JUDGMENT : W.P.(C) Nos. 29077 & 28962 of 2018 1. These two writ petitions are filed challenging the constitutional validity of Section 2(p) of the Kerala Medical Education (Regulation and Control of Admission to Private Medical Institutions) Act, 2017 (hereinafter referred to as 'Act 15 of 2017'). The petitioners in both these cases are conducting Private Aided Homoeopathic Medical Colleges within the State. The petitioner in W.P.(C) No. 29077/2018 claims protection under Article 30(1) of the Constitution contending that the college is established and run by a Linguistic Minority Community, viz. the Gowdasaraswatha Brahmins. 2. As noticed above, the petitioners are conducting private aided Homoeopathic Medical Colleges. They have entered into agreements with the State Government, as per the terms of which salaries of the staff are being paid by the Government. On the basis of the Direct Payment Agreement, a Government Order has been issued, which is dated 10.11.1995 produced as Ext.P2 in W.P.(C)No. 28962/2018 and Ext.P1 in W.P.(C)29077/2018. The admission of students to the colleges were all along being made in accordance with the terms of the Direct Payment Agreement. The terms of the Direct Payment Agreement entitles the Government to allot students for admission to 85% of the total intake of each college. To the remaining 15% seats, the management was free to admit students of their choice. It was in the above circumstances that, Act 15/2017 was brought into force. Invoking the provisions of the said enactment, the Admission Supervisory Committee arrayed as the 3rd respondent in both the writ petitions issued communications to the colleges requiring them to furnish copies of their Prospectus for approval and directing them to produce for scrutiny and approval, various documents that related to the students who were admitted in the College during 2017-18. The documents so called for, included the list of admitted candidates, copies of their application forms, copies of their qualifying examination certificates, copies of their Entrance Examination Score Cards, so on and so forth. The petitioners consider the communication of the Admission Supervisory Committee to be a serious inroad into their autonomy in conducting the colleges. They have therefore, filed these writ petitions challenging the said action as well as Section 2(p) of the enactment. 3. Section 2(p) of Act 15 of 2017 defines a “private medical educational institution” to include both a private aided and private unaided educational institution. They have therefore, filed these writ petitions challenging the said action as well as Section 2(p) of the enactment. 3. Section 2(p) of Act 15 of 2017 defines a “private medical educational institution” to include both a private aided and private unaided educational institution. In other words, the definition brings within its scope, aided professional medical institutions also. Inclusion of aided medical institutions is attacked by the petitioners as unconstitutional, in these writ petitions. 4. According to Advocate R.T. Pradeep who appears for the petitioners in W.P.(C)No.28962/2018, the college of the petitioners is a very prestigious one with an impeccable reputation. It has been imparting education to the students in the State from 1958 onwards. According to the learned counsel, it is the provisions of the Direct Payment Agreement that governs the rights of the colleges. As per the terms of the said agreement, though the Government is paying the salaries of the teachers and other staff of the institutions, all other expenses are met by the management. The students to 85% of the seats are allotted by the Government. The fees to be charged from the students is also fixed by the Government. The only right conferred on the management is to admit students to 15% of the total seats available. Such students are also allotted from the list prepared by the Commissioner for Entrance Examinations. Therefore, it is contended that, there is absolutely no justification for altering the said procedure that has been in vogue since 1995. 5. It is further contended that, the colleges are run by communities that do not enjoy the benefit of any kind of reservation and therefore, it is in the interests of the community to admit students belonging to their community to the seats earmarked for the management. The said right has been recognised by the Government on the basis of which, Ext.P2 Government Order has been issued. The said order was issued even before the Direct Payment Agreement. The said Government Order not having been repealed or recalled continues to govern the field, in spite of the fact that Act 15/2017 has been enacted by the legislature. Therefore, it is contended that Ext.P2 would override the provisions of Act 15/2017. 6. The said order was issued even before the Direct Payment Agreement. The said Government Order not having been repealed or recalled continues to govern the field, in spite of the fact that Act 15/2017 has been enacted by the legislature. Therefore, it is contended that Ext.P2 would override the provisions of Act 15/2017. 6. It is further contended by the learned counsel that, inclusion of aided medical colleges within the scope of Act 15/2017 is in violation of the dictum laid down by the Apex Court in T.M.A. Pai Foundation v. Sate of Karnataka [ (2002)8 SCC 481 ]. The contention put forward is that, in view of the fact that paragraph 68 of the said judgment refers only to unaided professional colleges, any attempt to regulate the functioning of the aided professional colleges would militate against the dictum laid down by the said decision. Particular reliance is placed on paragraph 68 of the said decision, which opens with the statement that, it would be unfair to apply the same rules and regulations relating to admission to aided and unaided professional colleges. Since aided and unaided professional institutions have been subjected to the same regulations by the impugned legislative provision, it is contended that the said provision is invalid and liable to be set aside. 7. The learned counsel also places reliance on the decision in Modern Dental College & Research Centre v. State of M.P. [ (2016) 7 SCC 353 ], paragraph 45 in particular, to contend that the scope of control exercised by the Admission Supervisory Committee over unaided professional institutions and aided ones cannot be similar. For the above reasons, it is contended that Section 2(p) in so far as it includes aided professional medical institutions also within its scope, is liable to be held unconstitutional. 8. In W.P.(C) No. 29077/2018, a distinction is drawn by the learned counsel Smt. R. Ranjini to the effect that, the college is established and conducted by a linguistic minority community, the Gowdasaraswatha Brahmin community. Therefore, it is contended that, it is a minority educational institution under Article 30(1) of the Constitution. Though it is true that the college is an aided college governed by the provisions of the direct payment agreement evidenced by Ext.P2, since it enjoys the minority status, it has got the right to admit students of its choice, for the benefit of the minority community. Though it is true that the college is an aided college governed by the provisions of the direct payment agreement evidenced by Ext.P2, since it enjoys the minority status, it has got the right to admit students of its choice, for the benefit of the minority community. According to the learned counsel, as per Ext.P2 agreement though initially 10% of the seats were reserved for the minority community, it has subsequently been enhanced to 15%. Reliance is placed on Ext.P5 Government order dated 28.3.1983 to point out that, the minority status entitles the management to select and admit candidates of their “choice”. The said right has also been recognized and approved by Ext.P5. According to the learned counsel, being a linguistic minority, it often happens that candidates belonging to the said community are not available for filling up the seats earmarked and therefore, in such situation they have been admitting students of their choice from the list prepared by the Controller of Examinations after following a proper procedure. Therefore, it is contended that the said right cannot be taken away. By including aided colleges in the definition Section 2(p), Act 15/2017 has impinched upon the rights of the minority community guaranteed by Article 30(1) of the Constitution. The counsel also endorses the other contentions put forward by the counsel for the petitioner in other writ petition. 9. According to the learned Special Government Pleader who represents the State, the Admission Supervisory Committee is the authority to ensure that the admission process in private professional colleges are conducted in compliance with the three principles laid down by the Apex Court in the decision in T.M.A. Pai Foundation (supra) and the subsequent decisions on the point. Accordingly, it has to be ensured that the admissions made are transparent, merit based and non-exploitative. Our attention is drawn to the provisions of Act 15/2017 to point out that, the Admission Supervisory Committee has the power only to scrutinise the admissions and to find out whether there has been any violation of the dictum laid down by the Apex Court. No professional institution has the right to admit students according to their whims and fancies. The situation that prevailed in 1983 and 1995 when the direct payment agreement and the Government Order on which reliance is placed were issued, has changed drastically. No professional institution has the right to admit students according to their whims and fancies. The situation that prevailed in 1983 and 1995 when the direct payment agreement and the Government Order on which reliance is placed were issued, has changed drastically. The law on the point has also undergone changes by the decisions rendered by the Apex Court. It is also pointed out that, since even unaided professional colleges have been brought within the controls exercised by the State, aided colleges cannot complain of similar controls especially in view of the fact that they are institutions that receive aid from the State. Therefore, according to the learned Special Government Pleader, the challenge against the impugned provision is unsustainable. 10. According to Advocate G. Sreekumar, who appears for the 4th respondent, in the Government Order dated 10.11.1995 evidenced by Ext.P1 in W.P.(C)No.29077/2018 and by Ext.P2 in W.P.(C)No.28962/2018, there is a specific clause stipulating that in the matter of enrollment of students, they will abide by the terms and conditions similar to those adopted in respect of the private engineering colleges in the State. In view of the above clause, it is contended that the colleges cannot complain against the controls now sought to be put on them, which are similar to those imposed on other private colleges. 11. We have heard Advocate Mrs. Mary Benjamin who appears for the 3rd respondent also. 12. Section 2(p) of Act 15 of 2017, the impugned provision is reproduced hereunder for convenience of reference: “2(p) “Private medical educational institution” or “institution” means a private aided or private unaided educational institution which is a college, a school, a department or an institution, by whatever name called, imparting medical education, other than those promoted and maintained by the Central Government or Sate Government, approved or recognized by an appropriate authority, which is affiliated to, or is a constituent unit of a university, established or incorporated by an Act of the State Legislature.” As per the above provision, a private “medical educational institution” or “institution” has been defined to include a private aided or private unaided educational institution imparting medical education. Therefore, the definition includes both private aided and unaided institutions. The Act itself states that, it is an Act “to provide for the regulation of admissions and fixation of fees to private medical educational institutions in the State of Kerala”. Therefore, the definition includes both private aided and unaided institutions. The Act itself states that, it is an Act “to provide for the regulation of admissions and fixation of fees to private medical educational institutions in the State of Kerala”. Therefore, the legislative exercise was intended to regulate the admission and fixation of fee of all private aided medical institutions in the State, irrespective of whether they were unaided or aided. It is in consonance with the said proclaimed objective that the definition section 2(p) has been worded to include both aided and unaided professional educational institutions. Therefore, we do not find any infirmity in the inclusion of aided institutions also in the said definition. However, the contention is that by including both aided and unaided colleges within the same mechanism of control, the dictum laid down by the Apex Court in T.M.A. Pai Foundation (supra) has been violated. 13. In the above context, the learned counsel for the petitioner has placed reliance on paragraph 68 of the said decision. In Paragraph 68 what has been stated is only that it would be unfair to apply the same rules and regulations for regulating admissions to both aided and unaided educational institutions. What the court has cautioned is that unaided professional institutions are entitled to autonomy in their administration while at the same time they should not be permitted to discard or forego the principle of merit. Paragraph 68 of the said decision reads as follows: “68. 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. It would, therefore, be permissible for the university or the government, at the time of granting recognition, to require a private unaided institution to provide for merit-based selection while, at the same time, giving the Management sufficient discretion in admitting students. This can be done through various methods. For instance, a certain percentage of the seats can be reserved for admission by the Management out of those students who have passed the common entrance test held by itself or by the State/University and have applied to the college concerned for admission, while the rest of the seats may be filled up on the basis of 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 percentage 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.” The above passage does not for a moment restrict the State's power to regulate aided professional colleges, in any manner. What the Apex Court was concerned was only with respect to the manner in which and the extent to which even private unaided institutions could be regulated. It goes without saying that aided institutions are liable to be controlled to a greater extent than the unaided institutions for the reason that they are receiving aid from the State Exchequer. Salaries of their staff are paid by the State. Therefore, the interpretation that is sought to be placed on paragraph 68 by the learned counsel for the petitioner is rejected. 14. A reading of paragraphs 71 and 72 of the same decision, clarifies the above aspect. Therefore, the said paragraphs are also reproduced below: “71. While giving aid to professional institutions, it would be permissible for the authority giving aid to prescribe by 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. Therefore, the said paragraphs are also reproduced below: “71. While giving aid to professional institutions, it would be permissible for the authority giving aid to prescribe by 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. The merit may be determined either through a common entrance test conducted by the University or the Government followed by counseling, 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 device 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. 72. Once aid is granted to a private professional educational institution, the government or the state agency, as a condition of the grant of aid, can put fetters on the freedom in the matter of administration and management of the institution. The state, which gives aid to an educational institution, can impose such conditions as are necessary for the proper maintenance of the high standards of education as the financial burden is shared by the state. The state would also be under an obligation to protect the interest of the teaching and non-teaching staff. In many states, there are various statutory provisions to regulate the functioning of such educational institutions where the States give, as a grant or aid, a substantial proportion of the revenue expenditure including salary, pay and allowances of teaching and non-teaching staff. It would be its responsibility to ensure that the teachers working in those institutions are governed by proper service conditions. The state, in the case of such aided institutions, has ample power to regulate the method of selection and appointment of teachers after prescribing requisite qualifications for the same. Ever since In Re The Kerala Education Bill, 1957 [(1959) SCR 995], this Court has upheld, in the case of aided institutions, those regulations that served the interests of students and teachers. Ever since In Re The Kerala Education Bill, 1957 [(1959) SCR 995], this Court has upheld, in the case of aided institutions, those regulations that served the interests of students and teachers. Checks on the administration may be necessary in order to ensure that the administration is efficient and sound and will serve the academic needs of the institutions. In other words, rules and regulations that promote good administration and prevent maladministration can be formulated so as to promote the efficiency of teachers, discipline and fairness in administration and to preserve harmony among affiliated institutions. At the same time it has to be ensured that even an aided institution does not become a Government-owned and controlled institution. Normally, the aid that is granted is relatable to the pay and allowances of the teaching staff. In addition, the Management of the private aided institutions has to incur revenue and capital expenses. Such aided institutions cannot obtain that extent of autonomy in relation to management and administration as would be available to a private unaided institution, but at the same time, it cannot also be treated as an educational institution departmentally run by government or as a wholly owned and controlled government institution and interfere with Constitution of the governing bodies or thrusting the staff without reference to Management.” 15. It is clear from the above that the State can impose such conditions as are necessary for the maintenance of high standards of education, as the financial burden is shared by the State. Though reliance has been placed by the learned counsel on paragraph 45 of Modern Dental College & Research Centre (supra), we are not satisfied that the said passage can advance the case of the petitioners, in any manner. What the Apex Court was concerned in the said passage was only with the unaided professional institutions. 16. With respect to the contention that being a minority educational institution, the petitioner in W.P.(C) No. 29077/2018 has the right to admit students to the seats earmarked for the management, as stated by them, we do not find any substance at all. It is settled by the decision in T.M.A. Pai Foundation(supra) as well as P.A. Inamdar v. State of Maharashtra [ (2005) 6 SCC 537 ] and Modern Dental College (supra) that, admission of students could be made only by following a procedure that is transparent, fair, non-exploitative and merit based. It is settled by the decision in T.M.A. Pai Foundation(supra) as well as P.A. Inamdar v. State of Maharashtra [ (2005) 6 SCC 537 ] and Modern Dental College (supra) that, admission of students could be made only by following a procedure that is transparent, fair, non-exploitative and merit based. In order to ensure that the above principles are not by-passed, the Apex Court has further held in Sankalp Charitable Trust and others v. Union of India and Others [ (2016) 7 SCC 487 ], that the admission of students to all the medical colleges shall be only on the basis of a common entrance test and on the basis of the ranking of the candidates in the said test. The above being the position, the contention that the petitioner in W.P.(C) No.29077/2018 shall be entitled to admit students of their choice in a situation where no students from the linguistic minority community are available cannot be accepted. If no students belonging to the minority linguistic community are available, such seats shall lapse, to be filled up by the Government on the basis of merit from the rank list prepared on the basis of the common admission test. We are not satisfied that Section 2(p)suffers from any infirmity as contended by the petitioners. For the foregoing reasons, these writ petitions are dismissed.