A.K.Patnaik, C.J. - (1.) In this batch of writ petitions filed under Art. 226 of the Constitution, the common questions which arise for decision are that how far is it permissible under the Constitution for the State to control and regulate admissions and fees in private unaided professional educational institutions in the State of Madhya Pradesh.
(2.) The background facts are that in Unni Krishnan Vs. State of Andhra Pradesh, (1993) 1 SCC 645, a five Judge Bench of the Supreme Court held that there was no fundamental right to professional education which flows from Art. 21 of the Constitution but framed a scheme in the nature of guidelines which the appropriate Governments and recognising and affiliating authorities were to implement as conditions for grant of permission, recognition or affiliation under which the seats in professional colleges were to be divided into free seats and payment seats and a common entrance test was to be conducted by the State Government and the first 50% students in the merit list were to be admitted in free seats with nominal fees and the second 50% students in the merit list were to be admitted in payment seats and the fees payable for the payment seats were to take care of the costs of education of the professional college. This scheme of Unni Krishnan (supra), was implemented by the State Governments all over the country until in T.MA. Pai Foundation Vs. State of Karnataka, (2002) 8 SCC 364, eleven Judges Bench of the Supreme Court held that education will fall under the expression "occupation" in Art. 19 (1) (g) of the Constitution and therefore, a citizen has a fundamental right to establish and administer an educational institution and this right will include the right of the private educational institution to admit students and to charge its own fees from students and the decision Unni Krishnan (supra), in so far as framing of scheme relating to grant of admission and fixing the fees was not correct. In T.MA. Pai Foundation (supra), however, the Supreme Court held that the admission procedure must be merit based transparent and non-exploitative and the fees to be charged from the students cannot be unreasonable and exorbitant. To ensure that admissions in Private Unaided Professional Educational Institutions is merit based, transparent and non-exploitative and that the fees charged are reasonable and non-exorbitant and there is no profiteering, a five Judges Bench of the Supreme Court in Islamic Academy of Education Vs. State of Karnataka, (2003) 6 SCC 697, directed constitution of two Committees of State Government, each headed by sitting or retired High Court Judges to be nominated by the Chief Justice of the State, the Admission Committee which was to supervise and ensure that the test conducted for admission to Private Professional Colleges is fair and transparent and the Fees Committee which was to ensure that the fees proposed by the Private Unaided Professional Colleges are reasonable and there is no profiteering and no charging of capitation fee. Accordingly, the two Committees were constituted by the State Governments with retired High Court Judges as Chairman of the Committees. On a reference made on certain questions, a seven Judges Bench of the Supreme Court in PA. lnamdar and others Vs. State of Maharashtra and others, (2005) 6 SCC 535, again clarified the law as laid down by the eleven Judges Bench in T.MA. Pai Foundation (supra), and observed inter alia, that it is for the Central Government or the State Government in the absence of a Central Legislation, to come out with a detailed well-thought-out legislation on the subject and that the State must act towards the direction. Accordingly, the State Legislature of Madhya Pradesh has enacted the M.P. Niji Vyavasayik Shikshan Sanstha (Pravesh Ka Viniyaman Avam Shulk Ka Nirdharan) Adhiniyam, 2007 (for short 'the Act, 2007').
(3.) The Association of Private Dental and Medical Colleges of the State of Madhya Pradesh (for short "the Association") has challenged the provisions of the Act, 2007 as ultra vires the Constitution in W.P. No. 1975/2008. Under Section 12 of the Act, 2007 the State Government has power to make rules and in exercise of such power, the State Government has made the Admission Rules, 2008 (for short 'the Rules, 2008'). The Association has also challenged the Rules, 2008 as ultra vires the Constitution and the Act, 2007 in W.P. No. 9496/2008. Under the Scheme of the Act, 2007 and the Rules, 2008, admissions to private unaided professional educational institutions are to be based on merit determined in the common entrance test followed by centralised counselling by the State Government or any agency authorised by the State Government. The State Government issued orders on 28-2-2009 that the State Government shall conduct the common entrance test for admission to Postgraduate Medical and Dental Courses for the academic session 2008-09 through Madhya Pradesh Professional Examination Board (VYAPAM). The Association has challenged this order dated 28-2-2009 of the State Government authorising VYAPAM to conduct the common entrance test for admissions to Postgraduate Medical and Dental Courses for grant of admission for the academic session 2008-09 as illegal, arbitrary and contrary to the law as laid down in T.M.A. Pai Foundation and PA. Inamdar (supra), in W.P. No. 2764/2009.;