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7. They relied upon the judgment of this Court in T.M.A. Pai Foundation & Ors. v. State of Karnataka & Ors. [(2002) 8 SCC 481] in which it has been held that a private unaided non-minority institution has the right to establish and administer an educational institution under Article 19(1)(g) of the Constitution of India and that such right includes the right to admit students into the institution. They also cited the judgment of this Court in P.A. Inamdar & Ors. v. State of Maharashtra & Ors. [(2005) 6 SCC 537] in which the law laid down in T.M.A. Pai Foundation (supra) was clarified and it was held that non-minority unaided institutions, like the minority institutions, can also legitimately claim unfettered fundamental right to choose the students to be allowed admission and the State cannot impose a quota of seat sharing in such institutions and that this can only be done by a consensual arrangement. They submitted that in P.A. Inamdar (supra), this Court further held that all private institutions imparting same or similar professional education can join together for holding a common entrance test satisfying the triple tests of the admission procedure being fair, transparent and non-exploitative. They submitted that in accordance with the aforesaid law laid down by this Court in T.M.A. Pai Foundation and P.A. Inamdar (supra), a common entrance test, namely, PC-PMT 2008, was held by the Federation of the Private and Dental Colleges of Rajasthan and on the basis of the merit as determined in PC-PMT 2008, 16 students have been admitted to the MBBS course of the College.

“127. Nowhere in Pai Foundation, either in the majority or in the minority opinion, have we found any justification for imposing seat- sharing quota by the State on unaided private professional educational institutions and reservation policy of the State or State quota seats or management seats.
128. We make it clear that the observations in Pai Foundation in paragraph 68 and other paragraphs mentioning fixation of percentage of quota are to be read and understood as possible consensual arrangements which can be reached between unaided private professional institutions and the State.” Hence, in the absence of a consensual arrangement between the College and the State Government, the College was not under any legal obligation to admit students to 85% of the MBBS seats in the academic years 2008-2009.
Sd/-
Vice Chancellor” The aforesaid discussion would show that there is in fact no consensual arrangement between the College and the State or the University that the College will admit students from the merit list or wait list of RPMT-2008. The finding of the learned Single Judge and the Division Bench of the High Court that there was such a consensual arrangement between the College and the State Government to admit students from the merit list or wait list of RPMT-2008 is, therefore, erroneous. Hence, the direction of the High Court to the College to consider and admit students from the merit list or wait-list of RPMT-2008 will have to be set aside.
10. We cannot also accept the contention of the appellants that the College could admit students on the basis of marks obtained by them in the qualifying examinations under Clause (1) of Regulation 5 of the MCI Regulations. The College has relied upon the letter dated 16.09.2009 of the Secretary of the MCI clarifying that for the purpose of completing the admissions within the time schedule fixed by the Court as in the case of Mirdul Dhar and Another vs. Union of India and Others (supra), i.e., 30th September of the year, the admission to the MBBS course could be done on the basis of marks secured in 10+2 Examination, as provided in Regulation 5(1) of the MCI Regulations. But a reading of Regulation 5(1) of the MCI Regulations quoted above would show that this provision applies only in a State where one university or board or examining body conducts the qualifying examination, in which case, the marks obtained at such qualifying examination may be taken into consideration. In the State of Rajasthan, there are more than one university/board/examining body conducting qualifying examination and therefore Regulation 5(1) of the MCI Regulations does not apply. As the State of Rajasthan has more than one University/Board/Examining Body conducting qualifying examinations, clause (2) of Regulation 5 of the MCI Regulations, which provides that a competitive entrance examination will have to be held so as to achieve a uniform evaluation, will apply. The College, therefore, was bound to hold a competitive entrance examination in accordance with clause (2) of Regulation 5 of the MCI Regulations or enter into a consensual arrangement with the State Government to admit students on the basis of the Competitive Entrance Examination conducted by the State Government. This is exactly what the College has done. It had entered into a consensual arrangement with the State Government to admit students on the basis of merit as determined in the RPMT-2008. In our considered opinion therefore, the clarification in the letter dated 16.09.2009 of the Secretary of the MCI that for the purpose of admissions within the time schedule fixed by this Court, admission can also be made on the basis of marks secured in the 10+2 Examination as provided in Regulation 5(1) of the MCI Regulations is not in accord with the fact situation in State of Rajasthan. The admission of the six students by the College to its MBBS Course on 30.09.2008 was, therefore, in breach of clause (2) of Regulation 5 of the MCI Regulations.