JUDGMENT Hon’ble Rajan Roy, J.—Heard. The rights of minorities to run and establish educational institutions of their choice under Article 30 of the Constitution of India, the regulation of such rights by the State and its extent, are the issues involved in these writ petitions. REFERENCE 2. Learned Single Judge of this Court perceiving conflicting opinions expressed by various Division Benches of this Court on certain issues has referred the following questions for our consideration. “(i) As to whether the regulatory measures, in the matter of admissions to unaided recognized minority institutions, to be taken by the State Government will be confined to the extent of ensuring fair and transparent procedure of admission to be adopted by the minority institutions without compromising with the merit in admissions to the courses of higher education, which will include professional and technical education, or it will extend to the extent of compelling the minority institutions to ‘seat haring’ or appropriation of quota of seats with the State Government, even in absence of any ‘consensual arrangement between the unaided private minority institutions and the State’? (ii) Which of the Division Bench judgments referred to herein above, either the judgment dated 25.9.2014 (Special Appeal Defective No. 376 of 2014) and the judgment dated 29.8.2011 (Special Appeal No. 605 of 2011) or the judgment dated 10.3.2017 in the case of Sankalp Institute of Education (supra), enunciates the correct law in respect of right of unaided recognized minority institutions to admit students in the background of the law pronounced by Hon’ble Supreme Court in the cases of T.M.A. Pai (supra) and P.A. Inamdar (supra) ? (iii) What is the extent of authority/power of the State Government to regulate admissions of students to unaided recognized minority institutions imparting education in the courses of higher education, which includes professional and technical courses, in view of the protection available to minority institutions under Article 30(1) of the Constitution of India?” FACTUAL BACKGROUND 3. All the petitioners before us are private unaided minority professional institutions imparting teaching in BTC course now referred as D.El.Ed (Diploma in Elementary Education), which is indisputably a professional course based on which appointments of Assistant Teachers are made in Basic Schools upto Class VIII. One of the intervenors before us is an Association of Unaided Minority Unani and Ayurvedic Colleges of U.P. which had filed a Petition bearing Misc. One of the intervenors before us is an Association of Unaided Minority Unani and Ayurvedic Colleges of U.P. which had filed a Petition bearing Misc. Single No. 22554 of 2017 before the learned Single Judge after the reference had been made and has intervened herein as the questions referred to us may have a bearing on its rights. Another intervention has been made by Sri Sandeep Dixit, Advocate. Further Sri Anand Mani Tiwari Advocate was also heard considering the importance of the issues involved. The applications for interventions are accordingly disposed of with the right of hearing already granted. 4. Before adverting to the above referred questions, it would be appropriate to give a brief back-ground leading to the reference as, it would help understand the controversy in a better perspective. 5. After the pronouncements of the Supreme Court in P.A. Inamdar and others v. State of Maharashtra and others, (2005) 6 SCC 537 , the State Legislature enacted ‘The Uttar Pradesh Private Profession Educational Institutions (Regulation of Admission and Fixation of Fee) Act, 2006 (hereinafter referred to as ‘the Act, 2006') which was published in the gazette on 8.9.2006 but came into force w.e.f. 10.7.2006. The said Act, provides for regulation of admission in private professional educational institutions, aided and unaided both, however, by virtue of Section 2 thereof minority institutions have been excluded from its purview. The said Act prescribes a Common Entrance Test (in short referred to as ‘CET’) for admission and also lays down its modalities. 6. The State Government issued a Government Order dated 22.7.2013 laying down the procedure for admission to such professional courses as B.T.C./D.El.Ed. In paragraph 13 thereof, a provision was made for apportionment of seats allotted to professional educational institutions, including minority institutions, by the State, to the extent of 50% of seats, meaning thereby the State would provide 50% students based on the CET and such institutions would have to admit them thereby restricting the rights of minority institutions to admit students as per their choice to 50% of their seats. 7. This paragraph 13 of the Government order was challenged before a Single Judge of this Court in Committee of Management Adarsh College of Education v. State of U.P. through its Principal Secretary, 2014(6) ADJ 162 (LB) and other connected petitions and was upheld vide judgment and order dated 28.5.2014. 7. This paragraph 13 of the Government order was challenged before a Single Judge of this Court in Committee of Management Adarsh College of Education v. State of U.P. through its Principal Secretary, 2014(6) ADJ 162 (LB) and other connected petitions and was upheld vide judgment and order dated 28.5.2014. On a challenge being made in Special Appeal (Defective) No. 376 of 2014 (National Mahili Mahavidyalaya Balramur 1933 (M/S)2014 v. State of U.P. Throu.Its Prin. Secy. Basic Edu. Lko. and others), a Division Bench of this Court set aside the Single Judge decision and held that the appellant-petitioner being a minority institution is free to admit students of its own choice, however, the merit of the students could not be ignored. 8. Inspite of it, another challenge was made before another Single Judge of this Court in Writ Petition No. 2005 (MS) of 2015 (City College of Management Lucknow v. State of U.P. and Writ Petition No. 1400 (MS) of 2005 (Eram Girls Degree College v. State of U.P. and others which were allowed relying upon the Division Bench judgment rendered in National Mahila Mahavidyalay (supra) after referring to the decisions in the case of T.M.A. Pai Foundation and others v. State of Karnataka and others, (2002) 8 SCC 481 , P.A. Inamdar (supra) as also Pramati Educational and Cultural Trust and others v. Union of India and others, (2014)8 SCC 1 . The Single Judge while holding paragraph 13 of the Government order dated 22.7.2013 to be hit by the judgment of the Supreme Court referred hereinabove as also Article 30(1) of the Constitution of India further observed that all unaided minority institutions including the petitioners shall advertise the seats and draw the merit list in terms of the procedure prescribed in the Government order, adhere to the preference in respect of eligible candidates belonging to minority community, shall forward the list of selected candidates to the examination body before commencement of academic session and would not indulge in any practice which may entail any consequence of losing minority status. Subject to above, prayer clause 2 was also allowed with liberty to the State Government to compel the unaided institutions not to compromise with the merit and to follow transparent procedure. The said institutions were thus permitted to fill all seats allotted to them on their own, subject to the above. 9. Subject to above, prayer clause 2 was also allowed with liberty to the State Government to compel the unaided institutions not to compromise with the merit and to follow transparent procedure. The said institutions were thus permitted to fill all seats allotted to them on their own, subject to the above. 9. In pursuance to this judgment, as also the Division Bench Judgment in appeal, referred above, a Government order dated 10.6.2015 was issued by the State Government by which paragraph 13 of the Government order dated 22.7.2013 was substituted thereby making a provision, inter alia, for allowing the minority institutions to themselves advertise their seats for admission, subject to the condition that merit shall be assessed by them as per other conditions mentioned in the said Government order dated 22.7.2013. Other procedures were also laid down in this regard. 10. Thereafter, a Petition bearing Writ-C No. 60387 of 2016 (Shama Praveen and others v. State of U.P.) was filed before this Court at Allahabad with the prayer that the petitioner No. 2 be treated as a minority institution and it be allowed to fill up 100% of the seats allotted to it for D.El.Ed. course from 2016-17 onwards based on its own selection procedure. The petitioner sought the benefit of the Government order dated 10.6.2015 in this regard. Learned Single Judge took the view that in view of the decisions of the Supreme Court in the case of T.M.A. Pai Foundation (supra), P.A. Inamdar (supra) and Islamic Academy (supra) a minority institution could not fill up 100% seats allotted to it on its own and it had to subject itself to a Centralized process completely. It held that the decision of the Supreme Court in Pramati Education and Cultural Trust (supra) pertained to Primary Schools and did not apply to institutions imparting technical/professional Education at the graduate and post-graduate level. It also observed that the Division Bench judgment in National Mahila Mahavidyalaya case had decided the matter on the concession of parties, therefore, it was not a binding precedent, accordingly, looking into the public interest involved, it proceeded to stay the effect and operation of the Government order dated 10.6.2015 with the further observation that all minority institutions in the State imparting D.El.Ed. shall be subjected to centralized counselling for admitting students as applicable to other institutions, however, 50% of the sanctioned strength shall be filled up by them on their own from the minority community positively. For the reasons mentioned in the said interim order dated 9.2.2017 it ordered the Registry to register the writ petition as a Public Interest Litigation and place it before Hon’ble the Chief Justice for nomination of a Bench to hear it. In compliance of the aforesaid order the State Government issued another Government order dated 25.5.2017 in its terms, meaning thereby, the position stood restored back as it was when paragraph 13 of the Government order dated 22.7.2013 was in force, whereby minority institutions could fill up only 50% seats of their own and the remaining had to be filled up from the students provided by the State from the Centralized Test. 11. It is this Government order dated 25.5.2017 which was put to challenge before the Single Judge Bench at Lucknow in these petitions, wherein, during the course of hearing, noticing the conflicting opinion expressed by different Benches as aforesaid, as also other opinions expressed by other Benches including a Division Bench in the case Sankalp Institute of Education Ghaziabad U.P. v. State of U.P. and others, Special Appeal No. 92 of 2017 and Special Appeal No. 93 of 2017 Faiz-E-Azam Modern Degree College and others v. State of U.P. and others), which, according to the learned Single Judge, took a view contrary to the earlier Division Bench in National Mahila Mahavidyalaya (supra) case, as also, a Single Judge Bench decision in the case of Committee of Management of Krishna Institute of Technical Education v. State of U.P. and others bearing W.P. No. 7017 (MS) of 2016 decided on 16.1.2016, referred the matter to a larger Bench. 12. The learned Single Judge also referred to a Division bench Judgment in this regard rendered in Special Appeal No. 605 of 2011 (Haji Ismail Degree College v. State of U.P.) wherein it had been held that minority institution having been excluded from the purview of the Act, 2006 they are free to admit students of their own choice of-course subject to the condition that merit of the students cannot be ignored. 13. This is how these matters have reached us. 14. 13. This is how these matters have reached us. 14. It is against the aforesaid background that we have heard the arguments of the learned counsel on the questions referred to us. 15. As regards question No. 1 the contention of Sri Manish Kumar learned counsel for the petitioners was that in view of paragraph 132 of P.A. Inamdar it has necessarily to be answered in the negative i.e. seat sharing with the State was impermissible. In this context he also referred to paragraph 128 of P.A. Inamdar. 16. He further contended that in view of paragraph 93 of P.A. Inamdar, Article 30(1) had a very wide amplitude, therefore, any interference by the State in the right of the minority institutions to admit students of its own choice including non-minority students, is not acceptable. 17. As regards question No. 2 his submission was that the Division Bench judgment of Sankalp Institute, as it was based on consensual arrangement of seat sharing and also in view of fact that it related to B.Ed. Course, was not applicable. It was contrary to the decision of the Supreme Court in the case of P.A. Inamdar. According to him the judgment was per-in-curium. The decision in National Mahila Mahavidyalay and Hazi Ismail case laid down the law correctly. 18. As regards question No. 3 he referred to various paragraphs of the judgment of the Supreme Court in T.M.A.Pai and P.A. Inamdar to contend that a ‘CET’ was permissible only for an aided minority institution and not an unaided minority institution. In this regard he relied upon paragraph 149 of T.M.A. Pai alongwith paragraphs 125 and 129 of P.A. Inamdar. He also placed heavy reliance on paragraph 109 and 110 of P.A. Inamdar to contend that second part of paragraph 68 of T.M.A. Pai relating to ‘CET’ was not the law declared by the Supreme Court but only a suggestion or illustration of the possible mechanisms which could be adopted for ensuring merit etc., therefore, ‘CET’ was not mandatorily prescribed. He also contended that in view of para 137 of P.A. Inamdar, it was permissible for individual minority institutions to have their own admission process and the State could intervene only when such process failed the triple test and not otherwise. He also contended that in view of para 137 of P.A. Inamdar, it was permissible for individual minority institutions to have their own admission process and the State could intervene only when such process failed the triple test and not otherwise. In addition, he referred to paragraphs 54, 55 and 69 of T.M.A. Pai to contend that regulatory measures are to ensure maintenance of proper academic standard, atmosphere and infra-structure, including qualified staff and for prevention of maladministration. 19. In his written arguments he also contended that regulations can be made for indicating the quality of teachers by prescribing minimum qualification, the course of study and curriculum, existence of infra-structure. Regulatory measures must pertain to academic and educational matters, welfare of students and teachers, but how a private un-aided institution is to run is a matter of administration to be taken care of by the Management of the institution and not by the State. In this regard he referred to paragraphs 107, 115, 116, 136 and 137 of T.M.A. Pai. He referred to the answer to question No. 5(c) in paragraph 161 of T.M.A. Pai also in this regard. Paragraph 123 and 124 of Islamic Academy were also referred. According to him the same had been reaffirmed in paragraph 103 of P.A. Inamdar. 20. Based upon the aforesaid he contended that the Act, 2006 was consciously made by the State Legislature to exclude the minority institutions from its purview, which prescribed the holding of ‘CET’, therefore, the impugned Government orders were contrary to law especially as they could not supersede statutory provisions. 21. He stated that there was no statutory provision prescribing ‘CET’ for the petitioner institutions. As regards the regulations framed by National Council for Teachers Education (herein after referred as ‘NCTE’) relied upon by the State which speak of the procedure for admission prescribed by the State to be followed, the same were also not applicable as the Act 2006 was referable to such policy of the State which excludes the minority institutions. 22. The decision of the Supreme Court in Modern Dental case was also not applicable as it related to legislative enactment pertaining to the State of Madhya Pradesh which was applicable to minority institutions also, whereas, in the State of U.P., the Act, 2006 is not so applicable. 22. The decision of the Supreme Court in Modern Dental case was also not applicable as it related to legislative enactment pertaining to the State of Madhya Pradesh which was applicable to minority institutions also, whereas, in the State of U.P., the Act, 2006 is not so applicable. He also contended that the said Constitution Bench decision was contrary to the law declared by the 11 Judges Bench in T.M.A. Pai case and 7 Judges Bench in P.A. Inamdar. In this regard he referred to para 20 of the T.M.A. Pai. According to him the petitioner’s institution was following the triple test in making admissions, therefore, State intervention was uncalled for. 23. Sri S.K. Kalia learned Senior Advocate appearing for the intervenor, an Association of minority institutions imparting education in courses of Ayurvedic and Unani medicine which had been holding entrance test for admission to its member institutions for the past several years contended that the law permitted to hold such test by the institutions, therefore, State intervention by means of issuance of a Government order is uncalled for and unconstitutional as also contrary to the decision in P.A. Inamdar. He also contended that the State could intervene only if the admission process being followed by an Association of institution failed the triple test and there was material to prove it. He contended that the right of minority institutions to establish and administer educational institutions of their own choice included not only the right to admit students but also the right to hold selections for admission as without such a right it would be an empty formality which would not be in consonance with Article 30(1) of the Constitution. He also contended that the Supreme Court in its decisions had permitted regulatory measures by way of appropriate legislation or regulations, therefore, such a measure by the State by issuance of a Government order was not sustainable in law. 24. He contended that his Association comprised of 10 of the 11 institutions imparting education in the field of Ayurved and Unani medicine in the State of U.P., therefore, these minority institutions could hold their own entrance test as they had been doing so for the past several years and as there was no allegation of maladministration, the State could not intervene. He took us through various paragraphs of T.M.A. Pai, Islamic Academy and P.A. Inamdar in this regard. 25. He took us through various paragraphs of T.M.A. Pai, Islamic Academy and P.A. Inamdar in this regard. 25. He also contended that the minority institutions having been excluded from the purview of the Act, 2006, which alone contained a provision for holding ‘CET’, there was no other statutory provision prescribing a ‘CET’ for minority institutions, as such, the Government order impugned in his petition being contrary to it was not sustainable. 26. He also contended that there is a statutory provision in the Medical Council of India Act and the Regulations made thereunder for holding of ‘CET’ for M.B.B.S. etc. but there is no analogous provision in the said Act or any other Act that may be applicable, for holding ‘CET’ for admission to Ayurved and Unani medicine Courses. These aspects, according to him, have been ignored by the State which had acted arbitrarily and unconstitutionally. 27. Sri Kalia also submitted that in Modern Dental College, there was a legislative enactment permitting ‘CET’ for minority institutions also, which is not the case here. Section 2 of the Act 2006 excluded minority institutions from its purview. The challenge before the Supreme Court in the said case was in the context of violation of Article 19(1) (g) and not Article 30. Moreover there was material to prove failure of triple test in the said case which is absent in his case, therefore, the said judgment is inapplicable. 28. Sri Sandeep Dixit learned counsel also appearing for an intervenor adopted the arguments of Sri Kalia. He also referred to Article 15(5) to contend that the impugned action was not sustainable. He referred to paragraphs 132, 136, 137, 144, 145 and 151 of P.A. Inamdar as also 168 of T.M.A. Pai. He also referred to the Indian Medicine Central Council Act, 1970. 29. Sri Anand Mani Tewari learned counsel who appeared as an intervenor submitted that the phrase “administer Institutions” in the context of Article 30 of the Constitution implies to manage the affairs of the institution, it does not include the question of standard of education as these standards derive their sustenance from the idea of progress and advancement of the nation and the people who inhabit it. Adherence to standards of excellence being a Constitutional imperative under Article 51-A(j), minority educational institutions cannot be short shrift to any measure that is designed to promote it or more importantly refuse to follow what other educational institutions of majority community are scrupulously confirming to. Qua the question of regulations designed either to up hold excellence in educational practice or promote advancement of the office and its citizenry, the minority educational institutions and majority educational institutions stand on the same pedestal. In support of the above he relied upon the decision of the Supreme Court in the case of State of Kerala etc. v. Very Rev. Mother Provincial etc., (1970) 2 SCC 417 . According to him Regulations relating to maintenance of educational standards actuated/driven by public policy that is progress of the Nation are constitutionally permissible even in respect of an un-aided minority institutions. In this regard he referred to the decision of the Supreme Court in the case of The Ahamdabad St. Zavier Society College v. State of Gujrat and another, (1974) 1 SCC 717 . 30. According to him the idea behind Article 30(1) of the Constitution was the wholesome development of minority community and strengthening the unity of the country. The minorities cannot claim an absolute right to administer and manage educational institutions, certainly not, to a right of maladministration. The alleged rights under Article 30 are not unfettered. Regulations are permissible as long as they do not affect the minority character of the institution. 31. Sri H.G.S. Parihar, learned Senior Advocate appearing for some of the petitioners contended firstly; that the reference itself was not required in view of the direct decision of the Supreme Court on the issues involved. He also contended that the impugned Government order was violative of the rights of the minority institutions to admit as many non minority students as they wanted. According to him the decision in Sankalp Institute was not a good law. In view of Section 2 of the Act, 2006 minority institutions could not be subjected to ‘CET’ as there is no such provision under which this could be done. The NCTE Regulations did not compel the institutions to make admission on the basis of ‘CET’. According to him the Division Bench judgments in National Mahila Mahavidyalay and Hazi Ismail case are in consonance with the dictum of the Supreme Court in T.M.A. Pai Foundation. 32. The NCTE Regulations did not compel the institutions to make admission on the basis of ‘CET’. According to him the Division Bench judgments in National Mahila Mahavidyalay and Hazi Ismail case are in consonance with the dictum of the Supreme Court in T.M.A. Pai Foundation. 32. Sri Kuldeep Pati Tripathi, learned Additional Advocate General assisted by Sri Ramesh Pandey learned Chief Standing counsel contended firstly; that the Regulations 2014 and its Appendix 2 made under the NCTE Act, 1993 provide that admission shall be made on merit on the basis of marks obtained in the qualifying examination and/or in the entrance examination or any other selection process as per the policy of the State Government/U.T. Administration and the University. These Regulations, 2014 have not been annexed with the writ petition. Referring to the order annexed by the petitioner as Annexure 10 (Writ Petition No. 18243 (MS) of 2017) which is its order of recognition, he contended that point No. 4 of the said order clearly provides that recognition is subject to fulfillment of all such other requirements as may be prescribed by other regulatory body like University Grant Commission, affiliating University/Body the State Government etc. as applicable, therefore, the Government order pertaining to ‘CET’ is clearly referable to said statutory provisions and the conditions of recognition, especially in view of Section 12(e) of the NCTE Act, 1993 delineating the functions of the NCTE. Relying on the aforesaid he contended that the petitioner has consented to seat sharing, therefore, it was a consensual arrangement. ‘CET’ was also applicable in view of the above statutory provisions. 33. He also contended that the advertisement issued by individual minority educational institutions for admission were farcical. He placed before the Court one such advertisement which we have perused and are of the view that if it is correct then certainly it is a mere sham. 34. He further contended that right of a minority institution is only to admit the students of their choice which they can still do from the merit list prepared on the basis of ‘CET’ and the Centralized Counselling held thereafter, therefore, this right is not violated in any manner. He contended that minority institutions are not following the law nor the Government orders and are acting on their whims and thereby compromising merit and the larger public interest. 35. He contended that minority institutions are not following the law nor the Government orders and are acting on their whims and thereby compromising merit and the larger public interest. 35. Sri Ramesh Pandey, learned Chief Standing Counsel also made submissions on the same line. He submitted that the Government is well within its power to issue a Government Order prescribing CET which did not violate the law of the land rather was in consonance with it. He also contended that in view of Articles 13 and 162 of the Constitution, the State was well within its power to issue a Government Order regulating admission process in professional institutions including minority institutions, although, in the context of D.El.Ed. Courses he contended that these orders are referable to the NCTE Act and the Regulations made thereunder. He contended that the Government order subserves the larger public interest and is in consonance of the law declared by the Supreme Court especially in Modern Dental College case which is binding on all, therefore, it need not be interfered as it subserves the larger good and national interest which is paramount. The fact that Section 2 of the Act, 2006 excludes the minority institution does not mean that they cannot be subjected to regulatory measures including ‘CET’ in compliance of the dictum of the Supreme Court especially in view of the observations made by the Division Bench in Sankalp Institute. At best the Act, 2006 indicates the understanding of the law at the relevant time. It does not bar the issuance of a Government order in compliance of the decisions of the Supreme Court specially the order dated 9.5.2016 referred in the Government order impugned in the petitions of Shri Kalia. He contended that not only seat sharing but ‘CET’ was also permissible and the State had acted within its regulatory powers. 36. Essentially this Full Bench is required to consider and answer the questions referred to it, in the light of Article 30(1) of the Constitution and its scope as evidenced in the precedents of the Supreme Court, therefore, we proceed to do so. Certain ancillary issues have also been raised which shall also be considered by us. Article 30- its scope 37. The right to establish and run an educational Institution is available to minority and non-minority communities under Article 19 (1)(g) of Constitution of India. Certain ancillary issues have also been raised which shall also be considered by us. Article 30- its scope 37. The right to establish and run an educational Institution is available to minority and non-minority communities under Article 19 (1)(g) of Constitution of India. However, as an additional protection Article 30 of the Constitution gives such rights exceptionally and especially to the minority community. The right of the minority community, whether linguistic or religious, to establish and administer educational institutions of their choice is undeniable but what exactly is meant by such a right needs to be understood before proceeding to answer the questions referred to us. 38. The right to administer consists of four principal matters; first is the right to choose its managing or Governing body; secondly; the right to chose its teachers, thirdly; is the right not to be compelled to refuse admission to students. In other words the minority institution wants to have the right to admit students of their choice subject to reasonable regulations about academic qualifications. Fourth; is the right to use its property and assets for the benefit of its own institution The Ahmedabad St. Xaviers College v. State of Gujarat and another, (1974) 4 SCC 17. 39. Likewise in Paragraph 118 of P.A. Inamdar, with reference to T.M.A. Pai Foundation, it was held that such right comprised of the following rights; (a) to admit students; (b) to set up a reasonable fee structure; (c) to constitute a governing body; (d) to appoint staff (teaching and non-teaching); and (e) to take action if there is dereliction of duty on the part of any of the employees. 40. The right under Article 30 to establish a minority institution must primarily cater to the requirement of that minority and the right to admit students is essentially the right to admit students of their own minority community so as to conserve and preserve its minority character and to achieve the twin object under Article 30(1): (i) to conserve its religion or language, as the case may be, and (ii) to give a thorough, good or general education to children belonging to such minority. A sprinkling of non-minority students or of minority students of another State would be permissible and would not by itself take away the minority character of such institutions. A sprinkling of non-minority students or of minority students of another State would be permissible and would not by itself take away the minority character of such institutions. In paragraph 93 of P.A. Inamdar, it was observed that “right to establish and administer an educational institution of their choice” gives the right to admit students of its own choice. It can, as a matter of its own free will, admit students of non-minority community, however, non-minority students cannot be forced upon it. The only restriction on the free will of the minority educational institution admitting students belonging to a non-minority community is, as spelt out by Article 30 itself, that the manner and number of such admissions should not be violative of the minority character of the institution. In Paragraph 12 of the judgment in P.A. Inamdar referring to Para 14 of T.M.A. Pai Foundation case it has been held that unaided professional minority institutions (not an aided one) are free to admit all students of their own minority community if they so choose to do. So long as the institutions achieve and continue to achieve the objects referred hereinabove, it would remain a minority institution. This is what has been held in P.A. Inamdar (supra). 41. The above statement explains as to what is meant by the rights or protections referred in Article 30 of the Constitution of India. The violations of rights under Article 30 as alleged have to be considered in the light of the above statement of law. Now to consider the questions referred to us. “Question No. (i) 42. In essence the issue referred to us is as to whether the State Government can apportion any of the seats allotted to a private unaided professional minority institution imparting education in a professional course for being filled up by it i.e. by not only holding selection for admission against such seats but also providing students to the minority institutions who would compulsorily have to be admitted by the latter. This issue is no longer res integra. One only needs to refer paragraph 124 to 130 and 132 of P.A. Inamdar’s case in this context, which read as under : “124. So far as appropriation of quota by the State and enforcement of its reservation policy is concerned, we do not see much of difference between non-minority and minority unaided educational institutions. One only needs to refer paragraph 124 to 130 and 132 of P.A. Inamdar’s case in this context, which read as under : “124. So far as appropriation of quota by the State and enforcement of its reservation policy is concerned, we do not see much of difference between non-minority and minority unaided educational institutions. We find great force in the submission made on behalf of the petitioners that the States have no power to insist on seat-sharing in the unaided private professional educational institutions by fixing a quota of seats between the management and the State. The State cannot insist on private educational institutions which receive no aid from the State to implement the State’s policy on reservation for granting admission on lesser percentage of marks, i.e. on any criterion except merit. 125. As per our understanding, neither in the judgment of Pai Foundation nor in the Constitution Bench decision in Kerala Education Bill, which was approved by Pai Foundation, there is anything which would allow the State to regulate or control admissions in the unaided professional educational institutions so as to compel them to give up a share of the available seats to the candidates chosen by the State, as if it was filling the seats available to be filled up at its discretion in such private institutions. This would amount to nationalization of seats which has been specifically disapproved in Pai Foundation. Such imposition of quota of State seats or enforcing reservation policy of the State on available seats in unaided professional institutions are acts constituting serious encroachment on the right and autonomy of private professional educational institutions. Such appropriation of seats can also not be held to be a regulatory measure in the interest of minority within the meaning of Article 30(1) or a reasonable restriction within the meaning of Article 19(6) of the Constitution. Merely because the resources of the State in providing professional education are limited, private educational institutions, which intend to provide better professional education, cannot be forced by the State to make admissions available on the basis of reservation policy to less meritorious candidate. Unaided institutions, as they are not deriving any aid from State funds, can have their own admissions if fair, transparent, non-exploitative and based on merit. 126. Unaided institutions, as they are not deriving any aid from State funds, can have their own admissions if fair, transparent, non-exploitative and based on merit. 126. The observations in paragraph 68 of the majority opinion in Pai Foundation, on which the learned counsel for the parties have been much at variance in their submissions, according to us, are not to be read disjointly from other parts of the main judgment. A few observations contained in certain paragraphs of the judgment in Pai Foundation, if read in isolation, appear conflicting or inconsistent with each other. But if the observations made and the conclusions derived are read as a whole, the judgment nowhere lays down that unaided private educational institutions of minorities and non-minorities can be forced to submit to seat sharing and reservation policy of the State. Reading relevant parts of the judgment on which learned counsel have made comments and counter comments and reading the whole judgment (in the light of previous judgments of this Court, which have been approved in Pai Foundation) in our considered opinion, observations in paragraph 68 merely permit unaided private institutions to maintain merit as the criterion of admission by voluntarily agreeing for seat sharing with the State or adopting selection based on common entrance test of the State. There are also observations saying that they may frame their own policy to give free-ships and scholarships to the needy and poor students or adopt a policy in line with the reservation policy of the state to cater to the educational needs of the weaker and poorer sections of the society. 127. Nowhere in Pai Foundation, either in the majority or in the minority opinion, have we found any justification for imposing seat sharing quota by the State on unaided private professional educational institutions and reservation policy of the State or State quota seats or management seats. 128. We make it clear that the observations in Pai Foundation in paragraph 68 and other paragraphs mentioning fixation of percentage of quota are to be read and understood as possible consensual arrangements which can be reached between unaided private professional institutions and the State. 129. In Pai Foundation, it has been very clearly held at several places that unaided professional institutions should be given greater autonomy in determination of admission procedure and fee structure. 129. In Pai Foundation, it has been very clearly held at several places that unaided professional institutions should be given greater autonomy in determination of admission procedure and fee structure. State regulation should be minimal and only with a view to maintain fairness and transparency in admission procedure and to check exploitation of the students by charging exorbitant money or capitation fees. 130. For the aforesaid reasons, we cannot approve of the scheme evolved in Islamic Academy to the extent it allows the States to fix quota for seat sharing between management and the States on the basis of local needs of each State, in the unaided private educational institutions of both minority and non-minority categories. That part of the judgment in Islamic Academy, in our considered opinion, does not lay down the correct law and runs counter to Pai Foundation. 132. Our answer to the first question is that neither the policy of reservation can be enforced by the State nor any quota or percentage of admissions can be carved out to be appropriated by the State in a minority or non-minority unaided educational institution. Minority institutions are free to admit students of their own choice including students of non-minority community as also members of their own community from other States, both to a limited extent only and not in a manner and to such an extent that their minority educational institution status is lost. If they do so, they lose the protection of Article 30(1).” 43. Thus, prescription of quota by the State for apportioning seats allotted to an unaided minority institution is impermissible except on the basis of a consensual arrangement with such institutions and the contrary view expressed in Islamic Academy is contrary to the eleven Judges Bench decision in T.M.A. Pai Foundation (supra). 44. Seat sharing or apportioning of seats involves compulsory admission of students provided by the State on a certain percentage of seats. This has been disapproved as it limits and infringes the right of unaided minority institutions to admit students of their choice under Article 30. Reservation of seats does the same, therefore, it is also not permissible. The declaration of law on this issue has to be understood accordingly. The decision in Islamic Academy was disapproved on this score. Regulatory measures by the State are permissible but subject to the above. Question No. (1) is answered accordingly. 45. Reservation of seats does the same, therefore, it is also not permissible. The declaration of law on this issue has to be understood accordingly. The decision in Islamic Academy was disapproved on this score. Regulatory measures by the State are permissible but subject to the above. Question No. (1) is answered accordingly. 45. The answer to question No. (ii) will depend upon our answer to question Nos. (i) and (iii), therefore, leaving this question for the moment, we proceed to consider question No. (iii) first. Question No. (iii) 46. The real bone of contention appears to be the mechanism permissible in law for admitting students in an unaided professional minority institution i.e. whether individual institutions can evolve their own admission process and admit students of their choice based thereon, subject of-course to the satisfaction of triple test of merit, transparency and non-exploitativeness?; whether it is a group of institutions who can hold ‘CET’ for admission to all the institutions imparting education in professional courses in a particular field, to facilitate such admissions therein, subject again to the triple test; or, the State can itself hold ‘CET’ followed by a Centralized counselling for admission to professional courses for a particular field of education including minority un-aided institutions, without individual institutions or their Association failing to hold such a test in terms of the triple test? 47. These questions which are implicit in question No. 3 referred to us have to be answered in the light of the precedents laid down by the Supreme Court pertaining to the purport of Article 30(1) of the Constitution, therefore, we need to examine the same. 48. These issues fell for consideration in T.M.A Pai Foundation case, therefore, first of all we may refer to question 3(b), 4,5(a),5(b) and 8 and the answers to these questions as contained in paragraph 161 thereof, which read as under : “Q.3 (b) To what extent can professional education be treated as a matter coming under minorities’ rights under Article 30? A. Article 30(1) gives religious and linguistic minorities the right to establish and administer educational institutions of their choice. The use of word “of their choice” indicates that even professional educational institutions would be covered by Article 30. Q.4. 4. A. Article 30(1) gives religious and linguistic minorities the right to establish and administer educational institutions of their choice. The use of word “of their choice” indicates that even professional educational institutions would be covered by Article 30. Q.4. 4. Whether the admission of students to minority educational institution, whether aided or unaided, can be regulated by the State Government or by the university to which the institution is affiliated? A. Admission of students to unaided minority educational institutions viz. Schools and undergraduate college where the scope for merit based selection is practically nil, cannot be regulated by the State or university concerned, except for providing the qualifications and minimum conditions of eligibility in the interest of academic standards. The right to admit students being an essential facet of the right to administer educational institutions of their choice, as contemplated under Article 30 of the Constitution, the State Government or the university may not be entitled to interfere with that right, so long as the admission to the unaided educational institutions is on a transparent basis and the merit is adequately taken care of. The right to administer, not being absolute, there could be regulatory measures for ensuring educational standards and maintaining excellence thereof, and it is more so in the matter of admissions to professional institutions. A minority institution does not cease to be so, the moment grant-in-aid is received by the institution. An aided minority educational institution, therefore, would be entitled to have the right of admission of students belonging to the minority group and at the same time, would be required to admit a reasonable extent of non-minority students, so that the rights under Article 30(1) are not substantially impaired and further the citizens’ rights under Article 29(2) are not infringed. What would be a reasonable extent, would vary from the types of institution, the courses of education for which admission is being sought and other factors like educational needs. The State Government concerned has to notify the percentage of the non-minority students to be admitted in the light of the above observations. Observance of inter se merit amongst the applicants belonging to the minority group could be ensured. In the case of aided professional institutions, it can also be stipulated that passing of the common entrance test held by the State agency is necessary to seek admission. Observance of inter se merit amongst the applicants belonging to the minority group could be ensured. In the case of aided professional institutions, it can also be stipulated that passing of the common entrance test held by the State agency is necessary to seek admission. As regards non-minority students who are eligible to seek admission for the remaining seats, admission should normally be on the basis of common entrance test held by the State agency followed by counselling wherever it exists. Q. 5(a) Whether the minorities’s rights to establish and administer educational institutions of their choice will include the procedure and method of admission and selection of students ? A. A minority institution may have its own procedure and method of admission as well as selection of students, but such a procedure must be fair and transparent, and the selection of students in professional and higher education colleges should be on the basis of merit. The procedure adopted or selection made should not be tantamount to maladministration. Even an unaided minority institution ought not to ignore the merit of the students for admission, while exercising its right to admit students to the colleges aforesaid, as in that event, the institution will fail to achieve excellence. Q. 5.(b) Whether the minority institutions’ right of admission of students and to lay down procedure and method of admission, if any, would be affected in any way by the receipt of State aid? A. While giving aid to processional institutions, it would be permissible for the authority giving aid to prescribe bye-rules or regulations, the conditions on the basis of which admission will be granted to different aided colleges by virtue of merit, coupled with the reservation policy of the State quo non-minority students. The merit may be determined either through a common entrance test conducted by the university or the Government concerned followed by counselling, or on the basis of an entrance test conducted by individual institutions—the method to be followed is for the university or the Government to decide. The authority may also devise other means to ensure that admission is granted to an aided professional institution on the basis of merit. In the case of such institutions, it will be permissible for the Government or the university to provide that consideration should be shown to the weaker sections of the society. Q.8. The authority may also devise other means to ensure that admission is granted to an aided professional institution on the basis of merit. In the case of such institutions, it will be permissible for the Government or the university to provide that consideration should be shown to the weaker sections of the society. Q.8. Whether the ratio laid down by this Court in St. Stephen’s case [St. Stephen’s College v. University of Delhi, (1992) 1 SCC 558 ] is correct ? If no, what order ? A. The basic ratio laid down by this Court in St. Stephen’s College Case is correct, as indicated in this judgment. However rigid percentage cannot be stipulated. It has to be left to authorities to prescribe a reasonable percentage having regard to the type of institution, population and educational needs of minorities.” 49. It is not out of place to mention that in Islamic Academy (supra) the contention that the ratio of the judgment in T.M.A. Pai Foundation (supra) should be understood only from the answer given to the questions formulated towards the end without reference to what had been said in the body of the judgment was out rightly rejected in paragraph 2 with the observation that ratio decidendi has to be found out only on reading of the entire judgment. 50. From the answers to the questions referred hereinabove especially question No. 4 and the discussion in the body of the judgment we find that the Supreme Court made a distinction between professional and Higher education on one hand and other levels of education on the other hand. The emphasis on merit based selection at the level of higher or professional education whether in minority or non-minority institutions, is self evident. As per para 13 of Islamic Academy observations in paras 58, 59, 68, 69 and 70 of T.M.A. Pai Foundation with reference to private un-aided colleges it included minority as well as non minority institutions. 51. Para 58, 59 and 68 of T.M.A. Pai Foundation (supra) are quoted herein below : “58. For admission into any professional institution, merit must play an important role. 51. Para 58, 59 and 68 of T.M.A. Pai Foundation (supra) are quoted herein below : “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 preferences 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. 68.(I) It would be unfair to apply the same rules and regulations regulating admission to both aided and unaided professional institutions. It must be borne in mind that unaided professional institutions are entitled to autonomy in their administration while, at the same time, they do not forgo or discard the principle of merit. It would, therefore, be permissible for the university or the Government, at the time of granting recognition, to require a private unaided institution to provide for merit-based selection while, at the same time, giving the Management sufficient discretion in admitting students. This can be done through various methods. (II) For instance, a certain percentage of the seats can be reserved for admission by the Management out of those students who have passed the common entrance test held by itself or by the State/University and have applied to the college concerned for admission, while the rest of the seats may be filled up on the basis of counselling by the state agency. This will incidentally take care of poorer and backward sections of the society. The prescription of percentage for this purpose has to be done by the Government according to the local needs and different percentages can be fixed for minority unaided and non-minority unaided and professional colleges. This will incidentally take care of poorer and backward sections of the society. The prescription of percentage for this purpose has to be done by the Government according to the local needs and different percentages can be fixed for minority unaided and non-minority unaided and professional colleges. The same principles may be applied to other non-professional but unaided educational institutions viz., graduation and post-graduation non-professional colleges or institutes.” 52. As regards para 68 it will be dealt in the latter part of the judgment, separately. The counsel for the petitioners also relied upon paragraph 69 and 70 of the T.M.A. Pai Foundation which we have perused. 53. It is evident from the observation made in paragraph 58, for admission into a 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 disadvantage by preference shown to less meritorious but more influential applicant.” Excellence in professional education would require that greater emphasis be laid on the merit of the student seeking admission”. In that very paragraph, the Supreme Court observed that appropriate regulations for this purpose may be made keeping in view the other observations made in the said judgment in the context of admission to un-aided institutions. 54. Further in paragraph 59 it has been observed : “merit is usually determined for admission to Professional and Higher education colleges, by either the marks that the student obtained 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 college by Government agency.” 55. These observations have been considered not only in P.A. Inamdar’s case but also in a subsequent Constitution Bench decision in Modern Dental College case to which we will be referring in the later part of the judgment. 56. These observations have been considered not only in P.A. Inamdar’s case but also in a subsequent Constitution Bench decision in Modern Dental College case to which we will be referring in the later part of the judgment. 56. The observations of the Supreme Court in paragraph 164(4) and 5(a) of T.M.A. Pai Foundation regarding the imperative of selection of students for admission in Professional and Higher education on merit has to be read in consonance with para 58, 59 and 68 as they are clearly attracted in view of the emphasis on merit in admission to unaided minority professional colleges. This is how the judgment in T.M.A. Pai Foundation (supra) was understood by S.B. Sinha, J in his concurring judgment in Islamic Academy (supra) in paragraph 70(2)(iv)) which reads as under : “(iv) Unaided minority institutions: Such institutions would have the right of admission of students belonging to minority groups and at the same time would be required to admit reasonable extent of non-minority students as notified by the State Government. In case of professional institutions it can also be stipulated that passing of a common entrance test held by the State agency is necessary to seek admission.[P.588, Questions 4,5(a) and 5(b)].” 57. Thus, the emphasis is very clear that at the level of Higher and Professional education merit was the primary consideration and the extent of control was also to be greater. 58. These issues again came up for consideration before a Five Judges Bench of the Supreme Court in the case of Islamic Academy of Education and others v. State of Karnataka and others, (2003) 6 SCC 697 . 59. After taking into consideration paragraphs 58, 59 and 68 of T.M.A. Pai Foundation, and the submission based thereon, in paragraph 13 it was held as under : “Para 13 : Undoubtedly the majority judgment makes a distinction between private unaided professional colleges and other educational institutions i.e. schools and undergraduate colleges. The sub heading “Private unaided professional colleges” includes both minority as well as non minority professional colleges. This is also clear from a reading of paragraph 68. It appears to us that this distinction has been made (between private unaided professional colleges and other educational institutions) as the Judgment recognizes that it is in national interest to have good and efficient professionals. The Judgment provides that national interest would prevail, even over minority rights. This is also clear from a reading of paragraph 68. It appears to us that this distinction has been made (between private unaided professional colleges and other educational institutions) as the Judgment recognizes that it is in national interest to have good and efficient professionals. The Judgment provides that national interest would prevail, even over minority rights. It is for this reason that in professional colleges, both minority and non-minority, merit has been made the criteria for admission. However a proper reading, of paragraph 68, indicates that a further distinction has been made between minority and non minority professional colleges. It is provided that in cases of non minority professional colleges “a certain percentage of seats” can be reserved for admission by the management. The rest have to be filled up on basis of counseling by State agencies. The prescription of percentage has to be done by the Government according to local needs. Keeping this in mind provisions have to be made for the poorer and backward sections of the society. It must be remembered that, so far as, medical colleges are concerned, an essentiality certificate has to be obtained before the college can be set up. It cannot be denied that whilst issuing the essentiality certificate the respective State Governments take into consideration the local needs. These aspects have been highlighted in a recent decision of this Court in State of Maharashtra v. Indian Medical Association and others. Whilst granting the essentiality certificate the State Government undertakes to take over the obligations of the private educational institution in the event of that institution becoming incapable of setting of the institution or imparting education therein. A reading of paragraphs 59 and 68 shows that in non minority professional colleges admission of students, other than the percentage given to the management, can only be on the basis of merit as per the common entrance tests conducted by Government agencies. The manner in which the percentage given to the management can be filled in is set out hereinafter.” 60. The manner in which the percentage given to the management can be filled in is set out hereinafter.” 60. In the aforesaid paragraph it has been clearly observed that majority judgment in T.M.A. Pai Foundation made a distinction between private unaided professional colleges and other educational institutions i.e. School and under Graduate Colleges (upto clause 12) and went on to observe that it appears that this distinction has been made as the judgment in the said case recognized that it is in national interest to have good and efficient professionals. 61. Most importantly Islamic Academy’s case declares that national interest will prevail even over minority rights and that it is for this reason in professional colleges, both minority and non-minority, merit has been made the criteria for admission. 62. The terms ‘under graduate college’ used in the judgment is with reference to education upto Class 12 and not, as is sometimes referred, to Graduate level education as that forms part of Higher education. 63. Certain observations in paragraph 13 relating to management quota or reservation of certain percentage of seats have been disapproved in P.A. Inamdar but part of the said paragraph which has been quoted hereinabove, wherein, national interest has been emphasized as prevailing even over minority rights and where emphasis has been laid on merit based admission in professional colleges both minority and non-minority, has neither been diluted nor disapproved, rather, it has been reiterated and reaffirmed in P.A. Inamdar. 64. In the context of question No. (3) while emphasis on merit in admission to professional courses and State regulation in this regard being permissible is evident, the question still remains what should be the mechanism to ensure it. In this context paragraph 16 of Islamic Academy’s case is very relevant as it deals with the question as to how the management of both minority and non-minority Professional Colleges can admit students. Paragraph 16 reads as under : “16 :That brings us the question, as to how the management of both minority and non minority professional colleges can admit students in the quota allotted to them. 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 most be on the basis of merit. 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 most be on the basis of merit. As has been rightly submitted it is impossible to control profiteering/charging of capitation fees unless it is ensured that admission is on the basis of merit. Also as has been rightly pointed out if a student is required to appeal at more than one entrance test it would lead to great hardship. The application fees charged by each institute, even though they may be only Rs. 500 to Rs. 1000 for each institute, would impose a heavy burden on the students who will necessarily have to apply to a number of colleges. Further as has been rightly pointed out, students would have to arrange for transport from and to and stay at various places if they have to appear for individual tests conducted by each College. If a student has to go for test to each institute it is possible that he/she may not be able to reach, in time, the venue of a test of a particular institute. In our view what is necessary is a practical approach keeping in mind the need for a merit based selection. Paragraph 68 provides that admission by the management can be by a common entrance test held by “itself or by State/University”. The words “common entrance test” clearly Indicate that each institute cannot hold a separate test. We thus hold that the management could select students, of their quota, either on the basis of the common entrance tests conduced by the State or on the basis of a common entrance test to be conducted by an Association of all colleges of a particular type in that State e.g. medical, engineering or technical etc. The common entrance test, held by the Association, must be for admission to all colleges of that type in the State. The option of choosing, between either of these tests, must be exercised before issuing of prospectus and after intimation to the concerned authority and the Committee set up hereinafter. The common entrance test, held by the Association, must be for admission to all colleges of that type in the State. The option of choosing, between either of these tests, must be exercised before issuing of prospectus and after intimation to the concerned authority and the Committee set up hereinafter. 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. After holding the common entrance test and declaration of results the merit list will immediately be placed on the notice board of all colleges which have chosen to admit as per this test. A copy of the merit list will also be forthwith sent to the concerned authority and the Committee. Selection of students must then be strictly on basis of merit as per that merit list. Of course, as indicated earlier, minority colleges will be entitled to fill up their quota with their own students on basis of inter-se merit amongst those students. The list of students admitted, alongwith the rank number obtained by the student, the fees collected and all such particulars and details as may be required by the concerned authority or the Committee must be submitted to them forthwith. The question paper and the answer papers must be preserved for such period as the concerned authority or Committee may truncate. If it is found that any student has been admitted de-hors merit penalty can be imposed on that institute and in appropriate cases recognition/affiliation may also be withdrawn.” 65. As already stated hereinabove, the reference to quotas in Islamic Academy has been disapproved in Paragraphs 124 to 132 of P.A. Inamdar, therefore, the observations have to be read accordingly by making concessions to this extent. 66. The Supreme Court noted that the majority judgment in T.M.A. Pai Foundation (supra) has kept in mind the sad reality that there are a large number of professional colleges which indulged in profiteering and/or charging of capitation fee and that it is for this reason that the majority judgment in T.M.A. Pai Foundation provided that in professional colleges admissions must be on the basis of merit. The Supreme Court further observed that in its view what was necessary is a practical approach keeping in mind the need for merit based selection. 67. The Supreme Court further observed that in its view what was necessary is a practical approach keeping in mind the need for merit based selection. 67. Noticing paragraph 68 of T.M.A. Pai Foundation (supra) where there is reference to admission by management based on a common entrance test “held by ‘itself’ or by State/University”, it went on to observe that, the word “common entrance test” clearly indicates that each institute cannot hold a separate test. 68. Thus, in Islamic Academy ‘CET’ as a mechanism for admission to professional colleges both minority and non minority was veritably held to be an imperative so as to ensure merit based admission at that level and to conserve national interest. 69. It was also made clear that the common entrance test held by an Association had to be for admission to all colleges of that type of State, meaning thereby, it was not open for some of the colleges imparting a particular type of education, whether minority or non-minority, to come together and hold a separate ‘CET’ as it would be against the grain of the object sought to be achieved, which included the convenience of the students and Public Interest both. 70. The holding of such a test by State was also held as being permissible. The dichotomy which the observations in Paragraph 16 quoted above throw up in practical terms as to whether ‘CET’ should be held by State or Association of Institutions, is an aspect which has to be considered hereinafter, but holding of ‘CET’ was clearly advocated as a regulatory measure. 71. In paragraph 17 of the judgment an exception was made in respect of institutions which had their own admission procedure for the last at least 25 years but in para 19 it was specifically clarified that no institute which had been established and which had not followed its own admission procedure for the last at least 25 years shall be permitted to apply for or be granted exemption from admitting students in the manner set out hereinabove i.e. through ‘CET’. 72. Similar view was expressed on this issue by S.B. Sinha J in paragraph 197 wherein he observed that the right of selection of the candidates for a professional course cannot be left to the discretion of any individual management. Efforts must be made to find out one single standard for all institutions. 72. Similar view was expressed on this issue by S.B. Sinha J in paragraph 197 wherein he observed that the right of selection of the candidates for a professional course cannot be left to the discretion of any individual management. Efforts must be made to find out one single standard for all institutions. In paragraph 199 he advocated lesser freedom to minority institutions in respect of higher education and professional colleges. Paragraph 70(ii)(4), 109 to 114, 164, 165, 166 to 169, 197 and 199 of his Lordships separate judgment in Islamic Academy’s case are also relevant in this context. 73. We must keep in mind that except for disapproval of apportioning of seats/quota and reservation of such seats as advocated in Islamic Academy, on other issues relevant to the present reference the said judgment has neither been diluted nor disapproved in any manner in P.A. Inamdar rather it has been explained and affirmed. Reference to para 68 of T.M.A. Pai Foundation therein shall be dealt with separately while considering paragraphs 109 and 110 of P.A. Inamdar’s case. The difference between seat sharing/apportioning of seats shall also be considered, but later. 74. We may now refer to the Seven Judges decision in the case of P.A.Inamdar. The task in P.A. Inamdar’s case was to cull out the ratio decidendi of the decision in T.M.A. Pai Foundation and to examine if the explanation or clarification of law as given in Islamic Academy ran contrary to the ratio of T.M.A. Pai Foundation, if so, to what extent. 75. The institutions which were before the Supreme Court in P.A. Inamdar’s case were un-aided minority and non-minority institutions imparting professional education. 76. P.A. Inamdar’s case inter alia held that merely because Article 30(1) of the Constitution had been enacted the minority educational institutions do not become immune from operation of regulatory measures because the right to administer does not include the right to maladministration. 76. P.A. Inamdar’s case inter alia held that merely because Article 30(1) of the Constitution had been enacted the minority educational institutions do not become immune from operation of regulatory measures because the right to administer does not include the right to maladministration. This apart, in paragraph 94, the Supreme Court noticed the observation made by it earlier in the case of Reverent Sidhai Bhai Bhai v. State of Gujrat, AIR 1963 SC 540 and Ahmadabad St Xaveir’s College Society v. State of Gujrat, (1974) 1 SCC 481, that no regulations can be cast in “the interest of Nation” and observed that this proposition (except when it is read in the light of opinion of Qadari, J.) stands over-ruled in T.M.A. Pai (supra) where Kripal C.J. speaking for the majority had ruled - “Any regulation framed in the National interest must necessarily apply to all educational institutions, whether run by the majority or minority. Such a limitation must necessarily be read into Article 30. The right under Article (30)(1) cannot be such as to over-ride the national interest and prevent the Government from framing of Regulations in that behalf”. 77. Thus maladministration and National Interest were mentioned as valid grounds for State regulation of admission process even in respect of minority institutions. 78. After referring to para 117 to 123 and 138 of T.M.A.Pai (supra), the Supreme Court further observed that no right can be absolute whether of a minority or a non-minority. No community can claim its interest to be above ‘National Interest’. Supervening national interest was again reiterated as cause for control or regulatory measure as was earlier done in Islamic Academy’s case vide para 13 thereof. 79. In paragraph 104 and onwards the Supreme Court continued with the distinction between professional and non-professional educational institutions in keeping with the object of laying down the difference in degree of regulatory measures permissible by the State and the degree of protection available to the minority institutions at these different levels. Paragraph 104, 105, 106 and 107 are as under : “104. Article 30(1) speaks of ‘educational institutions’ generally and so does Article 29(2). These Articles do not draw any distinction between an educational institution dispensing theological education or professional or non-professional education. Paragraph 104, 105, 106 and 107 are as under : “104. Article 30(1) speaks of ‘educational institutions’ generally and so does Article 29(2). These Articles do not draw any distinction between an educational institution dispensing theological education or professional or non-professional education. However, the terrain of thought as has developed through successive judicial pronouncements culminating in Pai Foundation is that looking at the concept of education, in the backdrop of constitutional provisions, the professional educational institutions constitute a class by themselves as distinguished from the educational institutions imparting non-professional education. It is not necessary for us to go deep into this aspect of the issue posed before us inasmuch as Pai Foundation has clarified that merit and excellence assume special significance in the context of professional studies. Though merit and excellence are not anathema to non-professional education, yet at that level and due to the nature of education which is more general, merit and excellence do not stand in need of that degree thereof, as is called for in the context of professional education. 105. Dealing with unaided minority educational institutions, Pai Foundation holds that Article 30 does not come in the way of the State stepping in for the purpose of securing transparency and recognition of merit in the matter of admissions. Regulatory measures for ensuring educational standards and maintaining excellence thereof are no anathema to the protection conferred by Article 30(1). However, a distinction is to be drawn between unaided minority educational institution of the level of schools and undergraduate colleges on one side and the institutions of higher education, in particular, those imparting professional education on the other side. In the former, the scope for merit based selection is practically nil and hence may not call for regulation. But in the case of latter, transparency and merit have to be unavoidably taken care of and cannot be compromised. There could be regulatory measures for ensuring educational standards and maintaining excellence thereof. (See para 161, Answer to Q.4, in Pai Foundation). The source of this distinction between two types of educational institutions referred to hereinabove is to be found in the principle that right to administer does not include a right to mal-administer. 106. S.B. Sinha, J. has, in his separate opinion in Islamic Academy, described (in para 199) the situation as a pyramid like situation and suggested the right of minority to be read alongwith fundamental duty. 106. S.B. Sinha, J. has, in his separate opinion in Islamic Academy, described (in para 199) the situation as a pyramid like situation and suggested the right of minority to be read alongwith fundamental duty. Higher the level of education, lesser are the seats and higher weighs the consideration for merit. It will, necessarily, call for more State intervention and lesser say for minority. 107. Educational institutions imparting higher education, i.e. graduate level and above and in particular specialized education such as technical or professional, constitutes a separate class. While embarking upon resolving issues of constitutional significance, where the letter of the Constitution is not clear, we have to keep in view the spirit of the Constitution, as spelt out by its entire scheme. Education aimed at imparting professional or technical qualifications stand on a different footing from other educational instructions. Apart from other provisions, Article 19(6) is a clear indicator and so are clauses (h) and (j) of Article 51A. Education upto undergraduate level aims at imparting knowledge just to enrich mind and shape the personality of a student. Graduate level study is a doorway to admissions in educational institutions imparting professional or technical or other higher education and, therefore, at that level, the considerations akin to those relevant for professional or technical educational institutions step in and become relevant. This is in national interest and strengthening the national wealth, education included. Education up to undergraduate level on one hand and education at graduate and post-graduate levels and in professional and technical institutions on the other are to be treated on different levels inviting not identical considerations, is a proposition not open to any more debate after Pai Foundation. A number of legislations occupying the field of education whose constitutional validity has been tested and accepted suggest that while recognition or affiliation may not be a must for education up to undergraduate level or, even if required, may be granted as a matter of routine, recognition or affiliation is a must and subject to rigorous scrutiny when it comes to educational institutions awarding degrees, graduate or post-graduate, post-graduate diplomas and degrees in technical or professional disciplines. Some such legislations are found referred in paras 81 and 82 of S.B. Sinha, J’s opinion in Islamic Academy.” 80. Some such legislations are found referred in paras 81 and 82 of S.B. Sinha, J’s opinion in Islamic Academy.” 80. Thus, importance of merit and transparency in admission at the Professional/Higher level of education was again stressed and greater State intervention at this level was advocated to ensure excellence and maintenance of high standards of education at that level. Standards of education was not part of Management of the institution. 81. In paragraph 111 to 114 the Supreme Court noticed the submissions of the learned counsel regarding anomalies in Islamic Academy vis-a-vis the ratio of T.M.A.Pai (supra) specially with reference to paragraph 59 of the latter judgment and paragraph 70(2)(i)(a) of the judgment of S.B. Sinha J. in Islamic Academy (supra) as regards the admission procedure in respect of un-aided educational institutions minority and non-minority both. 82. The mechanism to ensure the triple test of fairness, transparency and non-exploitativeness in admission was considered in paragraph 133 to para 138 of P.A. Inamdar in answer to question No. 2 framed by it in this regard as under : “Whether unaided (minority and non-minority educational institutions are free to devise their own admission procedure or whether direction made in Islamic Academy for compulsorily holding entrance test by the State or Association of institutions and to choose therefrom the students entitled to admission in such institutions, can be sustained in light of the law laid down in Pai Foundation?” Its answer in paragraphs 133 to 138 was as under : “Question No2: Admission procedure of un-aided Educational Institutions : 133. So far as the minority unaided institutions are concerned to admit students being one of the components of “right to establish and administer an institution”, the State cannot interfere therewith. Upto the level of undergraduate education, the minority unaided educational institutions enjoy total freedom. 134. However, different considerations would apply for graduate and post-graduate level of education, as also for technical and professional educational institutions. Such education cannot be imparted by any institution unless recognized by or affiliated with any competent authority created by law, such as a University, Board, Central or State Government or the like. Excellence in education and maintenance of high standards at this level are a must. To fulfill these objectives, the State can and rather must, in national interest, step in. The education, knowledge and learning at this level possessed by individuals collectively constitutes national wealth. 135. Excellence in education and maintenance of high standards at this level are a must. To fulfill these objectives, the State can and rather must, in national interest, step in. The education, knowledge and learning at this level possessed by individuals collectively constitutes national wealth. 135. Pai Foundation has already held that the minority status of educational institutions is to be determined by treating the States as units. Students of that community residing in other States where they are not in minority, shall not be considered to be minority in that particular State and hence their admission would be at par with other non-minority students of that State. Such admissions will be only to a limited extent that is like a ‘sprinkling’ of such admissions, the term we have used earlier borrowing from Kerala Education Bill, 1957. In minority educational institutions, aided or unaided, admissions shall be at the State level. Transparency and merit shall have to be assured. 136. Whether minority or non-minority institutions, there may be more than one similarly situated institutions imparting education in any one discipline, in any State. The same aspirant seeking admission to take education in any one discipline of education shall have to purchase admission forms from several institutions and appear at several admission tests conducted at different places on same or different dates and there may be a clash of dates. If the same candidate is required to appear in several tests, he would be subjected to unnecessary and avoidable expenditure and inconvenience. There is nothing wrong in an entrance test being held for one group of institutions imparting same or similar education. Such institutions situated in one State or in more than one State may join together and hold a common entrance test or the State may itself or through an agency arrange for holding of such test. Out of such common merit list the successful candidates can be identified and chosen for being allotted to different institutions depending on the courses of study offered, the number of seats, the kind of minority to which the institution belongs and other relevant factors. Such an agency conducting Common Entrance Test (CET, for short) must be one enjoying utmost credibility and expertise in the matter. This would better ensure the fulfillment of twin objects of transparency and merit. Such an agency conducting Common Entrance Test (CET, for short) must be one enjoying utmost credibility and expertise in the matter. This would better ensure the fulfillment of twin objects of transparency and merit. CET is necessary in the interest of achieving the said objectives and also for saving the student community from harassment and exploitation. Holding of such common entrance test followed by centralized counseling or, in other words, single window system regulating admissions does not cause any dent in the right of minority unaided educational institutions to admit students of their choice. Such choice can be exercised from out of list of successful candidates prepared at the CET without altering the order of merit inter se of the students so chosen. 137. Pai Foundation has held that minority unaided institutions can legitimately claim unfettered fundamental right to choose the students to be allowed admissions and the procedure therefor subject to its being fair, transparent and non-exploitative. The same principle applies to non-minority unaided institutions. There may be a single institution imparting a particular type of education which is not being imparted by any other institution and having its own admission procedure fulfilling the test of being fair, transparent and non-exploitative. All institutions imparting same or similar professional education can join together for holding a common entrance test satisfying the above said triple tests. The State can also provide a procedure of holding a common entrance test in the interest of securing fair and merit-based admissions and preventing mal-administration. The admission procedure so adopted by private institution or group of institutions, if it fails to satisfy all or any of the triple tests, indicated hereinabove, can be taken over by the State substituting its own procedure. The second question is answered accordingly. 138. It needs to be specifically stated that having regard to the larger interest and welfare of the student community to promote merit, achieve excellence and curb mal-practices, it would be permissible to regulate admissions by providing a centralized and single window procedure. Such a procedure, to a large extent, can secure grant of merit based admissions on a transparent basis. Till regulations are framed, the admission committees can oversee admissions so as to ensure that merit is not the casualty.” 83. Paragraph 133 to 138 apply to unaided minority institutions including professional institutions. Such a procedure, to a large extent, can secure grant of merit based admissions on a transparent basis. Till regulations are framed, the admission committees can oversee admissions so as to ensure that merit is not the casualty.” 83. Paragraph 133 to 138 apply to unaided minority institutions including professional institutions. A conjoint reading of paragraph 133 and 134 again brings to the fold the distinction drawn by the Supreme Court between under-graduate education (upto Class 12) and higher/professional education and the difference in the extent of interference by the State at these two levels. 84. With regard to higher/professional education, interference by State was held to be a must so as to ensure excellence and maintenance of high standards at that level. The education, knowledge and learning at this level possessed by individuals collectively was held as constituting National Wealth, hence, in national interest, interference by State in the admission process was a must at the level of higher and professional education to protect and promote the aforesaid objects of excellence and maintenance of high standards. In paragraph 135 the Supreme Court observed that transparency and merit shall have to be assured in admission to un-aided minority institutions. 85. In paragraphs 136, 137 and 138 it considered the mechanism to be adopted for such admission. 86. In paragraph 136 it considered a scenario where there could be more than one similarly situated institutions imparting education in any one discipline of education and in this context firstly considered the convenience of the students and then observed that there is nothing wrong in a ‘CET’ being held for one group of institutions imparting same or similar education. The agency conducting the test should be one enjoying utmost credibility and expertise in the matter. 87. Thus, according to the Supreme Court ‘CET’ would ensure better fulfillment of transparency and merit. ‘CET’ was necessary in the interest of achieving the said objects and also for saving students from harassment and exploitativeness. 88. The agency conducting the test should be one enjoying utmost credibility and expertise in the matter. 87. Thus, according to the Supreme Court ‘CET’ would ensure better fulfillment of transparency and merit. ‘CET’ was necessary in the interest of achieving the said objects and also for saving students from harassment and exploitativeness. 88. Most importantly, holding of ‘CET’ followed by a Centralized Counselling or in other words a single window system regulating the admission process did not, in the opinion of the Supreme Court, cause any dent in the right of minority un-aided educational institution under Article 30 to admit students of their choice, as, this choice could be exercised from out of the list of successful candidates prepared at the ‘CET’ without altering the order of merit inter-se of the students so chosen. 89. The contention of Shri Kalia that the last 8 lines of Para 136 applied to a ‘CET’ held by an Association and not one held by the State cannot be accepted for the reason firstly no such distinction has been made by the Supreme Court, secondly, a ‘CET’ held by an Association would be a consensual agreement of all the member institutions. 90. Thus, ‘CET’ followed by Centralized counselling i.e. a single window system, was undeniably held to be imperative by the Supreme Court and not a mere suggestions as contended by Shri Manish Kumar. Holding a separate test for admission by an individual institution was ruled out, except when there is only one institution imparting education in a particular field or discipline of education. The said institution, as is evident from the use of words “admission procedure so adopted by a private institution” in the last four lines of the said paragraph 137, can adopt its own procedure satisfying the triple test. 91. As far as a scenario where more than one institutions exist in a particular field, ‘CET’ and ‘Centralized Counselling’ i.e. a single window system was the mechanism to be adopted and as per paragraphs 136 and 137, for this purpose, all institutions imparting same or similar professional education can join together for holding a ‘CET’ but at the same time it has also been observed that the State can also provide a procedure for holding a CET in the interest of fair and transparent merit based admission and for preventing maladministration. 92. 92. It is the last four lines of para 137 which have been heavily relied upon by the petitioners as also the intervenors to contend that ‘CET’ by the State is permissible only if the admission procedure evolved by the institutions or the group of institutions in the two scenarios referred hereinabove, fails the triple test. 93. The moot point is who is entitled to hold ‘CET’ whether an Association of institutions or the State and its agency; whether the State can hold a ‘CET’ straightaway without the Associations holding it and failing the triple test? 94. According to Sri S.K. Kalia, the State can intervene only after the Association had held the ‘CET’ and failed in the triple test and there is material to prove it. 95. What better proof of law in this regard is required when the Supreme Court’ own understanding of it is expressed in a subsequent decision, that too, by a Constitution Bench, in the case of Modern Dental College & Research Centre v. State of Madhya Pradesh, (2016) 7 SCC 353 . We, therefore, without further ado straightaway proceed to examine the enunciation of law on the subject in the said judgment. 96. In the said case what was under consideration before the Supreme Court was the validity of a judgment of Madhya Pradesh High Court upholding an Act of the State legislature for regulating the admission process including fee fixation and prescribing a common entrance test for professional, minority as well as non-minority, institutions. Apart from the plea of violation of Article 19(1)(g) and the legislative competence of the State legislature, as, the Act was applicable to minority institutions also, therefore, the rights of minority institutions under Article 30(1) and its violation also fell for consideration and was specifically dealt with by the Supreme Court. 97. This Court is conscious of the fact that in the said case there was a legislative enactment as asserted by the learned counsel for the petitioners/intervenors and there was some material to show that there were malpractices in the admission process in some cases but then this Court finds that the judgment of the constitution bench is not based merely on the peculiar facts of the said case but also on its understanding of the law on the subject as enunciated by earlier precedents. Therefore, as far as the declaration of this understanding of the law is concerned, it is very much binding on us and is also relevant for our purpose. 98. In this regard we find that in paragraph 33 to 55 as also other paragraphs which we would be referring, the law on the subject, including the issue of rights of minority educational institutions and the extent of its regulation by the State, specially the mechanism to be adopted for admission in professional courses, has been specifically and elaborately laid down. Paragraphs 41,42,43 of the said judgment are quoted below : “41. Ms. Vibha Datta Makhija is right in her submission that the significant feature of T.M.A. Pai Foundation is that it expounded on the nature and extent of its control on the basis of level of education. When it comes to higher education, that too in professional institutions, merit has to be the sole criteria. This is so explained in paragraph 58 of the judgment which reads as under: “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 preferences 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.” 42. In order to see that merit is adjudged suitably and appropriately, the Court candidly laid down that procedure for admission should be so devised which satisfies the triple test of being fair, transparent and non-exploitative. The next question was as to how the aforesaid objective could be achieved? For determining such merit, the Court showed the path in paragraph 59 by observing that such merit should be determined either by the marks that students obtained at qualifying examination or at the CET conducted by the institutions or in the case of professional colleges, by Government agencies. Paragraph 59 suggesting these modes reads as under: “59. For determining such merit, the Court showed the path in paragraph 59 by observing that such merit should be determined either by the marks that students obtained at qualifying examination or at the CET conducted by the institutions or in the case of professional colleges, by Government agencies. Paragraph 59 suggesting these modes reads as under: “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 paragraph very specifically authorizes CET to be conducted by Government agencies in the case of professional colleges.” 43. In order to ensure that the said CET is fair, transparent and merit based, T.M.A. Pai Foundation also permitted the Government to frame Regulations for unaided private professional educational institutions. 99. In paragraph 42 it quoted para 59 of T.M.A. Pai, which we have already quoted in our judgment, and observed that “This paragraph very specifically authorizes ‘CET’ to be conducted by Government Agencies in the case of professional colleges”. This, in our view settles the legal position as to the holding of ‘CET’ by Government Agencies in respect of professional institutions. Admissions at the higher level are to be based absolutely on merit and have to be transparent. CET by Government/State agencies is the best way of achieving this object. 100. Yet, to settle it further, we find that the Supreme Court noticed the contention raised before it in para 44 that by exercising the power to frame Regulations (with reference to paragraph 67 and 68 of T.M.A. Pai), the State could not usurp the very functioning of conducting test for admission, ‘CET’ was to be conducted by the educational institutions themselves, and that the Government could only frame the Regulations to regulate such admission test, but, the Supreme Court repelled it in paragraph 45 in view of the unambiguous and categorical interpretation given by the Supreme Court in P.A. Inamdar with respect to certain observations, particularly in para 68 in T.M.A. Pai Foundation. 101. In paragraph 47 again the Constitution Bench elucidated the law which is on the same line as already discussed hereinabove. 101. In paragraph 47 again the Constitution Bench elucidated the law which is on the same line as already discussed hereinabove. It noticed the observation in T.M.A. Pai Foundation regarding the sad reality of existence of large number of professional colleges which indulged in profiteering etc. and the imperative of merit based admission in this regard as also the holding of ‘CET’. 102. The Supreme Court referred to the observations in the earlier decisions of the Supreme Court that post audit measures would not meet the regulatory requirements, control was required at the initial stage itself. Paragraphs 48 and 49 of Modern Dental College read as under : “48. The matter was then considered by a larger Bench of seven judges in P.A. Inamdar. It was held that the two Committees for monitoring admission procedure and determining fee structure as per the judgment in Islamic Academy of Education were permissible as regulatory measures aimed at protecting the students community as a whole as also the minority themselves in maintaining required standards of professional education on non-exploitative terms. This did not violate Article 30(1) or Article 19(1)(g). It was observed that : “145.......Unless the admission procedure and fixation of fees is regulated and controlled at the initial stage, the evil of unfair practice of granting admission on available seats guided by the paying capacity of the candidates would be impossible to curb..... (emphasis supplied). On this ground, suggestion of the institutions to achieve the purpose for which Committees had been set up by post-audit checks after the institutions adopted their own admission procedure and fee structure were rejected. The Committees were, thus, allowed to continue for regulating the admissions and the fee structure until a suitable legislation or regulations framed by the States. It was left to the Central Governments and the State Governments to come out with a detailed well thought out legislation setting up a suitable mechanism for regulating admission procedure and fee structure. Paragraph 68 in T.M.A. Pai Foundation case was explained by stating that observations permitting the management to reserve certain seats was meant for poorer and backward sections as per local needs. It did not mean to ignore the merit. It was also held that CET could be held, otherwise merit becomes casualty. There is, thus, no bar to CET being held by a State agency when law so provides. 49. It did not mean to ignore the merit. It was also held that CET could be held, otherwise merit becomes casualty. There is, thus, no bar to CET being held by a State agency when law so provides. 49. Thus, the contention raised on behalf of the appellants that the private medical colleges had absolute right to make admissions or to fix fee is not consistent with the earlier decisions of this Court. Neither merit could be compromised in admissions to professional institutions nor capitation fee could be permitted. To achieve these objects it is open to the State to introduce regulatory measures. We are unable to accept the submissions that the State could intervene only after proving that merit was compromised or capitation fee was being charged. As observed in the earlier decisions of this Court, post-audit measures would not meet the regulatory requirements. Control was required at the initial stage itself. Therefore, our answer to the first question is that though ‘occupation’ is a fundamental right, which gives right to the educational institutions to admit the students and also fix the fee, at the same time, scope of such rights has been discussed and limitations imposed thereupon by the aforesaid judgments themselves explaining the nature of limitations on these rights.” 103. In paragraph 48 and 49 the Supreme Court noticed paragraph 145 of P.A. Inamdar wherein it had been held that unless the admission procedure and fixation of fee is regulated and controlled at the initial stage, the evil of unfair practice of granting admission on available seats guided by the paying capacity of the candidate would be impossible to curb. It rejected the plea based on post audit checks. 104. Referring to para 68 in T.M.A. Pai relating to ‘CET’ and its necessity, otherwise merit would become a causality, the constitution bench observed that “there is thus no bar to CET being held by the State or its Agency when the law so provides”. 105. In paragraph 49 it rejected the submission made before it that the State could intervene only after proving that merit was compromised or capitation fee was being charged. This clearly answers a similar argument raised before us by Sri S.K. Kalia, Senior Advocate, and Sri Manish Kumar, Advocate. 106. 105. In paragraph 49 it rejected the submission made before it that the State could intervene only after proving that merit was compromised or capitation fee was being charged. This clearly answers a similar argument raised before us by Sri S.K. Kalia, Senior Advocate, and Sri Manish Kumar, Advocate. 106. Though, the observations quoted above have been made in respect of violation of Article 19(1)(g) and reasonable restrictions in this regard, it is beyond cavil that these observations are applicable in the context of rights of minority educational institutions also as has been specifically clarified by the Constitution Bench itself in paragraph 55 of its judgment which reads as under : 55.”It would be necessary to clarify the position in respect of educational institutions run by minorities. Having regard to the pronouncement in T.M.A. Pai Foundation, with lucid clarifications to the said judgment given by this Court in P.A. Inamdar, it becomes clear that insofar as such regulatory measures are concerned, the same can be adopted by the State in respect of minority run institutions as well. Reliance placed by the appellants in the case of St. Stephen’s College v. University of Delhi[12] may not be of much help as that case did not concern with professional educational institutions.” 107. This is also for the reason that though reasonable restrictions are not provided for in Article 30 it is beyond doubt as per T.M.A. Pai Foundation and the decision in the Modern Dental College (paragraph 62) that constitutional rights are not absolute. As already noticed in the earlier part of the judgment, when it comes to national interest, even minority rights under Article 30 are subservient to it as has also been held in the case of P.A. Inamdar. 108. Accumulation of knowledge of Higher and Professional education constitutes National wealth therefore, it has to be protected in national interest by regulatory measures. 109. The Supreme Court emphasised the importance and necessity of a State held ‘CET’ in Para 67 of Modern Dental College’s case in the following terms : “67. Undoubtedly, right to establish and administer educational institutions is treated as a fundamental right as it is termed “occupation”, which is one of the freedoms guaranteed Under Article 19(1)(g). It was so recognised for the first time in T.M.A. Pai Foundation2. Even while doing so, this right came with certain clutches and shackles. Undoubtedly, right to establish and administer educational institutions is treated as a fundamental right as it is termed “occupation”, which is one of the freedoms guaranteed Under Article 19(1)(g). It was so recognised for the first time in T.M.A. Pai Foundation2. Even while doing so, this right came with certain clutches and shackles. The Court made it clear that it is a noble occupation which would not permit commercialisation or profiteering and, therefore, such educational institutions are to be run on “no profit no loss basis”. While explaining the scope of this right, right to admit students and right to fix fee was accepted as facets of this right, the Court again added caution thereto by mandating that admissions to the educational institutions imparting higher education, and in particular professional education, have to admit the students based on merit. For judging the merit, the Court indicated that there can be a CET. While doing so, it also specifically stated that in case of admission to professional courses such a CET can be conducted by the State. If such a power is exercised by the State assuming the function of CET, this was so recognised in T.M.A. Pai Foundation2 itself, as a measure of “reasonable restriction on the said right”. Islamic Academy of Education8 further clarified the contour of such function of the State while interpreting T.M.A. Pai Foundation2 itself wherein it was held that there can be Committees constituted to supervise conducting of such CET. This process of interpretative balancing and constitutional balancing was remarkably achieved in P.A. Inamdar4 by not only giving its premature to deholding (sic imprimatur to the holding) of CET but it went further to hold that agency conducted the CET must be the one which enjoys the utmost credibility and expertise in the matter to achieve fulfillment of twin objectives of transparency and merit and for that purpose it permitted the State to provide a procedure of holding a CET in the interest of securing fair and merit-based admissions and preventing maladministration.” 110. While considering the need for regulatory measures such as CET, in para 92 of its judgment, the constitution bench, stated as follows : “In this sense, when imparting of quality education to cross-section of the society, particularly, the weaker section and when such private educational institutions are to rub shoulders with the state managed educational institution to meet the challenge of the implementing ambitious constitutional promises, the matter is to be examined in a different hue. It is this spirit which we have kept in mind while balancing the right of these educational institutions given to them under Article 19(1)(g) on the one hand and reasonableness of the restrictions which have been imposed by the impugned legislation. The right to admission or right to fix the fee guaranteed to these appellants is not taken away completely, as feared. T.M.A. Pai Foundation gives autonomy to such institutions which remain intact. Holding of CET under the control of the State does not impinge this autonomy. Admission is still in the hands of these institutions. Once it is even conceded by the appellants that in admission of students ‘triple test’ is to be met, the impugned legislation aims at that. After all, the sole purpose of holding CET is to adjudge merit and to ensure that admissions which are done by the educational institutions, are strictly on merit. This is again to ensure larger public interest. It is beyond comprehension that merely by assuming the power to hold CET, fundamental right of the appellants to admit the students is taken away. Likewise, when it comes to fixation of fee, as already dealt with in detail, the main purpose is that State acts as a regulator and satisfies itself that the fee which is proposed by the educational institution does not have the element of profiteering and also that no capitation fee etc. is charged. In fact, this dual function of regulatory nature is going to advance the public interest inasmuch as those students who are otherwise meritorious but are not in a position to meet unreasonable demands of capitation fee etc. are not deprived of getting admissions. The impugned provisions, therefore, are aimed at seeking laudable objectives in larger public interest. Law is not static, it has to change with changing times and changing social/societal conditions.” 111. are not deprived of getting admissions. The impugned provisions, therefore, are aimed at seeking laudable objectives in larger public interest. Law is not static, it has to change with changing times and changing social/societal conditions.” 111. In paragraph 96 the Constitution Bench observed that State process is more transparent and fair than one that is devised by a private college which has no mechanism of any checks and balances. The State Agencies are subject to Right to Information Act, audit, State Legislature, Anti-corruption Agencies, Lok Ayukta etc. This not only justifies but emphasizes the holding of ‘CET’ by State as better way of ensuring merit based transparent admission process in professional institutions. 112. In paragraph 97 it held that the very object to set up the institutions for the State is a welfare function, for the purpose of excellence in educational standards. On the other hand, the primary motivation for private parties is profit motive or philanthropy. When the primary motivation for institutions is profit motive, it is natural that many means to achieve the same shall be adopted by the private institutions which leads to a large degree of secrecy, hidden agenda and corruption. It held the measures adopted did not infringe on the fundamental rights of either the minorities or the non-minorities to establish and administer educational institutions and must as such be upheld as valid. 113. The observations in paras 92, 96 and 97 referred above do apply on all their fours to minority un-aided professional institutions also. 114. In view of above, the ratio of the judgment in Modern Dental College is that admission at the level of higher and professional education are to be based solely on merit and they have to be non-exploitative and transparent. ‘CET’ by Government agencies is the best mode of ensuring and achieving these objectives. Holding of ‘CET’ by the State for admission to professional courses is not only permissible but is necessary and a must. Such a Regulatory measure is to be set in motion at the initial stage and not after it is proved that merit had been compromised or capitation fee had been charged. Post-Audit Checks have been disapproved. State process is more transparent and fair than one adopted by a private college or a group of colleges. State Agencies are subject to checks and balances, while private bodies are not. Post-Audit Checks have been disapproved. State process is more transparent and fair than one adopted by a private college or a group of colleges. State Agencies are subject to checks and balances, while private bodies are not. ‘CET’ is a permissible regulatory measure, therefore, it does not violate Article 30. The right of minorities to admit students of their choice remains intact. An individual minority institution cannot hold a separate entrance test for admission to its professional courses. 115. This opinion has been expressed by the Constitution Bench after considering the earlier judgments in T.M.A. Pai Foundation and P.A. Inamdar. This is the law on the subject which is binding on us. 116. In a recent order dated 9.5.2016 passed by the Supreme Court in the context of National Eligibility Entrance Test (hereinafter referred to as ‘NEET’) for admission to MBBS etc. on an application for modification of its earlier order dated 28.4.2016 in a bunch of matters leading case being Transfer Case No. 99 of 2012 (Christian Medical College Vellore Institution v. Union of India and others, it inter alia observed as under : “Prima facie, we do not find any infirmity in the NEET regulation on the ground that it affects the rights of the States or the private institutions. Special provisions for reservation of any category are not subject-matter of the NEET nor rights of minority are in any manner affected by NEET. NEET only provides for conducting entrance test for eligibility for admission to the MBBS/MDS courses.” 117. Further, another order has been recently passed on 9.5.2017 in Writ Petition Civil No. (s) 267 of 2017 (Dar-Us-Slam Educational Trust and another v. Medical Council of India and other, relevant extract of which is quoted below : “Common counselling conducted by the DGHS/State Government will not in any manner affect the rights of minority institutions to admit students of their respective minority community. The minority quota seats, if any, in institutions run by minorities will be filled up by minority students only. Therefore, the rights of minority institutions are fully protected.” 118. The minority quota seats, if any, in institutions run by minorities will be filled up by minority students only. Therefore, the rights of minority institutions are fully protected.” 118. It is not out of place to mention that the validity of the regulations made by the Medical Council of India and notified on 21.12.2010 prescribing NEET as a ‘CET’ for admission in M.B.B.S. etc., is pending adjudication before the Supreme Court consequent to its decision in Medical Council of India v. Christian Medical College, Vellore and others, (2016) 4 SCC 342 ; recalling its earlier judgment in this regard in Christian Medical College v. Union of India, (2014) 2 SCC 305 . 119. It is also not out of place to mention that a Division Bench of this Court in which one of us (Rajan Roy, J) was a member has already dismissed a bunch of Writ Petitions including those filed by minority institutions challenging certain orders issued by the Government of India and the State Government prescribing Centralized counselling consequent to NEET, 2016 for admission to M.B.B.S. course in terms of Regulations made by MCI, vide its judgment in U.P. Unaided Medical College Welfare Association v. Union of India and connected matters, 2016(9) ADJ 284 (DB). Distinction between sharing of seats and holding of ‘CET’ by the State: 120. As the Supreme Court in Paragraphs 124 to 132 of its judgment in P.A. Inamdar disapproved seat sharing or apportioning of seats by the State as already discussed by us earlier and while doing so it made certain observations, it is necessary to clarify the distinction between seat sharing and holding of ‘CET’ by the State, as to why the former is impermissible while the latter is permissible. In continuation of what has been said by us in reply to question No. 1, seat sharing involves compulsory admission of students provided by the State, thereby, infringing the right of minority institutions under Article 30 of the Constitution to admit students of their choice, whereas, ‘CET’ by the State does not do so, as they can still select students of their choice from their own minority community for admission to the seats allotted to them. This process does not involve nomination of any student by the State for admission to the seats allotted to an un-aided minority professional institution, for their admission compulsorily. This process does not involve nomination of any student by the State for admission to the seats allotted to an un-aided minority professional institution, for their admission compulsorily. The State only holds the test and prepares the merit list. Minority institutions are free to select students of their choice from the said list subject of course to the choice of the students themselves, therefore, there is no violation of their rights. Paragraphs 109 and 110 of P.A. Inamdar’s case and Paragraph 68 of T.M.A. Pai Foundation Case: 121. Much emphasis was laid down by Shri Manish Kumar on Paragraphs 109 and 110 of the judgment in P.A. Inamdar’s case to contend that Second part of Paragraph 68 of T.M.A. Pai Foundation’s case was only suggestive and illustrative of the mechanism to be used for admission such as ‘CET’. It was not the law declared. It is only the first part of paragraph 68 which states the law declared. 122. While the discussion made by us earlier belies this contention, we wish to clarify it further. 123. We have carefully perused the aforesaid paragraphs and we find the contention to be absolutely misplaced. What has been held to be illustrative and suggestive is the prescription of quota by the State as a possible mechanism so as to take care of the poor and backward sections of the society and not the holding of ‘CET’, which is very much part of the ratio of the said judgment. The contention of Shri Manish Kumar if accepted, would be contradictory not only to paragraph 109 and also to paragraphs 136 to 138 of the said judgment but also the subsequent decision in Modern Dental College’s case, especially, paragraphs 44, 45, 48, 67, 92 and 97 thereof as discussed by us earlier. The said paragraphs leave no doubt that holding of ‘CET’ is a necessity and is mandatory.’ In Paragraph 45 of Modern Dental College case it was observed that interpretation of such an observation in Para 68 of the judgment in T.M.A. Pai Foundation’s case has been a matter of debate to which they would advert to hereinafter. Thereafter, in paragraph 48, the Constitution Bench held - “Para 68 in T.M.A. Pai Foundation case was explained (in P.A. Inamdar) by stating that observations permitting the Management to reserve seats was meant for poorer and backward sections as per local needs. Thereafter, in paragraph 48, the Constitution Bench held - “Para 68 in T.M.A. Pai Foundation case was explained (in P.A. Inamdar) by stating that observations permitting the Management to reserve seats was meant for poorer and backward sections as per local needs. It did not mean to ignore the merit. It was also held that CET could be held by a State agency when the law so provides.” 124. Further more, in paragraph 92 of the said judgment under the heading ‘Need for Regulatory Mechanism’ this aspect has been dealt with and as would be evident from paragraph 97 it has been categorically held that holding of ‘CET’ is to ensure larger public interest and its mere holding does not impinge the Fundamental Right to admit students and fix fee which remains intact. 125. It has also been observed that the dual functioning of regulatory measure is to advance public interest as also the interest of the students. Law is not static. It has to change with changing times and with changing social/societal conditions. Reference may also be made in this regard to Paragraphs 168, 169 and 173 of the concurring judgment of Bhanumati J. in the said case. 126. Thus, the necessity of ‘CET’ to ensure adherence to merit in admission at the counselling of professional education has been emphasised in all the above referred judgments and the contention to the contrary based on Paragraph 68 of T.M.A. Pai Foundation and the observation in Paragraphs 109 and 110 of P.A. Inamdar’s case, is misconceived. Paragraph 137 of P.A. Inamdar’s case and its understanding : 127. Relying on the last four lines of paragraph 137 of the judgment of P.A. Inamdar’s case it has been vehemently contended by the learned counsel that the State can intervene only if the admission process evolved and adopted by the Institutions or group of Institutions fails the triple test. 128. As already stated earlier and in continuation of what we have said in the context of paragraph 132 to 138 of the said decision, the judgments of Courts are not to be read as a statute. 128. As already stated earlier and in continuation of what we have said in the context of paragraph 132 to 138 of the said decision, the judgments of Courts are not to be read as a statute. In paragraph 136 of the judgment in P.A. Inamdar’s case it was held that holding of ‘CET’ followed by a centralized counselling that is a Single Window System for admission does not violate the right of Minority Institutions to admit students of their choice as available to them under Article 30(1) of the Constitution, as, they can still choose their students from the merit list based on such test. What the last four lines of paragraph 137 convey is that in case there is only one institution imparting education in a particular field of higher/professional education it is entitled to evolve its own admission process in keeping and in line with the triple test, and if such admission procedure evolved by it fails the triple test, the State can intervene in such cases also. 129. As regards the admission process conducted by an Association of colleges failing the test and the State stepping in, is concerned, if it is permissible for the State to hold ‘CET’ and it does not violate the rights under Article 30 of the Constitution nor the minority character, then, such a scenario as referred in the said paragraph can also arise only if the State initially did not hold ‘CET’ for a particular type of eduction and the association of colleges had already been holding the same, and its admission process fails the triple test then it could lead to State intervention in such a scenario also but it does not mean that till this happens the State cannot hold ‘CET’ in larger public interest. 130. When we take into consideration the evolution of the law in this regard and its further exposition in Modern Dental College’s case especially the faith reposed therein on a State held ‘CET’ vis-a-vis a privately managed one as also the advocacy of application of regulatory measure such as ‘CET’ at the initial stage instead of post audit checks as discussed earlier, it is not possible to accept that the State can intervene only after failure of the admission process adopted by minority institutions or the Associations. 131. 131. It has rightly been said in Modern Dental College’s case that the law is not an Eden of concepts but rather as every day life of needs, intent and values that a given society seeks to realize in a given time. It is like an organism in an environment. The law is a tool which is intended to provide solutions for the problems of human beings in a society. To say that the malady should have actually set in and only then remedial measures should be taken by the State rather than to learn from experience in various fields of education so as to obliterate the very possibility of the malaise occurring in other fields of education so as to ensure, merit based transparent admissions in professional courses, which would better sub-serve and promote excellence in higher/professional education and the cause of merit, transparency and non-exploitative-ness as also the supervening national interest and conservation of national wealth at the level of higher and professional education, is now unacceptable in view of Modern Dental College case. In the context of Higher and Professional Education the law has evolved with time as noticed above. 132. In view of what has been held by the constitution Bench in Modern Dental College’s case, while we do not say that every institution indulges in such practice, but larger public Interest and National Interest have to be given overriding considerations, therefore, we are not able to accept the contention of the petitioners and intervenors in this regard that State can intervene only when the admission process of the institutions is found deficient. Post audit checks have been disapproved. Regulatory measures have to be applied at the initial stage. 133. The State can step in at the higher level of education/professional education by holding a CET or getting it held through its agencies followed by Centralized counselling for the purpose of admission to such courses including those run by unaided minority institution as this by itself does not violate their right to admit students of their choice in terms of Paragraph 120 of the judgment in P.A. Inamdar’s case, which remains intact. This does not endanger their minority character. It is a permissible regulation of the right to administer, in fact, it is necessary for excellence of minority institutions also. 134. This does not endanger their minority character. It is a permissible regulation of the right to administer, in fact, it is necessary for excellence of minority institutions also. 134. This shall ensure that admission to these courses does not depend upon the paying capacity of a student but on merit. Children of poor parents will have a better chance of acquiring higher/professional education, merit will not be compromised because someone’s pocket was heavier than another’s, as, the State apparatus has checks and balances in the form of Right to Information Act, Audit State legislature, Anti Corruption agencies, Lok Ayukt etc., which are non existent in a private endeavour, which inspite of the charitable nature of the activity, is motivated by profit. 135. This is how we understand paragraph 134 to 138 of the judgment in P.A. Inamdar’s case in the light of Modern Dental College case and this is how we find a resolution of the dichotomy noticed by us earlier as to who can hold the ‘CET’. This is our answer in continuation of what we have stated earlier. 136. The enunciation of law hereinabove based on the decisions of the Supreme Court is in the context of constitutional rights and protections available to minorities under Article 30 of the Constitution, therefore, it is not dependent upon any legislative enactment. In fact, it is vice-versa. The Constitution is the supreme law of the land and the Supreme Court its interpreter. If there is any legislative enactment on the subject, its validity will have to be tested on the anvil of the law referred hereinabove and not vice versa. The Act, 2006 137. It was contended before us by the learned counsel for the petitioners that Government Orders prescribing regulatory measures such as ‘CET’ for admission to B.T.C. course are invalid as they are in conflict with Section 2 of the Act, 2006, which excludes minority institutions from its purview. 138. As would be evident from the following discussion this contention is absolutely misconceived. 138. As would be evident from the following discussion this contention is absolutely misconceived. The Statement of Objects and Reasons of the Act, 2006 reads as under : “STATEMENT OF OBJECTS AND REASONS The State Government has been empowered by the Constitution Ninety-third Amendment to make special provisions regarding admission to the educational institutions including private educational institutions whether aided or unaided by the State other than the minority educational institutions referred to in clause (I) of Article 30 of the Constitution of India in favour of the persons belonging to the Scheduled Castes, Scheduled Tribes and other backwared classes of citizen. Besides, the Ministry of Human Resources, Government of India had suggested that the legislation should also be made for the regulation of admission and fixation of fee in such educational institutions. In the light of the suggestions given by the Ministry of Human Resources Government of India it has been decided to make law to provide for the regulation of admission and fixation of fee in private educational institutions and the matter connected therewith and incidental thereof. Since the State Legislature was not in session and immediate legislative action was necessary to implement the aforesaid decision the Uttar Pradesh Private Professional Educational Institutions (Regulation of Admission and Fixation of Fee) Ordinance, 2006 (U.P. Ordinance No. 1 of 2006) was promulgated by the Governor on July 10, 2006. This Bill is introduced to replace the aforesaid Ordinance.” 139. A bare reading of the Statement of Objects and Reasons makes it amply clear that the object, inter alia was, to regulate admission and fee of private unaided professonal institutions other than minority institutions. The Ninety-third Amendment of the Constitution referred therein is with respect to Article 15(5), which does not apply to minority institutions. 140. On a reading of the provisions of the Act, 2006 we find that Section 4 thereof deals with Constitution of a Committee for regulating fee. Section 5 deals with eligibility for admission to a private aided or unaided institution which shall be as notified by the State Government. 140. On a reading of the provisions of the Act, 2006 we find that Section 4 thereof deals with Constitution of a Committee for regulating fee. Section 5 deals with eligibility for admission to a private aided or unaided institution which shall be as notified by the State Government. Section 6(1) speaks of Management quota without any reservation policy of the State pertaining to Backward Classes being applicable to admission in such quota vide Sub-section 2 thereof, which clearly indicates that it would be applicable to the remaining seats which are referred in Section 7 as falling in the General Quota i.e. a quota of remaining seats against which admissions will have to be made of students provided to the institutions on the basis of the Common Entrance Test envisaged therein and not otherwise. Thus, apportioning of sanctioned seats by the State is clearly prescribed. The seats in the Management quota can be filled by the institutions on their own subject to other provisions of the Act, 2006. Section 9 prohibits admission in contravention of the Act and consequences in this regard such as recommendation for withdrawal of the affiliation or recognition of such institution are prescribed therein. Section 10 deals with fixation of fee for the courses run by the institutions by the Committee mentioned in the Act. Section 11 prescribes an Appellate Authority to hear appeals against orders of the Committee. Rest of the provisions of the Act, 2006 are not relevant for our purpose. Section 2 of the Act, 2006 reads as under : “2. This Act shall be applicable to the private aided or unaided professional educational institutions, excluding minority institutions.” 141. From a bare reading of the Act, 2006, it is self evident as to why vide Section 2 thereof, minority institutions have been excluded from its application. Section 2 of the Act, 2006 reads as under : “2. This Act shall be applicable to the private aided or unaided professional educational institutions, excluding minority institutions.” 141. From a bare reading of the Act, 2006, it is self evident as to why vide Section 2 thereof, minority institutions have been excluded from its application. Most of the provisions contained therein viz Sections 6, 7, 9, 10 and 11, if applied to unaided minority institutions, would clearly be an infringement of their rights/protections under Article 30 as per the dictums of the Supreme Court as, seat sharing, fixation of fee by the State and denial of the right to choose students of its choice including the option to choose all students from their community as available in view of Paragraph 120 of P.A. Inamdar’ case or their right to choose minority students of other States as also non minority students of the same States, a sprinkling of it, without jeopardising their minority character, as ingrained therein would clearly be infracted. The mode of admission based on CET as envisaged theirin involves seat sharing by State, which is impermissible in the case of minority institutions. The Act, 2006 in fact was not envisaged nor meant for minority institutions. The Act, 2006 is only meant for private unaided non minority institutions. This is how we read and understand it. Therefore, for the petitioners/intervenors to contend that in view of Section 2 thereof they cannot be subjected to a ‘CET’, is absolutely untenable. All that Section 2 says is that the provisions of the act as they are, would apply only to private aided or unaided professional educational institutions other than minority institutions. The petitioners/intervenors are reading into the provision something which is not there. They are inferring consequences which do not flow from it. 142. We have no hesitation in holding that Section 2 of Act, 2006 does not prohibit regulation of admission process of unaided minority professional institutions by the State, as per law, in the light of the dictum of the Supreme Court discussed by us. Section 2 of the Act, 2006 does not say that ‘CET’ as permissible by law cannot otherwise be prescribed for such minority institutions. 143. Section 2 of the Act, 2006 does not say that ‘CET’ as permissible by law cannot otherwise be prescribed for such minority institutions. 143. We have also no hesitation in saying that there is no constitutional or legal compulsion to exclude the minority institutions from a Single Window mechanism for admission, in fact, any such exclusion would deprive the minority institutions of excellence in education which is one of the objects of Article 30 which would be against the interest of the minority communities itself, therefore, even otherwise it would have to be read down in consonance with the law declared by Supreme Court. Prescription of ‘CET’/Regulatory Measures under Article 19 and 30 by Government Orders 144. Whether such regulatory measures as referred above could be introduced by a Government Order is another issue which has been raised before us. It has been vehemently contended by the petitioners/intervenors that this cannot be done. 145. We are concerned with application of regulatory measures or reasonable restrictions in the context of Article 30 and 19(1)(g) of the Constitution as both apply to minority institutions in their own sphere. 146. This issue was considered by a Constitution Bench of the Supreme Court in the case of Rai Sahib Ram Jawaya Kapur and others v. State of Punjab, AIR 1955 SC 549 , wherein the State sought to enter into printing business by means of issuance of Government Orders. The contention before the Supreme Court was that this was violative of Article 19(1) (g) and as per Article 19(6) such restrictions, if at all, could be put in place only by an enactment of legislature and not by executive instructions. The Supreme Court, inter alia, held as under : “Neither of these articles contain any definition as to what the executive function is and what activities would legitimately come within its scope. They are concerned primarily with the distribution of the executive power between the Union on the one hand and the States on the other. They do not mean, as Mr. Pathak seems to suggest, that it is only when the Parliament or the State Legislature has legislated on certain items appertaining to their respective lists, that the Union or the State executive, as the case may be, can proceed to function in respect to them. They do not mean, as Mr. Pathak seems to suggest, that it is only when the Parliament or the State Legislature has legislated on certain items appertaining to their respective lists, that the Union or the State executive, as the case may be, can proceed to function in respect to them. On the other hand, the language of article 162 clearly indicates that the powers of the State executive do extend to matters upon which the State Legislature is competent to legislate and are not confined to matters over which legislation has been passed already. The same principle underlies Article 73 of the Constitution. These provisions of the Constitution therefore do not lend any support to Mr. Pathak’s contention.” 147. It is also worthwhile to quote the observations of the Supreme Court in Paragraph 17 thereof, which are as under : “(17) Specific legislation may indeed be necessary if the Government require certain powers in addition to what they possess under ordinary law in order to carry on the particular trade or business. Thus when it is necessary to encroach upon private rights in order to enable the Government to carry on their business, a specific legislation sanctioning such course would have to be passed.” 148. The said Constitution Bench decision was considered by another Constitution Bench of the Supreme Court in the case of State of Madhya Pradesh and another v. Thakur Bharat Singh, AIR 1967 SC 1170 , which clarified and diluted the earlier decision. It held as under : “(5) ..... In our judgment, this argument involves a grave fallacy. All executive action which operates to the prejudice of any person must have the authority of law to support it, and the terms of Article 358 do not detract from that rule. Article 358 expressly authorises the State to take legislative or executive action provided such action was competent for the State to make or take, but for the provisions contained in Part III of the Constitution. Article 358 does not purport to invest the State with arbitrary authority to take action to the prejudice of citizens and others: it merely provides that so long as the proclamation of emergency subsists laws may be enacted, and executive action may be taken in pursuance of lawful authority, which if the provisions of Article 19 were operative would have been invalid. Our federal structure is founded on certain fundamental principles: (1) the sovereignty of the people with limited Government authority, i.e., the Government must be conducted in accordance with the will of the majority of the people. The people govern themselves through their representatives, whereas the official agencies of the executive Government possess only such powers as have been conferred upon them by the people; (2) There is distribution of powers between the three organs of the State - legislative, executive and judicial - each organ having some check direct or indirect on the other; and (3) the rule of law which includes judicial review of arbitrary executive actions. As pointed out by Dicey in his “Introduction to the study of the Law of the Constitution”, 10th Edn., at p. 202, the expression “rule of law” has three meanings, or may be regarded from three different points of view. “It means, in the first place, the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, of prerogative, or even of wide discretionary authority on the part of the Government.” At p. 188 Dicey points out : “In almost every continental community the executive exercises far wider discretionary authority in the matter of arrest, of temporary imprisonment, of expulsion from its territory, and the like, than is either legally claimed or in fact exerted by the Government in England: and a study of European politics now and again reminds English readers that wherever there is discretion there is room for arbitrariness, and that in a republic no less than under monarchy discretionary authority on the part of the Government must mean insecurity for legal freedom on the part of its subjects.” We have adopted under our Constitution not the continental system but the British system under which the rule of law prevails. Every Act done by the Government or by its officers must, if it is to operate to the prejudice of any person, be supported by some legislative authority. Every Act done by the Government or by its officers must, if it is to operate to the prejudice of any person, be supported by some legislative authority. (6) Counsel for the State relied upon the terms of Article 162 of the Constitution, and the decision of this Court in Ram Jawaya Kapur v. State of Punjab, 1955-2 SCR 225:( AIR 1955 SC 549 ), in support of the contention that it is open to the State to issue executive orders even if the there is no legislation in support thereof provided the State could legislate on the subject in respect of which action is taken. Article 162 provides that subject to the provisions of the Constitution, the executive power of a State shall extend to the matters with respect to which the Legislature of the State has power to make laws. But Article 162 and Article 73 are concerned primarily with the distribution of executive power between the Union on the one hand and the States on the other, and not with the validity of its exercise. Counsel for the State, however, strongly relied upon the observations of Mukherjea, C.J., in Ram Jawaya Kapur’s case, 1955-2 SCR 225: ( AIR 1955 SC 549 ); “They do not mean,.... that it is only when the Parliament or the State Legislature has legislated on certain items appertaining to their respective lists, that the Union or the State executive, as the case may be, can proceed to function in respect to them. On the other hand, the language of Article 162 clearly indicates that the powers of the State executive do extend to matters upon which the State Legislature is competent to legislate and are not confined to matters over which legislation has been passed already.” These observations must be read in the light of the facts of the case. The executive action which was upheld in that case was, it is true, not supported by legislation, but it did not operate to the prejudice of any citizen. In the State of Punjab prior to 1950 the text books used in recognized schools were prepared by private publishers and they were submitted for approval of the Government. In 1950 the State Government published text books in certain subjects, and in other subjects the State Government approved text books submitted by publishers and authors. In the State of Punjab prior to 1950 the text books used in recognized schools were prepared by private publishers and they were submitted for approval of the Government. In 1950 the State Government published text books in certain subjects, and in other subjects the State Government approved text books submitted by publishers and authors. In 1952 a notification was issued by the Government inviting only “authors and others” to submit text books for approval by the Government. Under agreements with the authors and others the copyright in the text books vested absolutely in the State and the authors and others received royalty on the sale of those text books. The petitioners - a firm carrying on the business of preparing, printing, publishing and selling text books - then moved this Court under Article 32 of the Constitution praying for writs of mandamus directing the Punjab Government to withdraw the notifications of 1950 and 1952 on the ground that they contravened the fundamental rights of the petitioners guaranteed under the Constitution. It was held by this Court that the action of the Government did not amount to infraction of the guarantee under Article 19 (1) (g) of the Constitution, since no fundamental rights of the petitioners were violated by the notifications and the acts of the executive Government done in furtherance of their policy of nationalisation of text books for students. It is true that the dispute arose before the Constitution (Seventh Amendment) Act, 1956, amending inter alia, Article 298, was enacted, and there was no legislation authorising the State Government to enter the field of business of printing, publishing and selling text books. It was contended in support of the petition in Ram Jawaya’s case, 1955-2 SCR 225; ( AIR 1955 SC 549 ), that without legislative authority the Government of the State could not enter the business of printing, publishing and selling text books. The Court held that by the action of the Government no rights of the petitioners were infringed, since a mere chance or prospect of having particular customers cannot be said to a be right to property or to any interest or undertaking. It is clear that the State of Punjab had done no act which infringed a right of any citizen: the State had merely entered upon a trading venture. By entering into competition with the citizens, it did not infringe their rights. It is clear that the State of Punjab had done no act which infringed a right of any citizen: the State had merely entered upon a trading venture. By entering into competition with the citizens, it did not infringe their rights. Viewed in the light of these facts the observations relied upon do not support the contention that the State or its officers may in exercise of executive authority infringe the rights of the citizens merely because the Legislature of the State has the power to legislate in regard to the Subject on which the executive order is issued.” 149. With regard to earlier Constitution Bench decision the same was explained by saying that the Government Orders impugned therein were not interfered, as, they did not prejudice any person, but, it categorically held that such prejudice or deprivation of rights of citizens could only be occasioned by an enactment of the legislature or rules/orders made thereunder. 150. Trade or Business in res extra commercium can be regulated and restricted by executive orders also as held by the Constitution Bench in the case of Khoday Distilleries Ltd. and others v. State of Karnataka and others, (1995) 1 SCC 574 (paragraph 64), therefore, this is an exception in the context of Article 19. 151. In the case of State of Bihar and others v. Project Uchcha Vidya, Sikshak Sangh and others, (2006) 2 SCC 545 , the Supreme Court again had the occasion to consider this issue and referring to the eleven Judges Bench decision in the case of T.M.A. Pai Foundation it held that a citizen cannot be deprived of rights under article 19(1)(g) except in accordance with law. This could not be done under article 19 (6) by a circular or a policy decision in terms of Article 162 of the constitution or otherwise. It could be done only by an enactment of the legislature. Paragraph 69 of the said judgment reads as under : “69. The right to manage an institution is also a right to property. In view of a decision of an eleven-Judge Bench of this Court in T.M.A. Pai Foundation v. State of Karnataka6 establishment and management of an educational institution has been held to be a part of fundamental right being a right of occupation as envisaged under Article 19(1)(g) of the Constitution. In view of a decision of an eleven-Judge Bench of this Court in T.M.A. Pai Foundation v. State of Karnataka6 establishment and management of an educational institution has been held to be a part of fundamental right being a right of occupation as envisaged under Article 19(1)(g) of the Constitution. A citizen cannot be deprived of the said right except in accordance with law. The requirement of law for the purpose of clause (6) of Article 19 of the Constitution can by no stretch of imagination be achieved by issuing a circular or a policy decision in terms of Article 162 of the Constitution or otherwise. Such a law, it is trite, must be one enacted by legislature.” 152. In the aforesaid case it was also held that the decision of the Constitution Bench in Rai Sahib Ram Jawaya Kapur’s case (supra) was diluted by the subsequent Constitution Bench decision in the case of Thakur Bharat Singh (supra), as, already discussed by us earlier. 153. A similar issue arose in the context of Article 16(4) of the Constitution of India for providing reservation in public employment and the Supreme Court vide its majority judgment authored by Justice B.P. Jeevan Reddy, in the case of Indra Sawhney v. Union of India, 1992 Suppl. (3) SCC 217 (Paragraph 735, 736, 737, 738, 739 and 740) held as under : “735. Sri K.K. Venugopal, learned Counsel for the petitioner in writ petition No. 930 of 1990 submits that the “provision” contemplated by Clause (4) of Article 16 can be made only by and should necessarily be made by the legislative wing of the State and not by the executive or any other authority. He disputes the correctness of the holding in Balaji12 negativing an identical contention. He submits that since the provision made under Article 16(4) affects the fundamental rights of other citizens, such a provision can be made only by the Parliament/Legislature. He submits that if the power of making the “provision” is given to the executive, it well give room for any amount of abuse. According to the learned counsel, the political executive, owing to the degeneration of the electoral process, normally acts out of political and electoral compulsions, for which reason it may not act fairly and independently. He submits that if the power of making the “provision” is given to the executive, it well give room for any amount of abuse. According to the learned counsel, the political executive, owing to the degeneration of the electoral process, normally acts out of political and electoral compulsions, for which reason it may not act fairly and independently. If, on the other hand, the provision is to be made by the legislative wing of the State, it will not only provide an opportunity for debate and discussion in the legislature where several shades of opinion are represented but a balanced and unbiased decision free from the allurements of electoral gains is more likely to emerge from such a deliberating body. Shri Venugopal cites the example of Tamil Nadu where, according to him, before every general election a few communities are added to the list of backward classes, only with a view to winning them over to the ruling party. We are not concerned with the aspect of what is ideal or desirable but with what is the proper meaning to be ascribed to the expression ‘provision’ in Article 16(4) having regard to the context. The use of the expression ‘provision’ in clause (4) of Article 16 appears to us to be not without design. According to the definition of ‘State’ in Article 12, it includes not merely the Government and Parliament of India and Government and Legislature of each of the States but all local authorities and other authorities within the territory of India or under the control of the Government of India which means that such a measure of reservation can be provided not only in the matter of services under the Central and State Governments but also in the services of local and other authorities referred to in Article 12. The expression ‘Local Authority’ is defined in Section 3(31) of the General Clauses Act. It takes in all municipalities, Panchayats and other similar bodies. The expression ‘other authorities’ has received extensive attention from the Court. It includes all statutory authorities and other agencies and instrumentalities of the State Government/Central Government. Now, would it be reasonable, possible or practicable to say that the Parliament or the Legislature of the State should provide for reservation of posts/appointments in the services of all such bodies besides providing for in respect of services under the Central/State Government? It includes all statutory authorities and other agencies and instrumentalities of the State Government/Central Government. Now, would it be reasonable, possible or practicable to say that the Parliament or the Legislature of the State should provide for reservation of posts/appointments in the services of all such bodies besides providing for in respect of services under the Central/State Government? This aspect would become clearer if we notice the definition of “Law” in Article 13(3)(a). It reads: “13(3) In this article, unless the context otherwise requires,- (a) “Law” includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law;...” 736. The words “order”, “bye-law”, “rule” and “regulation” in this definition are significant. Reading the definition of “State” in Article 12 and of “Law” in Article 13(3)(a), it becomes clear that a measure of the nature contemplated by Article 16(4) can be provided not only by the Parliament/Legislature but also by the executive in respect of Central/State services and by the local bodies and “other authorities” contemplated by Article 12, in respect of their respective services. Some of the local bodies and and some of the statutory corporations like universities may have their own legislative wings. In such a situation, it would be unreasonable and inappropriate to insist that reservation in all these services should be provided by Parliament/Legislature. The situation and circumstances of each of these bodies may vary. The rule regarding reservation has to be framed to suit the particular situations. All this cannot reasonably be done by Parliament/Legislature. 737. Even textually speaking, the contention cannot be accepted. The very use of the word “provision” in Article 16(4) is significant. Whereas clauses (3) and (5) of Article 16 - and clauses (2) to (6) of Article 19 - use the word “law”, Article 16(4) uses the word “provision”. Regulation of service conditions by orders and rules made by the executive was a well-known feature at the time of the framing of the Constitution. Probably for this reason, a deliberate departure has been made in the case of clause (4). Accordingly, we hold, agreeing with Balaji12, that the “provision” contemplated by Article 16(4) can also be made by the executive wing of the Union or of the State, as the case may be, as has been done in the present case. Probably for this reason, a deliberate departure has been made in the case of clause (4). Accordingly, we hold, agreeing with Balaji12, that the “provision” contemplated by Article 16(4) can also be made by the executive wing of the Union or of the State, as the case may be, as has been done in the present case. Bajaji12 has been followed recently in Comptroller and Auditor-General of India v. Mohan Lal Mehrotra28. With respect to the argument of abuse of power by the political executive, we may say that there is adequate safeguard against misuse by the political executive of the power under Article 16(4) in the provision itself. Any determination of backwardness is not a subjective exercise nor a matter of subjective satisfaction. As held herein - as also by earlier judgments - the exercise is an objective one. Certain objective social and other criteria has to be satisfied before any group or class of citizens could be treated as backward. If the executive includes, for collateral reasons, groups or classes not satisfying the relevant criteria, it would be a clear case of fraud on power. 738. A question is raised whether an executive order made in terms of Article 16(4) is effective and enforceable by itself or whether it is necessary that the said “provision” is enacted into a law made by the appropriate legislature under Article 309 or is incorporated into and issued as a Rule by the President/Governor under the proviso to Article 309 for it to become enforceable? Mr. Ram Jethmalani submits that Article 16(4) is merely declaratory in nature, that it is an enabling provision and that it is not a source of power by itself. He submits that unless made into a law by the appropriate legislature or issued as a rule in terms of the proviso to Article 309, the “provision” so made by the executive does not become enforceable. At the same time, he submits that the impugned Memorandums must be deemed to be and must be treated as Rules made and issued under the proviso to Article 309 of the Constitution. We find it difficult to agree with Shri Jethmalani. Once we hold that a provision under Article 16(4) can be made by the executive, it must necessarily follow that such a provision is effective the moment it is made. We find it difficult to agree with Shri Jethmalani. Once we hold that a provision under Article 16(4) can be made by the executive, it must necessarily follow that such a provision is effective the moment it is made. A Constitution Bench of this Court in B.S. Yadav139, (Y.V. Chandrachud, CJ, speaking for the Bench) has observed: “Article 235 does not confer upon the High Court the power to make rules relating to conditions of service of judicial officers attached to district Courts and the Courts subordinate thereto. Whenever it was intended to confer on any authority the power to make any special provisions or rules, including rules relating to conditions of service, the Constitution has stated so in express terms. See, for example Articles 15(4), 16(4), 77(3), 87(2), 118, 145(1), 146(1) and (2), 148(5), 166(3), 176(2), 187(3), 208, 225, 227(2) and (3), 229(1) and (2), 234, 237 and 283(1) and (2).” 739. Be that as it may, there is yet another reason, why we cannot agree that the impugned Memorandums are not effective and enforceable the moment they are issued. It is well-settled by the decisions of this Court that the appropriate Government is empowered to prescribe the conditions of service of its employees by an executive order in the absence of the rules made under the proviso to Article 309. It is further held by this Court that even where Rules under the proviso to Article 309 are made, the Government can issue orders/instructions with respect to matters upon which the Rules are silent. (See Sant Ram Sharma v. State of Rajasthan140.) This view has been reiterated in a recent decision of this Court in Comptroller and Auditor General v. Mohanlal Mehrotra28 wherein it is held: “The High Court is not right in stating that there cannot be an administrative order directing reservation for Scheduled Castes and Scheduled Tribes as it would alter the statutory rules in force. The rules do not provide for any reservation. In fact, it is silent on the subject of reservation. The Government could direct the reservation by executive orders. The rules do not provide for any reservation. In fact, it is silent on the subject of reservation. The Government could direct the reservation by executive orders. The administrative orders cannot be issued in contravention of the statutory rules but it could be issued to supplement the statutory rules (See the observations in Sant Ram Sharma v. State of Rajasthan140.) In fact similar circulars were issued by the Railway Board introducing reservations for Scheduled Castes and Scheduled Tribes in the Railway services both for selection and non-selection categories of posts. They were issued to implement the policy of the Central Government and they have been upheld by this Court in Akhil Bhartiya Soshit Karamchari Sangh (Railways) v. Union of India11.” 740. It would, therefore, follow that until a law is made or rules are issued under Article 309 with respect to reservation in favour of backward classes, it would always be open to the Executive Government to provide for reservation of appointments/posts in favour of Backward Classes by an executive order. We cannot also agree with Shri Jethmalani that the impugned Memorandums should be treated as Rules made under the proviso to Article 309. There is nothing in them suggesting even distantly that they were issued under the proviso to Article 309. They were never intended to be so, nor is that the stand of the Union Government before us. They are executive orders issued under Article 73 of the Constitution read with clause (4) of Article 16. The mere omission of a recital “in the name and by order of the President of India” does not affect the validity or enforceability of the orders, as held by this Court repeatedly.” 154. Justice P.B. Sawant, Justice Kuldip Singh and Justice S. Ratnavel Pandian concurred with the majority view on this issue. 155. However, we must not forget that the language used as is evident from the above quoted paragraph, in Article 16(4) is “nothing in this Article shall prevent the State from making any provision......”, moreover, it is an enabling provision which does not by itself confer any right nor does it compel the State to make reservation. 155. However, we must not forget that the language used as is evident from the above quoted paragraph, in Article 16(4) is “nothing in this Article shall prevent the State from making any provision......”, moreover, it is an enabling provision which does not by itself confer any right nor does it compel the State to make reservation. It permits the State to make a provision, therefore, any Government order issued under Article 73/162 read with Article 16(4), unless it is contrary to any enactment or Rule made under the proviso to Article 309, would be permissible and would be law for the said purpose even as per Article 13 and it is this aspect which persuaded their Lordships to hold that reservation under Article 16(4) could be provided by executive instructions of the Government also, in view of the definition of ‘State’ in Article 12, and the observations in this regard have to be read and understood in this context. Reference may also be made in this regard to the decision of the Supreme Court rendered in the case of M.R. Balaji and others v. The State of Mysore and others, AIR 1963 SC 649 , paragraph 19 of which explains the legal position as under : “(19) Then it is urged that even if special provision can be made by the State under Article 15(4), the said provision must be made not by an executive order by the legislation. This argument is equally mis-conceived. Under Article 12, the State includes the Government and the Legislature of each of the States, and so, it would be unreasonable to suggest that the State must necessarily mean the Legislature and not the Government. Besides, where the Constitution intended that a certain action should be taken by legislation and not by executive action it has adopted suitable phraseology in that behalf. Article 16(3) and (5) are illustrations in point. Both the said sub-cls. of Article 16, in terms, refer to the making of the law by the Parliament in respect of the matters covered by them. Similarly, Articles 341(2) and 342(2) expressly refer to a law being made by Parliament as therein contemplated. Therefore, when Article 15(4) contemplates that the State can make the special provision in question, it is clear that the said provision can be made by an executive order.” 156. Similarly, Articles 341(2) and 342(2) expressly refer to a law being made by Parliament as therein contemplated. Therefore, when Article 15(4) contemplates that the State can make the special provision in question, it is clear that the said provision can be made by an executive order.” 156. The Law on the subject in the context of Article 19(1)(g) and 19(6) was succinctly but lucidly elucidated by the Supreme Court in the case of Union of India v. Naveen Jindal and another, (2004) 2 SCC 510 , wherein the question arose as to whether the National Flag Code which was in the nature of executive instruction referable to Article 77 of the Constitution of India could form a reasonable restriction upon rights available under Article 19(1)(g) and the Supreme Court held as under : “28. Before we proceed further, it is necessary to deal with the question, whether Flag Code is “law”? Flag Code concededly contains the executive instructions of the Central Government. It is stated that the Ministry of Home Affairs, which is competent to issue the instructions contained in the Flag Code and all matters relating thereto are one of the items of business allocated to the said Ministry by the President under the Government of India (Allocation of Business) Rules, 1961 framed in terms of Article 77 of the Constitution of India. The question, however, is as to whether the said executive instruction is “law” within the meaning of Article 13 of the Constitution of India. Article 13(3)(a) of the Constitution of India, reads thus: “13. (3) (a) “Law” includes any Ordinance, order bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law.” 29. A bare perusal of the said provision would clearly go to show that executive instructions would not fall within the aforementioned category. Such executive instructions may have the force of law for some other purposes; as for example those instructions which are issued as a supplement to the legislative power in terms of clause (1) of Article 77 of the Constitution of India. The necessity as regards determination of the said question has arisen as Parliament has not chosen to enact a statute which would confer at least a statutory right upon a citizen of India to fly a National Flag. The necessity as regards determination of the said question has arisen as Parliament has not chosen to enact a statute which would confer at least a statutory right upon a citizen of India to fly a National Flag. An executive instruction issued by the appellant herein can any time be replaced by another set of executive instructions and thus deprive Indian citizens from flying National Flag. Furthermore, such a question will also arise in the event if it be held that right to fly the National Flag is a fundamental or a natural right within the meaning of Article 19 of the Constitution of India; as for the purpose of regulating the exercise of right of freedom guaranteed under Article 19(1)(a) to (e) and (g) a law must be made. 78. Flag Code is not a statute; thereby the fundamental right under Article 19(1)(a) is not regulated. But the guidelines as laid down under the Flag Code deserve to be followed to the extent it provides for preservation of dignity and respect for the National Flag. The right to fly the National Flag is not an absolute right. The freedom of expression for the purpose of giving a feeling of nationalism and for that purpose all that is required to be done is that the duty to respect the flag must be strictly obeyed. The pride of a person involved in flying the flag is the pride to be an Indian and that, thus, in all respects respect to it must be shown. The State may not tolerate even the slightest disrespect.” 157. Except in the context of Trade or Business in res extra commercium, reasonable restrictions under Article 19(6) have to be by law enacted within the meaning of Article 13(3)(a). 158. Even though the language of Article 30 does not provide for any reasonable restrictions by law as is provided under Article 19(6) but these have been held to be applicable on the same lines as aforesaid by virtue of judicial pronouncements in the case of T.M.A. Pai Foundation and P.A. Inamdar as already discussed above. 158. Even though the language of Article 30 does not provide for any reasonable restrictions by law as is provided under Article 19(6) but these have been held to be applicable on the same lines as aforesaid by virtue of judicial pronouncements in the case of T.M.A. Pai Foundation and P.A. Inamdar as already discussed above. Reference may be made in this regard to Paragraphs 135, 136, 137 and 138 of T.M.A. Pai Foundation’s case, wherein it has been held that the Constitution in Part-III does not contain or give any absolute right and even though, the words in Article 30(1) are unqualified, at least certain other laws of the land which pertain to health, morality and standards of education apply. It is also subject to other provisions of Part-III of the Constitution. Reference may also be made in this regard to the decision of P.A. Inamdar, Paragraphs 144, 147, 148 and 155 specifically, which read as under : “144. The two committees for monitoring admission procedure and determining fee structure in the judgment of Islamic Academy2 are in our view, permissible as regulatory measures aimed at protecting the interest of the student community as a whole as also the minorities themselves, in maintaining required standards of professional education on non-exploitative terms in their institutions. Legal provisions made by the State Legislatures or the scheme evolved by the Court for monitoring admission procedure and fee fixation do not violate the right of minorities under Article 30(1) or the right of minorities and non-minorities under Article 19(1)(g). They are reasonable restrictions in the interest of minority institutions permissible under Article 30(1) and in the interest of general public under Article 19(6) of the Constitution. 147. In our considered view, on the basis of judgment in Pai Foundation1 and various previous judgments of this Court which have been taken into consideration in that case, the scheme evolved of setting up the two Committees for regulating admissions and determining fee structure by the judgment in Islamic Academy2 cannot be faulted either on the ground of alleged infringement of Article 19(1)(g) in case of unaided professional educational institutions of both categories and Article 19(1)(g) read with Article 30 in case of unaided professional institutions of minorities. 148. 148. A fortiori, we do not see any impediment to the constitution of the Committees as a stopgap or ad hoc arrangement made in exercise of the power conferred on this Court by Article 142 of the Constitution until a suitable legislation or regulation framed by the State steps in. Such Committees cannot be equated with Unni Krishnan3 Committees which were supposed to be permanent in nature. 155. It is for the Central Government, or for the State Governments, in the absence of a Central legislation, to come out with a detailed well-thought-out legislation on the subject. Such a legislation is long awaited. The States must act towards this direction. The judicial wing of the State is called upon to act when the other two wings, the legislature and the executive, do not act. The earlier the Union of India and the State Governments act, the better it would be. The Committees regulating admission procedure and fee structure shall continue to exist, but only as a temporary measure and an inevitable passing phase until the Central Government or the State Governments are able to devise a suitable mechanism and appoint competent authority in consonance with the observations made hereinabove. Needless to say, any decision taken by such Committees and by the Central or the State Governments, shall be open to judicial review in accordance with the settled parameters for the exercise of such jurisdiction.” 159. The Supreme Court in Paragraph 148 made a stopgap arrangement for constitution of Committees for such regulation in exercise of its powers under Article 142 of the Constitution, “until a suitable legislation or regulation framed by the State steps in.” Thus, the word suitable legislation has been used which has to be understood in the light of Article 13(3)(a). 160. Regulatory measures in respect of Article 30 are also restrictions on the rights of minority institutions under Article 19. Imposition of restriction on or regulation of a right conferred by the Constitution is different from an affirmative action by the State under an enabling provision therein, therefore, the Constitution has made separate provisions for them. 161. 160. Regulatory measures in respect of Article 30 are also restrictions on the rights of minority institutions under Article 19. Imposition of restriction on or regulation of a right conferred by the Constitution is different from an affirmative action by the State under an enabling provision therein, therefore, the Constitution has made separate provisions for them. 161. In view of the above, when it comes to applying regulatory measures or reasonable restrictions in the context of fundamental rights or protections enshrined in Part-III of the Constitution of India, such as Article 19 and 30, such measures and restrictions, keeping in mind Article 13, can be applied only by an act of the legislature or an ordinance, rule, regulation, order, notification made thereunder, which would have the force of law and not by executive instructions or orders issued by the State in exercise of its executive functions referable to Article 73/162 and Article 77/166 of the Constitution of India, much less by those not referable to these provisions, as, they do not have the force of law for this purpose, except when any provision of Part-III permits otherwise, such as Article 15(4) and 16(4) as interpreted by the Supreme Court in the case of Indra Sawhney (supra) and M.R. Balaji’s case (supra). Trade or Business in res extra commercium would be also an excpetion in this regard. 162. Such executive orders may be resorted to as a supplement to exercise of legislative powers/functions of the State in terms of the constitutional scheme and in that sense may be treated as law, but, they cannot regulate or restrict the rights available under Part-III of the Constitution subject of course to the aforesaid exception, as, these rights are too valuable and fundamental to be dealt with otherwise. 163. Thus, such regulation under Article 30 can be done only by law as aforesaid. It is for this reason the Supreme Court in its judgment in P.A. Inamdar’s case has spoken of suitable legislation or regulation for applying such regulatory measures. 164. 163. Thus, such regulation under Article 30 can be done only by law as aforesaid. It is for this reason the Supreme Court in its judgment in P.A. Inamdar’s case has spoken of suitable legislation or regulation for applying such regulatory measures. 164. Having said so, we are also of the view that in a given situation, if exigencies so require, such as when legislation may take some time and immediate action is required in larger Public Interest, such regulatory measures through Government Orders strictly in terms of Article 162 and 166 of the Constitution, in furtherance of and/or in compliance of a judgment or order of the Supreme Court and/or law declared by it under Article 141, as a temporary measure to be followed by appropriate law being made in this regard, especially in view of Article 144 of the Constitution, may not be interfered with by the High Court in exercise of its jurisdiction under Article 226 of the Constitution of India, if, doing so would jeopardize larger Public Interest and may do more harm than good. (i) NCTE ACT, 1993- regulations made thereunder and orders referable to it. 165. In the context of admission to B.T.C. (D.El.Ed.) Courses being run by the petitioners there is an enactment of Parliament, namely, National Council for Teachers Education Act, 1993 (hereinafter referred to as ‘Act, 1993) referable to Entry 66 of the Union List and Entry 25 of the concurrent list of the VIIth Schedule to the Constitution. Entry 66 List—I reads as under : “List I- Union List- 66. Co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions.” Entry 25 of List-III of the Constitution reads as under : “List III- Concurrent List 25. Education, including technical education, medical education and universities, subject to the provisions of entries 63, 64, 65 and 66 of List I; vocational and technical training of labour.” 166. As per the long title of the Act, 1993 it was promulgated for the establishment of a National Council for Teacher Education (in short referred to as ‘NCTE’) with a view to achieve planned and co-ordinated development for the teacher education system throughout the Country, the regulation and proper maintenance of norms and standards in the Teacher Education System and for matters connected therewith. 167. 167. Section 12 of the said Act, 1993 deals with the functions of the NCTE. It provides that it shall be the duty of the NCTE to take all such steps as it may think fit for ensuring planned and coordinated development of teacher education and for the determination and maintenance of standards for teacher education and for the purposes of performing its functions under this Act, the NCTE may perform the functions mentioned in Clause-(a) to (n). Clause (e) thereof reads as under : “(e) lay down norms for any specified category of courses or training in teacher education, including the minimum eligibility criteria for admission thereof, and the method of selection of candidates, duration of the course, course contents and mode of curriculum;” 168. In view of the above, the NCTE is empowered to lay down norms including the minimum eligibility criteria for admission for any specified category of courses or training in teacher education and the method of selection of candidates for such courses etc. 169. ‘CET’ is an eligibility condition or criteria for admission, as observed by the Supreme Court in the order dated 9.5.2016 quoted earlier, therefore, NCTE is entitled to prescribe the same under Section 12(e). 170. Under Section 14-recognition of the NCTE is mandatory for imparting Teaching and Training in Teacher Education. As per Sub-section (3) of Section 14- recognition can be granted to an institution subject to such conditions as may be determined by Regulations. Under Section 32 the Council has the power to make the Regulations generally to carry out the provisions of the said Act. In addition to these general powers and without prejudice to them in particular such Regulations may provide for all or any of the matters enumerated in Clause-(a) to (p) of the said Section. Sub-section 2 Clause (d) (ii) refers to the functions under Section 12(e). Clause (f) refers to Section 14 including conditions for granting Recognition. Clause (p) refers to any other matter in respect of which provision is to be, or may be, made by regulations. The Regulations so made are to be placed before the Parliament under Section 33. Needless to say, these Regulations have statutory force. 171. The NCTE has framed Regulations known as the National Council for Teacher Education (Recognition Norms and Procedure) Regulations, 2014. The Regulations so made are to be placed before the Parliament under Section 33. Needless to say, these Regulations have statutory force. 171. The NCTE has framed Regulations known as the National Council for Teacher Education (Recognition Norms and Procedure) Regulations, 2014. Similar Regulations were made in the year 2002, 2007 and 2009 and also existed prior to it. Appendix- 2 of the aforesaid Regulations relate to Diploma in Elementary Education (D-El. Ed.) programmes. As per Regulation 2 it applies to B.T.C. Courses also, in fact the said course has been re-designated as D.El.Ed. Regulation 3.3 thereof reads as under : “3.3 Admission Procedure Admission shall be made on merit on the basis of marks obtained in the qualifying examination and/or in the entrance examination or any other selection process as per the policy of the State Government/U.T. Administration and the University.” 172. A similar provision as Regulation 3.3 relating to admission procedure pertaining to B.Ed. Course existed in the earlier Regulations of 2002 and 2007 which fell for consideration before a Full Bench of this Court in the case of Tuples Educational Society v. State of U.P and others, 2008(4) ADJ 112 (FB), wherein various questions fell for consideration. 173. After taking into consideration the aforesaid provision prescribing a ‘CET’ the Full Bench opined that admission process to such courses had to be based on CET either to be conducted by the State/University or the Association of Colleges conducting such Courses. Individual institutions could not hold their separate tests. Questions No. 1 before it and its answer by the Full Bench was as under : “52. In the circumstances, we answer these issues as follows: 1. Whether the admissions to private unaided (minority and non-minority) colleges imparting education for Bachelor of Education Courses recognized by NCTE and affiliated to the University can be made by any method other than by holding a common entrance test either by the State/Universities or by all the colleges of the State coming together as provided in P.A. Inamdar’s case? Ans. No. ” 174. Ans. No. ” 174. At this stage we would like to make it clear that as regards the entitlement of Association of colleges to hold such ‘CET’ aforesaid, the Full Bench which decided the Tuples’s case did not have the benefit of the Constitution Bench decision of the Supreme Court in Modern Dental College’s case nor the subsequent orders passed by it on 9.5.2016 and thereafter, which are before this Full Bench and binding on it, therefore, this aspect has been clarified by us earlier in the light of the said decision. 175. In the said case the Full Bench considered the interplay and precedence of the NCTE Act, 1993 over the U.P. State Universities Act, 1973. Although, the Act, 2006, which has been placed before us, does not appear to have been considered, nevertheless, the provisions of Article 246 etc. and the entries of the Union and concurrent list were considered and it was held that as NCTE was a central enactment on the subject of admission process, therefore, it would prevail over a State enactment. It was held that the Regulations made by the NCTE were binding. Entry 66 of List-I and Entry 25 of List-III of the VIIth Schedule of the Constitution and the law on the subject including the Constitution Bench decision in Dr. Preeti Srivastava and another v. State of U.P. and others, AIR 1999 SC 2894 , as also various other decisions were also considered. Reference may be made in this regard to paragraph Nos. 20 to 30, 93, 94, 95, 96, 97, 104, 105, 106, 107, 108, 109, 111, 112, 113 to 117 of the said judgment. 176. In this context it is not out of place to mention that the Legislative Competence of the Central and State Legislatures with regard to Entry 25 of the concurrent list was the subject-matter of consideration not only in T.M.A. Pai Foundation case but also in Modern Dental College’s case. In Modern Dental College’ case one of the grounds was the competence of State Legislature to enact on the subject of admissions to Medical Courses. The Constitution Bench held that in view of Entry 25 of the concurrent list it had the competence, however, in the said case there was no Central Enactment to the contrary nor did the State Enactment run contrary to any Central Enactment or Regulations made thereunder. The Constitution Bench held that in view of Entry 25 of the concurrent list it had the competence, however, in the said case there was no Central Enactment to the contrary nor did the State Enactment run contrary to any Central Enactment or Regulations made thereunder. The only issue was the competence of the State legislature. The observations made therein have to be read in the light of the aforesaid context. In this regard it is worthwhile to refer to Paragraph 101, 103 and 105 of the said decision. 177. In Paragraph 101 it was held that other facets of education including Technical and Medical Education i.e. those not covered by Entry 66 of List-I, as well as governance of Universities, even State Legislatures had the power by virtue of Entry 25. The field covered by List-III Entry 25 was wide enough and was subscribed to the limited extent of it being subject to Entries 63, 64, 65 and 66 of List-I. In Paragraph 103 it considered the amendments to Entry 25 of List-III and held that after the amendment the said entry granted concurrent powers to both Parliament and State Legislature to legislate with respect to all other aspects of education, except that which was specifically covered by Entries 63 to 66 of List-I regarding which the Parliament alone had the power. Referring to various decisions specially the Constitution Bench decision in Dr. Preeti Srivastava’s case (supra) the Supreme Court observed in Para 105 of its judgment that no doubt List-III Entry 25 is subject to List-I Entry 66, it is not possible to exclude the entire gamut of admissions from Entry 25 of List-III, however, exercise of any power under Entry 25 of List-III has to be subject to a Central law referable to Entry 25. This, therefore, does not leave any doubt that if there is a Central Enactment on the subject of admission process to B.T.C. Courses or other Courses and there is also a State Enactment which runs contrary to it, then, the State Enactment to this extent has to give way to the Central Enactment. This is obviously in view of Article 246 of the Constitution of India. 178. In view of the above, Government Orders prescribing a ‘CET’ for admission to B.T.C. Courses would be referable to Regulation 3.3 of the Regulations of 2014 made under the NCTE Act, 1993. This is obviously in view of Article 246 of the Constitution of India. 178. In view of the above, Government Orders prescribing a ‘CET’ for admission to B.T.C. Courses would be referable to Regulation 3.3 of the Regulations of 2014 made under the NCTE Act, 1993. This has already been so held by the Full Bench in Tuples’s case. The Act, 1993 or the Regulations made thereunder do not make any distinction between minority and non-minority institutions. As the Act, 1993 prevails in this regard over the State Act i.e. Act, 2006, which in any case, does not apply to minority institutions in view of the discussion already made by us, therefore, such orders cannot be said to be in conflict with the latter Act. 179. Further more, in the present case condition No. 4 of the order of Recognition of the petitioner of Writ Petition No. 18243(M/S) of 2017 (Annexure-10 - Page 60) says that Recognition is subject to fulfillment of all such other requirements, as may be, prescribed by other regulatory bodies like UGC, Affiliating University, the State Government etc. as applicable, therefore, prescription of CET by the State Government which is referable to Regulation 3.3 is also referable to the aforesaid condition of recognition which has been accepted by the said petitioner. 180. The fact that CET or other regulatory measures regarding admissions can be prescribed as a condition of recognition or affiliation is beyond doubt in view of the pronouncements of the Supreme Court in T.M.A. Pai Foundation; Islamic Academy and P.A. Inamdar’s case. Reference may be made in this regard to Paragraphs 121 and 122 of P.A. Inamdar’s case. 181. In this view of the matter, the plea that the Government Orders prescribing ‘CET’ and Centralized Council relating to B.T.C. Courses do not have the authority of law or that they could not have been issued in view of Section 2 of the Act, 2006, cannot be accepted. Seat sharing is impermissible as it violates Article 30. ‘CET’ is a permissible regulatory measure in respect of Article 30 as already explained by us earlier. 182. If such orders are in any other manner contrary to law it would be another aspect which would have to be considered by the Single Judge. 183. Seat sharing is impermissible as it violates Article 30. ‘CET’ is a permissible regulatory measure in respect of Article 30 as already explained by us earlier. 182. If such orders are in any other manner contrary to law it would be another aspect which would have to be considered by the Single Judge. 183. As regards the contentions of Sri Kalia appearing for the intervenor that unlike statutory regulations prescribing NEET under the Medical Council of India Act there were no such regulations in the context of Ayush and Unani courses, therefore, ‘CET’ could not be prescribed by the State by way of a Government order, no doubt the question does arise as to whether such regulatory measures would be permissible in his case and other similar cases other than those covered by NCTE Act, 1993 by way of a Government Order, but, this would have to be considered by the Single Judge keeping in mind the inter-play of various Legislative Enactments, Central and State, such as Indian Medicine Central Council Act, 1970 etc. which may be applicable, as, the petitions of these intervenors are not before us. Therefore, having explained the law in the context of Article 30, and subject to the above discussion and observation, we leave this aspect pertaining to Ayurvedic and Unani Medical Course for consideration by the Single Judge Bench in the respective writ petitions. 184. In view of the above discussion in the context of Question No. 3, a single window mechanism for admission to the courses of higher/professional/technical education is mandatory and there is no escape from it even for minority institutions. Such a single window mechanism by the State is not only permissible but desirable. It is to be preferred vis-a-vis such a mechanism by the private institutions or their association. If a provision is made by the State for holding of ‘CET’ etc. by it or its agency, then, all the minority institutions have to subject themselves to such an admission process for the reasons already mentioned herein above. The State can prescribe such regulatory measures by law. The only exception to it is, if there is only one institution imparting education in a particular field of higher/professional/technical education, it can have its own admission procedure subject to satisfaction of the triple test discussed earlier, with the State stepping in if it fails. The State can prescribe such regulatory measures by law. The only exception to it is, if there is only one institution imparting education in a particular field of higher/professional/technical education, it can have its own admission procedure subject to satisfaction of the triple test discussed earlier, with the State stepping in if it fails. In the absence of any provision of law by the State as aforesaid for holding such ‘CET’ and centralized counselling (single window system), an association comprising of all the colleges in a particular field of education can hold a ‘CET’ etc. which has to satisfy the triple test and has to be subjected to regulation by the State. 185. The Government orders prescribing such regulatory measures in respect of B.T.C. course are referable to NCTE Act, 1993 and Regulations made thereunder, therefore, they have the force of law. The Act, 2006 does not create any hurdle in prescribing a Single Window mechanism for admission in respect of minority institutions. Question No. 3 is answered accordingly. Question No. 2 : 186. In view of our answers to question Nos. 1 and 3 and subject to it, we now proceed to answer question No. 2. 187. We have already held that seat sharing by the State Government or apportioning of seats alloted to the unaided Minority Institutions by it in the sense of providing students for admission compulsorily to such institutions is impermissible in law except as a consensual arrangement. We have also held that in respect of professional courses holding of a Common Entrance Test followed by centralized counselling as a Single Window procedure by the State or its agency is permissible, in fact it is desirable and this does not violate the right of such institutions to admit students of their choice in keeping with its minority character, however, such individual institutions cannot hold their own admission test subject to the exceptions referred, as, it would be against the Single Window concept. 188. 188. In view of what we have said earlier, we find that the question of seat sharing was not directly and substantially involved in the case of Sanklap Institute of Education, Ghaziabad v. State of U.P. and others (Special Appeal Defective No. 92 of 2017) where the petitioner had consented to seat sharing, therefore, any observation made therein with regard to permissibility of seat sharing by the State, except in so far as it is consensual, cannot be treated as good law, however, the said decision correctly understands and applies the law with regard to the mechanism for admission to professional courses, as it holds that CET followed by centralized counselling is a must and individual institutions cannot have their own admission process. It rightly holds that the decision of the Supreme Court in Pramati Educational and Cultural Trust (supra) related to primary level education and as professional education is at a different level the said judgment is not applicable to matters of admission at this level of education. It has rightly considered the interplay of the NCTE Act, the U.P. State Universities Act and order of 1987 as also Section 2 of the Act, 2006 and the precedence to be given to the central enactment on the subject of holding of CET etc. for admission to B.Ed. Course. 189. The Division Bench judgment rendered in National Mahila Mahavidalaya’s case does not lay down any law. As would be evident from its reading it merely records the submissions of the learned counsel and the consent of the learned Standing Counsel that the dispute was covered by the Supreme Court’s decisions and allows the appeal without any discussion of the intricate question as to the rights of the Minority Institutions and the holding of CET etc. by the State, therefore, it cannot be treated as a binding precedent on this issue, however, as it sets-aside the Single Bench judgment permitting seat sharing it cannot be faulted to this extent. 190. The Division Bench judgment rendered in Hazi Ismail Degree College v. State of U.P. and others (Writ Petition No. 1905(M/S) of 2011), did not take into consideration the applicability of the NCTE Act, 1993 and the Regulations made thereunder regarding holding of a CET, which was considered in Sankalp Institute (supra) and the Full Bench decision in Tuples’s case (supra) in this regard, correctly. This judgment also does not take into account the fine distinction between the right of minority institutions to admit students of their choice and the alleged right to hold an admission test as also the concept of Single Window system, therefore, this Division Bench judgment cannot be said to lay down the law correctly as far as the mechanism to admit students in unaided minority professional institutions is concerned, but, to the extent it is understood as disapproving apportioning of seats allotted to such Institutions, by the State, it cannot be faulted. 191. Likewise, the judgment of the Single Judge Bench in the case of Kisan Degree College, Mahua Pakar Gaura Chowk, District Gonda v. State of U.P. and another (Writ Petition No. 5110(M/S) of 2011) has to be read and understood accordingly in the light of what we have said herein above and the said judgment also does not deal with intricate issues involved, as referred herein above, appropriately. 192. The judgment of the Single Judge Bench in the case of City College of Management, Lko v. State of U.P. and others (Writ Petition No. 2005(M/S) of 2015) and Eram Girls Degree College and another v. State of U.P. and others (Writ Petition No. 1400(M/S) of 2015) correctly applies the law with regard to impermissbility of seat sharing by the State, however, in so far as it permits the unaided Minority Institutions to advertise their seats and admit students on their own it does not apply the law correctly in view of what we have already stated herein above. 193. As regards the order dated 9.2.2017 passed in the case of Shama Parveen and others v. State of U.P. and others (Writ-C No. 60387 of 2016) is concerned, the observations made therein with regard to necessity of Minority Institutions subjecting themselves to a centralized test and counselling are in consonance with the law explained by us, but, as far as seat sharing is concerned, any observation made therein permitting such seat sharing by the State except in so far as it is consensual, is contrary to law. 194. In order to further clarify the position we make it clear that the said decisions have to be read and understood in the light of what we have held in this judgment and anything contrary to it, cannot be treated as a binding precedent nor good law. 194. In order to further clarify the position we make it clear that the said decisions have to be read and understood in the light of what we have held in this judgment and anything contrary to it, cannot be treated as a binding precedent nor good law. Question No. 2 is answered accordingly. 195. In view of the above discussion and subject to it, we answer the questions referred to us as under : “(1) In view of dictum of the Supreme Court in P.A. Inamdar (supra) prescription of quota or apportionment of a percentage of seats allotted to private unaided minority professional institutions by the State, except as a consensual arrangement, is impermissible in law, as, it encroaches upon the rights of such institutions under Article 30 of the Constitution to admit students of their choice. (2) The Division Bench judgment in Sankalp’s case is not an authority on the issue of seat sharing but it correctly lays down the law regarding the mechanism to be adopted for admission to professional course such as B.Ed. The Division Bench judgment in National Mahila Mahavidyalaya does not contain any ratio decidendi. It is based on the concession of the Standing Counsel, therefore, it is not a binding precedent. The other Division Bench judgment in Hazi Ismail’s case does not lay down the law correctly on the issue of admission process i.e. mechanism to be adopted for admission to professional courses such as B.Ed. but in so far as it is understood as disapproving seat sharing by the State, it is in consonance with the law declared by the Supreme Court. (3) (i) Subject to there being only one institution imparting education in a particular field of higher/professional/technical education, which could have its own admission procedure and entrance test which satisfies the triple test, in other scenarios, an individual un-aided minority professional educational institution cannot hold a separate entrance test for admission to a professional course, as, it would be violative of the single-window mechanism envisaged in P.A. Inamdar’s case (supra) which is a must in the field of higher and professional education. (ii) However, if provision has been made by the State by law for holding of ‘CET’, which is not only permissible but also desirable, all institutions will have to admit students based on such ‘CET’ and not otherwise. (ii) However, if provision has been made by the State by law for holding of ‘CET’, which is not only permissible but also desirable, all institutions will have to admit students based on such ‘CET’ and not otherwise. (iii) If no such provision has been made by the State, or by the University, as the case may be, then subject to the exception referred earlier, an Association comprising of all the institutions imparting education in a particular field of higher/professional education or technical education can hold ‘CET’ subject to the satisfaction of the triple test of merit, transparency and non-exploitative-ness already referred hereinabove with regulatory measures being put in place by the University or the State, as the case may be, to ensure that this aspect is in-tune with the law discussed herein above and stepping in, if it fails the triple test. In such a scenario the minority institutions will also have to make admission on the basis of such ‘CET’ by such an association. (iv) The Act, 2006 does not apply to minority institutions nor does it prohibit prescription of a Single Window System in respect to them, but as per law. State Regulation of admission process in respect of unaided minority professional institutions is permissible as aforesaid. Let the records of these Writ Petitions be placed before the Single Judge Bench for further consideration and disposal.