled  up  by  the  concerned  medical
colleges and institutions on the basis of the merit list prepared  according
to the marks obtained in NEET.  Mr. Parasaran  submitted  that  there  is  a
similar provision  in  the  1997  Regulations  applicable  to  the  Graduate
M.B.B.S. course.  Noticing the same,  this  Court  in  P.A.  Inamdar's  case
(supra) categorically indicated that nowhere in the  T.M.A.  Pai  Foundation
case (supra), either in the majority or in the  minority  views,  could  any
justification be found for imposing seat  sharing  quota  by  the  State  on
unaided  private  professional  educational  institutions.   Clarifying  the
position this Court observed that fixation of percentage of quota are to  be
read and understood as consensual arrangements which may be reached  between
unaided private professional institutions  and  the  State.   Mr.  Parasaran
urged that the Regulations providing for a  quota  of  50%  are,  therefore,
invalid.



58.      Mr. Parasaran urged that  in  P.A.  Inamdar's  case  (supra),  this
Court  had  held  that  private  institutions  could  follow  an   admission
procedure if the same satisfied the triple test of being  fair,  transparent
and non-exploitative.  It is only when  an  institution  failed  the  triple
test, could the State interfere and substitute its own fair and  transparent
procedure, but the same cannot become a procedure  by  destroying  the  very
right of the private institutions to  hold  their  own  test  in  the  first
instance.  Mr. Parasaran urged that the purpose of a  common  entrance  test
is to compute the equivalence between different kinds of qualifications  and
to ensure that those seeking entry into a medical institute did not have  to
appear for multiple tests, but it could not  justify  the  extinguishing  of
the right to admit and to reject candidates on a fair, transparent and  non-
exploitative basis from out of the  eligible  candidates  under  NEET.   Mr.
Parasaran reiterated that ultimately it is the institutions which must  have
the right to decide the admission of candidates.



59.      Mr. Parasaran submitted that in Pradeep   Jain Vs. Union  of  India
[(1984) 3 SCC 654], this Court has held  that  university-wise  distribution
of seats is valid.  The learned  Judges  fully  considered  the  mandate  of
equality  and  pointed  out  the  need  to  take  into   account   different
considerations  relating  to  differing  levels  of  social,  economic   and
educational development of different regions, disparity  in  the  number  of
seats available in different States and the difficulties that may  be  faced
by students from one region, if they get a seat  in  another  region.   This
Court held that an All  India  Entrance  Examination  would  only  create  a
mirage of equality of opportunity  and  would,  in  reality,  deprive  large
sections of underprivileged students from pursuing higher education.  Though
attractive at first blush, an All India Entrance Examination would  actually
be detrimental to the interests of the students hoping for admission to  the
M.B.B.S. and Post-graduate courses.



60.     Mr. Parasaran submitted that since  all  judgments  on  the  subject
were by Benches which were of lesser strength as compared to the T.M.A.  Pai
Foundation case (supra), all other decisions of this Court, both before  and
after the decision  in  the  T.M.A.  Pai  Foundation  case  (supra),  would,
therefore, have to be read harmoniously with the  principles  enunciated  in
the  T.M.A. Pai Foundation case (supra).  In case some of the  cases  cannot
be harmoniously read, then the principles  laid  down  in  the   T.M.A.  Pai
Foundation case (supra) will have primacy and  will  have  to  be  followed.
Mr. Parasaran submitted that the observations as to standard  and  merit  in
Preeti Srivsatava's case (supra) and in P.A. Inamdar's  case  (supra),  have
to  be  understood  as  conforming  to  the  decision  in  the   T.M.A.  Pai
Foundation case (supra).  Mr.  Parasaran  submitted  that  the  flourish  of
language in the judgments of Benches of lesser strength cannot  be  read  so
as to dilute the ratio of the decision of Benches of larger  strength.   Mr.
Parasaran urged that consequently the right to  admit  students  by  unaided
private institutions, both aided and unaided minority institutions, as  part
of their right to administer the institution, as guaranteed  under  Articles
19(1)(g), 25, 26, 29(1) and 30 of the Constitution,  cannot  be  taken  away
even by way of plenary jurisdiction,  which  the  impugned  Regulations  are
not.



61.     Mr. Parasaran submitted that  in  the  case  of  aided  non-minority
institutions, the State may by Regulation provide for a larger role for  the
State in relation to matters of admission.  Mr.  Parasaran  urged  that  the
impugned  Regulations  being  only  regulatory  in  character,  they  cannot
destroy the right itself.



62.     Dr. Rajiv Dhawan, learned senior counsel, who appeared on behalf  of
Yenepoya University in Transferred Case Nos. 135-137 of 2012  and  also  for
the  Karnataka  Religious  and  Linguistic  Minority  Professional  Colleges
Association in  Transferred  Case  Nos.  121-122  of  2012,  submitted  that
although the issues involved in the said cases have already been  argued  in
extenso by Mr. Salve and Mr. Parasaran, as part of the main  issue,  it  has
to be decided whether NEET violates  the  fundamental  right  guaranteed  to
minorities, both religious and linguistic, to impart medical  education,  as
explained in the T.M.A. Pai Foundation case  (supra)  and  other  subsequent
decisions and even if found to be intra vires, is it manifestly  unjust  and
arbitrary?  It was further urged that it  would  also  have  to  be  decided
whether the doctrine of  severability,  reading  down  and  proportionality,
could be effected to the impugned Regulations.



63.     Dr. Dhawan  urged  that  the  T.M.A.  Pai  Foundation  case  (supra)
resolved several issues where there was  still  some  doubt  on  account  of
decisions rendered in different cases.  Dr. Dhawan urged that  it  was  held
that the decision in the Unni Krishnan's  case  (supra)  was  wrong  to  the
extent that "free seats" were to go to the  privileged  and  that  education
was being nationalised which took over the autonomy of institutions. It  was
also observed that the expanding needs of education entailed a combined  use
of resources both of the  Government  and  the  private  sector,  since  the
imparting of education was too large a portfolio for  the  Government  alone
to manage.



64.     Dr. Dhawan urged that the other issue of importance, which was  also
decided, was the right of autonomy  of  institutions  which  were  protected
under Article 30 of the Constitution, which, inter alia, included the  right
to admit students.



        It was also settled that unaided institutions were to  have  maximum
autonomy while aided institutions were to have a lesser  autonomy,  but  not
to be treated as "departmentally run by government".



65.       Dr.  Dhawan  submitted  that  the  decision  in  the  T.M.A.   Pai
Foundation case  (supra)  also  settled  the  issue   that  affiliation  and
recognition has to be available  to  every  institution  that  fulfills  the
conditions for grant of such affiliation  and  recognition.  Learned  Senior
Counsel submitted that surrendering the total process of  selection  to  the
State was unreasonable, as was sought to be done in  the  Scheme  formulated
in Unni Krishnan's case (supra). The said trend of the decisions was  sought
to be corrected in the T.M.A. Pai  Foundation  case  (supra)  where  it  was
categorically held that minority institutions had the right  to  "mould  the
institution  as  they  think  fit",  bearing   in   mind    that   "minority
institutions have a personality of their  own,  and  in  order  to  maintain
their atmosphere and traditions, it is but necessary that they must  have  a
right to choose and select the students who can be admitted in their  course
of study."  It is for this reason that in the  St.  Stephen's  College  case
(supra), this Court upheld the  Scheme  whereby  a  cut-off  percentage  was
fixed  for  admission  after  which  the  students  were  interviewed   and,
thereafter, selected.  It was also laid  down  that  while  the  educational
institutions cannot grant admission  on  its  whims  and  fancies  and  must
follow some identifiable or reasonable methodology  of  admitting  students,
any scheme, rule or regulation that does not give the institution the  right
to reject candidates who might otherwise  be  qualified  according  to,  say
their performance in an entrance test, would be an unreasonable  restriction
under Article 19(6), though appropriate guidelines/  modalities  can  always
be prescribed for holding the  entrance  test  in  a  fair  and  transparent
manner.



66.     Again in paragraphs 158 and 159 of the judgment in  the  T.M.A.  Pai
Foundation case (supra), it  has  been  very  picturesquely  expressed  that
India is a kaleidoscope of different peoples of different cultures and  that
all pieces of mosaic had to be in harmony in order to give a  whole  picture
of India which would otherwise be scarred. Their Lordships  very  poetically
indicated that each piece, like a citizen of India, plays an important  part
in the making of the whole.  The  variations  of  the  colours  as  well  as
different shades of the same colour in a map are the result of  these  small
pieces of different shades and colours or marble, but even  when  one  small
piece of marble is removed, the whole  map  would  be  disfigured,  and  the
beauty of the mosaic would be lost.



67.   Referring to the separate decision rendered by Ruma Pal,  J.,  in  the
T.M.A. Pai Foundation case (supra),  Dr. Dhawan submitted that  the  learned
Judge had also artistically distinguished Indian  secularism  from  American
secularism by calling Indian secularism "a salad bowl" and  not  a  "melting
pot".



68.     Dr. Dhawan urged that a combined reading of the decision in  Islamic
Academy's case (supra) and P.A. Inamdar's case (supra) suggests that (i)  no
unaided institutions can be compelled to accept  reservations  made  by  the
State, except by voluntary agreement; and (ii) the right to  (a)  admit  and
select students of their choice  by  pursuing  individual  or  associational
tests and (b) fix fees on a non-profit basis is a  right  available  to  all
educational institutions, but the admissions were to  be  made  on  a  fair,
transparent and non exploitative method, based on merit.



69.      On Article 15(5) of the Constitution,  Dr.  Dhawan  contended  that
the same  was  included  in  the  Constitution  by  the  Constitution  (93rd
Amendment) Act, with the  object  of  over  turning  the  decision  in  P.A.
Inamdar's case (supra) on voluntary  reservations.    Dr.  Dhawan  submitted
that the said provision would make it clear that the State  reservations  do
not apply to "minority institutions" enjoying the protection of  Article  30
and it is on such basis that in the Society for Unaided Private  Schools  of
Rajasthan Vs. Union of India [(2012) 6  SCC  1],  this  Court  held  that  a
minority  institution  could  not  be  forced  to   accept   the   statutory
reservation also.   Dr. Dhawan urged that  the  impact  of  the  T.M.A.  Pai
Foundation case (supra) and subsequent decisions is that  all  institutions,
and especially minority  institutions,  have  the  constitutional  right  to
select and admit students of their  choice  and  conduct  their  own  tests,
subject to minimum standards which could be enhanced but not lowered by  the
States.



70.     Dr. Dhawan  also  referred  to  the  issue  of  equivalence  between
various Boards and uniformity and convenience.   Learned  counsel  submitted
that the distinction was  recognized  in  the  case  of  Rajan  Purohit  Vs.
Rajasthan University of Health Sciences [(2012) 10 SCC 770], wherein it  was
observed that the problem of equivalence could be resolved  by  the  college
or group  of  colleges,  either  by  finding  a  method  of  equivalence  to
reconcile difference of standards between various Boards, or by the  college
or group of colleges  evolving  a  Common  Entrance  Test  to  overcome  the
problem of equivalence.  Dr. Dhawan submitted that the said issue  had  been
addressed in the T.M.A. Pai Foundation (supra), which continues to hold  the
field in respect of common issues. Dr. Dhawan  urged  that  consistent  with
the views expressed in the  T.M.A.  Pai  Foundation  case  (supra)  and  the
importance of autonomy and voluntarism, the same could not be impinged  upon
by nationalizing the process of admission itself for both  the  purposes  of
eligibility and selection, unless a college failed to abide  by  the  triple
requirements laid down in P.A. Inamdar's case (supra).



71.     In regard to the  decision  in  Lavu  Narendranath's  case  (supra),
which had been relied upon by Mr. K. Parasaran, Dr.  Dhawan  contended  that
the same was based upon the understanding that Entry 66 of  List  I  had  no
relation with tests for screening and selecting students prescribed  by  the
States or Universities for admission,  but  only  to  coordinate  standards.
The scope of the said Entry did not  deal  with  the  method  of  admission,
which  was  within  the  constitutional  powers  of  the   State   and   the
Universities. Dr. Dhawan submitted that  the  decision  rendered  in  Preeti
Srivastava's case (supra) also  expressed  similar  views  regarding  laying
down of standards for admission  into  the  Post-graduate  medical  courses,
which meant that government and  universities  had  exclusive  control  over
admission tests and the criteria of selection in higher  education,  subject
to minimum standards laid down  by  the  Union,  unless  Union  legislation,
relatable to Entry 25 of List  III,  was  passed  to  override  the  States'
endeavours in this regard.



72.  Dr. Dhawan contended that the demarcation sought to be  made  in   Lavu
Narendranath's case (supra) found favour in subsequent  cases,  such  as  in
the case of State of M.P. Vs. Nivedita Jain [(1981) 4 SCC  296],  wherein  a
Bench of Three Judges took the view that Entry 66 of List I of  the  Seventh
Schedule to the Constitution relates to "coordination and  determination  of
standards in institutions for higher education or  research  and  scientific
and technical institutions".  The said sentiments were  reiterated  by  this
Court in Ajay Kumar Singh Vs. State of Bihar [(1994) 4 SCC  401].   However,
in Preeti Srivastava's case (supra), the Constitution  Bench  overruled  the
decision in the said two cases.  But, as urged by  Dr.  Dhawan,  by  holding
that Entry 66 of List I was not relatable to a screening test prescribed  by
the Government or by a University for selection of students from  out  of  a
large  number  for  admission  to  any  particular  course  of  study,   the
Constitution Bench also accepted that the powers of the MCI  under  List  I,
Entry 66, did not extend to selection of students.  Dr.  Dhawan  urged  that
although Preeti Srivastava's case (supra) had been confined  to  its  facts,
it went beyond the same on account of interpretation of the  scope  of  List
I, Entry 66 and extending the same to the admission process, simply  because
admission also  related  to  standards  and  upon  holding  that  the  Union
Parliament also had the power to legislate for the  MCI  in  the  matter  of
admission criteria under Entry 25, List III.



    Dr. Dhawan submitted that the two aforesaid issues had the  potentiality
of denuding the States and  the  private  institutions,  including  minority
institutions enjoying the protection of Article 30,  of  their  powers  over
the admission process and in the bargain upset the Federal balance.



73.     The validity of the impugned Regulations was also questioned by  Dr.
Dhawan on the ground that Sections 19A and 20 of  the  1956  Act  authorises
the MCI to prescribe the minimum standards  of  medical  education  required
for granting recognised medical qualifications in India, but copies  of  the
draft regulations and of all subsequent amendments thereof are  required  to
be furnished by the Council  to  all  State  Governments  and  the  Council,
before submitting the Regulations or any amendment thereto  to  the  Central
Government  for  sanction,  is  required  to  take  into  consideration  the
comments of any State Government  received  within  three  months  from  the
furnishing of copies of the said  Regulations.  Dr.  Dhawan  submitted  that
such consultation was never undertaken by the  MCI  before  the  Regulations
were amended, which has rendered the said Regulations invalid and by  virtue
of the decisions rendered in Lavu Narendranath's  case  (supra)  and  Preeti
Srivastava's case (supra), they cannot be reinstated by virtue of  Entry  25
List III.



74.     Dr.  Dhawan  urged  that  while  the  power  of  the  MCI  to  frame
Regulations is under Section 33 of the 1956 Act, the  role  of  the  MCI  is
limited to that of a recommending or a consulting body to provide  standards
which are required to be maintained for the purpose of running  the  medical
institution, and would not include  admission  of  students  to  the  Under-
graduate and the Post-graduate courses.  Dr.  Dhawan  urged  that  the  said
powers could not  have  been  extended  to  controlling  admissions  in  the
medical colleges and medical institutions  run  by  the  State  and  private
authorities.  Dr. Dhawan submitted that as was held by this Court  in  State
of Karnataka Vs. H. Ganesh Kamath [(1983) 2 SCC 402], "It is a  well-settled
principle of interpretation of statutes that the conferment  of  rule-making
power by an Act does not enable the rule-making authority  to  make  a  rule
which travels beyond the scope of the enabling Act or which is  inconsistent
therewith  or  repugnant   thereto."    While   accepting   that   delegated
legislation is necessary, Dr. Dhawan urged that it must  remain  within  the
contours of the rule or regulation-making power and the  purpose  for  which
it is given, as was held by this  Court  in  St.  John's  Teachers  Training
Institute Vs. Regional Director, National  Council  for  Teacher   Education
[(2003) 3 SCC 321].



75.     Dr. Dhawan also questioned the vires of the  amended  provisions  of
the MCI Rules on the ground of unreasonableness and arbitrariness and  urged
that in both cases the Court would be justified in invoking the doctrine  of
proportionality, as was observed by this Court in Om Prakash  Vs.  State  of
U.P. [(2004) 3 SCC 402].  Dr. Dhawan submitted that the only  way  in  which
the impugned Regulations could possibly be saved is by reading them down  to
bring them in conformity with the constitutional  legislation  and  the  law
laid down by the Supreme Court.



76.     Dr. Dhawan urged that admission  of  students  in  all  the  medical
institutions in India on the  basis  of  a  single  eligibility-cum-entrance
examination, was not only beyond the scope  of  the  powers  vested  in  the
Medical Council of India to make Regulations under Section 33  of  the  1956
Act, but the same were also arbitrary  and  unreasonable,  not  having  been
framed in consultation with the States and without obtaining their  response
in respect thereof.  More over, the same runs counter  to  the  decision  of
this Court in the T.M.A. Pai Foundation case (supra) making  it  clear  that
the MCI was only a regulatory and/or advisory body having the power  to  lay
down the standards in the curricula, but not to interfere with  the  process
of admission,  which  would  be  the  obvious  fall-out  of  a  single  NEET
conducted by the MCI. Dr. Dhawan concluded on the note that  uniformity  for
its own sake is of little use when the  end  result  does  not  achieve  the
objects for which the Regulations have been introduced.



77.     Appearing for Sri Ramachandra University in Transferred  Case  Nos.1
& 3 of 2013, Mr. Ajit Kumar Sinha, learned Senior Advocate,  questioned  the
vires of the impugned regulations more  or  less  on  the  same  grounds  as
canvassed by Mr. Salve, Mr. K. Parasaran and  Dr.  Dhawan.  Mr.  Sinha  also
reiterated the fact that in Preeti Srivastava's  case  (supra),  this  Court
did not notice the decision in Deep Chand's case (supra) and overlooked  the
fact that Parliament had no power to legislate with regard to matters  which
were then in Entry 11  of  List  II  of  the  Seventh  Schedule.  Mr.  Sinha
submitted that the  decision  in  Preeti  Srivastava's  case  (supra)  must,
therefore, be held to be per incuriam.



78.      Mr.  Sinha  urged  that  neither  Section  19A  nor  Section   2(h)
contemplates the holding of a pre-medical entrance test for  admission  into
all  medical  institutions  in  the  country,  irrespective   of   who   had
established such institutions and were administering  the  same.  Mr.  Sinha
urged that the impugned Regulations were liable to be struck  down  on  such
ground as well, as it  sought  to  unlawfully  curtail  the  powers  of  the
persons running such medical institutions in the country.



79.     Mr. P.P. Rao, learned Senior Advocate, who  initially  appeared  for
the State of Andhra Pradesh in Transferred Case No.102  of  2012,  submitted
that as far as the State of Andhra  Pradesh  is  concerned,  admission  into
educational institutions was governed by a  Presidential  Order  dated  10th
May, 1979, issued under  Article  371D  of  the  Constitution,  inter  alia,
providing  for  minimum  educational  qualifications   and   conditions   of
eligibility  for  admission  to  the  MBBS,  B.Sc.  Course,  etc.   Mr.  Rao
submitted that being a special provision it prevails in the State of  Andhra
Pradesh over other similar legislations.

80.     Subsequently,  Mr.  L.  Nageshwara  Rao,  learned  Senior  Advocate,
appeared for the State of Andhra Pradesh in the said  Transferred  Case  and
also in Transferred Cases Nos.100 and 101 of 2012,  103  of  2012,  Transfer
Petition (C) Nos.1671 and 1645 of 2012  and  Writ  Petition  (C)  No.464  of
2012. In addition, Mr. Nageswara Rao also appeared for the  State  of  Tamil
Nadu in Transferred Case Nos.110 and 111 of 2012  and  for  the  Tamil  Nadu
Deemed University Association in Transferred Cases Nos. 356 and 357 of  2012
and Writ Petition (C) No.27 of 2013.


81.     Continuing from where Mr. P.P. Rao  left  off,   Mr.  Nageswara  Rao
submitted that in conformity with  the  aforesaid  Presidential  Order,  the
State  of  Andhra  Pradesh  enacted  the   A.P.   Educational   Institutions
(Regulation of Admissions and Prohibition  of  Capitation  Fee)  Act,  1983,
defining,  inter  alia,  "local  area",  "local   candidate",   "educational
institutions" and "relevant qualifying examinations".  Mr. Rao  pointed  out
that Section 5 of the  Act  provides  for  reservation  in  non-State-  Wide
Universities and Education Institutions in favour of local candidates  while
Section 6 provides for reservation in  State-wide  Universities  and  State-
wide Educational Institutions for local candidates.  Mr. Rao submitted  that
the impugned Notification of the Medical Council of India  cannot  be  given
effect to in view of the Presidential Order made under Article 371D  of  the
Constitution and the 1983 Act enacted in pursuance of the said Order.


82.     Mr. Rao submitted that if the Medical  Council  of  India  could  or
should hold a National Eligibility-cum-Entrance  Test,  it  would  have  the
effect of denuding the State  and  the  educational  institutions  of  their
right to establish and administer educational institutions which  enjoy  the
protection of Articles 19(1)(g), 25, 26 and 30 of the Constitution.


83.     With regard to the State of Tamil Nadu  and  the  Deemed  University
Association, Mr. Rao confined his submissions to Entry 25 of  List  III,  in
relation to Entry 66 of List I.  Mr. Rao  reiterated  the  submissions  made
earlier that the subject matter of Entry 66 of List I is  for  "coordination
and determination of standards" in institutions  for  higher  education  and
that the determination of standards also falls within Entry 25 of  List  III
only when coordination and determination of  standards  are  dealt  together
with the State enactment made subject to legislation under Entry 66 of  List
I. Mr. Rao submitted that the denudation of the  legislative  power  of  the
State Legislature could only be by plenary legislation made under  Entry  66
of List I read with Article 246 of the Constitution and not  by  subordinate
legislation  which  renders  the  impugned  regulations  ultra   vires   the
aforesaid provisions of the Constitution.


84.     While dealing with the aforesaid questions, Mr. Rao  also  submitted
that the Notification contemplates the conducting of a common entrance  test
for all the  dental  colleges  throughout  India,  without  considering  the
different streams of education prevalent in India such as CBSE, ICSE,  State
Boards, etc., prevailing in different States.  The  different  standards  of
education  prevalent  in  different  States  had   not   been   taken   into
consideration and in such  factual  background,  the  holding  of  a  Single
Common Entrance Test for admission to the B.D.S. and the M.D.S.  courses  in
all the dental  colleges  throughout  India,  would  lead  to  violation  of
Article 14 of the  Constitution,  since  there  is  no  intelligible  object
sought to be achieved by such amended regulations.


85.     Mr. Rao also questioned the provision made by  the  amendment  dated
15th  February,  2012,  to  the  Notification  dated  21st  December,  2010,
reserving admission to Post-graduate Diploma Courses  for  Medical  Officers
in  the  Government  Service,  who  acquired  30%  marks,  as  being  wholly
unrelated to merit in the entrance examination and, therefore,  making  such
reservation arbitrary and irrational.  Mr. Rao submitted that  there  is  no
rationale  in  giving  this  benefit  only  to  whose  who  are  serving  in
Government/public authorities with regard  to  service  in  remote/difficult
areas.  Mr. Rao urged that the Government of  Tamil  Nadu  has  consistently
opposed the proposal to apply the National Eligibility-cum-Entrance Test  to
determine admission to different medical  colleges  and  institutions.   Mr.
Rao submitted that when the Notification was first issued on 27th  December,
2010, the Government of Tamil Nadu  challenged  the  same  by  way  of  Writ
Petition No. 342 of 2011 and in the  said  Writ  Petition,  the  High  Court
stayed the operation of the Notification for UG  NEET  Entrance  Examination
in so far as it related to the State of Tamil Nadu, and the  stay  continues
to be in force.  Mr. Rao urged that in respect of Tamil Nadu there are  many
constitutional issues, as Tamil Nadu had abolished the Common Entrance  Test
based on the Tamil Nadu Admission in Professional  Educational  Institutions
Act, 2006, which was given effect to after receiving the President's  assent
under Article 254(2) of the Constitution.


86.     Mr. Rao submitted that the introduction of NEET  by  virtue  of  the
amended Regulations would run counter to the policy of the State  Government
which has enacted the aforesaid Act by abolishing the  practice  of  holding
an All India Entrance Test for admission to the professional courses in  the
State.  Mr. Rao submitted that the decision regarding admission to the Post-
graduate Medical and Dental Examinations would  be  the  same  as  that  for
admission in Under-graduate courses.


87.     Mr. Rao contended that the MCI had  no  jurisdiction  to  issue  the
impugned Notifications as the Council lacks  the  competence  to  amend  the
State Act which had been enacted in 2006 and the validity whereof  has  been
upheld by the High Court.  Mr. Rao repeated and reiterated  the  submissions
earlier made with regard to  the  vires  of  the  impugned  Regulations  and
prayed for proper directions to be issued to allow the State of  Tamil  Nadu
to continue its existing system of  admission  to  both  Under-graduate  and
Post-graduate  courses.


88.     Learned senior counsel, Mr.  R.  Venkataramani,  appearing  for  the
Government of Puducherry, in T.C. No. 17 of 2013,  adopted  the  submissions
made by  Mr.  Salve,  Mr.  Parasaran  and  Dr.  Dhawan.   Mr.  Venkataramani
submitted that the Notifications,  whereby  the  impugned  Regulations  were
sought to be introduced by the Medical Council of  India,  were  beyond  the
scope of the powers conferred under Section 33 of the  1956  Act,  rendering
them ultra vires and invalid. Mr. Venkataramani submitted that  the  failure
of the MCI to consult the Government of Puducherry, as  was  required  under
Sections 19A and 20 of the 1956 Act, before  amending  the  Regulations  and
notifying the same, rendered  the  same  invalid.   Mr.  Venkataramani  also
reiterated the submission made earlier that there are different  streams  of
education  prevailing  in  different  States,  having   different   syllabi,
curriculum, Board of Examinations and awarding of  marks  and  it  would  be
unreasonable to conduct  a  single  examination  by  taking  recourse  to  a
particular stream of education which would  have  the  effect  of  depriving
effective participation of other students educated in different streams.


89.     Mr. Venkataramani submitted that this Court  had  consistently  held
that  unaided  educational  institutions  are  free  to  devise  their   own
admission procedures and that the impugned Regulations were  against  social
justice and would impinge on the rights of unaided educational  institutions
as well as the institutions enjoying the protection of  Article  30  of  the
Constitution in the Union Territory of Puducherry.


90.     Appearing for the Karnataka Private  Medical  and  Dental  Colleges'
Association consisting of Minority and Non-Minority private unaided  Medical
Colleges and educational institutions in the State of  Karnataka,  Mr.  K.K.
Venugopal, learned Senior  Advocate,  submitted  that  the  Association  had
filed several Writ Petitions before the  Karnataka  High  Court  challenging
the validity of the Notifications dated 21.12.2010 and  5.2.2012,  by  which
the Medical Council of India has attempted to foist a Common  Entrance  Test
(NEET)  on  all  medical  institutions  in  the  country,  which  have  been
transferred to  this  Court  for  consideration  along  with  other  similar
matters where the issues were common.


91.     Mr. Venugopal reiterated that the imposition of  NEET  was  contrary
to the decisions of this Court in the T.M.A.  Pai  Foundation  case  (supra)
and in P.A. Inamdar's case (supra). Mr. Venugopal contended that  the  right
of the Members of the Association to carry on the business and  vocation  of
imparting medical education had been upheld not only in  the  two  aforesaid
cases, but also in the Islamic Academy of Education case (supra) and  in  T.
Varghese George Vs. Kora K. George [(2012) 1 SCC 369], Society  for  Unaided
Private  Schools  of  Rajasthan  case  (supra)  and  Rajan  Purohit's   case
(supra).


        Mr. Venugopal urged that the aforesaid right has been based  on  the
fact that a non-minority  professional  college  has  the  same  fundamental
right which is also  possessed  by  a  minority  institution  under  Article
19(1)(g) of the Constitution, but  is  subject  to  reasonable  restrictions
under Article 19(6) of the Constitution.


92.     Mr. Venugopal also voiced the issues common to all  these  cases  as
to whether it would be open to the Government or the MCI, a creature of  the
Indian Medical Council Act, 1956, to regulate the admission of  students  to
all medical colleges and institutions. Mr. Venugopal urged  that  since  the
question had been troubling the Courts in the  country  for  a  considerable
period of time, a Bench of Eleven (11) Judges was constituted to settle  the
above issues and other connected issues and to put a quietus  to  the  same.
The said Bench heard a number of matters in which the issue had been  raised
and it delivered its verdict in what  is  referred  to  as  the  T.M.A.  Pai
Foundation case  (supra),  answering  all  the  questions  raised.   Certain
common issues contained in the judgment came up for consideration later  and
were subsequently referred to a Bench of  Seven  Judges  in  P.A.  Inamdar's
case (supra) where the issue was finally put to rest.


93.     Mr. Venugopal firmly urged that in dealing with  the  issues  raised
in these matters, none of the decisions rendered by this Court in  the  past
were required  to  be  re-opened  and  the  said  issues  will  have  to  be
considered and decided by  this  Court  by  merely  testing  their  validity
against the  ratio  of  the  earlier  judgments,  and,  in  particular,  the
decision in the T.M.A. Pai Foundation case (supra).

94.     Mr. Venugopal's next submission was with regard  to  the  provisions
of  the  Karnataka  Professional  Educational  Institutions  (Regulation  of
Admission and Fixation of Fee) (Special Provisions) Act,  2011,  hereinafter
referred to as the  "Karnataka  Act  of  2011",      which  provides  for  a
consensual arrangement between  the  State  Government  and  the  Petitioner
Association for filling up the seats in the unaided medical  colleges  being
taken over by the State Government to the extent  agreed  upon  between  the
parties.  The said Act also regulates  the  fees  to  be  charged  in  these
private institutions. Mr. Venugopal urged that the said Act still holds  the
field, since its  validity  has  not  been  challenged.  As  a  result,  the
impugned Regulation, now made by the Medical Council of  India,  purportedly
under Section 33 of the 1956 Act, cannot prevail over  the  State  law.  Mr.
Venugopal submitted that the impugned  Regulations  are,  therefore,  of  no
effect in the State of Karnataka.



95. Mr. Venugopal also urged that having regard  to  the  decision  of  this
Court in the T.M.A. Pai Foundation case  (supra)  and  the  other  decisions
referred to hereinabove, the  impugned  Notifications  imposing  NEET  as  a
special vehicle for admission into medical colleges denuding the  State  and
the private medical institutions from regulating their own  procedure,  must
be held to be ultra vires Section 33 of the 1956 Act.



96. Mr. Venugopal reiterated the submissions made on  behalf  of  the  other
Petitioners and concluded on the observations made in  paragraph  3  of  the
decision of this Court in State of Karnataka Vs. Dr. T.M.A.  Pai  Foundation
& Ors.  [(2003)  6  SCC  790],  which  made  it  clear  that  all  statutory
enactments, orders,  schemes,  regulations  would  have  to  be  brought  in
conformity with the decision of the Constitution Bench  in  the  T.M.A.  Pai
Foundation case (supra), decided on  31.10.2002.   Mr.  Venugopal  submitted
that it, therefore, follows that the Regulations of 2000, 2010 and 2012,  to
the extent that they are inconsistent with the decision in the   T.M.A.  Pai
Foundation case (supra), would be void and would have to be struck down.



97. Mr. G.S. Kannur, learned  Advocate,  who  appeared  in  support  of  the
application for intervention, being I.A. No.3, in Transferred Case  No.3  of
2013, repeated the submissions made by Mr. K. Parasaran, Dr. Dhawan and  Mr.
L. Nageshwar Rao, that the existence  of  various  Boards  in  a  particular
State is bound  to  cause  inequality   and  discrimination  if  the  Common
Entrance Test was introduced as the only criteria  for  admission  into  any
medical college or institution in the country.



98. Appearing for the Christian Medical College  Ludhiana  Society  and  the
medical institutions being run by it, Mr. V. Giri, learned Senior  Advocate,
reiterated the submissions made by  Mr.  Harish  Salve,  on  behalf  of  the
Christian Medical College Vellore Association, but added a new dimension  to
the submissions made by submitting that the impugned  Regulations  had  been
issued by the Board of Governors, which had been in office pursuant  to  the
supersession of the Medical Council, under Section 3A of the 1956 Act.   Mr.
Giri submitted that the Board of Governors, which was only an  ad  hoc  body
brought into existence to exercise the powers and perform the  functions  of
the Council under the Act pending its reconstitution, was not  competent  as
an Ad hoc body to exercise the delegated legislative power under Section  33
of the said Act and to discharge the  functions of the Medical  Council,  as
contemplated under Section 3 of the 1956 Act.



99.  Mr. Giri urged that though Section 33 of the 1956 Act confers power  on
the Medical Council of India to make Regulations generally for carrying  out
the purposes of the Act, it also enumerates the different functions  of  the
Council and its powers and duties which are  referable  to  the  substantial
provisions of the Act itself.  Learned counsel pointed out that  clause  (l)
deals with  the  conduct  of  professional  examinations,  qualification  of
examiners and conditions of admission to such examinations. Mr.  Giri  urged
that Sections 16 to 18 of the above Act deals  with  the  substantive  power
available to the Medical Council of India to require of every University  or
Medical Institution information as to the courses of study and  examinations
and if necessary, to take steps for inspecting the  same.  Accordingly,  the
Regulation-making power contemplated under Section 33 of  the  1956  Act  is
referable to the substantive functions  to  be  discharged  by  the  Council
under Sections 16 to 18 of the Act.  Mr. Giri contended  that  no  provision
in  the  Act  contemplates  that  the  Council  may  actually  conduct   the
examinations.  Relying on the views expressed in the T.M.A.  Pai  Foundation
case (supra), Mr. Giri urged that the impugned Regulations  were  in  direct
violation of the rights guaranteed to a  minority  educational  institutions
under Article 19(1)(g) read with Articles  25,  26,  29(1)  and  30  of  the
Constitution.



100.  Mr. Giri submitted that  the  Petitioner  is  a  minority  educational
institution admitting students  from  the  minority  community  in  a  fair,
transparent and non-exploitative  manner,  based  on  inter  se  merit,  and
cannot be subjected to the NEET for the purposes of admission to the  Under-
graduate MBBS and  Post-graduate  degrees  in  medicine.  Reemphasising  Mr.
Salve's submissions,  Mr.  Giri  submitted  that  the  activity  of  running
medical, allied health sciences and nursing  courses,  in  order  to  ensure
constant supply of doctors and other para-medical  staff  to  the  hospitals
and other facilities engaged in the healing of the sick, are  acts  done  in
furtherance of the  Petitioner's  religious  faith,  which  stand  protected
under Articles 25, 26 and 30 of the Constitution.



101.  Mr. Giri submitted that the Government of Punjab,  in  its  Department
of   Medical   Education   and   Research,   vide   its   Notification   No.
5/7/07.3HBITI/2457 dated 21.05.2007, for admission to MBBS,  BDS,  BAMS  and
BHMS courses and vide Notification No. 5/8/2007-3HB3/1334 dated  21.03.2007,
for admission in Post-graduate Degree/  Diploma  courses  in  the  State  of
Punjab,  excluded  the  Christian  Medical  College  and  Christian   Dental
College, Ludhiana, from  the  admission  process  conducted  by  Baba  Farid
University of Health Sciences, Faridkot, on behalf of the  State  Government
for various Under-graduate and Post-graduate  Medical  Degree  courses.  Mr.
Giri  submitted  that  the  impugned  Regulations,  being  ultra  vires  the
provisions of Articles 19(1)(g) and Articles 25, 26, 29(1)  and  30  of  the
Constitution, having been promulgated by an ad hoc body, were liable  to  be
struck down.



102. Mr. K. Radhakrishnan, learned Senior Advocate, appeared for the  Annoor
Dental College and Hospital, situated in the State of  Kerala,  adopted  the
submissions made by  the  other  counsel  and  urged  that  the  submissions
advanced, as far as medical colleges and institutions are  concerned,  apply
equally to dental colleges, which are under  the  authority  of  the  Dental
Council  of  India  and  is  governed  by  the  Dentists  Act,   1948.   Mr.
Radhakrishnan submitted that the impugned Regulations were also ultra  vires
the Dentists Act, 1948, Section 20 whereof empowers the  Dental  Council  of
India to prescribe conditions for admission to the courses for  training  of
dentists and dental hygienists, but does not authorize  the  Dental  Council
of India or any agency appointed  by  it  to  conduct  admission  tests  for
selection of students for the BDS and MDS courses.  Mr.  Radhakrishnan  also
urged that the impugned Regulations which attempted to  enforce  NEET,  were
ultra vires the provisions of the Dentists Act, 1948, as also  the  relevant
provisions of the Constitution and  are,  therefore,  liable  to  be  struck
down.



103. Transferred Case No.8  of  2013  which  arises  out  of  Writ  Petition
No.5939 (M/S) of 2012, was  filed  by  the  U.P.  Unaided  Medical  Colleges
Welfare Association and Others.  Appearing for  the  said  Association,  Mr.
Guru Krishnakumar, learned Senior Advocate, while adopting  the  submissions
already made, reiterated that the functional autonomy of  institutes  is  an
integral right under Article 19(1)(g) of the Constitution,  as  clearly  set
out in the decision rendered in the  T.M.A.  Pai  Foundation  case  (supra).
Learned Senior counsel  submitted  that  the  fundamental  right  guaranteed
under  Article  19(1)(g)  includes  the  right  to  admit  students  in  the
privately  run  professional  colleges,  including   medical,   dental   and
engineering colleges, and viewed from any angle,  the  impugned  Regulations
were impracticable, besides causing violence  to  Article  19(1)(g)  of  the
Constitution. Mr. Guru Krishnakumar submitted that the impugned  Regulations
and the Notifications promulgating the same, were liable to be struck down.



104. Mr. C.S.N. Mohan Rao, learned  Advocate,  who  appeared  for  the  Writ
Petitioner, Vigyan Bharti Charitable Trust in Writ  Petition  (C)  No.15  of
2013, submitted that  the  Petitioner  was  a  registered  charitable  trust
running two medical colleges and a dental college in the  State  of  Odisha.
The  various  submissions  made  by  Mr.  Rao  were  a  repetition  of   the
submissions already made by Mr. Harish Salve and others.  Mr. Rao,  however,
referred to a Two-Judge Bench decision of this Court  in  Dr.  Dinesh  Kumar
Vs. Motilal Nehru Medical Colleges, Allahabad & Ors.  [(1985)  3  SCC  727],
wherein, while considering the question of  admission  to  medical  colleges
and the All India Entrance Examination, it was, inter  alia,  held  that  it
should be left to the  different  States  to  either  adopt  or  reject  the
National Eligibility Entrance Test proposed to be conducted by  the  Medical
Council of India. Mr. Rao submitted that as stated  by  Justice  V.  Krishna
Iyer in the case of Jagdish Sharan & Ors. Vs. Union of India & Ors.  [(1980)
2 SCC 768], merit cannot be measured in terms  of  marks  alone,  but  human
sympathies are equally important.  The heart is as  much  a  factor  as  the
head in assessing the social value of a member of  the  medical  profession.




105.      In Writ Petition (Civil) No.535 of  2012,  Saveetha  Institute  of
Medical and Technical Sciences, a Deemed University, declared as such  under
Section 3 of the University Grants Commission Act, 1956, has questioned  the
impugned Notifications and the amended Clauses of  the  MCI  Regulations  on
the same grounds as in the earlier cases.   Mr. Jayanth  Muth  Raj,  learned
Advocate  appearing  for  the  Petitioner,  repeated  and   reiterated   the
submissions made earlier in regard to the law as laid  down  in  the  T.M.A.
Pai Foundation case (supra) and in P.A. Inamdar's  case  (supra)  and  urged
that the  impugned  Notifications  had  been  issued  in  violation  of  the
decisions rendered in the said two  cases  and  in  other  subsequent  cases
indicating that  private  institutions  had  the  right  to  evaluate  their
admission procedure based  on principles of fairness, transparency and  non-
exploitation.    Mr.  Muth  Raj  submitted  that  in  the  absence  of   any
consensual arrangement in the case of the Petitioner, the MCI or the  Dental
Council of India could not compel the  Petitioner  to  accept  the  National
Eligibility-cum-Entrance Test on the  basis  of  the  impugned  Regulations.
Learned  counsel  submitted  that  to  that  extent,  the  impugned  amended
Regulations and the Notifications issued to  enforce  the  same  were  ultra
vires Articles 14, 19(1)(g) and 26 of the Constitution and  were  liable  to
be struck down.



106.     Writ Petition (Civil) No.495 of 2012 and Transfered Case No.108  of
2012 involve common questions regarding the conducting of  NEET  in  English
and Hindi in the State of Gujarat, where the medium  of  instructions  under
the Gujarat Board of Secondary Education is Gujarati. The  submissions  made
both on the behalf of the Petitioners and the State of Gujarat were ad  idem
to the extent that Entry 66 of List I restricts the  legislative  powers  of
the Central Government to "co-ordination and determination of  standards  of
education".  Thus, as long as the Common Entrance Examination  held  by  the
State or the other private institutions did not impinge upon  the  standards
laid down by Parliament, it is the State which can, in terms of Entry 25  of
List III, prescribe such a Common  Entrance  Test  in  the  absence  of  any
Central Legislation relatable to Entry 25 of List  III.  Mr.  K.K.  Trivedi,
learned Advocate, appearing for the Petitioners submitted that the  impugned
Regulations and Notifications were, ultra vires Section 33 of the 1956  Act,
since prescribing a Common Entrance Test is not one of the  stated  purposes
of the Act and were, therefore, liable to be struck down.



107.      Appearing for the Medical Council of  India,  Mr.  Nidhesh  Gupta,
learned Senior Advocate, submitted that the Medical Council  of  India  Act,
1956, is traceable to Entry 66 of List I, as was held in MCI  Vs.  State  of
Karnataka [(1998) 6 SCC 131].  In paragraph 24 of the said decision  it  was
categorically indicated that the Indian Medical Council Act being  relatable
to Entry 66 of List I, prevails over any State enactment to the  extent  the
State enactment is repugnant to the provisions of the Act, even  though  the
State Acts may be relatable to Entry 25 or 26 of the Concurrent List.



108.      Mr. Gupta submitted that Entry 66 in List I empowers  the  Central
Government to enact laws for coordination and determination of standards  in
institutions for higher education or research and scientific  and  technical
institutions. Learned counsel also  urged  that  Section  19-A  (1)  of  the
Indian Medical Council Act, 1956, provides that the  Council  may  prescribe
the minimum standards of medical education required for granting  recognised
medical qualifications (other than postgraduate medical  qualifications)  by
universities or medical institutions in India.   Mr.  Gupta  submitted  that
Section 20 relating to post-graduate medical education could also  prescribe
similar standards of Postgraduate Medical  Education  for  the  guidance  of
Universities.  Mr.  Gupta  submitted  that  Section  33  of  the  1956  Act,
empowers the Medical Council of India, with the  previous  approval  of  the
Central Government to make Regulations, and provides that  the  Council  may
make Regulations generally to carry  out  the  purposes  of  the  Act,  and,
without prejudice to the generality of  this  power,  such  Regulations  may
provide for "any other matter for which under the Act provision may be  made
by Regulations”.  Mr. Gupta urged that it  is  the  accepted  position  that
standards of education are to be  determined  by  the  MCI.   The  questions
which have been  posed  on  behalf  of  the  Petitioners  in  these  various
matters, challenging the vires of the Regulations, are whether the power  of
determination of standards of education includes the power to  regulate  the
admission process and determine the  admission  criteria,  and  whether  the
determination of standards of education also include the  power  to  conduct
the examinations.



109.      Responding to the two questions, Mr.  Gupta  submitted  that  once
the 1997 Regulations were accepted  by  the  various  Medical  Colleges  and
Institutions as being in accordance with law and  the  powers  vested  under
Entry 66 of List  I,  the  first  issue  stands  conceded,  since  the  1997
Regulations prescribing the eligibility criteria for  admission  in  medical
courses had been accepted and acted upon by  the  medical  institutions.  In
addition to the above, Mr. Gupta contended that Section 33(l)  of  the  1956
Act vested the MCI with powers to  frame  regulations  to  provide  for  the
conduct of professional examinations, qualifications of  examiners  and  the
conditions of admission to such  examinations.  Mr.  Gupta  submitted  that,
under the said provision, it can be said that the MCI was within its  rights
to conduct the NEET and stipulate the qualifications of  examiners  and  the
conditions of admission to such examinations.



110. Mr. Gupta submitted that it would be incorrect to  say  that  standards
of education can have no direct impact  on  norms  of  admission.    Learned
senior counsel pointed out that in paragraph 36 of the  judgment  in  Preeti
Srivastava's case (supra), it had  been  indicated  that  the  standards  of
education  are  impacted  by  the  caliber  of  students  admitted  to   the
institution  and  that  the  process  of  selection  and  the  criteria  for
selection  of  candidates  has  an  impact  on  the  standards  of   medical
education. Mr. Gupta submitted that the views expressed  by  this  Court  in
the decisions rendered in Nivedita Jain's case  (supra)  and  that  of  Ajay
Kumar Singh's case (supra), which had taken a contrary view, were  overruled
 in Preeti  Srivastava's  case  (supra).   Mr.  Gupta  also  relied  on  the
decision of this Court in Bharati Vidyapeeth (Deemed  University)  and  Ors.
Vs. State  of  Maharashtra  &  Anr.  [(2004)  11  SCC  755],  wherein  while
following  the  decision  in  Preeti  Srivastava's  case  (supra),  it   was
reiterated  that  prescribing  standards  would  include  the   process   of
admission.  Mr. Gupta submitted that  the  said  decision  had,  thereafter,
been followed in Prof. Yashpal Vs.  State  of  Chhattisgarh  [(2005)  5  SCC
420]; State of M.P. Vs. Gopal D. Teerthani [(2003) 7 SCC 83],  Harish  Verma
Vs. Rajesh Srivastava [(2003) 8 SCC 69] and in Medical Council of India  Vs.
Rama Medical College Hospital & Research Centre [(2012) 8 SCC 80].   Learned
senior counsel urged that the expression “standard”  used  in  Entry  66  of
List I has been  given  a  very  wide  meaning  by  this  Court  in  Gujarat
University, Ahemadabad Vs. Krishna Ranganath Mudholkar [(1963) Supp.  1  SCR
112] and accordingly anything concerned with standards  of  education  would
be included within Entry 66 of List I and would be  deemed  to  be  excluded
from other Lists.  Mr. Gupta also  placed  reliance  on  MCI  Vs.  State  of
Karnataka [1998 (6) SCC 131], wherein it was held that it  was  settled  law
that while considering the amplitude of the entries in Schedule VII  of  the
Constitution, the widest amplitude is to be given to the  language  of  such
Entries. Mr. Gupta urged that  without  prejudice  to  the  contention  that
Entry  66  of  List  I  directly  permits  the  admission  process  and  the
examination itself being regulated and/or conducted by the MCI, even if  the
Entries did not directly so permit, the MCI was  entitled  to  regulate  the
said functions since even matters which are  not  directly  covered  by  the
Entries, but are ancillary thereto, can be regulated.  Mr.  Gupta  submitted
that in Krishna Ranganath Mudholkar's case (supra), it was held  that  power
to legislate on  a  subject  should  normally  be  held  to  extend  to  all
ancillary or subsidiary matters, which can fairly and reasonably be said  to
be comprehended in that subject.  Reference was also made to  the  decisions
of this Court in Harakchand Ratanchand Banthia Vs. Union of India [(1969)  2
SCC 166]; ITC Vs. Agricultural Produce Market Committee [(2002) 9 SCC  232];
and Banarasi Dass Vs. WTO [1965 (2) SCR 355],  wherein  the  same  principle
has been reiterated.  Mr. Gupta  submitted  that  Regulations  validly  made
become a part of the Statute itself, as was indicated  in  State  of  Punjab
Vs. Devans Modern Breweries Ltd. [(2004) 11 SCC  26];  Annamalai  University
Vs.  Information  &  Tourism  Department  [(2009)  4  SCC  590]  U.P.  Power
Corporation Vs. NTPC Ltd. [(2009) 6 SCC 235]  and  the  St.  Johns  Teachers
Training  Institute  case  (supra).   According  to  Mr.  Gupta,  the   NEET
Regulations having been validly made and  the  requisite  legislation  being
available in  Sections 19A, 20 and 23 of the  Indian  Medical  Council  Act,
1956, the NEET Regulations must be deemed to be part of the Act itself.



111.     Regarding the MCI's power to conduct  the  NEET,  Mr.  Gupta  urged
that once it had been held in Preeti  Srivastava's  case  (supra)  that  the
standard of education is impacted by the process of selection, the power  to
determine the said process of selection is implicit.   In  fact,  Mr.  Gupta
submitted that the aforesaid question stands concluded by  the  judgment  of
this  Court  in  Veterinary  Council  of  India  Vs.   Indian   Council   of
Agricultural Research [(2000) 1 SCC 750], wherein,   while  considering  the
provisions of the Veterinary Council of India Act which were materially  the
same as those of the Indian Medical Council Act, it was held relying on  the
judgment in Preeti Srivastava's case (supra) that the Veterinary Council  of
India was competent to and had the requisite powers to hold  the  All  India
Entrance Examination.



112.  Mr.  Gupta  urged  that  this  Court  had  repeatedly  emphasised  how
profiteering and capitation fee and  other  malpractices  have  entered  the
field of  medical  admissions,  which  adversely  affect  the  standards  of
education in the country. Such  malpractices  strike  at  the  core  of  the
admission process and if allowed to continue, the admission process will  be
reduced to a farce.  It was to put an end to such malpractices that the  MCI
introduced NEET and was within its powers to do so.



113.  On  the  necessity  of  furnishing  draft  Regulations  to  the  State
Governments, as stipulated under Section 19A(2)  and  for  Committees  under
Section 20, Mr. Gupta urged that the  same  was  merely  directory  and  not
mandatory.  Referring to the decision of this Court in  State  of  U.P.  Vs.
Manbodhan Lal Srivastava [1958 SCR  533],  learned  counsel  submitted  that
this Court while  considering  the  provisions  of  Article  320(3)  of  the
Constitution, which provides for consultation with the Union Public  Service
Commission or the State  Public  Service  Commission,  held  that  the  said
requirement in the Constitution was  merely  directory  and  not  mandatory.
Drawing a parallel to the facts of the said  case  with  the  facts  of  the
present set of cases, Mr. Gupta urged that the provisions of Section  19A(2)
must be held to be directory and not mandatory and its non-compliance  could
not adversely affect the amended Regulations and  the  Notifications  issued
in pursuance thereof.



         Mr. Gupta submitted that before amending the Regulations,  detailed
interaction had been  undertaken  with  the  State  Governments  at  various
stages.  Learned counsel  submitted  that  as  far  back  as  on  14.9.2009,
5.2.2010  and  4.8.2010,  letters  had  been  written   to   various   State
Governments and the responses received were  considered.  There  were  joint
meetings between the various State representatives and the  other  concerned
parties and the concerns  of  most  of  the  State  Governments  were  fully
addressed.



114.      On the question of federalism and the powers of  the  State  under
Article 254 of the Constitution, Mr. Gupta  contended  that  since  the  MCI
derived its authority from Entry 66 of List I, it  is  a  subject  which  is
exclusively within the domain of the Union.  Mr. Gupta  submitted  that  all
the arguments advanced on behalf of the Petitioners were  on  the  erroneous
assumption that the Regulations had been made under Entry 25  of  List  III.
Mr. Gupta pointed out that  in  paragraph  52  of  the  judgment  in  Preeti
Srivastava's  case  (supra),  this  Court  had  held   that   the   impugned
Regulations had been framed under Entry 66, List I and that the  Regulations
framed by the MCI are binding and the States cannot in  exercise  of  powers
under Entry 25 of List III make Rules and Regulations which are in  conflict
with or adversely impinge upon the Regulations framed by the MCI  for  Post-
graduate medical education.  Mr. Gupta urged that since the  standards  laid
down by the MCI are in exercise of powers conferred by Entry 66 of  List  I,
the same would prevail over all State laws on the same subject.



115.     Mr. Gupta also urged that the ratio  of  Lavu  Narendranath's  case
(supra) had  been  misunderstood  on  behalf  of  the  Petitioners  and  the
arguments raised on behalf of Yenepoya University was  based  on  the  ratio
that Entry 66 of List I is not relatable to a screening test  prescribed  by
the Government or by a University for selection of students from  out  of  a
large number applying for admission to a particular course  of  study.   Mr.
Gupta pointed out that the ratio of  the  decision  in  Preeti  Srivastava's
case  (supra)  and  in  Lavu  Narendranath's  case  (supra)  show  that  the
Government which ran the colleges had the right to make a selection  out  of
a large number of candidates and for this purpose  they  could  prescribe  a
test of their own which was not contrary to any law.  It was urged  that  in
the said case, there was no Central legislation occupying  the  field.   Mr.
Gupta urged that NEET is not a mere screening test, but an eligibility  test
which forms the basis of selection.   Mr.  Gupta  submitted  that  any  test
which might be prescribed by a State Government would be against the law  in
the present case, being in the teeth of the NEET Regulations.



116.     With regard to the submissions  made  on  behalf  of  the  minority
institutions enjoying the protection of  Article  30,  Mr.  Gupta  contended
that reliance placed on behalf of CMC,  Vellore,  on  the  judgment  in  the
Ahmedabad St. Xavier's College Society Vs. State of Gujarat  [(1974)  1  SCC
717], was entirely misplaced, and, in fact, the  said  judgment  supports  a
test such as NEET.  Mr. Gupta submitted that on a  proper  analysis  of  the
said judgment and in particular the  judgment  delivered  by  Chief  Justice
Ray, (as His Lordship then was), it would be evident that even in  the  said
judgment the right of religious and linguistic minorities to  establish  and
administer educational institutions of the  choice  of  the  minorities  had
been duly recognised.  Chief Justice Ray also observed that if the scope  of
Article 30(1) is made an extension of the right under  Article  29(1)  as  a
right to  establish  and  administer  educational  institutions  for  giving
religious  instruction  or  for  imparting  education  in  their   religious
teachings or tenets, the fundamental right of minorities  to  establish  and
administer educational institutions of their choice  would  be  taken  away.
It was also observed in the judgment that every section of the  public,  the
majority as  well  as  minority,  has  rights  in  respect  of  religion  as
contemplated in Articles 25 and 26 of the Constitution.    Mr.  Gupta  urged
that the whole object of conferring the right on  minorities  under  Article
30 is to ensure that there would be equality between the  majority  and  the
minority. It was urged that it is for the  aforesaid  reason  that  whenever
the majority community conferred upon itself a special power to overrule  or
interfere  with  the  administration  and   management   of   the   minority
institutions, the Supreme Court struck  down  the  said  power.   Mr.  Gupta
submitted that whenever an attempt was made to  interfere  with  the  rights
guaranteed to religious and linguistic minorities, as in  the  St.  Xavier's
case (supra),  the same being arbitrary and unreasonable, was  struck  down.
Reliance was also placed on the decision in  the  case  of  Rev.  Father  W.
Proost, and in the case of  Rt. Rev. Bishop S.K. Patro, where  the  impugned
order of the Secretary to the Government dated 22nd  May,  1967,  set  aside
the order passed by the President of the Board of Secondary Education.   Mr.
Gupta urged that in the very initial  stage  of  judicial  consideration  in
these matters,  in State of Kerala Vs. Very Rev. Mother  Provincial  [(1970)
2 SCC 417], the impugned provisions required nominees of the University  and
the Government to be included in the  Governing  Body.   The  same  being  a
direct infringement on  the  rights  of  the  minorities  to  establish  and
administer institutions of their choice, the impugned provision  was  struck
down.



117.     Mr. Gupta submitted  that  in  each  of  the  aforesaid  cases,  an
attempt was made by the majority to take over the management and  to  impose
its substantive views. Learned counsel submitted that NEET does  nothing  of
the sort, since it did not infringe any  of  the  rights  guaranteed  either
under Article 19(1)(g) or Articles 25, 26, 29 and 30  of  the  Constitution.
Mr. Gupta  urged  that  the  various  questions  raised  on  behalf  of  the
Petitioners herein have been fully answered in P.A. Inamdar's case  (supra).
 They also meet the tests prescribed in the St.  Xavier's  case  (supra)  as
well. Mr. Gupta urged that Justice Khanna in paragraph 105 of  the  judgment
observed that Regulations which are calculated to  safeguard  the  interests
of teachers would result in security of tenure and would  attract  competent
persons for the posts of teachers and are, therefore,  in  the  interest  of
minority educational institutions, and would not violate  Article  30(1)  of
the Constitution.  Mr. Gupta urged that by the same  reasoning,  Regulations
which are in the  interest  of  the  students  and  will  attract  the  most
meritorious students, are  necessarily  in  the  interest  of  the  minority
institutions and do not,  therefore,  violate  their  rights  under  Article
30(1) of the Constitution.



118. Mr. Gupta submitted that in the  St.  Xavier's  case  (supra),  Justice
Khanna  had  indicated  in  his  separate  judgment  the   dual   tests   of
reasonableness and  of  making  the  institution  an  effective  vehicle  of
education for the minority community and  others  who  resort  to  it.   Mr.
Gupta submitted that  NEET  meets  the  test  of  reasonableness  and  fully
assists in making the institution an effective vehicle of  education,  since
it ensures admission for the most meritorious students and also negates  any
possibility of admissions being made for reasons  other  than  merit  within
each category.  Mr. Gupta submitted that, in fact, in paragraph  92  of  the
judgment, Justice Khanna had observed that "a regulation which  is  designed
to prevent maladministration of an educational institution  cannot  be  said
to offend Clause (1) of Article 30".    Mr. Gupta  re-emphasized  that  NEET
was not in any way against the rights vested  in  educational  institutions,
being run by the minorities, but it was in the interest of  such  minorities
to have their most meritorious students in the best institutes.



119.     Dealing with the  various  tests  referred  to  on  behalf  of  the
Petitioners in the different cases, Mr. Gupta submitted that  the  ratio  in
the T.M.A. Pai Foundation case (supra) also supports the  NEET  Regulations.
Mr. Gupta contended  that  the  right  of  minority  institutions  to  admit
students was not being denied, inasmuch as, the concerned  institutes  could
admit students of their own community,  but  from  the  list  of  successful
candidates who appear for  the  NEET.   Mr.  Gupta  submitted  that  in  the
aforesaid judgment it was also observed that merit is usually determined  by
a  common  entrance  test  conducted  by  the  institution  or  in  case  of
professional colleges, by government agencies.  Mr. Gupta submitted that  it
had also been emphasized that Regulations in national interest are to  apply
to  all  educational  institutions,  whether  run  by  a  minority  or  non-
minorities and that an exception to the right under Article 30 is the  power
of the  State  to  regulate  education,  educational  standards  and  allied
matters. Mr.  Gupta  submitted  that  in  the  T.M.A.  Pai  Foundation  case
(supra), it  had  been  indicated  that  regulatory  measures  for  ensuring
educational standards and maintaining excellence thereof are no anathema  to
the protection conferred by Article 30(1).



120.     Mr. Gupta submitted that the admission  process  followed  by  CMC,
Vellore, failed to meet any  of  the  tests  relating  to  transparency  and
fairness and lack of arbitrariness.  Mr. Gupta  pointed  out  that,  in  the
case of a candidate for admission in  the  Under-graduate  or  Post-graduate
courses in the said institution, a candidate cannot be  selected  unless  he
is  sponsored  by  the  Diocese  and  the  competition  is  limited  to  the
particular candidates, who had  been  sponsored  by  a  particular  Diocese,
which Mr. Gupta submitted is violative of Article  14  of  the  Constitution
and also the principles of merit.



        Mr. Gupta urged that as far as the application of  Articles  25  and
26  of  the  Constitution  in  matters   relating   to   establishment   and
administration of educational institutions is concerned, the same has to  be
read in relation to matters  of  religion  and  with  respect  to  religious
practices which form an essential and integral part  of  religion.   Learned
counsel submitted that the rights protected under Articles  25  and  26  are
available to individuals and not to organized bodies, such as CMC,  Vellore,
or other minority run institutions, as  had  been  held  by  this  Court  in
Sardar Vs. State of  Bombay  [1962  Supp.  (2)  SCR  496],  wherein  it  was
observed that the right guaranteed by Article 25  is  an  individual  right.
The said view was subsequently endorsed in Sri Sri Sri Lakshmana  Yatendrulu
Vs. State of A.P. [(196) 8 SCC  705].   Mr.  Gupta  submitted  that,  having
regard to the above, the various  associations  and  minorities,  which  had
challenged the impugned Regulations, were not entitled to do  so  and  their
applications were liable to be dismissed.



121.     Mr. Gupta submitted  that  the  impugned  Regulations  would  apply
equally to "Deemed Universities", declared to be so under Section 3  of  the
University Grants Commission Act, 1956, hereinafter referred to as the  "UGC
Act", since it cannot be argued that the Deemed University will  not  follow
any rules at all.  Mr. Gupta pointed out that in  the  Bharati  Vidyapeeth's
case  (supra),  this  Court  had  held  that  the  standards  prescribed  by
statutory authorities, such as the Medical Council  of  India,  governed  by
Entry 66 of List I of the Seventh Schedule  to  the  Constitution,  must  be
applied, particularly when the Deemed Universities seek recognition  of  the
medical courses taught by them, under the provisions of the 1956  Act.   Mr.
Gupta submitted that the Deemed Universities  cannot  take  the  benefit  of
recognition under the 1956 Act, but refuse to follow  the  norms  prescribed
therein.



        Mr. Gupta pointed out that it  had  inter  alia  been  indicated  in
paragraph 24 of the affidavit filed on behalf of  the  Commission  that  the
Commission was also of the view that all the  constituent  medical  colleges
of "Deemed Universities" may be asked to comply with the Notification  dated
21.12.2010, issued by the Medical Council of India, in view of  Article  6.1
in the UGC (Institutions  Deemed  to  be  Universities)  Regulations,  2010,
which states that:
           "Admission of students to all deemed to be universities,  public
           or private, shall be made strictly on  merit  based  on  an  All
           India examination  as  prescribed  by  the  Regulations  and  in
           consistence with the national policy in this behalf,  from  time
           to time."




122.     On the percentile system of grading, which had  been  touched  upon
by Dr. Dhawan, it was submitted that the said  system  of  ranking/  grading
was being followed internationally  in  many  of  the  premier  institutions
around the globe.



123.      Adverting to the submissions made by Mr.  L.  Nageshwara  Rao,  on
behalf of the States  of  Andhra  Pradesh  and  Tamil  Nadu,  regarding  the
enactment of the A.P. Educational  Institutions  (Regulation  of  Admissions
and  Prohibition  of  Capitation  Fee)  Act,  1983,  on  the  basis  of  the
Presidential Order dated 10th May, 1979, made under  Article  371-D  of  the
Constitution, Mr. Gupta submitted that neither  the  said  Article  nor  the
Presidential Order was concerned with  standards  of  education.  Mr.  Gupta
urged that a reading of Sub-clause (1) of Article 371-D of the  Constitution
makes it clear that it confers powers on the  President  to  make  an  Order
with regard to the State of Andhra Pradesh "for equitable opportunities  and
facilities for the people  belonging  to  different  parts  of  the  State".
Mr. Gupta urged  that  the  State  legislation  providing  for  State  level
entrance examination is not relatable to Article 371-D  and,  as  such,  the
State legislation had to yield to the Union  legislation,  which  Mr.  Gupta
urged had been the consistent view taken in Govt. of A.P. Vs.  Mohd.  Ghouse
Mohinuddin [(2001) 8 SCC 416]; V. Jaganadha Rao Vs. State  of  A.P.  [(2001)
10 SCC 401]; and NTR University of Health  Sciences  Vs.  G.  Babu  Rajendra
Prasad [(2003) 5 SCC 350].



124.      As to the weightage of marks being given up to a maximum  of  30%,
to government servants serving in remote areas,  Mr.  Gupta  said  that  the
same had been upheld by this Court in State of M.P. Vs.  Gopal  D.  Tirthani
[(2003) 7 SCC 83].



125.            Replying to the submissions made on behalf of  some  of  the
other Petitioners and, in particular, on behalf  of  the  Christian  Medical
College, Ludhiana, in Writ Petition No. 20 of 2012,  Mr.  Gupta  urged  that
Section 3B of the 1956 Act empowers the Board of Governors to  exercise  the
powers and discharge the functions of the Council and, accordingly, even  if
the appointment of the members of the Board  of  Governors  was  ad  hoc  in
nature,  it  made  no  difference  to  their  working  and  discharging  the
functions of the Council.



126.            Mr. Gupta  urged  that  private  bodies  and  religious  and
linguistic minorities have a fundamental right to establish  and  administer
medical institutions or other institutions of their  choice  under  Articles
19(1)(g) and 30 of the Constitution, but such right was not  unfettered  and
did not include the right  to  maladminister  the  respective  institutions.
Learned counsel urged that in the name of protection under Articles  25,  26
and 30 of the Constitution, an institution run by a religious or  linguistic
minority did not have the right to lower the standards of education  set  by
the Medical Council of India or to recruit  staff,  who  were  not  properly
qualified, or to deprive the students of  the  necessary  infrastructure  to
run such courses.  Accordingly, the MCI was within its jurisdiction  to  lay
down proper standards and to also conduct an All-India Entrance  Examination
to eliminate any possibility of  malpractice.   Mr.  Gupta  urged  that  the
several  Writ  Petitions  filed  on  behalf  of  both  States  and   private
individuals and religious and linguistic minorities are,  therefore,  liable
to be dismissed with appropriate costs.



127.       Mr.  Sidharth  Luthra,  learned  Additional  Solicitor   General,
appearing for the Union of India, in  the  Ministry  of  Health  and  Family
Welfare, at the very  outset,  submitted  that  the  Union  of  India  fully
supported the  stand  of  the  MCI.  Mr.  Luthra  urged  that  the  impugned
Notifications amending the Regulations in  regard  to  the  introduction  of
NEET  for  both  graduate  medical  education  and   post-graduate   medical
education had been validly made under powers conferred upon  the  MCI  under
Section 33 of the 1956 Act, upon obtaining  the  previous  sanction  of  the
Central  Government,  as  required  under  the  said  Section.  Mr.   Luthra
submitted that there was  a  definite  rationale  behind  holding  a  single
examination.  The learned ASG urged  that  the  NEET  Regulations  had  been
framed by the MCI, after due deliberations with the Central Government  and,
broadly speaking, the logic behind enacting the  said  Regulations  were  to
introduce uniformity of standards, merit and transparency and to lessen  the
hardship of aspiring students.  Mr. Luthra  urged  that  the  NEET  and  the
amending Regulations, which had been impugned, were not  ultra  vires  since
the 1956 Act is relatable to Entry 66 of the Union List  and  prevails  over
any State enactment, even though the State Acts may be  relatable  to  Entry
25 or 26 of the Concurrent List, to the extent the provisions of  the  State
Acts were repugnant to the  Central  legislation.   Mr.  Luthra  urged  that
Regulations framed under Section 33 of  the  1956  Act,  with  the  previous
sanction of the Central Government,  have  statutory  status  and  the  said
Regulations were framed to carry out the purposes of the said Act.



128.     Mr. Luthra repeated Mr. Gupta's submission that the rights  of  the
minorities preserved  under  Article  30  were  not  adversely  affected  or
prejudiced in any  way,  as  had  been  explained  in  P.A.  Inamdar's  case
(supra).  The learned ASG submitted that NEET had  been  introduced  in  the
national interest to ensure that meritorious students  did  not  suffer  the
problem of appearing in multiple examinations conducted by various  agencies
which also resulted in different standards  for  admission,  which  had  the
effect of compromising merit.  Mr. Luthra urged that the earlier  system  of
multiple examinations was neither  in  the  national  interest  nor  in  the
interest of maintaining the standards  of  medical  education,  nor  did  it
serve the interest of poor/middle class students who had  to  buy  forms  of
several examinations and travel across the country  to  appear  in  multiple
examinations.  It was urged that  any  Regulation  framed  in  the  national
interest must necessarily apply to  all  educational  institutions,  whether
run by the majority or the minority groups.  It was also urged that  such  a
Regulation must necessarily be read into Article  30  of  the  Constitution.
Mr. Luthra referred to the views expressed in that behalf in  Paragraph  107
of the judgment in the T.M.A. Pai Foundation case (supra). The  learned  ASG
submitted that the amended Regulations do not  restrict  or  in  any  manner
take away the rights of the minority institutions  under  Articles  19(1)(g)
and 30 of the Constitution to admit students from their community.



129.  Mr. Luthra reiterated the submissions  made  by  Mr.  Gupta  that  the
right conferred on the religious and  linguistic  minorities  to  administer
educational institutions of their choice, is not an absolute right  and  may
be regulated in certain special circumstances.



130.            The learned ASG  also  urged  that  the  merit  list  to  be
published on the results of the NEET, will contain all the details  of  each
candidate, including the State, category, minority status, caste and  tribal
status in front of  his/her  name  and  rank  so  that  there  would  be  no
hindrance  whatsoever  in  implementing  the  constitutional  principles  of
reservation and minority rights and merit. Furthermore, the transparency  in
the process of admission would also be fully achieved.



131.            On the question  of  different  mediums  of  instruction  in
schools throughout the country, Mr. Luthra submitted  that  the  NEET  -  UG
would be conducted in multiple languages, such as  English,  Hindi,  Telegu,
Assamese, Gujarati, Marathi, Tamil and Bengali, and hence,  the  submissions
made that NEET was  not  being  conducted  in  the  regional  languages,  is
misleading.



132.            One other important aspect touched upon  by  Mr.  Luthra  is
with regard to the syllabus for NEET, which  would  be  based  on  the  CBSE
syllabus.  The learned ASG submitted that the syllabus  for  NEET  had  been
prepared by the MCI, after obtaining feedback from different  stake-holders,
including the National Board and State  Boards,  across  the  country.   Mr.
Luthra submitted that the Regulations have been  amended  to  implement  the
provisions of the Act so as to meet the difficulties, which had been  raised
by some of the States.  The learned ASG submitted that the NEET  Regulations
were clearly within the competence and jurisdiction of the  Medical  Council
in the discharge of its obligations to carry out the purposes  of  the  Act,
as had been enjoined in the  different  decisions  of  this  Court  and,  in
particular, in Preeti Srivastava's case (supra). The learned ASG urged  that
the objections which had been sought to be taken on behalf  of  the  various
Petitioners, including the State Governments, with regard to the holding  of
the NEET examination,  were  wholly  misconceived  and  were  liable  to  be
rejected.



133.     Various issues of singular importance,  some  of  which  have  been
considered earlier, arise out of the  submissions  made  on  behalf  of  the
respective  parties  questioning  the  vires  of  the  amended   regulations
relating to Under-graduate and Post-graduate medical education, namely,



       (i)      The validity of the MCI Regulations and the DCI Regulations
       and the amendments effected therein with  regard  to  Under-graduate
       and Post-graduate courses of medicine in medical and dental colleges
       and institutions in the  light  of  Section  19A(2)  of  the  Indian
       Medical Council Act, 1956, and the corresponding provisions  in  the
       Dentists Act, 1948.
       (ii)     The jurisdiction and authority of the MCI and  the  DCI  to
       conduct  a  single  National   Eligibility-cum-Entrance   Test   for
       admission to the M.B.B.S., B.D.S. and Post-graduate courses in  both
       the disciplines.
       (iii)    The rights  of  the  States  and  private  institutions  to
       establish and  administer  educational  institutions  and  to  admit
       students to their M.B.B.S., B.D.S. and Post-graduate courses;
       (iv)     The impact of NEET on the rights  guaranteed  to  religious
       and linguistic minorities under Article 30 of the Constitution.
       (v)              Do the impugned Regulations come within  the  ambit
       of Entry 66, List I, of the Seventh Schedule to the Constitution?;
       (vi)     The effect of Presidential orders made under  Article  371D
       of the Constitution of India.



134.     Despite the various issues raised  in  this  batch  of  cases,  the
central issue relates to the validity of the  amended  Regulations  and  the
right of the MCI and the DCI thereunder to introduce and  enforce  a  common
entrance test, which has the  effect  of  denuding  the  State  and  private
institutions, both aided  and  unaided,  some  enjoying  the  protection  of
Article 30, of their powers to admit students in the  M.B.B.S.,  B.D.S.  and
the Post-graduate Courses conducted by them.  There  is  little  doubt  that
the impugned Notifications dated  21.12.2010  and  31.5.2012,  respectively,
and  the  amended  Regulations  directly  affect  the   right   of   private
institutions to admit students of  their  choice  by  conducting  their  own
entrance examinations, as  they  have  been  doing  all  along.   Attractive
though it seems, the decision taken by the MCI and the DCI to hold a  single
National Eligibility-cum-Entrance Test to the M.B.B.S., B.D.S. and the Post-
graduate courses in medicine and dentistry, purportedly with  the  intention
of  maintaining  high  standards  in  medical  education,  is  fraught  with
difficulties, not the least of which is the competence of the  MCI  and  the
DCI to frame and notify such Regulations. The ancillary issues  which  arise
in regard to the main issue, relate to the  rights  guaranteed  to  citizens
under Article 19(1)(g) and to  religious  and  linguistic  minorities  under
Article 30 of the Constitution,  to  establish  and  administer  educational
institutions of their choice.



135.     Doubts have been raised regarding the competence  of  the  MCI  and
the DCI to amend the 1997 and 2000 Regulations, or the 2007  Regulation  and
to issue the impugned Notifications to cover all  the  medical  institutions
in the country, which have their own procedures relating  to  admissions  to
the M.B.B.S., B.D.S. and Post-graduate Courses which passed the triple  test
indicated  in  P.A.  Inamdar's  case  (supra).   The  validity  of  the  MCI
Regulations of 1997 and 2000  and  the  DCI  Regulations  of  2007  and  the
amendments effected therein has been questioned with reference  to  Sections
19A(2) and 20 of the 1956 Act  and  Section  20  of  the  1948  Act.   While
empowering the MCI and the DCI to prescribe  minimum  standards  of  medical
education required for  granting recognised medical qualifications,  it  has
also been stipulated that the  copies  of  the  draft  Regulations  and  all
subsequent amendments thereof are to be furnished by the Council to all  the
State Governments and the Council shall, before submitting  the  Regulations
or any amendment thereof, as the case may be, to the Central Government  for
sanction, take into consideration  the  comments  of  any  State  Government
received within three months from the furnishing of such copies.   The  said
provisions do not appear to have been complied with by the MCI or  the  DCI,
which rendered the Regulations and the  amendments  thereto   invalid.    On
behalf of the MCI an attempt was made to  justify  the  omission  by  urging
that the directions were only directory and not mandatory.   In  support  of
such a contention reliance was placed on  Manbodhan  Lal  Srivastava's  case
(supra), wherein the  provisions  of  Article  320(3)  of  the  Constitution
providing for consultation with the Union Public Service Commission  or  the
State  Public  Service  Commission,  were  held  to  be  directory  and  not
mandatory.  A submission was also made  that  before  the  Regulations  were
amended, MCI had interacted with the State Governments and letters had  also
been exchanged in this regard and the responses were taken into  account  by
the Council while amending the Regulations.



136.     We are afraid that the said analogy would not be applicable to  the
facts of these  cases.   The  direction  contained  in  Sub-section  (2)  of
Section 19A of the 1956 Act makes it a  pre-condition  for  the  Regulations
and all subsequent amendments to be submitted to the Central Government  for
sanction.  The Council is required to take into consideration  the  comments
of any State Government within three months from the  furnishing  of  copies
of the draft Regulations and/or subsequent  amendments  thereto.   There  is
nothing to show that the MCI ever sent the draft amended Regulations to  the
different State Governments for their views. The  submission  of  the  draft
Regulations and all subsequent amendments  thereto  cannot  be  said  to  be
directory,  since  upon  furnishing  of  the  draft  Regulations   and   all
subsequent amendments thereto by the Council to all the  State  Governments,
the Council has to take into consideration the comments,  if  any,  received
from any State Government in respect thereof, before submitting the same  to
the Central Government for sanction.



137.      The fact situation in Manbodhan Lal Srivastava's case (supra)  was
different from the fact situation in this batch of cases. Article 320(3)  of
the  Constitution  provides  for  consultation  by  the  Central  or   State
Government with regard to the matters enumerated therein.   In  the  instant
case, it is not a case of consultation, but a case of inputs being  provided
by the State Governments in regard to the Regulations to be  framed  by  the
MCI or the DCI. Realising the difficulty, Mr. Gupta had  argued  that  since
the 1997 and 2000 Regulations had been acted upon by the concerned  parties,
the same must be held to have been accepted and the validity thereof was  no
longer open to challenge.



138.  Mr. Gupta's aforesaid submissions cannot be accepted, inasmuch as,  an
invalid provision  cannot  be  validated  simply  by  acting  on  the  basis
thereof.



139.      Mr. Gupta has also urged that the MCI derived  its  authority  for
framing the Regulations and/or effecting amendments thereto from  Entry  66,
List I, which is within the domain of the Central Government.   Accordingly,
the same would have primacy over all State laws on the subject.



140. Mr. Gupta's said submission finds support in Preeti  Srivastava's  case
(supra), wherein it has been held that the Regulations framed by the MCI  is
binding upon the States having been framed under Entry 66,  List  I  of  the
Seventh Schedule to the Constitution.  But, where does it take us as far  as
these cases are  concerned  which  derive  their  rights  and  status  under
Articles 19(1)(g), 25, 26, 29(1) and 30 of the Constitution? Can the  rights
guaranteed to individuals  and  also  religious  and  linguistic  minorities
under the said  provisions  of  the  Constitution,  be  interfered  with  by
legislation and that too by way of delegated legislation?



141. The four impugned Notifications dated 21.12.2010 and 31.5.2012 make  it
clear, in no uncertain terms, that all admissions to the  M.B.B.S.  and  the
B.D.S. courses and their respective Post-graduate courses, shall have to  be
made solely on the basis of the results  of  the  respective  NEET,  thereby
preventing the States and their authorities and  privately-run  institutions
from conducting any separate  examination  for  admitting  students  to  the
courses run by them. Although, Article 19(6) of the Constitution  recognizes
and permits reasonable restrictions on the right  guaranteed  under  Article
19(1)(g), the course of action adopted by the MCI and the DCI would not,  in
our  view,  qualify  as  a  reasonable  restriction,  but  would  amount  to
interference with the rights guaranteed under  Article  19(1)(g)  and,  more
particularly, Article 30, which is not subject to  any  restriction  similar
to Article 19(6) of the Constitution.  Of course, over the years this  Court
has repeatedly observed that the right guaranteed  under Article  30,  gives
religious and linguistic minorities the right to  establish  and  administer
educational institutions of their choice, but not to maladminister them  and
that the concerned authorities could impose conditions for maintaining  high
standards of education, such as laying down the  qualification  of  teachers
to be appointed in such institutions and also the curriculum to be  followed
therein.  The  question,  however,  is  whether  such  measures  would  also
include the right to  regulate  the  admissions  of  students  in  the  said
institutions.



142.  The first, second, third and fourth issues referred to hereinabove  in
paragraph 133, are intermingled and are taken up together for  the  sake  of
convenience.  The aforesaid issues have  been  considered  and  answered  by
this Court in the Ahmedabad St. Xavier's College Society case  (supra),  St.
Stephen's  College  case  (supra),  Islamic  Academy  case   (supra),   P.A.
Inamdar's case (supra) and exhaustively in the T.M.A.  Pai  Foundation  case
(supra). Can, therefore, by purporting to take  measures  to  maintain  high
educational standards to prevent maladministration,  the  MCI  and  the  DCI
resort to the amended MCI and DCI Regulations  to  circumvent  the  judicial
pronouncements in this regard? The answer to such question  would  obviously
have to be in the negative.



143.      The  Supreme  Court  has  consistently  held  that  the  right  to
administer an educational institution would also include the right to  admit
students, which right, in our view, could not be taken away on the basis  of
Notifications issued by the MCI and the DCI which had no  authority,  either
under the 1956 Act or the 1948 Act, to do so.   The  MCI  and  the  DCI  are
creatures of Statute, having  been  constituted  under  the  Indian  Medical
Council Act, 1956, and the Dentists  Act,  1948,  and  have,  therefore,  to
exercise the jurisdiction vested in them by the  Statutes  and  they  cannot
wander beyond the same. Of course, under Section 33  of  the  1956  Act  and
Section 20 of the 1948 Act, power has been reserved to the two  Councils  to
frame Regulations to carry out the purposes of their respective  Acts.    It
is pursuant to  such  power  that  the  MCI  and  the  DCI  has  framed  the
Regulations of 1997, 2000 and 2007, which set the standards for  maintaining
excellence of medical education in India.  The right of the MCI and the  DCI
to prescribe  such  standards  has  been  duly  recognised  by  the  Courts.
However, such right cannot be extended to controlling all admissions to  the
M.B.B.S., the B.D.S. and the Post-graduate Courses being  run  by  different
medical institutions in the country.  At best, a certain degree  of  control
may be exercised in regard to aided institutions, where on  account  of  the
funds being provided by the Government, it may have a say in the affairs  of
such institutions.



144.     These questions have already been considered  and  decided  in  the
T.M.A. Pai Foundation case (supra), wherein, it was categorically held  that
the right to admit students being an essential  facet  of  the  right  of  a
private medical  institution,  and,  in  particular,  minority  institutions
which were unaided, non-capitation fee educational institutions, so long  as
the process of admission to such institutions was transparent and merit  was
adequately taken care of, such right could  not  be  interfered  with.  Even
with regard to aided minority  educational  institutions  it  was  indicated
that such institutions would also have the  same  right  to  admit  students
belonging to their community, but, at the same time, it should also admit  a
reasonable number of non-minority students which has  been  referred  to  as
the "sprinkling effect" in the Kerala Education Bill case (supra).



145.     The rights of  private  individuals  to  establish  and  administer
educational institutions under Article 19(1)(g) of the Constitution are  now
well-established and do not  require  further  elucidation.  The  rights  of
unaided and aided religious  and  linguistic  minorities  to  establish  and
administer educational institutions of their choice under Article  19(1)(g),
read with Article 30 of the Constitution, have come  to  be  crystalised  in
the various decisions of this Court  referred  to  hereinabove,  which  have
settled  the  law  that  the  right  to  admit  students  in  the  different
educational and medical institutions is an integral part  of  the  right  to
administer  and   cannot   be   interfered   with   except   in   cases   of
maladministration or lack of transparency.  The impugned Regulations,  which
are in the nature of delegated legislation,  will have to make way  for  the
Constitutional  provisions.   The  freedom  and  rights   guaranteed   under
Articles 19(1)(g), 25, 26 and 30 of the  Constitution  to  all  citizens  to
practise any trade or profession and  to religious minorities to freedom  of
conscience  and  the  right  freely  to  profess,  practise  and   propagate
religion, subject to public order, morality and  health  and  to  the  other
provisions of  Part  III  of  the  Constitution,  and  further  to  maintain
institutions for religious  and  charitable  purposes  as  guaranteed  under
Articles 25 and 26 of the Constitution,  read  with  the  rights  guaranteed
under Article 30 of the Constitution, are also well-established  by  various
pronouncements of this Court. Over and  above  the  aforesaid  freedoms  and
rights is the right of  citizens  having  a  distinct  language,  script  or
culture of their own, to conserve  the  same  under  Article  29(1)  of  the
Constitution.



146.     Nowhere in the 1956  Act  nor  in  the  MCI  Regulations,  has  the
Council been vested with any authority to either conduct examinations or  to
direct that all admissions into different medical colleges and  institutions
in India would have to be on the basis of one common  National  Eligibility-
cum-Entrance  Test,  thereby  effectively  taking  away  the  right  of  the
different  medical  colleges  and  institutions,  including  those  run   by
religious and linguistic minorities, to make  admissions  on  the  basis  of
their own rules and procedures.  Although,  Mr.  Gupta  has  contended  that
Section 33(l)  of  the  1956  Act  entitles  the  MCI  to  make  regulations
regarding the conduct of professional examinations, the same, in  our  view,
does not empower the MCI to actually hold the entrance examination,  as  has
been purported to be done by the holding of the NEET.  The  power  to  frame
regulations for the conduct of professional examinations is a far  cry  from
actually holding  the  examinations  and  the  two  cannot  be  equated,  as
suggested by Mr. Gupta.



147.      Although,  the  controversy  has  been  extended  to  include  the
amendments made to the Entries in the Second and Third Lists of the  Seventh
Schedule to the Constitution and the deletion of Entry  11  from  the  State
List and the introduction of Entry 25 in the Concurrent List, on  behalf  of
the MCI it has been reiterated that the impugned Notifications  and  amended
Regulations had been made under Entry 66 of List I by the MCI acting on  its
delegated authority and would, therefore, have  an  overriding  effect  over
any State law on the subject.



        As already indicated hereinbefore, the right of  the  MCI  to  frame
Regulations under Entry 66, List I, does not take  us  anywhere,  since  the
freedoms and rights sought to be  enforced  by  the  Petitioners  flow  from
Articles 19(1)(g), 25, 26, 29(1) and 30 of the Constitution which cannot  be
superseded by  Regulations  framed  by  a  Statutory  authority  by  way  of
delegated legislation. The fact that such power was  exercised  by  the  MCI
and the DCI with  the  previous  approval  of  the  Central  Government,  as
contemplated under Section 33 of the 1956 Act and under Section  20  of  the
1948 Act, would not bestow upon the Regulations framed by the MCI  and  DCI,
which are in  the  nature  of  subordinate  legislation,  primacy  over  the
Constitutional provisions indicated above.  A feeble attempt has  been  made
by Mr. Gupta  to  suggest  that  admission  into  institutions  run  by  the
Christian Church depended on selection of students  by  the  Diocese.   This
procedure, according to Mr. Gupta, was against the  concept  of  recognition
of merit.



148. In our judgment, such a stand  is  contrary  to  the  very  essence  of
Articles 25, 26, 29(1) and 30 of the Constitution.  In view  of  the  rights
guaranteed under Article 19(1)(g) of the  Constitution,  the  provisions  of
Article 30 should have been redundant, but for the definite object that  the
framers of the Constitution  had  in  mind  that  religious  and  linguistic
minorities should have the fundamental right to  preserve  their  traditions
and  religious  beliefs  by  establishing  and   administering   educational
institutions of their choice.  There  is  no  material  on  record  to  even
suggest that the Christian Medical College, Vellore, or its counter-part  in
Ludhiana,  St.  John's  College,  Bangalore,  or  the  linguistic   minority
institutions and other privately-run institutions, aided and  unaided,  have
indulged in any malpractice in matters of  admission  of  students  or  that
they had failed  the  triple  test  referred  to  in   P.A.  Inamdar's  case
(supra).  On the other  hand,  according  to  surveys  held  by  independent
entities, CMC, Vellore and St. John's Medical College, Bangalore, have  been
placed among the top Medical Colleges in the country and have produced  some
of the most brilliant and dedicated doctors in the country believing in  the
philosophy of the institutions based on Christ's  ministry  of  healing  and
caring for the sick and maimed.



149.  Although, there is some difference of  opinion  as  to  the  right  to
freedom of religion as guaranteed  under  Article  25  of  the  Constitution
being confined only to  individuals  and  not  organizations  in  regard  to
religious activities, Article 26(a) very clearly indicates that  subject  to
public order, morality and  health,  every  religious  denomination  or  any
section thereof shall have the right to establish and maintain  institutions
for religious and charitable purposes.  The emphasis  is  not  on  religious
purposes alone,  but  extends  to  charitable  purposes  also,  which  would
include the running  of  a  hospital  to  provide  low-cost,  but  efficient
medical care to all, which the CMC, Vellore, and  other  private  missionary
hospitals of different denominations  are  doing.   So  long  as  a  private
institution satisfies the triple  test  indicated  in  P.A.  Inamdar’s  case
(supra), no objection can be taken to the procedure followed by it over  the
years in the matter of admission of students into  its  M.B.B.S.  and  Post-
graduate courses in medicine and other  disciplines.   Except  for  alleging
that the admission procedure was controlled by the Church, there is  nothing
even remotely suggestive of any form of maladministration  on  the  part  of
the medical institutions being run by the Petitioner Association.



150.      This brings us to the issue regarding the impact of  the  NEET  on
the right of  the  religious  and  linguistic  minorities  in  view  of  the
provisions of  Article  30(1)  of  the  Constitution.   Although,  the  said
question has been dealt with to some extent while  dealing  with  the  other
issues, certain aspects thereof still need to be touched upon.  As has  been
mentioned hereinbefore, having regard to the provisions of Article  19(1)(g)
of the Constitution, the provisions of Article 30 would have been  redundant
had not the framers of the Constitution had some definite object in mind  in
including Article 30 in the Constitution.  This Court has  had  occasion  in
several matters to consider  and  even  deal  with  the  question.   In  the
Ahmedabad St. Xavier's College Society case (supra), it was  held  that  the
right under Article 30(1) is more  in  the  nature  of  protection  and  was
intended to instill  confidence  in  minorities  against  any  executive  or
legislative  encroachment  on  their  right  to  establish  and   administer
educational institutions of their choice.  While the aforesaid  observations
help  in  understanding  the  intention  of  the  Constituent  Assembly   in
including Article 30 in the Constitution as a fundamental right  untrammeled
by any restrictions, as in the case of other fundamental  rights,  the  real
spirit of the said Article has been captured by Justice V. Krishna  Iyer  in
Jagdish Sharan's case  (supra), wherein His  Lordship  observed  that  merit
cannot be measured in  terms  of  marks  alone,  but  human  sympathies  are
equally important.  His Lordship's further observations that  the  heart  is
as much a factor as the head in assessing the social value of  a  member  of
the medical profession, completes the picture.  This, in fact, is  what  has
been attempted to be conveyed by Mr. Harish Salve,  appearing  for  the  CMC
Vellore, while submitting that under  Article  30  of  the  Constitution  an
educational institution must be  deemed  to  have  the  right  to  reject  a
candidate having superior marks as against a  candidate  who  having  lesser
marks conformed to the beliefs, aspirations and  needs  of  the  institution
for which it was established.



151.      One of the eleven questions which came to  be  considered  by  the
Eleven Judge Bench in the  T.M.A.  Pai  Foundation  case,  namely,  Question
5(a),  was  whether  the  minority's  rights  to  establish  and  administer
educational institutions of their choice would  include  the  procedure  and
method of admission and selection of students.  While dealing  with  one  of
the five issues reformulated by the Chief Justice as to  whether  there  can
be Government regulations in case of private institutions  and,  if  so,  to
what extent, it was indicated in the majority judgment  that  the  right  to
establish and administer broadly comprises  various  rights,  including  the
right  to  admit  students  in  regard  to  private   unaided   non-minority
educational institutions.  It  was  further  observed  that,  although,  the
right to  establish  an  educational  institution  can  be  regulated,  such
regulatory measures must, in  general,  be  to  ensure  the  maintenance  of
proper  academic  standards,  atmosphere   and   infrastructure   (including
qualified staff) and the prevention of maladministration by those  in-charge
of management, and that the fixing of a rigid fee structure,  dictating  the
formation and composition of the Governing Body,  compulsory  nomination  of
teachers and staff for appointment or nominating  students  for  admissions,
would be unacceptable restrictions.



152.    As far as private unaided professional colleges are  concerned,  the
majority view was that it would be  unfair  to  apply  the  same  rules  and
regulations regulating admission to  both  aided  and  unaided  professional
institutions.   In  that  context,  it  was  suggested  that  it  would   be
permissible for the University or the Government at  the  time  of  granting
recognition, to require a private unaided institution to provide for  merit-
based selection, while, at the same time, giving the  management  sufficient
discretion in admitting  students,  which  could  be  done  by  reserving  a
certain percentage of seats for admission by the  management  out  of  those
students who had passed a common entrance test held  by  itself,  while  the
rest of the seats could be filled up on the  basis  of  counselling  by  the
State agency, which would take care of the poorer and backward  sections  of
society.



153.            However, as far as the aided private  minority  institutions
are concerned, the inter-play between Article 30 and Article  29(2)  of  the
Constitution  was  taken  note  of  in  the  majority  decision  and   after
considering the various decisions on the said issue, including the  decision
in D.A.V. College Vs. State of Punjab [(1971) 2 SCC 269] and  the  Ahmedabad
St. Xavier's College  Society  case  (supra),  reference  was  made  to  the
observations made by Chief Justice Ray, as His Lordship then was,  that,  in
the field of administration, it was not reasonable to  claim  that  minority
institutions would have complete autonomy.   Checks  on  the  administration
would be necessary in order to ensure that the administration was  efficient
and sound and would serve the academic needs of the institution.   Reference
was also made to the concurring judgment of Khanna, J., wherein the  learned
Judge, inter alia, observed that the  right  conferred  upon  religious  and
linguistic minorities under  Article  30  is  to  establish  and  administer
educational  institutions  of   their   choice.    Administration   connotes
management of the affairs of the institution and  such  management  must  be
free of control so that the founders  or  their  nominees  could  mould  the
institution as they thought fit and in accordance with the ideas of how  the
interest of the community in  general  and  the  institution  in  particular
would be best served.  The learned Judge was of the view that the  right  of
the minorities to administer educational institutions did  not  prevent  the
making of reasonable regulations in respect of such institutions,  but  such
regulations  could  not  impinge  upon  the  minority   character   of   the
institution and a balance had to be maintained between  the  two  objectives
- that of ensuring the standard of excellence of the  institution  and  that
of preserving the right of minorities  to  establish  and  administer  their
educational institutions.



154.      The learned Judges  also  approved  the  view  taken  in  the  St.
Stephen's College  case  (supra)  regarding  the  right  of  aided  minority
institutions to give  preference  to  students  of  its  own  community  for
admission.   Their  Lordships,  however,  had  reservations  regarding   the
rigidity of percentage of students belonging to the  minority  community  to
be admitted.



155.  While answering Question 4 as to whether the admission of students  to
minority  educational  institutions,  whether  aided  or  unaided,  can   be
regulated by the  State  Government  or  by  the  University  to  which  the
institution is  affiliated,  the  learned  Judges  held  that  admission  of
students to unaided minority educational institutions, namely,  schools  and
under-graduate colleges, cannot be regulated by the State or the  University
concerned, except for providing the qualifications  and  minimum  conditions
of eligibility in the interest of academic standards.   The  learned  Judges
further held that the right to admit students, being an essential  facet  of
the right  to  administer  educational  institutions  of  their  choice,  as
contemplated under Article 30 of the Constitution, the State  Government  or
the University may not be entitled to interfere with that right, so long  as
the admission to the unaided educational institutions was on  a  transparent
basis and merit was adequately taken care of.  The learned  Judges  went  on
to indicate that the right to administer, not being  absolute,  there  could
be regulatory measures for ensuring educational  standards  and  maintaining
excellence thereof, and it was more  so  in  the  matter  of  admissions  to
professional institutions.



156.  In answering Question 5(a), as to whether the rights of minorities  to
establish and administer educational  institutions  of  their  choice  would
include the procedure and method of admission  and  selection  of  students,
the learned Judges held  that  a  minority  institution  may  have  its  own
procedure and method of admission as well  as  selection  of  students,  but
such a procedure must be fair and transparent and the selection of  students
in professional and higher educational colleges should be on  the  basis  of
merit and even an unaided minority institution should not ignore  the  merit
of the students for admission while exercising its right to  admit  students
to professional  institutions.   On  the  question  whether  the  rights  of
minority institutions regarding admission of students and to  lay  down  the
procedure and method of admission would be affected, in any way, by  receipt
of State aid, the learned Judges were of the view that while giving  aid  to
professional institutions, it would be permissible for the authority  giving
aid to prescribe conditions in that regard, without, however, affecting  the
right of such institutions to  actually  admit  students  in  the  different
courses run by them.



157.  What can ultimately be culled out from the various  observations  made
in the decisions on this issue, commencing from the  Kerala  Education  Bill
case  (supra)  to  recent  times,  is   that   admissions   to   educational
institutions have been held to be  part  and  parcel  of  the  right  of  an
educational institution to administer and  the  same  cannot  be  regulated,
except for  the  purpose  of  laying  down  standards  for  maintaining  the
excellence of education being provided in such institutions.   In  the  case
of  aided  institutions,  it  has  been  held  that  the  State  and   other
authorities may direct a certain  percentage  of  students  to  be  admitted
other than by the method adopted by the institution.  However, in  cases  of
unaided institutions, the position is that except for laying down  standards
for maintaining the excellence of education, the  right  to  admit  students
into the different courses could not be interfered with.   In  the  case  of
aided minority institutions, it has been held that the authority giving  aid
has the right to insist upon  the  admission  of  a  certain  percentage  of
students not belonging to the minority community,  so  as  to  maintain  the
balance of Article 19(2) and Article 30(1) of the Constitution.   Even  with
regard to  unaided  minority  institutions,  the  view  is  that  while  the
majority of students to be admitted should be from  the  minority  community
concerned, a certain percentage of students from  other  communities  should
also be admitted to maintain the  secular  character  of  education  in  the
country in what has been described as a "sprinkling effect".



158.            Mr. Parasaran's submissions with regard to  the  concept  of
"Rag Bag" legislation would not apply to the facts of these cases since  the
amendments to the Regulations of 1997, 2000 and  2007  were  effected  under
Entry 66, List I of the Seventh Schedule and no recourse was taken to  Entry
25 of the Concurrent List by  the  MCI  and  DCI  while  amending  the  said
Regulations.



159.  This brings us to the last issue, which has   been  raised  before  us
regarding the impact of the Presidential Orders made under Article  371D  of
the Constitution of India.  As pointed out by Mr. L. Nageshwar Rao,  learned
Senior Advocate, special enactments have been made in the States  of  Andhra
Pradesh and Tamil Nadu regarding admission  of  students  in  the  different
medical colleges and institutions being run in the said  States.   The  said
legislation being under Entry 25 of List III of the Seventh Schedule to  the
Constitution,  the  question  which  arises  is  whether  the  amended   MCI
Regulations  would  have  primacy  over  the  said  State  enactments.   The
question is answered by Article 371-D of  the  Constitution  which  empowers
the President to make special  provisions  with  respect  to  the  State  of
Andhra  Pradesh,  including  making  orders  with  regard  to  admission  in
educational institutions.  Clause 10 of Article 371-D provides as follows:
           "The provisions of this article and of any  order  made  by  the
           President thereunder shall have effect notwithstanding  anything
           in any other provision of this Constitution or in any other  law
           for the time being in force."


        Accordingly, the enactments made in the  States  of  Andhra  Pradesh
and Tamil Nadu will remain unaffected by the impugned Regulations.  We  have
already held that the Regulations  and  the  amendments  thereto  have  been
framed by the MCI and the DCI with the previous permission  of  the  Central
Government under Entry 66, List I, but that the Regulations  cannot  prevail
over the constitutional guarantees under Articles 19(1)(g),  25,  26,  29(1)
and 30 of the Constitution.



160.  Apart from the legal aspects, which have been  considered  at  length,
the practical aspect of holding a single  National  Eligibility-cum-Entrance
Test needs to be  considered.   Although,  it  has  been  submitted  by  the
learned Additional Solicitor General that a  single  test  would  help  poor
students to avoid sitting for multiple tests, entailing payment of fees  for
each separate examination, it has to be  considered  as  to  who  such  poor
students could be.  There  can  be  no  controversy  that  the  standard  of
education all over the country is not the same.   Each  State  has  its  own
system and pattern of education, including the medium  of  instruction.   It
cannot also be disputed  that  children  in  the  metropolitan  areas  enjoy
greater privileges than their counter-parts in most of the  rural  areas  as
far as education is concerned, and the decision of  the  Central  Government
to support a single entrance examination would  perpetuate  such  divide  in
the name of giving credit to merit.  In a  single  window  competition,  the
disparity in educational standards in different parts of the country  cannot
ensure a level playing field.  The practice of  medicine  entails  something
more than brilliance in academics,  it  requires  a  certain  commitment  to
serve humanity.  India  has  brilliant  doctors  of  great  merit,  who  are
located mostly in urban areas and whose availability in a  crisis  is  quite
uncertain.  What is required to provide health care to  the  general  masses
and particularly those in the rural areas, are committed physicians who  are
on hand to respond to a crisis situation.  Given the large number of  people
who live in the villages in difficult  conditions,  the  country  today  has
more need of such doctors who may not be specialists, but are  available  as
general physicians to treat those in need of medical care and  treatment  in
the far flung areas of the  country,  which  is  the  essence  of  what  was
possibly envisaged by the framers of the Constitution in  including  Article
30 in Part III of the Constitution.  The desire to give due  recognition  to
merit is laudable, but the pragmatic realities on  the  ground  relating  to
health care, especially in the rural and tribal areas where a large  section
of the Indian population resides, have also to be kept in mind  when  policy
decisions are taken in matters such as this.  While  the  country  certainly
needs brilliant doctors and surgeons and  specialists  and  other  connected
with health care, who are  equal  to  any  in  other  parts  of  the  world,
considering ground realities,  the  country  also  has  need  for  "barefoot
doctors", who are committed and are available to  provide  medical  services
and health care facilities in different areas as part of  their  mission  in
becoming doctors.



161.  In the light of our aforesaid discussions and the views  expressed  in
the various decisions cited, we have  no  hesitation  in  holding  that  the
"Regulations on Graduate Medical Education (Amendment) 2010 (Part  II)"  and
the "Post Graduate Medical  Education  (Amendment)  Regulation,  2010  (Part
II)", whereby the Medical Council of India introduced  the  single  National
Eligibility-cum-Entrance  Test  and  the  corresponding  amendments  in  the
Dentists Act, 1948, are ultra vires the  provisions  of  Articles  19(1)(g),
25, 26(a), 29(1) and 30(1) of the Constitution, since they have  the  effect
of denuding the States, State-run Universities and all medical colleges  and
institutions,  including  those  enjoying  the  protection  of   the   above
provisions, from admitting students to  their  M.B.B.S.,  B.D.S.  and  Post-
graduate  courses,  according  to  their   own   procedures,   beliefs   and
dispensations, which has been  found  by  this  Court  in  the   T.M.A.  Pai
Foundation  case  (supra),  to  be  an  integral  facet  of  the  right   to
administer.  In our view, the role attributed to and  the  powers  conferred
on the MCI and the DCI under the provisions of the  Indian  Medical  Council
Act,  1956,  and  the  Dentists  Act,  1948,  do  not  contemplate  anything
different and are restricted to laying down standards  which  are  uniformly
applicable to all medical colleges and institutions in India to  ensure  the
excellence of medical education in India.  The  role  assigned  to  the  MCI
under Sections 10A and 19A(1) of the 1956 Act vindicates such a conclusion.



162.  As an off-shoot of the above, we also have no  hesitation  in  holding
that the Medical Council of India is not empowered under  the  1956  Act  to
actually conduct the NEET.



163.  The Transferred Cases and the Writ Petitions are,  therefore,  allowed
and  the   impugned   Notifications   Nos.   MCI-31(1)/2010-MED/49068,   and
MCI.18(1)/2010-MED/49070, both dated 21st December, 2010, published  by  the
Medical Council of India along with Notification Nos. DE-22-2012 dated  31st
May, 2012, published by  the  Dental  Council  of  India   and  the  amended
Regulations sought to be  implemented  thereunder  along  with  Notification
Nos. DE-22-2012 dated 31st May, 2012, published by  the  Dental  Council  of
India, are hereby quashed.  This will not, however,  invalidate  actions  so
far taken under the amended Regulations, including  the  admissions  already
given on the basis of the NEET conducted by the Medical  Council  of  India,
the Dental Council of India and other private medical institutions, and  the
same shall be valid for all purposes.



164.  Having regard to the nature of the cases  decided  by  this  judgment,
the parties thereto will bear their own costs.







                                                     ...................CJI.
                                                             (ALTAMAS KABIR)



                                                     .....................J.
                                                            (VIKRAMAJIT SEN)

New Delhi
Dated: July 18, 2013.



                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                         CIVIL ORIGINAL JURISDICTION
                           T.C. (C) NO.98 OF 2012
CHRISTIAN MEDICAL COLLEGE
VELLORE & ORS.                              …PETITIONERS
                                   VERSUS
UNION OF INDIA AND ORS.                 …RESPONDENTS
                                    WITH
                        T.C. (C) NO.99/2012 and batch




ANIL R. DAVE, J.


   1. I have carefully gone through the elaborate judgment delivered by  the
      learned Chief Justice.  After going through the judgment, I could  not
      persuade myself to share the same view.

   2. As the learned Chief Justice is to retire within a few days, I have to
      be quick and therefore, also short.  Prior to preparation of our draft
      judgments we had no discussion on the subject due to paucity  of  time
      and therefore, I have to express my different  views  but  fortunately
      the learned Chief Justice has discussed the facts, submissions of  the
      concerned counsel and the legal position in such a detail that I  need
      not discuss the same again so as  to  make  the  judgment  lengthy  by
      repeating the submissions and the legal provisions, especially when  I
      am running against time.

   3. Sum and substance of all these petitions is that the  Medical  Council
      of India  (hereinafter  referred  to  as  ‘the  MCI’)  should  not  be
      entrusted with a right to conduct National  Eligibility-cum-  Entrance
      Test (hereinafter referred to as ‘the NEET’) and whether  introduction
      of the NEET  would  violate  fundamental  rights  of  the  petitioners
      guaranteed under the provisions of Articles 19(1)(g),  25,  26,  29(1)
      and 30 of the Constitution of India.

   4. The submissions are to the effect that if the MCI or  any  other  body
      conducts examination in the nature of the NEET, the  petitioners,  who
      are managing medical colleges, would not be in a position to  exercise
      their discretion in relation to giving admission to  the  students  in
      their colleges and therefore, their fundamental right guaranteed under
      Article 19(1)(g) and the rights of  the  minority  institutions  under
      Articles 29 and 30 would be violated.  The submission is to the effect
      that the minority institutions should have full and  unfettered  right
      to select the students who are  to  be  imparted  education  in  their
      colleges.  Any restriction or regulation  of  whatsoever  type,  would
      violate their fundamental rights.  Thus, what is to be  seen  by  this
      Court is whether the system sought to be introduced by the  MCI  under
      the provisions of the Indian Medical Council  Act,  1956  (hereinafter
      referred to as ‘the  Act’)  is  violative  of  any  of  the  legal  or
      constitutional provisions.  In the  process  of  deciding  so,  in  my
      opinion, this Court also has to examine whether it  would  be  in  the
      interest of the society and the students aspiring to study medicine to
      have a common examination in the nature of the NEET.

   5. Sections 19A and 20 of the Act, which  have  been  reproduced  in  the
      judgment delivered by the learned Chief Justice,  permit  the  MCI  to
      prescribe the minimum standards of medical education.  Section  33  of
      the Act also empowers the MCI to make regulations  to  carry  out  the
      purposes of the Act.  Thus, the said  provisions  enable  the  MCI  to
      regulate the system of medical education throughout the country.

   6. Let me first of all consider the scope of the aforestated sections and
      the provisions of the  Act  in  relation  to  the  regulation  of  the
      standards of education to be imparted in medical colleges.   It  is  a
      matter of sound common sense that to have doctors well versed  in  the
      subject of medicine and having proficiency in their field,  we  should
      have suitable and deserving  students  who  should  be  imparted  good
      medical education and there should  be  strict  supervision  over  the
      education system so as to see that the students who are not up to  the
      mark or are not having the highest  standards  of  education  are  not
      declared successful at the examinations.

   7. To achieve the aforestated ideal, the system should be  such  that  it
      should have effective regulations at  three  different  stages  –  The
      first stage is the admission of the students to medical colleges.  The
      students who are admitted to the medical course should be suitable and
      should have the right aptitude so that they can be  shaped  well  into
      the medical profession after being  imparted  proper  education.   The
      second stage is with regard  to  determination  of  syllabus  and  the
      manner of imparting education and for the said purpose, the regulating
      authorities should see that proper medical training is  given  to  the
      students and for the  said  purpose  sufficiently  equipped  hospitals
      should be there as teaching institutes.  It should also be  seen  that
      sufficient number of patients are treated at the hospitals so that the
      students can get adequate practical training where  the  patients  are
      being treated.  Finally, the examinations, which the students have  to
      pass to prove their  worth  as  successful  students  should  also  be
      strictly regulated.  If there is any lacuna or short-coming at any  of
      the above three stages, it would  adversely  affect  the  professional
      standards  of  the  students  passing   out   from   the   educational
      institutions as physicians, who are trusted by the citizens  of  India
      at critical moments, when someone’s life is  at  stake.   I  need  not
      state anything more with regard to the importance of the medical field
      or the physicians as it is  a  matter  of  common  knowledge  that  to
      maintain good health and to cure the diseases and to avoid  or  reduce
      trauma of a patient, existence of a trained and well groomed doctor is
      a sine qua non.   All  these  facts  equally  apply  to  dentists  and
      therefore, I am not specially referring to them every time.

   8. By virtue of introduction of  the  NEET  to  be  conducted  under  the
      supervision of the MCI, standards of the  students  at  the  stage  of
      their admission to the medical colleges, be it for  admission  to  the
      M.B.B.S. course or the post graduation studies in  medical  faculties,
      would  be  regulated.   Similarly,  for  imparting  education  to  the
      students studying in the field of Dentistry, Dental Council  of  India
      (For short ‘the DCI’) has to regulate admissions so  as  to  see  that
      eligible and suitable students are admitted to the  different  courses
      in the field of dentistry.

   9. There is no need to discuss the importance of quality of  input,  when
      something is to be produced, manufactured or developed.  Even when one
      thinks of manufacturing an  article,  the  manufacturer  is  conscious
      about the quality of the input and he would invariably select the best
      input i.e.  such  raw  material  so  as  to  make  his  final  product
      excellent.  Principle is not different in the field of education.   If
      an educational institution wants an excellent output in the nature  of
      a  well  trained,  well  educated,  well  groomed  professional,   the
      institution must see that suitable and deserving  students  having  an
      aptitude for  becoming  good  doctors  are  admitted  to  the  medical
      college.  If among all good students, there are students who  are  not
      up to the mark, who are lagging behind in their studies, who are  weak
      in studies, it would not be possible to educate or groom such students
      effectively and efficiently.  A weak student may lag behind due to his
      lower  level  of  grasping  or  education   or   training.    In   the
      circumstances, it becomes the duty of the regulating authority to  see
      that quality of the students at the stage of admission  is  thoroughly
      examined and only deserving and suitable students are given  admission
      to the medical colleges so as to make them suitable members of a noble
      profession  upon completion of their studies.  So as to see that  only
      deserving and suitable students are admitted to the medical  colleges,
      the MCI has introduced the NEET.  By virtue  of  introduction  of  the
      NEET, the students aspiring to become  physicians  or  pursue  further
      medical studies will have to pass the  NEET.   The  NEET  would  be  a
      nationwide common examination to be held at different  places  in  the
      country so that all students aspiring to have medical  education,  can
      appear in the examination and ultimately, on the basis of  the  result
      of the examination, suitability and eligibility of  the  students  for
      admission to the medical profession can be determined.  This system is
      a part of regulation whereby entry to the field of  medical  education
      is regulated in such a way that only eligible  and  suitable  students
      are given admission to medical colleges.

  10.  If  the  NEET  is  conducted  under  the  supervision  of  the   apex
      professional body, it would inspire confidence in the  system  and  in
      that event, the selection of the students for admission to the medical
      profession  would  be  on  merit  based  selection.    No   extraneous
      consideration would come into play in the process of  selection.   The
      process of selection would not be  influenced  by  irrelevant  factors
      like caste and creed, community,  race,  lineage,  gender,  social  or
      economic standing, place  of  residence  –  whether  rural  or  urban,
      influence of wealth or power; and admission would be given only to the
      students who  really  deserve  to  be  well  qualified  physicians  or
      dentists.   Thus, there would not be any discrimination  or  influence
      in the process of selection.  I may add here that though the  students
      can be selected only on the basis of their merit, it would be open  to
      the States to follow their reservation policy and  it  would  also  be
      open to the institutions based on religious or linguistic minority  to
      select students of their choice, provided  the  students  so  selected
      have secured minimum marks prescribed at the  NEET.   From  and  among
      those students, who have  secured  prescribed  qualifying  marks,  the
      concerned institutions, who want to  give  priority  to  the  students
      belonging to a particular class or  caste  or  creed  or  religion  or
      region, etc. would be  in  a  position  to  give  preference  to  such
      students in the matter of their admission  to  the  concerned  medical
      college.  Thus, the purpose with which the Articles 25, 26, 29, and 30
      are incorporated in our Constitution  would  be  fully  respected  and
      implemented.

  11. Furthermore, centralization of the selection process under holding the
      NEET would help the students to appear at  the  examination  from  any
      corner of  our  nation.   The  result  of  the  examination  would  be
      published at the same time on one particular day  and  with  the  same
      standard.   There would not be any problem with regard  to  equalizing
      marks and merits of different students passing different  examinations
      from different regions or states or  universities  or  colleges.   The
      process of selection would be equal, fair, just and transparent.   All
      the students would be in a position to compete from a common  platform
      and the test will have credibility in the eyes of the students and the
      society.  There are number  of  professional  institutions  which  are
      having  only  one  professional  examination  and   there   are   some
      institutions which also have one  common  entrance  test  which  would
      decide competence and capability of a student for  being  admitted  to
      the professional course and the system which is followed by  them  for
      years is quite satisfactory and successful.   The  students  would  be
      benefited because they will not have to appear at different places  on
      different days at different examinations for the same purpose.  In  my
      opinion, the aforestated factors, in practical life, would surely help
      the students, the profession and the institutions which are not  money
      minded and are sincere in their object of imparting medical  education
      to the aspiring students.   The cost of appearing at the NEET would be
      much less as the aspiring students will not have to  purchase  several
      expensive admission forms and will not have  to  travel  to  different
      places.

  12. An apprehension has been voiced by the  counsel  for  the  petitioners
      that  the  minority  institutions  or  the  educational   institutions
      belonging to special classes would be adversely  affected  because  of
      the introduction of the NEET.  In fact, the said apprehension  is  not
      well founded.  The policy with regard to the reservation can  be  very
      well implemented if the NEET is  introduced  because  the  NEET  would
      determine standard or eligibility of a student who is to  be  imparted
      education in the field of medicine.  The institution imparting medical
      education will have to see that the student to be admitted  is  having
      minimum standard of suitability and  the  institution  will  be  at  a
      liberty to select a student of its choice if it  wants  to  promote  a
      particular class of persons.   By  admitting  suitable  and  deserving
      students having  an  aptitude  for  becoming  doctors,  the  religious
      institutions would be  in  a  position  to  have  better  doctors  for
      fulfilling their objective.

  13. Moreover, the policy with regard to reservation for  certain  classes,
      followed by the States would also not be adversely affected.  From the
      deserving eligible students, who have procured qualifying marks at the
      NEET and who belong to the reserved classes would be given  preference
      so as to fulfill the policy with regard  to  reservation.   Thus,  the
      students belonging to the reserved classes would also  not  suffer  on
      account of holding the NEET.

  14. In the circumstances, it cannot be said that introduction of the  NEET
      would adversely affect the policy with regard to  the  reservation  or
      the policy of the  States  pertaining  to  upliftment  of  downtrodden
      persons belonging to certain classes.

  15. The MCI has power to regulate medical education and similarly the  DCI
      has also  the  power  to  regulate  the  education  in  the  field  of
      Dentistry.  Meaning of the  word  ‘to  regulate’  would  also  include
      controlling entry of undeserving or weak students into the profession,
      who cannot be groomed in normal circumstances as  good  physicians  or
      doctors or dentists.  The  term  ‘regulate’  would  normally  mean  to
      control something by means of rules or by exercise of control  over  a
      system.  It is an admitted fact that one of  the  functions  of  these
      apex bodies  of  the  professionals  is  to  regulate  the  system  of
      education.  In my opinion, we cannot put  any  fetter  on  the  system
      introduced by these bodies, whereby they try to control entry of  weak
      or undeserving or less competent  students  to  the  institutes  where
      medical education is imparted.  Thus, in my opinion, the MCI  and  the
      DCI are competent to exercise their right to  regulate  the  education
      system under the provisions of the Act and under the provisions of the
      Dentists Act, 1948, which permit them to  determine  the  standard  of
      students who are to be admitted to these professional courses.

  16. Hence, I am of the view that the MCI  and  the  DCI  are  entitled  to
      regulate the admission procedure by virtue of the provisions of  their
      respective Acts, which enable  them  to  regulate  and  supervise  the
      overall professional standards.

  17. I have now to see  whether  the  legal  provisions  which  permit  the
      aforestated apex bodies  to  conduct  the  NEET,  so  as  to  regulate
      admission of the students to medical  institutes,  are  in  accordance
      with legal and Constitutional provisions.   The  aforestated  question
      has been rightly answered by this court in  the  case  of  Dr.  Preeti
      Srivastava and Another vs. State of M.P. and Others (1999) 7  SCC  120
      to the effect that norms of admission will have a direct impact on the
      standards of education.  This court has observed that the standards of
      education in any institution or  college  would  depend  upon  several
      factors and the  caliber  of  the  students  to  be  admitted  to  the
      institutions would also be one of the relevant factors.  Moreover,  in
      view of  entry  25  of  List  III  of  the  Seventh  Schedule  to  the
      Constitution, Union as well as the States have power to  legislate  on
      the subject of medical education, subject to the provisions  of  entry
      66 of List I of the Seventh Schedule, which deals  with  determination
      of  standards  in  institutions  for   higher   education.    In   the
      circumstances, a State has the right to control  education,  including
      medical education, so long as the field is  unoccupied  by  any  Union
      legislation.  By virtue of entry 66 in List I to the Seventh Schedule,
      the Union can make laws with respect to determination of standards  in
      institutions for higher education. Similarly, subject  to  enactments,
      laws  made  with  respect  to  the  determination  of   standards   in
      institutions for higher education under power given to  the  Union  in
      entry 66 of List I of the Seventh Schedule, the State  can  also  make
      laws relating to education, including technical education and  medical
      education.  In view of the above position clarified in the case of Dr.
      Preeti Srivastava  (supra),  the  NEET  can  be  conducted  under  the
      supervision of the MCI as per the regulations framed  under  the  Act.
      As stated hereinabove, Section 33 of the Act enables the MCI  to  make
      regulations to carry out  the  purposes  of  the  Act  and  therefore,
      conducting the NEET is perfectly legal.

  18. In para 36 of the  judgment  delivered  in  the  case  of  Dr.  Preeti
      Srivastava (supra), this Court  has  held  that  for  the  purpose  of
      maintaining standards of education, it is very much necessary  to  see
      that  the  students  to  be  admitted  to   the   higher   educational
      institutions are having high caliber and therefore, in the process  of
      regulating  educational  standards  in  the  fields  of  medicine  and
      dentistry also the above principle should be  followed  and  the  apex
      professional bodies should be permitted to conduct examinations in the
      nature of the NEET.  Regulations made under the Act and  the  Dentists
      Act, 1948 must be treated as part of the Act and therefore, conducting
      the NEET cannot be said to be illegal.  Submissions were made  by  the
      learned counsel for the  petitioners  that  as  copies  of  the  draft
      Regulations, as required under  Section  19A  of  the  Act,  were  not
      forwarded to the State Governments, the  said  Regulations  cannot  be
      acted upon.  The said submission is of no importance  for  the  reason
      that I am in agreement with the  submission  of  the  learned  counsel
      appearing for the MCI that the said provision  is  not  mandatory  and
      therefore, non-supply of the draft  regulations  would  not  adversely
      affect the validity of the Regulations and the NEET.  It also  appears
      from the language used in  Section  19A  of  the  Act  that  the  said
      provision with regard to furnishing copies of the draft regulations to
      all the State Governments is not mandatory and any defect in the  said
      procedure would not vitiate validity  of  the  Regulations  or  action
      taken in pursuance of the Regulations.

  19. Similar question with regard to having a common test  had  arisen  for
      admitting  students  aspiring  to  become  veterinary  surgeons.   The
      question was whether it  was  open  to  the  apex  body  of  the  said
      profession to conduct a common entrance test.  Ultimately,  the  issue
      had been resolved by this court in the matter of Veterinary Council of
      India vs. Indian Council of Agricultural Research, (2000) 1  SCC  750.
      This court, after considering several issues similar  to  those  which
      have been raised in these petitions, held that  it  was  open  to  the
      concerned regulatory Council to conduct a common entrance test.

  20. So far  as  the  rights  guaranteed  under  Article  19(1)(g)  of  the
      Constitution with regard to practising any profession or  carrying  on
      any occupation, a trade or business, are concerned, it is needless  to
      say that the aforestated rights are not unfettered.  Article 19(6)  of
      the  Constitution  permits  the  State  to  enact  any  law   imposing
      reasonable restrictions on the rights conferred by Article 19(1)(g) in
      relation to the professional or technical qualifications necessary for
      practising any profession.  Enactments of the  Act  and  the  Dentists
      Act, 1948, including Regulations made thereunder, which  regulate  the
      professional  studies  cannot  be  said  to  be   violative   of   the
      Constitutional rights guaranteed  to  the  petitioners  under  Article
      19(1)(g) of the Constitution.  The framers of  the  Constitution  were
      conscious of the fact that anybody cannot be given a right to practise
      any profession without having regard to his  capacity,  capability  or
      competence.  To be permitted  to  practise  a  particular  profession,
      especially when the profession is  such  which  would  require  highly
      skilled person to perform  the  professional  duties,  the  State  can
      definitely regulate the profession.  Even if we assume  that  all  the
      petitioner institutions are in business of imparting  education,  they
      cannot also have unfettered right of admitting undeserving students so
      as to make substandard physicians and dentists.  One  may  argue  here
      that ultimately, after passing the final examination, all students who
      had joined the studies would be at par and therefore, even if  a  very
      weak or substandard student is  given  admission,  after  passing  the
      final examination, which is supervised  by  one  of  the  apex  bodies
      referred to hereinabove, he would be at par with  other  students  who
      were eligible and suitable at the time when they were given admission.
       In practical life, we do find a difference between a professional who
      has passed his professional examination at the first or  second  trial
      and the one who has passed examination after several trials.  Be  that
      as it may, it is for the apex body of the professionals to  decide  as
      to what type of students should  undergo  the  professional  training.
      The function with regard to regulating educational activity  would  be
      within the domain of the professional bodies and their  decision  must
      be respected so as to see that the society gets  well  groomed  bright
      physicians and dentists.  Thus, in my opinion, the introduction of the
      NEET would not violate the right guaranteed to the  petitioners  under
      the provisions of Article 19(1)(g) of the Constitution of India.

  21. So  far  as  the  rights  guaranteed  to  the  petitioners  under  the
      provisions of Articles 25, 26, 29 and 30 are concerned, in my opinion,
      none of the rights guaranteed under the aforestated Articles would  be
      violated by permitting the NEET.  It is always open to the petitioners
      to select a student subject to his  being  qualified  by  passing  the
      examination conducted by the highest professional body.   This  is  to
      assure that the students who are to undergo the professional  training
      are suitable for the same.  Regulations relating to admission  of  the
      students i.e. admitting eligible, deserving and bright students  would
      ultimately bring reputation to the educational institutes.  I fail  to
      understand as to why the petitioners are keen to admit undeserving  or
      ineligible students when eligible and suitable students are available.
       I am sure that even a scrupulous religious person or  an  educational
      institution would not like to  have  physicians  or  dentists  passing
      through its  institution  to  be  substandard  so  as  to  bring  down
      reputation  of  the  profession  or  the  college  in  which  such   a
      substandard professional was educated.  Minorities - be  it  religious
      or linguistic, can impart training to a student who is found worthy to
      be given education in the  field  of  medicine  or  dentistry  by  the
      professional apex body.   In my opinion, the Regulations and the  NEET
      would not curtail or adversely  affect  any  of  the  rights  of  such
      minorities as  apprehended  by  the  petitioners.   On  the  contrary,
      standard quality of input would reasonably  assure  them  of  sterling
      quality of the final output of the physicians or  dentists,  who  pass
      out through their educational institutions.

  22. An apprehension was voiced by some of the counsel  appearing  for  the
      petitioners that autonomy of the petitioner institutions would be lost
      if the NEET is permitted.  I fail to understand as to how autonomy  of
      the said institutions would be adversely affected because of the NEET.
        The  Government  authorities  or  the  professional   bodies   named
      hereinabove would not be creating any hindrance in the  administrative
      affairs of the institutions.  Implementation of the  NEET  would  only
      give better students to such institutions  and  from  and  among  such
      highly qualified and suitable students, the minority institutions will
      have a right to select the students of their choice.  At  this  stage,
      the institutions would be in a position to use their discretion in the
      matter of selection of students.  It would be open  to  them  to  give
      weightage  to  the  religion,  caste,  etc  of   the   student.    The
      institutions would get rid of the work of  conducting  their  separate
      examinations and that would be a great relief to  them.   Except  some
      institutions having some oblique motive behind selecting students  who
      could  not  prove  their  mettle  at  the  common   examination,   all
      educational institutes  should  feel  happy  to  get  a  suitable  and
      eligible lot of students, without  making  any  effort  for  selecting
      them.

  23. For the reasons recorded hereinabove, in my opinion, it cannot be said
      that introduction  of  the  NEET  would  either  violate  any  of  the
      fundamental or legal rights  of  the  petitioners  or  even  adversely
      affect the medical profession.  In my  opinion,  introduction  of  the
      NEET would ensure more transparency and less hardship to the  students
      eager to join the medical profession.  Let us see the consequence,  if
      the apex bodies of medical profession are not permitted to conduct the
      NEET.  A student, who is good at studies  and  is  keen  to  join  the
      medical profession, will have to visit  several  different  States  to
      appear at different examinations held by different medical colleges or
      institutes so as to ensure that he gets admission  somewhere.   If  he
      appears only in one examination conducted by a  particular  University
      in a particular State and if he fails there,  he  would  not  stand  a
      chance to get medical education at any other  place.   The  NEET  will
      facilitate all students desirous of  joining  the  medical  profession
      because the students will have to appear only at one  examination  and
      on the basis of the result of the NEET, if he is  found  suitable,  he
      would be in a position to get admission somewhere in the  country  and
      he can have the medical education  if  he  is  inclined  to  go  to  a
      different place.  Incidentally, I may state here that  learned  senior
      counsel Mr. Gupta had informed the Court that some  medical  colleges,
      who are more in a profiteering business rather than in the noble  work
      of imparting medical education, take huge amount by way of donation or
      capitation fees and give admission to  undeserving  or  weak  students
      under one pretext or the other.   He had also  given  an  instance  to
      support the serious allegation made by him on the  subject.   If  only
      one examination in the country is conducted and admissions  are  given
      on the basis of the result of the said  examination,  in  my  opinion,
      unscrupulous and money minded businessmen operating in  the  field  of
      education would be constrained to stop their corrupt practices and  it
      would help a lot, not only to the deserving students but also  to  the
      nation in bringing down the level of corruption.

  24. For the aforestated reasons, I am of the view that the petitioners are
      not entitled to any of the reliefs prayed for in the  petitions.   The
      impugned notifications are not only legal in the eyes of law  but  are
      also a boon to the students aspiring to join medical profession.   All
      the petitions are, therefore, dismissed with no order as to costs.


                                  ........................................J.
                                                        (ANIL    R.    DAVE)

New Delhi
July 18, 2013

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