IMPORTANT POINTS
To establish and run an educational institution is a fundamental right under Article 19(1)(g). Reasonable restrictions can be placed on such a right under Article 19(6).
Larger Bench decision prevails over the decision of a smaller Bench.
If a statute is prima facie unconstitutional or contrary to law laid down by the Supreme Court, it should be read down to sustain its validity. Courts should make all efforts to sustain the validity of a statute.
M.P. Niji Vyavsayik Shikshan Sanstha (Pravesh Ka Viniyaman Avam Shulk Ka Nirdharan) Adhiniyam, 2007 being contrary to, and inconsistent with T.M.A. Pai’s case, would become unconstitutional if read literally. It must be read down to sustain its validity.

Judgment :-

The Impleadment and Intervention applications are allowed.

Leave granted.

Heard learned counsel for the parties.

Since this is a batch of several appeals involving common questions, we are taking the facts from Civil Appeal arising from Special Leave Petition No. 13111 of 2009.

This Appeal has been filed against the impugned judgment and order dated 15.05.2009 of the High Court of Madhya Pradesh at Jabalpur in Writ Petition No. 2732 of 2009.

In this case, we had earlier passed an order dated 21st May, 2009 but we are substituting that interim order by this interim order which we are passing now.

The appellants in these appeals are Private Unaided Medical and Dental Colleges or Association of such Colleges in the State of Madhya Pradesh.

The common questions arises for consideration in this batch of appeals is "How far is it permissible under the Constitution for the State to control and regulate admission and fee in Private Unaided Professional Educational Institutions in the State of Madhya Pradesh".

The matter was first considered by an Eleven Judge Bench of this Court in T.M.A. Pai Foundation vs. State of Karnataka (2002) 8 SCC 481.

Since, there were some doubts or some questions remained unanswered in the aforesaid judgment, the matter was referred to a Five Judge Bench of this Court which decided it in Islamic Academy of Education vs. State of Karnataka (2003) 6 SCC 697.

Despite the judgment in Islamic Academy of Educations case (supra), still there were some doubts and the matter was again referred to a Seven Judge Bench of this Court which decided it in P.A. Inamdar & Others vs. State of Maharshtra & Others (2005) 6 SCC 537.

In paragraph 153 of P.A. Inamdars case (supra), it has been stated:

".... There are several questions which have remained unanswered and there are certain questions which have cropped up post Pai Foundation and Islamic Academy. To the extent the area is left open, the Benches hearing individual cases after this judgment would find the answers."

Thus, it is evident that even in Inamdars case (supra), it has been observed that there are still some doubts or grey areas in relation to the question of extent of State control over the Private Unaided Institutions imparting professional education.

We have gone through the aforesaid decisions with great care.

In para 91 of Inamdars case (supra), it has been observed:

"The right to establish an educational institution, for charity or for profit, being an occupation, is protected by Article 19(1)(g) of the Constitution..."

Thus, it is clear that the right to establish and run an educational institution is a fundamental right guaranteed under Article 19(1)(g) of the Constitution. Of course, under Article 19(6) of the Constitution, reasonable restrictions can be placed on such a fundamental right, and hence we have to examine whether such restrictions are reasonable or not.

Before dealing with this issue we may refer to some observations made in the decision of this Court in the TMA Pai Foundation case (supra).

In paragraphs 37-45 of the aforesaid decision this Court held that the decision of this Court held that the decision of this Court in Unni Krishnan vs. State of A.P. (1993) 1 SCC 645 in so far as it relates to the schemes of admission and fee were not correct. Paragraphs 35-41 of the aforesaid decision in the TMA Pai Foundation case (supra) reads as follows:

"35. It appears to us that the scheme framed by this Court and thereafter followed by the governments was one that cannot be called a reasonable restriction under Article 19 (6) of the Constitution. Normally, the reason for establishing an educational institution is to impart education. The institution thus needs qualified and experienced teachers and proper facilities and equipment, all of which require capital investment. The teachers are required to be paid properly. As pointed out above, the restrictions imposed by the scheme, in Unni Krishnans case, made it difficult, if not impossibl