U.P.Unaided Medical Colleges ... vs Union Of India ...

Hon'ble Rajan Roy,J.

(Delivered by Hon. Mr. Justice Rajan Roy) Heard Shri S.K.kalia, S.C. Misra and Sri Jaideep Narain Mathur Learned senior Advocate along with Sri Sandeep Dixit Learned Avocate for the petitioners and Dr L.P. Misra along with Sri Sanjay Bhasin, Sri Prafull Tewari for the state, Sri S.B.Pandey for the Union of India and Sri Gyanendra Srivastava for the Medical council of India.

All these writ petitions involve similar questions of fact and law, therefore, they have been heard together and are being decided by a common judgment.

For convenience writ petition No. 20575 (MB) of 2016 has been treated as the leading writ petition.

Petitioner of this writ petition is an Association of Un-aided Medical Colleges. The petitioners in other writ petitions are universities/colleges imparting education in medical courses such as MBBS etc., some of which claim to be minority institutions.

Factual Background of the case The facts leading to this writ petition are as follows:-

A common entrance test is held by the Medical Council of India under Regulation 5(5) of the Regulations known as Regulations on Graduate Medical Education, 1997 as amended vide Notification dated 21.12.2010, the vires of which is pending adjudication before the Supreme Court. This test is known as National Eligibility-cum-Entrance test (for short 'NEET'). It is part of the single window procedure for admission as envisaged in T.M.A. Pai Foundation and others vs. State of Karnataka and others reported in (2002) 8 SCC 481, P.A. Inamdar and others vs. State of Maharashtra and others reported in (2005) 6 SCC 537. It is applicable to Government as well as Private (aided and unaided) institutions, including minority institutions. It is a centralized test. Based on this test an All India Eligibility-cum-Merit list is prepared. Based on such list firstly, counselling is held for admissions to All India quota, in which the private institutions do no participate. On its completion, counselling is held for State seats. In such counselling the students are called on the basis of their ranking in the NEET list to choose the institution in which they want to take admission for MBBS/BDS first year course, as the case may be. The highest in rank is called to exercise his option first. On such option being exercised the seat and the institution opted for, is locked and is not available for the subsequent candidates in the said counselling. The option/choice is exercised so on and so forth by the students as per their ranking in the NEET list which reflects their merit in the NEET test, accordingly, till the seats are exhausted.

Such counselling also entails the verification of original testimonials of the students, their identification based on photograph and Bio-metric data collected by MCI or its agency which conducts NEET. In the present case such data has been provided to the State of U.P. and not to any private institution.

The Notification dated 21.12.2010 introducing NEET had earlier been declared ultra-vires the Constitution and the Medical Council Act, 1956, by the Supreme Court in Christian Medical College Vellore and others V. Union of India (2014) 2 SCC 305, but, on a petition being filed for review of the said judgment, the same was recalled on 09.05.2016 and the petitions were restored for a decision afresh, thereby reviving the aforesaid notification as also NEET for Academic Year 2016-17.

In the meantime AIPMET and CPMET 2016 had already been held in some States, which stood nullified by the aforesaid developments, consequently the candidates were required to re-appear in NEET 2016 and those who could not for them the date was extended for such appearance in the test held in July, 2016. In the meantime, on 25.04.2016 an Ordinance bearing No. 4 of 2016 was issued amending the Regulations of 1997 and providing an option to the States to opt out of NEET and hold their own tests for the academic year 2016-17 in respect of State seats at the undergraduate level. The State of U.P. Opted to adhere to NEET, consequently, it issued Government orders dated 11.08.2016,20.8.2016, 22.08.2016 and 31.08.2016 prescribing a centralized counselling for admission to MBBS/BDS in all colleges/universities in the State including private colleges as also minority institutions. These decision were modified on 02.09.2016 inter-alia inserting a requirement that the students should be domicile of State of U.P. in respect of 50% of the sanctioned intake of private institutions(excluding minority institutions) after deducting the pool of 15% for All India Quota. These seats have been termed as subsidized seats with only Rs.36,000/- payable as tuition fee. Thus, in addition to seats in Government colleges and Universities for which a student had to be a domicile of State of U.P. This condition was applied to private institution also albeit to the extent of 50% of its seats, as aforesaid.

The fee for remaining 50% non-subsidized seats is payable at an enhanced rate, almost double the normal fee which would have to be determined as per clause 1 and 2 of the order dated 02.09.2016 and Section 10 of U.P. Private Professional Educational Institutions (Regulations of Admission and Fixation of Fee ) Act, 2006( for short the Act 2006) so as to fund the subsidy for the 50% subsidized seats.

Ostensibly, this would not result in loss to the private colleges but they contend that such arbitrary, irrational and discriminatory arrangement would dissuade the students to take admission against non subsidized seats thereby rendering the running of the unaided institutions un-viable, consequently violating their rights under Article 19(1)(g) of the Constitution of India. The students would opt out for better and more economical options in other States leaving the private institutions high and dry.

The All India Quota admission process has not yet been completed, consequently, though, some students have been allotted institutions against the centralized counselling held by the State, for the State seats, the same is not yet final. The second round of counselling for filling up remaining seats is yet to take place. The academic session was to start from 3rd September 2016. The last date for joining of the candidates allotted seats in second round of counselling, is 26.09.2016. The last date for admitting the students against vacancies arising due to any reason is 30.09.2016, however, adherence to this time schedule prescribed vide a notification dated 05.08.2016 has been delayed for the aforesaid reason.

In the meantime, these petitions have been filed.

In the State of U.P. there are 12 Government colleges, 2 Government Medical Universities. For MBBS courses in these institutions, there are 1544 seats in the first year after deducting 296 of the All India Quota. For BDS, the seats are 51 after deducting 60 for the All India Quota, thus, there are total 1595 seats in Government institutions as State seats.

In addition to the above, there are 26 private Medical Colleges and 23 Dental Medical Colleges. For MBBS course in such institutions, there are 3100 seats and for BDS there are 2300 seats in the first year. Thus, the total number of MBBS seats are 4644, whereas BDS seats are 2351. The total combined seats are 6995. Out of these 50% are subsidized seats as per order dated 02.09.2016. In NEET list 2016, sixty two thousand (62000) students found eligible are domiciles of State of U.P. out of which 27537 have applied for centralized counselling by the State Government in pursuance to the advertisement dated 28.08.2016 till the mid-night of 31.08.2016. It is not out of place to mention that 50% was the cut off mark for NEET 2016.

A procedure for such counselling has been laid down in these government orders, which, inter alia, state that counselling shall take place on the basis of the registration and the merit-list prepared by the Central Board of Secondary Education which held the NEET 2016. A video conferencing of the counselling shall be held in terms of the government order dated 5.7.2011. The counselling shall be held at SGPGI Lucknow, State Medical Colleges at Meerut, Kanpur and Allahabad i.e. at 4 places . 2 rounds of counselling are to be held, followed by a mop-up round counselling for filling up left over seats.

ISSUES

(i) Whether this counselling should be centralized and should be held by the State or its agency or the association of private institutions is entitled to hold the same in view of their alleged rights under Article 19(1)(g) and/or Article 30(1) of the Constitution of India, is one of the question which falls for consideration in this case along with the validity of the impugned orders in this context.

(ii) The other question raised is regarding competence, permissibility or sustainability of the prescription of 50% subsidized seats with the stipulations and conditions as contained in the order dated 02.09.2016, specially the condition that only a domicile of State of U.P. could be considered for admission against such seats and imposing financial burden of the subsidy upon those admitted against the remaining 50% non-subsidized seats.

(iii) A question has also been raised as regards the applicability of reservation policy of the State as contained in the U.P. Admission to Educational Institutions (Reservation for Scheduled Caste, Scheduled Tribe and other Backward Classes) Act, 2006 which prescribes the application of reservation in favour of scheduled caste, scheduled tribes and other backward classes in admission to educational institutions including private institutions whether aided or unaided, by the State, other than the minority educational institutions referred to in clause (1) of Article 30 of the Constitution of India on the terms referred therein.

(iv) The application of the impugned decisions for holding centralized counselling for minority institutions and regulation of fee chargeable by them as also the extent of such regulation has also been questioned, more so, in the context of the Integral University which has been constituted under a State Act namely the Integral University Act, 2004 which permits it to provide not more than 50% reservation for the minority community under section 6 of the said Act. Similar benefit is being claimed by one of the petitioners Era Medical College, Lucknow.

Contention on behalf of the petitioners is that being private educational institutions imparting professional education, they have a fundamental right under Article19 (1)(g) of the Constitution of India to run their institutions and admit Students of their choice by holding their own counselling, albeit, from the same NEET List 2016, without compromising fairness, transparency and merit. The action of the State Government in issuing orders for holding a combined counselling for the State run universities and medical colleges as well as private colleges, is violative of this right. A similar right exists in favour of the minority educational institutions under Article 30(1) of the Constitution of India, rather a better right than the non-minority Institutions and the impugned orders which prescribe a Combined Counselling even for these Institutions are clearly impermissible. It is further contended that the Medical Council of India having framed regulations notified on 5th August 2016 with the approval of the Central Government in exercise of its powers under section 33 of the Medical Council Act which is a Central Legislation and as it deals with counselling based on the NEET list for the year 2016-17, therefore, the field being already occupied by the said Regulations which have statutory force, the jurisdiction of the State Government under Entry 25 of the Concurrent List stands ousted, therefore, for this reason also, the impugned orders are not sustainable.

The other challenge is to the order dated 2.9.2016, by which seats for admission have been classified into subsidized and non-subsidized seats with the condition that subsidized seats with fee of only Rs.36000/- per student shall be filled only by those students who are domicile of State of U.P., meaning thereby, those higher in rank as per NEET 2016, but, not domicile of U.P., will not be considered against these 50% seats, thereby, compromising merit and violating the dictum of the Supreme Court as also negating the concept of a single window procedure. Furthermore the financial burden of subsidized Seats has been shifted to the remaining 50% students, with the result, they would be reluctant to take admission in such a scenario where they will have to pay not only their fee, but also that of another student, thus, double the fee normally payable, which is quite irrational and constitutionally and legally unsustainable especially in view of the dictum of T.M.A. Pai (supra) where a somewhat similar arrangement of free and payment seats brought about in Unnikrishnana has been disapproved. It was contended that it would make the institution economically unviable which would ultimately have to be closed down as they would not be able to bear the expenditure for running the same and would not be able to maintain the standards prescribed by the Medical Council of India.

It is not in dispute that a Common Entrance Test has been held by the Medical Council of India through the Central Board of Secondary Education known as National Eligibility-cum-Entrance Test 2016 (for short ''NEET 2016') under Clause 5(5) of the Regulations on Graduate Medical Education 1997 (for short ''Regulations 1997') made by the Medical Council of India in exercise of powers under section 33 of the Medical Council of India Act 1956 (hereinafter referred as ''Act 1956'). None of the petitioners has raised any dispute as regards the said Entrance Examinations. In fact they have admitted to the fact that admissions are to be made on the basis of the Eligibility/Merit list prepared on the basis of NEET 2016 and not otherwise.

Rights of the petitioners, if any, and its scope First and foremost we deem it necessary to consider the alleged right of the petitioners, violation of which is being alleged, as also its scope, in the light of precedents laid down by the Supreme court on the subject. Reference may be made in this regard to the case of P.A. Inamdar (supra), wherein, the rights of such un-aided private institutions including the minority institutions, as considered in TMA Pai and Islamic Academy, was considered by a Seven Judge Bench and the law in this disregard was clarified.

While considering question No. 2 framed by the Supreme Court, in para 27 it was observed that even in respect of minority un-aided institutions that to admit students being one of the components of the right to establish and administer any institution the State cannot interfere therewith. Upto the level of undergraduate education the minority unaided educational institutions enjoy total freedom. However, different considerations would apply for graduate and postgraduate level of education, as also for technical and professional educational institutions. Excellence in education and maintenance of high standards at this level are a must. To fulfill these objectives the State can and rather must, in national interest, step in. The education, knowledge and learning at this level possessed by individuals collectively constitutes National wealth.

In paragraph 135 it was observed that in minority institutions, aided or unaided, admissions shall be at the State level. Transparency and merit shall have to be assured.

Thereafter, while further considering question No. 2 under the heading ''Admission procedure of unaided educational institutions' their Lordships categorically supported the holding of a Common Entrance Test for one group of institutions imparting same or similar education. Such institutions situated in more than one State may join together and hold a Common Entrance Test or the State may itself or through its agency arrange for holding such test. Out of such common merit list the successful candidates can be identified and chosen for being allotted to different Institutions depending on the courses of study offered, the number of seats, the kind of minority to which the Institution belongs and other relevant factors. The observations in para 136 relate not only to non-minority unaided Institutions, but also to minority institutions. Furthermore, the Supreme Court held such an agency conducting the Common Entrance Test must be one enjoying utmost credibility and expertise in the matter. It observed that this would better ensure the fulfillment of twin objects of transparency and merit. combined entrance test is necessary in the interest of achieving the said objectives and also for saving the student community from harassment and exploitation, holding of such Common Entrance Test followed by Centralized counselling, or in other words, a Single Window System regulating admissions does not cause any Dent in the right of minority un-aided educational institutions to admit students of their choice. Such choice can be exercised from out of the list of successful candidates prepared at Combined Entrance Test without altering the order of merit inter-se of students, so chosen. These observations apply to the minority as well as the minority unaided private educational institutions. The satisfaction of triple test including adherence to merit is also equally applicable to minority institutions, as is evident on a conjoint reading of para 136 and 137 of the said judgment.

In para 138 it was categorically mentioned that having regard to the larger interest and welfare of the student community to promote merit, achieve excellence and curb mal-practices it would be permissible to regulate admissions by providing a centralized and Single Window procedure. Such a procedure, to a large extent, can secure grant of merit based admissions on a transparent basis.

Relying upon certain observations made in para 137 of P. A. Inamdar case (supra) it was contended before the Supreme Court in the subsequent case of Modern Dental College and Research Centre and others vs. State of Madhya Pradesh and others reported in (2016) 7 SCC 353 that the State could hold a Common Entrance Test and counselling only when the admission procedure adopted by a private institution or Group of Institutions fails to satisfy all or any of triple test indicated therein and it is only then that the State can take over by substituting its own procedure, which was repelled by the Supreme Court and it was held that the satisfaction of the triple test and adherence to merit is to be ensured at the initial stage, and not as suggested by the private institutions by way of a post audit scrutiny.

Suffice it to say at this stage that the principle laid down in P A Inamdar was for strict adherence to the triple test of fairness, transparency and non-exploitativeness as also adherence to merit and also that a centralized process of admission and a Single Window procedure be adopted, as, such a procedure to a large extent would secure grant of merit based admissions on a transparent basis. Legislation or Regulations were required to be made in this regard by the State.

Now coming to the judgment of the Supreme Court in Modern Dental College case. In this case the vires of a legislative enactment by the State legislature of Madhya Pradesh prescribing a common entrance test followed by Centralized counselling to be held by the State, was put to challenge. The challenge therein was on similar lines as in this case, the only difference being that in the said case there was a legislative enactment, the vires of which was assailed, whereas, in the present case what is under challenge are government orders issued by the State Government somewhat on same lines. The Supreme Court considered the rights of un-aided educational institutions including minority institutions. In this context it is relevant to quote para 33 and 34 of the said judgment :

"33. The history of the dispute regarding Government control over the functioning of private medical colleges is quite old now but the tug of war continues. There seems to be some conflict of interest between the State Government and the bodies that establish institutions and impart professional medical education to the youth of this country. While on the one hand the State Governments want to control the institutions for sociopolitical considerations and on the other the people who invest, set up and establish the institutions have a genuine desire to run and exercise functional control over the institution in the best interests of the students, it cannot be disputed that the State does not enjoy monopoly in the field of imparting medical education and the private medical colleges play a very significant role in this regard. The State lacks funds that is imperative to provide best infrastructure and latest facilities to the students so that they emerge as the best in their respective fields.

34. In the modern age, therefore, particularly after the policy of liberalization adopted by the State, educational institutions by private bodies are allowed to be established. There is a paradigm shift over from the era of complete Government control over education (like other economic and commercial activities) to a situation where private players are allowed to mushroom. But at the same time, regulatory mechanism is provided thereby ensuring that such private institutions work within such regulatory regime. When it comes to education, it is expected that unaided private institutions provide quality education and at the same time they are given 'freedom in joints' with minimal Government interference, except what comes under regulatory regime. Though education is now treated as an 'occupation' and, thus, has become a fundamental right guaranteed Under Article 19(1)(g) of the Constitution, at the same time shackles are put insofar as this particular occupation is concerned which is termed as 'noble'. Therefore, profiteering and commercialization are not permitted and no capitation fee can be charged. The admission of students has to be on merit and not at the whims and fancies of the educational institutions. Merit can be tested by adopting some methodology and few such methods are suggested in T.M.A. Pai Foundation, which includes holding of CET. It is to be ensured that this admission process meets the triple test of transparency, fairness and non-exploitativeness."

The observations made above by the Supreme Government leave no doubt that regulatory mechanism to ensure the satisfaction of triple test and adherence to merit are permissible in respect of such institutions, rather they are necessary.

The Supreme Court in para 38 while accepting that the right of professional institutions to establish and manage educational institutions, is an occupation, even if there is no element of profit generation (paragraph 25 of TMA Pai), and that this right encompassed a right to admit students; a right to set up a reasonable fee-structure, but, in paragraph 40 in Modern Dental College, while considering the scope of this right it observed that the Supreme Court in TMA Pai's case was categorical that this activity (occupation) could not be treated as Business or Profession. Education is treated a noble profession on no-profit-no-loss basis. Those who establish and manage educational institutions are not expected to indulge in profiteering or commercializing this noble activity. Keeping this objective in mind, the court did not give complete freedom to the educational institutions in respect of right to admit the students and also with regard to fixation of fee. As far as admission of students is concerned, the court was categorical that such admissions have to be on the basis of merit, when it comes to higher education, particularly in professional institutions.

In paragraph 41 the contention of one of the learned counsel that TMA Pai Foundation expounded on the nature and extent of its control on the basis of level of education was approved by the Supreme Court by observing, "when it comes to higher education, that too, in professional institutions, merit has to be the sole criteria." It referred to paragraph 58 of TMA Pai in this regard which is relevant and is as under:-

"58. For admission into any professional institution, merit must play an important role. While it may not be normally possible to judge the merit of the applicant who seeks admission into a school, while seeking admission to a professional institution and to become a competent professional, it is necessary that meritorious candidates are not unfairly treated or put at a disadvantage by preferences shown to less meritorious but more influential applicants. Excellence in professional education would require that greater emphasis be laid on the merit of a student seeking admission. Appropriate regulations for this purpose may be made keeping in view the other observations made in this judgment in the context of admissions to unaided institutions".

In paragraph 42 the Supreme Court with reference to the observations in TMA Pai Foundation delved into the question as to how the objective of ensuring the triple test, referred above, could be achieved for determining such merit, it referred to the observation in para 59 thereof that such merit should be determined either by the marks that students obtain at qualifying examinations or at combined entrance test conducted by the Institutions or in the case of professional colleges by government agencies. It quoted para 59 of TMA Pai case wherein for professional colleges Common Entrance Test by government agencies was held to be a methodology for ensuring the satisfaction of triple test including merit. Para 42 of Modern Dental College is quoted hereinbelow:

"42. In order to see that merit is adjudged suitably and appropriately, the Court candidly laid down that procedure for admission should be so devised which satisfies the triple test of being fair, transparent and non-exploitative. The next question was as to how the aforesaid objective could be achieved? For determining such merit, the Court showed the path in paragraph 59 by observing that such merit should be determined either by the marks that students obtained at qualifying examination or at CET conducted by the institutions or in the case of professional colleges, by Government agencies. Paragraph 59 suggesting these modes reads as under:

'59. Merit is usually determined, for admission to professional and higher education colleges, by either the marks that the student obtains at the qualifying examination or school-leaving certificate stage followed by the interview, or by a common entrance test conducted by the institution, or in the case of professional colleges, by government agencies.' This paragraph very specifically authorises CET to be conducted by Government agencies in the case of professional colleges."

We are of the view that the observations, referred hereinabove apply on all its fours to Centralized Counselling also, as, it is part of the admission process wherein also the Triple Test and adherence to merit have to be ensured.

The Supreme Court thereafter referred to paragraphs 67 and 68 of TMA Pai and in paragraph 44 of its judgment, it considered the contention that State could not usurp the very function of conducting this admission test by the educational institutions and that such Combined Entrance Test is to be conducted by the educational institutions themselves, whereas the government could only frame regulations to regulate such admission tests to be conducted by the educational institutions and could not take away the functioning of holding Combined Entrance Test, and in paragraph 45 it rejected this contention in view of the unambiguous and categorical interpretation given by the Supreme Court in P.A. Inamdar with respect to certain observations, particularly in para 68 in TMA Pai Foundation. In para 47 of its judgment the Supreme Court noticed the observations in P.A. Inamdar case wherein, it was noted that the earlier judgment kept in mind "the sad reality that there are a number of professional colleges which indulge in profiteering and/or charging capitation-fees".It went on to observe that it was impossible to control profiteering/charging of capitation-fees, unless admission was on merit. It was observed that requiring a student to appear at more than one entrance test lead to more hardship as the student has to pay application fee for each institute, arrange and pay for the transport to appear in the individual tests. Thus, the management could select students either on the basis of Combined Entrance test conducted by the state or Association of All Colleges for a Particular Type for example, medical, engineering or technical etc. In this context it is relevant to reiterate and refer to the observations made in P.A. Inamdar in para 136 and 138 that holding of a Common Entrance Test followed by a Centralized counselling with a Single Window procedure to a large extent ensures adherence to the triple test and merit. Reference may again be made to paragraph 59 of T.M.A. Pai wherein a single window procedure by Government Agencies was specifically advocated in case of professional colleges as was also done in paragraph 27 in P.A.Inamdar's case and paragraph 41 of Modern Dental College. Thus, at the level of higher Education specially in professional courses /Institutions the role of the government in providing a single window procedure of admission has been emphasized.

It is also relevant to point out that in the present case as far as the leading writ petition is concerned, admittedly, it is an association of only 18 medical colleges including some universities, whereas, the number of such institutions in the State is larger, therefore, it does not represent all the medical colleges/universities in the State.

Furthermore, in paragraph 48 their lordships have referred to paragraph 145 of P.A. Inamdar (supra) wherein it was observed "unless the admission procedure and fixation of fees is regulated and controlled at the initial stage, the evil of unfair practice of granting admission on available seats guided by the paying capacity of the candidates would be impossible to curb." Based on this, the Supreme Court in Modern Dental College (supra) repelled the contention of the private colleges for post audit checks after the institutions adopted their own admission procedure and fee-structure. It noticed that until the Central Government and State Governments came out with a detailed well thought out legislation setting up a suitable mechanism for regulating admission procedure and fee structure, the committees set up in Islamic Academy were allowed to continue. It further observed in the context of para 68 in TMA Pai case (supra) as explained in PA Inamdar (supra) that observation therein permitting the management to reserve certain seats was meant for poorer and backward sections as per local needs. It did not seem to ignore the merit. It was also held that Combined Entrance Test could be held, otherwise merit becomes casualty. There is, thus, no bar to Combined Entrance Test being held by State Agencies when the law so provides.

These observations are equally applicable with the same effectiveness with regard to holding of a Centralized counselling with a Single Window procedure by the State. In paragraph 49 the contention that the private medical colleges had absolute right to make admissions or to fix fee, was held to be inconsistent with the earlier decisions of the court i.e. TMA Pai (supra) and P.A. Inamdar.

The right of the State to introduce regulatory measures to ensure the aforesaid requirements was thus re-affirmed and the suggestion of a post audit measure after the merit had been compromised or capitation-fees had been charged by the private institutions, was rejected out-rightly. It was categorically mentioned that control was required at the initial stage itself, i.e. at the stage of Combined Entrance Test and counselling. The best way to ensure this was for the state or its agencies to hold a centralized test and counselling as transparency and accountability can be better secured by it vis a vis private agencies as has also been observed by the Supreme court in paragraph 96 and 97 in Modern Dental College.

Based on the aforesaid, the Supreme Court opined that though the occupation is a fundamental right, which gives right to the educational institutions to admit students and also fix fee, at the same time, scope of such rights was discussed and limitations imposed thereupon by the judgments in TMA Pai and P.A. Inamdar themselves were reiterated and the nature of limitations on these rights was also explained.

Thereafter the Supreme Court in Modern Dental College considered the reasonableness of the restrictions/measures imposed by the legislature of the State of Madhya Pradesh and in this context relying upon TMA Pai and PA Inamdar it was observed in para 55 that it becomes clear that insofar as such regulatory measures are concerned, the same can be adopted by the State in respect of minority run institutions as well.

"55. It would be necessary to clarify the position in respect of educational institutions run by minorities. Having regard to the pronouncement in T.M.A. Pai Foundation, with lucid clarifications to the said judgment given by this Court in P.A. Inamdar, it becomes clear that insofar as such regulatory measures are concerned, the same can be adopted by the State in respect of minority-run institutions as well. Reliance placed by the appellants in S. Stephen's College V. University of Delhi reported in (1992) 1 SCC 558 may not be of much help as that case did not concern with professional educational institutions.

It was further held in para 57 that the right under Article 19(1)(g) is not absolute in terms, but is subject to reasonable restrictions under Clause (6). Larger interest and welfare of student community to promote merit, achieve excellence and curb mal-practices, fee and admissions can certainly be regulated. The court has to strike a just balance between the fundamental rights and the larger interest of the society. The constitution is primarily for the common man. Larger interest and welfare of student community to promote merit, achieve excellence and curb malpractices, fee and admission can certainly be regulated.

In paragraph 62 of it observed that it is now almost accepted that there are no absolute constitutional rights and all such rights are related. In para 63 it considered the concept of proportionality as a criteria to strike a balance between the rights and limitations imposed upon such rights. The law imposing restrictions will be treated as proportional if it is meant to achieve a proper purpose, and if the measures taken to achieve such a purpose are rationally connected to the purpose and such measures are necessary. Article 19(6) referring to reasonable restrictions was considered. In paragraphs 67, 68 and 69 their lordships held as under :

"67. Undoubtedly, right to establish and administer educational institutions is treated as a fundamental right as it is termed "occupation", which is one of the freedoms guaranteed Under Article 19(1)(g). It was so recognized for the first time in T.M.A. Pai Foundation. Even while doing so, this right came with certain clutches and shackles. The Court made it clear that it is a noble occupation which would not permit commercialization or profiteering and, therefore, such educational institutions are to be run on "no profit no loss basis". While explaining the scope of this right, right to admit students and right to fix fee was accepted as facets of this right, the Court again added caution thereto by mandating that admissions to the educational institutions imparting higher education, and in particular professional education, have to admit the students based on merit. For judging the merit, the Court indicated that there can be a CET. While doing so, it also specifically stated that in case of admission to professional courses such a CET can be conducted by the State. If such a power is exercised by the State assuming the function of CET, this was so recognized in T.M.A. Pai Foundation itself, as a measure of "reasonable restriction on the said right". Islamic Academy of Education further clarified the contour of such function of the State while interpreting T.M.A. Pai Foundation itself wherein it was held that there can be Committees constituted to supervise conducting of such CET. This process of interpretative balancing and constitutional balancing was remarkably achieved in P.A. Inamdar by not only giving its prematur to deholding of CET but it went further to hold that agency conducting the CET must be the one which enjoys the utmost credibility and expertise in the matter to achieve fulfillment of twin objectives of transparency and merit and for that purpose it permitted the State to provide a procedure of holding a CET in the interest of securing fair and merit-based admissions and preventing maladministration.

68. We are of the view that the larger public interest warrants such a measure. Having regard to the malpractices which are noticed in the CET conducted by such private institutions themselves, for which plethora of material is produced, it is, undoubtedly, in the larger interest and welfare of the students community to promote merit, add excellence and curb malpractices. The extent of restriction has to be viewed keeping in view all these factors and, therefore, we feel that the impugned provisions which may amount to "restrictions" on the right of the Appellants to carry on their "occupation", are clearly "reasonable" and satisfied the test of proportionality.

69. Apart from the material placed before the High Court, our attention has also been drawn to a recent report of the Parliamentary Committee to which we will refer in later part of this judgment. The report notes the dismal picture of exploitation in making admissions by charging huge capitation fee and compromising merit. This may not apply to all institutions but if the Legislature which represents the people has come out with a legislation to curb the menace which is generally prevalent, it cannot be held that there is no need for any regulatory measure. "An enactment is an organism in its environment". It is rightly said that the law is not an Eden of concepts but rather an everyday life of needs, interests and the values that a given society seeks to realise in a given time. The law is a tool which is intended to provide solutions for the problems of human being in a society."

Thus, the fundamental right to occupation under Article 19(1)(g) came with certain clutches and shackles as mentioned in the aforesaid paragraphs. Educational institutions are to be run on 'No-Profit-No-Loss' basis. Admissions to the professional courses has to be based strictly on merit. Holding of Combined Entrance Test by a State was not only held to the permissible, but also a measure of reasonable restriction on the aforesaid right under Article 19(1)(g). In paragraphs 68 and 69 the Supreme Court categorically stated that larger Public Interest warrants such a measure as aforesaid. It also noticed the material before it including the report of a Parliamentary Committee providing a dismal picture of exploitation in making admissions or charging huge capitation fee and compromising merit. It also observed that this may not apply to all institutions, but if the legislature which represents the people has come out with a legislation to curb the menace which is generally prevalent, it can not be held that there is no need for any regulatory measure. These were the observations in the majority judgment.

In the context of reservation of seats for Scheduled Castes, Scheduled Tribes and other other backward classes the Supreme Court took notice of Article 15(5).Based on the aforesaid provision and also in view of the absence of any serious challenge to the legislation on the aforesaid issue, it repelled the same, especially as the constitutionality of Article 15(5) had already been upheld by a Constitution Bench Judgment in Paramati Educational & Cultural Trust v. Union of India, 2014 (8) SCC 1. Such reservation in private colleges (except minority institutions) was held to be in consonance with Article 15(5) of the constitution.

In paragraphs 96 and 97 the Supreme Court observed about the accountability and transparency in State actions which are relevant in the present case and the same are quoted hereinbelow :

"96. ........The accountability and transparency in State actions is much higher than in private actions. It is needless to say that the incidents of corruption in the State machinery were brought in the public eye immediately and have been addressed expeditiously. The same could never have been done in case of private actions. Even on a keel of comparative efficiency, it is more than evident that the State process is far more transparent and fair than one that is devised by the private colleges which have no mechanism of any checks and balances. The State agencies are subject to the Right to Information Act, Audit, State Legislature, Anti-Corruption agencies, Lokayukta, etc.

97. The very object of setting up institutions for the State is a welfare function, for the purpose of excelling in educational standards. On the other hand, the primary motivation for private parties is profit motive or philanthropy. When the primary motivation for institutions is profit motive, it is natural that many means to achieve the same shall be adopted by the private institutions which leads to a large degree of secrecy and corruption. As such, the mechanism of Regulations as envisaged under the impugned laws is legal, constitutional, fair, transparent and uphold the primary criteria of merit. The same does not infringe on the fundamental rights of either the minorities or the non-minorities to establish and administer educational institutions and must as such be upheld as valid."

Even at the cost of repetition it needs to be emphasized that even in P.A. Inamdar, as noted in the majority judgment in Modern Dental College, as regards professional courses are concerned, the emphasis was on holding of a Common Entrance Test by the State or its agency. The relevant paragraphs have already been referred in the earlier part of this judgment.

In view of what has been stated hereinabove it is amply clear that the holding of Centralized counselling with a Single Window procedure based on the NEET 2016 by the State is not only a permissible regulatory measure which imposes reasonable restrictions on the rights of the un-aided private educational institutions, including the minority institutions, but, it also does not in any manner dent their fundamental rights either under Article 19(1)(g) or Article 30(1) of the Constitution of India. Thus, the first contention on behalf of petitioner's that it dented such right, has to be rejected and is accordingly rejected.

We also find merit in the contention of Dr Mishra that the counselling, inter alia, involved verification of all the original testimonials, verification of identity of the candidate based on bio-metric test and photographs, details of which had been provided to the State Government by the CBSE and not to the petitioners herein, as such, they cannot hold counselling, as, in the absence of such material it would be difficult to identify as to who is appearing, which would be quiet fatal. In such a scenario and based on past experience, participation of proxy candidates, so called Munna Bhais, so to say, cannot be completely ruled out . The credibility of government agencies in this regard is far greater when compared to private agencies.

Authority of the State to hold a centralised counselling through Government orders As regard the authority of State which has been questioned, it is now very well settled that under Entry 25 of the VIIth Schedule of the Constitution of India the State Government has the authority to legislate on matters enumerated therein, which includes Medical Education, alongwith the Parliament and in the event the field being covered by an Act of Parliament including subordinate legislation therein, the latter will prevail over the former to the extent of inconsistency in view of Artice 254. The legislation by the State Legislature is subject to Entries 63 to 66 of the Union List. Entry 25 reads as under:

"25- Education including Technical Education, Medical Education and universities, subject to the provisions of Entries 63, 64, 65 and 66 of List 1; Vocational and Technical training of labour."

Entry 25 is wide enough to cover the field of admission to Universities and colleges imparting medical education.

The Parliament has enacted the Act 1956 to provide for the reconstitution of Medical Council of India and maintenance of a medical register for India and for matters connected therewith. Section 32 of the Act 1956 empowers the Central Government to make rules to carry out the purposes of the Act by notification in the official gazette. Section 33 empowers the Council with the previous sanction of the central government to make regulations generally to carry out the purposes of the said Act, and, without prejudice to the generality of this power, such regulations may provide for the subject matters mentioned as (a) to (n) of the said provision. Section 33(l) is relevant which reads as under:

"33(l). The conduct of professional examinations, qualifications of examiners and the conditions of admissions to such examinations."

The Medical Council of India has framed regulations in exercise of its powers under section 33, with the approval of the Central Government, which are known as ''Medical Council of India Regulations on Graduate Medical Education 1997'. For the purposes of the issues involved herein it is Chapter II of the said regulations which are relevant as they deal with admission, selection, migration and training. As per the notification published on 21.12.2010 Clause 5(5) of the Regulations 1997 was substituted, thereby providing that there shall be a single-eligibility-cum-entrance examination namely NEET for admission to MBBS course' in each academic year. The overall superintendence, direction and control of the aforesaid test (NEET) vests with the Medical Council of India, however, it, with the previous approval of the Central Government, shall select organizations to conduct the said test. Clause (2) of Regulation 5(5) states that it shall be necessary for a candidate to obtain minimum of 50% marks in each paper of NEET held for the each academic year, however in respect of candidates belonging to Scheduled Caste, Scheduled Tribes and other backward classes the minimum percentage of marks shall be 40% in each paper and in respect of candidates with locomotory disability of lower limbs the minimum percentage of marks shall be 45% in each paper of NEET. The use of the words ''respective categories' in the proviso to the said clause is a reference to the categories mentioned in Clause (2) i.e. Scheduled Caste, Scheduled Tribes and other backward classes and candidates with locomotory disability of lower limbs and not to management category or Quota, as was contended by Sri Mathur.

As already stated earlier the regulations prescribing ''NEET' were put to challenge before the Supreme Court and were struck down in the case of Christian Medical College Vellore vs Union of India 2014 (2) SCC 305, however, on a review petition being filed the said judgment was recalled vide judgment dated 11.4.2016 passed in Review Petition (C) Nos. 2159-2268 of 2013 and connected petitions, Medical Council of India vs Christian Medical College Vellore and others. Consequent to the aforesaid the notification dated 21.12.2010 prescribing ''NEET' stood revived.

On 5th of August 2016 the Medical Council of India amended the aforesaid regulations of 1997 vide Regulations on Graduate Medical Education 2016. As per the said regulations, in Clause 7(6) of the "Regulations on Graduate Medical Education 1997", after sub-clause 7(6) the following clause was added :

"7(6AA) . There shall be no admission of students in respect of any academic session beyond 30th September under any circumstance. The universities shall not register any student admitted beyond the said date.

The Universities and other authorities concerned for the academic year 2016-17 shall organize admission process in accordance with the time schedule indicated in appendix F." Furthermore, it was provided that in the Regulations on Graduate Medical Education 1997, after Appendix ''E' the following shall be added : "APPENDIX - F TIME SCHEDULE FOR COMPLETION OF THE ADMISSION PROCESS FOR FIRST MBBS COURSE ( Academic Session 2016-17) Schedule for Admission Seats filled up All India Quota Seats filled up by the State Govt./Institutions Conduct of National Eligibility Entrance Test (NEET 2016) NEET 1 Conduct on 1st May 2016 NEET 2 on 24th July 2016 NEET 1 Conduct on 1st May 2016 NEET 2 on 24th July 2016 Declaration of Result of Qualifying Examination /Entrance Examination 17th August, 2016 17th August, 2016 1st Round of Counseling/Admission 22nd August to 27th August, 2016 3rd September to 5th September, 2016 Last date for joining the allotted college and course 3rd September, 2016 By 8th September, 2016 2nd Round of Counseling/Admission 9th to 14th September, 2016 21st September to 23rd September, 2016 Last date for joining for the candidates allotted seats in 2nd Round of Counseling By 20th September, 2016 By 26th September, 2016 Commencement of academic session 3rd September, 2016 3rd September, 2016 Last date up to which students can be admitted against vacancies arising due to any reason Not applicable 30th September, 2016 SCHEDULE FOR ON LINE COUNSELING (ALLOTMENT PROCESS) FOR ALL INDIA QUOTA UG (MBBS/BDS) SEATS -2016 All India Quota (Online Counseling) SI. No. Event Duration Days 1 Main Counseling Registration Choice Filling & Indicative Seat 22nd August to 25th August, 2016 (Registration will be open up to 5:00 PM of 25th August 2016 only) 4 days 2 Exercising of Choices and Locking 25th August, 2016 (up to 05:00 PM of 25th August, 2016 1 Day 3 Process of Seat Allotment-Round 1 26th August, 2016 1 Day 4 Round 1 Result Publish 27th August, 2016 1 Day 5 Reporting at the Allotted Medical/Dental College against 1st Round 28th August to 3rd September, 2016 (up to 05:00 PM of 3rd September, 2016) 7 Days 6 Exercising of Choices and Locking (Round 2) 9th September 2016 to 10th September 2016 2 Days 7 Process of Seat Allotment- Round 2 11th September, 2016 1 Day 8 Round 2 Result Publish 12th September, 2016 1 Day 9 Reporting at the Allotted Medical /Dental College against Round 2 13th to 20th September, 2016 (up to 05:00 PM of 20th September, 2016 8 Days 10 Transfer of vacant seats to state Quota 20th September, 2016 (After 05:00 PM) - (Time 05:00 PM mentioned above is by computer servertime) Commencement of MBBS/BDS first year session-from 13th September, 2016"

Much Reliance was placed by the learned Senior Advocates and other counsels appearing for the petitioners to contend that in view of this amendment, which according to them provides for counselling to be held by the Universities and other authorities concerned, the State Government had no authority to hold a combined counselling as Regulations having been made under a Central Legislation which have statutory character and the power of the State Government to legislate in respect of Entry 25 being subject to the power of the Parliament to legislate on the same subject, the State can neither legislate nor prescribe any counselling, much less a combined one. The contention was based on the use of the words "the universities and other authorities concerned ...... shall organize admission process." It was contended that as per said regulations the Universities and other authorities concerned are entitled to hold counselling, albeit, based on NEET 2016. It was further contended that the words "other authorities concerned" referred to the authorities of private medical colleges.

When confronted with the judgment of P.A. Inamdar (supra), which prohibited counselling by individual Institutions and prescribed a Single Window procedure as also Centralized counselling, specially paragraph 136 and 138 thereof, the learned counsel submitted that the words mentioned in clause 7(6AA) have to be understood as referring to the Association of medical Colleges who were permitted to hold a Common Entrance Test as also counselling, but, by no stretch of imagination could it be understood as empowering the state to hold such counselling even for the private colleges, including minority institutions. On the other hand Dr L.P. Mishra, learned Special Counsel appearing for the State, contended that the said regulation did not prescribe holding of a counselling nor as to who is to hold the same. It merely prescribed a time-table/schedule for completion of the admission process and as the admission process starts from the initiation of the process for holding NEET and ends with the actual admission in the colleges/universities, therefore, the reference to Universities and other authorities concerned has to be understood in this context,as, Universities and the authorities are concerned with this admission process at the time of granting admission as ultimately admissions are to be made by such institutions.

He also contended that the term "other authorities concerned" includes the State which is empowered to hold a Centralized counselling so as to ensure fairness, transparency, non-exploitativeness and adherence to merit, which, as per experience is easily compromised when private institutions are allowed to hold entrance test or counselling. He contended that in the absence of any legislation by the Parliament as to who should hold the counselling and in view of the recent judgment of the Supreme Court in Modern Dental College and Research Centre vs State of MP, 2016 (7) SCC Page 353, as also the subsequent judgment in the case of Sankalp Charitable Trust and another vs Union of India and others, Writ (C) No. 261 of 2016 and connected petitions and interlocutory applications therein, dated 9th May 2016, the State Government is empowered to hold such counselling. He invited the attention of the court to the aforesaid judgments to demonstrate the interplay of Entry 25 of the Concurrent List and Entry 66 of Union List to buttress the argument that the State was within its jurisdiction to issue the impugned orders prescribing a combined counselling for all medical colleges including the private unaided colleges/universities as also the minority institutions.

The Supreme Court in Modern Dental College case also considered the competence of the State to legislate on the subject based on Entry 25 of List III and opined that the said entry granted concurrent power to both the Parliament and State legislature to legislate with respect to all the other aspects of Education except that which was specifically covered by List 1 Entry 63 to 66 and relying upon the earlier decisions in Gujarat University vs Krishan Raghunath ALR 1963 SC 703; State of Tamil Nadu vs Adhiyamaan Educational and Research Institute, 1995 (4) SCC 104; Preeti Srivastava vs State of Madhya Pradesh 1999 (7) ACC 120; and state of Maharashtra vs Sant . Shikshan Shashtra Mahavidyalaya, 2006 (9) SCC 1, it held that entire gamut of education was not covered by List 1 Entry 66. No doubt List III Entry 25 is subject to List 1 Entry 66. It is not possible to exclude the entire gamut of admissions from List III Entry 25, however, exercise of any power under List III Entry 25 has to be subject to a central law referable to entry 25.

Based on the aforesaid, the Constitution Bench held that there was no violation of right or autonomy of educational institutions in Combined Entrance Test being conducted by the State or an agency nominated by the State or in fixing fee. The right of a State to do so is subject to a central law. Once the notification under the central statute for conducting Combined Entrance Test on the basis of NEET becomes operative, it will be a matter between the States and union territories which will have to be sorted out on the touchstone of Article 254 of the constitution.

Now coming to the regulations of the Medical Counsel of India, specially Regulation 7(6AA), as inserted by the notification dated 5th of August 2016, On a perusal of the same the court finds that though there is a reference to Counselling in the said Regulation, but, it does not provide as to who is to hold the counselling - whether the State, the private colleges or any other agency. Use of the words "universities and other authorities concerned" is only for organizing the admission process for the year 2016-17 in accordance with the time-schedule indicated in ''Appendix F'. It cannot be understood or interpreted to mean that the universities and other authorities concerned are entitled to hold the Centralized counselling nor can the words "other authorities concerned" be understood as referring to the authorities of private universities and colleges, as, it would be against the dictum in P.A. Inamdar's case (supra) which clearly bar the holding of such entrance test or counselling individually by universities or colleges. The contention of Shri Mathur to the contrary cannot be accepted. His suggestion that the words "universities and other authorities concerned" can be understood as referring to an association of un-aided professional colleges which could hold such a Common Entrance Test or counselling as per the judgment in P.A. Inamdar, can also not be accepted, as, this court cannot read into the said regulations something which is not mentioned therein. The court cannot supply a caussus omissus to Regulation 7 (6AA).

Furthermore, as far as the right of Associations of such colleges to hold a Centralized counselling is concerned, if permitted, the Single Window procedure which has been much emphasized by the Seven Judges Bench in P.A. Inamdar's case as also in the Constitution Bench decision in Modern Dental College will have to be given a go by. Furthermore, in view of the observations in Modern Dental College and in P.A. Inamdar which have already been discussed in the earlier part of this judgment, such a procedure would not fully secure the adherence to the triple test and merit in the admission process. In Modern Dental College there is a reference to a report of a parliamentary committee, in this regard, which has also been referred by us earlier, moreover even at the cost of repetition, we would like to emphasize that as far as professional colleges are concerned in T.M.A. Pai (supra), as well as in P.A. Inamdar (supra) and Modern Dental College (supra), it has been held that the Common Entrance Test and a Single Window procedure be adopted by the State or its agency, meaning thereby this should not be left in the hands of private institutions even if they are universities, specially in respect of Professional colleges.

We find merit in the contention of Dr. L.P. Mishra that in effect what is provided in Clause 7 (6AA) is a time schedule for completion of the admission process and the reference to universities and other concerned authorities, therein, is a general observation referable to the universities and the other authorities concerned with the admission process as the institutions also have a role to play in adherence to the time-schedule at least at the time of granting admissions, which is also mentioned therein, but, these words cannot be interpreted to confer the power of holding Counselling by an individual institution or by an association of such institutions.

On a perusal of the said regulation we have no doubt that it does not deal with the subject as to who is to hold the counselling based on NEET 2016. We have not found any other provision either in the Act 1956 or Regulations 1977 made thereunder, which may contain any such provision, therefore, the conclusion is irresistible that there is no Central Legislation on the question as to who is to hold the Counselling, therefore, the field is open for the State Legislature to legislate on the subject.

Now the next question which falls for our consideration is as to whether the state could prescribe such centralized counselling in the form of a single window procedure by issuance of Government orders i.e without any legislation on the subject. We are of the view that it would have been better if the State Legislature had promulgated a legislation in keeping with the observations made in P. A. Inamdar etc., but, having said so, we are not inclined to accept this plea for the reason firstly, that under Article 162, subject to the provisions of the Constitution, the executive power of the State extends to the matters with respect to which the legislature of the state has power to make laws, subject to the proviso contained therein, which, in the facts of the case is not attracted.

We do not find any such exercise of executive power by the Central Government which may preclude the State Government from holding a centralized counselling, rather there is an advisory dated 9.8.2016, that, it may do so. The order impugned herein which has been issued by the Government of India on 9th August 2016 permits the state governments to go for Combined Counselling for admissions to MBBS/BDS Course in all medical/dental colleges including deemed universities. This order has been issued in consultation with the Law Ministry.

Another reason which persuades us to repel the contention is the larger Public Interest and the welfare of the Student Community, which, the impugned Government Orders seek to achieve in consonance with the dictum of the Supreme Court in T.M.A. Pai and P A Inamdar and Modern Dental College.

In this context we would like to refer to the Act 2006 which was promulgated so as to set into motion the regulatory measures in respect of admission process and fixation of fee after the pronouncement in P.A. Inamdar. Firstly, this Act excludes from its operation the minority institutions, therefore, as far as the minority institutions are concerned, there is no legislation for regulating admission process and fixation of fee in respect to them. Further, on a careful perusal of the said Act, we do not find any provision therein prescribing the agency which is to hold counselling. Section 5 refers to the eligibility for admission to a private aided or unaided professional educational institutions, which shall be such as may be notified by the State Government. Now after the notification dated 21.12.2010 prescribing a National Eligibility Cum Entrance Test. Section 5 of the Act 2006 as also section 7 thereof have virtually been rendered redundant as the field being occupied by a subordinate legislation under a Central Act, the said provisions would have to give way to the former.

It is noteworthy that the Act 2006 is absolutely silent on the question of holding of counselling, especially as to who is to hold it. The contention of Shri Mathur that admission being a continuing process, which includes counselling, the same should be read into the Act 2006, accordingly, under Act the private colleges have been entrusted all the responsibility of filling up the seats under the management quota while the remaining have to be filled by the State, therefore, management seats are to be filled by the private colleges by holding their own counselling, is clearly unacceptable, as, this court cannot read into the act something which is not mentioned therein, more so, as it would be contrary to what has been held in P.A. Inamdar and Modern Dental College. Shri Mathur endeavored hard to make out a case for the management seats by referring to the words "respective category" used in Regulation 5(5) of the regulations of 1997 made by the Medical Council of India under Section 33 of the Act 1956, by reading it conjointly with the Management, categorically mentioned in Sections 6 and 7 of the Act 2006.

We are of the considered view that the term "respective category" used in Regulation 5(5) refers to the categories mentioned in Clause (2) thereof, and not to the Management Category. This contention, therefore, has to be repelled, especially, as after the introduction of a common Entrance Test followed by Centralized Counselling the concept of State quota and Management Quota has melted away rendering the same otiose.

It is also a misconception that the state allots the institution, in fact, it is the student who chooses the institution and the State merely communicates it formally to the concerned. It only ensures adherence to a single window procedure and the triple test as also merit in the admission process.

In view of the above discussion, The Act of 2006 does not deal with counselling, therefore it can not be said that the impugned Government orders are inconsistent with the same.

As far as the competence of the State Government to hold a Centralized Counselling is concerned, in view of the discussions already made, the argument of Sri Mathur, based on jurisdictional incompetence, is repelled. As far as the order of the Central Government dated 09.08.2016 is concerned it has been stated by Sri S.B. Pandey learned Additional Solicitor General and has also been stated in the counter affidavit that the said order is merely an advisory which is not binding. We are also of the view that the said order has not been issued in exercise of statutory powers under the Medical Council of India Act, therefore, it has to be treated as an advisory and nothing more. However, we must add that we do not find any conflict therein with the notification dated 05.08.2016 amending Regulation 7(6AA) for the reasons already mentioned hereinabove.

Validity of G.O.'s dated 11.8.2016, 20.8.16, 22.8.16 and 31.8.16 and the order of the Central Government dated 9.8.16.

These Government orders dated 11.08.2016, 20.08.2016, 31.08.2016 prescribe a centralized counselling for admission to MBBS/BDS seats in all colleges/Universities of the State including private unaided colleges and minority institutions. In view of the discussion already made hereinabove, it is clear that in the absence of any central legislation on the subject matter of centralized counselling and specially in view of dictum of Modern Dental College case and Sankalp Charitable Trust case, the State Government is/was competent to prescribe a centralized counselling for such admissions in furtherance of a single window procedure envisaged in T.M.A. Pai, P.A. Inamdar as further explained and reaffirmed by the constitutional bench in Modern Dental College so as to ensure the satisfaction of triple test mentioned above and adherence to merit in admissions.

A single window procedure in the form of Centralized Entrance Test and Centralized Counselling is applicable to minority institutions also as per P.A. Inamdar and Modern Dental College case, therefore, the said Government orders cannot be faulted on this count specially as, exclusion of minority institution under Section 3(g) read with Section 6 etc. of the Act, 2006, from its purview has become redundant in view of a Centralized Eligibility and Entrance Test being prescribed by regulation 5(5) as amended vide notification dated 21.12.2010 under Section 33 of the Act, 1956, which is a Central Act and also in view of the judgment of the Supreme Court in Modern Dental College Case and Sankalp Charitable Trust case, which leave no room for any doubt in this regard. The said orders do not suffer from any error.

Validity of Order dated 2.9.2016 On 02.09.2016, a policy decision was taken by the State Government, just a day prior to start of counselling (the petitioners allege that it was issued in the mid-night of 2.9.16). This decision reiterated the centralized/combined counselling for all institutions, vide clause 3, but, clause 1 and 2 thereof, introduced a categorization of seats for admission in private institutions (excluding the minority institutions), as, subsidized and non-subsidized, with the condition that 50% of seats of such institutions shall carry a fee of only Rs.36,000/- per student per annum. The basis of this, as per Dr. L.P. Misra, was that this was the tuition fee payable in Government colleges. These seats are to be filled only by those who are domicile of State of U.P. Thus, this condition which was earlier not applicable to the seats for admission in private institutions was made applicable to the extent of 50% of their seats. These conditions were not applicable to the remaining 50% non-subsidized seats. In fact the students admitted against non-subsidized seats were now to fund the subsidy for the 50% subsidized seats.

As regards the remaining 50% non-subsidized seats students admitted against these would have to pay enhanced tuition-fee to be calculated on the basis of the resultant amount arrived at, after deducting the fee realized as against subsidized seats from the total fee receipts based on the fee per student determined by the Fee Regulation Committee. Vide another other dated 03.09.2016 which has been annexed with the connected writ petitions such fee has been determined at double the rate normally paid by the students.

As regards clause 1 and 2 referred above, Dr. L.P. Misra sought to justify the same with reference to Article 41 of the Constitution of India and the constitutional objective contained therein coupled with a corresponding obligation upon the State to cater to the need of poor students who according to him are also entitled to study MBBS/BDS course and join the medical profession, but were not able to do so on account of financial constraints, hence, the obligation of the State towards them was being discharged by prescription of subsidized seats for them. According to him the State was empowered to apportion part of the seats for this purpose as also to require the candidate to be a domicile of the State which would largely ensure that after passing out he will serve the people of the State and shall not move out.

Without in any manner doubting the intent or object of the State Government in introducing such a clause and also assuming for a moment its permissibility in law, we do not see how this avowed object can be achieved by the said provisions. No income criteria has been prescribed so as to determine the eligibility of a student for admission against subsidized seats. In the absence of a criteria or benchmark to determine who is a poor student it is inexplicable as to how admission of poor students against such seats can be assured. Clause 1 says that the scheme would be implemented on "first admission", basis, this itself defeats the object. As per Dr. L.P. Misra "First Admission Basis" means the first student as per rank in the NEET List to exercise his option for admission to a seat in a private institution will be entitled for a subsidized seat. Thus, one who is higher ranked in the NEET list will have a preferential advantage of admission against a subsidized seat. On being asked, Dr. Misra categorically stated that if the higher ranked, say, a student who is at serial no.1 in the NEET List, will be entitled to it, even if, he is financially well off, as, it would be in keeping with the requirement of adherence to merit which the impugned decisions also seeks to achieve but then, what he fails to see is, that it would defeat the very object of creating subsidized seats. A financially well off student will get admission against a seat carrying only Rs.36,000/- as tuition fee whereas a poor student, if such seats get exhausted, may be asked to pay double the fee, as, there is no guarantee that all poor students will figure in the zone of merit for 50 percent subsidized seats. This is not what the Cabinet decision, which has been perused by us, envisages. Clause 1 and 2 of order dated 02.09.2016 seem to be founded on a fallacious presumption that all or most of the high ranked students would be poor also. If, most, if not all such students, are financially well off based on the criteria to be fixed by the State and most of the seats get filled by such financially well off students, would it serve the constitutional objective being canvassed before us and whether such a situation can be sustained in the light of the objective sought to be achieved as per the decision of the Cabinet.

On the other hand if subsidized seats are filled only by poor students, irrespective of their lower merit, it will compromise the merit consideration, protection of which is paramount , specially as, admission is to a professional medical course which is related to the health and well being of the people. Such admission would also be against the judicial mandate already referred hereinabove, as, less meritorious students would be admitted, whereas, more meritorious shall be ousted considering the extent of subsidy i.e. 50% of the seats. The State has clearly failed to apply its mind appropriately to the relevant aspects of the matter before introducing such a provision.

Such a laudable object as is being professed, can be achieved and would be legally permissible, if poverty and merit go hand in hand. The student ranked at sl. no.1 in the NEET list, if he is also poor, for which a rational criteria will have to be laid down, he should be eligible and entitled to admission against a subsidized seat, not otherwise. If he is financially well off or above the criteria referred above, he should be admitted against non subsidized seats, unless the State devises a policy to encourage meritorious students to take up the medical profession and its study, in keeping with the constitutional provisions and principles, which is not the case here. Admission of such students against free seats was disapproved in T.M.A. Pai (para 30 and 45). This would be a reasonable mechanism which would stand the test of constitutional and statutory provisions and would also achieve the object of the State.

There is another aspect of the matter regarding competence and admissibility of such action of the State, which requires consideration. Under Section 4 read with section 10 of the Act, 2006 the fee chargeable by an institution is to be determined by a statutory committee constituted thereunder, that too, after taking into consideration the parameters mentioned in Section 10 and giving a right of hearing to the concerned institution, against whose decision a further remedy is prescribed by way of an appeal under Section 11 thereof. The Act does not empower the State Government to fix such fee nor does it classify the seats into subsidized or non-subsidized, therefore, the competence of the State Government in this regard under the said Act is non-existent. Exercise of such executive power by the State during subsistence of a statutory provision i.e. Section 4 and 10 of the Act, 2006 on the subject, cannot be sustained.

Furthermore the order dated 20.9.2016 introduces an entirely new provision or policy in the garb of the power vested in the State under Section 15 (1) of the Act, 2006 which in law, can be exercised, only for removal of any difficulty in the implementation of the said Act. In the present case there is no such difficulty. Section 15(1) does not envisage introduction of a new policy wholly un-related to any difficulty in the implementation of the said Act. Sri Mathur has rightly relied upon the judgment in the case of Mahadev Upendra Sinnai Vs. Union of India, (1975)3 SCC 765 (paragraph 39) in this regard.

Dr. Misra relied upon a judgment of the Supreme Court in the case of State of Sikkim vs. Dorjee Tshering Bhutia and others reported in (1991) 4 SCC 243 in support of his contention, which in our view does not apply in the facts of the present case. Assuming for a moment that even independent of Section 15(1), the State has the power to take such a policy decision, the fact is as is evident from the discussion made hereinabove and hereinafter, the policy contained in clause 1 and 2 of the order dated 2.9.16 is apparently unworkable, irrational and arbitrary.

During arguments it was contended that funding of subsidy would put great financial burden on the State but while filing the counter affidavit the State has been more cautious in choosing its words. In para 2 it has sought a short time for removing shortcomings in the policy, if some are found. In para 3(iii) it has been stated the cost has to be borne fully by the student and that it had not made budgetary provisions in this regard and at present there was no policy decision of the State Government to subsidize any higher study. The contention far from helping it reveals the casual manner in which the policy has been formulated.

Again, assuming for a moment that Section 10 relates to determination of fee of individual institutions and as regards policy matters and on principles an inherent power is vested in the State to meet larger public interest, the question still remains- where is the authority vested in it by law to burden one category of students with the obligation to fund the subsidy extended to another category, rather to compel them to bear the financial burden of such subsidy, which may result in deprivation of an otherwise meritorious students from admission, who may be in a position to bear the cost of his own study but not to bear the cost of another student also, in addition to his own. In present times students or their parents take loan for funding higher studies including in professional courses, now in view of the impugned policy, student will have to take loan of double the amount to fund the subsidy of another student, this could also be in the case of a poor student who may not be so high in the merit list so as to fall in the first 50% seats so as to get the subsidy, which is apparently unreasonable. Article 41 is a guide for the State, subject to its economic capacity, but, it does not permit the imposing of such a burden on others, that too, students, without any legislative backing as none has been shown.

It is relevant in this context to discuss the concept of subsidy and the meaning of the said term. The Supreme Court had the occasion to consider it in the case of Shri Ambika Mills Ltd. v. Textile Labour Association (1973) 3 SCC 787 in the context of the payment of Bonus Act 1965 etc. Their Lordships considered various decision of the word subsidy which are as under:-

Webster's New World Dictionary, 1962 ......a grant of money, specifically (a).....(b) a Government grant to a private enterprise considered of benefit to the public.

Shorter Oxford English Dictionary.

Help, aid, assistance.....financial and furnished by a state or a public corporation in furthering of an undertaking or the upkeep of a thing....

Chambers Twentieth Century Dictionary, Revised Edn.

Assistance and in money.....a grant of public money in aid of some enterprise, industry etc., or to keep down the price of a commodity....

The Reader's Digest Great Encyclopaedic Dictionary, Vol. II (M.Z).

Financial aid given by Government towards expenses of an undertaking or institution held to be of public utility; money paid by Government to producers of a commodity so that it can be sold to consumers at a low price...."

Definition given in "Words and Phrases, Permanent Edition, Vol. 40" where subsidy is described as follows:

"A subsidy is a grant of funds or property from a Government as of the state or municipal corporation to a private person or company to assist to the establishment or support of an enterprise deemed advantageous to the public; a subvention". Reference is made to 60 Corpus Juris.

Corpus Juris Secundum, Vol. 83, p. 760 gives the following under the beading of subsidy:

"Something, usually money, denoted or given or appropriated by the Government through its proper agencies; a grant of funds or property from a Government, as the state or a municipal corporation to a private person or company to assist in the establishment or support of an enterprise deemed advantageous to the public; a subvention.

Pecuniary premiums offered by the Government to persons enlisting in the public service, or engaging in particular industries, or performing specified services for the public benefit are treated in Bounties."

The Blacks Law Dictionary defines subsidy to mean a grant, usually made by the Government to any enterprise whose promotion is considered to be in the public interest. Although Government sometimes make direct payment such as (cash grant) subsidies are usually indirect. They may take the form of research and development supports tax breaks, a provision of raw material at below market prices or low interest loan or low interest export credits guaranteed by a Government agency.

The New Webster's Dictionary of the English Language College Edition, defines subsidy as a some of money granted by the Government to an organization, institution or industry, specially one benefiting the health and welfare of the country, charity, hospital, or public service; a gift of money; grant; in Britain as an aid and tax formally granted by Parliament to the Crown for special occasion a sum paid by one Government to another usually providing a return certain commercial advantages or other services.

Thus, essentially, it is an aid granted by a Government. Assuming that it could the extracted by The Government to fulfills the public need or higher public objective, it can not be done from the students without their consent, without even ascertaining their paying capacity and without there being any constitutional/ statutory backing in this regard nor any rational basis for the same.

In fact, such categorization of seats into free and payment seats and admission of wealthy students against free seats in Unnikrishanan's case was disapproved in TMA Pai's case (paragraphs 30 to 45).

The imposition of such an enhanced fee under NRI quota of 15%, wherever prevalent, stands on a different footing, as, it depends upon undisputed financial capacity of the said category. In the State of U.P. there is no NRI quota. A resident Indian may not have the same economic capacity as a Non-Resident-Indian. Moreover the scheme does not define the rich and the poor. It does not provide any criteria for such distinction. One could understand if the State opted to bear the subsidy or if it came out with a constitutionally and legally sustainable policy, but, not in its present form.

Thus, in its present form clause 1 and 2 of order dated 02.09.2016 not only defeat the object of facilitating admission of poor students but also compromises merit in admission to a professional medical course. The policy contained therein is unworkable, impractical, without any rational basis, arbitrary, and legally unsustainable. It is hit by Article 14 and 15 of the Constitution of India.

Reservation based on Residence in the Context of Clause 1 and 2 of order dated 02.09.2016.

It is also the grievance of the petitioners that though the earlier Government Orders did not impose any such condition that original residents of the State of U.P., alone would be entitled to admission against sanctioned seats in an unaided private institution but the order dated 02.09.2016, after creating a category of subsidized seats to the extent of 50% of the total sanctioned intake of a private institution puts such a condition vis-a-viz these seats which according to them is not only constitutionally impermissible in view of the judgment of the Supreme Court rendered in the case Dr. Pradeep Jain and others Vs. Union of India and others reported in (1984) 3 SCC 654; Magan Mehrotra and Others Vs. Union of India and Others reported in (2003) 11 SCC 186 and Nikhil Himthani Vs. State of Uttrakhan and Others reported in (2013) 10 SCC 237, but also compromises the merit as reflected in the NEET list 2016, as, 50% of the sanctioned intake in a private institution will be filled by an original resident of the State of U.P., even though, he may be placed lower in the NEET list 2016. This, according to the learned counsel appearing for the petitioners would be a clear violation of merit consideration which has been emphasized by the Supreme Court and is also sought to be professed and achieved by the State itself in issuing the impugned orders.

Dr. L.P. Misra appearing for the State on the other hand contended that reservation of certain percentage of seats for residents of the State of U.P. was constitutionally permissible as per the judgment of the Supreme Court in Dr. Pradeep Jain, and the case of Saurabh Chaudri and Others Vs. Union of India and Others reported in (2003) 11 SCC 146. He contended that there was a rational basis for the said provision that is those who study in the Medical Colleges or Universities of the State against subsidized seats and also belong to the State may serve its people instead of moving out to other places. There was a need for such reservation in the larger interest of the people of the State. He also emphasized that, if at all, this grievance could have been raised by a student who may be prejudiced by such a condition, but, it is surprising that the private institutions had rushed to Court challenging the same, though they are in no way prejudiced by it.

Having perused the brochure as also the counter affidavit and the form annexed therewith delineating the meaning of the term 'original resident' as applicable to the admission process in question, we do not find any mention of 'Place of Birth' as one of the criteria for availing the benefit of reservation on the basis of residence, therefore, the prohibition contained in Article 15(1) is not attracted. The word 'Domicile' is a special word indicating the status of a person in relation to a legal or political system, but, it has been loosely used as a synonym for 'residence', as was observed by the Supreme Court in Dr. Pradeep Jain's case, which in fact counselled the States not to misuse the said word in an admission process. Thus, the word 'Domicile' which is not mentioned either in the order dated 02.09.2016 nor in the brochure etc. has no relevance to the present controversy. Institutional reservation is also not an issue here.

The issue is, whether original residents of the State of U.P. as mentioned in the brochure etc. could be extended the benefit of reservation on the basis of residence against 50% of the seats in private unaided institutions in the matter of admission to professional under graduate courses, where, the emphasis is on merit and after introduction of NEET, it is the merit reflected therein, which is to be adhered.

On a perusal of the dictum of the Supreme Court in the Dr. Pradeep Jain's case which still holds the field, we find that making of some provision for reservation of certain percentage of seats for residents of the State is not completely barred which is evident from paragraphs no. 8, 9, 10, 13, 14, 15, 16, 19, 20 and 21 of the said judgment. In fact in Paragraph No. 19 it has been observed that even if at some stage it is decided to regulate admissions to the M.B.B.S course on the basis of an All India Entrance Examination, some provision would have to be made for allocation of seats amongst the selected candidates on the basis of residence so as to take into account the local factors mentioned in the said judgment. In Paragraphs No. 20 and 21, while considering the extent of such reservation a complete exclusion of the rest of the Country and wholesale reservation based on residence was clearly ruled out. As regards the exact percentage it was observed that it is not possible to provide a categorical answer to this question as the extent of such reservation would depend on several factors including opportunities for professional education in that particular area, the extent of competition, level of education, development of the area and other relevant factors. Referring to a Medical Education Review Committee's suggestion that the outer limit of reservation based on residence or institutional preference should not exceed 75%, the Supreme Court opined that it would be fair and just to fix the outer limits at 70%. This was done to reconcile the apparently conflicting claims of quality and excellence. It further made it clear that the outer limit fixed by it was subject to any reduction or attenuation which may be made by the Indian Medical Council. It further opined that this outer limit fixed must gradually over the years be progressively reduced but that it was a task to be performed by the Medical Council of India.

In view of the aforesaid, the argument advanced by Dr. L.P. Mishra justifying prescription of 50% seats in private institutions to be filled from residents of the States appears worth accepting at first blush. However, we can not loose sight of the fact that when the judgment was pronounced in the Dr. Pradeep Jain's case in the year 1984, the phenomenon of private educational institution had not bloomed and it is doubtful as to whether even the sapling had been planted. We can also not ignore the fact that thereafter the Supreme Court considered the criteria and parameters of admission to medical courses at the under Graduate and Post Graduate level, as is evident from the reading of the judgment of the Supreme Court in T.M.A. Pai and in P.A. Inamdar and the Constitution Bench Decision in Modern Dental College. It hardly needs to be emphasized, specially in view of the later judgment in Modern Dental College, that adherence to merit is the paramount consideration for admission in professional courses which should not be compromised. It being so, this issue is to be considered from this angle also. No doubt reservation of certain percentage of seats for the residents of the State is constitutionally permissible and may at times be necessary and the reasoning given by Dr Misra that people of the State should have the service of such medical professionals in a State which is lacking in such facilities and services, but, what would be its extent in such a scenario so as not to compromise merit in the admission process, is to be kept in mind.

In the present case, out of total of 1840 seats in M.B.B.S. courses in Government Colleges and Universities, 1540 seats are available for being filled as State seats i.e. apart from the All India Quota. All these seats are to be filled by students who are original residents of the State of U.P. In addition to it Clause 1 and 2 of the order dated 02.09.2016 introduces a reservation on the basis of residence in respect of 50% seats in private institutions also. The total seats in M.B.B.S. Courses which are available in private institutions are 3100, out of it, 1550 would be filled from the residents of the State. Thus, as far as the M.B.B.S. State seats are concerned, out of 4650 about 3090 would be reserved for residents of the State. In terms of percentage it comes to 66.45%.

If we include the All India Quota seats of M.B.B.S. also, then, the total seats come to 4940 and as, no such condition is prescribed for the All India Quota, therefore, out of the said figure, 3090 seats in total would be reserved for the residents of the State. In terms of percentage, based on total seats including the All India Quota, it comes to 62.55%. Same is the position with regard to the B.D.S. quota.

The percentage and figures mentioned hereinabove are on the basis of information given by Dr. L.P. Mishra and learned counsel for the petitioners, therefore, they are subject to any correction or adjustment upon correct calculation, but, they do give a picture as to the extent of reservation on the basis of residence, which, even after lapse of more than 30 years, is still about 62 to 65%, though, the outer limit fixed way back in the year 1984 by the Supreme court was 70%, that too, with the observations that it was subject to reduction and attenuation with passage of time by the Medical Council of India, but, it appears that it has not undertaken any such exercise.

The decision of the Cabinet placed before us, as also two counter affidavits filed by the State do not reveal any material or exercise undertaken in this regard to ascertain and fix the extent of such reservation so as to justify the same as a rational action in accordance with the views expressed in Dr. Pradeep Jain's case (supra), taken after undertaking an exercise with due application of mind, as, this has a bearing on the rights of other meritorious students who are not residents of the State, but, are citizens of this Country, specially, as the conflicting claims of quality and excellence, as observed in Dr. Pradeep Jain's case (supra), were required to be reconciled by fixing a reasonable percentage.

It is also not out of place to mention that the State does not contribute even a penny to the private institutions, therefore, imposition of such a condition in respect of admission in such institutions is a factor which weighs heavily against the reservation of seats to the extent of 62 to 65% in private institutions on the basis of residence, specially, as it can not be doubted that by doing so the merit reflected in the NEET list will be affected at least to some extent, as, if the candidate is a resident of the State, even if lower in merit, he would have a preferential right and would steal a march over a meritorious candidate who is not a resident of U.P., thereby, compromising merit in the admission process which would not be in consonance with the law declared by the Supreme Court as noticed herein above, therefore, balancing conflicting claims in the light of the said decisions and also considering requirement of adherence to merit, we are of the considered view that the prescription of reservation based on residence exceeding 50% total seats excluding the seats of the All India Quota but including the seats in Government institutions, is unreasonable and unsustainable, therefore, we confine such reservation to the extent of 50% as aforesaid. This would, however, be subject to any further revision keeping in mind the observation made in Dr. Pradeep Jain's case (supra). Clause 1 and 2 of order dated 02.09.2016 shall stand modified accordingly, so far as the condition of residence is concerned, subject however to the other observations made by us regarding the validity of the said clauses.

Validity of the Order date 3.9.2016 As far as order dated 03.09.2016 is concerned, by superseding clause 4 of the order dated 02.09.2016 and restoring Centralized Counselling to minority institutions also as was the case under the earlier Government orders, it does not violate any right of such institutions, as, it is permissible to do so in view of P.A. Inamdar and Modern Dental College case, therefore, this order does not suffer from any error of law.

Application of Reservation of seats for Scheduled Caste, Scheduled Tribe and Other Backward Classes etc. in Admission to Private Institutions including minority institution.

Even though the State legislature has promulgated an Act known as U.P. Admission to Educational Institution (Reservation of Scheduled Caste, Scheduled Tribe and Other Backward Classes) Act, 2006 Dr L.P. Misra appearing for the State made a categorical statement and the same is also contained in the counter affidavit filed by the State, to the effect that considering the paramount consideration of merit which is not to be compromised in the event of application of such reservation the State has decided not to apply the same in the matter of admission in question. In view of this, the issue does not fall for any further consideration by this Court.

Minority institutions As far as minority institutions are concerned in view of clause 5(5) of the Regulations, 1997 made under Section 33 of the Act, 2006 which prescribes a single Eligibility cum Entrance Test for admission to graduate medical professional courses without making any distinction between minority and non minority institutions and the admissibility of such a regulatory measure by the Supreme Court in Modern Dental College case and Sankalp Charitable Trust case and as there is no challenge to the holding of such tests in these petitions even by petitioners who are minority institutions, therefore, on the same analogy and for the same reasoning as has been discussed hereinabove in the earlier part of the judgment, a Centralized Counselling for such a minority institution is also permissible and has been approved in Modern Dental College, therefore, the impugned orders in this regard do not suffer from any error. Exclusion of minority institutions from the purview of the Act, 2006 does not invalidate the impugned orders as the said Act does not dealt with centralized counselling. Condition no.4 of notification dated 02.09.2016 was contrary to the dictum of the Supreme as already referred above, therefore, it has rightly been superseded by a subsequent order dated 03.09.2016, reiterating the position under the earlier Government orders which was in consonance with law. A single window procedure in the form of Centralized Entrance Test and Centralized Counselling is applicable to minority institutions also as per P.A. Inamdar and Modern Dental College case, therefore, the impugned Government orders cannot be faulted on this count specially as exclusion of minority institution under Section 3(g) read with Section 6 etc. of the Act, 2006 has become redundant in view of a centralized entrance test being prescribed by regulation 5(5) as amended vide notification dated 21.12.2010 and the judgment of the Supreme Court in Modern Dental College case and Sankalp Charitable Trust case which leave no room of doubt in this regard.

Considering the mechanism of Common-Entrance-Test and Centralized Counselling from which even the minority institutions cannot escape as they are permissible regulatory measures to be adopted by the State and a reasonable restriction on constitutional rights which, in any case, are not absolute as held in Modern Dental College case and also as the process of admission includes counselling, where, admissions are granted on the basis of the eligibility-cum-merit list based on NEET Test 2016 without any liberty to the private institutions including the minority one's to hold any entrance test or counselling separately for themselves and also considering the fact that it is a students who opts for a particular institution, including a minority institution, and neither the State nor the private institution can have any role in exercise of this choice, the question of minority institutions being allowed to fill up their seats on their own does not arise as any such permission would contrary to the law declared by the Courts and would give room for exploitation of such students as has already been discussed at length in Modern Dental College case.

However, having held as above, we cannot ignore the fact that after all, the minority institutions by their very character are entitled to cater to the need of the minority albeit within reasonable limits in terms of protection granted to them under Article 30(1), therefore, while considerations of merit in the Common-Entrance-Test and counselling which are regulatory measures is necessarily applicable in respect of minority institutions also, which cannot be compromised, but, a balance is required to be struck in this regard with the rights of minority institutions to admit students of their community, especially, in respect to Integral University established under the State Act i.e. Integral University Act, 2004, Section 6 of which permits it to provide reservation for minorities not exceeding 50% in a year. Needless to say that similar is the position in respect of other minority institutions as these protections are under the constitutional provisions and not on the basis of a statute. These institutions can not hold an Entrance Test or Counselling but they are at liberty to choose, subject to the choice of the student, without deviating from merit of the students belonging to minority community as reflected in the NEET list 2016 and grant admission to them to the extent permissible, in exercise of their minority status and the benefit attached therewith as otherwise their minority status itself would be rendered meaning-less.

The dictum of the Supreme Court in this regard is binding on all courts under Article 141 of the Constitution of India and under Article 141 thereof all authorities civil and judicial in the territory of India are obligated to Act in the aid of the Supreme Court.

As far as regulation of fee chargeable by them is concerned it is not in dispute that the provisions applicable to other institutions are not being applied by the State in respect to them by the impugned orders, therefore, this issue does not require any consideration.

Objection to the maintainability of the writ petitions.

An objection was raised by the State regarding the very maintainability of these writ petitions in view of an order dated 28.04.2016 passed by the Supreme Court in the case of Sankalp Charitable Trust by referring to point no.6 therein. The issue involved in the said writ petition is/was regarding holding of NEET examination for admission to MBBS/BDS for academic session 2016-17. The cause of action for filing the present writ petitions has arisen subsequent to the said examination and it is based on the policy decision taken by the State Government regarding a subsequent action i.e. Centralized Counselling and fixation of fee etc. The observation contained at point no. 6 that any difficulty with regard to implementation of the order of this Court the Stake-holder may approach the Supreme Court has to be understood in the context in which it has been made, therefore, for the reasons aforesaid we do not find that the said order creates any bar in entertaining these writ petitions which are based on a subsequent and separate cause of action.

Another objection was sought to be raised by the State that none of the students had approached the Court and that it was premature to say that based on the policy of the State Government the requisite number of students would not take admission under 50% non-subsidized seats in private institutions thereby jeopardizing their viability. We are not impressed by this argument. The petitioners are private institutions who have challenged the policy decision of the State Government by which it has decided to hold Centralized Counselling as against their alleged right to hold such counselling as being claimed by these petitioners' institutions, as also the rationality behind creation of subsidized seats; introducing reservation on the basis of residence as against 50% seats in private institutions where the State has no financial stake, thereby, allegedly, compromising merit in violation of the dictum of the Supreme Court and encroaching on their rights. In view of what has been discussed hereinabove as the policy contained in the order dated 02.09.2016 in its present form is clearly unworkable, therefore, to say that petitioners cannot challenge the same is apparently fallacious. This policy is the basis for holding the admission process after issuance of NEET list, therefore, if its validity is not considered at this stage but at a later stage it might result in jeopardizing the admission process irreparably as also the career of the students. No trial and error can be permitted in such matters without there being due application of mind at the initial stage of formulating a policy, as, the triple test and merit consideration are to be ensured at this stage itself.

Sri Gyanendra Srivastava learned counsel appearing for Medical Council of India informed the Court that in view of the dictum of the Supreme Court in Priya Gupta's case the time scheduled for such admissions cannot be tinkered by any one. We have perused the judgment in Priya Gupta's case and have kept the same in mind. If the illegality is palpable and fundamental which requires rectification while there is still time, we do not see how this could be done without interfering in the matter but of course the time scheduled has to be honoured.

As far as interim orders passed by Kerala and Bombay High Courts are concerned and which have been relied upon by the petitioners, as we are deciding the writ petitions finally and interim orders do not constitute binding precedent and also in view of detailed discussions made hereinabove which could not be done at the interim stage in the proceedings pending before the other High Courts as also other proceedings before this Court as a consequence of which earlier relevant aspects could not be considered in these interim orders, therefore, we do not feel that our hands are tied in any manner by those interim orders.

Before parting we would like to record our strong disapproval of the casual manner in which the State has proceeded with the matter by issuing the orders one after the other modifying the earlier one till the last moment of registration and thereafter till the very date of commencement of counselling i.e. 03.09.2016, even introducing a major change in the policy vide order dated 02.09.2016 just a day prior to it, thereby creating a state of confusion and uncertainty which should have been avoided. Even the policy relating to admission in private unaided institutions had not taken final shape and was uncertain till the issuance of the brochure which is stated to have been issued on 16.08.2016. The student should have been informed in advance about the Government policy with regard to admission process and fee fixation unambiguously and specifically so as to facilitate the exercise of their choice in respect thereof during the process of counselling.

In view of the above discussion we order as under:-

(i) Subject to what has been held hereinabove, the impugned orders prescribing a Centralized Counselling for all institutions for admission to MBBS/BDS medical courses in the State based on NEET 2016, do not suffer from any error.

(ii) Minority institutions shall be allowed to admit the students of their community based on Centralized Counselling held by the State on the basis of NEET 2016, to the extent permissible, but, without deviating from the merit of such students as reflected in the NEET list 2016, so as to sub-serve their minority status under Article 30(1) of the Constitution of India.

(iii) Clause 1 and 2 of the order dated 02.09.2016 shall not be given effect in their present form, however, considering the laudable object behind it, which the State wants to achieve in discharge of its constitutional obligation, if it chooses to prescribe subsidized seats for the poor it may do so, but, subject to following conditions:-

(a) it should fund the subsidy itself unless it is able to devise any other legally and constitutionally permissible means of doing so;

(b) in such an eventuality, it shall ensure that poor students are admitted against subsidized seats without compromising merit i.e. only when such students are within the zone of merit, in the normal course, for exercising his choice during counselling as per NEET list 2016 and not otherwise;

(c) reservation on the basis of residence for the purposes of subsidized seats, if the occasion so arises, shall be restricted to 50% of the seats excluding the All India Quota seats but including the seats in Government institutions and the number/percentage of such seats reserved in private institutions shall be re-fixed accordingly.;

The State may if it chooses reformulate its policy as aforesaid. If not, then clause 1 and 2 of the order dated 02.09.2016 shall be treated as inoperative.

(iv)As we have held clause 1 and 2 of the order of the State dated 02.09.2016 to be unsustainable in its present form and as they provide the basic principle and formula of fee fixation, for seats in private institutions, therefore, unless the State reformulates its policy as aforesaid, the orders passed by the fee Committee based thereon, in respect of individual institutions can also not be sustained nor given effect, and are accordingly quashed, therefore, subject to the above, the committee shall refix the fee chargeable by such institutions, accordingly.

It is made clear that we have not considered the other grounds of challenge to the decision of fee committee raised in separate writ petitions by individual petitioners and all such pleas shall be open to the parties, if the occasion so arises.

(v)As a consequence of the above Ist round of counselling, which has not yet been finalized, is required to be held again. It is therefore provided that the same shall be done with expedition and the admission process shall be completed, including the exercise/steps, if any, referred at point no. (iii) hereinabove, with the same expedition, keeping in mind the time schedule in regulation 7(6AA) of the Regulations, 1997 but no later than 25.09.2016.

In the end we would like to record our appreciation for the valuable assistance extended by all the learned counsel appearing for the parties which has facilitated the rendering of this judgment today, considering the time crunch.

Subject to the above, all the writ petitions are partly allowed.

Dated: 15.09.2016 A.Nigam/Vks/R.K.P.