Order
1. The impleadment and intervention applications are allowed. Leave granted. Heard learned counsel for the parties.
2. Since this is a batch of several appeals involving common questions, we are taking the facts from civil appeal arising from Special Leave Petition No. 13111 of 2009. This appeal has been filed against the impugned judgment and order dated 15-5-2009 of the High Court of Madhya Pradesh at Jabalpur in Writ Petition No. 2732 of 2009. In this case, we had earlier passed an order dated 21-5-2009 but we are substituting that interim order by this interim order which we are passing now.
3. The appellants in these appeals are private unaided medical and dental colleges or association of such colleges in the State of Madhya Pradesh. The common question that arises for consideration in this batch of appeals is “How far is it permissible under the Constitution for the State to control and regulate admission and fee in private unaided professional educational institutions in the State of Madhya Pradesh?” The matter was first considered by an eleven-Judge Bench of this Court in T.M.A Pai Foundation v. State of Karnataka (2002) 8 SCC 481. Since there were some doubts or some questions remained unanswered in the aforesaid judgment, the matter was referred to a five-Judge Bench of this Court which decided it in Islamic Academy of Education v. State of Karnataka (2003) 6 SCC 697.
4. Despite the judgment in Islamic Academy of Education case (2003) 6 SCC 697 still there were some doubts and the matter was again referred to a seven-Judge Bench of this Court which decided it in P.A Inamdar v. State of Maharashtra (2005) 6 SCC 537. In para 153 of P.A Inamdar case (2005) 6 SCC 537 it has been stated:
“153. … There are several questions which have remained unanswered and there are certain questions which have cropped up post Pai Foundation (2002) 8 SCC 481 and Islamic Academy (2003) 6 SCC 697. To the extent the area is left open, the Benches hearing individual cases after this judgment would find the answers.”
Thus, it is evident that even in Inamdar case (2005) 6 SCC 537, it has been observed that there are still some doubts or grey areas in relation to the question of extent of State control over the private unaided institutions imparting professional education.
5. We have gone through the aforesaid decisions with great care.
6. In para 91 of Inamdar case (2005) 6 SCC 537 it has been observed:
“91. The right to establish an educational institution, for charity or for profit, being an occupation, is protected by Article 19(1)(a) [of the Constitution].”
Thus, it is clear that the right to establish and run an educational institution is a fundamental right guaranteed under Article 19(1)(g) of the Constitution. Of course, under Article 19(6) of the Constitution, reasonable restrictions can be placed on such a fundamental right, and hence we have to examine whether such restrictions are reasonable or not. Before dealing with this issue we may refer to some observations made in the decision of this Court in T.M.A Pai Foundation case (2002) 8 SCC 481.
7. In paras 37-45 of the aforesaid decision in T.M.A Pai Foundation case (2002) 8 SCC 481 this Court held that the decision of this Court in Unni Krishnan, J.P v. State of A.P (1993) 1 SCC 645 insofar as it relates to the schemes of admission and fee were not correct. Paras 35-41 of the aforesaid decision in T.M.A Pai Foundation case (2002) 8 SCC 481 read as follows:
“35. It appears to us that the scheme framed by this Court and thereafter followed by the Governments was one that cannot be called a reasonable restriction under Article 19(6) of the Constitution. Normally, the reason for establishing an educational institution is to impart education. The institution thus needs qualified and experienced teachers and proper facilities and equipment, all of which require capital investment. The teachers are required to be paid properly. As pointed out above, the restrictions imposed by the scheme, in Unni Krishnan case (1993) 1 SCC 645, made it difficult, if not impossible, for the educational institutions to run efficiently. Thus, such restrictions cannot be said to be reasonable restrictions.
36. The private unaided educational institutions impart education, and that cannot be the reason to take away their choice in matters, inter alia, of selection of students and fixation of fees. Affiliation and recognition has to be available to every institution that fulfils the conditions for grant of such affiliation and recognition. The private institutions are right in submitting that it is not open to the Court to insist that statutory authorities should impose the terms of the scheme as a condition for grant of affiliation or recognition; this completely destroys the institutional autonomy and the very objective of establishment of the institution.
37. Unni Krishnan (1993) 1 SCC 645 judgment has created certain problems, and raised thorny issues. In its anxiety to check the commercialisation of education, a scheme of ‘free’ and ‘payment’ seats was evolved on the assumption that the economic capacity of the first 50% of admitted students would be greater than the remaining 50%, whereas the converse has proved to be the reality. In this scheme, the ‘payment seat’ student would not only pay for his own seat, but also finance the cost of a ‘free seat’ classmate. When one considers the Constitution Bench's earlier statement that higher education is not a fundamental right, it seems unreasonable to compel a citizen to pay for the education of another, more so in the unrealistic world of competitive examinations which assess the merit for the purpose of admission solely on the basis of the marks obtained, where the urban students always have an edge over the rural students. In practice, it has been the case of the marginally less merited rural or poor student bearing the burden of a rich and well-exposed urban student.
38. The scheme in Unni Krishnan case (1993) 1 SCC 645 has the effect of nationalising education in respect of important features viz. the right of a private unaided institution to give admission and to fix the fee. By framing this scheme, which has led to the State Governments legislating in conformity with the scheme, the private institutions are indistinguishable from the government institutions; curtailing all the essential features of the right of administration of a private unaided educational institution can neither be called fair nor reasonable. Even in the decision in Unni Krishnan case (1993) 1 SCC 645, it has been observed by Jeevan Reddy, J., as follows:
‘The hard reality that emerges is that private educational institutions are a necessity in the present day context. It is not possible to do without them because the Governments are in no position to meet the demand — particularly in the sector of medical and technical education which call for substantial outlays. While education is one of the most important functions of the Indian State it has no monopoly therein. Private educational institutions—including minority educational institutions—too have a role to play.’
39. That private educational institutions are a necessity becomes evident from the fact that the number of government-maintained professional colleges has more or less remained stationary, while more private institutions have been established. For example, in the State of Karnataka there are 19 medical colleges out of which there are only 4 government-maintained medical colleges. Similarly, out of 14 dental colleges in Karnataka, only one has been established by the Government, while in the same State, out of 51 engineering colleges, only 12 have been established by the Government. The aforesaid figures clearly indicate the important role played by private unaided educational institutions, both minority and non-minority, which cater to the needs of students seeking professional education.
40. Any system of student selection would be unreasonable if it deprives the private unaided institution of the right of rational selection, which it devised for itself, subject to the minimum qualification that may be prescribed and to some system of computing the equivalence between different kinds of qualifications, like a common entrance test. Such a system of selection can involve both written and oral tests for selection, based on principle of fairness.
41. Surrendering the total process of selection to the State is unreasonable, as was sought to be done in Unni Krishnan (1993) 1 SCC 645 scheme. Apart from the decision in St. Stephen's College v. University of Delhi (1992) 1 SCC 558 which recognised and upheld the right of a minority aided institution to have a rational admission procedure of its own, earlier Constitution Bench decisions of this Court have, in effect, upheld such a right of an institution devising a rational manner of selecting and admitting students.”
(emphasis supplied)
From the above observations it is clear that surrendering the total process of selection in private unaided professional institutions to the State is unreasonable and illegal. The private unaided institutions have a right to devise a rational manner of selecting and admitting students.
8. The aforesaid decision of the eleven-Judge Bench of this Court in T.M.A Pai Foundation (2002) 8 SCC 481 was no doubt considered in Islamic Academy case (2003) 6 SCC 697 and Inamdar case (2005) 6 SCC 537, but those latter two decisions were of smaller Benches and hence cannot be deemed to have overruled or laid down anything contrary to the eleven-Judge Bench decision in T.M.A Pai Foundation (2002) 8 SCC 481. It is well-settled that a larger Bench decision prevails over the decision of a smaller Bench.
9. We may now examine some observations in Inamdar case (2005) 6 SCC 537. In para 109 of Inamdar case (2005) 6 SCC 537, it has been observed that “it would be unfair to apply the same rules and regulations regulating admission to both aided and unaided professional institutions”.
(emphasis supplied)
10. It was also observed, following the decision in T.M.A Pai Foundation (2002) 8 SCC 481 that greater autonomy must be granted to private unaided institutions as compared to private aided institutions. The reason for this is obvious. The unaided institutions have to generate their own funds and hence they must be given more autonomy as compared to aided institutions, so that they can generate these funds. However, this does not mean that the private unaided professional institutions have absolute autonomy in the matter. There can validly be a certain degree of State control over the private unaided professional institutions for the reason that recognition has to be granted by the State authorities and it is also the duty of the State to see that high standards of education are maintained in all professional institutions. However, to what degree the State can interfere with respect to private unaided institutions is a matter deserving careful consideration.
11. In para 137 of Inamdar case (2005) 6 SCC 537 it has been observed:
“137. … The admission procedure so adopted by a private institution or group of institutions, if it fails to satisfy all or any of the triple tests, indicated hereinabove, can be taken over by the State substituting its own procedure.”
Thus, it has been held in Inamdar case (2005) 6 SCC 537 that while ordinarily admissions in private unaided professional institutions could be done by those institutions or associations of such unaided professional institutions, the State can interfere if the admission procedure fails to satisfy certain tests. The reason for this is obviously that the State has an interest in maintaining high standards in professional institutions.
12. The question, however, arises as to which is the body which can decide whether the private unaided institutions have failed to satisfy the triple tests, referred to in Inamdar case (2005) 6 SCC 537. In Inamdar case (2005) 6 SCC 537, there is no mention as to which is the body which will decide whether the private institutions have satisfied or not satisfied the triple tests, referred to in para 137 of Inamdar case (2005) 6 SCC 537. Thus, there is a lacuna in Inamdar case (2005) 6 SCC 537.
13. In our view, it cannot be left to the unilateral decision of the State Government to say that the private institutions have failed to meet with the triple tests mentioned in Inamdar case (2005) 6 SCC 537, because that will be giving unbridled, absolute and unchecked power to the State Government. In our prima facie opinion, the M.P Niji Vyavsayik Shikshan Sanstha (Pravesh ka Viniyaman Avam Shulk ka Nirdharan) Adhiniyam, 2007 (for short “the Act of 2007”), appears to hand over the entire selection process to the State Government or the agencies appointed by the State Government for undergraduate, graduate and postgraduate medical/dental colleges and fee fixation. This, in our prima facie opinion, is contrary to, and inconsistent with the observations (quoted above) made by the eleven-Judge Bench decision of this Court in T.M.A Pai case (2002) 8 SCC 481, and hence the 2007 Act would become unconstitutional if it is read literally. We have therefore to read down the 2007 Act and the Rules to make them constitutional. Such reading down of a statute is permissible, since it is well settled that the Court should make all efforts to sustain the validity of a statute, even if that involves reading its language down vide G.P Singh's Principles of Statutory Interpretation, 9th Edn., 2004, pp. 496-503. Thus, while considering the validity of the Hindu Women's Right to Property Act, 1937, the Federal Court construed the word “property” as meaning “property, other than agricultural land”, vide Hindu Women's Rights to Property Act, 1937, In re AIR 1941 FC 72, otherwise the Act would have become unconstitutional.
14. Similarly, in Kedar Nath Singh v. State of Bihar AIR 1962 SC 955 this Court while interpreting Section 124-A IPC read down the words “by words, either spoken or written or by signs or visible representations, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the Government established by law…”. This Court held that to avoid violation of Articles 19(1)(a) and 19(2) of the Constitution, Section 124-A IPC must be limited in its application “to acts involving intention or tendency to create disorder, or disturbance of law and order, or incitement to violence”.
15. In our view, a balance has hence to be struck because while on the one hand, the State Government does have an element of interest in the private unaided professional institutions, this does not mean that there will be no autonomy to the private unaided institutions. After all, the private unaided institutions have to generate their own resources and funds and consequently they must have a larger degree of autonomy as compared to the aided institutions or the State Government institutions. In this situation, we are of the opinion that this Court must use its creativity and find out a workable, balanced, via media to safeguard the interest of both parties, namely, the State Government on the one hand, and private unaided institutions on the other, and also to keep the interest of the students in mind.
16. We, therefore, direct that the admissions in the private unaided medical/dental colleges in the State of Madhya Pradesh will be done by first excluding 15% NRI seats (which can be filled up by the private institutions as per para 131 of Inamdar case (2005) 6 SCC 537), and allotting half of the 85% seats for admission to the undergraduate and post-graduate courses to be filled in by an open competitive examination by the State Government, and the remaining half by the Association of the Private Medical and Dental Colleges. Both the State Government as well as the Association of Private Medical and Dental Colleges will hold their own separate entrance examination for this purpose. As regards “the NRI seats”, they will be filled as provided under the Act and the Rules, in the manner they were done earlier.
17. We make it clear that the aforesaid directions will for the time being only be applicable for this Academic Year i.e 2009-2010. We also make it clear that if there are an odd number of seats then it will be rounded off in favour of the private institutions. For example, if there are 25 seats, 12 will be filled up by the State Government and 13 will be filled up by the Association of Private Medical/Dental Colleges. In specialities in PG courses also half the seats will be filled in by the State Government and half by the Association of Private Medical/Dental Colleges and any fraction will be rounded off in favour of the Association. In other words if in any discipline there are, say, 9 seats, then 5 will be filled in by the Association and the remaining 4 will by the State Government. Capitation fee is prohibited, both to the State Government as well as the private institutions, vide para 140 of Inamdar case (2005) 6 SCC 537. Both the State Government and the Association of Private Medical/Dental Colleges will separately hold single window examinations for the whole State (vide para 136 of Inamdar case (2005) 6 SCC 537).
18. We make it clear that the solution we have arrived at may not be perfect, but we have tried to do our best to find out the best via media. Although this order is only for Academic Year 2009-2010, we recommend that it may also be considered for future sessions.
19. Six weeks' time is allowed for filing counter-affidavit and four weeks thereafter for filing rejoinder.
20. List these appeals for final hearing in September 2009. In the meantime, pleadings may be completed by the parties.