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IN THE HIGH COURT OF KARNATAKA

DHARWAD BENCH

DATED THIS THE 17TH DAY OF APRIL, 2015

PRESENT

THE HON’BLE MR.JUSTICE B.S.PATIL

AND

THE HON’BLE MR.JUSTICE P.S.DINESH KUMAR

W.P.Nos.102850-102851/2015 (EDN-MED-ADM)C/W. W.P.Nos.102852-102853/2015

& W.P.Nos.102916-102917/2015

IN W.P.Nos.102850-102851/2015:

BETWEEN

1. SHRI BASAVESHWAR VIDYA VARDHAK SANGHA,O/A. S.N.MEDICAL COLLEGE,NAVANAGAR, BAGALKOTE – 587 102,REPRESENTED BY ITS CHAIRMAN,MR.VEERANNA C.CHARANTIMATH,S/O.SRI.CHANDRASHEKHARAYYA,AGED ABOUT 55 YEARS.

2. S.NIJALINGAPPA MEDICAL COLLEGE,O/A. NAGAVANAGAR, BAGALKOTE–587 102,REPRESENTED BY ITS CHAIRMAN,MR.VEERANNA C.CHARINTIMATH,S/O.SRI.CHANDRASHEKHARAYYA,AGED ABOUT 55 YEARS.

... PETITIONERS

(BY SRI.M.R. NAIK & SRI.SHASHI KIRAN SHETTY,SENIOR COUNSEL FOR SRI.MAHANTESH R.PATIL

R

: 2 :

& FARAH FATHIMA, ADVOCATES)

AND

THE MEDICAL COUNCIL OF INDIA,POCKET 14, SECTOR 8, DWARKA PHASE 1,NEW DELHI - 110 077,THROUGH ITS SECRETARY

... RESPONDENT

(BY SRI.N.KHETTY, ADVOCATE)

THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASHTHE CIRCULAR DATED 16.01.2015 ISSUED BY THERESPONDENT TO CONDUCT ENTRANCE EXAMINATION FOR NRISTUDENTS FOR ADMISSION IN MBBS COURSE FROMACADEMIC YEAR 2015-16 (ANNEXUER-A) AND ETC.,

IN W.P.NOS.102852-102853/2015

BETWEEN

1. KLE UNIVERSITY,JNMC CAMPUS, NEHRU NAGAR,BELAGAVI-590 010,REPRESENTED BY ITS REGISTRAR,DR.V.D.PATIL S/O DUNDAPPA PATIL,AGED ABOUT 66 YEARS.

2. JAWAHARLAL NEHRU MEDICAL COLLEGE,JNMC CAMPUS, BELAGAVI-590 010,REPRESENTED BY ITS PRINCIPAL,DR. NIRANJANA, W/O: MR.SHAMBULINGAPPAMANTH SETTY, AGE: 57 YEARS.

... PETITIONERS

(BY SRI.M.R. NAIK & SRI.SHASHI KIRAN SHETTY,SENIOR COUNSEL FOR SRI.MAHANTESH R.PATIL& FARAH FATHIMA, ADVOCATES)

: 3 :

AND

THE MEDICAL COUNCIL OF INDIA,POCKET 14, SECTOR 8, DWARKA PHASE I,NEW DELHI - 110 077THROUGH ITS SECRETARY

... RESPONDENT

(BY SRI.N.KHETTY, ADVOCATE)

THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASHTHE CIRCULAR DATED 16.01.2015 ISSUED BY THERESPONDENT TO CONDUCT ENTRANCE EXAMINATION FOR NRISTUDENTS FOR ADMISSION IN MBBS COURSE FROMACADEMIC YEAR 2015-16 (ANNEXUER-A) AND ETC.,

IN W.P.Nos.102916-102917/2015

BETWEEN

1. SHRI DHARMASTHALA MANJUNATHESHWARAEDUCATION SOCIETYREP. BY ITS SECRETARYDR. K. JINENDRA PRASADS/O: MR.B.T.ARIGA JAINAGE 69 YEARS, OCC. SECRETARYSDM EDUCATION SOCIETYR/O SATTUR, TQ & DIST. DHARWAD

2. SDM COLLEGE OF MEDICAL SCIENCESAND HOSPITAL, DHARWAD, REP. BY ITS PRINCIPALDR.J.V.CHOWTI S/O MR.VENKATARAO CHOWTIAGE 68 YEARS, OCC. PRINCIPAL SDMCOLLEGE OF MEDICAL SCIENCES & HOSPITALSATTUR, TQ & DIST. DHARWAD

... PETITIONERS

(BY SRI.M.R. NAIK & SRI.SHASHI KIRAN SHETTY,

: 4 :

SENIOR COUNSEL FOR SRI.MAHANTESH R.PATIL& FARAH FATHIMA, ADVOCATES)

AND

THE MEDICAL COUNCIL OF INDIAPOCKET 14, SECTOR 8DWARKA PHASE 1, NEW DELHI - 110077THROUGH ITS SECRETARY

... RESPONDENT

(BY SRI.N.KHETTY, ADVOCATE)

THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASHTHE CIRCULAR DATED 16.01.2015 ISSUED BY THERESPONDENT TO CONDUCT ENTRANCE EXAMINATION FOR NRISTUDENTS FOR ADMISSION IN MBBS COURSE FROMACADEMIC YEAR 2015-16 (ANNEXURE-A) AND ETC.,

THESE PETITIONS BEING HEARD AND RESERVED FORJUDGMENT, THIS DAY COMING ON FOR PRONOUNCEMENT OFJUDGMENT, P.S.DINESH KUMAR J., MADE THE FOLLOWING:

O R D E R

Common questions of facts and law are involved in all

these writ petitions challenging Circular dated 16.01.2015

issued by the respondent – Medical Council of India (‘the MCI’

for short), directing inter alia that from the Academic Year

2015-16 onwards all admissions in NRI category shall be on

merit determined thorough Common Entrance Test. Hence,

they are heard and disposed of by this common order.

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2. Gravamen of Petitioners’ case is that they are

Private Unaided Medical Colleges; their right to admit

students under NRI and Management quota has been

recognized by the Supreme Court in various authoritative

pronouncements; there is no ambiguity with regard to

admission of student under the NRI Quota in Private Unaided

Medical Colleges; having misconstrued the observations of the

Supreme Court contained in paragraph 131 in the case of

P.A.INAMDAR AND OTHERS VS. STATE OF MAHARASHTRA

AND OTHERS1 the respondent MCI has issued a circular

dated 16.01.2015 in the teeth of the Judgement of Supreme

Court and therefore, it is unsustainable in law and liable to

be quashed.

3. After notice, the MCI has entered appearance and

filed statement of objections contending inter alia that the

Circular in question is issued pursuant to the observations

contained in paragraph 131 of P.A. INAMDAR case, wherein

1 2005(6) SCC 537

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the Apex Court has consciously referred to the aspect of merit

and held that the right of petitioners/Private Unaided Medical

Colleges to admit students under Management and NRI quota

is not completely unfettered and on the other hand it is

expressly stated therein that merit should not be given a

complete go-by thereby meaning that all admissions shall be

in accordance with inter se merit within respective categories;

MCI being the only highest regulatory body for maintenance

of standards of medical education, has rightly issued the

circular in question which is in consonance with the

observations contained in PA INAMDAR’s case. On these

among other grounds, MCI prays for dismissal of Writ

Petitions.

4. We have heard Sri.Shashi Kiran Shetty and

Sri.M.R.Naik learned Senior Counsel appearing for the

petitioners and Sri. N.Khetty, learned counsel appearing for

the respondent.

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5. Sri.Shashi Kiran Shetty, the learned Senior

counsel submits that the circular in question is contrary to

observations of the Supreme Court in the case of

P.A.INAMDAR. He submits that admission of students in the

Medical colleges is done pursuant to entrance test conducted

by COMED-K, Deemed Universities etc., as per the

Consensual Agreement between the State Government and

Private Medical Colleges. He submits that pursuant to

judgment in P.A INAMDAR the State Government enacted

Karnataka Professional educational Institutions (Regulation of

Admission and determination of fee) Act 2006 [Act 8 of 2006]

which has defined non-resident Indians in Section 2(n) of the

said Act and allocation of seats is governed by Section 9(iv) of

the said Act, which mandates that admission to Medical

Course in un-aided professional colleges except seats

reserved for NRI candidates shall be made on the basis of

merit by following procedure of common entrance test. He,

further, submits that subsequently Act 13 of 2006 was

brought in to force keeping Act 8 of 2006 in abeyance and

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admission of seats were being regulated in terms of Sec. 5

thereof where under the Petitioners were entitled to fill up 20

% seats. It is further submitted by him that in terms of

consensual agreement 42% of the seats are allotted to the

Government and in the remaining 58%, 38% seats are

allotted on merit basis through entrance test conducted by

Comed-K and the remaining 20% seats are allotted under NRI

and Management quota (15% under NRI quota and 5% under

Management quota) and the said arrangement continues as

on date.

6. The learned Senior Counsel Sri.M.R.Naik submits

that admission to Private Unaided Medical colleges has been

considered by the Supreme Court in various judgments. He

submits that in UNNI KRISHNAN, J.P. AND OTHERS vs. STATE

OF ANDHRA PRADESH AND OTHERS2, the Apex Court has

recognized right of the Private Medical Colleges to admit NRI

students under discretionary quota. He further submits that

2 (1993) 1 SCC 645

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principles of fair, transparent and non-exploitative mode of

admission of students in Unaided Private Medical Colleges

enunciated by the Apex Court are being strictly adhered to by

the petitioners. The impugned circular is unsustainable in

law as the same is not traceable to any express Regulation in

this behalf. MCI was a party in all the cases before the Apex

Court and whilst the directions contained in paragraph 131 of

P.A. INAMDAR are in force, it was State alone which could

have brought in a legislation and therefore, the impugned

circular runs counter to the said directions and liable to be

quashed.

7. Sri. M.R. Naik next submits that the circular in

question is issued not by the Council after deliberating the

issue in the light of the existing law on the point, but on the

other hand, it has emanated out of proceedings of executive

committee of the MCI in the meeting held on 16.12.2014 and

therefore, the impugned circular cannot be construed as the

one issued by the Council in as much as executive committee

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cannot be equated to that of Council itself. He submits that

the non-resident students and children of non-resident

citizen, who opt for seats in the Private Medical Colleges are

scattered around the globe and would have studied in

different schools and environment and therefore it would be

not only unfair but practically impossible to call upon them to

undergo common entrance test. Choice of the students will be

college specific and if the selection process is to be made in

accordance with the impugned circular, students may not get

the desired college and consequently opt out to pursue their

career in India. Such resultant position would defeat the

entire purpose for which reservation is provided for admitting

students under NRI and Management quota.

8. In sum and substance, it is submitted on behalf of

the petitioners that the Supreme Court has recognized the

right of Private Unaided Colleges and permitted seats under

NRI quota to be filled up by devising their own method of

assessing inter se merit. Thus, Private Unaided Medical

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Colleges have an unfettered right to admit students under

NRI and Management quota and the same has been

recognized by the State Government in the statutory

consensual agreement; the colleges have been following

transparent method to allot seats on merit, which is manifest

by the fact that there are no grievances by any NRI student or

their parents and even if there should be one, such rare

incidents are justiceable before a Court of Law. The learned

counsel for the petitioners submit that the impugned

notification is therefore patently illegal and runs counter to

various judgment of the Supreme Court and pray that the

same may be quashed.

9. Per contra, the learned counsel Shri N.Khetty

appearing for the MCI, while adverting to the pleadings

contained in the writ petition itself points out that in the case

of T.M.A. PAI FOUNDATION AND OTHERS (I) vs. STATE OF

KARNATAKA AND OTHERS3 and other judgments referred to

3 (1993) 4 SCC 276

: 12 :

by the petitioners, the Supreme Court has stressed the need

for merit and unequivocally held that merit must play an

important role and meritorious candidates are not unfairly

treated or put at a disadvantage by preferring less meritorious

but more influential applicants. He adopts the contents of the

judgments of the Apex Court as his submissions to contend

that excellence in professional education would require

greater emphasis on the merit of students seeking admission

even in cases where discretion to grant admission is left with

educational institutions. The admission if any made by the

unaided Private Medical Colleges must not be whimsical or for

extraneous reasons. He vehemently contends that at every

stage, wherever and whenever the Private Management

Institutions are given a discretion to admit students, such

permission is always supplemented with a note of caution

against a possible lapse in maintaining merit. He submits

that at any rate, the judgments of Supreme Court cannot be

construed to mean that Unaided Private Medical Colleges

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have unfettered right to admit students of their choice

without reference to merit.

10. He submits that foundation for the circular in

question is drawn from the judgment of the Supreme Court in

the case of P.A.INAMDAR as is manifest from a portion of

judgment finding its place in the preamble of the circular. In

furtherance of the said judgment, the MCI has rightly brought

in the circular in question which does not in any way affect

either the Unaided Private Medical Colleges or NRI students

desirous of studying India. By the circular in question, MCI

has sought to bring in higher degree of transparency which

would result in most meritorious among the applicants to get

admission. He submits that the circular is in consonance

with the intent and purport of MCI Act and in furtherance of

it’s solemn duties under the Act. At any rate primacy in merit

will ensure that students having higher qualification are not

deprived of an opportunity of studying due to arbitrary

allotment of seats by the Private Medical Colleges for

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extraneous reasons. In sum and substance, he contends that

the circular in question directing the admission under NRI

quota through a Common Entrance Test on All India basis or

State wide basis cannot be termed as unreasonable by any

stretch of imagination in as much as the same is issued in

pursuance of directions contained in paragraph No: 131 of

P.A. INAMDAR’s case and prays for dismissal of the writ

petitions.

11. We have considered the submissions made at the

bar on behalf of the petitioners as well as the MCI and

perused the material on record. In the premise, following

questions fall for our consideration.

(1) What is the historical background for recognizing

admissions under NRI quota as discernible from the

various pronouncements of the Apex Court? Whether

Apex Court has directly or indirectly suggested a

CET in the past for filling up the seats under NRI

quota?

(2) In the light of the State legislation enacting a law as

per Act No.8/2006, particularly Section 9(4) wherein

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admission to NRI has been excluded while providing

for conducting CET or Centralized Counseling for

admissions to medical colleges, does the impugned

Circular come in the way of implementation of the

State legislation, particularly because under Act

No.13/2006 consensual agreement conceived

between the State and the Association of Private

Medical Colleges and the implementation of

consensual agreement is provided for under Section

5 of the said Act and also in view of the fact that

consensual agreement periodically reached had been

placed before the Apex Court and approval of the

Apex Court has been secured ?

(3) What is the effect of the observations made by the

Apex Court in para 131 of P.A.Inamdar’s case –

(2005) 6 SCC 537? Whether it can be construed that

the Apex Court has left it to the discretion of the MCI

to regulate admissions to NRI category by

prescribing CET and Centralized Counseling?

(4) What is the effect of the ratio laid down in Christian

Medical College case (2014) 2 SCC 305?

(5) Whether the Circular issued by MCI based on the

deliberations/report of the Executive Committee of

the Council in its meeting held on 16.12.2014

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prescribing CET to fill up seats in NRI category can

be said to be in exercise of the power and authority

conferred as per the MCI Act, particularly Sections

19A and 33, or for that matter can it be traceable to

Regulation 5(2) of Graduate Medical Education

Regulations, 1997? What is the scope, purport and

effect of Regulation 5(1) & 5(2) of Graduate Medical

Education Regulations, 1997?

(6) Whether the principles embodied under Regulation

5(2) of the Graduate Medical Education Regulations,

1997 can be imported for NRI candidates in the face

of the tenor of the provision? Whether the Circular

has impinged upon the rights recognized in the

medical colleges through their associations to have

their own method of selection of NRI students

exercising their discretion as long as it has not found

to be and shown to be whimsical and arbitrary.

Particularly because admissions to medical colleges,

to deemed universities, private college associations,

COMED-K, Association of Minority Institutions and in

some cases individual institutions like St. John’s

Medical College and CMC Vellore have been

permitted by having their own CET for assessing the

inter se merit of students other than NRI category

students. In the wake of this, whether a State-wide

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CET for NRI students can be introduced by virtue of

the impugned Circular?

Re: Point No.: 1 to 4

12. At the outset, it is to be noticed that the MCI in

the impugned circular has extracted a portion of paragraph

131 of P.A. INAMDAR’s case which deals with the NRI seats.

In order to appreciate the purport of any judgment, it is

necessary to read the judgment in it’s entirety or in the least,

the whole portion which deals with a particular issue. We

therefore feel it appropriate to extract the entire paragraph,

which deals with the NRI seats. It reads as under:

“NRI Seats

131* Here itself we are inclined to deal with

the question as to seats allocated for Non-Resident

Indians (‘NRI’, for short) or NRI seats. It is common

knowledge that some of the institutions grant

admissions to certain number of students under

such quota by charging a higher amount of fee. In

fact, the term ‘NRI’ in relation to admissions is a

misnomer. By and large, we have noticed in cases

after cases coming to this Court, neither the

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students who get admissions under this category

nor their parents are NRIs. In effect and reality,

under this category, less meritorious students, but

who can afford to bring more money, get admission.

During the course of hearing, it was pointed out

that a limited number of such seats should be made

available as the money brought by such students

admitted against NRI quota enables the educational

institutions to strengthen its level of education and

also to enlarge its educational activities. It was

also pointed out that people of Indian origin, who

have migrated to other countries, have a desire to

bring back their children to their own country as

they not only get education but also get reunited

with Indian cultural ethos by virtue of being here.

They also wish the money which they would be

spending elsewhere on education of their children

should rather reach their own motherland. A limited

reservation of such seats, not exceeding 15%, in our

opinion, may be made available to NRIs depending

on the discretion of the management subject to two

conditions. First, such seats should be utilized

bona fide by the NRIs only and for their children or

wards. Secondly, within this quota, the merit

should not be given a complete go-by. The amount

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of money, in whatever form collected from such

NRIs, should be utilized for benefiting students

such as from economically weaker sections of the

society, whom, on well defined criteria, the

educational institution may admit on subsidized

payment of their fee. To prevent misutilisation of

such quota or any malpractice referable to NRI

quota seats, suitable legislation or regulation needs

to be framed. So long as the State does not do it, it

will be for the Committees constituted pursuant to

Islamic Academy’s direction to regulate.

(underlining is by us)

13. Though, seats under NRI quota is dealt in

paragraph 132 also, the same is not necessary in the present

context in as much as it deals with the seats in minority

institutions. A careful perusal of the entire paragraph leads to

an irresistible inference that the Supreme Court while dealing

with the issue of NRI seats has recognized the right of

management of Private Unaided Medical Colleges to fill up

15% seats in their discretion subject to two conditions. First

being that the said seats must be utilized bona fide by the

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NRIs only and for their children or wards and second being

that within this quota merit should not be given a complete

go-by. The Apex Court has also enunciated the reasons for

such concessions in the subsequent sentences and those

reasons being that the funds so collected from the NRI

candidates to enure to the benefit of students from

economically weaker sections. In order to prevent any mis-

utilization of NRI quota, the Apex Court has directed that

there is need for a legislation on the issue and so long as the

States do not bring in legislation, it will be for the Committees

constituted pursuant to the directions contained in the case

of ISALMIC ACADEMY OF EDUCATION AND ANOTHER vs.

STATE OF KARNATAKA AND OTHERS4 to regulate

admissions. Thus, what emerges from a reading of the entire

paragraph No: 131 is that a limited number of seats not

exceeding 15% are made available to NRI students without

merit being given a complete go-by. It was expected of States

to bring necessary legislation in this behalf and in the

4 (2003) 6 SCC 697

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absence of legislation committee referred to in Islamic

Academy case would be regulating admissions. Therefore, in

our considered view, if at all any regulatory mechanism to

over see the admission under NRI quota in the Private

Unaided Medical Colleges was to be brought in, it was for the

State to enact a suitable legislation. It is necessary to note

here that pursuant to the directions contained in P.A.

INAMDAR, State has brought in a legislation namely The

Karnataka Professional Educational Institutions (Regulations

of Admissions And determination of fee) Act 2006 (Act 8 of

2006). In terms of Sec 9(iv) of the said Act which deals with

allocation and reservation of seats, admissions to all seats in

Private Unaided Educational Institutions excluding seats

which may be filled by NRI candidates is required to be made

on the basis of merit by following common entrance test.

Thus, even in this legislation, a specific exception is carved

out in that, seats to be filled by NRI candidates have been

kept out of the purview of the common entrance test. The Act

8/2006 was kept in abeyance by enacting Karnataka

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Professional Educational Institutions (Regulation of

Admission and determination of fee) Act 2006 (Special

Provisions) Act 2006 [Act 13 of 2006] and as per Sec. 5

thereof Petitioners were entitled to fill up 20 % seats. The said

arrangement continues to be in force with the enactment of

Act 23/2011.

14. While we set out to examine historic background

of allotment of seats in professional colleges, we commence

our task with the judgement of the Apex Court in the case of

UNNIKRISHNAN J.P. AND OTHERS, wherein Karnataka

Education Institutions (Prohibition of Capitation Fee) Act

1984 was challenged in a Writ Petition under Article 32 of the

Constitution. It was held therein that the said Act was

Constitutional and a scheme was evolved in the nature of

guidelines for professional colleges with a direction to the

State Governments and recognizing and affiliating authorities

to impose restrictions to collect fees in addition to such other

conditions for grant of permission.

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15. The above scheme was modified by a

Constitutional Bench of the Apex court in the case of T.M.A.

PAI FOUNDAITON AND OTHERS (II) Vs. STATE OF

KARNATKA AND OTHERS5. By a Judgement in the same

case reported in (1993) 4 SCC 286, the Constitution Bench

having noticed that certain questions such as meaning and

content of expression “minorities” in Article 30 of the

Constitution and other questions having surfaced for

consideration referred the matter to a larger bench and in the

judgement reported in (1993) 4 SCC 788 certain further

directions were issued. Subsequently a Constitution Bench of

the Supreme Court consisting of 11 Judges in (2002) 8 SCC

481 while answering the question with regard to rights of

minority institutions to establish and administer education

institutions at page 588 has held thus:

A. A minority institution may have it’s own

procedure and method of admission as well as

selection of students, but such procedure must be

5 (1993) 4 SCC 286

: 24 :

fair and transparent, and selection of students in

professional and higher education colleges should

be on the basis of merit. The procedure adopted or

selection made should not be tantamount to

maladministration. Even an unaided minority

institution ought not to ignore the merit of the

students for admission, while exercising it’s right to

admit students to the colleges aforesaid, as in that

event, the institution will fail to achieve excellence.

16. In the case of P.A. INAMDAR after considering

various earlier judgments, vis-à-vis the NRI seats, the Apex

court issued directions as contained in paragraph No.131

extracted supra.

17. In MODERN DENTAL COLLEGE AND RESEARCH

CENTRE AND OTHERS vs. STATE OF MADHYA PRADESH

AND OTHERS6 the Apex Court has while dealing with the

fundamental rights of the private unaided medical/dental

colleges to establish educational institutions and the

reasonable restrictions that can be placed under Article 19 (6)

6 (2009) 7 SCC 751

: 25 :

of the Constitution of India on the said rights, has after

referring to the previous judgments including that of

T.M.A.PAI FOUNDATION AND OTHERS vs. STATE OF

KARNATAKA AND OTHERS7 and P.A.INAMDAR observed as

under in paragraphs 29 to 31.

“29. In our view, a balance has hence to be struck

because while on the one hand, the state

Government does have an element of interest in the

private unaided professional institutions, this does

not mean that there will be no autonomy to the

private unaided institutions. After all, the private

unaided institutions have to generate their own

resources and funds and consequently they must

have a larger degree of autonomy as compared to

the aided institutions or the State Governments

institutions.

30. In this situation, we are of the opinion that

this Court must use its creativity and find out a

workable, balanced via media to safeguard the

interest of both parties, namely State Government

on the one hand, and private unaided institutions

7 (2002) 8 SCC 481

: 26 :

on the other, and also to keep the interest of the

students in mind.

31. We, therefore, direct that the admissions in

the private unaided medical/dental colleges in the

State of Madhya Pradesh will be done by first

excluding 15% N.R.I. seats (which can be filled up

by the private institutions as per para 131 of

Inamdar’s case), and allotting half of the 85% seats

for admission to the under-graduate and post-

graduate courses to be filled in by an open

competitive examination by the State Government,

and the remaining half by the Association of the

Private Medical and Dental Colleges. Both the

State Government as well as the Association of

Private Medical and Dental Colleges will hold their

own separate entrance examination for this

purpose. As regards the ‘NRI Seats’, they will be

filled as provided under the Act and Rules, in the

manner they were done earlier.

18. We have to also notice here the observations made

by the Apex Court in the judgment rendered on 01.04.2003 in

STATE OF KARNATAKA vs. DR T.M.A. PAI FOUNDATION

: 27 :

AND OTHERS8. In paragraph 3, the Apex Court has stated

that all statutory enactments, orders, schemes, regulations

will have to be brought in conformity with the decision of the

Constitution Bench in TMA PAI FOUNDATION decided on

31.10.2002. This being the position, the MCI was not justified

in issuing the Circular to introduce a compulsory entrance

test for NRI students for various medical colleges that too on

the basis of a decision taken by the Executive Committee of

the Council.

19. Further in the case of CHRISTIAN MEDICAL

COLLEGE, VELLORE AND OTHERS vs. UNION OF INDIA

AND OTHERS9, Supreme Court while dealing with the matter

of power of MCI to conduct common entrance test for post

graduate medical courses has held as follows.

146. Nowhere in the 1956 Act nor in the MCI

Regulations, has the Council been vested with any

authority to either conduct examinations or to direct that

all admissions into different medical colleges and

8 (2003) 6 SCC 790

9 (2014) 2 SCC 305

: 28 :

institutions in India would have to be on the basis of

one common National Eligibility- cum-Entrance Test,

thereby effectively taking away the right of the different

medical colleges and institutions, including those run by

religious and linguistic minorities, to make admissions

on the basis of their own rules and procedures.

152. As far as private unaided professional colleges are

concerned, the majority view was that it would be

unfair to apply the same rules and regulations

regulating admission to both aided and unaided

professional institutions. In that context, it was

suggested that it would be permissible for the

University or the Government at the time of granting

recognition, to require a private unaided institution to

provide for merit- based selection, while, at the same

time, giving the management sufficient discretion in

admitting students, which could be done by reserving a

certain percentage of seats for admission by the

management out of those students who had passed a

common entrance test held by itself, while the rest of

the seats could be filled up on the basis of counselling

by the State agency, which would take care of the

poorer and backward sections of society.

157. What can ultimately be culled out from the various

observations made in the decisions on this issue,

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commencing from the Kerala Education Bill case (supra)

to recent times, is that admissions to educational

institutions have been held to be part and parcel of the

right of an educational institution to administer and the

same cannot be regulated, except for the purpose of

laying down standards for maintaining the excellence of

education being provided in such institutions. In the

case of aided institutions, it has been held that the

State and other authorities may direct a certain

percentage of students to be admitted other than by the

method adopted by the institution.

20. Thus, it is clear that the issue with regard to

admission of students in Unaided Private Medical Colleges

having been considered by the Apex Court on more than one

occasion, their right to admit NRI students by evolving their

own method of assessing the inter se merit among the

applicants has been recognized pending any legislation on the

point to be brought in by the State.

Re: Point No: 5 and 6

21. Admittedly, the circular in question is issued on

16.01.2015 based on the recommendation of the Executive

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Committee. Respondent MCI has been a party before the

Supreme Court in all cases concerning admission of students

in the Medical Colleges and particularly in the case of P.A.

INAMDAR and CHRISTIAN MEDICAL COLLEGE, VELLORE

and is bound by the directions contained in the said

judgements. As observed supra, only a portion of paragraph

131 in the judgement of P.A. INAMDAR has been extracted in

the impugned circular by the MCI to draw support to their

stand. The underlining principle and reasons for recognizing

the right of Private unaided Medical Colleges to admit a

percentage of students under NRI and management quotas

has been explained in the sentences following the extracted

portion. Respondent MCI has omitted to refer to the reasons

portion. Further, while writing the epilogue of the judgement,

the Apex Court has reiterated its concerns and issued

following directions.

155. It is for the Central Government, or for the

State Governments, in the absence of a Central

legislation, to come out with a detailed well thought

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out legislation on the subject. Such a legislation is

long awaited. States must act towards this

direction. Judicial wing of the State is called upon

to act when the other two wings, the Legislature

and the Executive, do not act. Earlier the Union of

India and the State Governments act, the better it

would be. The Committees regulating admission

procedure and fee structure shall continue to exist,

but only as a temporary measure and an inevitable

passing phase until the Central Government or the

State Governments are able to devise a suitable

mechanism and appoint competent authority in

consonance with the observations made

hereinabove. Needless to say, any decision taken

by such Committees and by the Central or the State

Governments, shall be open to judicial review in

accordance with the settled parameters for the

exercise of such jurisdiction.

22. It is no doubt true that MCI is the highest body in

the country to over see the quality of medical education.

Admittedly, MCI was party before the Supreme Court in the

case of P.A. Inamdar which was decided on 12.08.2005.

Subsequently, several judgments have been pronounced by

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the Apex Court touching the aspect of admission of students

by Private medical Colleges. It is nearly ten years since the

judgment in P.A.Inamdar’s case has been pronounced.

Regulation 5(ii) of Graduate Medical education Regulations,

1997 came into force with the publication in the Gazette

dated 17.05.1997. These Regulations after amendment were

notified vide Notification No. MCI-31(1)/2010-MED/49068

described as "Regulations on Graduate Medical Education

(Amendment) 2010, which were subject matter in the case of

CHRISTIAN MEDICAL COLLEGE, VELLORE The judgment of

the Apex Court in P.A. INAMDAR is of the year 2005. The

foundation for the impugned circular is a portion of para 131

of P.A.Inamdar’s case. The words used in P.A. Inamdar are

very specific and they are “legislation” or “regulation”. As per

the pronouncements of the Apex Court, it was either for the

Central Government or the State Government to bring in

legislations if any to regulate admissions. The impugned

circular in our considered opinion is contrary to the

pronouncements of the Apex Court and runs counter to the

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tenor of the directions contained therein and therefore

unsustainable.

23. It is also necessary to notice here that the

Graduate Medical Education Regulations, 1997, particularly

Regulation 5 cannot be made applicable to introduce CET for

NRI category students. These regulations cannot be read

dehors the observations made in paragraph 131 of the

judgment of the Apex Court in P.A.Inamdar’s case. It is also

necessary to point out here that provisions contained in

Section 19A of the IMC Act, 1956, provide for prescription of

minimum standards of medical education and the method

and manner of providing such regulations. The Executive

Committee of the Council cannot proceed to amend or

interpret the regulations by issuing the impugned Circular

without following the prescribed procedure under Section 19A

of the IMC Act. Section 19A provides that the Council may

prescribe the minimum standards for medical education by

Universities or Medical Institutions. Copies of the draft

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regulations shall be furnished by the Council to all State

Governments and the Council is enjoined with the duty to

take into consideration the comments of State Government.

Section 33 which deals with the power of the Council to make

regulations makes it clear that prior sanction of the Central

Government has to be obtained for making regulations in

respect of matters provided for under the said Section.

Without following any such procedure, by issuing a Circular,

the MCI has sought to introduce entrance test for NRI

category students as per the report of the Executive

Committee of the Council, which is apparently contrary to the

nature of the power invested with the Committee and the

procedure prescribed under the IMC Act, 1956.

24. The next question that falls for consideration is

whether there is any arbitrariness in not subjecting the NRI

students to a common entrance test and leave it to the

discretion of the private medical colleges. In our considered

view, this issue is no more res integra. With the exodus of

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students aspiring for joining medical courses and in the

absence of commensurate number of medical colleges in the

country, the private medical colleges came into existence.

With the number of private colleges increasing, the State

Government brought in legislation, to prohibit capitation fee.

The private medical colleges having agitated the issue up to

the Supreme Court, the right of the private medical colleges to

fill up small percentage of seats by the NRI students is now

fairly well settled. Freedom to run the private education

institutions and their right to conduct examination for

admitting students is also recognized. We hasten to add that

the recognition of this right has been made subject to future

‘legislation’ or ‘regulation’ by the State. The State of

Karnataka has enacted a legislation and provision has been

made for consensual agreement between the colleges of the

State.

25. In the circumstances, we are of the considered

view that the impugned circular issued by the MCI is not

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sustainable in view of the pronouncement of the Supreme

Court in P.A.INAMDAR and other judgments referred to above

and for the reasons stated supra. Accordingly, the circular

dated 16.01.2015 (Annexure – A) stands quashed. No costs.

SD/-

JUDGE

SD/-

JUDGE

Vnp* & Rsh