Judgement Summary

Christian Medical College Vellore Association v Union of India

Coram – Arun Mishra (Authored), Vineet Saran, and MR Shah JJ.

Issue

  1. validity of the amendment made to Section 10D of the Indian Medical Council Act of 1956, regulations thereunder, and similar provisions inserted in the Dentists Act & Regulations. 
  2. These amendments impinged upon the rights of private minority institutions, as NEET was imposed upon them.
  3. MCI and DCI could not have introduced NEET as the same offends the fundamental rights guaranteed under Article19(1)(g) of the Constitution of India and the rights of religious and linguistic minorities to establish and administer educational institutions of their choice as guaranteed under Article 30 Constitution of India.
  4. subordinate legislation could not have overriding effect over the fundamental rights guaranteed under Articles 25, 26, 29(1), and 30 of the Constitution of India.
  5. amendment made could not take away or abridge the aforesaid rights of minorities. The right to admit students is one of the fundamental rights, thus, rider of clearing NEET examination could not have been imposed.

Acts/ Provisions/ Rules – Medical Council of India (MCI) -> Regulations on Graduate Medical Education (Amendment) 2010, Post-graduate Medical Education (Amendment) Regulation, 2010, Dental Council of India

MCI issued notifications in u/s 33 of Indian Medical Council Act, 1956 -> amendments made in -> Regulations on Graduate Medical Education, 1997.

Judgment – National Eligibility-cum-Entrance Test (NEET) will apply to private unaided/ aided minority professional institutes for admission into MBBS, MD, BDS and MDS courses.

“Resultantly, we hold that there is no violation of the rights of the unaided/aided minority to administer institutions under Articles 19(1) (g) and 30 read with Articles 25, 26 and 29(1) of the Constitution of India by prescribing the uniform examination of NEET for admissions in the graduate and postgraduate professional courses of medical as well as dental science. The provisions of the Act and regulation cannot be said to be ultra vires or taking away the rights guaranteed under the Constitution of India under Article 30(1) read with Articles 19(1)(g), 14, 25, 26 and 29(1).”

“The rights under Article 19(1)(g) are not absolute and are subject to reasonable restriction in the interest of the student’s community to promote merit, recognition of excellence, and to curb the malpractices.”

“Balancing the rights is constitutional intendment in the national and more enormous public interest. Regulatory measures cannot be said to be exceeding the concept of limited governance. The regulatory measures in question are for the improvement of the public health and is a step forward.”

“The rights to administer an institution under Article 30 of the Constitution are not above the law and other Constitutional provisions. Reasonable regulatory measures can be provided without violating such rights available under Article 30 of the Constitution to administer an institution.”

It thus held that the rights available under Article 30 are not violated by provisions carved out in Section 10D of the MCI Act and the Dentists Act and Regulations.

In Modern Dental College and Research Centre (supra), the Court considered decision in T.M.A. Pai Foundation (supra), and observed that Government is permitted to frame regulations for unaided private professional educational institutions.

The prescription of NEET is definitely in order to improve the medical education, co­related to the improvement of public health, thus, it is a step­ in furtherance of the duty of the State enshrined in the Directive Principles of the State Policy contained in Article 47 of the Constitution of India. Similarly, Article 46 aims at promotion of educational and economic interests of Scheduled Castes, Scheduled Tribes, and other weaker sections. By prescription of one equivalence examination of NEET, the interest of their merit is also equally protected and its aims of preventing various malpractices, which crept into system and prevent economic exploitation by selling seats with which malady the professional medical education system suffered. Article 51A(j) deals with the duty to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement. For that purpose, recognition of merit is necessary, and one has to be given a full opportunity in pursuit of his/her aim. The prescription of NEET is to provide equal opportunity and level launching platform to an individual to perform his duty as enshrined under Article 51A(j). Thus, we find that there is no violation of the aforesaid provisions as argued by appellants, rather action is in furtherance of the constitutional aims and directions to achieve intendment of Article 51A(j) and is in the national interest.

Detailed Judgment –

The government can impose reasonable restrictions in the public interest and hence they are not violative of the A30 read with A25 and A26. The doctrine of limited government has no application here. If triple test is satisfied by the institution – fair, transparent and non-exploitative there will be limited government concept.

Re The Kerala Education Bill, 1957, AIR 1958

it was considered and observed that the minorities cannot establish educational institution only for the benefit of their community. Every educational institution, irrespective of community to which it belongs, is a ‘melting pot’ in our national life and that there should be mixing up of students of different communities in all educational institutions. The intake for the community cannot exceed 50% of the annual admission, which is to be provided to other than the minority community. The admission should be made purely on the basis of merit.

The Court opined that minority cannot ask for the aid or recognition for an educational institution without competent teachers and fair standards. The choice does not necessarily militate against the claim of the State to insist on reasonable regulations to ensure the excellence of the institutions to be aided or even recognized. There is, on the one hand the minority rights under Art. 30(1) to establish and administer educational institutions of their choice and the duty of the Government to promote education, there is, on the other side the obligation of the State under Art. 45 to endeavour to introduce free and compulsory education. We have to reconcile between these two conflicting interests and to give effect to both if that is possible and bring about a synthesis between the two.

The right to administer cannot include the right to maladminister. The minority cannot ask for recognition for an educational institution run by them in unhealthy surroundings, without competing teachers.

Prescribing qualifications to be possessed by the incumbents for appointment as teachers in aided or recognised schools – not violative of A30(1)

Rev. Sidhajbhai Sabhai and Ors. v. State of Bombay and Anr., (1963) –

The Gujarat Government direction to the minority run college to reserve 80 per cent of seats for government selected candidates with a threat to withdraw the grant­ in ­aid and recognition was struck down as infringing the fundamental right guaranteed to minorities under Article 30(1) of the Constitution

Regulation made in the real interests of efficiency of instruction, discipline, health, sanitation, morality, public order, and the like may undoubtedly be imposed. Such regulations are not restrictive on the substance of the right, which is guaranteed, they secure the proper functioning of the institution in the matter of education.

Regulation must satisfy a dual test ­the test of reasonableness and that it is regulative of the educational character of the institution and is conducive to making the institution a capable vehicle of education for the minority community or other persons who resort to it.

Rev. Father W. Proost and Ors. v. State of Bihar and Ors., AIR 1969

The width of Article 30(1) cannot be cut down by introducing in it considerations on which Article 29(1) is based. The latter article is a general protection which is given to minorities to conserve their language, script, or culture. The former is a special right to minorities to establish educational institutions of their choice. This choice is not limited to institution seeking to conserve language, script, or culture, and the choice is not taken away if the minority community having established an educational institution of its choice also admits members of other communities.

Ahmedabad St. Xavier’s College Society and Anr. v. State of Gujarat and Anr., (1974)

A Bench of 9­ Judges of this Court considered the question whether Sections 40 and 41 of the Gujarat University Act, 1949 violated Section 30, which provided all colleges within the University area would be governed by the statutes of the University which may provide for minimum educational qualifications for teachers and tutorial staff.

Right to constitute a governing body.

The Court opined that regulation which serves the interests of the teachers are of paramount importance in good administration, education should be a great cohesive force in developing integrity of the nation

The right to administer is said to consist of four principal matters. First is the right to choose its managing or governing body. It is said that the founders of the minority institution have faith and confidence in their own committee or body consisting of persons elected by them. Second is the right to choose its teachers. It is said that minority institutions want teachers to have compatibility with the ideals, aims, and aspirations of the institution.

Third is the right not to be compelled to refuse admission to students. In other words, the minority institutions want to have the right to admit students of their choice subject to reasonable regulations about academic qualifications. Fourth is the right to use its properties and assets for the benefit of its own institution.

In the field of administration it is not reasonable to claim that minority institutions will have complete autonomy. Checks on the administration may be necessary in order to ensure that the administration is efficient and sound and will serve the academic needs of the institution.

The State can prescribe regulations to ensure the excellence of the institution. Prescription of standards for educational institutions does not militate against the right of the minority to administer the institutions. Regulations made in the true interests of efficiency of instruction, discipline, health, sanitation, morality, public order, and the like may undoubtedly be imposed. Such regulations are not restrictions on the substance of the right, which is guaranteed: they secure the proper functioning of the institution, in matters of education.

The minority institutions cannot be allowed to fall below the standards of excellence expected of educational institutions, or under the guise of exclusive right of management, to decline to follow the general pattern. While the management must be left to them, they may be compelled to keep in step with others.

If a request is made for the affiliation or recognition of an educational institution, it is implicit in the request that the educational institution would abide by the regulations which are made by the authority granting affiliation or recognition. The said authority can always prescribe regulations and insist that they should be complied with before it would grant affiliation or recognition to an educational institution.

Balance has, therefore, to be kept between the two objectives, that of ensuring the standard of excellence of the institution and that of preserving the right of the minorities to establish and administer their educational institutions.

The Gandhi Faiz­e­am College, Shahjahanpur v. University of Agra and Anr., (1975)

Regulation which restricts is bad, but regulation which facilitates is good. No rigid formula is possible, but a flexible test is feasible.

Bihar State Madarasa Education Board, Patna v. Madarasa Hanfia Arabic College, Jamalia and others, (1990)

Court held that minorities have the right to establish and administer educational institution of their own choice. Still, they have no right to maladminister, and the State has the power to regulate the management and administration of such institutions in the interest of educational need and discipline of the institution.

St. Stephen’s College v. University of Delhi, (1992)

Concerning admission process adopted by aided minority institutions. It was contended that St. Stephen’s College after being affiliated to the Delhi University has lost its minority character.

The minority institution has a distinct identity and the right to administer with continuance of such identity cannot be denied by coercive action. Any such coercive action would be void being contrary to the constitutional guarantee. The right to administer is the right to conduct and manage the affairs of the institution. This right is exercised by a body of persons in whom the founders have faith and confidence. Such a management body of the institution cannot be displaced or reorganised if the right is to be recognised and maintained. Reasonable regulations however, are permissible but regulations should be of regulatory nature and not of abridgment of the right guaranteed under Article 30(1).

The right to select students for admission is a part of administration. This power also could be regulated but the regulation must be reasonable just like any other regulation.

State of Bombay v. Bombay Education Society, (1955)

The Bombay Government order which prevented the schools using English as the medium of instruction from admitting students who have a mother tongue other than English was held to be invalid since it restricted the admission pattern of the schools

Modern Dental College and Research Centre, 2016

Admission should be made through a centralised procedure to be conducted by the state government. Central counselling is an adjunct and part of the uniform CET. Constitution Bench of this Court considered the provisions of Articles 19(1)(g), 19(6), 26 and 30 in relation to the right to freedom of occupation of private unaided minority and non­minority educational institutions. This Court observed that the activity of education is neither trade nor profession, i.e., commercialisation and profiteering cannot be permitted. It is open to impose reasonable restrictions in the interest of general public. The education cannot be allowed to be a purely economic activity; it is a welfare activity aimed at achieving more egalitarian and prosperous society to bring out social transformation and upliftment of the nation.

Court further opined that private unaided minority and non­minority institutions have a right to occupation under Article 19(1), the said right is not absolute and subject to reasonable restriction in larger public interest of students community to promote merit, achieve excellence and curb malpractices by holding common entrance test for admission and fee structure can undoubtedly be regulated in such institutions.

The Court also noted the menace of the fee prevailing in the various educational professional institutions and in the context of Articles 19(1)(g), 19(6), 30, 41 and 47, and considering the Schedule VII, Entry 25 of List III and Entry 63, ­66 of List I, this Court held that concerning “professional unaided minority” and “non­minority institutions”, common entrance test has to be conducted by the State and regulation of the fee structure by it is permissible.

In Unni Krishnan case, (1993), Court also rejected the argument that the said activity could be classified as a “profession”. However, the right of professional institutions to establish and manage educational institutions was finally regarded as an “occupation” befitting the recognition of this right as a fundamental right under Article 19(1)(g) in T.M.A. Pai Foundation, (2002). “Occupation” would be an activity of a person undertaken as a means of livelihood or a mission in life. The above quoted observations in Sodan Singh case, (1989), correctly interpret the expression “occupation” in Article 19(1)(g).”

Dar- us- Salam Educational Trust v MCI, 2017

common counselling did not in any manner affect the right of minority institutions to admit students of their minority community.

Yatinkumar Jasubhai Patel and Ors. v. State of Gujarat and Ors., (2019)

in which the Court considered the question of institutional preference/reservation after introduction of NEET, and observed that introduction of NEET did not affect 50% State quota seats in PG medicine course. It may be filled based on institutional reservation.

Sk. Md. Rafique v. Managing Committee, Contai Rahamania High Madrasah and Ors., 2020

Analysed St. Stephen’s Collegecase (5J). The choice of institution provided in Article 30(1) does not mean that the minorities could establish educational institution for the benefit of their own community people. The State may regulate the intake in this category with due regard to the need of the community in the area which the institution is intended to serve. But in no case such intake shall exceed 50 per cent of the annual admission. The minority institutions shall make available at least 50 per cent of the annual admission to members of communities other than the minority. community. The admission of other community candidates shall be done purely on the basis of merit.” So long as the basic right of minorities to manage educational institution is not taken away, the State is competent to make regulatory legislation. Regulations, however, shall not have the effect of depriving the right of minorities to educate their children in their own institution. That is a privilege which is implied in the right conferred by Article 30(1).

T.M.A. Pai Foundation and Ors. v. State of Karnataka and Ors., (2002) (11 J)

Stephan’s – Minority right to admission, the freedom of admission includes right to administer. Unni Krishnan – scheme, sc not said whether scheme applicable to minority or not. BECAUSE OF THIS CONFLICT TMA PAI CAME.

5J – 7J – 9 J – 11J so the TMA Pai

Bench was prima facie of the opinion that Article 30 did not clothe a minority educational institution with the power to adopt its own method of selection and the correctness of the decision of this Court in St. Stephen’s College v. University of Delhi, (1992), was doubted, it was directed that the questions that arose should be authoritatively answered by a larger Bench.

The scheme in Unni Krishnan case, (1993) has the effect of nationalizing 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. Unni Krishnan Scheme – 100 seats, SC 50% free seats, 50% payment seats. No completely free. 50% free seats means same as charged by any other government institution. 50% payment seats marginally high but not exorbitantly high but regulated by the state. Right to establish educational institutions for scientific and secular is not guaranteed under constitution, till the time of T M A Pai case. Till the time of TMA Pai, only right to establish education for minorities was recognised. Three reasons for scheme overruling – 1. Revenue shortfall in private educational institutions 2. Autonomy of the institution 3. It resulted in cross subsidy.

SC accepted the right of a citizen to establish education institution u/a 19 (1)(g) in TMA Pai.

SC says right to establish education comes under right to occupation and not under right to profession.

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.

In view of this decision in Unni Krishnan case, (1993) insofar as it framed the scheme relating to the grant of admission and the fixing of the fee, was not correct, and to that extent, the said decision and the consequent directions given to UGC, AICTE, the Medical Council of India, the Central and State Governments etc. are overruled.

The right to establish and administer broadly comprises the following rights (Right to administer A30 – umbrella of five rights):

(a) to admit students;
(b) to set up a reasonable fee structure;
(c) to constitute a governing body; -> St Xaviers case -> (Minority Institutions – Power was giving to VC to incorporate nominees in the governing body of the colleges) -> A N Ray struck down this provision being unconstitutional. Power to administer does not mean power to mal-administer – (first said in Re Kerala Education Bill). Calm waters of the institution is not only mixed but polluted -> A N Ray.
(d) to appoint staff (teaching and non­teaching); and

(e) to take action if there is dereliction of duty on the part of any employees.

Schools – UG – minority institutions have autonomy while admitting students to their institutions, merit based admission not required

UG – upwards – education should be based on merit

Minority institutions – Government aided (limited autonomy, more restrictions, as more funds by the government) and unaided government institutions (more autonomy, less restrictions)

The secretary Malankara Syrion Catholic society v. T. Jose – Kerala govt makes a law, that law is applicable only to aided minority institutions. S57 of that law.

Issue – Selection of principal of aided minority institutions

Regulation – state says who will be the next principal will be decided on seniority. Justified the law based on T M A Pai, there is a difference in regulation applicable to aided and unaided minority institutions. SC said right to select principal on the basis of seniority is not compatible with A30(1). The right to select the staff is with minority institution having qualification irrespective of the seniority, merit etc.

It would be unfair to apply the same rules and regulations regulating admission to both aided and unaided professional institutions. It must be borne in mind that unaided professional institutions are entitled to autonomy in their administration while, at the same time, they do not forego or discard the principle of merit. It would, therefore, 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.

The merit may be determined either through a common entrance test conducted by the university or the Government followed by counselling, or on the basis of an entrance test conducted by individual institutions — the method to be followed is for the university or the Government to decide.

The right of the private training colleges to admit students of their choice was severely restricted in Kerala Education Bill, 1957 case. Did not lay down any test of reasonableness of the regulation. Sidhajbhai Sabhai case, the opinion re Kerala Education Bill was not an authority for the proposition that all regulative measures, which were not destructive or annihilative of the character of the institution established by the minority, provided the regulations were in the national or public interest, were valid.

A balance has to be kept between the two objectives — that of ensuring the standard of excellence of the institution, and that of preserving the right of the minorities to establish and administer their educational institutions.

The Court’s attention was drawn to the fact that in Kerala Education Bill, 1957 case, this Court had opined that clauses 11 and 12 made it obligatory for all aided schools to select teachers from a panel selected from each district by the Public Service Commission and that no teacher of an aided school could be dismissed, removed or reduced in rank without the previous sanction of the authorized officer. At SCR p.245, Khanna, J., observed that in cases subsequent to the opinion in Kerala Education Bill, 1957 case, (1959) this Court had held similar provisions as clause 11 and clause 12 to be violative of Article 30(1) of the minority institutions.

Khanna J – “The opinion expressed by this Court in Re Kerala Education Bill, 1957, 1959 SCR 995,was of an advisory character and though great weight should be attached to it because of its persuasive value, the said opinion cannot override the opinion subsequently expressed by this Court in contested cases. It is the law declared by this Court in the subsequent contested cases which would have a binding effect. The words ‘as at present advised’ as well as the preceding sentence indicate that the view expressed by this Court in Re Kerala Education Bill, 1957 in this respect was hesitant and tentative and not a final view in the matter.”

The conditions for grant or non­-grant of aid to educational institutions have to be uniformly applied, whether it is a majority­ run institution or a minority run institution. As in the case of a majority run institution, the moment a minority institution obtains a grant of aid, Article 28 of the Constitution comes into play. When an educational institution is maintained out of State funds, no religious instruction can be provided therein. Article 28(1) does not state that it applies only to educational institutions that are not established or maintained by religious or linguistic minorities. Furthermore, upon the receipt of aid, the provisions of Article 28(3) would apply to all educational institutions whether run by the minorities or the non­-minorities. Article 28(3) is the right of a person studying in a State­ recognized institution or in an educational institution receiving aid from State funds, not to take part in any religious instruction, if imparted by such institution, without his/her consent (or his/her guardian’s consent if such a person is a minor). Just as Articles 28(1) and (3) become applicable the moment any educational institution takes aid, likewise, Article 29(2) would also be attracted and become applicable to an educational institution maintained by the State or receiving aid out of State funds.

The right of the aided minority institution to preferably admit students of its community, when Article 29(2) was applicable, has been clarified by this Court over a decade ago in St. Stephen’s College case, (1992). While upholding the procedure for admitting students, this Court also held that aided minority educational institutions were entitled to preferably admit their community candidates so as to maintain the minority character of the institution, and that the State may regulate the intake in this category with due regard to the area that the institution was intended to serve, but that this intake should not be more than 50% in any case. Thus, St. Stephen’s endeavoured to strike a balance between the two articles. Though we accept the ratio of St. Stephen’s which has held the field for over a decade, we have compelling reservations in accepting the rigid percentage stipulated therein. As Article 29 and Article 30 apply not only to institutions of higher education but also to schools, a ceiling of 50% would not be proper.

At the same time, the admissions to aided institutions, whether awarded to minority or non­minority students, cannot be at the absolute sweet will and pleasure of the management of minority educational institutions. As the regulations to promote academic excellence and standards do not encroach upon the guaranteed rights Under Article 30, the aided minority educational institutions can be required to observe inter se merit amongst the eligible minority applicants and passage of common entrance test by the candidates, where there is one, with regard to admissions in professional and non­professional colleges.

So far as the statutory provisions regulating the facets of administration are concerned, in case of an unaided minority educational institution, the regulatory measure of control should be minimal and the conditions of recognition as well as the conditions of affiliation to a university or board have to be complied with, but in the matter of day­ to­ day management, like the appointment of staff, teaching and non­teaching, and administrative control over them, the management should have the freedom and there should not be any external controlling agency. However, a rational procedure for the selection of teaching staff and for taking disciplinary action has to be evolved by the management itself.

For redressing the grievances of employees of aided and unaided institutions who are subjected to punishment or termination from service, a mechanism will have to be evolved, and in our opinion, appropriate tribunals could be constituted, and till then, such tribunals could be presided over by a judicial officer of the rank of District Judge.

The State or other controlling authorities, however, can always prescribe the minimum qualification, experience and other conditions bearing on the merit of an individual for being appointed as a teacher or a principal of any educational institution. Regulations can be framed governing service conditions for teaching and other staff for whom aid is provided by the State, without interfering with the overall administrative control of the management over the staff.  Fees to be charged by unaided institutions cannot be regulated but no institution should charge capitation fee.

Brahmo Samaj Education Society v. State of West Bengal, (2004)

The Court opined that State can impose such conditions as are necessary for the proper maintenance of standards of education and to check maladministration. The decision of T.M.A. Pai Foundation was followed in which it was observed that the State could regulate the method of selection and appointment of teachers after prescribing requisite qualifications for the same. In Brahmo Samaj Education Society, it was further opined that the State could very well provide the basic qualification for teachers. The equal standard of teachers has been maintained by the NET / SLET.

P.A. Inamdar, 2005

also considered the difference between professional and non­professional educational institutions. However, the terrain of thought as has developed through successive judicial pronouncements culminating in Pai Foundation, (2002) 8 SCC 481, is that looking at the concept of education, in the backdrop of the constitutional provisions, professional educational institutions constitute a class by themselves as distinguished from educational institutions imparting non­professional education.

A distinction is to be drawn between unaided minority educational institution of the level of schools and undergraduate colleges on the one side and institutions of higher education, in particular, those imparting professional education, on the other side. In the former, the scope for merit ­based selection is practically nil and hence may not call for regulation. But in the case of the latter, transparency and merit have to be unavoidably taken care of and cannot be compromised. There could be regulatory measures for ensuring educational standards and maintaining excellence thereof.

The court opined that activities of education are charitable. The educational institutions, both of a non­ minority and minority character, can be regulated and controlled so that they do not indulge in selling seats of learning to make money. They can be allowed to generate such funds as would be reasonably required to run the institute and for its further growth.

If triple test is satisfied by the institution – fair, transparent and non-exploitative; there will be limited government concept.

In TMA Pai they recognised A19(1)(g) is at par with A30(1) are probably on the same level, constitutional confusion between these two articles. And PA Inamdar came to be constituted.

A19(1)(g) and A30(1) – Are absolutely different FRs and stand on different footings. Because of reasonable restrictions under A19(1)(g).

Dual tests – that the regulation should be reasonable and 2nd that the regulation has to be in the interest of the minority character of the institution.

TMA Pai – Islamic Academy case 2003 – P A Inamdar Case

State can impose reservations on minority institutions para 68– obiter in TMA Pai case – led to confusion – petition filed before the SC to clarify the position – can there be minority reservations or not. -> Islamic Academy case 2003 came -> to clarify the stand in para 68. SC says reservation can be implemented in Minority educational institutions whether aided and unaided.

This Islamic Academy case was overruled by P A Inamdar Case. SC held that the concept of reservation cannot be implemented in any unaided minority institutions whether its minority or majority. If its state funded then reservations possible. Private minority educational institution there is no concept of reservation.

The state cant impose its reservation policy on minority and non-minority unaided private colleges, including professional colleges. To impose states reservation policies on the private unaided colleges, 93rd amendment was enacted.

RTE – 2009 – 21A – 86th Amendment – 25% seats in primary schools will be reserved for disadvantaged or weaker sections of the society – reservation broader here (not only SC ST OBC) – this provision challenged before SC – Society for unaided private schools of Rajasthan v UoI – 25% applicable to both primary aided and unaided minority/ majority institutions – SH Kapadia 3 J bench delivered the verdict in this case – SC stated  that A19(6) permitted the state to impose reasonable restrictions on the right to carry on an occupation, trade or business under A19(1)(g) and that the 25% reservation obligation on private unaided school was a reasonable restriction.

Article 21A casts an obligation on the State to provide free and compulsory education to children of the age of 6 to 14 years and not on unaided non-minority and minority educational institutions.

Chandana Das (Malakar) v. State of West Bengal and Ors., (2015)

Court observed that the Government can frame the conditions of eligibility for appointment of such teachers.

Faculty Association of All India Institute of Medical Sciences v. Union of India and Ors., (2013)

concerning issue of reservation in super­ speciality, the Court opined:

Apart from the decisions rendered by this Court in Jagadish Saran case, (1980) and Pradeep Jain case, (1984), the issue also fell for consideration in Preeti Srivastava case, (1999), which was also decided by a Bench of five Judges. While in Jagadish Saran case, (1980) and in Pradeep Jain case, (1984), it was categorically held that there could be no compromise with merit at the super speciality stage, the same sentiments were also expressed in Preeti Srivastava case, (1999), as well.

In Preeti Srivastava case, (1999) The Constitution Bench came to the conclusion that Regulation 27 could not have any application at the highest level of super speciality as this would defeat the very object of imparting the best possible training to selected meritorious candidates, who could contribute to the advancement of knowledge in the field of medical research and its applications. Their Lordships ultimately went on to hold that there could not be any type of relaxation at the super speciality level.

In State of M.P. v. Nivedita Jain, (1981), where admission to medical courses was regulated by an entrance test. It was held that in the matter of appointment of medical officers, the Government or the Public Service Commission would not be entitled to say that there would not be minimum qualifying marks for Scheduled Castes/Scheduled Tribes candidates while prescribing a minimum for others.

Mohit Sirs lecture –

Establish – right to bring an institution in existence

Administer – right to effectively or properly manage and conduct the affairs of the institution

Mohini Jain v UoI – petitioner denied admission on the basis of capitation fee, economically unwell, RTE FR u/a21.

Supreme Court of India held that the charging of a ‘capitation fee’ by the private educational institutions violated the right to education, as implied from the right to life and human dignity, and the right to equal protection of the law.

Unni Krishnan, 1993 – RTE not FR for everyone but only for the age group 6-14. As a result A21A introduced (86th  Amendment, 2005).

PRAMATHI EDUCATIONAL CULTURAL TRUST V. UOI, 2014 – A30(1) does not distinguish between aided and unaided minority (state run or privately run institutions). Protection is for minority is in totality. 25% will not be applicable to any minority institutions whether its aided or unaided institution. Private majority and Public majority institutions reservation possible. A30(1) secularism – traced from 29 and 30 + preamble – minority protection is in relation to secularism – Kesavananda case minority protection is basic feature of the constitution.

Sobha George v State of Kerala case, 2015 – Kerala HC judgment – SC provisions of RTE 2009 not applicable to minority institutions Pramati case said this, K HC disagreed with this view. RTE Provision mandates school not detain any child before they complete elementary education – K HC this provision of detention is applicable to minority institutions. HC says that this no detention policy is not flowing from RTE but coming from 21.

Clause 5 provided for procedure for selection thus:

“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 the National Eligibility­ cum­ Entrance Test shall vest with the Medical Council of India. However, the Medical Council of India, with the previous approval of the Central Government, shall select organisation(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 the Scheduled Castes, the Scheduled Tribes, and the 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 the 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 sub­clause (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.”

Similarly, amendments to the Post Graduate Medical Education Regulations, 2000 were made. The relevant portion of the amendments made are extracted hereunder:

“No. MCI. 18(1)/2010­Med./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, the Medical Council of India, with the previous approval of the Central Government shall select organisation(s) to conduct National Eligibility­ cum ­Entrance Test for admission to Postgraduate courses”‘.”

10D. Uniform entrance examination for undergraduate and post­graduate level.— There shall be conducted a uniform entrance examination to all medical educational institutions at the undergraduate level and post­graduate level through such designated authority in Hindi, English and such other languages and in such manner as may be prescribed and the designated authority shall ensure the conduct of uniform entrance examination in the aforesaid manner:

Provided that notwithstanding any judgment or order of any court, the provisions of this section shall not apply, in relation to the uniform entrance examination at the undergraduate level for the academic year 2016­-17 conducted in accordance with any regulations made under this Act, in respect of the State Government seats (whether in Government Medical College or in a private Medical College) where such State has not opted for such examination.”

The Regulations on Graduate Medical Education, 1997 have also been amended by Regulations on Graduate Medical Education (Amendment) 2017. The admission to the medical course eligibility criteria has been prescribed by amended Clause 4. Following has been substituted:

“3. In Clause 4, under the heading Admission to the Medical Course­ eligibility criteria, and in sub­clause 4 (1) & (1A), the following shall be substituted:

4. Admission to the Medical Course­ Eligibility Criteria: No candidate shall be allowed to be admitted to the Medical Curriculum proper of first Bachelor of Medicine and Bachelor of Surgery course until he /she has qualified the National Eligibility Entrance Test, and he/she shall not be allowed to appear for the National Eligibility ­Cum­ Entrance Test until:

(1) He/she shall complete the age of 17 years on or before 31st December of the year of admission to the MBBS.

(1A) He/She has obtained a minimum of marks in National Eligibility­ Cum ­Entrance Test as prescribed in Clause 5 of Chapter II.”

In Chapter II, Clause 5 under the heading “Procedure for selection to MBBS” has been substituted by MCI in 2017 as under:

“7. In Chapter­ II, Clause 5 under the heading “Procedure for selection to MBBS course shall be as follows” shall be substituted as under:­

“Procedure for selection to MBBS course shall be as follows:”
(1) There shall be a uniform entrance examination to all medical educational institutions at the under graduate level namely ‘National Eligibility ­cum­ Entrance Test for admission to MBBS course in each academic year and shall be conducted under overall supervision of the Ministry of Health & Family Welfare, Government of India.

(2) The “designated authority” to conduct the ‘National Eligibility­ Cum­ Entrance Test’ shall be the Central Board of Secondary Education or any other body/organization so designated by the Ministry of Health & Family Welfare, Government of India, in consultation with the Medical Council of India.

(3) The language and manner of conducting the ‘National Eligibility­ Cum­ Entrance Test’ shall be determined by the “designated authority” in consultation with the Medical Council of India and the Ministry of Health and Family Welfare, Government of India.

(4) In order to be eligible for admission to MBBS Course for a academic year, it shall be necessary for a candidate to obtain minimum of marks at 50th percentile in ‘National Eligibility­cum­Entrance Test to MBBS course’ held for the said academic year. However, in respect of candidates belonging to Scheduled Castes, Scheduled Tribes, Other Backward Classes, the minimum marks shall be at 40th percentile. In respect of candidates with benchmark disabilities specified under the Rights of Persons with Disabilities Act, 2016, in terms of Clause 4(3) above, the minimum marks shall be at 45th percentile for General Category candidates and 40th percentile for SC/ST/OBC candidates. The percentile shall be determined on the basis of highest marks secured in the All­India common merit list for admission in ‘National Eligibility­ cum ­Entrance Test for admission to MBBS course.

Provided when sufficient number of candidates in the respective categories fail to secure minimum marks as prescribed in National Eligibility­ cum­ Entrance Test held for 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 academic year only.

(5) 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/Union Territory­ wise merit list of the eligible candidates shall be prepared on the basis of marks obtained in ‘National Eligibility­ cum­ Entrance Test and candidates shall be admitted to MBBS course from the said lists only.

(6) No candidate who has failed to obtain the minimum eligibility marks as prescribed in Sub­clause (4) above shall be admitted to MBBS course in the said academic year.

(7) No authority/institution shall admit any candidate to the MBBS course in contravention of the criteria/procedure as laid down by these Regulations and/or in violation of the judgments passed by the Hon’ble Supreme Court in respect of admissions. Any candidate admitted in contravention/violation of aforesaid shall be discharged by the Council forthwith. The authority/institution which grants admission to any student in contravention /violation of the Regulations and/or the judgments passed by the Hon’ble Supreme Court, shall also be liable to face such action as may be prescribed by the Council, including surrender of seats equivalent to the extent of such admission made from its sanctioned intake capacity for the succeeding academic year/years.

(8) All admission to MBBS course within the respective categories shall be based solely on the marks obtained in the ‘National Eligibility­ Cum ­Entrance Test.”

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