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2004 DIGILAW 471 (KER)

Academy of Medical Sciences v. Regina. M.

2004-10-01

K.A.ABDUL GAFOOR, K.K.DENESAN

body2004
Judgment :- Abdul Gafoor, J. These appeals are directed against the judgment dated 27.09.2004 in W.P.(C) No.26260/2004. Writ Appeal No.1786/2004 is treated as the main appeal. That appeal is filed by two self financing medical colleges namely, Academy of Medical Sciences, Pariyaram and Co-operative Medical College, Kochi, Respondents 4 and 5 in the writ petition, hereinafter referred to as “the Appellants”. The other appeals, except one, have been filed by the students who have been admitted by the said appellants to M.B.B.S. Course, against the seats in the management quota. The remaining appeal has been filed by the State. 2. The learned single Judge as per the impugned judgment set aside the admission of students to the seats in Management Quota made by the appellants, having found that selection for such admission was not in conformity with the provisions contained in Section 3(1) and 3(4) of Act 17 of 2004 and with Ext.P2 Government Order. It is in the above circumstances the managements, the selected candidates and the State have filed these appeals. 3. It is contended by the appellants in all these appeals that the learned single Judge ought not to have interfered with the selection process as the appellants do not come within the definition of State or other authority or are not instrumentalities of the State. Therefore, their action could not have been subjected to judicial review under Article 226. The writ petitioners were not successful in substantiating before the learned single Judge that there was functional, financial and administrative control over the appellants by Government, so that they can be termed as an authority under Article 12 of the Constitution of India to exercise the power vested in this court for judicial review under Article 226. It is further contended that the writ petitioners have applied and participated in a selection process pursuant to the notifications issued for admission to the seats in Management Quota. Having participated in the selection process and having lost an opportunity to get selection, they could not have impugned the selection later. It is further contended that the writ petitioners have applied and participated in a selection process pursuant to the notifications issued for admission to the seats in Management Quota. Having participated in the selection process and having lost an opportunity to get selection, they could not have impugned the selection later. It is further contended that as Section 3(4) of the said Act cannot be, given full effect during this year, because of the absence of test conducted by the consortium of self-financing Medical Colleges, the only option left was to follow the list prepared by the Commissioner for Entrance Examinations and select the candidates for admission to the Management Quota, as permitted by Ext.P2 order issued in exercise of the power vested in Government, under Section 12 of the Act. Ext.P2 has got a statutory flavour and without Ext.P2 section 3(4) of the Act providing procedure for admission to Management Quota cannot be implemented. It allows a selection process from among the candidates included in the list prepared by the Commissioner for Entrance Examinations, (hereinafter referred to as the ‘State Merit List’) and applied to the respective colleges pursuant to the notifications. Ext.P2 was never challenged by the writ petitioners. The effect of the impugned judgment is that the management is deprived of the opportunity to select candidates in terms of Ext.P2 and the statutory mandate. It is further contended that based on such selection, 35 candidates each have been admitted and all these candidates have discontinued the courses they were attending in other colleges/universities in or outside the State. If their selection is interfered with at this stage, it will have far reaching effects on their career. Therefore, equity demands that there shall not be any interference with such selection. Again, it is contended that the writ petitioners have not even impugned the selection process. If at all there is such contention for them, a selection can be impugned, successfully, only if it is shown that it was vitiated due to any illegality or procedural unfairness. There was no pleading to that effect in the writ petition. The management can evolve a selection process to weed out less meritorious incumbents, based on a set standard. If at all there is such contention for them, a selection can be impugned, successfully, only if it is shown that it was vitiated due to any illegality or procedural unfairness. There was no pleading to that effect in the writ petition. The management can evolve a selection process to weed out less meritorious incumbents, based on a set standard. Having not thus challenged the selection process in which they participated, the learned single Judge ought not to have set aside the selection and directed to conduct fresh selection in the manner indicated in the judgment. It is contended that the writ petitioners did not implead all the candidates who got selection as per Exts.P3 and P4 list and did not approach this court in time. If they had been aggrieved by the selection process proposed by the appellants, they would have approached this court immediately after the notification had been issued. It is further contended that the learned single Judge interfered with the selection process, on the basis that the appellants were discharging a public duty, applying the principle laid down in Unnikrishnan’s case (1993 (1) SCC 645). But there was no such pleading in the writ petition. In the absence of such pleading, and having disabled the appellants to meet such pleading, selection process could not have been interfered with for that reason. 4. These contentions of the appellants can be examined taking note of the circumstances under which the writ petition has been filed. 5. It is now a fact that there are several self financing professional colleges imparting medical education in the State. Admission to the seats in Management Quota in such colleges can be made by the management. But it shall be based on merit alone. Taking into account the dictum laid down in Islamic Academy of Education and another V. State of Karnataka and others (2003 (6) SCC 697), the State Legislature enacted Kerala Self Financing Professional Colleges (Prohibition of Capitation Fees and Procedure for Admission and Fixation of Fees) Act, 2004, (Act 17 of 2004), in order to prohibit capitation fee and to lay down the procedure for admission of students and fixation of fee structure in such self financing professional colleges in the State. Going by the definition of “self financing professional college” contained in Section 2(j) therein, the appellants come within its purview, being colleges maintained by a body of persons and affiliated to or recognized by the concerned universities and not receiving any financial assistance from Government for running their institution and conducting the courses. Of course there was some debate as to whether they receive financial assistance from Government, as is revealed from the impugned judgment. But the Government has made it clear that they are not giving any financial assistance to the appellants for running their institutions or for conducting courses. Necessarily, the appellants come within the definition of self financing professional colleges. 6. The procedure for admission to such institutions is provided in Section 3 of the Act. The appellants issued separate notifications inviting applications from the candidates included in “State Merit List”. The writ petitioners applied in both the colleges. They figure as Nos.1061, 976, 1366 and 1566 in the said list. They were not given admission. But candidates with far lower rank e.g. Nos.40012, 37752, 30029, 27922 etc. have been selected in the college run by the first appellant and the candidate with rank No.12000, 11195, 8581, 7112 etc. had been selected in the college managed by the 2nd appellant. All the candidates so included in Exts.P3 and P4 lists prepared by them, except one or two, are much lower in rank than the writ petitioners. 7. Thereupon, the writ petitioners approached this court contending that the appellants were not like any other self financing colleges defined in Section 2(j) as they were styled by Government themselves as “State owned Self Financing Medical Colleges” and that they were, therefore, “State” as defined in Article 12 of the Constitution of India, amenable to the jurisdiction of this court under Article 226 of the Constitution of India. The writ petitioners made such averments because of the understanding of the Government of Kerala about these institutions in their own brochure CAP 2004 (Centralised Allotment Process For Admission to Professional Degree Courses) published under the authority of Government of Kerala, wherein the appellants’ are referred to, under item NO.10(1)(2), as “State Owned Self Financing Medical College.” 8. They approached this Court with the grievance as mentioned in para 16 and 17 of the writ petition as follows: 16. They approached this Court with the grievance as mentioned in para 16 and 17 of the writ petition as follows: 16. But purely on the premise that Exhibit P2 order would govern their situation as well respondents 4 and 5 proceeded to conduct admissions to 50% of their seats i.e. management quota from among the students included in the rank list published by the State Commissioner for entrance examination without considering the inter se merit of candidates. All the petitioners are included in the rank list published by the commissioner of entrance examination but respondents 4 and 5 have taken steps to admit students to the management quota as they please, subject only to the minimal requirement that such students must find a place in the list of Commissioner for Entrance Examination. The admission of such students to the management quota by respondents 4 and 5 is not on the basis of ranking and inter se merit as is reflected in the list published by the Commissioner for entrance examination. Thus candidates with lower ranking have been considered and candidates with higher ranking have not been considered by respondents 4 and 5 in effecting admissions to 50% of their seats for the academic year 2004-2005. This procedure conducted by respondents 4 and 5 is illegal and is even unconstitutional. Respondents 4 and 5 cannot take shelter under Exhibit P2 government order to justify the admission of 50% of the seats in accordance with their wishes. It is the knowledge of the petitioners that respondents 4 and 5 have fixed a fee of Rs.25 lakhs for the MBBS Course and apparently it is the willingness of the students to shell out the said fee which is treated as one criteria for giving admission. It is submitted that respondents 4 and 5 being instrumentalities of the State are bound to regulate their admissions to any seat whether designated as Government quota or management quota purely on the basis of merit. Thus so far as respondents 4 and 5 are concerned, they are bound to conduct admissions on the basis of ranking obtained by student in the common entrance examination which is conducted by the State commissioner for entrance examinations. Thus so far as respondents 4 and 5 are concerned, they are bound to conduct admissions on the basis of ranking obtained by student in the common entrance examination which is conducted by the State commissioner for entrance examinations. The minimal requirement that a student should be found in the rank list is not of much significance in as much as that about 90% of the students who participate in the common examinations have been placed in the list as such. 17. It is submitted that merit has not been the fundamental criteria adopted by respondents 4 and 5 for conducting admissions to 50% of the seats. Exhibit P2 order is not applicable to them. At any rate Exhibit P2 government order cannot be taken as the basis by respondents 4 and 5. Respondents 4 and 5 are instrumentalities of the State and are required to fill up the seats in accordance with the merit.” They also urged in ground (b) to the Original Petition, as follows: b. It is submitted that respondents 4 and 5 have taken shelter under Exhibit P2 Government Order. Said order is not applicable to them. Assuming without admitting that the said order is applicable to them inasmuch as that respondents 4 and 5 are instrumentalities of the State, they are bound to adopt merit as the criteria even when they choose students from the rank list published by the Government Commissioner for Entrance examination. This has not been followed in the instant case. Candidates have been chosen from the rank list published by third respondent purportedly on the strength of Exhibit P2 order but without following the inter se merit. Only criterion adopted in that regard by respondents 4 and 5 is that the candidates must find a place in the commissioners rank list disregarding as it were the ranking and comparative merit. This has lead to complete arbitrariness in the selection effected by respondents 4 and 5 to the management quota. As a consequence thereof petitioners found themselves excluded in favour of less meritorious candidates including respondents 6 and 7. The instrumentality of the State is bound to act in a fair and reasonable manner and in the instant case best possible criterion in that regard was the merit of the candidate as reflected in the commissioner’s rank list. As a consequence thereof petitioners found themselves excluded in favour of less meritorious candidates including respondents 6 and 7. The instrumentality of the State is bound to act in a fair and reasonable manner and in the instant case best possible criterion in that regard was the merit of the candidate as reflected in the commissioner’s rank list. This has not been adopted and consequently the result is that merit has not been adopted and consequently the result is that merit has not been adopted as the criteria. Accordingly willingness of students to shell out an amount of Rs.25 lakhs as tuition fee has been adopted as criteria. This again is illegal.” On its basis, they sought for inter alia, the following relief’s as well: b. Issue a writ mandamus commanding the respondents 4 and 5 to effect admissions to 50% seats designated as management quota only from among those candidates included in the list published by the third respondent Commissioner of Government Examinations and strictly on the basis of inter se ranking of students as reflected in the said rank list published by the second respondent. c. Declare that selection of the students effected by respondents 4 and 5 as per Exhibit P3 and P4 is illegal and invalid. 9. In order to invoke Article 226, the writ petitioners contended that the Appellants squarely fall within Article 12 of the Constitution of India, and that therefore, the appellants could not have discriminated them choosing less meritorious candidates, over candidates of proved merit. We see from the impugned judgment that the learned single Judge has not decided whether the appellants come within Article 12, though the contentions in that regard, had been referred to. That does not mean that even if the appellants do not come under Article 12, the jurisdiction vested in this court, with reference to the said grievance voiced by the writ petitioners, cannot be invoked, if they are amenable to that jurisdiction, yet, to render justice to those who are denied of it, by reason of manifestly unjust and unfair attitude shown by the appellants in their action dealing with the students and their rights. We find that, for the purpose of granting relief, exercising the jurisdiction vested in this court under Article 226 in the cause posed, it was not necessary to decide that question; as even otherwise the appellants are amenable to such jurisdiction vested in this court. 10. We say so because, the appellants are enjoined with a public duty of imparting professional education. It is now trite law that any authority, whether public or private, aided or unaided, minority or non-minority, imparting education is discharging a public duty. It has been held in Unnikrishnan v. State of A.P. (1993 (1) SCC 645) that: “What is discharged by the educational institution is a public duty, that requires duty to act fairly. In such a case, it will be subject to Art.14.” This dictum has never been overruled in T.M.A.Pai Foundation (2002 (8) SCC 481). When there is a public duty, there involves an element of public interest as well. Public interest means the kind of interest, which concerns the public at large. Matter of public interest does not mean that which is interesting as gratifying curiosity or love of information or amusement, but that in which the class of the community have pecuniary interest or some interest by which their legal rights or liabilities are affected. The Supreme Court in K. Krishnamacharyalu v. Sri Venkateswara Hindu (AIR 1998 SC 295) held as follows: “It is not in dispute that executive instructions issued by the government have given them the right to claim the pay scales so as to be on a par with the government employees. The question is when there are no statutory rules issued in that behalf, and the institution, at the relevant time, being not in receipt of any grants-in-aid; whether the writ petition under Article 226 of the Constitution is not maintainable? In view of the long line of decisions of this court holding that when there is an interest created by the government in an institution to impart education, which is a fundamental right of the citizens, the teachers who impart the education get an element of public interest in the performance of their duties. In view of the long line of decisions of this court holding that when there is an interest created by the government in an institution to impart education, which is a fundamental right of the citizens, the teachers who impart the education get an element of public interest in the performance of their duties. As a consequence, the element of public interest requires regulation of the conditions of service of those employees on a par with government employees.” The Apex Court further made it clear that: “The private institutions cater to the need of providing educational opportunities. The teacher duly appointed to a post in the private institution also is entitled to seek enforcement of the orders issued by the government. The question is as to which forum one should approach. The High Court has held that the remedy is available under the Industrial Disputes Act. When an element of public interest is created and the institution is catering to that element, the teacher, being the arm of the institution, is also entitled to avail of the remedy provided under Article 226; the jurisdiction part is very wide. It would be a different position, if the remedy is a private law remedy. So, they cannot be denied the same benefit which is available to others. Accordingly, we hold that the writ petition is maintainable.” 11. When the teachers of private institutions are thus found to be entitled to enforce the service conditions made applicable in terms of executive instructions in that case, necessarily, students, who really form the body of that institution are also entitled to enforce the conditions regarding admissions statutorily imposed on such private educational institutions, invoking Article 226 of the Constitution of India, even if such institutions are not within the fold of Article 12. 12. In Anti Mukta Sadguru Shree Muktajee Vendas Swami Suvarna Jayanti Mahotsav Samarak Trust v. V.R. Rudani (1989 (2) SCC 691), the Apex Court held that: “If the rights are purely of a private character, no mandamus can issue. If the management of the college is purely a private body with no public duty, mandamus will not lie. These are two exceptions to mandamus. But, once these are absent and when the party has no other equally convenient remedy, mandamus cannot be denied.” The appellants have been given essentially certificate by Government to establish the colleges. If the management of the college is purely a private body with no public duty, mandamus will not lie. These are two exceptions to mandamus. But, once these are absent and when the party has no other equally convenient remedy, mandamus cannot be denied.” The appellants have been given essentially certificate by Government to establish the colleges. Admittedly, they are subjected to the restrictions and guidelines prescribed by the Medical Council of India while establishing the college and making admissions. The affiliating Universities also impose certain restrictions. Admission, fee structure, prohibition of capitation fee etc. are governed by Act 17/2004. They are thus discharging a public duty entrusted by those authorities. 13. Thus, this court can very well exercise the jurisdiction vested in it under Article 226, even if the appellants are not proved to be or not found to be State under Article 12. That the writ petitioners came to this court with an averment that they are ‘State’ is not a reason to deny them the reliefs that they are entitled from this court on the grievance substantiated; when this court can exercise the same jurisdiction on other valid reasons. 14. When professional colleges are run by body of persons like the appellants, admissions have to be made based as they are dealing with the interest of the citizen. Necessarily, the public duty enjoined on them shall be discharged in such a manner that they act squarely in accordance with the guidelines, if any, prescribed for running the institutions and regulating admissions to the course. 15. Nobody raised any contention before us that the duty enjoined on the appellants to run medical colleges upon essentially certificate from Government of Kerala, sanction from Medical Council of India and affiliation by the university concerned is not a public duty. In other words, it is conceded position that the appellants are discharging public duty. When they are discharging public duty, necessarily, they have to follow the prescriptions either made statutorily or by other means in order to regulate admissions. This is what the learned single judge had found in the impugned judgment. 16. The learned single Judge examined whether there was infraction of any statutory provision and found that Section 3(4) of the Act had been grossly violated while making selection of candidates for admission to the Management Quota by the appellants. This is what the learned single judge had found in the impugned judgment. 16. The learned single Judge examined whether there was infraction of any statutory provision and found that Section 3(4) of the Act had been grossly violated while making selection of candidates for admission to the Management Quota by the appellants. It was in the above circumstances the interference was made. Therefore, we also need not, for the purpose of considering the sustainability or otherwise of the judgment, examine whether the appellants are authorities under Art.12 of the Constitution of India or not. 17. It is now agreed by either side that the admission to the medical colleges run by the appellants shall be in terms of Section 3 of the Act. It reads as follows: Procedure for admission into self financing professional colleges:- (1) Notwithstanding anything contained in any law for the time being in force or in any judgment, decree or order of any court or any other authority or in any agreement, the admission of students into a self financing professional college shall be made on the basis of merit as provided in sub sections (2) to (6).” (2) In every self financing professional college fifty per cent of the total seats in each branch shall be Government Quota and the remaining fifty per cent shall be Management Quota. (3) Seats in the Government Quota shall be filled up based on counseling by the Commissioner for Entrance Examinations on the basis of the ranks in the Common Entrance Examination conducted by him, following the principles of reservation as ordered by the Government from time to time. (3) Seats in the Government Quota shall be filled up based on counseling by the Commissioner for Entrance Examinations on the basis of the ranks in the Common Entrance Examination conducted by him, following the principles of reservation as ordered by the Government from time to time. (4) Seats in the Management Quota shall be filled up either from the list prepared on the basis of the Common Entrance Examination conducted by the Commissioner for Entrance Examinations or from the list prepared on the basis of the common entrance test conducted by a consortium of a particular type in the State: Provided that managements shall have the option to earmark not more than 15 per cent of the seats in the Management Quota to dependents of Non-Resident Indians and in that case the admission of the candidates shall be made on the basis of the marks they have obtained in the qualifying examinations: (5) Educational qualification for admission in the self financing professional college shall be the same as are applicable to the corresponding courses in the Government colleges as may be notified by the Government from time to time. (6) Notwithstanding anything contained in sub-section (1), lapsed seats, if any, may be filled up by the management in accordance with sub-sections (4) and (5).” Sub Section (1) thus makes it clear that admission shall be “on the basis of merit as provided in sub-section (2) to (6).” That means, consideration of merit is contained in those sub-sections. Going by Sub-Section (2), 50% of the total seats in the self financing professional colleges hall be ‘Government Quota’ and the other 50% ‘Management Quota’. Admission to Government Quota shall be in accordance with Sub-Section (3). It provides that admissions to seats in the Government Quota shall be filled up “on the basis of the ranks in the common Entrance Examination conducted by” the Commissioner for Entrance Examinations (CEE), subject to the principles of reservation prescribed. Therefore, in the matter of admission to Government Quota there arises no question of deviation from the ranks contained in the State Merit List published by the CEE, otherwise than for the application of the reservation principles. 18. Admission to the seats in Management Quota shall be made by the management concerned. But their power to make such admission is restricted by Section 3(4). 18. Admission to the seats in Management Quota shall be made by the management concerned. But their power to make such admission is restricted by Section 3(4). Seats in Management Quota shall be filled up from either of the two lists made mention of in that Sub-Section, namely, the State Merit List or a separate merit list to be prepared by the consortium of the Management of professional college (Consortium List). The option to follow either of the two lists is for the management concerned. 19. It is an admitted case before us that for the purpose of admission to the Management Quota in the colleges run by the appellants, no Consortium List is available. That was whey they have issued separate notifications inviting applications for admission to the Management Quota, from the candidates included in the State Merit List, going by sub section (4), in the absence of list prepared by the consortium. It is admitted by the appellants that they have invited applications for admission to Management Quota only from the candidates included in the State Merit List. 20. In the meanwhile there arose yet another situation. Self financing professional colleges other than the appellants admitted students to the Management Quota based on the Consortium List prepared before the advent of Act 17 of 2004. But that was not accepted and acted upon by the committee headed by Justice K.T. Thomas appointed by the Government of Kerala in accordance with the mandates contained in the Islamic Academy Case. Naturally, faced with such situation, those managements approached this court with W.P.(C) No.16903/04. Disposing the said writ petition a learned Judge of this court found that, that consortium list could not have been acted upon, as it was not prepared in accordance with Act 17 of 2004, as by that time that Act had been enforced. But at the same time, a reading of the said judgment shows that, the learned Judge, while disposing of that case, felt that some provision with regard to selection of candidates from the State Merit List ought to have been made by Government and that it was appropriate for the Government to invoke the provisions in Section 12 of the Act to remove difficulties. Aggrieved by that judgment the said managements approached this court in W.A.No.1507/04. Aggrieved by that judgment the said managements approached this court in W.A.No.1507/04. By the time it came up for hearing on interlocutory order, the Government had already issued Ext.P2 order, under Section 12, making it clear that the procedure for selection of students to the management quota for the current academic year, namely 2004-05, shall be by obtaining applications from the candidates included in the list published by the Commissioner to Entrance Examination and by making a selection there from. 21. It is contended by the appellants that it was based on Ext.P2 that they issued separate notifications inviting applications from such candidates. Several candidates responded to such notifications. As Ext.P2 enables to make a selection from among such candidates, they can evolve a procedure for selection by themselves and it is in accordance with such procedure that they have prepared Ext.P3 and Ext.P4 lists. 22. The issue, therefore, to be considered, while examining the sustainability or otherwise of the impugned judgment, is whether this contention of the management can be accepted. In other words, whether the appellants do have the freedom to select the candidates disregarding the ranking in the State Merit List. 23. As already mentioned above, the procedure for admission to the seats in Government Quota in the self financing professional colleges shall be as contained in sub Section (3) and admission to management quota is covered by sub section (4) of Section 3 of the Act. It is contended that, unlike sub-section (3), sub-section (4) does not specifically mention about the admission to be made “on the basis of the ranks” in the State Merit List. The rank need be followed only for admission to the Government Quota seats and not for the Management Quota seats; because sub section (4) of section 3 concerning Management Quota does not give any importance to the ranks, as in the case of filling up of seats in Government Quota. So the absence of the words “on the basis of the ranks” in sub section (4) read with Ext.P2 enables the Appellants to follow a selection procedure of their own. So the absence of the words “on the basis of the ranks” in sub section (4) read with Ext.P2 enables the Appellants to follow a selection procedure of their own. While following such selection procedure, it may so result that a candidate having higher rank in the State Merit List gets pushed down to a lower place in the list prepared by the Appellants, as they take into account not only the rank and marks of those included in the State Merit List; but also the marks obtained by them in the academic qualification as well as that awarded at the time of interview/counseling. When all these three elements are put together, it is probable that a candidate having lower rank or mark in the State Merit List may figure at the top of the list prepared by them, in the selection based on sub section (4) of Section 3 and Ext.P2, contended the Appellants. 24. Can the Appellants adopt a new method of selection to deviate from the ranking in the State Merit List?. A reading of sub section (4) indicates that the management can select, in the absence of a Consortium List, only the candidates included in the State Merit List for admission to Management Quota. They cannot select candidates from outside that list for the year 2004-05. That was why they have invited applications only from the candidates included in the State Merit List. These facts are not disputed before us by any one. 25. The Commissioner for Entrance Examination had conducted a Common Entrance Examination for this year. Nobody has any quarrel about the method of conducting the test for the assessment of merit of the applicants who had applied pursuant to the notification issued by Government, including admission to the Government Quota seats in the self financing colleges like the appellants. When 50% of the seats in Government Quota in the self financing colleges like the appellants have to be filled up plainly based on the merit exhibited by the rank in the State Merit List, no valid ground exists for the very same management to contend that there shall be a different consideration of merit, while selecting candidates from the very same list for the other 50% of seats in Management Quota. It is admitted position that, admission to the seats in Management Quota shall be solely on the basis of merit. 26. It is admitted position that, admission to the seats in Management Quota shall be solely on the basis of merit. 26. As held in T.M.A. Foundation’s case (2002 (8) SCC 481) “It must be born in mind that unaided professional institutions are entitled to autonomy in their admission while, at the same time, they do not forgo or discard the principle time, they do not forgo or discard the principle of merit.” That is why the Act in Section 3(1) provides that; “…admission of students into a self financing professional college shall be made on the basis of merit as provided in sub-sections (2) to (6).” This criterion of merit shall be applicable for admission to both Government Quota as well as Management Quota. It is now an accepted principle all over India and approved by the Apex Court that such merit shall be assessed by a Common Entrance Examination (CEE). Necessarily merit of a candidate is demonstrated by his ranking in the list prepared based on the performance in the CEE. 27. The Act as well as the authoritative pronouncements of the Apex Court provides that the management can charge a higher rate of fee from candidates admitted in the Management Quota than that payable by those admitted in Government Quota. So admission to Management Quota may not take place strictly on ranking in the State Merit List, as several of the candidates in top rung may not be able to pay such higher fee, while those in the lower rung may be. It is with that in view, the Apex Court as well as the State Legislature provided for a Common Entrance Test by the Consortium of the Management solely for those who may be willing to pay such higher rate of fees. Such list also will exhibit the merit of such candidates based on ranking therein. Sub Section 4 of Section 3 enables the management to follow either of these two lists for admission to Management Quota. Admittedly by the Appellants there is no Consortium List and so they are following the State Merit List. They invited applications only from the candidates included in the State Merit List. Seats are limited. Applicants are many times of the number of seats available. So selection shall be made from among the applicants, all of whom have already proved their comparative merit in the CEE. They invited applications only from the candidates included in the State Merit List. Seats are limited. Applicants are many times of the number of seats available. So selection shall be made from among the applicants, all of whom have already proved their comparative merit in the CEE. Can this merit be redetermined or redefined by the appellants so that a candidate of superior merit, becomes less meritorious; in that process? Our answer is in the negative, deriving strength from the decision of the Apex Court. It was held in T.M.A. Pai Foundation’s case that: “58. For admission into any professional institution, merit must play an important role. While it may not be normally possible to judge the merit of the applicant who seeks admission into a school, while seeking admission to a professional institution and to become a competent professional, it is necessary that meritorious candidates are not unfairly treated or put at a disadvantage by preference shown to less meritorious but more influential applicants. Excellence in professional education would require that greater emphasis be laid on the merit of a student seeking admission. Appropriate regulations for this purpose may be made keeping in view the other observations made in this judgment in the context of admissions to unaided institutions. 59. Merit is usually determined, for admission to professional and higher education colleges, by either the marks that the student obtains at the qualifying examination or school-leaving certificate stage followed by the interview, or by a common entrance test conducted by the institution, or in the case of professional colleges, by government agencies.” This had been explained by the Apex Court in Islamic Academy’s case (2003 (6) SCC 697) (vide para 12) “for unaided non-minority professional colleges certain percentage of seats can be reserved for admission by the management out of those students who have passed the common test held by itself or by the State/university and for applying to the college/University for admission, while the rest of the seats may be filled up on the basis of counseling by the State Agency.” (emphasis supplied) That merit cannot be deviated because, as again found by the Apex Court in Islamic Academy’s case “ … it is in the national interest to have good and efficient professionals. The judgment provided that national interest would prevail even over minority rights.” Necessarily, so, in non-minority institutions like that of the appellants as well. The judgment provided that national interest would prevail even over minority rights.” Necessarily, so, in non-minority institutions like that of the appellants as well. 28. The criterion of merit is emphasized by the Apex Court to eradicate the menace of capitation fee and the profiteering by educational institutions. This is evident from para 16 of Islamic Academy’s case that; “Undoubtedly, the majority judgment has kept in mind the sad reality that there are a large number of professional colleges which indulge in profiteering and/or charging of capitation fees. It is for this reason that the majority judgment provides that in professional colleges admission must be on the basis of merit. As has been rightly submitted, it is impossible to control profiteering/charging of capitation fee unless it is ensured that admission is on the basis of merit.” Accordingly, the Apex Court found that; “In our view what is necessary is a practical approach keeping in mind the need for a merit-based selection.” and evolved two types of common entrance Tests (1) by the State/University and (2) by the Association of Managements. The Supreme Court in Islamic Academy’s case then made it unequivocally clear that; “If any professional college chooses not to admit from the common entrance test conducted by the association then that college must necessarily admit from the common entrance test conducted by the State.” and that “Selection of students must then be strictly on the basis of merit as per that merit list.” (emphasis supplied) Merit in a Common Entrance Test is reflected by the ranking therein. Thus the Appellants cannot deviate from the ranking of the candidates in the State Merit List, by adopting their own devices for assessing merit, in the case of the same lot of candidates who have already proved their comparative merits in the CEE test. 29. In the separate judgment by his Lordship Sinha, J. also, the dictum in Unnikrishnan’s case was reiterated. 29. In the separate judgment by his Lordship Sinha, J. also, the dictum in Unnikrishnan’s case was reiterated. “40 (b) that 50% of the seats in every professional college should be filled by the nominees of the Government or University, selected on the basis of merit determined by a common entrance examination, which will be referred to as “free seats”; the remaining 50% seats (payment seats) should be filled by those candidates who pay the fee prescribed therefore, and the allotment of students against payment seats should be done on the basis of inter se merit determined on the same basis as in the case of free seats.” (emphasis supplied) 30. Thus the dictum laid down by the Supreme Court is that when a private professional college for the purpose of admission to the seats in the Management Quota, follows the State Merit List, the merit exhibited by the ranking in the said list shall not be over looked. 31. In the case of the Appellants, there was no separate entrance examination conducted by the consortium of the managements. Necessarily the appellants shall have to follow the State Merit List going by the 1st part of Section 3(4) of the Act. Consequently, they cannot deviate from the ranking of the candidates in that list. In other words they cannot make a selection of their own, giving a goby to the ranking in the State Merit List; because as held by the Supreme Court in Islamic Academy’s case “if any professional college chooses not to admit from the common entrance test conducted by the association then that college must necessarily admit from the common entrance test conducted by the State xxxxx xxx Selection of students must be strictly on the basis of merits as per that merit list.” (emphasis supplied). 32. Even going by Ext.P2 we do not find and way out for the Appellants to adopt a different yardstick other than the ranking contained in the State Merit List. Ext.P2 has been issued exercising the powers vested in Government under Section 12 of the Act. 32. Even going by Ext.P2 we do not find and way out for the Appellants to adopt a different yardstick other than the ranking contained in the State Merit List. Ext.P2 has been issued exercising the powers vested in Government under Section 12 of the Act. Section 12 of the Act reads as follows; “Removal of difficulties (1) If any difficulty arises in giving effect to the provisions of this Act, the Government may, by order, as occasion requires, but not later than two years from the date of commencement of this Act, do anything not inconsistent with the provisions of this Act, which appears to them necessary for removing the difficulty.” It is not a residuary power conferred on Government. On the other hand it is only a power to remove difficulties for giving effect to the provisions in the Act. That was for giving effect to the provisions in the Act. That was why section 12 makes it clear that anything done by Government under Section 12 shall not be “inconsistent with the provisions of this Act.” Therefore when sub section (1) of Section 3 provides that “admission of students into a self financing professional college shall be made on the basis of the merit as provided in sub sections 2 to 6” and when the Appellants follow the State Merit List, if Ext.P2 is taken to understand that such merit shall be given a go by or shall be avoided, then Ext.P2 becomes inconsistent with the provisions in Section 3. It cannot be taken that Government has issued an order exercising the power under Section 12 to be inconsistent with the provision of sub section 3. We find no such inconsistency at all. Even if it is inconsistent we have to read it to be in harmony with the Section 3 of the Act which provides the procedure for admission. Therefore the appellants cannot take strength from Ext.P2, to adopt a different procedure, to deviate from the ranking in the State Merit List. 33. It is submitted that the purpose sought to be served by Ext.P2 is to clarify the purport of sub section (4) of Section 3. Ext.P2 mentions about selection from the candidates who have applied for seats in the Management Quota. 33. It is submitted that the purpose sought to be served by Ext.P2 is to clarify the purport of sub section (4) of Section 3. Ext.P2 mentions about selection from the candidates who have applied for seats in the Management Quota. The Advocate General has clarified that the stand of the Government is that the Appellants can choose a candidate any where from the State Merit List. This means that the Legislature has meant so, while enacting sub section (4) of Section 3. When that intention and clarification revealing that intention are disclosed to this court, sub section (4) cannot be construed or understood in a different manner, the appellants submitted. 34. We are unable to accept this contention. While considering section 3(4) “we are seeking not what parliament meant, but the true meaning of what parliament said.” Further “it would be degradation of that process if courts were to be a reflecting mirror of what the interpreting agency would say”. Even the debates and speeches in the Constituent Assembly were not fully admitted and permitted for interpreting the provisions of the Constitution of India, by the Supreme Court. The preponderance of opinions is not to heavily rely on such debates in Constituent Assembly or the Parliament to interpret constitutional provision, although they may be relevant for other purpose. But “in the rhetoric of the age the spirit in which constitutional provisions were formulated cannot be lost sight of and interpretation divorced from the words employed, cannot be resorted to, to undo what our founding fathers did enact and give to ourselves the great Constitution.” 35. An interpretation or clarification made by the executive government in Ext.P2 cannot, therefore be the guideline for interpreting the Statute. The content and purport of the words used in the provision shall have to be the prime source. Added to that is the reason to enact such Statute, in this case the rulings of the Apex Court in T.M.A. Pai’s Foundation and Islamic Academy. 36. Those decisions also give primacy to merit exhibited by the State Merit List. Ext.P2 cannot be therefore differently understood. Otherwise, it will be repugnant and inconsistent with Section 3(1) and (4). 37. Even Ext.P2 does not enable one to choose candidate anywhere from the State Merit List as submitted by the Additional Advocate General. He relies only on a Fax message sent to him by a Secretary to Government. Ext.P2 cannot be therefore differently understood. Otherwise, it will be repugnant and inconsistent with Section 3(1) and (4). 37. Even Ext.P2 does not enable one to choose candidate anywhere from the State Merit List as submitted by the Additional Advocate General. He relies only on a Fax message sent to him by a Secretary to Government. We cannot take it as a guideline to find out the intention of the Legislature, as the Legislature said is amply clear from Section 3 itself. 38. Section made mention of in Ext.P2 is choosing of candidates to few seats when applicants are many a times of the number of seats. When all the applicants had undergone a Common Entrance Examination for admission to Medical Degree Course and they find a place in the list prepared by the CEE based on their performance in that examination, it reflects their comparative merit. The selection mentioned in Ext.P2, therefore, shall be the selection of the best among the applicants, depending on such comparative merit assessed for the same purpose by an authoritative and independent agency like CEE. 39. The intention of issuing Ext.P2 order as is discernible from its Explanatory Note is; “Providing for the procedure for making admissions in the management quota seats from the merit list published by the Commissioner for Entrance Examinations” (emphasis supplied) When, thus, a merit list is already there, there arises no question of further assessment of merit. Selection shall be based on the ranking which demonstrates the merit exhibited in the examination; and nothing else. 40. The contention of the Appellants that they are enabled to conduct such selection in the nature of interview or counseling cannot be accepted for other reason also. Sub section (4) enables the management to follow the State Merit List or the Consortium List. Admission to management quota shall be from either of these two lists. If the consortium of the management had published a list based on merit, even going by sub section (4) of section 3, they cannot interfere with the ranking contained in such list. Otherwise there will be no sanctity for the Consortium List. Sub Section (4) has got two limbs, one enabling the management to follow State Merit List and the other enabling the management to follow the Consortium List. In either of the cases, the management has to follow inter se ranking in the list. Otherwise there will be no sanctity for the Consortium List. Sub Section (4) has got two limbs, one enabling the management to follow State Merit List and the other enabling the management to follow the Consortium List. In either of the cases, the management has to follow inter se ranking in the list. They cannot adopt one standard for making admission from the State Merit List and another yardstick for making admissions from the Consortium List. Section 3(4) or even the dictum laid down by the Supreme Court in T.M.A. Pai’s case or Islamic Academy’s case does not give the Appellants a power to improve upon the list prepared by the consortium of the management themselves or to meddle with that list to make admission, when they opt to follow that list. Necessarily, when the provisions relating to both the limbs in sub section (4) are read in the same sense, as it ought to be, the appellants cannot deviate from the ranking in the State Merit List in respect of the applicants seeking admission to the Management Quota. 41. It was held in para 59 of the T.M.A. Pai Foundation case that “Merit is usually determined, for admission to professional and higher education colleges, by either the marks that the student obtains at the qualifying examination or school-leaving certificate stage followed by the interview, or by a common entrance test conducted by the institution, or in the case of professional colleges, by government agencies.” Thus interview can be followed for admission to professional and higher education colleges if the management can determine the merit “by either the marks that the student obtains at the qualifying examination or school leaving certificate stage.” In every other situation merit shall be determined “by a common entrance test conducted by the institution or in the case of professional colleges by Government agencies.” So there arises no scope for the Appellants to take into account, along with ranking in State Merit List and the mark scored there, the marks said to be awarded in the interview/counseling and/or the marks for qualifying examination. 42. Section 4 of the Act provides for the fees structure to be followed in the self financing professional colleges. Necessarily, this is correlated or interrelated with the procedure provided for admission in Section 3. 42. Section 4 of the Act provides for the fees structure to be followed in the self financing professional colleges. Necessarily, this is correlated or interrelated with the procedure provided for admission in Section 3. The candidates admitted against the seats in Government Quota need pay only the fees prescribed for the corresponding course in State Government Colleges; where as the fee to be collected from the candidates admitted to management quota shall be that determined by managements, taking into account expenses for running the institutions. Only if the candidates are able to pay such higher rate of fees, they need apply for the seats in Management Quota. When a candidate with a higher rank in the State Merit List, but did not get a seat in Government Quota, offers the fees demanded by the management, there arises no question of the Appellants preferring a candidate having a rank far below the former. 43. This higher rate of fees is permitted, to eradicate the capitation fee and profiteering by the managements. Section 6 of the Act, accordingly, prohibits collection of capitation fee. In order to ensure eradication of this menace of less meritorious candidates purchasing seats, the only way out is to admit the candidates willing to pay such higher rate of fees, based on their ranking in the State Merit List (or in the Consortium List it is not available, admittedly). As held in Islamic Academy’s case “It is impossible to control profiteering/charging of capitation fees unless it is ensured that admission is on the basis of merit.” If, on the other hand, the appellants are allowed to redefine the merit assessed by the independent agency like the Commissioner of Entrance Examinations and to choose lower rank holders in the State Merit List over top rank holders like the writ petitioners, the obvious result is to permit and promote profiteering/capitation fees. Otherwise, no valid purpose is being served in avoiding a candidate proved to be more meritorious in a common entrance test. 44. Thus, if the appellants are permitted to conduct a selection process stated to be based on counseling/interview or on other considerations, to deviate from the comparative merit of the candidates as is discernible from their ranking in the State Merit List, the menace of profiteering/capitation fee sought to be eradicated will again reign the field. 45. 44. Thus, if the appellants are permitted to conduct a selection process stated to be based on counseling/interview or on other considerations, to deviate from the comparative merit of the candidates as is discernible from their ranking in the State Merit List, the menace of profiteering/capitation fee sought to be eradicated will again reign the field. 45. Admittedly by the appellants they started the colleges by forming a society sponsored by a well functioning cooperative society in the case of the 1st Appellant and in the case of the 2nd Appellant as sponsored by other well functioning cooperative societies. 46. Even according to the 1st appellant, as averred in its counter affidavit, it has been established “keeping in view medical and economic needs of the State of Kerala. It is operated on a ‘no profit no loss’ basis”. Thus it has the laudable object of satisfying public interest. It is evident from its Memorandum of Association, Ext.R4(2), that its promoters were the then Chief Minister of the State and Minister for Cooperation apart from higher officials like a Secretary to Government, Registrar of Cooperative Societies and Agricultural Production Commissioner. According to the second Appellant, as is revealed in its counter affidavit. “It is the product of a mass movement by leaders in the Cooperative Sector” and “it is only on no-profit no loss basis unlike other private professional colleges.” According to the State, as averred in its counter affidavit, “the 4th and 5th respondent institutions are established and run by Charitable Societies promoted by Government. Their objectives are thus to promote public interest. 47. When these bodies are thus without any private motivation, necessarily there is no reason for them to avoid a candidate with higher rank in the State Merit List offering the lawful fee demanded by them and to choose a lower rank holder. No public interest will be served and the very object of forming these societies for running the colleges in cooperative sector is really defeated. 48. It is also not shown to us what is the benefit that the Appellants are going to derive by giving admission to less meritorious candidates in the State Merit List, while denying admission to several more meritorious candidates. 49. Thus while selecting the candidates like the appellants in other writ appeals the appellants have violated the mandate of Section 3(1) and 3(4) of Act, 17 of 2004. 49. Thus while selecting the candidates like the appellants in other writ appeals the appellants have violated the mandate of Section 3(1) and 3(4) of Act, 17 of 2004. Necessarily, when the actions of the appellants violate the statute, this court can set aside the selection made illegally and direct a selection in accordance with law. 50. It is contended that in order to act fairly the appellants had conducted an interview or counseling as the case may be with the involvement of experts. While conducting the interview or counseling as the case may be, not only the marks obtained in the state entrance examination; but also the marks obtained in the qualifying examination and the marks obtained in the interview are taken note of. This procedure is not stated to be vitiated. There is no such allegation. So there is no reason to set aside the selection, the appellants submit. 51. When the statute prescribes a particular method of selection for admission to the Management Quota, the appellants are bound by that statute and they cannot deviate from the procedure prescribed by the statue to introduce their own procedure. In other words, sub section (4) while permitting to follow any of the two alternatives, it does not give a discretion to the Appellants to adopt their own procedure for selection from among the candidates included in the list prepared either by the Commissioner for Entrance Examination or by the Commissioner for Entrance Examination or by the Consortium. As already discussed above, the Apex Court has held in para 59 of T.M.A. Pai Foundation Case that “Merit is usually determined xxx by a common entrance test conducted xxxx in the case of professional colleges, by government agencies.” Necessarily, when the appellants are enjoined with the public duty of imparting medical education with a view to serve the society, they have to follow the fair method specified in the statute and as indicated by the Apex Court, as already mentioned supra. Infraction of the statutory mandate adopted by the Legislature in tune with the authoritative pronouncement of the Apex Court will necessarily defeat the rights conferred on the candidates having higher rank to get admission in preference to those having lower ranks. 52. The counsel for the appellants had placed for our perusal the respective notifications issued by the appellants. Infraction of the statutory mandate adopted by the Legislature in tune with the authoritative pronouncement of the Apex Court will necessarily defeat the rights conferred on the candidates having higher rank to get admission in preference to those having lower ranks. 52. The counsel for the appellants had placed for our perusal the respective notifications issued by the appellants. The notifications read that the 1st Appellant had asked the candidates to come for a counseling, where as the 2nd Appellant had asked the candidates to come directly for interview. The candidates have been told that they shall figure in the State Merit List and shall produce the evidence in that regard. The candidates have never been told that they have to undergo any method of selection in the form of interview or in the form of counseling to assess their merit again. In other words the Appellants had not made known to the candidates any manner of selection process, so as to enable them to come prepared to face that selection process. It was contended before us on behalf of the Writ Petitioners that there was no selection whatsoever as contended by the appellants. Thus in the absence of any selection process announced in the notification, the writ petitioners reasonably believed that the merit which they have already demonstrated at the entrance examination over others alone would be taken note of by the appellants. So, there arises no occasion for the writ petitioners to challenge a selection procedure after having participated in it and consequently urging any pleading regarding impropriety of selection procedure, as contended by the Appellants. 53. As already discussed above, the Supreme Court in T.M.A. Pai’s case and in Islamic Academy’s case had given due importance to the merit exhibited in the list prepared by the Commissioner for Entrance Examination to be followed when the self financing colleges are opting such list for selection to the Management Quota. So there is absolutely no scope for the appellants to adopt a selection process. 54. On the basis of the above findings, we are satisfied that the view taken by the learned single Judge that the Appellants had no option but to follow the rank in the State Merit List and that they had to select candidates for admission to the Management Quota based on such ranking is well justified. 54. On the basis of the above findings, we are satisfied that the view taken by the learned single Judge that the Appellants had no option but to follow the rank in the State Merit List and that they had to select candidates for admission to the Management Quota based on such ranking is well justified. Accordingly, selection of candidates as per Exts.P3 and P4 was rightly set aside by the learned single Judge. 55. It is at this point of time we have to take into account the argument advanced by the other appellants than the State that the equitable consideration shall be extended to them as was shown by a Division Bench, as per the interim order in W.A.No.1507/2004. That interim order has been passed in a different situation altogether and to protect only the candidates selected by other colleges based on a list prepared by the Consortium in a common entrance examination before the advent of Act 17 of 2004. It was not a case where the management had opted State Merit List. That interim order was passed having regard o the facts, circumstances and equitable considerations in that case. However, the Division Bench did not protect all the candidates; but the protection was confined only to those who figured in the State Merit List. In that writ appeal there was no consideration of the competing claims of the candidates applied pursuant to a notification issued for selection to Management Quota. The Appellants here admittedly did not follow that Consortium List. In the case of the Appellants, they have invited applications and all the candidates are now watching the result of this case and several of them have filed writ petitions in which interim orders have been passed. Those are pending with the learned single Judge for want of completion of pleadings. In such situation, when what the learned single Judge has directed is to follow the statue, especially sub section (4) of Section 3; in this case, there arises no question of equitable consideration being extended to the les meritorious candidates admitted by the Appellants, as the candidates having higher ranks are just waiting outside the colleges to get an invitation for admission. The candidates admitted by the appellants/management can find place in the selection list to be prepared in accordance with sub section (4) if they have higher ranks in the State Merit List among the total applicants. 56. It had been contended that the writ petitioners have approached this court at a belated stage and without impleading the affected parties. We find no merit in this contention because, admittedly by the appellants notification inviting applications had been published only on 24.8.2004. The select lists have been prepared on 6.9.2004 and 7.9.2004. The writ petition was filed on 8.9.2004. One candidate each from the two colleges has been impleaded in a representative capacity. This court has given permission to issue notice through publication. Publication was duly effected. Several selected candidates have got impleaded themselves in the Writ Petition. They had been heard by the learned single Judge as well. They have filed Writ Appeals and they were heard by us also. It cannot be said that there was delay or that proper parties were not impleaded. Moreover, the writ petitioners have approached this court well before the cut off date for admission fixed by the Medical Council of India. 57. In the light of the situation as discussed above, there was no necessity for the writ petitioners to challenge Ext.P2, as it has been found to be in tune with Section 3(4) and did not introduce a new manner of selection other than that provided in the said provision. 58. There is also no defect in seeking appropriate relief by the writ petitioners. The writ petitioners have sought for a mandamus commanding the appellants to effect admission to the seats in Management Quota strictly on the basis of the inter se ranking of the applicants as reflected in the State Merit List. They also consequently prayed for a declaration that the selection made for admission as per Exts.P3 and P4 is illegal and invalid. These are sufficient to put the appellants in all these appeals on notice that the grievance of the writ petitioners was against picking and choosing of candidates for admission to Management Quota, disregarding their proved comparative merit based on the ranking in the State Merit List. Moreover, while exercising the jurisdiction under Art.226, the High Court can, if necessary, mould the relief even, to secure justice, while meeting a peculiar situation. Moreover, while exercising the jurisdiction under Art.226, the High Court can, if necessary, mould the relief even, to secure justice, while meeting a peculiar situation. Such technical contentions have been rightly rejected by the learned Single Judge. 59. We feel astonished why the State Government has preferred an appeal in a case like this. Learned single Judge had directed the appellants that, while making admission to the seats in Management Quota, State Merit List shall be followed, i.e. merit on the basis of the ranking in a list prepared by the State themselves. That list had been prepared spending a lot of money from state coffers and lot of labour by the State Government themselves. So State shall be the last authority to say that ranking in that list shall not be followed. When this court directed that ranking in a list prepared by the State shall be followed by the appellants promoted by Government themselves, as admitted in their counter affidavit, the State ought to have taken it as a judgment to be welcomed, rather than attacking in an appeal at public costs. To repeated queries, it is submitted by the Additional Advocate General that the view of the Government is that while making selection for admission to the Management Quota in a self financing college, management can choose a candidate ‘from any where’ in the State Merit List. That means the Appellants can prefer a person with lower rank, denying admission to a person having higher rank, when both of them are ready to pay the same fee demanded by the management. The learned Judge has not set aside any order or action of the Government. We fail to understand how the Government should feel aggrieved, in the above circumstances. We feel that Government had not been properly advised on this aspect. 60. We see from Law reports, that in Islamic Academy’s case, the State of kerala was represented before the Supreme Court, by the Advocate General of Kerala. In para 11 of the judgment, the submissions “on behalf of the Union of India, various State Governments and students” with respect to the majority view in Unnikrishnan’s case have been adverted to. 60. We see from Law reports, that in Islamic Academy’s case, the State of kerala was represented before the Supreme Court, by the Advocate General of Kerala. In para 11 of the judgment, the submissions “on behalf of the Union of India, various State Governments and students” with respect to the majority view in Unnikrishnan’s case have been adverted to. One among such submissions recorded by the Supreme Court is as follows: “it is submitted that the said paragraph provides that it is permissible for the University or the Government to require a private unaided professional institute to provide for a merit-based selection. It was submitted that paragraph 68, read with paragraph 59, lays down that in unaided professional colleges merit is to be determined by a common entrance test conducted by Government agencies.” (emphasis supplied) Thus the State Government’s views were that: “merit is to be determined by a common entrance test conducted by government agencies.” The State of Kerala is not seen to have made any different submission or taken a different stand. The said stand is translated into statute in Section 3(1) of the Act by the State Legislature that admissions including to the Management Quota shall be on the basis of merit as provided in Section 3(4), which gives freedom to the colleges to opt and follow the State Merit List. When the list is followed by the appellants, how can the Government permit them to deviate from the merit exhibited by the ranking in that list and said along with the management. 61. Had the Government adverted to this important aspect, we feel that no Government with a democratic sense can contend that merit as per the State Merit List need not be followed by the appellants, who are managing colleges constructed from out of the amount collected from the public fund and out of the commission given on Indira Vikas Pathra and when the promoters of the society which runs one among the appellants colleges included the Chief Minister of the State and the Minister for Cooperation. We also feel it therefore necessary to direct the Chief Secretary to examine how the instruction that management can give admission to Management Quota from any where in the State Merit List, happened to be given to the Advocate General and the justification to file appeal by the State. 62. We also feel it therefore necessary to direct the Chief Secretary to examine how the instruction that management can give admission to Management Quota from any where in the State Merit List, happened to be given to the Advocate General and the justification to file appeal by the State. 62. It is now high time for every one to understand that education plays a cardinal role in transforming a society into a civilized nation. It accelerates the progress of the country in every sphere of national activity. No section of the citizens can be ignored or left behind, because it would hamper the progress of the country as a whole. It is the duty of the State to do all it could, to educate every section of citizens who need a helping hand in marching ahead along with others. On the other hand, the State shall not be instrumental in avoiding meritorious candidates and to foster one to choose the candidates proved to be less meritorious, when State themselves had done such assessment of merit independently. 63. The learned single Judge passed the impugned judgment on 27.9.2004. With the consent of the counsel, as all of them were present, we took up the matter for final hearing. The counsel for the Medical Council of India brought to our notice the decision of the Supreme Court in Medical of India V. Madhu Singh and Others (2002 (7) SCC 258) and the regulation framed by the Medical Council of India that the admission to medical colleges shall be completed by 30th of September in each academic year. We did not know, at the close of the day, as hearing was not completed, what shall be the view we might take as to the sustainability or otherwise of the impugned judgment. Therefore, in order to protect the interest of all concerned including those admitted and those aspiring for admission, as the last date fixed by the Medical Council of India was to expire on 30.9.2004, we made an interim arrangement. Accordingly, we directed that the candidates who have already applied to the appellants, having ranks higher than that of the candidates admitted by them shall approach the appellants colleges on 30.9.2004 with the fees, for getting admission and that admission made on that day shall be provisional and subject to further orders in the writ appeal. Accordingly, we directed that the candidates who have already applied to the appellants, having ranks higher than that of the candidates admitted by them shall approach the appellants colleges on 30.9.2004 with the fees, for getting admission and that admission made on that day shall be provisional and subject to further orders in the writ appeal. When the hearing continued on 30.9.2004, it was brought to our notice that the appellants had not made proper arrangements to grant admission as directed. Consequently we passed a further order on 30.9.2004, deputing an officer from this court to conduct provisional admission in the Cooperative Medical College, Kochi and directing the district Collector, Kannur to make arrangements to make provisional admission to Academy of Medical Sciences, Pariyaram. Now we are told that several candidates have remitted fees and have got provisional admission based on our orders dated 29.9.2004 and 30.9.2004. 64. As we have upheld the impugned judgment and confirmed the setting aside of the admission already conducted by the appellants, we direct the appellants to finalize the list of candidates from among those who were admitted by them originally and from those who were provisionally admitted on 30.9.2004 based on the said interim orders and a fresh list for admission to Management Quota shall be drawn up solely based on the ranking of those candidates in the State Merit List provided that; i. The candidates have ranking in the State Merit List. ii. They have submitted application pursuant to the notification issued by the appellants, concerned. iii. They had attended the counseling or interview, as the case may be, on the respective dates fixed by the Appellants. iv. They have obtained initial admission or provisional admission on or before 30.9.2004. v. The admission of the candidates viz., Haridas P. Mani and Devi Priya R.S. (respondents 6 and 7 in the writ petition) in the Ist Appellant College and that of Reshmi S. in the 2nd Appellant College are not disturbed, as those admission were not set aside as per the impugned judgment. vi. Finalisation of the admission to the rest of the seats in management quota shall be strictly based on the list so prepared. In case, a candidate on the top of the list so prepared is unable to attend the course for any reason, the next in the list shall be offered that seat. vi. Finalisation of the admission to the rest of the seats in management quota shall be strictly based on the list so prepared. In case, a candidate on the top of the list so prepared is unable to attend the course for any reason, the next in the list shall be offered that seat. The appellants shall finalise the respective list within two weeks from today, and shall regularize the provisional admissions. On completion of the said two weeks, the details of the candidates thus admitted shall be furnished to the Registrar of this Court/District Collector, Kannur and the Registrar/District Collector, Kannur shall thereupon hand over the fees remitted by such candidates to the respective college management. The balance fees shall be refunded to the respective candidates as and when they apply to the Registrar/District Collector, Kannur, as the case may be. Appeals are dismissed.