Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Arun Mishra, Vineet Saran and MR Shah, JJ has held that prescribing uniform examination of NEET for admissions in the graduate and postgraduate professional courses of medical as well as dental science is not in violation of the rights of the unaided/aided minority to administer institutions under Articles 19(1) (g) and 30 read with Articles 25, 26 and 29(1) of the Constitution. It said,

The Court was hearing the challenge to the provisions of Medical Council Act, 196 and Dentists Act, 1948 and Regulations thereto by which a uniform NEET examination was made mandatory for admissions in graduate and postgraduate medical and dental courses. It was argued before the curt that State had no power to compel an unaided minority institution to admit students through a single centralized national examination such as NEET. The unaided minority professional colleges have the fundamental rights to choose the method and manner in which to admit its students, subject to satisfying the triple test of having a fair, transparent, and non­exploitative process.

The Court, in a 108-pages log verdict, referred to a long list of judgments dealing with the right of unaided/aided minorities and the scope of rights under Article 19(1)(g) and Article 30 of the Constitution and came to the conclusion that,

“rights under Articles 19(1)(g) and 30 read with Articles 25, 26 and 29(1) of the Constitution of India do not come in the way of securing transparency and recognition of merits in the matter of admissions. It is open to regulating the course of study, qualifications for ensuring educational standards. it is open to imposing reasonable restrictions in the national and public interest.”

Unimpressed with the present education system, the bench said that by and large, at present education is devoid of its real character of charity, it has become a commodity. To weed out evils from the system, which were eating away fairness in admission process, defeating merit and aspiration of the common incumbent with no means, the State has the right to frame regulatory regime for aided/unaided minority/private institutions as mandated by Directives Principles, Articles 14 and 21 of the Constitution.

On Article 19(1)(g)

The fundamental right under Article 19(1)(g) was subject to reasonable restriction in the interest of the student’s community to promote merit, recognition of excellence, and to curb the malpractices. Uniform Entrance Test qualifies the test of proportionality and is reasonable.

The minority institutions are equally bound to comply with the conditions imposed under the relevant Acts and Regulations to enjoy affiliation and recognition, which apply to all institutions. In case they have to impart education, they are bound to comply with the conditions which are equally applicable to all.

“There is no right given to maladminister the education derogatory to the national interest. The quality of medical education is imperative to sub­serve the national interest, and the merit cannot be compromised.”

On Article 30

The rights to administer an institution under Article 30 of the Constitution are not above the law and other Constitutional provisions and hence, are not violated by provisions carved out in Section 10D of the MCI Act and the Dentists Act and Regulations framed by MCI/DCI. Reasonable regulatory measures can be provided without violating such rights available under Article 30 of the Constitution to administer an institution. Professional educational institutions constitute a class by themselves. Specific measures to make the administration of such institutions transparent can be imposed.

“The regulatory measures by prescribing NEET is to bring the education within the realm of charity which character it has lost. It intends to weed out evils from the system and various malpractices which decayed the system.”

Scope of Government interference

While the Court agreed that there was no doubt as to the concept of limited Government and least interference is welcomed, it however, said that in which field and to what extent balancing with the larger public and national interest is required.

The Constitution provides a limitation on the power of the State to interfere with life, liberty, and rights, however, the concept of limited government cannot be extended to a level when it defeats the very national interest.”

Holding that the impugned provisions qualify the doctrine of proportionality, the Court explained that the maladies with which professional education suffers in this country are writ large and that the regulatory framework created by the MCI/ DCI is concomitant of conditions, affiliation and recognition, and providing central examination in the form of NEET cannot be said to be violative of the rights under Articles 19(1)(g) and 30. The regulatory framework is not restrictive, but caters to the effective enjoyment of the rights conferred under the aforesaid provisions.

[Christian Medical Vellore Association v. Union of India, 2020 SCC OnLine SC 423  , decided on 29.04.2020]

Case BriefsSupreme Court

Supreme Court: The bench of Dr. DY Chandrachud and Hemant Gupta, JJ has held that

“A person who has been enrolled as a member of the Air Force does not have an unqualified right to depart from service at his or her will during the term of engagement.”

The Court was hearing the case where an Airman in the Indian Air Force had applied for the post of General Banking Officer without completing the mandatory period of service of seven years and without obtaining the prior permission of his unit authorities. According to the Air Force authorities, his was in breach of the provisions of Air Force Order 14/2008 which was then in force. Since the appellant had not received a clean discharge certificate, his services were terminated by Bank of India on 30 April 2014.

It was argued before the Court that the appellant has a fundamental right under Article 19(1)(g) to choose his place of employment. The provisions of Article 19(1)(g) in their application to the members of the Air Force are not any different from their application to any other branch of government.

The Court, however, rejected the said contention and held that such a construction will seriously impinge upon manning levels and operational preparedness of the armed forces.

“The interests of the service are of paramount importance. A balance has been sought to be drawn between the interests of the service with situations involving requests by persons enrolled to take civilian employment. This balance is reflected in the provisions contained in the Air Force orders, in this case AFO 14/2008. A person enrolled cannot assert a general right to act in breach or defiance of those orders.

SCHEME OF AIR FORCE ACT

Before enrolment, the enrolling officer has to make the person who desires to be enrolled cognizant of the conditions of service.

  • Section 14 mandates that before signing on the enrolment, the individual has to consent to the conditions of his service. A person who has for a period of three months been in receipt of pay as a person enrolled under the Act and has been borne on the rolls of any unit is deemed to have been duly enrolled.
  • On being attested under Section 16, the individual subscribes to an oath or affirmation to bear allegiance to the Constitution, to serve in the Air Force and to obey all commands of an officer set over him, even to the peril of his life.
  • Tenure in the Air Force is subject to the pleasure of the President. A person subject to the Air Force Act 1950 may be retired, released or discharged from service “by such authority and in such manner as may be prescribed”.

SCHEME OF AFO 14/2008

  • A requirement of completing seven years of service from the date of enrolment has been mandated for permission to be granted to apply for a civil post under the Central or state governments or public sector undertakings, including paramilitary forces.
  • A Category I individual with a length of service of seven years may apply for civilian employment in a Group A or equivalent post carrying the stipulated pay scale as revised from time to time. Applications have to be forwarded to the prospective employer by the units, after verification of eligibility including the criticality of manpower.
  • Where the Airman belongs to a critical trade, the application shall be rejected at the unit level. Where online applications have been invited the station or, as the case may be, unit commanders are required to ensure fulfilment of the conditions of eligibility.
  • Permission is required from the station/unit commanders to submit an on-line application for a civil post.
  • NOCs (other than those in Category III) are to be issued by Air HQs on a case to case basis having regard to the exigencies of service.

RULING

Considering the abovementioned schemes, the Court held that the appellant was in breach of the provisions contained in AFO 14/2008 as he had applied for the post of a Probationary Officer with the Bank of India, participated in the written test and appeared at the interview without intimation or approval. There was, therefore, a failure of the appellant to comply with his obligations both in terms of his engagement as an enrolled member of the force and in relation to the requirements which were to be fulfilled under the terms of AFO 14/2008.

[Amit Kumar Roy v. Union of India, 2019 SCC OnLine SC 823, decided on 03.07.2019]