JUDGMENT : 

Shri D. K. Tripathi, counsel for petitioner. Shri Harish Agnihotri, G. A., for respondent Nos. 1 and 2. Shri Vivek Mourya, counsel for respondent No. 4. The petitioner has sought following reliefs in this petition: -

"(1) To call for entire relevant record.

[1(a)] To declare the section 8 of the Madhya Pradesh Niji Vyavasayik Shikshan Sansthan (Pravesh Ka Viniyaman Avam Shulk Ka Nirdharan) Adhiniyam, 2007, Act No. 21 of 2007" is unconstitutional. [2] To declare the Rule 9 of the Madhya Pradesh Private Medical and Dental Undergraduate Entrance Examination Rules, 2009 is unconstitutional.

[3] To direct the respondents to permit the petitioner as open + freedom fighter category in the counselling and the same allot a seat of M.B.B.S., in any private medical college.

[4] To pass such any other order as deem fit under the facts and circumstances of the case.

[5] Any other relief together cost of the petition which this Hon'ble Court deem fit and proper under the facts and circumstances of this case may also be awarded in favour of the petitioner."

2. The facts of the case are that petitioner applied for M.B.B.S. Course in private medical college. The admission is governed by the provision of M. P. Private Medical and Dental Undergraduate Entrance Examination Rules, 2009 (hereinafter referred to as 'Rules of 2009' for short). These Rules are framed by the State exercising powers under section 12 of M. P. Niji Vyavasayik Shikshan Sanstha (Pravesh Ka Viniyaman Avam Shulk Ka Nirdharan) Adhiniyam, 2007 (Act No. 21 of 2007) (hereinafter referred to as 'Adhiniyam 2007' for short). The petitioner has challenged the vires of section 8 of the said Adhiniyam and Rule 9 of the Rules of 2009 on following grounds:-

(1) That no provision has been made by the respondents in respect of providing reservation to freedom fighter category in the Act No. 21 of 2007 and also in Rule 9 of the Rules of 2009, while the State Government has issued rules for Pre-Engineering and Pharmacy Test (PEPT) 2009 in which a provision has been made for reservation to the freedom fighter category students to the extent of 3% but no provision has been made in the Rules of 2009 for such category.

(2) That the State Government in the reply has not explained the reasons why such reservation has not been made in the Act and Rules by the State.

3. Shri Agnihotri, learned counsel for State though fairly conceded this fact that there is no explanation on the part of State in not providing reservation to the freedom fighter category in the Adhiniyam and Rules, but submitted that merely reservation was provided to the students of PEPT will not be a ground to declare section 8 and Rule 9 of the Adhiniyam and Rules are ultra vires. That the Adhiniyam and Rules are framed to regulate admission in private colleges providing such medical education and under the Act of 2007 the Rules have been framed. Apart from this, earlier petitioner filed a petition for the same relief, which was considered by the Division Bench of this Court and dismissed. It is submitted that the provisions of section 8 and Rule 9 are valid and need not be declared ultra vires.

4. To appreciate the rival contentions, section 8 of the Adhiniyam 2007 may be referred which reads as under:-

"8. Reservation of seats - In admission to private unaided professional educational institutions, other than the minority educational institutions referred to in clause (1) of Article 30 of the Constitution of India, there shall be reservation at the stage of admission for the persons belonging to the Scheduled Castes, Scheduled Tribes and Other Backward Classes of citizens as may be prescribed by the State Government."

5. The Adhiniyam has been enacted for the regulation of admission and fixation of fee in private professional educational institutions in the State of Madhya Pradesh and to provide for reservation of seats to persons belonging to the Scheduled Castes, the Scheduled Tribes and Other Backward Classes and the matters c

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