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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 17TH DAY OF APRIL, 2015
PRESENT
THE HON’BLE MR.JUSTICE B.S.PATIL
AND
THE HON’BLE MR.JUSTICE P.S.DINESH KUMAR
W.P.Nos.102850-102851/2015 (EDN-MED-ADM)C/W. W.P.Nos.102852-102853/2015
& W.P.Nos.102916-102917/2015
IN W.P.Nos.102850-102851/2015:
BETWEEN
1. SHRI BASAVESHWAR VIDYA VARDHAK SANGHA,O/A. S.N.MEDICAL COLLEGE,NAVANAGAR, BAGALKOTE – 587 102,REPRESENTED BY ITS CHAIRMAN,MR.VEERANNA C.CHARANTIMATH,S/O.SRI.CHANDRASHEKHARAYYA,AGED ABOUT 55 YEARS.
2. S.NIJALINGAPPA MEDICAL COLLEGE,O/A. NAGAVANAGAR, BAGALKOTE–587 102,REPRESENTED BY ITS CHAIRMAN,MR.VEERANNA C.CHARINTIMATH,S/O.SRI.CHANDRASHEKHARAYYA,AGED ABOUT 55 YEARS.
... PETITIONERS
(BY SRI.M.R. NAIK & SRI.SHASHI KIRAN SHETTY,SENIOR COUNSEL FOR SRI.MAHANTESH R.PATIL
R
: 2 :
& FARAH FATHIMA, ADVOCATES)
AND
THE MEDICAL COUNCIL OF INDIA,POCKET 14, SECTOR 8, DWARKA PHASE 1,NEW DELHI - 110 077,THROUGH ITS SECRETARY
... RESPONDENT
(BY SRI.N.KHETTY, ADVOCATE)
THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASHTHE CIRCULAR DATED 16.01.2015 ISSUED BY THERESPONDENT TO CONDUCT ENTRANCE EXAMINATION FOR NRISTUDENTS FOR ADMISSION IN MBBS COURSE FROMACADEMIC YEAR 2015-16 (ANNEXUER-A) AND ETC.,
IN W.P.NOS.102852-102853/2015
BETWEEN
1. KLE UNIVERSITY,JNMC CAMPUS, NEHRU NAGAR,BELAGAVI-590 010,REPRESENTED BY ITS REGISTRAR,DR.V.D.PATIL S/O DUNDAPPA PATIL,AGED ABOUT 66 YEARS.
2. JAWAHARLAL NEHRU MEDICAL COLLEGE,JNMC CAMPUS, BELAGAVI-590 010,REPRESENTED BY ITS PRINCIPAL,DR. NIRANJANA, W/O: MR.SHAMBULINGAPPAMANTH SETTY, AGE: 57 YEARS.
... PETITIONERS
(BY SRI.M.R. NAIK & SRI.SHASHI KIRAN SHETTY,SENIOR COUNSEL FOR SRI.MAHANTESH R.PATIL& FARAH FATHIMA, ADVOCATES)
: 3 :
AND
THE MEDICAL COUNCIL OF INDIA,POCKET 14, SECTOR 8, DWARKA PHASE I,NEW DELHI - 110 077THROUGH ITS SECRETARY
... RESPONDENT
(BY SRI.N.KHETTY, ADVOCATE)
THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASHTHE CIRCULAR DATED 16.01.2015 ISSUED BY THERESPONDENT TO CONDUCT ENTRANCE EXAMINATION FOR NRISTUDENTS FOR ADMISSION IN MBBS COURSE FROMACADEMIC YEAR 2015-16 (ANNEXUER-A) AND ETC.,
IN W.P.Nos.102916-102917/2015
BETWEEN
1. SHRI DHARMASTHALA MANJUNATHESHWARAEDUCATION SOCIETYREP. BY ITS SECRETARYDR. K. JINENDRA PRASADS/O: MR.B.T.ARIGA JAINAGE 69 YEARS, OCC. SECRETARYSDM EDUCATION SOCIETYR/O SATTUR, TQ & DIST. DHARWAD
2. SDM COLLEGE OF MEDICAL SCIENCESAND HOSPITAL, DHARWAD, REP. BY ITS PRINCIPALDR.J.V.CHOWTI S/O MR.VENKATARAO CHOWTIAGE 68 YEARS, OCC. PRINCIPAL SDMCOLLEGE OF MEDICAL SCIENCES & HOSPITALSATTUR, TQ & DIST. DHARWAD
... PETITIONERS
(BY SRI.M.R. NAIK & SRI.SHASHI KIRAN SHETTY,
: 4 :
SENIOR COUNSEL FOR SRI.MAHANTESH R.PATIL& FARAH FATHIMA, ADVOCATES)
AND
THE MEDICAL COUNCIL OF INDIAPOCKET 14, SECTOR 8DWARKA PHASE 1, NEW DELHI - 110077THROUGH ITS SECRETARY
... RESPONDENT
(BY SRI.N.KHETTY, ADVOCATE)
THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASHTHE CIRCULAR DATED 16.01.2015 ISSUED BY THERESPONDENT TO CONDUCT ENTRANCE EXAMINATION FOR NRISTUDENTS FOR ADMISSION IN MBBS COURSE FROMACADEMIC YEAR 2015-16 (ANNEXURE-A) AND ETC.,
THESE PETITIONS BEING HEARD AND RESERVED FORJUDGMENT, THIS DAY COMING ON FOR PRONOUNCEMENT OFJUDGMENT, P.S.DINESH KUMAR J., MADE THE FOLLOWING:
O R D E R
Common questions of facts and law are involved in all
these writ petitions challenging Circular dated 16.01.2015
issued by the respondent – Medical Council of India (‘the MCI’
for short), directing inter alia that from the Academic Year
2015-16 onwards all admissions in NRI category shall be on
merit determined thorough Common Entrance Test. Hence,
they are heard and disposed of by this common order.
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2. Gravamen of Petitioners’ case is that they are
Private Unaided Medical Colleges; their right to admit
students under NRI and Management quota has been
recognized by the Supreme Court in various authoritative
pronouncements; there is no ambiguity with regard to
admission of student under the NRI Quota in Private Unaided
Medical Colleges; having misconstrued the observations of the
Supreme Court contained in paragraph 131 in the case of
P.A.INAMDAR AND OTHERS VS. STATE OF MAHARASHTRA
AND OTHERS1 the respondent MCI has issued a circular
dated 16.01.2015 in the teeth of the Judgement of Supreme
Court and therefore, it is unsustainable in law and liable to
be quashed.
3. After notice, the MCI has entered appearance and
filed statement of objections contending inter alia that the
Circular in question is issued pursuant to the observations
contained in paragraph 131 of P.A. INAMDAR case, wherein
1 2005(6) SCC 537
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the Apex Court has consciously referred to the aspect of merit
and held that the right of petitioners/Private Unaided Medical
Colleges to admit students under Management and NRI quota
is not completely unfettered and on the other hand it is
expressly stated therein that merit should not be given a
complete go-by thereby meaning that all admissions shall be
in accordance with inter se merit within respective categories;
MCI being the only highest regulatory body for maintenance
of standards of medical education, has rightly issued the
circular in question which is in consonance with the
observations contained in PA INAMDAR’s case. On these
among other grounds, MCI prays for dismissal of Writ
Petitions.
4. We have heard Sri.Shashi Kiran Shetty and
Sri.M.R.Naik learned Senior Counsel appearing for the
petitioners and Sri. N.Khetty, learned counsel appearing for
the respondent.
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5. Sri.Shashi Kiran Shetty, the learned Senior
counsel submits that the circular in question is contrary to
observations of the Supreme Court in the case of
P.A.INAMDAR. He submits that admission of students in the
Medical colleges is done pursuant to entrance test conducted
by COMED-K, Deemed Universities etc., as per the
Consensual Agreement between the State Government and
Private Medical Colleges. He submits that pursuant to
judgment in P.A INAMDAR the State Government enacted
Karnataka Professional educational Institutions (Regulation of
Admission and determination of fee) Act 2006 [Act 8 of 2006]
which has defined non-resident Indians in Section 2(n) of the
said Act and allocation of seats is governed by Section 9(iv) of
the said Act, which mandates that admission to Medical
Course in un-aided professional colleges except seats
reserved for NRI candidates shall be made on the basis of
merit by following procedure of common entrance test. He,
further, submits that subsequently Act 13 of 2006 was
brought in to force keeping Act 8 of 2006 in abeyance and
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admission of seats were being regulated in terms of Sec. 5
thereof where under the Petitioners were entitled to fill up 20
% seats. It is further submitted by him that in terms of
consensual agreement 42% of the seats are allotted to the
Government and in the remaining 58%, 38% seats are
allotted on merit basis through entrance test conducted by
Comed-K and the remaining 20% seats are allotted under NRI
and Management quota (15% under NRI quota and 5% under
Management quota) and the said arrangement continues as
on date.
6. The learned Senior Counsel Sri.M.R.Naik submits
that admission to Private Unaided Medical colleges has been
considered by the Supreme Court in various judgments. He
submits that in UNNI KRISHNAN, J.P. AND OTHERS vs. STATE
OF ANDHRA PRADESH AND OTHERS2, the Apex Court has
recognized right of the Private Medical Colleges to admit NRI
students under discretionary quota. He further submits that
2 (1993) 1 SCC 645
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principles of fair, transparent and non-exploitative mode of
admission of students in Unaided Private Medical Colleges
enunciated by the Apex Court are being strictly adhered to by
the petitioners. The impugned circular is unsustainable in
law as the same is not traceable to any express Regulation in
this behalf. MCI was a party in all the cases before the Apex
Court and whilst the directions contained in paragraph 131 of
P.A. INAMDAR are in force, it was State alone which could
have brought in a legislation and therefore, the impugned
circular runs counter to the said directions and liable to be
quashed.
7. Sri. M.R. Naik next submits that the circular in
question is issued not by the Council after deliberating the
issue in the light of the existing law on the point, but on the
other hand, it has emanated out of proceedings of executive
committee of the MCI in the meeting held on 16.12.2014 and
therefore, the impugned circular cannot be construed as the
one issued by the Council in as much as executive committee
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cannot be equated to that of Council itself. He submits that
the non-resident students and children of non-resident
citizen, who opt for seats in the Private Medical Colleges are
scattered around the globe and would have studied in
different schools and environment and therefore it would be
not only unfair but practically impossible to call upon them to
undergo common entrance test. Choice of the students will be
college specific and if the selection process is to be made in
accordance with the impugned circular, students may not get
the desired college and consequently opt out to pursue their
career in India. Such resultant position would defeat the
entire purpose for which reservation is provided for admitting
students under NRI and Management quota.
8. In sum and substance, it is submitted on behalf of
the petitioners that the Supreme Court has recognized the
right of Private Unaided Colleges and permitted seats under
NRI quota to be filled up by devising their own method of
assessing inter se merit. Thus, Private Unaided Medical
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Colleges have an unfettered right to admit students under
NRI and Management quota and the same has been
recognized by the State Government in the statutory
consensual agreement; the colleges have been following
transparent method to allot seats on merit, which is manifest
by the fact that there are no grievances by any NRI student or
their parents and even if there should be one, such rare
incidents are justiceable before a Court of Law. The learned
counsel for the petitioners submit that the impugned
notification is therefore patently illegal and runs counter to
various judgment of the Supreme Court and pray that the
same may be quashed.
9. Per contra, the learned counsel Shri N.Khetty
appearing for the MCI, while adverting to the pleadings
contained in the writ petition itself points out that in the case
of T.M.A. PAI FOUNDATION AND OTHERS (I) vs. STATE OF
KARNATAKA AND OTHERS3 and other judgments referred to
3 (1993) 4 SCC 276
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by the petitioners, the Supreme Court has stressed the need
for merit and unequivocally held that merit must play an
important role and meritorious candidates are not unfairly
treated or put at a disadvantage by preferring less meritorious
but more influential applicants. He adopts the contents of the
judgments of the Apex Court as his submissions to contend
that excellence in professional education would require
greater emphasis on the merit of students seeking admission
even in cases where discretion to grant admission is left with
educational institutions. The admission if any made by the
unaided Private Medical Colleges must not be whimsical or for
extraneous reasons. He vehemently contends that at every
stage, wherever and whenever the Private Management
Institutions are given a discretion to admit students, such
permission is always supplemented with a note of caution
against a possible lapse in maintaining merit. He submits
that at any rate, the judgments of Supreme Court cannot be
construed to mean that Unaided Private Medical Colleges
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have unfettered right to admit students of their choice
without reference to merit.
10. He submits that foundation for the circular in
question is drawn from the judgment of the Supreme Court in
the case of P.A.INAMDAR as is manifest from a portion of
judgment finding its place in the preamble of the circular. In
furtherance of the said judgment, the MCI has rightly brought
in the circular in question which does not in any way affect
either the Unaided Private Medical Colleges or NRI students
desirous of studying India. By the circular in question, MCI
has sought to bring in higher degree of transparency which
would result in most meritorious among the applicants to get
admission. He submits that the circular is in consonance
with the intent and purport of MCI Act and in furtherance of
it’s solemn duties under the Act. At any rate primacy in merit
will ensure that students having higher qualification are not
deprived of an opportunity of studying due to arbitrary
allotment of seats by the Private Medical Colleges for
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extraneous reasons. In sum and substance, he contends that
the circular in question directing the admission under NRI
quota through a Common Entrance Test on All India basis or
State wide basis cannot be termed as unreasonable by any
stretch of imagination in as much as the same is issued in
pursuance of directions contained in paragraph No: 131 of
P.A. INAMDAR’s case and prays for dismissal of the writ
petitions.
11. We have considered the submissions made at the
bar on behalf of the petitioners as well as the MCI and
perused the material on record. In the premise, following
questions fall for our consideration.
(1) What is the historical background for recognizing
admissions under NRI quota as discernible from the
various pronouncements of the Apex Court? Whether
Apex Court has directly or indirectly suggested a
CET in the past for filling up the seats under NRI
quota?
(2) In the light of the State legislation enacting a law as
per Act No.8/2006, particularly Section 9(4) wherein
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admission to NRI has been excluded while providing
for conducting CET or Centralized Counseling for
admissions to medical colleges, does the impugned
Circular come in the way of implementation of the
State legislation, particularly because under Act
No.13/2006 consensual agreement conceived
between the State and the Association of Private
Medical Colleges and the implementation of
consensual agreement is provided for under Section
5 of the said Act and also in view of the fact that
consensual agreement periodically reached had been
placed before the Apex Court and approval of the
Apex Court has been secured ?
(3) What is the effect of the observations made by the
Apex Court in para 131 of P.A.Inamdar’s case –
(2005) 6 SCC 537? Whether it can be construed that
the Apex Court has left it to the discretion of the MCI
to regulate admissions to NRI category by
prescribing CET and Centralized Counseling?
(4) What is the effect of the ratio laid down in Christian
Medical College case (2014) 2 SCC 305?
(5) Whether the Circular issued by MCI based on the
deliberations/report of the Executive Committee of
the Council in its meeting held on 16.12.2014
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prescribing CET to fill up seats in NRI category can
be said to be in exercise of the power and authority
conferred as per the MCI Act, particularly Sections
19A and 33, or for that matter can it be traceable to
Regulation 5(2) of Graduate Medical Education
Regulations, 1997? What is the scope, purport and
effect of Regulation 5(1) & 5(2) of Graduate Medical
Education Regulations, 1997?
(6) Whether the principles embodied under Regulation
5(2) of the Graduate Medical Education Regulations,
1997 can be imported for NRI candidates in the face
of the tenor of the provision? Whether the Circular
has impinged upon the rights recognized in the
medical colleges through their associations to have
their own method of selection of NRI students
exercising their discretion as long as it has not found
to be and shown to be whimsical and arbitrary.
Particularly because admissions to medical colleges,
to deemed universities, private college associations,
COMED-K, Association of Minority Institutions and in
some cases individual institutions like St. John’s
Medical College and CMC Vellore have been
permitted by having their own CET for assessing the
inter se merit of students other than NRI category
students. In the wake of this, whether a State-wide
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CET for NRI students can be introduced by virtue of
the impugned Circular?
Re: Point No.: 1 to 4
12. At the outset, it is to be noticed that the MCI in
the impugned circular has extracted a portion of paragraph
131 of P.A. INAMDAR’s case which deals with the NRI seats.
In order to appreciate the purport of any judgment, it is
necessary to read the judgment in it’s entirety or in the least,
the whole portion which deals with a particular issue. We
therefore feel it appropriate to extract the entire paragraph,
which deals with the NRI seats. It reads as under:
“NRI Seats
131* Here itself we are inclined to deal with
the question as to seats allocated for Non-Resident
Indians (‘NRI’, for short) or NRI seats. It is common
knowledge that some of the institutions grant
admissions to certain number of students under
such quota by charging a higher amount of fee. In
fact, the term ‘NRI’ in relation to admissions is a
misnomer. By and large, we have noticed in cases
after cases coming to this Court, neither the
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students who get admissions under this category
nor their parents are NRIs. In effect and reality,
under this category, less meritorious students, but
who can afford to bring more money, get admission.
During the course of hearing, it was pointed out
that a limited number of such seats should be made
available as the money brought by such students
admitted against NRI quota enables the educational
institutions to strengthen its level of education and
also to enlarge its educational activities. It was
also pointed out that people of Indian origin, who
have migrated to other countries, have a desire to
bring back their children to their own country as
they not only get education but also get reunited
with Indian cultural ethos by virtue of being here.
They also wish the money which they would be
spending elsewhere on education of their children
should rather reach their own motherland. A limited
reservation of such seats, not exceeding 15%, in our
opinion, may be made available to NRIs depending
on the discretion of the management subject to two
conditions. First, such seats should be utilized
bona fide by the NRIs only and for their children or
wards. Secondly, within this quota, the merit
should not be given a complete go-by. The amount
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of money, in whatever form collected from such
NRIs, should be utilized for benefiting students
such as from economically weaker sections of the
society, whom, on well defined criteria, the
educational institution may admit on subsidized
payment of their fee. To prevent misutilisation of
such quota or any malpractice referable to NRI
quota seats, suitable legislation or regulation needs
to be framed. So long as the State does not do it, it
will be for the Committees constituted pursuant to
Islamic Academy’s direction to regulate.
(underlining is by us)
13. Though, seats under NRI quota is dealt in
paragraph 132 also, the same is not necessary in the present
context in as much as it deals with the seats in minority
institutions. A careful perusal of the entire paragraph leads to
an irresistible inference that the Supreme Court while dealing
with the issue of NRI seats has recognized the right of
management of Private Unaided Medical Colleges to fill up
15% seats in their discretion subject to two conditions. First
being that the said seats must be utilized bona fide by the
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NRIs only and for their children or wards and second being
that within this quota merit should not be given a complete
go-by. The Apex Court has also enunciated the reasons for
such concessions in the subsequent sentences and those
reasons being that the funds so collected from the NRI
candidates to enure to the benefit of students from
economically weaker sections. In order to prevent any mis-
utilization of NRI quota, the Apex Court has directed that
there is need for a legislation on the issue and so long as the
States do not bring in legislation, it will be for the Committees
constituted pursuant to the directions contained in the case
of ISALMIC ACADEMY OF EDUCATION AND ANOTHER vs.
STATE OF KARNATAKA AND OTHERS4 to regulate
admissions. Thus, what emerges from a reading of the entire
paragraph No: 131 is that a limited number of seats not
exceeding 15% are made available to NRI students without
merit being given a complete go-by. It was expected of States
to bring necessary legislation in this behalf and in the
4 (2003) 6 SCC 697
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absence of legislation committee referred to in Islamic
Academy case would be regulating admissions. Therefore, in
our considered view, if at all any regulatory mechanism to
over see the admission under NRI quota in the Private
Unaided Medical Colleges was to be brought in, it was for the
State to enact a suitable legislation. It is necessary to note
here that pursuant to the directions contained in P.A.
INAMDAR, State has brought in a legislation namely The
Karnataka Professional Educational Institutions (Regulations
of Admissions And determination of fee) Act 2006 (Act 8 of
2006). In terms of Sec 9(iv) of the said Act which deals with
allocation and reservation of seats, admissions to all seats in
Private Unaided Educational Institutions excluding seats
which may be filled by NRI candidates is required to be made
on the basis of merit by following common entrance test.
Thus, even in this legislation, a specific exception is carved
out in that, seats to be filled by NRI candidates have been
kept out of the purview of the common entrance test. The Act
8/2006 was kept in abeyance by enacting Karnataka
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Professional Educational Institutions (Regulation of
Admission and determination of fee) Act 2006 (Special
Provisions) Act 2006 [Act 13 of 2006] and as per Sec. 5
thereof Petitioners were entitled to fill up 20 % seats. The said
arrangement continues to be in force with the enactment of
Act 23/2011.
14. While we set out to examine historic background
of allotment of seats in professional colleges, we commence
our task with the judgement of the Apex Court in the case of
UNNIKRISHNAN J.P. AND OTHERS, wherein Karnataka
Education Institutions (Prohibition of Capitation Fee) Act
1984 was challenged in a Writ Petition under Article 32 of the
Constitution. It was held therein that the said Act was
Constitutional and a scheme was evolved in the nature of
guidelines for professional colleges with a direction to the
State Governments and recognizing and affiliating authorities
to impose restrictions to collect fees in addition to such other
conditions for grant of permission.
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15. The above scheme was modified by a
Constitutional Bench of the Apex court in the case of T.M.A.
PAI FOUNDAITON AND OTHERS (II) Vs. STATE OF
KARNATKA AND OTHERS5. By a Judgement in the same
case reported in (1993) 4 SCC 286, the Constitution Bench
having noticed that certain questions such as meaning and
content of expression “minorities” in Article 30 of the
Constitution and other questions having surfaced for
consideration referred the matter to a larger bench and in the
judgement reported in (1993) 4 SCC 788 certain further
directions were issued. Subsequently a Constitution Bench of
the Supreme Court consisting of 11 Judges in (2002) 8 SCC
481 while answering the question with regard to rights of
minority institutions to establish and administer education
institutions at page 588 has held thus:
A. A minority institution may have it’s own
procedure and method of admission as well as
selection of students, but such procedure must be
5 (1993) 4 SCC 286
: 24 :
fair and transparent, and selection of students in
professional and higher education colleges should
be on the basis of merit. The procedure adopted or
selection made should not be tantamount to
maladministration. Even an unaided minority
institution ought not to ignore the merit of the
students for admission, while exercising it’s right to
admit students to the colleges aforesaid, as in that
event, the institution will fail to achieve excellence.
16. In the case of P.A. INAMDAR after considering
various earlier judgments, vis-à-vis the NRI seats, the Apex
court issued directions as contained in paragraph No.131
extracted supra.
17. In MODERN DENTAL COLLEGE AND RESEARCH
CENTRE AND OTHERS vs. STATE OF MADHYA PRADESH
AND OTHERS6 the Apex Court has while dealing with the
fundamental rights of the private unaided medical/dental
colleges to establish educational institutions and the
reasonable restrictions that can be placed under Article 19 (6)
6 (2009) 7 SCC 751
: 25 :
of the Constitution of India on the said rights, has after
referring to the previous judgments including that of
T.M.A.PAI FOUNDATION AND OTHERS vs. STATE OF
KARNATAKA AND OTHERS7 and P.A.INAMDAR observed as
under in paragraphs 29 to 31.
“29. 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 Governments
institutions.
30. 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 State Government
on the one hand, and private unaided institutions
7 (2002) 8 SCC 481
: 26 :
on the other, and also to keep the interest of the
students in mind.
31. 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% N.R.I. seats (which can be filled up
by the private institutions as per para 131 of
Inamdar’s case), and allotting half of the 85% seats
for admission to the under-graduate 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 Rules, in the
manner they were done earlier.
18. We have to also notice here the observations made
by the Apex Court in the judgment rendered on 01.04.2003 in
STATE OF KARNATAKA vs. DR T.M.A. PAI FOUNDATION
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AND OTHERS8. In paragraph 3, the Apex Court has stated
that all statutory enactments, orders, schemes, regulations
will have to be brought in conformity with the decision of the
Constitution Bench in TMA PAI FOUNDATION decided on
31.10.2002. This being the position, the MCI was not justified
in issuing the Circular to introduce a compulsory entrance
test for NRI students for various medical colleges that too on
the basis of a decision taken by the Executive Committee of
the Council.
19. Further in the case of CHRISTIAN MEDICAL
COLLEGE, VELLORE AND OTHERS vs. UNION OF INDIA
AND OTHERS9, Supreme Court while dealing with the matter
of power of MCI to conduct common entrance test for post
graduate medical courses has held as follows.
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
8 (2003) 6 SCC 790
9 (2014) 2 SCC 305
: 28 :
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.
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.
157. What can ultimately be culled out from the various
observations made in the decisions on this issue,
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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.
20. Thus, it is clear that the issue with regard to
admission of students in Unaided Private Medical Colleges
having been considered by the Apex Court on more than one
occasion, their right to admit NRI students by evolving their
own method of assessing the inter se merit among the
applicants has been recognized pending any legislation on the
point to be brought in by the State.
Re: Point No: 5 and 6
21. Admittedly, the circular in question is issued on
16.01.2015 based on the recommendation of the Executive
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Committee. Respondent MCI has been a party before the
Supreme Court in all cases concerning admission of students
in the Medical Colleges and particularly in the case of P.A.
INAMDAR and CHRISTIAN MEDICAL COLLEGE, VELLORE
and is bound by the directions contained in the said
judgements. As observed supra, only a portion of paragraph
131 in the judgement of P.A. INAMDAR has been extracted in
the impugned circular by the MCI to draw support to their
stand. The underlining principle and reasons for recognizing
the right of Private unaided Medical Colleges to admit a
percentage of students under NRI and management quotas
has been explained in the sentences following the extracted
portion. Respondent MCI has omitted to refer to the reasons
portion. Further, while writing the epilogue of the judgement,
the Apex Court has reiterated its concerns and issued
following directions.
155. It is for the Central Government, or for the
State Governments, in the absence of a Central
legislation, to come out with a detailed well thought
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out legislation on the subject. Such a legislation is
long awaited. States must act towards this
direction. Judicial wing of the State is called upon
to act when the other two wings, the Legislature
and the Executive, do not act. Earlier the Union of
India and the State Governments act, the better it
would be. The Committees regulating admission
procedure and fee structure shall continue to exist,
but only as a temporary measure and an inevitable
passing phase until the Central Government or the
State Governments are able to devise a suitable
mechanism and appoint competent authority in
consonance with the observations made
hereinabove. Needless to say, any decision taken
by such Committees and by the Central or the State
Governments, shall be open to judicial review in
accordance with the settled parameters for the
exercise of such jurisdiction.
22. It is no doubt true that MCI is the highest body in
the country to over see the quality of medical education.
Admittedly, MCI was party before the Supreme Court in the
case of P.A. Inamdar which was decided on 12.08.2005.
Subsequently, several judgments have been pronounced by
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the Apex Court touching the aspect of admission of students
by Private medical Colleges. It is nearly ten years since the
judgment in P.A.Inamdar’s case has been pronounced.
Regulation 5(ii) of Graduate Medical education Regulations,
1997 came into force with the publication in the Gazette
dated 17.05.1997. These Regulations after amendment were
notified vide Notification No. MCI-31(1)/2010-MED/49068
described as "Regulations on Graduate Medical Education
(Amendment) 2010, which were subject matter in the case of
CHRISTIAN MEDICAL COLLEGE, VELLORE The judgment of
the Apex Court in P.A. INAMDAR is of the year 2005. The
foundation for the impugned circular is a portion of para 131
of P.A.Inamdar’s case. The words used in P.A. Inamdar are
very specific and they are “legislation” or “regulation”. As per
the pronouncements of the Apex Court, it was either for the
Central Government or the State Government to bring in
legislations if any to regulate admissions. The impugned
circular in our considered opinion is contrary to the
pronouncements of the Apex Court and runs counter to the
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tenor of the directions contained therein and therefore
unsustainable.
23. It is also necessary to notice here that the
Graduate Medical Education Regulations, 1997, particularly
Regulation 5 cannot be made applicable to introduce CET for
NRI category students. These regulations cannot be read
dehors the observations made in paragraph 131 of the
judgment of the Apex Court in P.A.Inamdar’s case. It is also
necessary to point out here that provisions contained in
Section 19A of the IMC Act, 1956, provide for prescription of
minimum standards of medical education and the method
and manner of providing such regulations. The Executive
Committee of the Council cannot proceed to amend or
interpret the regulations by issuing the impugned Circular
without following the prescribed procedure under Section 19A
of the IMC Act. Section 19A provides that the Council may
prescribe the minimum standards for medical education by
Universities or Medical Institutions. Copies of the draft
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regulations shall be furnished by the Council to all State
Governments and the Council is enjoined with the duty to
take into consideration the comments of State Government.
Section 33 which deals with the power of the Council to make
regulations makes it clear that prior sanction of the Central
Government has to be obtained for making regulations in
respect of matters provided for under the said Section.
Without following any such procedure, by issuing a Circular,
the MCI has sought to introduce entrance test for NRI
category students as per the report of the Executive
Committee of the Council, which is apparently contrary to the
nature of the power invested with the Committee and the
procedure prescribed under the IMC Act, 1956.
24. The next question that falls for consideration is
whether there is any arbitrariness in not subjecting the NRI
students to a common entrance test and leave it to the
discretion of the private medical colleges. In our considered
view, this issue is no more res integra. With the exodus of
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students aspiring for joining medical courses and in the
absence of commensurate number of medical colleges in the
country, the private medical colleges came into existence.
With the number of private colleges increasing, the State
Government brought in legislation, to prohibit capitation fee.
The private medical colleges having agitated the issue up to
the Supreme Court, the right of the private medical colleges to
fill up small percentage of seats by the NRI students is now
fairly well settled. Freedom to run the private education
institutions and their right to conduct examination for
admitting students is also recognized. We hasten to add that
the recognition of this right has been made subject to future
‘legislation’ or ‘regulation’ by the State. The State of
Karnataka has enacted a legislation and provision has been
made for consensual agreement between the colleges of the
State.
25. In the circumstances, we are of the considered
view that the impugned circular issued by the MCI is not