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Judgment
The main question involved in this writ petition is, whether the State of Chhattisgarh (the State) is entitled to nominate students for admission in the Master of Dental Science (the MDS) course in Chhattisgarh Dental College and Research Institute, Rajnandgaon, Chhattisgarh (the Institute).
THE FACTS
The Youth Foundation of India (the Society) is a registered society under the Society Registration Act. It has established the Institute for dental medical education in the year 2002.
The Dental Council of India (the DCI) does not grant permission to run a dental medical college unless a hospital is attached to it. The Institute does not have a hospital and could not be granted approval by the DCI to run a hospital.
Nevertheless, in order to facilitate the approval of the DCI, the State attached the district hospital, Rajnandgaon (the District-Hospital) forever, with the Institute by the letter dated 01.06.2001. The attachment was free of cost.
The Institute was granted approval as we as permission by the DCI to run Bachelor of Dental Science (the BDS) course from the academic session 2002-03.
The Institute was also granted permission by the DCI to run the MDS course from the academic session 2009-10 with different intake of students in different years.
In the academic session 2009-10, there were three dental colleges, which were offering the MDS degree. At present, there are four'' dental colleges offering the MDS degree. They (referred to as the Consortium) conduct their own entrance examination for admission of students in the colleges in the MDS course.
In the State, there are government dental colleges as also. The State government also conducts an examination for selecting the students to be admitted in the state as well as in the private dental colleges.
In the academic session 2009-10, the State as well as the Consortium separately conducted entrance examination for the MDS course. Out of the merit list of the MDS entrance examination conducted by the State, it nominated one student for admission in the MDS course in the Institute. The MDS seats in the institute were also filled by the merit list of the entrance examination conducted by the Consortium.
The institute challenged the nomination of the student to the college by means of a Writ Petition, namely WP (C) No. 2724 of 2010. It was allowed on 23.02.2011 in the same terms as in the case of P.A. Inamdar and Others Vs. State of Maharashtra and Others, (the Inamdar case).
in the academic Session 2010-11, initially the DCI had sanctioned only four seats, however, approval for two more seats was awaited. After the approval was received from the DCI, the college admitted two more students out of the merit list prepared in the entrance examination conducted by the Consortium.
The admission of the aforesaid two students was cancelled by the State on 14.06.2011. They filed Writ Petition (C) No. 3460 of 2011. The Institute also filed Writ Petition (C) No. 3458 of 2011 against the cancellation.
The aforesaid two writ petitions were consolidated and were allowed on 08.05.2012. The cancellation order passed by the State Government was set aside.
In the academic session 2011-12, the number of the MDS seats in the Institute was increased to 17. The Consortium conducted the entrance examination and the State also conducted its own entrance examination. Out of the merit list prepared by the State, five students were sent to the Institute for admission in the MDS course. The Institute also admitted 17 students, out of the merit list of entrance examination conducted by the Consortium.
The DCI wrote a letter to the Institute on 11.07.2012 with a copy to the Director of Medical Education of the State (the DME) that:
� The college was granted permission for 17 seats only;
� It has wrongly admitted five extra students; and
� The admission of extra students should be cancelled.
In pursuance of the letter of the DCI, the DME wrote a letter dated 18.07.2012 to the Institute asking it to cancel admission of the five extra students.
The Institute cancelled admission of the five students sent by the State Government and refunded their fees deposited by them: These five students filed the present writ petition.
During the pendency of the writ petition, one Dr. Vidhi Rathod (petitioner-3) has left the college and has also en-cashed the cheque. She is no longer interested in prosecuting this petition.
The counsel for the petitioner states that this writ petition be treated only on behalf of four petitioners, namely, Dr Aditi Jain Dr Shailja Hanumanta, Dr Amit Nasha and Dr Ankur Jam (namely, petitioner-1, 2, and 5) (referred to as the Students).
After the students were nominated to the Institute, it filed two civil contempt applications, namely, Contempt Case (C) 358 of 2011 and 412 of 2012 for willful disobedience of the orders dated 23.02.2011 and 08.05.2012 in WP (C) 2724 of 2010 and WP (C) 3458 of 2011.
The contempt applications were also tagged along with the writ petition with the consent of the counsel for the parties. They are being decided together.
POINTS FOR DETERMINATION
We have heard Shri Jitendra Pali for the Students; Shri Sourabh Dangi for the Institute; Shri Kishore Bhaduri, Additional Advocate General (the AAG) for the State Government and its officials; and Ms. Fouzia Mirza for the DCI.
The following points arise for determination in this case:
(i) Whether the Institute is a private minority institute;
(ii) Whether the Institute is an aided professional college;
(iii) Whether the Government is entitled to nominate students in an unaided professional colleges;
(iv) Whether the government can nominate students for the MDS course in the Institute;
(v) Are the petitioners entitled to any relief; and
(vi) What orders should be passed in the contempt cases.
Ist POINT : MINORITY STATUS - NOT DECIDED
According to the Petitioners, the Society is of Jainees and the institute is a minority institution.
initially, the Institute was given the minority status certificate by the State Government on 02.07.2005 for a period of one year. Similar certificates for one year were granted on 31.03.2006 and 22.10.2008.
After the end of the period of the last minority status certificate, the Institute again applied for grant of fresh certificate on 10.01.2009. However, it was informed by letter dated 14.10.2009 that the final decision will be taken after inspection. This inspection has been carried out, however, no final decision has been taken.
The counsel for the institute submits that:
* in the earlier two judgments dated 23.02.2011 and 08.05.2012, passed in W.P. (C).No. 2724 of 2010 and 3460 of 2011 it was held that the Institute was a minority status college Institute; and
* This point should be decided in its favour.
On the earlier occasions, there was certificate of the State Government and as such this question was not disputed. However, this time, there is neither any such certificate nor it is accepted. The matter is pending consideration before the State. In view of the same, no reliance can be placed on the earlier decisions.
In view of the fact that the matter is pending for consideration before the State, we see no justification to decide the question relating to the minority status of the Institute. It may be decided by the State Government on its merits without being influenced by any observations made in this judgment or in the earlier judgments mentioned in the preceding paragraph number 27 of this judgment.
2nd POINT: INSTITUTE IS UNAIDED
The counsel for the Students as well as the AAG submit that:
� The Institute could not have got recognition by the DCI unless it had a hospital attached to it;
� The Institute is utilising the facility of the District-Hospital and is no paying a single penny to the State exchequer;
� This facility itself is an aid to the Institute; and
� It cannot be said that it is an unaided Institute.
The counsel for the Institute submits that:
� It does not receive single penny in terms of money from the State. There is no grant in aid;
� The State has started a new scheme of establishing district wise societies in the name of Jeewan Deep society;
� The basic purpose of these societies is to improve and help the day-to-day administration of the district-hospitals situate in different districts;
� There is a Jeewan Deep society in district Rajnandgaon (referred to as the JD-Society). Its purpose is to improve and help the day-to-day administration of the District-Hospital attached to the Institute;
� The Institute is not only giving substantial amount to the JD-Society for the facility of affiliation of the District-Hospital, but is also providing the services of three doctors to the District-Hospital free of cost. The expenses of these dentists are borne by the Institute.
� The Jeewan Deep societies are alter face of the State and payment to them is payment to the State;
� In these circumstances, it is not correct to say that the Institute is an aided college.
DISTRICT HOSPITAL ADEQUATELY COMPENSATED
The institute does not receive single penny or grant in aid in terms of cash. Nonetheless, the District-Hospital, is attached to the Institute. It is facility to the Institute; without this facility, it could not have been granted approval by the DCI. The attachment, of the District-Hospital is an aid to the Institute. It cannot be said that this facility cannot be treated as aid to the Institute. But, the question is, whether the Institute is paying anything in lieu of it.
The State Government had attached the District-Hospital by letter dated 01.06.2001. It is mentioned in the letter that the attachment is without any cost.
Nevertheless, a meeting of the JD-Society was held on 14.02.2005 in which it was decided that the Institute should pay a sum of 1,00,000/- per year to the JD-Society with an increase of ? 10,000/- every year.
There is no dispute that the institute has been paying the aforesaid amount to the JD-Society and for this year, it has paid ? 1,70,000/- to the JD-Society.
Apart from the cash payment, it is also not disputed that the JD-Society had initially requested the Institute to post one dentist at the District Hospital and thereafter wrote a letter in the year 2007 to post two dentists in the morning session and two dentists in the evening session in the District Hospital.
The Institute has deputed three dentists from December, 2008 in the District-Hospital, for which it is paying them salary of x 4,92,000/- per annum. This is being borne by the Institute.
The Institute is not only providing services of three Dentists to the District-Hospital but it is paying a sum of 71,00,000/- per year to the Society with an increase of 710,000/- every year and for this year it has paid Rs. 1,70,000/- to the JD-Society.
The Institute is not paying the aforesaid amount out of charity, but is paying for the reason that the District-Hospital is attached to it. The money which is being paid to the JD-society as well as to the three dentists is in lieu of the attachment of the District Hospital to the Institute. In case, the District-Hospital was not attached, then there was no occasion for the Institute to pay this amount. But is payment to the JD-Society, a payment to the State? Payment is to the State
The JD-Society is registered under the Societies Registration Act. It has separate identity than the State. However, it is established and sponsored by the Health and Family Welfare Department of the State. It is the State that has formed it for better management of its district hospitals. It is immaterial whether the State manages the hospital itself or forms societies to manage it.
The bye-laws of the societies are also on the record. Its objects and constitution of the executive are annexed as Appendix-I and II to this judgment:
� The objects clarify that it is for improvement and better management of the district hospitals;
� The Constitution of the executive of the societies indicates that its executive consist of government officer or someone holding a government post.
It is irrelevant that the money does not go to the State exchequer first and then is transferred to the JD-Society for the management of the District-Hospital. Here, the money-service is directly to the JD-Society. However, the fact remains that it is paid for the District-Hospital that is attached with the Institute and utilised for the benefit of the District-Hospital. The payment to the JD-Society is payment to the State.
In our opinion, the Institute is adequately compensating the District-Hospital for the facility of its attachment to the Institute. In these circumstances, it cannot be said that the Institute is an aided college. The institute is an unaided professional college.
3rd & 4th Point : STATE CANNOT NOMINATE STUDENTS
The question of education in our country is a complex issue and has been engaging the attention of the Supreme Court and has been decided in the following cases:
(i) Unni Krishnan, J.P. and others Vs. State of Andhra Pradesh and others etc. etc., (the Unni-Krishnan case);
(ii) T.M.A. Pai Foundation and Others Vs. State of Karnataka and Others, (the Pai case);
(iii) Islamic Academy of Education and Another Vs. State of Karnataka and Others, (The Islamic-Academy case); and (iv) The Inamdar case, which is the last in this chain.
In the Inamdar case, the Supreme Court considered the preceding three cases and framed four questions to be answered. The first question was as follows:
1(1) To what extent can the State regulate admissions made by unaided (minority or non-minority) educational institutions? Can the State enforce its policy of reservation and/or appropriate to itself any quota in admissions to such institutions?.
The Court answered (see below for relevant paragraph of the court''s decision)1 the aforesaid question in favour of unaided educational institutions.
The Court has held that no quota or percentage can be fixed in favour of the State.
In view of the Inamdar case, it is clear that the State has no right to nominate any student or fix any quota in an unaided professional college.
The 2008 Act - Not Applicable
The counsel for the Students and the AAG brought to our notice that the provisions of the Chhattisgarh Niji Vyavsayik Shikshan Sanstha (Pravesh Ka Viniyaman Avam Shulk Ka Nirsharan) Act, 2008 (the 2008 Act) and submit that:
� The State has enacted the 2008 Act and is conducting entrance examination on its basis;
� The 2008 Act is applicable to the Institute;
� In case the State nominates any student on the basis of the entrance examination held by it then they cannot be refused by the Institute.
The second question framed by the Supreme Court in the Inamdar case was as follows :
2(2) Whether unaided (minority and non-minority) educational institutions are free to devise their own admission procedure or whether the direction made in Islamic Academy for compulsorily holding an entrance test by the State or association of institutions and to choose therefrom the students entitled to admission in such institutions, can be sustained light of the law laid down in Pai Foundation?''
The Supreme Court answered (see below for relevant part of the Supreme Court decision)2 the aforesaid question by explaining that the professional colleges imparting similar education can devise their own entrance test that is fair, transparent and non exploitative.
In the present case, initially there were three private colleges and at present there are four colleges. They (the Consortium) jointly conduct entrance examination. There is nothing to show that examination conducted by them is unfair or not transparent or exploitative.
in fact, the entrance examination conducted by the Consortium is accepted by the State. The State has not nominated student for every seat; it has nominated only a few seats; the majority of the seats are filled up from the merit of the students from the entrance examination conducted by the Consortium.
in the Inamdar case, the Supreme Court after analysing the constitution scheme as well as fundamental right and on the basis of the Pai case has laid down the law. It cannot be violated. In case the 2008 Act the law is made applicable to the Institute, it will become unconstitutional. The 2008 Act is not applicable for admission in the institute for the MDS Course.
The State can hold entrance examination only if the ''entrance examination held by the Consortium is held to be unfair or non-transparent or exploitative. There is nothing to show that, it does not satisfy the criteria laid down by the Supreme Court.
In view of above, sending of five students by the State to the Institute was not proper. If there were excess of students, then the institute was justified in cancelling their admission.
5th POINT : STUDENTS MAY BE ADJUSTED
The students have been studying in the Institute in pursuance of the interim order granted by this Court. There was no fault on their part. They appeared in the examination conducted by the State and have passed the same. It was their misfortune that they came to be allocated to the Institute, where we have held that the State was not entitled to nominate the students. The future of these students should not be put into dark.
Considering all aspects, the State and the Institute may consider adjusting them. In this connection, it will also be proper that:
� The State may adjust these four students over any vacancy in any-other college, where the MBS course is going on; and
� The DO may also consider adding of four more seats in the Institute or, one more seat each in four Dental Colleges in the State that offer the MDS course and thereafter the students may be adjusted therein.
6th POINT : CONTEMPT CASES - DROPPED
The (sic) had filed two Civil Contempt Cases, namely Contempt Case (C) No. 358 of and Contempt Case (C) No. 412 of 2012 for violation of the orders passed by this Court on 23.02.2011 in Writ Petition-(C) No. 2724 of 2010 and order dated 08.05.2012 in Writ Petition (C) No. 3458 of 2011.
In view of the judgment passed today in the writ petition, shri. Sourabh Dangi, counsel for the institute states that the Institute does not wish to press the contempt cases.
In view of the statement of the counsel for the Institute, the contempt cases are dropped.
A CLARIFICATION
While deciding the second point, we have held that the Institute is unaided college as it pays money to the JD-Society and offers services of dentist to the District-Hospital. But, this finding is not final. it can be readjusted or reconsidered by the JD-Society or the State.
It is clarified that-
� in case the State or the JD-Society is of the opinion that it is not being adequately compensated for the facility granted to the Institute, it is always open to them to re-fix the amount or the extent of services of the dentists taken by it;
� They can also partly take money/service and partly adjust it in form of nominating students;
� if the State comes to the conclusion after holding a proper enquiry alter opportunity to the Consortium that the entrance examination held by the Consortium does not stand the criteria laid down in the Inamdar case, then it will be open to it to hold the entrance examination for admission in the MDS course for the Institute or other similar private colleges.
Nevertheless, the State may not de-attach the District-Hospital with the Institute otherwise it will loose its recognition from the DCI.
CONCLUSIONS
Our conclusions are as follows:
(a) The question regarding minority status of the Institute is pending before the State. It may be decided on merits without being influenced by any observations made in this judgment or in the earlier two judgments dated 23.02.2011 and 08.05.2012, WP (C) 2724 of 2010 and 3460 of 2011;
(b) The State is not entitled to nominate students in an unaided professional college;
(c) The Institute is utilising the services of the District-Hospital, but is providing services of three dentists to the District-Hospital and is paying to the JD-Society that looks after the District-Hospital. This is in lieu of the attachment of the District-Hospital to it. it cannot be said that the Institute is an aided professional college;
(d) It is open to the State Government or the JD-Society to:
� Re-adjust the services of the dentists to be taken from the Institute or fix the amount of contribution for maintenance of the District-Hospital in lieu of the attachment of the District-Hospital to the Institute.
� Partly take services and take the amount in lieu of the attachment of the District-Hospital and partly get right to nominate students in the Institute;
(e) It will also open to the State to:
� Continue to hold entrance examination for its colleges and for the aided colleges.
� Hold entrance examination for the MDS course for the Institute, if the entrance examination held by the Consortium is held to be unfair or non-transparent or exploitative in an enquiry after opportunity to the Consortium;
(f) There was no fault of the students (namely, Dr Aditi Jain, Dr Shailja Hanumanta, Dr. Amit Nasha and Dr. Ankur Jain). They have studied in the Institute in pursuance of the interim order granted by this Court. In order to do justice to them, we recommend that:
� The State may adjust them over any vacancy in any other college in the MDS course.
� The DCI may also consider adding four more seats In the Institute or one seat each in the four Dental Colleges in the State offering the MDS course in this year to adjust these four students.
� The Institute as well as the State Government will take necessary steps to make formal request to the DCI;
(g) The contempt cases are dropped as the Institute does not wish to press them.
in view of our conclusions, the writ petition is disposed or with the aforesaid observations and the civil contempt cases are dropped.
APPENDIX-I
The objects of Jeewan Deep Society are as follows :
APPENDIX-II
The Constitution of executives of Jeewan Deep Society is as follows :
1 The relevant part of observations of the Supreme Court in the Inamdar case is as follows:
So far as appropriation of quota by the State and enforcement of its reservation policy is concerned, we do not see much of a difference between non-minority and minority unaided educational institutions. We find great force in the submission made on behalf of the petitioners that the States have no power to insist on seat-sharing in unaided private professional educational institutions by fixing a quota of seats between the management and the State.
130.......We cannot approve of the scheme evolved in the Islamic Academy case to the extent it allows the States to fix quota for seat-sharing between the management and the States on the basis of local needs of each State, in the unaided private educational institutions of both minority and non-minority categories. That part of the judgment in the Islamic Academy case in our considered opinion, does not lay down the correct law and runs counter to the Pai case.
Our answer to the first question is that neither the policy of reservation can be enforced by the State nor any quota or percentage of admissions can be carved out to be appropriated by the State in a minority or non-minority unaided educations institution.
2 The relevant part of the observations of the Supreme Court is as follows:
137...There may be a single institution imparting a particular type of education which is not being imparted by any other institution and having its own admission procedure fulfilling the test of being fair, transparent and non-exploitative. All institutions imparting same or similar professional education can join together for holding a common entrance test satisfying the above said triple tests. The State can also provide a procedure of holding a common entrance test in the interest of securing fair and merit-based admissions and It could be taken over by the State if the entrance test conducted by the professional colleges fails the three criteria namely of being fair, transparent, and non-exploitative.