Judgment :- V. RAMASWAMI, J. :— 1. In W.P. No 10039 of 1985, one R.R. Dalavai who claims to be the Convenor of the Civil Liberties Council and a Satya-grahi in Gandhijis Satyagraha Movement has filed the Writ Petition praying for the issue of a Writ of Mandamus directing the admission to private medical (professional) colleges in the State on merit in accordance with Art. 46 among others of the Constitution of India and on a par with other medical colleges of the State in this regard especially regarding reservation for backward classes, scheduled castes and scheduled tribes. The only respondent to this Writ Petition is the State of Tamil Nadu and the private medical colleges to whom the direction is to be issued by the Government are not made parties. 2. In the other writ petition, the Petitioner claims to be the District Secretary of the All India Students Federation and he has filed this Writ Petition on behalf of the said Federation. The prayer in this writ petition is for the issue of a Writ of Certiorari to quash G O.Ms. No. 1079, Health and Family Welfare, dated 1-7-1985 and G.O.Ms. No. 1196, Health and Family Welfare, dated 24-7-1985. To this writ petition, in addition to the Government of Tamil Nadu, three private Medical Colleges and the “Indian Medical Council”, New Delhi were made as respondents. 3. It is seen from G.O.Ms. No. 1079, dated 1-7-1985 that the question of starting Medical Colleges by private organisations in Tamil Nadu to cater the needs of a spiring students has been receiving the attention of the Government. Representations have been received from educational institutions and private managements in this regard. These educational institutions and private managements have come forward to establish and run new Private Medical Colleges on self-financing basis without any financial commitment to the Government. The Government after examining the various aspects such as man power requirements in the area of medical education, the norms prescribed by the Medical Council of India regarding availability of clinical facilities that are required in connection with the opening of new Medical Colleges and other factors, were convinced that there is need for starting initially some Medical Colleges in Tamil Nadu on self-financing basis. The Government, therefore, approved the proposal for starting new private Medical Colleges in Tamil Nadu without any financial commitment to the Government both under the recurring and non-recurring items in the said Government Order subject to the following conditions:— (i) “The private managements, Educational Trusts, etc., which propose to open such unaided Medical Colleges should have adequate funds to start and run such Medical Colleges. They should also create an endowment in cash for an amount, which will be specified by Government. They should have at least one hundred acres of land to construct the College, Hostel, Hospital, and Quarters. (ii) The new private Medical Colleges to be established should have an attached general Hospital for private clinical training to the students as per the norms of Medical Council of India. They should satisfy all the requirements of the Medical Council of India in this regard. (iii) The private Managements, etc., should obtain the recognition of the Medical Council of India for the Medical Colleges proposed to be opened by them. (iv) The managements/private organisations which propose to start such private Medical Colleges should submit their applications for the purpose through the Director of Medical/Education, Madras.” 4. The Director of Medical Education was accordingly required to scrutinise the applications received from the a spiring organisations for starting Medical Colleges with reference to their financial soundness, their reputation and their ability to run the proposed Medical Colleges on sound lines and recommend to the Government only the deserving cases. 5. Three applications were received, considered and recommended by the Director of Medical Education and those are from respondents 2, 3 and 4 in W.P. No. 9284 of 1985. The Government after careful examination of the proposal, by G.O.Ms. No. 1196, Health dated 24-7-1985 permitted the three private organisations referred to above to open their Medical Colleges subject to the condition mentioned in the annexure to the order which may be extracted in full. ANNEXURE. I Suggestions to be envisaged in the Government Order for starting a College for running M.B.B.S., Course for less than 100 students. 1. The private Management/Educational Trusts/Agencies which propose to open unaided, self-financing Medical Colleges shall be allowed to admit candidates of their choice upto 60% of the approved intake of the College adhering to the minimum mark rules prescribed for Government Medical Colleges. 1. The private Management/Educational Trusts/Agencies which propose to open unaided, self-financing Medical Colleges shall be allowed to admit candidates of their choice upto 60% of the approved intake of the College adhering to the minimum mark rules prescribed for Government Medical Colleges. Candidates to the remaining 40% of the seats will be allotted to by the Director of Medical Education every year and this will be filled from among the approved list of candidates selected for admission to Government and private Medical Colleges. 2. The private Medical Colleges should fully satisfy the minimum standard requirements prescribed by the Medical Council of India with reference to the number of annual admissions. The Medical Council of Indias recognition should be obtained initially and after full establishment periodically as stipulated by the Medical Council of India Regulations. 3. The private Medical College should also satisfy all the recommendations on graduate medical education made by the Medical Council of India. 4. The Institution should obtain the recognition from the following councils for the corresponding courses: Sl No. Course Conditions Council recognition (1) (2) (3) (4) 1. M.B.B.S., and other Medical Post-graduate studies. Should satisfy medical council of India standard requirements and recommendations. Should obtain the recognition from the Medical Council of India. 2. B.D.S., and other Dental Post-graduate course. Should satisfy Dental Council of India standard requirements and recommendations. Should obtain the recognition from the Dental Council of India. 3. Diploma in Pharmacy B. Pharmacy and M. Pharmacy. Should satisfy the Pharmacy Council of Indias standard requirements and recommendations. Should obtain the Pharmacy Council of Indias recognition. 4. Diploma in Nursing in Nursing M.Sc., Degree. Should satisfy the Nurses Council of Indias standard requirements and recommendations. Should obtain Nurses Council of Indias recognition. 5. The Institution should get the initial sanction from the concerned Universities before starting the Course and obtain full affiliation on completion of establishment of the various courses. 6. An endowment of Rs. 50 lakhs is to be provided by registration in the joint name of the Trust/Private management and the Director of Medical Education. The amount can be paid in lump sum. For I year I instalment Rs. 10 lakhs II year II instalment Rs. 20 lakhs; and III year III instalment Rs. 20 lakhs. 7. In addition to an endowment, the Respondent should produce a bank guarantee or a solvency certificate of Rs. The amount can be paid in lump sum. For I year I instalment Rs. 10 lakhs II year II instalment Rs. 20 lakhs; and III year III instalment Rs. 20 lakhs. 7. In addition to an endowment, the Respondent should produce a bank guarantee or a solvency certificate of Rs. 50 lakhs for a period of five years. 8. Before admitting students, the Institute should be well equipped for conducting theory and practical classes for Anatomy, Histology, Physiology and Biochemistry. In the second year of its life, it should be ready for II M.B.,B.S., classes. One year before the commencement of a subject the department should be made ready with reference to men and material for running the courses without any hardship. 9. In regard to provision of land, the following minimum extent of land should be provided by the private management. i. Municipal town/city areas 100 acres. ii. Semi Urban or rural areas 150 acres. The management should produce documentary evidence for their possession of 50 per cent of the lands before opening the college. The remaining 50 per cent should be purchased within a period of 2 years of the commencement of the institution. 10. The new private Medical College so established will be under the academic control of the Director of Medical Education; periodical review, inspections will be made by the Director of Medical Education. All the recommendations of the Director of Medical Education should be carried out immediately, otherwise the Government may be compelled to stop the functioning of the institution. 11. Every time any increase in seats is contemplated, the Government should be intimated at least six months in advance. Increase of seats, starting of new courses can be considered only after the full payment of the Endowment, Bank guarantee, mentioned earlier, obtaining the Medical Council of India recognition and university affiliation and after the first batch has successfully completed the entire course. 12. The management should also give separate undertaking stating that NO CAPITATION FEE will be collected from the students seeking admission in the private self-financing Medical Colleges. 13. The Government also stipulate that if the conditions are not fulfilled by the private managements so permitted, the permission granted is liable to be withdrawn at any time. 12. The management should also give separate undertaking stating that NO CAPITATION FEE will be collected from the students seeking admission in the private self-financing Medical Colleges. 13. The Government also stipulate that if the conditions are not fulfilled by the private managements so permitted, the permission granted is liable to be withdrawn at any time. The Government will have the right to take over the Medical College and Hospitals concerned in question at any time with all its immovable and movable properties including endowment and cash balances without paying any compensation. 14. A nominee of the Government of Tamil Nadu should be an ex-officio member of the Board of Management of both the College and affiliated teaching hospitals. 15. The College should make arrangements to provide hostel accommodation within walking distance of the campus and if this is not possible, should provide transport facilities from the hospital to College and back. 16. Fifty per cent of the hospital beds should be for poor free patients for getting adequate clinical material for the students. (A paying patient may not be willing to be examined by a student). 17. All the buildings proposed for the college, hospital, out-patients, specialities, hostel quarters, etc., should be completed before the first batch of students pass out from the Institute. 18. Preference may be given to the Institutions which are to be started in a district where there is no medical college. 19. The Institution should be located in such a place that in and around 20 kilometres radius, it should cover a minimum of ten lakh population to get enough clinical material. 20. The Institution should get full recognition of the Medical Council of India before the first Batch of students pass out from it. 21. Facilities for getting cadavers for dissection and mortuary provision should be made. 22. The Anatomy Act should be extended to the districts where new Medical Colleges are going to be started.” 6. It may be mentioned, however, that the Government have amended the percentage mentioned in clause (1) and therefore 60 per cent has to be read as 65 per cent and 40 per cent has to be read as 35 per cent in that clause. Subject to this, the other conditions remain the same. 7. It may be mentioned, however, that the Government have amended the percentage mentioned in clause (1) and therefore 60 per cent has to be read as 65 per cent and 40 per cent has to be read as 35 per cent in that clause. Subject to this, the other conditions remain the same. 7. There is no dispute in this case that the three institutions to whom permission has been granted have the required extent of land to construct the College, hostel, hospital and quarters as stated in the impugned Government Orders. They have also satisfied the conditions relating to the question of the endowment in cash as specified by the Government. It is seen from the counter affidavit filed by the second respondent which is also not in dispute, that the building complex comprising of the College, a thousand-bedded hospital, hostel, staff quarters, nursing quarters and residential accommodation for the persons accompanying the in-patients in respect of the said second respondent College are almost over and are about to be occupied, and pending these constructions, they had also taken 22,000 square feet carpet area of a pucca terraced building and the College has started functioning from 11-9-1985. A detailed statement as to the facilities that are required and provided is set out in the counter affidavit filed by the second respondent. The University of Madras to which the second respondent applied for affiliation, had after deputing a committee of experts to inspect the building, equipment and other arrangements for starting the College in the year 1985-86, granted the affiliation for the first year M.B.B.S., course for 1985-86 by their communication dated 10-9-1985. The Medical Council of India also is stated to have given recognition provisionally. 8. Similarly, the third respondent has also complied with all the conditions. They have also got the provisional affiliation from the Bharathiar University on 3-10-1965 and have also the infrastructure facilities. The third respondent, the P.S.G. Institute of Medical Sciences, Coimbatore is one of the several institutions run by the P.S.G. & Sons Charities, Peelamedu, Coimbatore. This Trust was started in the year 1926. The main object, of the Trust is to start educational institutions for the purpose of imparting technical and non-technical education in the field of science, arts and technology. P.S.G. College of Technology was started in the year 1951 which is now one of the best institutions in India. This Trust was started in the year 1926. The main object, of the Trust is to start educational institutions for the purpose of imparting technical and non-technical education in the field of science, arts and technology. P.S.G. College of Technology was started in the year 1951 which is now one of the best institutions in India. It is claimed that the graduates turned out of the Institutions are now in many parts of the world occupying very important and high positions. Likewise, they have also PS G. College of Arts and Science with a strength of over 3,000 students. This trust also runs polytechnics, a Higher Secondary School and two other basic schools. They are also running a Rural Health Centre which attracts a large number of patients. The College itself is attached to two reputed Hospitals of Coimbatore, viz., Sri Ramakrishna Hospital and Sri. G. Kuppuswamy Naidu Memorial Hospital. The total bed strength of these hospitals is stated to be 600. The University and also the Medical Council have satisfied themselves of the facilities available and also of the staff pattern and their qualifications. The admission to this Institution also is on the basis of the minimum marks rule prescribed for Government Medical Colleges. 9. The fourth respondent is a University College of the Annamalai University. In fact, it is the case of the fourth respondent that it is a University by itself constituted under the Annamalai University Act ‘Tamil Nadu Act 1 of 1929), and though they got a sanction from the Government, it was only by way of abundant caution and that as a matter of fact, in law, they do not require any such recognition or permission from the Government in as much as S.3 of that Act empowers the University to provide for instructions in such branches of learning as the University thinks fit including professional studies and technology and grant and confer degrees and other academic distinctions to persons who have pursued such courses. However, factually they have stated that all the conditions relating to the extent of land required and other conditions are also satisfied. 10. However, factually they have stated that all the conditions relating to the extent of land required and other conditions are also satisfied. 10. The main and in fact the only contention of the petitioner in W.P. No. 10039 of 1985 who was appearing in person was that the admission to these private colleges shall be regulated by the Government in such a manner that these private Medical Colleges should admit students only on the basis of merit and that the rules of reservation should be made applicable to all the available seats in the Colleges in the State and that is how the petitioner has prayed for the issue of a Mandamus directing the Government to regulate the admissions in accordance with and on a par with other Medical Colleges in Tamil Nadu, and in particular having regard to reservation for backward classes as Scheduled Castes and Scheduled Tribes. Neither the petitioner in this writ petition nor the learned counsel who appears for the petitioner in W.P. No. 9284 of 1985 questions the power of the Government permitting the opening of private Medical Colleges in the State. They concede that they are not against the opening of any private Medical Colleges in the State. But they contend that the admission to these Colleges should be regulated by the Government and the rules of reservation should be made applicable to them. There is also nothing, as the law stands, which lays down that Medical Colleges shall be established and run only by the State. In fact, the Governments contention was that the Government wanted expert and best medical facilities to reach the masses. But the number of doctors was inadequate, that if the Government were to start more Medical Colleges, very huge amounts by way of initial investment and also recurring expenditure will have to be incurred for each Medical College and within the Governments fiscal limits, it was not possible to start more Medical Colleges, and it is in those circumstances the Government sought the help of private sectors for starting self-financing Medical Colleges and they were permitted to run such Colleges on condition that they reserve 35 per cent of seats to be filled by the Government. This reservation enables the Government to admit backward classes, Scheduled Castes and Scheduled Tribes and poor candidates with merit. This reservation enables the Government to admit backward classes, Scheduled Castes and Scheduled Tribes and poor candidates with merit. This will be filled up from the list of approved candidates selected for admission to Government and private aided Medical Colleges. 11. The Government Order relating to reservation of seats in G.O.Ms. No. 73, Social Welfare Department dated 1-2-19&0 reads as follows:— “The Government now direct that the reservation of seats shall be made at 50 per cent for back-ward classes and at 18 per cent for Scheduled Castes and Scheduled Tribes in respect of all courses in all kinds of educational institutions under all kinds of management (like Government, local body and aided managements) where reservation is provided by the State Government for the above classes. The reservation of seats as per the above orders shall be a condition for the payment of any grant-in-aid from the funds of this Government to any private management or local body or to the Universities (in respect of course* conducted and institutions run directly by them)”. 12. It may be seen from the Government Order that it applies to the Government institutions and institutions run by local bodies and Government aided management Institutions. As seen from the impugned Government Orders themselves, the permission granted to those private organisations is for establishing and running private Medical Colleges as on unaided self financing basis without any financial commitment, recurring or non-recurring, to the Government. In fact, it is not the case of the petitioners that these private Colleges are receiving any aid from the Government. Factually also, as may be seen from the conditions subject to which the permission was granted which was extracted above, 35 per cent of the seats in respect of the second respondent College, some 40 seats out of 100 in the third respondent College and 16 seats out of 75 in the fourth respondent College are reserved for allotment by the Director of Medical Education every year. It may also be mentioned that in the selection of the other 65 per cent of candidates, the private institutions not only shall adhere to the minimum marks requirement as provided in the case of Government Medical Colleges, but also it is not restricted to any particular class or community. It is also not correct to state that the selection of these candidates was not on merits. It is also not correct to state that the selection of these candidates was not on merits. We have to keep in mind that when the University, by giving promotion to a candidate in the qualifying examination, has declared that the candidate is eligible to be admitted to the professional colleges, the necessity for prescribing a higher mark for admission into the professional colleges arises from the fact that not all aspiring students could be given admission and therefore as a method of selection by elimination, a higher minimum mark is prescribed for admission to Medical Colleges and that higher minimum has to be complied with by all these private Medical Colleges as well. Among those who have secured more than that percentage, it is again a process of selection and that selection could be applied only for Government institutions or Government aided institutions though even private institutions select candidates on merit basis only, though not strictly on the basis of percentage of marks obtained. The respondents have denied the allegation that any capitation fee is levied by the institutions concerned. 13. It may also be mentioned that Art. 16(4) of the Constitution is an enabling Provision and it does not impose any obligation on the Government to make any special provision for backward classes or for Scheduled castes and Scheduled Tribes. With reference to Art. 15(4), the Supreme Court in the decision reported in M.R. Balaji v. State of Mysore 1, observed: “In this connection it is necessary to emphasis that Art, 15(4) like Art. 16(4.) is an enabling provision; it does not impose an obligation, but merely leaves it to the direction of the appropriate Government to take suitable action, if necessary.” 14. Again, in the decision reported in C.A. Rajendran v. Union of India 2, dealing with Art. 16(4) of the Constitution the Supreme Court observed: “Our Conclusion, therefore, is that Art. 16(4) does not confer any right on the petitioner and there is no constitutional duty imposed on the Government to make reservation for Scheduled Castes and Scheduled Tribes, either at the initial stage of recruitment or at the stage of promotion. In other words, Art 16(4) is an enabling provision and confers a discretionary power on the State to make a reservation of appointments in favour of backward class of citizens which, in its opinion, is not adequately represented in the services of the State.” 15. If the Government had thought that reserving 35 per cent of seats for them to be filled up in private self financing Colleges is sufficient, we do not think that this court can sit in judgment over it and prescribe any higher percentage. Art. 29(2) of the Constitution of India also applies only to an institution maintained by the State or receiving aid out of the State funds. 16. From the point of view of the right of every college to have its own rules relating to admission, it is not possible for us to interfere with the same. In Chitralekha v. State of Mysore 3, considering a similar question relating to the right to prescribe rules for admission, the Supreme Court observed: “The Government runs most of the Medical and Engineering Colleges. Excluding the State aided colleges for a moment, the position is as follows: The colleges run by the Government having regard to financial commitments and other relevant considerations can only admit a specific number of a students to the said colleges. They cannot obviously admit all the applicants who have secured the marks prescribed by the University. It had necessarily to screen the publicants on some reasonable basis. The aforesaid orders of the Government only prescribed criteria for making admissions to Colleges from among students who secured the minimum qualifying marks prescribed by the University. Once it is conceded, and it is not disputed before us, that the State Government can run medical and engineering Colleges, it cannot be denied the power to admit such qualified students as pass the reasonable tests laid down by it. This is a power which every private owner of a College will have, and the Government which runs its own Colleges cannot be denied that power. (The emphasis is ours). 17. We may point out that among those who have got the higher minimum marks, it cannot be said that merit could be determined only on the basis of the marks obtained in the University. (The emphasis is ours). 17. We may point out that among those who have got the higher minimum marks, it cannot be said that merit could be determined only on the basis of the marks obtained in the University. The Supreme Court having considered the question and taking note of the fact that candidates take the qualifying examination in different universities, held in the decision reported in D.N. Chanchala v. State of Mysore 4, as follows:— “The fact that a candidate having lesser marks might obtain admission at the cost of another having higher marks from another university does not necessarily mean that a loss meritorious candidate gets advantage over a meritorious one. As is well known, different universities have different standards in the examinations held by them”. 18. The Government have prescribed the minimum marks for admission to the private Medical Colleges and under the various regulations of the Medical Council of India, the candidates must have the minimum standard prescribed for admission, and the examinations are conducted by the University and the quality of the education is thus maintained. In the circumstances, we are unable to agree that there was any discrimination in the matter of selection or admission of candidates to those colleges. 19. The learned counsel appearing for the petitioner in W.P. No. 9284 of 1985 contended that the provision of the Tamil Nadu Private Colleges Regulation Act have been violated. The argument was that the Government permitting the establishment of private Medical Colleges without the prior affiliation to the University was without jurisdiction. In this connection he relied on S.3 of the Act. We are unable to see how any of the provisions of the Act are violated. A problematical question is posed whether the affiliation should be first or the permission should come first. Without a permission from the Government, it is not possible for a private organisation to establish a College, construct buildings, incur expenditure and purchase instruments and equipments. Without the basic facilities available, the University cannot grant affiliation. Thus, everything proceeds on provisional affiliation and the permission is also granted subject to certain conditions being fulfilled. When once the conditions are fulfilled, the provisional affiliation granted by the University is again considered and affiliation granted. Therefore, we are unable to see any violation of the provisions of the Tamil Nadu Private Colleges Regulation Act. 20. Thus, everything proceeds on provisional affiliation and the permission is also granted subject to certain conditions being fulfilled. When once the conditions are fulfilled, the provisional affiliation granted by the University is again considered and affiliation granted. Therefore, we are unable to see any violation of the provisions of the Tamil Nadu Private Colleges Regulation Act. 20. The learned counsel for the petitioner in W.P. No. 9284 of 1985 argued the case for about three days, and he argued the point relating to Art. 14 of the Constitution, violation of the provisions of the Private Colleges Regulation Act and the requirements of the Medical Council of India. When he wanted to argue on some factual aspects relating to the adequacy or otherwise of professional doctors and prove the correctness and genuineness of some of the statements referred to in the affidavit filed in sapport of the Writ Petition, he wanted time. We granted time for more than once. But the learned counsel did not produce any further material and in fact, at a certain stage, he absented himself and did not even appear in court. We cannot but criticise this conduct of the learned counsel especially when he is not a person aggrieved and he filed this petition as a public interest litigation which we entertained. Be that as it may, suffice it to say that he had no material in support of the various factual statements made in the affidavit and therefore we take it that he had not established the same. For the foregoing reasons, we are satisfied that the petitioners have not established any violation of Art. 14 of the Constitution of India or of the provisions of the Tamil Nadu Private Colleges Regulation Act, even if they are applicable. These writ petitions accordingly fail and they are dismissed. There will, however, be no order as to costs in both the petitions.