ORDER

K.S. Radhakrishnan, J.— We are in these applications called upon to decide the question as to whether the unfilled NRI seats are to be transferred to general pool and be shared equally to be filled up on the basis of the Common Entrance Test conducted by the State level Committee Vyavsayik Pariksha Mandal (VYAPAM) or by the Common Entrance Test conducted by the Association of Private Dental and Medical Colleges (APDMC), so far as the private unaided medical/dental colleges in the State of Madhya Pradesh are concerned.

2. Applicants, herein had filed Writ Petition No. 2732 of 2009 before the High Court of Madhya Pradesh (Jabalpur) challenging the constitutional validity of Madhya Pradesh Niji Vyavsayik Shikshan Sanstha (Pravesh Ka Viniyaman Avam Shulk ka Nirdharan) Adhiniyam, 2007 (in short the Act) and the Rules framed thereunder. The High Court vide its judgment dated 15.5.2009 repelled the challenge to the Act and the Rules but declared that the provisions of Rule 10(2)(iii) of 2009 as ultra vires. The High Court also held that the Judgment would not affect the Common Entrance Test already conducted by VYAPAM for the year 2009-10. The above-mentioned Writ Petition was disposed of along with other similar matters and a common Judgment was delivered by the High Court.

3. Aggrieved by the judgment in Writ Petition No. 2732 of 2009, Civil Appeal No. 4060 of 2009 was filed by the applicants herein. While admitting the appeal, a Bench of this Court had prima facie found that the provisions of the Act handing over the entire selection process to the State Government or the agencies appointed by the State Government for undergraduate, graduate and postgraduate medical/dental colleges and fee fixation was contrary to and inconsistent with the principles laid down by the eleven-Judges Bench Judgment in TMA Pai Foundation and Others v. State of Karnataka and Others1 [(2002) 8 SCC 481] (for short Pai Foundation) and the Judgment in P.A. Inamdar and others v. State of Karnataka and others2 [(2005) 6 SCC 537] (in short Inamdar). The Court also observed that 2007 Act would become unconstitutional, if read literally, but an interim arrangement was made with regard to the admissions in the private unaided medical/dental colleges in the State of Madhya Pradesh for the year 2009- 10; the operative portion of that order reads as follows: We, therefore, direct that the admissions in the private unaided medical/dental colleges in the State of Madhya Pradesh will be done by first excluding 15% NRI seats (which can be filled up by the private institutions as per para 131 of Inamdar case), and allotting half of the 85% seats for admission to the undergraduate and post graduate courses to be filled in by an open competitive examination by the State Government, and the remaining half by the Association of the Private Medical and Dental Colleges. Both the State Government as well as the Association of Private Medical and Dental Colleges will hold their own separate entrance examination for this purpose. As regards the NRI seats, they will be filled as provided under the Act and the Rules, in the manner they were done earlier.

4. The Court also observed that the solution arrived at might not be perfect, but it had only tried to find out a best via media for admissions for the academic year 2009-10. However, it was recommended that the same might also be considered for future sessions. The order passed by the Court is reported in Modern Dental College and Research Centre and Ors. v. State of Madhya Pradesh and Ors.3 [(2009) 7 SCC 751]. (in short Modern Dental College)

5. The above arrangement indicates that 15% of the total sanctioned intake in the unaided Private Medical and Dental Colleges was set apart for giving admission to NRI students and the remaining 85% seats would be filled up equally through the examination conducted by the State and the Common Entrance Test conducted by the Colleges. Controversy now is only with regard to unfilled