CHRISTIAN MEDICAL COLLEGE VELLORE & ORS v. UNION OF INDIA AND ORS.

46Copy pinpoint46. Mr. Parasaran also urged that as was held by this Court in Indian Express Newspapers Vs. Union of India [(1985) 1 D sec 641], even if the Regulations are accepted to be subordinate legislation, the same were also open to challenge:

(a) on the ground on which plenary legislation is questioned . .E (b) on the ground that it does not conform to the statute under which it is made.

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

47Copy pinpoint47. Mr. Parasaran submitted that in Deep Chand Vs. State of Uttar Pradesh and Others [(1959) Suppl. 2 SCR 8) wherein the validity of certain provisions of the Uttar Pradesh G Transport Service (Development) Act, 1955, came to be considered on the passing of the Motor Vehicles (Amendment) Act, 1956, the majority view was that the entire Act did not become wholly void under Article 254(1) of the Constitution, but continued to be valid in so far as it supported the Scheme H

CHRISTIAN MEDICAL COLLEGE VELLORE & ORS. v. 963 UNION OF INDIA AND ORS. [ALTAMAS KABIR, CJI.]

already framed under the U.P. Act. A

48Copy pinpoint48. Mr. Parasaran contended that a standard must have general application and inter se merit does not relate to standards, but is a comparison of an assessment of merit among the eligible candidates. B

49Copy pinpoint49. Mr. Parasaran submitted that the legislative power under Entry 11 of List II stood transferred to List Ill only by virtue of the Forty-second Amendment with effect from 3rd January, 1977 and the power so acquired by virtue of the amendment, could not validate an Act enacted before the acquisition of such C power. Mr. Parasaran urged that while the Indian Medical Council Act was enacted in 1956, Section 19A on which great reliance was placed by Mr. Nidhesh Gupta, learned Advocate appearing for the MCI, was brought into the Statute Book on 16th June, 1964. Consequently the 1956 Act, as also the D Regulations, are ultra vires, except to the extent covered by Entry 66 of List I, which is confined to "co-ordination and determination of standards".

50Copy pinpoint50. Referring to the decision of this Court in State of Orissa E Vs. M.A. Tulloch & Co. [(1964) 4 SCR 461), Mr. Parasaran contended that as the State's powers of legislation are subject to Parliamentary legislation under Entry 66 of List I, when Parliament legislates, to that extent alone the State is denuded of its legislative power. A denudation of the power of the State F legislature can be effected only by a plenary legislation and not by subordinate legislation. The Regulations, which are not plenary in character, but have the effect of denuding the power of the State legislature, are, therefore, ultra vires.

51Copy pinpoint51. Another interesting submission urged by Mr. Parasaran G was that the principle of "Rag Bag" legislation, as was explained by this Court in Ujagar Prints etc. Vs. Union of India [(1989) 3 sec 488), cannot be invoked by combining the Entries in List I and List Ill in cases where the field of legislation in List Ill is expressly made subject to an Entry in List I. In such H

964 SUPREME COURT REPORTS [2013] 7 S.C.R.

A cases, while enacting a legislation on a subject in List Ill, Parliament is also subject to the Entry in List I in the same way as the State legislature, as the field of legislation in the Concurrent List is the same as far as the Parliament and the State legislatures for admission of students to professional B courses, are concerned. Mr. Parasaran urged that the decision in Preeti Srivastava's case (supra) has to be interpreted harmoniously with the decision in M.A. Tu/loch's case (supra), lshwari Khetan Vs. State of U.P. [(1980) 4 SCC 136] and Deep Chand's case (supra), as otherwise the findings in Preeti C Srivastava's case (supra) would be rendered per incuriam for not taking note of the fact that the power of Parliament under Entry 25 of List Ill was an after acquired power. Mr. Parasaran emphasised the fact that the reasoning in Preeti Srivastava's case (supra) related only to the question of the State's power to prescribe different admission criteria to the Post-graduate 0 courses in Engineering and medicine and cannot be held to govern the admission of students to the said courses. Learned counsel submitted that the decision in Preeti Srivastava's case (supra) has to be confined only to eligibility standards for admission and not to issues relating to admission itself. Mr. E Parasaran also pointed out that in Preeti Srivastava's case (supra), the decision in Deep Chand's case (supra) had not been considered and the fact that Parliament had no power to legislate with regard to matters which were then in Entry 11 of List II had been overlooked. The Court, therefore, erroneously F proceeded on the basis of the powers given to Parliament by virtue of Entry 25 of List Ill by the Forty-second Amendment. Mr. Parasaran urged that to the extent it is inconsistent with the decision in the T.M.A. Pai Foundation case (supra), as to the right of admission by private institutions, the decision in Preeti G Srivastava's case (supra) will have to yield to the principles laid down by the larger Bench in the T.M.A. Pai Foundation case (supra). Mr. Parasaran submitted that the effect of the impugned Regulations in the context of the prevailing law is that private institutions may establish educational institutions at huge costs and provide for teaching and lectures, but without

CHRISTIAN MEDICAL COLLEGE VELLORE & ORS. v. 965 UNION OF INDIA AND ORS. [ALTAMAS KABIR, CJI.]

any right, power or discretion to run the college, even to the extent of admitting students therein. Mr. Parasaran contended that by the introduction of NEET the States and Universities in States stand completely deprived of the right to deal with admissions, which has the effect of destroying the federal structure of the Constitution. B

52Copy pinpoint52. Mr. Parasaran urged that the executive power of the State, which is co-extensive with the legislative power with regard to matters in the Concurrent List, cannot be taken away except as expressly provided by the Constitution or by any law made by Parliament. It was urged that the power of subordinate legislation or statutory power conferred by a Parliamentary legislation cannot be exercised to take away the legislative power of the State legislature, which could only be done by plenary legislation under Article 73 of the Constitution. Mr. Parasaran submitted that the impugned Regulations, not being plenary legislation, are unconstitutional and ultra vires the Constitution.

53Copy pinpoint53. Mr. Parasaran submitted that the impugned Regulations provide that if sufficient number of candidates in the respective categories fail to secure minimum marks as prescribed in NEET, held both for Post-graduate and graduate courses, the Central Government, in consultation with the Medical Council of India, may at its discretion lower the minimum marks for admission, which itself indicates that the F Regulations are concerned not with determination of standards, but with admissions.

54Copy pinpoint54. Mr. Parasaran further submitted that the Scheme framed in Unni Krishnan's case (supra) completely excluded the discretion of the institution to admit students and the same G was, therefore, overruled in the T.M.A. Pai Foundation case as having the effect of nationalising education in respect of important features viz. right of a private unaided institution to give admission and to fix the fees. Mr. Parasaran submitted that the impugned Regulations suffer from the same vice of a H

966 SUPREME COURT REPORTS [2013] 7 S.C.R.

A complete take-over of the process of admission, which rendered the impugned Regulations unconstitutional.

55Copy pinpoint55. Mr. Parasaran further urged that minorities, whether based on religion or language, also have a fundamental right under Article 19(1)(g), like any other citizen, to practise any 8 profession, or to carry on any occupation, trade or business in the interest of the general public, but subject to reasonable restrictions that may be imposed by the State on the exercise of such rights. In addition, minorities have the right guaranteed under Article 30 to establish and administer educational institutions of their choice. Considering the right of both minority and non-minority citizens to establish and administer educational institutions, this Court had in the T.M.A. Pai Foundation case (supra) held that the said right includes the right to admit students and to nominate students for admission and even when students are required to be selected on the basis of merit, the ultimate decision to grant admission to the students who have otherwise qualified for the said purpose, must be left with the educational institutions concerned. Mr. Parasaran submitted that in the T.M.A. Pai Foundation case E (supra), this Court, inter alia, observed that the fixing of a rigid fee structure, compulsory nomination of teachers and staff for appointment or nominating students for admission would be unreasonable restrictions.

56Copy pinpoint56. Mr. Parasaran also urged that the right of minority institutions under Article 30 is in the national interest and as indicated in the decision in Unni Krishnan's case (supra), the hard reality that emerges is that private educational institutions are a necessity in the present-day circumstances. It is not possible today without them because the Governments are in no position to meet the demand, particularly in the sectors of medical and technical education, which call for substantial investments and expenses. Mr. Parasaran submitted that the impugned Regulations were not in the national interest and would only discourage good private institutions being established by people dedicated to the cause of providing

CHRISTIAN MEDICAL COLLEGE VELLORE & ORS v. 967 UNION OF INDIA AND ORS. [ALTAMAS KABIR, CJI.]

health care to all sections of the citizens of this country and, in particular, the marginalized sections in the metropolitan and rural areas.

57Copy pinpoint57. Mr. Parasaran then urged that 50% of the total seats available, as per Clause VI of the Post-Graduate Medical 8 Education Regulations, were to be filled up by the State Governments or the Authorities appointed by them. The remaining 50% seats are to be filled up by the concerned medical colleges and institutions on the basis of the merit list prepared according to the marks obtained in NEET. Mr. C Parasaran submitted that there is a similar provision in the 1997 Regulations applicable to the Graduate M.B.B.S. course. Noticing the same, this Court in P.A. /namdar's case (supra) categoricalfy indicated that nowhere in the T.M.A. Pai Foundation case (supra), either in the majority or in the minority views, could any justification be found for imposing seat sharing D quota by the State on unaided private professional educational institutions. Clarifying the position this Court observed that fixation of percentage of quota are to be read and understood as consensual arrangements which may be reached between unaided private professional institutions and the State. Mr. E Parasaran urged that the Regulations providing for a quota of 50% are, therefore, invalid.

58Copy pinpoint58. Mr. Parasaran urged that in P.A. lnamdar's case (supra), this Court had held that private institutions could follow an admission procedure if the same satisfied the triple test of being fair, transparent and non-exploitative. It is only when an institution failed the triple test, could the State interfere and substitute its own fair and transparent procedure, but the same cannot become a procedure by destroying the very right of the private institutions to hold their own test in the first instance. Mr. Parasaran urged that the purpose of a common entrance test is to compute the equivalence between different kinds of qualifications and to ensure that those seeking entry into a medical institute did not have to appear for multiple tests, but H

968 SUPREME COURT REPORTS (2013] 7 S.C.R.

A it could not justify the extinguishing of the right to admit and to reject candidates on a fair, transparent and non-exploitative basis from out of the eligible candidates under NEET. Mr. Parasaran reiterated that ultimately it is the institutions which must have the right to decide the admission of candidates. B

59Copy pinpoint59. Mr. Parasaran submitted that in Pradeep Jain Vs. Union of India ((1984) 3 SCC 654], this Court has held that university-wise distribution of seats is valid, The learned Judges fully considered the mandate of equality and pointed out the C need to take into account different considerations relating to differing levels of social, economic and educational development of different regions, disparity in the number of seats available in different States and tjle difficulties that may be faced by students from one region, if they get a seat in another region. This Court held that an All India Entrance D Examination would only create a mirage of equality of opportunity and would, in reality, deprive large sections of underprivileged students from pursuing higher education. _ Though attractive at first blush, an All India Entrance Examination would actually be detrimental to the interests of the students hoping for admission to the M.B.B.S. and Post- graduate courses.

60Copy pinpoint60. Mr. Parasaran submitted that since all judgments on the subject were by Benches which were of lesser strength as compared to the T.M.A. Pai Foundation case (supra), all other decisions of this Court, both before and after the decision in the T.M.A. Pai Foundation case (supra), would, therefore, have to be read harmoniously with the principles enunciated in the T.M.A. Pai Foundation case (supra). In case some of the cases cannot be harmoniously read, then the principles laid down in _the T.M.A. Pai Foundation case (supra) will have primacy and will have to be followed. Mr. Parasaran submitted that the observations as to standard and merit in Preeti Srivsatava's case (supra) and in P.A. lnamdar's case (supra), have to be understood as conforming to the decision in the H

CHRISTIAN MEDICAL COLLEGE VELLORE & ORS. v. 969 UNION OF INDIA AND ORS. [ALTAMAS KABIR, CJI.]

T.M.A. Pai Foundation case (supra). Mr. Parasaran submitted that the flourish of language in the judgments of Benches of lesser strength cannot be read so as to dilute the ratio of the decision of Benches of larger strength. Mr. Parasaran urged that consequently the right to admit students by unaided private institutions, both aided and unaided minority institutions, as part of their right to administer the institution, as guaranteed under Articles 19(1)(g), 25, 26, 29(1) and 30 of the Constitution, cannot be taken away even by way of plenary jurisdiction, which the impugned Regulations are not.

61Copy pinpoint61. Mr. Parasaran submitted that in the case of aided non- C minority institutions, the State may by Regulation provide for a larger role for the State in relation to matters of admission. Mr. Parasaran urged that the impugned Regulations being only regulatory in character, they cannot destroy the right itself. D

62Copy pinpoint62. Dr. Rajiv Dhawan, learned senior counsel, who appeared on behalf of Yenepoya University in Transferred Case Nos. 135-137 of 2012 and also for the Karnataka Religious and Linguistic Minority Professional Colleges Association in Transferred Case Nos. 121-122 of 2012, submitted that although the issues involved in the said cases have already been argued in extenso by Mr. Salve and Mr. Parasaran, as part of the main issue., it has to be decided whether NEET violates the fundamental right guaranteed to minorities, both religious and linguistic, to impart medical education, as explained in the T.M.A. Pai Foundation case (supra) and other subsequent decisions and even if found to be intra vires, is it manifestly unjust and arbitrary? It was further urged that it would also have to be decided whether the doctrine of severability, reading down and proportionality, could be effected to the impugned Regulations.

63Copy pinpoint63. Dr. Dhawan urged that the T.M.A. Pai Foundation case (supra) resolved several issues where there was still some doubt on account of decisions rendered in different cases. Dr. Dhawan urged that it was held that the decision in H

970 SUPREME COURT REPORTS [2013) 7 S.C.R

A the Unni Krishnan's case (supra) was wrong to the extent that "free seats" were to go to the privileged and that education was being nationalised which took over the autonomy of institutions It was also observed that the expanding needs of education entailed a combined use of resources both of the Government 8 and the private sector, since the imparting of education was too large a portfolio for the Government alone to manage.

64Copy pinpoint64. Dr. Dhawan urged that the other issue of importance, which was also decided, was the right of autonomy of institutions which were protected under Article 30 of the C Constitution, which, inter alia, included the right to admit students.

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

65Copy pinpoint65. Dr. Dhawan submitted that the decision in the TM.A. Pai Foundation case (supra) also settled the issue that affiliation and recognition has to be available to every institution that fulfills the conditions for grant of such affiliation and recognition. Learned Senior Counsel submitted that surrendering the total process of selection to the State was unreasonable, as was sought to be done in the Scheme formulated in Unni Krishnan's case (supra). The said trend of the decisions was sought to be corrected in the T.M.A. Pai Foundation case (supra) where it was categorically held that minority institutions had the right to "mould the institution as they think fit", bearing in mind that "minority institutions have a personality of their own, and in order to maintain their atmosphere and traditions, it is but necessary that they must have a right to choose and select the students who can be admitted in their course of study." It is for this reason that in the St. Stephen's College case (supra), this Court upheld the Scheme whereby a cut-off percentage was fixed for admission after which the students were interviewed and, thereafter,

CHRISTIAN MEDICAL COLLEGE VELLORE & ORS v. 971 UNION OF INDIA AND ORS. [ALTAMAS KABIR, CJI.]

selected. It was also laid down that while the educational institutions cannot grant admission on its whims and fancies and must follow some identifiable or reasonable methodology of admitting students, any scheme, rule or regulation that does not give the institution the right to reject candidates who might otherwise be qualified according to, say their performance in an entrance test, would be an unreasonable restriction under Article 19(6), though appropriate guidelines/ modalities can always be prescribed for holding the entrance test in a fair and transparent manner.

66Copy pinpoint66. Again in paragraphs 158 and 159 of the judgment in c the T.M.A. Pai Foundation case (supra), it has been very picturesquely expressed that India is a kaleidoscope of different peoples of different cultures and that all pieces of mosaic had to be in harmony in order to give a whole picture of India which would otherwise be scarred. Their Lordships very poetically indicated that each piece, like a citizen of India, plays an important part in the making of the whole. The variations of the colours as well as different shades of the same colour in a map are the result of these small pieces of different shades and colours or marble, but even when one small piece of marble is removed, the whole map would be disfigured, and the beauty of the mosaic would be lost.

67Copy pinpoint67. Referring to the separate decision rendered by Ruma Pal, J., in the TM.A. Pai Foundation case (supra), Dr. Dhawan F submitted that the learned Judge had also artistically distinguished Indian secularism from American secularism by calling Indian secularism "a salad bowl" and not a "melting pot".

68Copy pinpoint68. Dr. Dhawan urged that a combined reading of the decision in Islamic Academy's case (supra) and P.A. G lnamdar's case (supra) suggests that (i) no unaided institutions can be compelled to accept reservations made by the State, except by voluntary agreement; and (ii) the right to (a) admit and select students of their choice by pursuing individual or H

972 SUPREME COURT REPORTS [2013] 7 S.C.R.

A associational tests and (b) fix fees on a non-profit basis is a right available t~ all educational institutions, but the admissions were to be made on a fair, transparent and non exploitative method, based on merit.

69Copy pinpoint69. On Article 15(5) of the Constitution, Dr. Dhawan contended that the same was included in the Constitution by the Constitution (93rd Amendment) Act, with the object of over turning the decision in P.A. lnamdar's case (supra) on voluntary reservations. Dr. Dhawan submitted that the said provision would make it Clear that the State reservations do not apply to C "minority institutions" enjoying the protection of Article 30 and it is on such basis that in the Society for Unaided Private Schools of Rajasthan Vs. Union of India [(2012) 6 SCC 1], this Court held that a minority institution could not be forced to accept the statutory reservation also. Dr. Dhawan urged that D the impact of the T.M.A. Pai Foundation case (supra) and subsequent decisions is that all institutions, and especially minority institutions, have the constitutional right to select and admit students of their choice and conduct their own tests, subject to minimum standards which could be enhanced but not · E lowered by the States.

70Copy pinpoint70. Dr. Dhawan also referred to the issue of equivalence between various Boards and uniformity and convenience. Learned counsel submitted that the distinction was recognized in the case of Rajan Purohit Vs. Rajasthan University of Health Sciences [(2012) 10 SCC 770], wherein it was observed that the problem of equivalence could be resolved by the college or group of colleges, either by finding a method of equivalence to reconcile difference of standards between various Boards, or by the college or group of colleges evolving a Common Entrance Test to overcome the problem of equivalence. Dr. Dhawan submitted that the said issue had been addressed in the T.M.A. Pai Foundation (supra), which continues to hold the field in respect of common issues. Dr. Dhawan urged that consistent with the views expressed in the H

CHRISTIAN MEDICAL COLLEGE VELLORE & ORS v. 973 UNION OF INDIA AND ORS. [ALTAMAS KABIR, CJL]

TM.A Pai Foundation case (supra) and the importance of A autonomy and voluntarism, the same could not be impinged upon by nationalizing the process of admission itself for both the purposes of eligibility and selection, unless a college failed to abide by the triple requirements laid down in P.A. lnamdar's case (supra). B

71Copy pinpoint71. In regard to the decision in Lavu Narendranath's case (supra), which had been relied upon by Mr. K. Parasaran, Dr. Dhawan contended that the same was based upon the understanding that Entry 66 of List I had no relation with tests for screening and selecting students prescribed by the States or Universities for admission, but only to coordinate standards. The scope of the said Entry did not deal with the method of admission, which was within the constitutional powers of the State and the Universities. Dr. Dhawan submitted that the decision rendered in Preeti Srivastava's case (supra) also expressed similar views regarding laying down of standards for admission into the Post-graduate medical courses, which meant that government and universities had exclusive control over admission tests and the criteria of selection in higher education, subject to minimum standards laid down by the E , Union, unless Union legislation, relatable to Entry 25 of List Ill, . was passed to override the States' endeavours in this regard.

72Copy pinpoint72. Dr. Dhawan contended that the demarcation sought to be made in Lavu Narendranath's case (supra) found favour in subsequent cases, such as in the case of State of M.P. Vs. Nivedita Jain [(1981) 4 SCC 296], wherein a Bench of Three Judges took the view that Entry 66 of List I of the Seventh Schedule to the Constitution relates to "coordination and determination of standards in institutions for higher education or research and scientific and technical institutions". The said sentiments were reiterated by this Court in Ajay Kumar Singh Vs. State of Bihar [(1994) 4 SCC 401]. However, in Preeti Srivastava's case (supra), the Constitution Bench overruled the decision in the said two cases. But, as urged by Dr. Ohawan, H

974 SUPREME COURT REPORTS [2013] 7 S.CR

A by holding that Entry 66 of List I was not relatable to a screening test prescribed by the Government or by a University for selection of students from out of a large number for admission to any particular course of study, the Constitution Bench also accepted that the powers of the MCI under List I, B Entry 66, did not extend to selection of students. Dr. Dhawan urged that although Preeti Srivastava's case (supra) had been confined to its facts, it went beyond the same on account of interpretation of the scope of List I, Entry 66 and extending the same to the admission process, simply because admission c also related to standards and upon holding that the Union Parliament also had the power to legislate for the MCI in the matter of admission criteria under Entry 25, List Ill.

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

73Copy pinpoint73. The validity of the impugned Regulations was also questioned by Dr. Dhawan on the ground that Sections 19A and 20 of the 1956 Act authorises the MCI to prescribe the minimum standards of medical education required for granting . recognised medical qualifications in India, but copies of the draft regulations and of all subsequent amendments thereof are required to be furnished by the Council to all State F Governments and the Council, before submitting the Regulations or any amendment thereto to the Central Government for sanction, is required to take into consideration the comments of any State Government received within three months from the furnishing of copies of the said Regulations. Dr. Dhawan submitted that such consultation was never undertaken by the MCI before the Regulations were amended, which has rendered the said Regulations invalid and by virtue of the decisions rendered in Lavu Narendranath's case (supra) and Preeti Srivastava's case (supra), they cannot be reinstated by virtue of Entry 25 List Ill.

CHRISTIAN MEDICAL COLLEGE VELLORE & ORS v. 975 UNION OF INDIA AND ORS. [ALTAMAS KABIR, CJI.]

74Copy pinpoint74. Dr. Dhawan urged that while the power of the MCI to frame Regulations is under Section 33 of the 1956 Act, the role of the MCI is limited to that of a recommending or a consulting body to provide standards which are required to be maintained for the purpose of running the medical institution. and would not include admission of students to the Under-graduate and the B Post-graduate courses. Dr. Dhawan urged that the said powers could not have been extended to controlling admissions in the medical colleges and medical institutions run by the State and private authorities. Dr. Dhawan submitted that as was held by this Court in State of Kamataka Vs. H. Ganesh Karnath ((1983) c 2 SCC 402], "It is a well-settled principle of interpretation of statutes that the conferment of rule-making power by an Act does not enable the rule-making authority to make a rule which travels beyond the scope of the enabling Act or which is inconsistent therewith or repugnant thereto." While accepting D that delegated legislation is necessary, Dr. Dhawan urged that it must remain within the contours of the rule or regulation- making power and the purpose for which it is given, as was held by this Court in St. John's Teachers Training Institute Vs. Regional Director, National Council for Teacher Education E [(2003) 3 sec 3211.

75Copy pinpoint75. Dr. Dhawan also questioned the vires of the amended provisions of the MCI Rules on the ground of unreasonableness and arbitrariness and urged that in both cases the Court would be justified in invoking the doctrine of proportionality, as was F observed by this Court in Om Prakash Vs. State of U.P. ((2004) 3 SCC 402]. Dr. Dhawan submitted that the only way in which the impugned Regulations could possibly be saved is by reading them down to bring them in conformity with the constitutional legislation and the law laid down by the Supreme G Court.

76Copy pinpoint76. Dr. Dhawan urged that admission of students in all the medical institutions in India on the basis of a single eligibility- cum-entrance examination, was not only beyond the scope of H

976 SUPREME COURT REPORTS [2013] 7 S.C.R.

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

77Copy pinpoint77. Appearing for Sri Ramachandra University in ·D Transferred Case Nos.1 & 3 of 2013, Mr. Ajit Kumar Sinha, learned Senior Advocate, questioned the vires of the impugned regulations more or less on the same grounds as canvassed by Mr. Salve, Mr. K. Parasaran and Dr. Dhawan. Mr. Sinha also reiterated the fact that in Preeti Srivastava's case (supra), this .E Court did not notice the decision in Deep Chand's case (supra) and overlooked the fact that Parliament had no power to legislate with regard to matters which were then in Entry 11 of List II of the Seventh Schedule. Mr. Sinha submitted that the decision in Preeti Srivastava's case (supra) must, therefore, be held to be per incuriam.

78Copy pinpoint78. Mr. Sinha urged that neither Section 19A nor Section 2(h) contemplates the holding of a pre-medical entrance test for admission into all medical institutions in the country, irrespective of who had established such institutions and were administering the same. Mr. Sinha urged that the impugned Regulations were liable to be struck down on such ground as well, as it sought to unlawfully curtail the powers of the persons running such medical institutions in the country.

79Copy pinpoint79. Mr. P.P. Rao, learned Senior Advocate, who initially

.,CHRISTIAN MEDICAL COLLEGE VELLORE & ORS v. 977 UNION OF INDIA AND ORS. [ALTAMAS KABIR, CJI.]

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

80Copy pinpoint80. Subsequently, Mr. L. Nageshwara Rao, learned Senior C Advocate, appeared for the State of Andhra Pradesh in the said Transferred Case and also in Transferred Cases Nos.100 and 101 of 2012, 103 of 2012, Transfer Petition (C) Nos.1671 and 1645 of 2012 and Writ Petition (C) No.464 of 2012. In addition, Mr. Nageswara Rao also appeared for the State of Tamil Nadu in Transferred Case Nos.110 and 111 of 2012 and D for the Tamil Nadu Deemed University Association in Transferred Cases Nos. 356 and 357 of2012 and Writ Petition (C) No.27 of 2013.

81Copy pinpoint81. Continuing from where Mr. P.P. Rao left off, Mr. E Nageswara Rao submitted that in conformity with the aforesaid Presidential Order, the State of Andhra Pradesh enacted the A.P. Educational Institutions (Regulation of Admissions and Prohibition of Capitation Fee) Act, 1983, defining, inter alia, "local area", "local candidate", "educational institutions" and F ".relevant qualifying examinations". Mr. Rao pointed out that Section 5 of the Act provides for reservation in non-State- Wide Universities and Education Institutions in favour of local candidates while Section 6 provides for reservation in State- wide Universities and State-wide Educational Institutions for G local candidates. Mr. Rao submitted that the impugned Notification of the Medical Council of India cannot be given effect to in view of the Presidential Order made under Article 371 D of the Constitution and the 1983 Act enacted in pursuance of the said Order. H

978 SUPREME COURT REPORTS [2013] 7 S.C.R.

82Copy pinpoint82. Mr. Rao submitted that if the Medical Council of India could or should hold a National Eligibility-cum-Entrance Test. it would have the effect of denuding the State and the educational institutions of their right to establish and administer educational institutions which enjoy the protection of Articles 19(1 )(g), 25, s 26 and 30 of the Constitution.

83Copy pinpoint83. With regard to the State of Tamil Nadu and the Deemed University Association, Mr. Rao confined his submissions to Entry 25 of List Ill, in relation to Entry 66 of List I. Mr. Rao reiterated the submissions made earlier that the subject matter of Entry 66 of List I is for "coordination and determination of standards" in institutions for higher education and that the determination of standards also falls within Entry 25 of List Ill only when coordination and determination of standards are dealt together with the State enactment made subject to legislation under Entry 66 of List I. Mr. Rao submitted that the· denudation of the legislative power of the State Legislature could only be by plenary legislation made under Entry 66 of List I read with Article 246 of the Constitution and not by subordinate legislation which renders the impugned regulations ultra vires the aforesaid provisions of the Constitution.

84Copy pinpoint84. While dealing with the aforesaid questions, Mr. Rao also submitted that the Notification contemplates the conducting of a common entrance test for all the dental colleges throughout India, without considering the different streams of education prevalent in India such as CBSE, ICSE, State Boards, etc., prevailing in different States. The different standards of education prevalent in different States had not been taken into consideration and in such factual background, the holding of c: Single Common Entrance Test for admission to the B.D.S. and the M.D.S. courses in all the dental colleges throughout India, would lead to violation of Article 14 of the Constitution, since there is no intelligible object sought to be achieved by sue~ amended regulations. H

CHRISTIAN MEDICAL COLLEGE VELLORE & ORS. v. 979 UNION OF INDIA AND ORS. [ALTAMAS KABIR, CJI.]

85Copy pinpoint85. Mr. Rao also questioned the provision made by the amendment dated 15th February, 2012, to the Notification dated 21st December, 2010, reserving admission to Post- graduate Diploma Courses for Medical Officers in the Government Service, who acquired 30% marks, as being wholly unrelated to merit in the entrance examination and, therefore, making such reservation arbitrary and irrational. Mr. Rao submitted that there is no rationale in giving this benefit only to whose who are serving in Government/public authorities with regard to service in remote/difficult areas. Mr. Rao urged that the Government of Tamil Nadu has consistently opposed the c proposal to apply the National Eligibility-cum-Entrance Test to determine admission to different medical colleges and institutions. Mr. Rao submitted that when the Notification was first issued on 27th December, 2010, the Government of Tamil Nadu challenged the same by way of Writ Petition No. 342 of D 2011 and in the said Writ Petition, the High Court stayed the operation of the Notification for UG NEET Entrance Examination in so far as it related to the State of Tamil Nadu, and the stay continues to be in force. Mr. Rao urged that in · respect of Tamil Nadu there are many constitutional issues, as E Tamil Nadu had abolished the Common Entrance Test based on the Tamil Nadu Admission in Professional Educational Institutions Act, 2006, which was given effect to after receiving the President's assent under Article 254(2) of the Constitution.

86Copy pinpoint86. Mr. Rao submitted that the introduction of NEET by F virtue of the amended Regulations would run counter to the policy of the State Government which has enacted the aforesaid Act by abolishing the practice of holding an All India Entrance Test for admission to the professional courses in the State. Mr. Rao submitted that the decision regarding admission to the G Post-graduate Medical and Dental Examinations would be the same as that for admission in Under-graduate courses.

87Copy pinpoint87. Mr. Rao contended that the MCI had no jurisdiction to issue the impugned Notifications as the Council lacks the H

980 SUPREME COURT REPORTS [2013) 7 S.C.R.

A competence to amend the State Act which had been enacted in 2006 and the validity whereof has been upheld by the High Court. Mr. Rao repeated and reiterated the submissions earlier made with regard to the vires of the impugned Regulations and prayed for proper directions to be issued to allow the State of B Tamil Nadu to continue its existing system of admission to both Under-graduate and Post-graduate courses .

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

89Copy pinpoint89. Mr. Venkataramani submitted that this Court had consistently held that unaided educational institutions are free to devise their own admission procedures and that the impugned Regulations were against social justice and would impinge on the rights of unaided educational institutions as wel! as the institutions enjoying the protection of Article 30 of the Constitution in the Union Territory of Puducherry.

90Copy pinpoint90. Appearing for the Karnataka Private Medical anc

CHRISTIAN MEDICAL COLLEGE VELLORE & ORS v. 981 UNION OF !NOIA AND ORS. [ALTAMAS KABIR, CJI.]

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

91Copy pinpoint91. Mr. Venugopal reiterated that the imposition of NEET was contrary to the decisions of this Court in the T.M.A. Pai Foundation case (supra) and in P.A. lnamdar's case (supra). Mr. Venugopal contended that the right of the Members of the Association to carry on the business and vocation of imparting D medical education had been upheld not only in the two aforesaid cases, but also in the Islamic Academy of Education case (supra) and in T. Varghese George Vs. Kora K. George ((2012) 1 SCC 369), Society for Unaided Private Schools of Rajasthan case (supra) and Rajan Purohit's case (supra). E

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

92Copy pinpoint92. Mr. Venugopal also voiced the issues common to all these cases as to whether it would be open to the Government or the MCI, a creature of the Indian Medical Council Act, 1956, G to regulate the admission of students to all medical colleges and institutions. Mr. Venugopal urged that since the question had been troubling the Courts in the country for a considerable period of time, a Bench of Eleven (11) Judges was constituted to settle the above issues and other connected issues and to H

982 SUPREME COURT REPORTS [2013] 7 S.C.R.

A put a quietus to the same. The said Bench heard a number of matters in which the issue had been raised and it delivered its verdict in what is referred to as the TM.A. Pai Foundation case (supra), answering all the questions raised. Certain common issues contained in ttie judgment came up for consideration later and were subsequently referred to a Bench of Seven Judges in P.A. /namdar's case (supra) where the issue was finally put to rest.

93Copy pinpoint93. Mr. Venugopal firmly urged that in dealing with the issues raised in these matters, none of the decisions rendered by this Court in the past were required to be re-opened and the said issues will have to be considered and decided by this Court by merely testing their validity against the ratio of the earlier judgments, and, in particular, the decision in the TM.A. Pai Foundation case (supra). D

94Copy pinpoint94. Mr. Venugopal's next submission was with regard to the provisions of the Karnataka Professional Educational Institutions (Regulation of Admission and Fixation of Fee) (Special Provisions) Act, 2011, hereinafter referred to as the E "Karnataka Act of 2011", which provides for a consensual arrangement between the State Government and the Petitioner Association for filling up the seats in the unaided medical colleges being taken over by the State Government to the extent agreed upon between the parties. The said Act also regulates the fees to be charged in these private institutions. Mr. Venugopal urged that the said Act still holds the field, since its validity has not been challenged. As a result, the impugned Regulation, now made by the Medical Council of India, purportedly under Section 33 of the 1956 Act, cannot prevail over the State law. Mr. Venugopal submitted that the impugned Regulations are, therefore, of no effect in the State of Karnataka.

95Copy pinpoint95. Mr. Venugopal also urged that having regard to the decision of this Court in the T.M.A. Pai Foundation case H (supra) and the other decisions referred to hereinabove, the

CHRISTIAN MEDICAL COLLEGE VELLORE & ORS v. 983 UNION OF INDIA AND ORS. [ALTAMAS KABIR, CJI.]

impugned Notifications imposing NEET as a special vehicle for admission into medical colleges denuding the State and the private medical institutions from regulating their own procedure, must be held to be ultra vires Section 33 of the 1956 Act.

96Copy pinpoint96. Mr. Venugopal reiterated the submissions made on behalf of the other Petitioners and concluded on the observations made in paragraph 3 of the decision of this Court in State of Kamataka Vs. Dr. T.M.A. Pai Foundation-& Ors. [(2003> 6 sec 1901. which made it clear that au Etatutory enactments, orders, schemes, regulations would hlive to-be brought in conformity with the decision of the Constitution C Bench in the T.M.A. Pai Foundation case (supra), dErtided on 31.10.2002. Mr. Venugopal submitted that it, therefore, follows that the Regulations of 2000, 2010 and 2012, to the e~.ent that they are inconsistent with the decision in the T.ff,f.A. Pai Foundation case (supra), would be void and would ha"1e to be D struck down.

97Copy pinpoint97. Mr. G.S. Kannur, learned Advocate, who appear~d in support of the application for intervention, being I.A. No.~. in Transferred Case No.3 of 2013, repeated the submissiQns E made by Mr. K. Parasaran, Dr. Dhawan and Mr. L. NageshW?r Rao, that the existence of various Boards in a particular Sta~ is bound to cause inequality and discrimination if the Common Entrance Test was introduced as the only criteria for admission into any medical college or institution in the country. -F

_ 98. Appearing for the Christian Medical College Ludhiana Society and the medical institutions being run by it, Mr. V. Giri, learned Senior Advocate, reiterated the submissions made by Mr. Harish Salve, on behalf of the Christian Medical College Vellore Association, but added a new dimension to the G submissions made by submitting that the impugned Regulations had been issued by the Board of Governors, which had been in office pursuant to the supersession of the Medical Council, under Section 3A of the 1956 Act. Mr. Giri submitted that the Board of Governors, which was only an ad hoc body brought H

984 SUPREME COURT REPORTS [2013] 7 S.C.R.

A into existence to exercise the powers and perform the functions of the Council under the Act pending its reconstitution, was not competent as an Ad hoc body to exercise the delegated legislative power under Section 33 of the said Act and to discharge the functions of the Medical Council, as contemplated under Section 3 of the 1956 Act.

99Copy pinpoint99. Mr. Giri urged that though Section 33 of the 1956 Act confers power on the Medical Council of India to make Regulations generally for carrying out the purposes of the Act, it also enumerates the different functions of the Council and its powers and duties which are referable to the substantial provisions of the Act itself. Learned counsel pointed out that clause (I) deals with the conduct of professional examinations, qualification of examiners and conditions of admission to such examinations. Mr. Giri urged that Sections 16 to 18 of the above D Act deals with the substantive power available to the Medical Council of India to require of every University or Medical Institution information as to the courses of study and examinations and if necessary, to take steps for inspecting the same. Accordingly, the Regulation-making power contemplated E under Section 33 of the 1956 Act is referable to the substantive functions to be discharged by the Council under Sections 16 to 18 of the Act. Mr. Giri contended that no provision in the Act contemplates that the Council may actually conduct the examinations. Relying on the views expressed in the T.M.A. Pai F Foundation case (supra), Mr. Giri urged that the impugned Regulations were in direct violation of the rights guaranteed to a minority educational institutions under Article 19(1)(g) read with Articles 25, 26, 29(1) and 30 of the Constitution.

100Copy pinpoint100. Mr. Giri submitted that the Petitioner is a minority educational institution admitting students from the minority community in a fair, transparent and non-exploitative manner, based on inter se merit, and cannot be subjected to the NEET for the purposes of admission to the Under-graduate MBBS and Post-graduate degrees in medicine. Reemphasising Mr. · H

CHRISTIAN MEDICAL COLLEGE VELLORE & ORS. v. 985 UNION OF INDIA AND ORS. [ALTAMAS KABIR, CJI.]

Salve's submissions, Mr. Giri submitted that the activity of A . running medical, allied health sciences and nursing courses, in order to ensure constant supply of doctors and other para- medical staff to. the hospitals and other facilities engaged in the healing of the sick, are acts done in furtherance· of the Petitioner's religious faith, which stand protected under Articles B 25, 26 and 30 of the Constitution.

101Copy pinpoint101. Mr. Giri submitted that the Government of Punjab, in its Department of Medical Education arid Research, vide its Notification No. 5/7/07.3HBITl/2457 dated 21.05.2007, for C admission to MBBS, BDS, BAMS and BHMS courses and vide Notification No. 5/8/2007-3HB3/1334 dated 21.03.2007, for admission in Post-graduate Degree/ Diploma courses in the State of Punjab, excluded the Christian Medical College and Christian Dental College, Ludhiana, from the admission process conducted by Baba Farid University of Health D Sciences, Faridkot, on behalf of the State Government for various Under-graduate and Post-graduate Medical Degree courses. Mr. Giri submitted that the impugned Regulations, being ultra vires the provisions of Articles 19(1)(g) and Articles 25, 26, 29(1} and 30 of the Constitution, having been promulgated by an ad hoc body, were liable to be struck down.

102Copy pinpoint102. Mr. K. Radhakrishnan, learned Senior Advocate, appeared for the Annoor Dental College and Hospital, situated in the State of Kerala, adopted the submissions made by the other counsel and urged that the submissions advanced, as far as medical colleges and institutions are concerned, apply equally to dental colleges, which are under the authority of the Dental Council of India and is governed by the Dentists Act,

1948. Mr. Radhakrishnan submitted that the impugned G Regulations were also ultra vires the Dentists Act, 1948, Section 20 whereof empowers the Dental Council of India to pr~scribe conditions for admission to the courses for training of dentists and dental hygienists, but does not authorize the Oental Council of India or any agency appointed by it to conduct H

986 SUPREME COURT REPORTS [2013] 7 S.C.R.

A admission tests for selection of students for the BOS and MOS courses. Mr. Radhakrishnan also urged that the impugned Regulations which attempted to enforce NEET, were ultra vires the provisions of the Dentists Act, 1948, as also the relevant provisions of the Constitution and are, therefore, liable to be B struck down.

103Copy pinpoint103. Transferred Case No.8 of 2013 which arises out of Writ Petition No.5939 (M/S) of 2012, was filed by the U.P. Unaided Medical Colleges Welfare Association and Others. C Appearing for the said Association, Mr. Guru Krishnakumar, learned Senior Advocate, while adopting the submissions already made, reiterated that the functional autonomy of institutes is an integral right under Article 19(1 )(g) of the Constitution, as clearly set out in the decision rendered in the TM.A. Pai Foundation case (supra). Learned Senior counsel submitted that the fundamental right guaranteed under Article 19(1 )(g) includes the right to admit students in the privately run professional colleges, including medical, dental and engineering colleges, and viewed from any angle, the impugned Regulations were impracticable, besides causing violence to Article 19(1)(g) of the Constitution. Mr. Guru Krishnakumar submitted that the impugned Regulations and the Notifications promulgating the same, were liable to be struck down.

104Copy pinpoint104. Mr. C.S.N. Mohan Rao, learned Advocate, who appeared for the Writ Petitioner, Vigyan Bharti Charitable Trust in Writ Petition (C) No.15 of 2013, submitted that the Petitioner was a registered charitable trust running two medical colleges and a dental college in the State of Odisha. The various G submissions made by Mr. Rao were a repetition of the submissions already made by Mr. Harish Salve and others. Mr. Rao, however, referred to a Two-Judge Bench decision of this Court in Dr. Dinesh Kumar Vs. Motilal Nehru Medical Colleges, Allahabad & Ors. [(1985) 3 SCC 727], wherein, while considering the question of admission to medical colleges and H

CHRISTIAN MEDICAL COLLEGE VELLORE & ORS. v. 987 UNION OF INDIA AND ORS. [ALTAMAS KABIR, CJI.] the All India Entrance Examination, it was, inter alia, held that A it should be left to the different States to either adopt or reject the National Eligibility Entrance Test proposed to be conducted by the Medical Council of India. Mr. Rao submitted that as stated by Justice V. Krishna Iyer in the case of Jagdish Sharan & Ors. Vs. Union of India & Ors. ((1980) 2 SCC 768], merit 8 cannot be measured in terms of marks alone, but human sympathies are equally important. The heart is as much a factor as the head in assessing the social value of a member of the medical profession.

105Copy pinpoint105. In Writ Petition (Civil) No.535 of 2012, Saveetha c Institute of Medical and Technical Sciences, a Deemed ' University, declared as such under Section 3 of the University Grants Commission Act, 1956, has questioned the impugned Notifications and the amended Clauses of the MCI Regulations on the same grounds as in the earlier cases. Mr. Jayanth Muth D Raj, learned Advocate appearing for the Petitioner, repeated and reiterated the submissions made earlier in regard to the law as laid down in the TM.A. Pai Foundation case (supra) and in P.A. lnamdar's case (supra) and urged that the impugned Notifications had been issued in violation of the decisions rendered in the said two cases and in other subsequent cases indicating that private institutions had the right to evaluate their admission procedure based on principles of fairness, transparency and non-exploitation. Mr. Muth Raj submitted that in the absence of any consensual arrangement in the case of the Petitioner, the MCI or the Dental Council of India could not compel the Petitioner to accept the National Eligibility-cum-Entrance Test on the basis of the impugned Regulations. Learned counsel submitted that to that extent, the impugned amended Regulations and the Notifications issued to enforce the same were ultra vires Articles 14, 19(1)(g) and 26 of the Constitution and were liable to be struck down.

106Copy pinpoint106. Writ Petition (Civil) No.495 of 2012 and Transfered Case No.108 of 2012 involve common questions regarding the H

988 SUPREME COURT REPORTS [2013] 7 S.C.R.

A conducting of NEET in English and Hindi in the State of Gujarat, where the medium of instructions under the Gujarat Board of Secondary Education is Gujarati. The submissions made both on the behalf of the Petitioners and the State of Gujarat were ad idem to the extent that Entry 66 of List I restricts the B legislative powers of the Central Government to "co-ordination and determination of standards of education". Thus, as long as the Common Entrance Examination held by the State or the other private institutions did not impinge upon the standards laid down by Parliament, it is the State which can, in terms of c Entry 25 of List Ill, prescribe such a Common Entrance Test in the absence of any Central Legislation relatable to Entry 25 of List Ill. Mr. K.K. Trivedi, learned Advocate, appearing for the · Petitioners submitted that the impugned Regulations and Notifications were, ultra vires Section 33 of the 1956 Act, since prescribing a Common Entrance Test is not one of the stated 0 purposes of the Act and were, therefore, liable to be struck d~. /

107Copy pinpoint107. Appearing for the Medical Council of India, Mr. Nidhesh Gupta, learned Senior Advocate, .submitted that the E Medical Council of India Act, 1956, is traceable to Entry 66 of List I, as was held in MCI Vs. State of Kamataka [(1998) 6 SCC 131]. In paragraph 24 of the said decision it was categorically indicated that the Indian Medical Council Act being relatable to Entry 66 of Listi, prevails over any State enactment to the extent the State enactment is repugnant to the provisions of the Act, even though the State Acts may be relatable to Entry 25 or 26 of the Concurrent List.

108Copy pinpoint108. Mr. Gupta submitted that Entry 66 in List I empowers the Central Government to enact laws for coordination and determination of standards in institutions for higher education or research and scientific and technical institutions. Learned counsel also urged that Section 19-A (1) of the Indian Medical Council Act, 1956, provides that the Council may prescribe_ the minimum standards of medical education required for granting H

CHRISTIAN MEDICAL COLLEGE VELLORE & ORS v. 989 UNION OF INDIA AND ORS. [ALTAMAS KABIR, CJI.]

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

109Copy pinpoint109. Responding to the two questions, Mr. Gupta submitted that once the 1997 Regulations were accepted by the various Medical Colleges and Institutions as being in accordance with law and the powers vested under Entry 66 of List I, the first issue stands conceded, since the 1997 F Regulations prescribing the eligibility criteria for admission in medical courses had been accepted and acted upon by the medical institutions. In addition to the above, Mr. Gupta contended that Section 33(1) of the 1956 Act vested the MCI with powers to frame regulations to provide for the conduct of G professional examinations, qualifications of examiners and the conditions of admission to such examinations. Mr. Gupta submitted that, under the said provision, it can be said that the MCI was within its rights to conduct the NEET and stipulate the H

990 SUPREME COURT REPORTS [2013] 7 S.C.R.

A qualifications of examiners and the conditions of admission to such examinations. ·

110Copy pinpoint110. Mr. Gupta submitted that it would be incorrect to say that standards of education can have no direct impact on norms of admission. Learned senior counsel pointed out that in paragraph 36 of the judgment in Preeti Srivastava's case (supra), it had been indicated that the standards of education are impacted by the caliber of students admitted to the institution and that the process of selection and the criteria for selection of candidates has an impact on the standards of medical education. Mr. Gupta submitted that the views expressed by this Court in the decisions rendered in Nivedita Jain's case (supra) and that of Ajay Kumar Singh's case (supra), which had taken a contrary view, were overruled in Preeti Srivastava's case (supra). Mr. Gupta also relied on the decision of this Court in Bharati Vidyapeeth (Deemed University) and Ors. Vs. State of Maharashtra & Anr. [(2004) 11 SCC 755], wherein while following the decision in Preeti Srivastava's case (supra), it was reiterated that prescribing standards would include the process of admission. Mr. Gupta E submitted that the said decision had, thereafter, been followed in Prof. Yashpal Vs. State of Chhattisgarh ((2005) 5 SCC 420); State of M.P. Vs. Gopal D. Teerthani ((2003) 7 SCC 83], Harish Verma Vs. Rajesh Srivastava ((2003) 8 SCC 69] and in Medical Council of India Vs. Rama Medical College F Hospital & Research Centre ((2012) 8 SCC 80]. Learned senior counsel urged that the expression "standard" used in Entry 66 of List I has been given a very wide meaning by this Court in Gujarat University, Ahemadabad Vs. Krishna Ranganath Mudholkar [(1963) Supp. 1 SCR 112] and accordingly anything concerned with standards of education would be included within Entry 66 of List I and would be deemed to be excluded from other Lists. Mr. Gupta also placed reliance on MCI Vs. State of Kamataka (1998 (6) SCC 131], wherein it was held that it was settled law that while considering the amplitude of the entries in Schedule VII of the Constitution, the

CHRISTIAN MEDICAL COLLEGE VELLORE & ORS. v. 991 UNION OF INDIA AND ORS. [ALTAMAS KABIR, CJI.]

widest amplitude is to be given to the language of such Entries. A Mr. Gupta ·urged that without prejudice to the contention that Entry 66 of List I directly permits the admission process and the examination itself being regulated and/or conducted by the MCI, even if the Entries did not directly so permit, the MCI was entitled to regulate the said functions since even matters which B are not directly covered by the Entries, but are ancillary thereto, can be regulated. Mr. Gupta submitted that in Krishna Ranganath Mudholkar's case (supra), it was held that power. to legislate on a subject should normally be held to extend to all ancillary or subsidiary matters, which can fairly and c reasonably be .said to be comprehended in that subject. Reference Was also made to the decisions of this Court in Harakchand Ratanchand Banthia Vs. Union of India [(1969) 2 SCC 166]; ITC Vs. Agricultural Produce Market Committee [(2002) 9 SCC 232]; and Banarasi Dass Vs. WTO [1965 (2) D SCR 355], wherein the same principle has been reiterated. Mr. Gupta submitted that Regulations validly made become a part of the Statute itself, as was indicated in State of Punjab Vs. Devans Modern Breweries Ltd. [(2004) 11 SCC 26]; Annamalai University Vs. Information & Tourism Department E f(2009) 4 SCC 590] U.P. Power Corporation Vs. NTPC Ltd. [(2009) 6 SCC 235] and the St. Johns Teachers Training Institute case (supra). According to Mr. Gupta, the NEET Regulations having been validly_ made and the requisite legislation being available in Sections 19A, 20 and 23 of the Indian Medical Council Act, 1956, the NEET Regulations must be deemed to be part of the Act itself.

111Copy pinpoint111. Regarding the MCI's power to conduct the NEET, Mr. Gupta urged that once it had been held in Preeti Srivastava's case (supra) that the standard of education is impacted by the process of selection, the power to determine the said process of selection is implicit. In fact, Mr. Gupta-submitted that the aforesaid question stands concluded by the judgment of this Court in Veterinary Council of India Vs. Indian Council of Agricultural Research [(2000) 1 SCC 750], wherein, while H

992 SUPREME COURT REPORTS [2013] 7 S.C.R.

A considering the provisions of the Veterinary Council of India .Act which were materially the same as those of the Indian Medical Council Act, it was held relying on the judgment in Preeti Srivastava's case (supra) that the Veterinary Council of India was competent to and had the requisite powers to hold the All B India Entrance Examination.

112Copy pinpoint112. Mr. Gupta urged that this Court had repeatedly emphasised how profiteering and capitation fee and other malpractices have entered the field of medical admissions, which adversely affect the standards of education in the country. C Such malpractices strike at the core of the admission process and if allowed to continue, the admission process will be reduced to a farce. It was to put an end to such malpractices that the MCI introduced NEET and was within its powers to do so. - D

113Copy pinpoint113. On the necessity of furnishing draft Regulations to the State Governments, as stipulated under Section 19A(2) and for Committees under Sectiqn 20, Mr. Gupta urged that the same was merely directory and not mandatory. Referring to the E decision of this Court in State of U.P. Vs. Manbodhan Lal Srivastava [1958 SCR 533], learned counsel submitted that this Court while considering the provisions of Article 320(3) of the Constitution, which provides for consultation with the Union Public Service Commission or the State Public Service F Commission, held that the said requirement in the Constitution was merely directory and not mandatory. Drawing a parallel to the facts of the said case with .the facts of the present set of cases, Mr. Gupta urged that the provisions of Section 19A(2) must be held to be directory and not mandatory and its non- · G compliance could not adversely affect the amended Regulations and the Notifications issued in pursuance thereof.

Mr. Gupta submitted that before amending the Regulations, detailed interaction had been undertaken with the State Governments· at various stages. Learned counsel submitted that as far back as on 14.9.2009, 5.2.2010 and 4.8.2010, letters

CHRISTIAN MEDICAL COLLEGE VELLORE & ORS. v. 993 UNION OF INDIA AND ORS. [ALTAMAS KABIR, CJI.]

had been written to various State Governments and the responses received were considered. There were joint meetings between the various State representatives and the other concerned parties and the concerns of most of the State Governments were fully addressed. B

114Copy pinpoint114. On the question of federalism and the powers of the State under Article 254 of the Constitution, Mr. Gupta contended that since the MCI derived its authority from Entry 66 of List I, it is a subject which is exclusively within the domain of the Union. Mr. Gupta submitted that all the arguments advanced on behalf of the Petitioners were on the erroneous assumption that the C Regulations had been made under Entry 25 of List Ill. Mr. Gupta pointed out that in paragraph 52 of the judgment in Preeti Siivastava's case (supra), this Court had held that the impugned Regulations had been framed under Entry 66, List I and that the Regulations framed by the MCI are binding and the States D cannot in .exercise of powers under Entry 25 of List Ill make Rules and Regulations which are in conflict with or adversely impinge upon the Regulations framed by the MCI for Post- graduate medical education. Mr. Gupta urged that since·the standards laid down by the MCI are in exercise of powers conferred by Entry 66 of List I, the same would prevail over all State laws on the same subject.

115Copy pinpoint115. Mr. Gupta also urged that the ratio of Lava Narendranath's case (supra) had been misunderstood on behalf of the Petitioners and the arguments raised on behalf of Yenepoya University was based on the ratio that Entry 66 of List I is not relatable to a screening test prescribed by the Government or by a University for selection of students from out of a large number applying for admission to a particular course of study. Mr. Gupta pointed out that the ratio of the decision in G Preeti Srivastava's case (supra) and in Lavu Narendranath's case (supra) show that the Government which ran the colleges had the right to make a selection out of a large number of candidates and for this purpose they could prescribe a test of H

994 SUPREME COURT REPORTS [2013] 7 S.C.R.

A their own which was not contrary to any law. It was urged that in the said case, there was no Central legislation occupying the field. Mr. Gupta urged that NEET is not a mere screening test, but an eligibility test which forms the basis of selection. Mi. Gupta submitted that any test which might be prescribed by a B State Government would be against the law in the present case, · being in the teeth of the NEET Regulations.

116Copy pinpoint116. With regard to the submissions made on behalf of the minority institutions enjoying the protection of Article 30, Mr. Gupta contended that reliance placed on behalf of CMC, C Vellore, on the judgment in the Ahmedabad St. Xavier's College Society Vs. State ofGujarat[(1974) 1SCC717], was entirely misplaced, and, in fact, the said judgment supports a test such as NEET. Mr. Gupta submitted that on a proper analysis of the said judgment and in particular the judgment delivered by Chief Justice Ray, (as His Lordship then was), it would be evident that even in the said judgment th.e right of religious and linguistic minorities to establish and administer educational institutions of the choice of the minorities had been duly recognised. Chief Justice Ray also observed that if the scope of Article 30(1) is made an extension of the· right under Article 29(1) as a right to establish and administer educational institutions for giving religious instruction or for imparting education in their religious teachings or tenets, the fundamental right of minorities to establish and administer educational institutions of their choice would be taken away. It was also observed in the judgment that every section of the public, the majority as well as minority, has rights in respect of religion as contemplated in Articles 25 and 26 of the Constitution. Mr. Gupta urged that the whole object of conferring the right on minorities under Article 30 is to ensure that there would be equality between the majority and the minority. It was urged that it is tor the aforesaid reason that whenever the majority community conferred upon itself a special power to overrule or interfere with the administration and management of the minority institutions, the Supreme Court struck down the said power. Mr.

CHRISTIAN MEDICAL COLLEGE VELLORE & ORS. v. 995 UNION OF INDIA AND ORS. [ALTAMAS KABIR, CJI.]

Gupta submitted that whenever an attempt was made to interfere with the rights guaranteed to religious and linguistic minorities, as in the St. Xavier's case (supra), the same being arbitrary and unreasonable, was struck down. Reliance was also placed on the decision in the case of Rev. Fathe.r W. Proost, and in the case of Rt. Rev. Bishop S.K. Patro, where the impugned order of the Secretary to the Government dated 22nd May, 1967, set aside the order passed by the Presidenf of the Board of Secondary Education: Mr. Gupta urged that in the very initial stage of judicial consideration in these matters, in State of Kera/a Vs. Very Rev. Mother Provincial ((1970) 2 c sec 417], the impugned provisions required nominees of the . University and the Government to be included in the Governing Body. The same being a direct infringement on the rights of the minorities to establish and administer institutions of their choice, the impugned provision was struck down. D

117Copy pinpoint117. Mr. Gupta submitted that in each of the aforesaid cases, ·an attempt was made by the majority to take over the management and to impose its substantive views. Learned counsel submitted that NEET does nothing of the sort, since it did not infringe any of the rights guaranteed either under Article E .19(1)(g) or Articles 25, 26, 29 and 30 of the Constitution. Mr. Gupta urged that the various questions raised on behalf of the Pf~titioners herein have been fully answered in P.A. lnamdar's case (supra). They also meet the tests prescribed in the St. Xavier's case (supra) as well. Mr. Gupta urged that Justice F Khanna in paragraph 105 of the judgment observed that Regulations which are calculated to safeguard the interests of teachers would result in security of tenure and would attract competent persons for the posts of teachers and are, therefore, in the interest of minority educational institutions, and would not G violate Article 30(1) of the Constitution. Mr. Gupta urged that by the same reasoning, Regulations. which are in the interest of the students and will attract the most meritorious students, are necessarily in the interest of the minority instituti_ons and do H

996 SUPREME COURT REPORTS [2013] 7 S.C.R.

A not, therefore, violate their rights under Article 30(1) of the Constitution.

118Copy pinpoint118. Mr. Gupta submitted that in the St. Xavier's case (supra), Justice Khanna had indicat_ed in his separate judgment the dual tests of reasonableness and of making the institution 8 an effective vehicle of education for the minority community and others who resort to it. Mr. Gupta submitted that NEET meets the test of reasonableness and fully assists in making the institution an effective- vehicle of education, since It ensures admission for the most meritorious students and also negates any possibility of admissions being made for reasons other than meri~ within each category. Mr. Gupta submitted that, in fact, in paragraph 92 of the judgment, Justice Khanna had observed that "~ regulation which is designed to prevent maladministration of an educational institution cannot be said to offend Clause (1) of Article 30". Mr. Gupta re-emphasized that NEET was not in any way against the rights vested in educational institutions, being run by the miporities, but it was - in the interest of such minorities to have their most meritorious students ip the best institutes. E

119Copy pinpoint119. Dealing with the various tests referred t<? on behalf of the Petitioners in the different cases, Mr. Gupta submitted that the ratio in the TM.A. Pai Foundation case (supra) also supports the NEET Regulations. Mr. Gupta contended that the right of minority institutions to admit students was not being denied, inasmuch as, the concerned institutes could admit students of their own community, but from the list of successful candidates who appear for the NEET. Mr. Gupta submitted that in the aforesaid judgment it was also observed that merit is usually determined by a common entrance test conducted by the institution or in case of professional colleges, by government agencies. Mr. Gupta submitted that it had also been emphasized that Regulations in national interest are to apply to all educational institutions, whether run by a minority or non- minorities and that an exception to the right under Article 30 is H

CHRISTIAN MEDICAL COLLEGE VELLORE & ORS. v. 997 UNION OF INDIA AND ORS. [ALTAMAS KABIR, CJI.]

the power of the State to regulate education, educational · A standards and allied matters. Mr. Gupta submitted that in the TM.A. Pai Foundation case (supra), it had been indicated that regulatory measures for ensuring educational standards and maintaining excellence thereof are no anathema to the protection conferred by Article 30(1). B

120Copy pinpoint120. Mr. Gupta submitted that the admission process followed by CMC, Vellore, failed to meet any of the tests relating to transparency and fairness and lack of arbitrariness. Mr. Gupta pointed out that, in the case of.a candidate for admission in the Under-graduate or Post-graduate courses in C the said institution, a candidate cannot be selected unless he is sponsored by the Diocese and the competition is limited to the particular candidates, who had been sponsored by a particular Diocese, which Mr. Gupta submitted is violative of · Article 14 of the Constitution and also the principles of merit. D

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

121Copy pinpoint121. Mr. Gupta submitted that the impugned Regulations · H

998 SUPREME COURT REPORTS [2013) 7 S.C.R.

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

Mr. Gupta pointed out that it had inter alia been indicated in paragraph 24 of the affidavit filed on behalf of the Commission that the Commission was also of the view that all the constituent medical colleges of "Deemed Universities" may be asked to comply with the Notification dated 21.12.2010, issued by the Medical Council of India, in view of Article 6.1 in the UGC (Institutions Deemed to be Universities) Regulations, 2010, which states that:

"Admission of students to all deemed to be universities, public· or private, shall be made strictly on merit based on an All India examination as prescribed by the Regulations and in consistence with the national policy in this behalf, from time to time.".

122Copy pinpoint122. On the percentile system of grading, which had been touched upon by Dr. Dhawan, it was submitted that the said system of ranking/ grading was being followed internationally in many of the premier institutions around the globe.

123Copy pinpoint123. Adverting to the submissions made by Mr. L. Nageshwara Rao, on behalf of the States of Andhra Pradesh H and Tamil Nadu, regarding the enactment of the A.P.

CHRISTIAN MEDICAL COLLEGE VELLORE & ORS. v. 999 UNION ·OF INDIA AND ORS. [ALTAMAS KABIR, CJI.]

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

124Copy pinpoint124. As to the weightage of marks being given up to a maximum of 30%, to government servants serving in cremote areas, Mr. Gupta said that the same had been upheld by this E Court in State of M.P. Vs. Gopa/ D: Tirthani [(2003) 7 SCC 83].

125Copy pinpoint125. Replying to the submissions made on behalf of some of the other Petitioners and, in particular, on behalf of the F Christian Medical College, Ludhiana, in Writ Petition No. 20 of 2012, Mr. Gupta urged that Section 3B of the 1956 Act empowers the Board of Governors to exercise the powers and discharge the functions of the Council and, accordingly, even if the appointment of the members of the Board of Governors G was ad hoc in nature, it made no difference to their working ;ind discharging the functions ofthe Council.

126Copy pinpoint126. Mr. Gupta urged that private bodies and religious and linguistic minorities have a fundamental right to establish and administer medical institutions or other institutions of their H

1000 SUPREME COURT REPORTS [2013] 7 S.C.R.

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

127Copy pinpoint127. Mr. Sidharth Luthra, learned Additional Solicitor General, appearing for the Union of India, in the Ministry of Health and Family Welfare, at the very outset, submitted that the Union of India fully supported the stand of the MCI. Mr. Luthra urged that the impugned Notifications amending the E Regulations in regard to the introduction of NEET for both graduate medical education and post-graduate medical education had been validly made under powers conferred upon the MCI under Section 33 of the 1956 Act, upon obtaining the previous sanction of the Central Government, as required under F the said Section. Mr. Luthra ~ubmitted that there was a definite rationale behind holding a single examination. The learned ASG urged that the NEET Regulations had been framed by the MCI, after due deliberations with the Central Government and, broadly speaking, the logic behind enacting the said .G Regulations were to introduce uniformity of standards, merit and transparency and to lessen the hardship of aspiring students. Mr. Luthra urged that the NEET and the amending Regulations, which had been impugned, were not ultra vii'es since the 1956 Act is relatable to Entry 66 of the Union List and prevails over any State enactment, even though the State Acts may be

CHRISTIAN MEDICAL COLLEGE VELLORE & ORS v.1001 UNION OF INDIA AND ORS. [ALTAMAS KABIR, CJI.]

relatable fo Entry 25 or 26 of the Concurrent List, to the extent the provisions of the State Acts were repugnant to the Central legislation. Mr. Luthra urged that Regulations framed under Section 33 of the 1956 Act, with the previous sanction of the Central Government, have statutory status and the said Regulations were framed to carry out the purposes of the said B Act.

128Copy pinpoint128. Mr. Luthra .repeated Mr. Gupta's submission that the rights of the minorities preserved under Article 30 were not adversely affected or prejudiced in any way, as had been C explained in P.A. /namdar's case (supra). The learned ASG submitted that NEET had been introduced· in the national interest to ensure that meritorious students did not suffer the • probl.em of appearing in multiple examinations conducted by various agencies which also resulted in different standards for admission, which had the effect of compromising merit. Mr. D Luthra urged that the earlier system of multiple examinations was neither in the national interest nor in the interest of maintaining the standards of medical education, nor did it serve the interest of poor/middle class students who had to buy forms of several examinations and travel across the country to appear E in multiple examinations. It was urged that any Regulation framed in the national interest. must necessarily apply to all educational institutions, whether run by the majority or the minority groups. It was also urged that such a Regulation must necessarily be read into Article 30 of the Constitution. Mr. F Luthra referred ·to the views expressed in that behalf in Paragraph 107 of the judgment in the T.M.A. Pai Foundation case (supra). The learned ASG submitted that the amended Regulations do not restrict or in any mannertake away the rights of the minority institutions under Articles 19(1 )(g) and 30 of the G Constitution to admit students from their community.

129Copy pinpoint129. Mr. Luthra reiterated the submissions made by Mr. Gupta that the right conferred on the religious and linguistic minorities to administer educational institutions of their choice, H

1002 SUPREME COURT REPORTS [2013] 7 S.C.R.

A is not an absolute right and may be regulated in certain special circumstances.

130Copy pinpoint130. The learned ASG also urged that the merit list to be published on the results of the NEET, will contain all the details of each candidate, including the State, category, minority status, caste and tribal status in front of his/her name and rank so that there would be no hindrance whatsoever in implementing the constitutional principles of reservation and minority rights and merit. Furthermore, the transparency in the process of admission would also be fully achieved.

131Copy pinpoint131. On the question of different mediums of instruction in schools throughout the country, Mr. Luthra submitted that the NEET - UG would be conducted in multiple languages, such as English, Hindi, Telegu, Assamese, Gujarati, Marathi, T<fmil and Bengali, and hence, the submissions made that NEET was not being conducted in the regional languages, is misleading.

132Copy pinpoint132. One other important aspect touched upon by Mr. Luthra is with regard to the syllabus for NEET, which would be based on the CBSE syllabus. The learned ASG submitted that the syllabus for NEET had been prepared by the MCI, after obtaining feedback from different stake-holders, including the National Board and State Boards, across the country. Mr. Luthra submitted that the Regulations have been amended to implement the provisions of the Act so as to meet the difficulties, which had been raised by some of the States. The learned ASG submitted that the NEET Regulations were clearly within the competence and -jurisdiction of the Medical Council in the discharge of its obligations to carry out the purposes of the Act, as had been enjoined in the different decisions of this Court G and, in particular, in Preeti Srivastava's case (supra). The learned ASG urged that the objections which had been sought to be taken on behalf of the various Petitioners, including the State Governments, with regard to the holding of the NEET examination, were wholly misconceived and were liable to be rejected.

CHRISTIAN MEDICAL COLLEGE VELLORE & ORS. v.1003 UNION OF INDIA AND ORS. [ALTAMAS KABIR, CJI.]

133Copy pinpoint133. Various issues of singular importance, some of which have been considered earlier, arise out of the submissions made on behalf of the respective parties questioning the vires of the amended regulations relating to Under-graduate and ·Post-graduate medical education, namely, B (i) The validity of the MCI Regulations and the DCI Regulations and the amendments effected therein with regard to Under-graduate and Post-graduate courses of medicine in medical and dental colleges and institutions in the light of Section 19A(2) of the Indian Medical Council C ACt, 1956, and the corresponding provisions in the Dentists Act, .1948.

(ii) The jurisdiction and authority of the MCI and the DCI to conduct a single National Eligibility-cum-Entrance Test for admission to the M.B.B.S., B.D.S. and Post-graduate courses in both the disciplines.

(iii) The rights of the States and private institutions to establish and administer educational institutions and to admit students to their M.B.B.S., B.D.S. and Post-graduate courses;

(iv) The impact of NEET on the rights guaranteed to · .religious and linguistic minorities under Article 30 of the Constitution. · F (v) Do the impugned Regulations come within the ambit of Entry 66, List I, of the Seventh Schedule to the Constitution?; ·

(vi) The effect of Presidential orders made under Article 371D of the Constitution of India. G

134Copy pinpoint134. Despite the various issues raised in this batch of cases, the central issue relates to the validity of the amended Regulations and the right of the MCI and the DCI thereunder to introduce and enforce a common entrance test, which has the H

1004 SUPREME COURT REPORTS (2013) 7 S.C.R.

A effect of denuding the State and private institutions, both aided and unaided, some enjoying the protection of Article 30, of their · powers to admit students in the M.B.B.S., B.D.S. and the Post- graduate Courses conducted by them. There is little doubt that the impugned Notifications dated 21.12.2010 and 31.5.2012, B respectively, and the amended Regulations directly affect the right of private institutions to admit students of their choice by conducting their own entrance examinations, as they have been doing all along. Attractive though it seems, the decision taken by the MCI and the DCI to hold a single National Eligibility-cum- C Entrance Test to the M.B.B.S., B.D.S. and the Post-graduate courses in medicine and dentistry, purportedly with the intention of maintaining high standards in medical education, is fraught · with difficulties, not the least of which is the competence of the MCI and the DCI to frame and notify such Regulations. The ancillary issues which arise in regard to the main issue, relate 0 to the rights guaranteed to citizens under Article 19(1 )(g) and to religious and linguistic minorities under Article 30 of the Constitution, to establish and administer educational institutions of their choice.

135Copy pinpoint135. Doubts have been raised regarding the competence of the MCI and the DCI to amend the 1997 and 2000 . Regulations, or the 2007 Regulation and to issue the impugned Notifications to cover all the medical institutions in the country, which have their own procedures relating to admissions to the F M.B.B.S., B.D.S. and Post-graduate Courses which passed the triple test indicated in P.A. lnamdar's case (supra). The validity of the MCI Regulations of 1997 and 2000 and the DCI Regulations of 2007 and the ame.ndments effected therein has been questioned with reference to Sections 19A(2) and 20 of the 1956 Act and Section 20 of the 1948 Act. While empowering the MCI and the DCI to prescribe minimum standards of medical education required for granting recognised medical qualifications, it has also been stipulated that the copies of the draft Regulations and all subsequent amendments thereof are to be furnished by the Council to all

CHRISTIAN MEDICAL COLLEGE VELLORE & ORS v.1005 UNION OF INDIA AND ORS. [ALTAMAS KABIR, CJI.]

the State Governments and the Council shall, before submitting the Regulations or any amendment thereof, as the case may be, to the Central Government for sanction, take into · consideration the comments of any State Government received within three months from the furnishing of such copies. The said provisions do not appear to have been complied with by the B MCI or the DCI, which rendered the Regulations and the amendments thereto invalid. On behalf of the MCI· an attempt was made to justify the omission by urging that the directions were only directory and not mandatory. In support of su.ch a contention reliance was placed on Manbodhan Lal Srivastava's c case (supra), wherein the provisions of Article 320(3) of the Constitution providing for consultati.on with the Union Public Service Commission or the State Public Service Commission, were held to be directory and not mandatory. A submission was also made that before the Regulations were amended, MCI had 0 interacted with the State Governments and letters had also been exchanged in this regard and the responses were taken into account by the Council while amending the Regulations.

136Copy pinpoint136. We are afraid that the said analogy would not be applicable to the facts of these cases. The direction contained in Sub-section (2) of Section 19A of the 1956 Act makes it a . pre-condition for the Regulations and all subsequent amendments to be submitted to the Central Government for sanction. The Council is required to take into consideration the comments of any State Government within three months from the furnishing of copies of the draft Regulations and/or subsequent amendments thereto. There is nothing to show that the MCI ever sent the draft amended Regulations to the different State Governments for their views. The submission of the draft Regulations and all subsequent amendments ther~to cannot be said to be directory, since upon furnishing of the draft Regulations and all subsequent amendments thereto by the Council to all the State Governments, the Council has to take into consideration the comments, if any, received' from any H

1006 SUPREME COURT REPORTS [2013] 7 S.C.R.

A State Government in respect thereof, before submitting the same to the Central Government for sanction.

137Copy pinpoint137. The fact situation in Manbodhan Lal Srivastava's case (supra) was different from the fact situation in this batch of cases. Article 320(3) of the Constitution provides for 8 consultation by the Central or State Government with regard to the matters enumerated therein. In the instant case, it is not a case of consultation, but a case of inputs being provided by the ~tate Governments in regard to the Regulations to be · C framed by the MCI or the DCI. Realising the difficulty, Mr. Gupta had argued that since the 1997 and 2000 Regulations had been acted upon by the concerned parties, the same must be held to have been accepted and the validity thereof'was no longer open to challenge.

138Copy pinpoint138. Mr. Gupta's aforesaid submissions cannot be accepted, inasmuch as. an invalid provision cannot be validated simply by acting on the basis thereof.

· 1'39. Mr. Gupta has also urged that the MCI derived its E authority for framing the Regulations and/or effecting amendments thereto from Entry 66, List I, which is within the domain of the Central Government. Accordingly, the same would have primacy over all State laws on the subject.

140Copy pinpoint140. Mr. Gupta's said submission finds su_pport in Preeti F Srivastava's case (supra), wherein it has been held that the Regulations framed by the MCI is binding upon the States having been framed under Entry 66, List I of the Seventh Schedule to the Constitution. But, where does it take us as far as these cases are concerned which derive their rights and G status under Articles 19(1)(g), 25, 26, 29(1) and 30 of the Constitution? Can the rights guaranteed to individuals and also religious and linguistic minorities under the said provisions of the Constitution, be interfered with by legislation and that too by way of delegated legislation? H

CHRISTIAN MEDICAL COLLEGE VELLORE & ORS. v.1007 UNION OF INDIA AND ORS. [ALTAMAS KABIR, CJI.]

141Copy pinpoint141. The four impugned Notifications dated 21.12.2010 A and 31.5.2012 make it clear, in no uncertain terms, that all admissions to the M.8.8.S. and the B.D.S. courses and their respective Post-graduate courses, shall have to be made solely on the basis of the results of the respective NEET, thereby preventing the States and their authorities and privately-run B institutions from conducting any separate examination for admitting students to the courses run by them. Although, Article 19(6) of the Constitution recognizes and permits reasonable restrictions on the right guaranteed under Article 19(1)(g), the course of action adopted by the MCI and the DCI would not, in c our view, qualify as a reasonable restriction, but would amount to interference with the rights guaranteed under Article 19(1){g) and, more particularly, Article 30, which is not subject to any restriction similar to Article 19(6) of the Constitution. Of course, over the years this Court has repeatedly observed that the right guaranteed under Article 30, gives religious and linguistic minorities the right to establish and administer educational institutions of their choice, but not to maladminister them and that the concerned authorities could impose conditions for maintaining high standards of education, such as laying down the qualification of teachers to be appointed in such institutions and also the curriculum to be followed therein. The question, however, is 111.'.hether such measures would also include the right to regulate the admissions of students in the said institutions.

142Copy pinpoint142. The first, second, third and fourth issues referred to hereinabove in paragraph 133, are intermingled and are taken up together for the sake of convenience. The aforesaid issues have been considered and answered by this Court in the Ahmedabad St. Xavier's College Society case (supra), St. Stephen's College case (supra), Islamic Academy case G (supra), P.A. lnamdar's case (supra) and exhaustively in the T.M.A. Pai Foundation case (supra). Can, therefore, by purporting to take measures to maintain high educational standards to prevent maladministration, the MCI and the DCI resort to the amended MCI and DCI Regulations to circumvent H

1008 SUPREME COURT REPORTS [2013] 7 S.C.R.

A the judicial pronouncements in this regard? The answer to such question would obviously have to be in the negative.

143Copy pinpoint143. The Supreme Court has consistently held that the right to administer an educational institution would also include the right to admit students, which right, in our view, could not be 8 taken away on the basis of Notifications issued by the MCI and the DCI which had no authority, either under the 1956 Act or the 1948 Act, to do so. The MCI and the DCI are creatures of Statute, having been constituted under the Indian Medical Council Act, 1956, and the Dentists Act, 1948, and have, C therefore, to exercise the jurisdiction vested in them by the Statutes and they cannot wander beyond the same. Of course, under Section 33 of the 1956 Act and Section 20 of the 1948 Act, power has been reserved to the two Councils to frame Regulations to carry out the purposes of their respective Acts. D It is pursuant to such power that the MCI and the DCI has framed the Regulations of 1997, 2000 and 2007, which set the standards for maintaining excellence of medical education in India. The right of the MCI and the DCI to prescribe such standards has been duly recognised by the Courts. However, E such right cannot be extended to controlling all admissions to the M.B.B.S., the B.D.S. and the Post-graduate Courses being run by different medical institutions in the country. At best, a certain degree of control may be exercised in regard to aided institutions, where on account of the funds being provided by the Government, it may have a say in the affairs of such institutions.

144Copy pinpoint144. These questions have already been considered and decided in the T.M.A. Pai Foundation case (supra), wherein, it was categorically held that the right to admit students being an essential facet of the right of a private medical institution, and, in particular, minority institutions which were unaided, non- capitation fee educational institutions, so long as the process of admission to such institutions was transparent and merit was adequately taken care of, such right could not be interfered with. H

CHRISTIAN MEDICAL COLLEGE VELLORE & ORS. v. 1009 UNION OF INDIA AND ORS. [ALTAMAS KABIR, CJI.]