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Judgment
Satish K. Agnihotri, J.—Challenge in this petition is to the legality and validity of Rule 2.4 of the Chhattisgarh Engineering Snatak Pravesh Niyam, 2012 (for short "the Pravesh Niyam, 2012"), notified on 03.04.2012 (Annexure P-12), whereunder, the provisions of the Chhattisgarh State Quota, Other State Quota and Management Quota have been abolished and it was observed that 50% seats in minority institutes shall be filled from minorities and the remaining seats shall be filled up on the basis of merit. 10% seats shall be filed up from AIEEE, 2012 Quota, on the basis of Central Allocation. Remaining seats shall be filled up in private and unaided institutions on the basis of merit. The petitioners - Rungta College of Engineering & Technology, Bhilai & Others (for short "the petitioner Institutes") also seek a direction to the respondents to maintain the prevailing system of management quota in the private unaided professional/technical Engineering Colleges/Institutions owned and managed by the petitioner Institutes. The facts, in brief, as projected by the petitioner Institutes, are that the petitioner Institutes are Engineering Colleges/Institutions imparting Engineering and Technical education for the last so many years and have also obtained approval from the All India Council for Technical Education, New Delhi. The petitioner Institutes are affiliated with the Chhattisgarh Swami Vivekanand Technical University (for short "the University"). The petitioner Institutes are aggrieved by Rule 2.4 (v) of the above-stated Pravesh Niyam, 2012 whereby the management quota has been abolished. Thus, this petition.
Shri Tiwari, learned senior counsel, appearing with Shri Otwani, Shri Sancheti, Shri Khadkha & Ms. Siddiqui, learned counsel for the petitioner Institutes, would submit that the provisions of the Pravesh Niyam, 2012, which are under challenge is void ab iniitio, as the same is not formally authenticated in the name of Governor, as prescribed under Article 166(2) of the Constitution of India. Thus, the impugned rules be declared as void ab iniitio.
Shri Tiwari, would further submit that all seats of such institutions belongs to the management and only on `voluntary'' and `consensual'' basis seats shall be shared by the State Government. The institute has a right to admit the students on the basis of selection by a fair, transparent and non-exploitative method i.e. on merit basis. In the past, the State of Chhattisgarh and the Institutions have been sharing the seats on 75:10:15 basis, where 75 from PET (State) 10 from AIEEE (All India) and 15 by the Management.
Shri Tiwari, learned senior counsel, would next submit that the petitioner Institutions are not receiving any aid from the State, thus, except to ensure selection on the basis of transparency, non-capitation, non-profiteering, non-exploitative and on merit, the State has no power to abolish the management quota in its entirety. Even, admission to the extent of 15% under management quota was available till the last academic session, strictly on the basis of merit list prepared through proper selection. Permitting management quota for Dental Institutions and not to the petitioner Institutes, which are imparting Technical/Engineering education is discriminatory as well as violative of Article 14 of the Constitution of India. It is further argued that doing away with the management quota is in contravention of the well settled judicial pronouncements rendered by the Supreme Court in T.M.A. Pai Foundation & Others v. State of Karnataka & Others, P.A. Inamdar & Others v. State of Maharashtra & Others2 and Modern Dental College and Research Centre & Others v. State of Madhya Pradesh & Others3.
Shri Tiwari, learned senior counsel, would also submit that if there is an allegation of non-admission of candidates without proper selection on merit basis or excellence in the education is not being maintained, the State may recommend for withdrawal of affiliation or recommendation of the Institute, but cannot curtail the right of the Institute to admit students against its management quota on the basis of merit. It is also contended that the allegation that there is a probability of misuse, thus, the management quota has rightly been abolished.
On the other hand, Shri Agrawal, learned Advocate General, appearing with Shri Kachhawaha, learned Dy. Advocate General and Shri Kurup, learned counsel for the State, would submit that without challenging the provisions of Sections 6 & 7 of the Chhattisgarh Niji Vyavasayik Shikshan Sanstha (Pravesh Ka Viniyaman Avam Shulk Ka Nirdharan) Adhiniyam, 2008 (for short "the Act, 2008"), challenge to the provisions of the Pravesh Niyam, 2012 is not maintainable.
Shri Agrawal, would further submit that the petitioner Institutes have no fundamental rights to management quota and the impugned Pravesh Niyam, 2012 has been framed in exercise of its power conferred on the State Government u/s 12 of the Act, 2008. Learned counsel would submit that the Rules, 2012 cannot be struck down on any other ground except if the law in question takes away or abridges a fundamental right or violates any other constitutional provision and the appropriate legislature does not have competence to make the law in question. It is argued that, in fact, the rules were framed under Chapter III, not u/s 3(6) of the Act, 2008, as stated in the Pravesh Niyam, 2012.
Shri Agrawal, would next submit that Rule 2.4 (v) was a consensual arrangement of management quota between the private unaided non-minority Institutions and the State, which was followed in the previous years, thus, discontinuation subsequently in 2012 may not be amenable to the writ jurisdiction of the High Court.
Shri Agrawal, would finally submit that the petitioner Institutes are not put to any disadvantage, as the eligibility requirement of class 12th marks is similar as also fee recommended by the Admission and Fee Regulatory Committee is the same. The candidates selected for admission is on the basis of common entrance examination with similar cut off marks, thus, no prejudice is caused to the petitioner Institutes. Several complaints were received in the past against the Institutes, thus, the decision was taken to do away with the management quota. There is no provision of management quota in the courses namely; Technical Education courses e.g. B.Pharma, D.Pharma, Diploma in Engineering, MBA, MCA; Teacher Education courses like: B.Ed., D.Ed. and Medical Professional Education: e.g. Ayurveda, Yoga, Naturopathy, Unani Siddha and Homeopathy (Ayush).
In support of his contention, Shri Agrawal, placed a reliance upon the decisions of the Supreme Court rendered in Indian Medical Association v. Union of India & Others4, Society for Unaided Private Schools of Rajasthan v. Union of India & Another5, T.M.A. Pai Foundation (supra) and P.A. Inamdar (supra).
Shri Shrouti, learned counsel appearing with Shri Shrivastava, learned counsel for the respondent No. 5/University, while adopting the arguments advanced by the learned Advocate General, would submit that if the students admitted under the management quota are of lesser merit than the students admitted under the quota other than management. Thus, the decision to fill up 100% seats of the Institutions from the merit list prepared by the State Government, is just and proper.
We have considered the rival submissions advanced by the learned counsel appearing for the parties, perused the pleadings and the documents appended thereto.
Legality of the provisions of Pravesh Niyam, 2012 :
The Chhattisgarh Legislature enacted the Act, 2008 (No. 11 of 2008) to provide for the regulation of admission and fixation of fee in private professional educational institutions in the State of Chhattisgarh and to provide for reservation of seats to persons belonging to the Scheduled Castes, the Scheduled Tribes and Other Backward Classes in professional Educational institution and the matters connected therewith or incidental thereto.
Section 2(b) of the Act, 2008 provides that the provisions of the Act, 2008 shall apply to private unaided professional educational institutions affiliated to a university established under the Central or Chhattisgarh Act.
Section 3(d) of the Act, 2008 defines the common entrance test, as under :
(d) `common entrance test'' means an entrance test, conducted for determination of merit of the candidates followed by centralized counseling for the purpose of merit based admission to professional colleges or institutions through a single window procedure by the State Government or by any agency authorized by it.
Chapter III of the Act, 2008 deals with admissions. Sections 6 & 7 read as under :
Common entrance test.-In private unaided professional educational institution, admission to sanctioned intake shall be on the basis of the common entrance test in such manner as may be prescribed by the State Government.
Admission.-Every admission to private unaided professional educational institution shall be made in accordance with the provision of the rules made thereunder and every admission made in contravention thereof shall be void.
Section 12 of the Act, 2008 provides power to make rules, which reads as under :
Power to make rules.-The State Government may by notification make rules for carrying out the purposes of this Act.
The State Government purportedly framed the Pravesh Niyam, 2012 in exercise of its power u/s 3(6) wherein it is provided that there shall not be a management quota. Rule 2.4 (v) reads as under :
(Vernacular matter deleted)
It is worthwhile to mention that the Pravesh Niyam, 2012, which according to the learned Advocate General, was framed in exercise of its power conferred u/s 12 of the Act, 2008, was not duly authenticated, as required, by order and in the name of Governor. The said so called Niyam, which were notified on 03.04.2012, was signed by the Deputy Secretary, Department of Technical Education, Manpower Planning, Science & Technology, not duly authenticated in the name of Governor, as mandated under Article 166(2) of the Constitution of India. Thus, the Pravesh Niyam, 2012, cannot be held as a valid statutory rules, as pleaded by the Advocate General that the rules are framed for the purpose of carrying out the provisions of Sections 6 & 7 of the Act, 2008.
The contention of the learned counsel for the State that without challenging the provisions of Sections 6 & 7 of the Act, 2008, the Rules, 2012 cannot be challenged, does not merit acceptance. If the rules are not framed in accordance with the constitutional procedure, as laid down, the same is vitiated. It is not necessary to challenge the validity of Sections 6 & 7 of the Act, 2008.
The validity of Sections 4(1), 4(8), 9, 12 and 13 of the Act, 2008 was challenged in Disha Education Society v. State of Chhattisgarh & Another6 and other connected matter. A coordinate Division Bench of this Court, after having considered all the aspects of the matter, upheld the validity of the above stated provisions and declared as intra vires of the Constitution. There was no challenge to the validity of Sections 6 & 7 of the Act, 2008 in Disha Education Society (supra), and also there is no challenge to the above stated provisions, therefore, it is not necessary to examine the validity of the said provisions in this petition.
There is no provision of Section 3(6) under the Act, 2008. Rules can be framed u/s 12 of the Act, 2008 to carry out the purpose of the Act. Even if, the proper Section has not been mentioned for exercise of power to frame rules, the rules may be held as valid, as the State has competence under other provisions i.e. Section 12 of the Act, 2008 to frame rules. However, the Pravesh Niyam, 2012 was not framed in accordance with the Constitutional provisions, as explained hereinbelow. Thus, the same cannot be held as the valid piece of delegated legislation.
All the rules, framed by the State Government or the executive instructions of the State Government must be expressed in the name of the Governor, as under Article 166(3), the Governor is authorized to make the rules for the more convenient transaction of the business of the Government of the State. If the action of the Government to frame statutory rules and also the order is not duly authenticated as per Article 166, the same may not be held statutory. Thus, the delegation of power u/s 12 of the Act, 2008 must be exercised by the State Government after due authentication under Article 166(2) of the Constitution.
Article 166(1) of the Constitution clearly provides that all executive action of the Government of a State shall be expressed to be taken in the name of Governor. Thus, rules being action on the part of the State Government to frame rules, the same must be framed in the name of Governor.
In the instant case, the Rules, 2012 have been framed under the provisions of Section 3(6) which is not in the Act, 2008. The correct provision is Section 12. Even if it is presumed that the State has power to frame rules not u/s 3(6), but u/s 12 of the Act, 2008, the rules must be framed and issued by order and in the name of Governor, as required under the Constitutional provisions. Needless to mention that any rule, which is violative of Constitutional provisions, is ultra vires.
In Central Bureau of Investigation v. Ravi Shankar Shrivastava, IAS & Another7, the Supreme Court while considering the validity of the notification observed that the same does not meet the requirements of Article 166 of the Constitution, therefore, the said notification cannot be held as a valid notification.
In Shanti Sports Club & Another v. Union of India & Others8, the Supreme Court observed as under :
The issue deserves to be considered from another angle. All executive actions of the Government of India and the Government of a State are required to be taken in the name of the President or the Governor of the State concerned, as the case may be Articles 77(1) and 166(1). Orders and other instruments made and executed in the name of the President or the Governor of a State, as the case may be, are required to be authenticated in such manner as may be specified in rules to be made by the President or the Governor, as the case may be [Articles 77(2) and 166(2). Article 77(3) lays down that:
77 (3) The President shall make rules for the more convenient transaction of the business of the Government of India, and for the allocation among Ministers of the said business.
Likewise, Article 166(3) lays down that:
166(3) The Governor shall make rules for the more convenient transaction of the business of the Government of the State, and for the allocation among Ministers of the said business insofar as it is not business with respect to which the Governor is by or under this Constitution required to act in his discretion.
This means that unless an order is expressed in the name of the President or the Governor and is authenticated in the manner prescribed by the rules, the same cannot be treated as an order on behalf of the Government.
The respondents State has filed a copy of notification dated 15.04.2008 issued by the Government of Madhya Pradesh, namely the Admission Rules, 2008, which was framed in exercise of power conferred by Section 12 of the Madhya Pradesh Niji Vyavasayik Shikshan Sanstha (Pravesh Ka Viniyaman Avam Shulk Ka Nirdharan) Adhiniyam, 2007. The said rule was duly authenticated by order and in the name of Governor. In the instant case, the rule, which is in question, may be at the most a memo of the State Government, as it is not properly authenticated.
The provisions of the Act, 2008 are a source of power conferred on the State Government to frame rules in the manner prescribed in the Act. If no procedure has been prescribed, the same has to be framed in accordance with the general principles of law i.e. rule so framed must be in accordance with the provisions of Article 166 of the Constitution of India.
A constitution Bench of the Supreme Court in Bachhittar Singh v. State of Punjab9, observed as under :
8..Article 166(1) of the Constitution requires that all executive action of the Government of a State shall be expressed in the name of the Governor. Clause (2) of Article 166 provides for the authentication of orders and other instruments made and executed in the name of the Governor. Clause (3) of that article enables the Governor to make rules for the more convenient transaction of the business of the Government and for the allocation among the Ministers of the said business.
The contention of the learned counsel appearing for the respondent No.5/University that there is possibility of abuse of provisions, if the petitioner institutes are granted permission to admit students under the management quota. Law in this respect is well settled that mere possibility of abuse of a provision by those in charge of administering it cannot be a ground for holding the provision procedurally or substantively unreasonable. (See: Mafatlal Industries Ltd. & Others v. Union of India & Others10).
On merits :
In T.M.A. Pai Foundation (supra), 11 Hon''ble Judges of the Supreme Court, while considering the scope of right of minorities and Government Unaided Institutes to establish and administer the educational Institutions, held as under :
Private education is one of the most dynamic and fastest - growing segments of post-secondary education at the turn of the twenty - first century. A combination of unprecedented demand for access to higher education and the inability or unwillingness of the Government to provide the necessary support has brought private higher education to the forefront. Private institutions, with a long history in many countries, are expanding in scope and number, and are becoming increasingly important in parts of the world that relied almost entirely on the public sector.
Not only has demand overwhelmed the ability of the Governments to provide education, there has also been a significant change in the way that higher education is perceived. The idea of an academic degree as a "private good" that benefits the individual rather than a "public good" for society is now widely accepted. The logic of today''s economics and an ideology of privatization have contributed to the resurgence of private higher education, and the establishing of private institutions where none or very few existed before.
The right to establish and administer broadly comprises the following rights:
(a) to admit students;
(b) to set up a reasonable fee structure;
(c) to constitute a governing body;
(d) to appoint staff (teaching and non-teaching); and
(e) to take action if there is dereliction of duty on the part of any employees.
It would be unfair to apply the same rules and regulations regulating admission to both aided and unaided professional institutions. It must be borne in mind that unaided professional institutions are entitled to autonomy in their administration while, at the same time, they do not forego or discard the principle of merit. It would, therefore, 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. This can be done through various methods. For instance, a certain percentage of the seats can be reserved for admission by the management out of those students who have passed the common entrance test held by itself or by the State/university and have applied to the college concerned for admission, while the rest of the seats may be filled up on the basis of counseling by the State agency. This will incidentally take care of poorer and backward sections of the society. The prescription of percentage for this purpose has to be done by the Government according to the local needs and different percentages can be fixed for minority unaided and non-minority unaided and professional colleges. The same principles may be applied to other non-professional but unaided educational institutions viz. graduation and post graduation non-professional colleges or institutes.
Seven Hon''ble Judges of the Supreme Court in P.A. Inamdar (supra), while analyzing the observations made by the Supreme Court in T.M.A. Pai Foundation (supra) by majority in para 68 observed that the first part of para 68 is law laid down by the majority and the second part is suggestion only by way of illustration. Paras 110, 118 & 121 of P.A. Inamdar (supra) read as under :
In Islamic Academy the majority has (vide para 12) paraphrased the contents of para 68 by dividing it into seven parts. S.B. Sinha, J. has read the same para 68 by paraphrasing it in five parts (vide para 172 of his opinion). However, we have reproduced para 68 by dividing it into two parts. A reading of the majority judgment in Pai Foundation in its entirety supports the conclusion that while the first part of para 68 is law laid down by the majority, the second part is only by way of illustration, tantamounting to just a suggestion or observation, as to how the State may devise a possible mechanism so as to take care of the poor and backward sections of the society. The second part of para 68 cannot be read as law laid down by the Bench. It is only an observation in passing or an illustrative situation which may be reached by consent or agreement or persuasion.
Pai Foundation is unanimous on the view that the right to establish and administer an institution, the phrase as employed in Article 30(1) of the Constitution, comprises of the following rights: (a) to admit students; (b) to set up a reasonable fee structure; (c) to constitute a governing body; (d) to appoint staff (teaching and non-teaching); and (e) to take action if there is dereliction of duty on the part of any of the employees.(Para 50)
Affiliation or recognition by the State or the Board or the university competent to do so, cannot be denied solely on the ground that the institution is a minority educational institution. However, the urge or need for affiliation or recognition brings in the concept of regulation by way of laying down conditions consistent with the requirement of ensuring merit, excellence of education and preventing maladministration. For example, provisions can be made indicating the quality of the teachers by prescribing the minimum qualifications that they must possess and the courses of studies and curricula. The existence of infrastructure sufficient for its growth can be stipulated as a prerequisite to the grant of recognition or affiliation. However, there cannot be interference in the day-to-day administration. The essential ingredients of the management, including admission of students, recruiting of staff and the quantum of fee to be charged, cannot be regulated. (Para 55, Pai Foundation).
The first part of 68 in T.M.A. Pai Foundation (supra) provides that rules and regulations regulating admission to both aided and unaided professional institutions would be unfair and sufficient discretion in admitting students, should be given to the management. The second part, which was observed by the Supreme Court in P.A. Inamdar (supra), deals with the percentage of seats reserved for admission by the management out of those students who have passed the common entrance test held by itself or by the State/university and have applied to the college concerned for admission, while the rest of the seats may be filled up on the basis of counseling by the State agency in this respect. The reservation of seats for management may be determined having regard to the facts situation of case and depending on various factors available in the State. However, right to admit students to private unaided institutions on merit basis by the management, has been held as law. Method of selection may vary either by the State or by the University or by the management on consensual basis.
In Indian Medical Association (supra), the Supreme Court observed as under:
What stands out therefore, is that even though it is quite clearly and explicitly stated that maintenance of merit as determined by marks secured in qualifying examinations is an absolute necessity under clause (6) of Article 19 for those enjoying the freedoms only under sub-clause (g) of clause (1) of Article 19, the protection of clause (1) of Article 30 to minorities is extended to choosing those with merit, based on marks on the qualifying examinations, amongst their own minority group. There is no choice of "source" here. The choice is only with respect to being a minority or a non-minority educational institution. If the choice is exercised that the promoters wish to start a minority educational institution, the source immediately gets affixed, by clause (1) of Article 30 and a determination of who falls within that minority group. The educational institution does not do that. The State does that, following a constitutionally mandated and permissible process. In that sense, even there it is the State which delineates the "source" so that the protections of clause (1) of Article 30 indeed flow to the minorities that the State was expected to protect.
Consequently, this attempt to define an equivalence between non-minorities and minorities, and then come up with the idea that minorities can choose or create a "source" from within the general pool, and hence the non- minorities should be free to also create their own "sources" has to be deemed to be illogical, and based on a weird interpretation of the Constitution and the reality on the ground. The non-minority educational institutions have the basic freedom to choose: those students who are the most meritorious as determined on the basis of marks secured in a common entrance test with respect to filling up the seats that are not covered by reservation for the Scheduled Castes, the Scheduled Tribes, and "the Socially and Educationally Backward Classes" pursuant to clause (5) of Article 15. Consequently choice of students by non-minority educational institutions can only be from the general pool with respect to non - reserved seats. They cannot make further distinctions of their own accord.
In light of the above we have to conclude that non-minority private unaided professional colleges do not have the right to choose their own "source" from within the general pool. The equivalence between minority and non-minority unaided institutions, apart from that distinction because of clause (1) of Article 30, was to be on the basis that both are subject to reasonable restrictions pursuant to clause (6) of Article 19, that neither minority nor non- minority institutions could maladminister their educational institutions, especially professional institutions, that affect the quality of education, and by choosing students arbitrarily from within the sources that they are entitled to choose from.
In the case of non- minority institutions, especially professional institutions, the "source" can only be the general pool, and selection has to be based on inter se ranking of students who have qualified and applying or opting to choose to be admitted to such non-minority educational institutions. In the case of minority educational institutions, the "source" can be delimited to the particular minority the institution belongs to. To hold otherwise would be illogical, even if one were to assume that what is afforded to minority institutions is only a protection rather than a full-fledged right.
The protection under clause (1) of Article 30 is granted to minority institutions so long as they maintain their minority status. If the non-minority educational institutions could choose their own sources, minorities which are assured equal protections as non-minorities should certainly have that right too. The added protections to minority educational institutions makes sense only in the event that non-minorities are restricted to choosing from the general pool, and minorities from the delimited source of their own minority. Otherwise clause (1) of Article 30 would become meaningless.
Consequently, we hold that the arguments of the learned Senior Counsel, Mr K.K. Venugopal and Mr Jaideep Gupta that ACMS as a non-minority professional institution has the right to delimit a source of students are unpersuasive. ACMS has only the right to choose students from within the general pool. Further, inasmuch as this Court in P.A. Inamdar found the judgment in Islamic Academy to be incorrect in presuming that there could be State quotas and management quotas, we would also have to find the 10% management quota described in clause (a) of sub-section (1) of Section 12 to be suspect.
Even in Indian Medical Association (supra), as above quoted it has been held by the Supreme Court that the unaided private institutions have no choice of source for admission, however, they have basic freedom to choose students for admission on the basis of marks secured in a common entrance test with respect to non-reserved seats.
The Supreme Court in Society for Unaided Private Schools of Rajasthan (supra) observed as under :
P.A. Inamdar holds that right to establish and administer educational institution falls in Article 19(1)(g). It further holds that seat-sharing, reservation of seats, fixing of quotas, fee fixation, cross-subsidisation, etc. imposed by judge-made scheme in professional/higher education is an unreasonable restriction applying the principles of voluntariness, autonomy, co-optation and anti-nationalisation, and, lastly, it deals with interrelationship of Articles 19(1)(g), 29(2) and 30(1) in the context of the minority and non-minority''s right to establish and administer educational institutions. The point here is how does one read the above principles of autonomy, voluntariness, co-optation and anti-nationalisation of seats.
In answer to the above question, it is important to note that in P.A. Inamdar, this Court held that there shall be no reservations in private unaided colleges and that in that regard there shall be no difference between the minority and non-minority institutions. However, by the Constitution (Ninety-third Amendment) Act, 2005, Article 15 is amended. It is given Article 15(5). The result is that P.A. Inamdar has been overruled on two counts: (a) whereas this Court in P.A. Inamdar had stated that there shall be no reservation in private unaided colleges, the amendment decreed that there shall be reservations; (b) whereas this Court in P.A. Inamdar had said that there shall be no difference between the unaided minority and non-minority institutions, the amendment decreed that there shall be a difference.
In Modern Dental College and Research Centre (supra), the Supreme Court observed as under :
A five-Judge Bench of this Court in T.M.A. Pai Foundation v. State of Karnataka had an occasion to consider how the vacant seats in the NRI quota be filled up and ordered as follows: (SCC p. 729, para 3)
So far as the NRI quota is concerned, we fixed the same as 15% last year. We fixed the NRI quota in respect of minorities'' institutions as 5%. Although the NRI quota should not, normally, be more than 5%, but keeping in view the reduction in the fee structure, we fix the same as 10% (of the total seats) for this year. We further make it clear that in case any seat in the NRI quota remains unfilled, the same can be filled by the management at its discretion.''
(emphasis supplied)
We are of the considered view that the above principles laid down by the larger Benches of this Court, in the matter of filling up of NRI seats were not correctly understood or applied by this Court in R.D. Gardi Medical College while interpreting Rule 8 of the M.P. Admission Rules, 2008. The finding recorded in R.D. Gardi Medical College that the unfilled seats in NRI quota in unaided professional colleges should be treated as a part of the general pool and be shared equally by the State and the unaided professional colleges goes contrary to the principles laid down by the eleven-Judge Bench in Pai Foundation, Inamdar as well as the judgments rendered by the three- Judge Bench in Pai Foundation, referred to earlier. The wrong interpretation given in R.D. Gardi Medical College is seen incorporated in Rule 5 of the Madhya Pradesh Private Medical and Dental Undergraduate Course Entrance Examination Rules, 2011 as well, which in our view cannot be legally sustained.
Thus, the common thread running into the above-stated pronouncements of the Supreme Court is that unaided non-minority institutes have right to choose students for admission from general pool on the basis of common entrance test organized by the State or the University or by any other institute.
Contention of the learned Advocate General that the ratio as laid down by the Supreme Court in Modern Dental College and Research Centre (supra) is inapplicable, as the facts of the case was for admission under NRI quota, is unacceptable. Quota for NRI was based on the basic principle of right of non-minority unaided institute to choose students for admission to its institute. Thus, doing away with the right of management to have admission to its quota on the principle of right to choose students for admission is bad and vitiated.
The petitioner institutes have not challenged the constitutional validity of the Pravesh Niyam, 2012 in its entirety though we have made elaborate discussion in respect of the validity of the statutory rules i.e. delegated legislation under the provisions of the enactment. Rule 2.4 (v) of the Pravesh Niyam, 2012 is not in accordance with law laid down by the Supreme Court in T.M.A. Pai Foundation (supra) and P.A. Inamdar (supra) and other cases, as aforestated.
It is well settled that the legislature cannot by a bare declaration, without anything more, directly overrule, reverse or override a judicial decision; it may, at any time in exercise of the plenary power conferred on it by the Constitution render a judicial decision ineffective by framing invalid rules. (See: Virender Singh Hooda & Others v. State of Haryana & Another11 para 46).
As a sequitor, Rule 2.4 (v) of the Pravesh Niyam, 2012 is quashed. The admissions to the petitioner institutes shall continue on the basis of earlier prevailing system. Consequently, the writ petition is allowed to the extent indicated above, leaving the parties to bear their own costs.