IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 17873 of 2006(C)
1. CHIEF EXECUTIVE TRUSTEE,
... Petitioner
2. THE SECRETARY (FR.FRANCIS XAVIER),
3. LEENA JINCY CORREYA, (MINOR),
4. LISHA P.THOMAS, (MINOR),
5. RAYSON CHACKO,
6. MINU JOHN, NERIAKKAL HOUSE,
7. ROMY JOSEPH, (MINOR),
8. SILMY JOSEPH, (MINOR),
9. ANN STEFFY MARTIN, (MINOR),
10. JOSEPH PAYNTER,
11. MAXON JOB, S/O.PUSHPPY JOB,
12. SITHARA ANTONY, (MINOR),
13. SIMY JOHN, PAZHAMPILLY HOUSE,
14. NIXON PAUL, PALAKAL HOUSE,
15. ANJU DAVIS, (MINOR),
16. LIYA JOSEPH, (MINOR),
17. RESHMA JOSE (MINOR),
Vs
1. STATE OF KERALA,
... Respondent
2. THE COMMISSIONER FOR ENTRANCE EDAMINA-
For Petitioner :SRI.KURIAN GEORGE KANNAMTHANAM
For Respondent :SRI.G.JANARDHANA KURUP (SR.)
The Hon'ble the Chief Justice MR.V.K.BALI
The Hon'ble MR. Justice P.R.RAMAN
Dated :04/01/2007
O R D E R
V.K. BALI, C.J. & P.R. RAMAN, J.
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W.P. (C) Nos. 17873, 17969,
18008, 18012, 18299, 18307,
18444, 18553, 18899, 18906,
19253, 19440, 19588, 19584,
19663, 19679, 19741, 19755,
19844, 19846, 19888, 24824
and 26444 of 2006
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Dated, this the 4th day of January, 2006
JUDGMENT
V.K. BALI, CJ.:
The Kerala Education Bill, 1957 contained many
provisions imposing considerable State control over the
management of Educational institutions in the State of Kerala,
aided or recognised. The provisions which affected the aided
institutions were much more stringent than those which would
apply only to recognised institutions. The width of power of
control sought to be assumed by the State appeared to the
President of India to be calculated to raise doubts as to the
constitutional validity of some of the provisions of the Bill as an
infringement of some of the fundamental rights guaranteed to
the minority communities by the Constitution. The President
under Article 143(1) of the Constitution of India sought opinion
W.P.(C) No.17873/2006 etc. – 2 –
of the Supreme Court on questions of law of public importance
that had far reaching consequences. The Supreme Court in Re.
Kerala Education Bill, 1957, AIR 1958 SC 956, for the first
time dealt with the right of minority community to establish and
maintain educational institutions and other related educational
matters. Ever since the decision of the Supreme Court in Re.
Kerala Education Bill case till date, the same very and other
questions on education have engaged the High Courts and the
Supreme Court in a marathon litigation spanned over a period of
almost six decades. The leading five cases decided by the
Supreme Court are A
hamedabad St.
Xavier’s C
ollege Society
v. State of Gujarat, 1974 (1) SCC 717, S
t.Stephen’s C
ollege
v. U
niversity of Delhi, (1992) 1 SCC 558; Unnikrishnan v.
State of A.P, (1993) 1 SCC 645, T
.M.A. P
ai F
oundation v.
St
ate of K
arnataka, (2002) 8 SCC 481 and P.A. Inamdar v.
State of Maharashtra, (2005) 6 SCC 527, (hereinafter referred
to as St.Xavier’s case, St.Stephen’s case, Unnikrishnan’s case,
T.M.A.Pai Foundation case and Inamdar’s case respectively).
W.P.(C) No.17873/2006 etc. – 3 –
2. The second ever largest Bench consisting of eleven
Judges was constituted culminating into the decision in T.M.A.
Pai Foundation when the judgment rendered by the Supreme
Court in St.Stephen was doubted. The Supreme Court in
T.M.A.Pai Foundation framed eleven questions to be answered
by it, some of which were answered and some left to be decided
by the regular Bench. Even though one of the ever largest Bench
was constituted, the aftermath of the decision in T.M.A.Pai
Foundation was not encouraging. The Bench consisting of 11
Honourable Judges gave five opinions, the majority decision was
delivered by the then Chief Justice; the four Honourable Judges
delivered three separate opinions partly dissenting from the
majority view. The interpretation of the judgment of the
Supreme Court in T.M.A.Pai Foundation almost became a game
to be played by the State Governments and also the educational
institutions, who would interpret the majority opinion in their
own way. This lead to flooding the courts at all levels with multi
faceted and multi dimensional litigations. The chaos that
resulted because of the rival parties interpreting the judgment of
W.P.(C) No.17873/2006 etc. – 4 –
the Supreme Court in their own way paved way for constitution
of yet another Bench of five Judges in Islamic Academy of
Education v. St
ate of Karnataka, (2003) 6 SCC 697,
(hereinafter referred to as Islamic Academy of Education case)
wherein as well two opinions were expressed, one by a majority
of four Honourable Judges, delivered by the then Chief Justice,
whereas the other by one Honourable Judge, who delivered a
separate judgment. Despite the judgment in Islamic Academy
of Education, it was accepted both by the Government and by
the privately managed aided or unaided institutions that the
position in law was still not clear. There were still unsettled
issues and there was still no clarity in the decision of eleven
Judges in T.M.A.Pai Foundation, thus resulting into constitution of
seven Judges Bench in P.
A. In
amdar's case. Indeed by this
decision, some of the issues have been settled whereas,
concededly, some still need to be settled and the cases including
such unsettled points are still pending decision of the Supreme
Court, one of which pertains to the Kerala Self Financing
Professional Colleges (Prohibition of Capitation Fee and
W.P.(C) No.17873/2006 etc. – 5 –
Procedure for Admission and Fixation of Fees) Act, 2004
(hereinafter referred to as ‘Act of 2004’). It is at this stage when
the judiciary in the country has struggled for more than half a
century to find out solutions to some of the educational related
problems and when answer to those problems is still awaited and
when so far the challenge to the Act of 2004 is still alive, the
Government of Kerala has come up with the Kerala Professional
Colleges or Institutions (Prohibition of Capitation Fee, Regulation
of Admission, Fixation of Non-Exploitative Fee and other
Measures to Ensure Equity and Excellence in Professional
Education) Act, 2006 (hereinafter referred to as ‘Act of 2006’).
To the questions already debated, answered or unanswered,
many more dimensions have been added. Sea changes of far
reaching consequences have been made. The admission of
students in all professional colleges or institutions for all seats
except NRI seats is now to be made through Common Entrance
Test conducted by the State Government, irrespective of any
judgment, decree or order of any court or any other authority.
The right of management institutions, whether aided or unaided,
W.P.(C) No.17873/2006 etc. – 6 –
whether run by the religious minority or otherwise, to make
admissions have been completely taken away. The fee structure
has to be determined by the Regulatory Committee and the same
shall be binding on unaided professional colleges or institutions
for a period of three years. Whatever rights the management
had earlier with regard to determination of fee have also been
taken away. The status of the minority institutions now, for the
first time, shall be determined by Government on factors
enumerated in Section 8. By virtue of judicial precedents, the
status of minority institution was to be determined on the basis
of percentage of population of a particular religious minority
taking State as a Unit. In addition to this condition for
determination of minority status of an institution, further
conditions that the number of professional colleges or institutions
run by the linguistic or religious minority community in the State
shall be proportionately lesser than the number of professional
colleges or institutions run by the non-minority community in the
State and that the number of students belonging to the linguistic
or religious minority community to which the college or
W.P.(C) No.17873/2006 etc. – 7 –
institution belongs undergoing professional education in all
professional colleges or institutions in the State shall be
proportionately lesser than the number of students belonging to
the non-minority community have been added. In the words of
the Honourable Supreme Court dealing with the appeals arising
from the interim directions issued by this Court in these very
cases, there are drastic changes in the Act of 2006 in the mode
of admission and also determination of minority status of the
institution. The petitioners take strong exception to the
provisions dealing with the right of admission of students,
determination of status of a minority institution, fee structure
and other provisions in the Act of 2006. The contentions raised
in challenging the provisions of the Act of 2006 match with the
long title and preamble of the Act.
3. Before we may, however, proceed to deal with the
pleadings and contentions raised by learned counsel appearing
for the parties on the constitutional validity of the provisions
under challenge, we only hope and pray Almighty that the
litigation on education with such far reaching consequences
W.P.(C) No.17873/2006 etc. – 8 –
which may change the very course of education in the nation
and that started in Re. Kerala Education Bill case from Kerala
only may end with the decision on the provisions of Act of 2006
by this Court or by the Apex Court, once again arising from the
State of Kerala.
4 We may also mention that at the time of admission
of the case, petitioners sought stay of operation of the Act. A
Single Bench of this Court before whom these petitions came up
for initial hearing on the prayer made by the petitioners issued
interim directions that the procedure with regard to sharing of
seats between the Government and the Managements of Self
Financing Institutions and also the fee structure as envisaged
under the Act of 2004 would govern the field for this academic
year, 2006-2007, vide orders dated 18th July, 2006. Aggrieved,
the State preferred appeals which were dismissed by a Division
Bench of this Court vide orders dated 29th July, 2006. Still
aggrieved, the State preferred appeals to the Supreme Court
which were dismissed by the Honourable Supreme Court vide
orders dated 25th August, 2006.
W.P.(C) No.17873/2006 etc. – 9 –
FACTUAL MATRIX
5. The factual matrix leading to the filing of the
petitions has been extracted by us from W.P.(C) No.17873 of
2006, wherever, however, required additional facts may be
given by giving a reference to such petitions wherein additional
facts might have been pleaded. Petitioners 1 and 2 are the
Managements of two reputed Self Financing Nursing Institutions
whereas other petitioners are students in B.Sc. (Nursing), in Self
Financing Colleges. Petitioners 1 and 2 claim to be minority
managements representing two Catholic denominations of
Christian community. The first petitioner’s college has been
established by the arch Diocese of Ernakulam and the second
petitioner’s college was established by the Arch Diocese of
Verapoly, both through Trusts/Societies created by them. It is
the case of the petitioners that being directly established by the
community through its higher hierarchy, no declaration of any
status is necessary for exercising their rights under Article 30(1)
of the Constitution. The Self Financing Professional Colleges
started coming in the State of Kerala as a phenomenon in 2002
W.P.(C) No.17873/2006 etc. – 10 –
when ten Engineering Colleges were sanctioned by the AICTE. At
that time, admissions to the Self Financing Colleges were
governed by the judgment of the Supreme Court in
Unnikrishnan’s case, which formulated a scheme with such
ingredients that all admissions to the professional colleges should
be through a Common Entrance Test and allotment of admission
should be through a Single Window System by the State, 50% of
the seats would be free seats and the remaining 50% seats
would be payment seats, free seats means rate of fee would be
as in Government College, the fee payable would be decided by
the State, there would be no management quota and there
should be no capitation fee. The petitioners have made a
mention of the leading Supreme Court judgments referred to
above which, according to them, would give them the right to
chose the students for admission, especially of the Minority
Management. The consortium of managements can evolve to
themselves a fair and transparent method of selection and as per
the decision of the Supreme Court, the admission process cannot
be taken over by the Government. If, however, there may be
W.P.(C) No.17873/2006 etc. – 11 –
foul play or malpractices in the examination conducted by the
consortium of managements, Government may take over the
examination, but it can be limited only for that year and not
permanently for all years to come. It is further the case of the
petitioners that in so far as the selection process and tests
conducted by the consortium of Nursing Management is
concerned, there was no complaint from any quarters so far. In
the background as mentioned above, the petitioners have
challenged the validity of Act of 2006 by prominently highlighting
five areas of disputes reproduced in paragraph 78 of the petition,
which read as follows:
“(1) In the areas of redefining ‘minority’ and
imposing conditions to satisfy the tests of
‘minority’, which are unheard of in the
Judicial History.
(2) Laying down a condition that admissions are
possible only from the rank list of the
Commissioner for Entrance Exam in the
CET, and that all allotments will be done by
the Commissioner, except for NRI seats;
(3) 50% seats will be mandatorily ‘freeship’ seats,
thus bringing back the ‘Unnikrishnan’s
Scheme’ which was held unconstitutional by
the Hon’ble Supreme Court.
W.P.(C) No.17873/2006 etc. – 12 –
(4) Has brought in the principles of reservation in
minority unaided institutions also, which is
expressly prohibited under the 93rd
amendment of the Constitution.
(5) Fees will be fixed by a Fee Regulatory
Committee, only”.
Petitioners plead that there are eight Self Financing Medical
Colleges in the State of which five belong to Christian
management, one belongs to Muslim management and two
belong to Hindu management. Out of the total 49 Self Financing
Engineering Colleges, eighteen belong to Christian management,
thirteen belong to Muslim management, one belongs to Secular
Organisation and seventeen belong to Hindu management. Out
of the 51 nursing colleges, 28 Colleges belong to Christian
management, which itself is more than 50% and if the provisions
contained in Section 8 of the Act of 2006 are to be applied, the
petitioners state that there cannot be any minority institution in
the State. There is no need to detail further the facts as given in
the petition, but for to say that primary challenge in the writs is
to provisions of the Act of 2006 as mentioned above. The
W.P.(C) No.17873/2006 etc. – 13 –
grounds taken in the petition in challenging the provisions would
be given while dealing with the provisions under challenge
separately.
6. The respondent State has entered defence and
joined issues with the petitioners on all fronts. In the counter
affidavit filed by the State, it has been averred that the
allegations made in the petitions are false and baseless. The Act
of 2006 is in conformity with the Constitution of India and also
the dictum of the Supreme Court in Inamdar’s case. The Act of
2006 is in the larger interests of the public, especially the
student community and is aimed at ensuring admissions to
private unaided professional colleges in a fair, transparent and
non-exploitative manner. Each provision of the Act is
incorporated to give effect to the judgments of the Supreme
Court in its entirety and the relevant direction of the Central
Government. The Act has been passed keeping in view the
aspirations of the people to have a comprehensive legislation
reflecting the socio economic and demographic needs and
concerns of the State. The allegation of the petitioners that the
W.P.(C) No.17873/2006 etc. – 14 –
Act is aimed at nationalisation of seats has been denied. It is
further averred that there is no classification as Management
seats or Government seats and does not provide for seat sharing
arrangement between Government and Management. The
admission to the various courses is only through the Common
Entrance Test conducted by the State Government followed by
centralised counselling and this stipulation in the Act is in
conformity with the judgment of Supreme Court in Inamdar’s
case. The State can provide a procedure of holding a common
entrance test in the interest of securing fair and merit-based
admissions and preventing maladministration. If the admission
procedure adopted by a private institution or group of institutions
fails to satisfy the triple test, i.e. it is fair, transparent and non-
exploitative, the admissions can be taken over by the State. The
preamble to the Act clearly sets out that the need for stipulating
admissions can only be made through the common entrance test
conducted by the State followed by the centralised counselling in
view of the past experiences of maladministration of the entrance
test held by the consortium or association of private professional
W.P.(C) No.17873/2006 etc. – 15 –
colleges in the State. The legislature would insist on admissions
only through this manner as it was felt that large scale
maladministration and exploitative methods were adopted by
the private professional colleges. The power to admit is the root
cause of the evil of capitation fee and merit being given a go-by,
the legislature was constrained to pass the new law. The recitals
in the preamble to the Act are stated to be part of legislative
facts and the same cannot be the subject matter of dispute and
would be beyond the purview of judicial review. For deciding the
validity of a law, the statements contained in the Preamble
should be presumed to be correct and cannot be disputed. If
the preamble is read as a whole, it would be evident that the
object and provisions of the Act falls within the four corners of
the provisions of the Constitution as well as the decision of the
Supreme Court in Inamdar’s case. It is then pleaded that the
legislative facts cannot be the subject matter of dispute or
judicial review. Mr.Justice K.T.Thomas, Chairman of the
Committee for overseeing the conduct of examinations has
pointed out that the Management of Self Financing, Medical,
W.P.(C) No.17873/2006 etc. – 16 –
Dental, Ayurveda and Sidha Colleges have violently violated the
guidelines issued by the Supreme Court by conducting rigged
and farce Entrance Test for admitting students as if they are
merit students. A copy of the proceedings of Mr.Justice
K.T.Thomas Committee dated 03.6.2004 and a copy of the letter
dated 21.6.2004 have been annexed to the counter affidavit, as
Exts.R1(a) and Ext.R1(b). A letter dated 30.7.2004 was written
by a student complaining about the manner in which the
entrance examination was conducted by the group of private
colleges in 2004, copies whereof have been annexed in the
counter affidavit as Exts.R1(c) and R1(d). There were several
complaints voiced by different sections of the people with regard
to commercialisation of education by the managements of
minority and non-minority unaided educational institutions. This
has been taken note of by Mr.Justice K.T.Thomas Committee in
the specific context of admission made in Kerala in Ext.R1(a).
The present Government in the State assumed office on
18.5.2006. One of the prime initiatives of the Government was
to fulfil the the promise given to the people in regard to bringing
W.P.(C) No.17873/2006 etc. – 17 –
in legislation to regulate unaided colleges. Following were the
specific promises made in respect of regulating unaided
education:
A. Ensure social justice in admission and fees.
B. Ensure excellence in education through merit based
admission.
C. Prevent capitation fee and commercialisation of
education.
D. Set up a higher education fund for giving assistance to
needy students.
E. Scientific revision of norms for selection of students
for professional courses.
Immediately after assuming office, the Government took steps to
bring in the proposed legislation. This included preparation of
the position paper and holding of widespread discussions with
different stakeholders including the management of unaided
colleges. The Bill for the above was introduced on 22.6.2006 in
the very first session of the Legislative Assembly. Except for
revising the norms for the conduct of entrance examination, all
other promises stated above were taken care of in the Bill. The
Bill was examined by the Subject Committee and unanimously
W.P.(C) No.17873/2006 etc. – 18 –
passed by the Assembly on 30th June, 2006. The Governor gave
assent to the Bill on 2.7.2006. From the facts as mentioned
above, it is pleaded that the Government acted expeditiously in
accordance with the directives given by the Supreme Court in
Inamdar’s case to Central/State Governments to bring in
suitable legislation to regulate unaided professional education at
the earliest, thereby also honouring the promise given to the
people. The moment the present Government came to power,
the entire people of Kerala knew for certain that admissions to
the unaided professional courses for this year would be held as
per the new Act. The managements were taken into confidence
by the Government. The first draft of the Bill introduced in the
Assembly did not contain any provision for privilege seats. The
provision for 15% privilege seats was introduced later, even as
the Assembly was debating the Bill, to accommodate the
interests of Managements. The impression given by the
Managements was that they were fully satisfied with the changes
made in the draft and they would fully co-operate with the
Government for the implementation of the Act, but behind the
W.P.(C) No.17873/2006 etc. – 19 –
scene, they were also making arrangements for pre-empting the
implementation of the Act and creating a fait accompli situation
by admitting students without reference to the provisions of the
Act or the Supreme Court directives for fair, transparent and
non-exploitative admission procedure. Like the petitioners who
have given reference to various judgments of the Supreme Court
and interpret it in their favour, the State too has made a
reference to some judgments, in particular Inamdar’s case, and
would interpret the said judgments in their favour. The legal
grounds pressed into service by the petitioners have been
countered with equal vehemence. Various organisations
espousing the welfare of the student community and the general
public interest have moved application for impleadment and vide
separate orders some of the petitions have been allowed. They
have filed separate counter affidavits as well. There will be no
need to make a mention of the pleadings made therein, as by
and large, the Act of 2006 is sought to be defended in the like
manner as has been done by the State.
Backdrop of events, Judicial Precedents and relevant
W.P.(C) No.17873/2006 etc. – 20 –
provisions of the Act including those under challenge:
7. Before we may advert to the provisions of the Act
of 2006 which are under challenge, we propose to give the
backdrop of events and judicial precedents that may touch on
the controversy in issue. The Constitution Bench consisting of
five Hon’ble Judges in Unnikrishnan’s case held that private
aided institutions cannot charge fee higher than the Government
institutions; the institutions in the matter of admission should
follow only merit and; the activity of establishing educational
institution is neither a trade or business nor a profession and
shall thus be not entitled to the protection under Article 19(1)(g)
of the Constitution. The authorities granting recognition or
affiliation are duty bound to insist on conditions ensuring inter
alia fairness in matters of admission.
8. Some private educational institutions, both aided
and unaided established by the minorities and non-minorities
filed writ petitions before the Supreme Court asserting their right
to establish and administer educational institutions of their
choice unhampered by rules and regulations which unnecessarily
W.P.(C) No.17873/2006 etc. – 21 –
impinge upon their autonomy. The petition filed by Islamic
Academy of Education and connected matters came up for
hearing before the Five Honourable Judges of Supreme Court in
T.M.A.Pai Foundation. The Bench was of the prima facie view
that Article 30 of the Constitution did clothe a minority
educational institution with the power to adopt its own method of
selection and since the decision of the Court in St.Stephen’s
case was doubted, the matter was thus referred to a larger
Bench of seven Judges. On 6.2.1997, however, the Bench seized
of the matter directed that the case to be placed before a Bench
of eleven Judges. When the matter came up for hearing before
the 11 Judges, the following order was passed.
“Since a doubt has arisen during the
course of our arguments as to whether this
Bench would feel itself bound by the ratio
propounded in Kerala Education Bill, 1957 in Re.
(AIR 1958 SC 956) and Ahamedabad St.Xaviers
College Society v. State of Gujarat, it is clarified
that this sized Bench would not feel itself
inhibited by the views expressed in those cases
since the present endeavour is to discern the
W.P.(C) No.17873/2006 etc. – 22 –
true scope and interpretation of Article 30(1) of
the Constitution, which being the dominant
question, would require examination in its
pristine purity. The factum is recorded”.
The Bench framed 11 questions for its answer. The questions
that may be relevant for determining the controversy in the
present case in the context of provisions of the Act of 2006
would be mentioned in the latter part of this judgment.
9. Culled out from the questions and answers to the
same, it may be stated that the Scheme as framed in
Unnikrishnan’s case was abolished and it was held that there
could not be nationalisation of admission process. The right to
provide education under Article 19(1)(g) read with Articles 26
and 30 was recognised, whilst accepting that minority rights
under Article 30 were specially protected as distinct and
separate. The distinction between Government, unaided, aided
and minority institutions was accepted. That maximum
autonomy was to be given to unaided institutions. The aided
institutions were to have autonomy and not to be treated as
Government departments. The unaided, specially minority
W.P.(C) No.17873/2006 etc. – 23 –
institutions were to have autonomy in matters of admissions,
right to determine their fee structure and exemption from any
Government quotas, the Minorities were to be allowed to admit
students of their choice in accordance with St.Stephen’s case i.e.
50% for management and 50% for Government. The judgment
in T.M.A.Pai Foundation was delivered on 31st October, 2002.
We have already mentioned that this judgment was interpreted
by the State Governments and Educational Institutions in their
favour resulting into further litigation. There were certain
anomalies and doubts needing clarification. This resulted into
the constitution of 5 Judges Bench in Islamic Academy of
Education case. The gist of the answers to the four questions
formulated in Islamic Academy of Education have been given in
Inamdar’s case by the Supreme Court. It may be said that it
was held that even in unaided institutions quota would be
permitted and students would be selected on the basis of
Common Entrance Test and further the selection committee
would oversee the admission and fees. This decision was
rendered on August 14, 2003. On 6.1.2005, the National
W.P.(C) No.17873/2006 etc. – 24 –
Commission for Minority Educational Institutions Act, 2004 came
into being. The purpose of the Act was to ensure recognition and
affiliation of minority institutions . Inasmuch as the questions
framed in Islamic Academy of Education were not summed up or
pointedly answered, another Bench of Seven Judges was
constituted in Inamdar’s case the decision whereof was rendered
by the Supreme Court on 12th August, 2005. The Supreme Court
in Inamdar’s case, confined its discussion on the four questions
set out in paragraph 27 of the judgment. The answers given to
those questions would be dealt with in the later part of this
judgment. On 18th January, 2006, Article 15 of the Constitution
was amended adding Article 15(5) to the Constitution to permit
quotas in educational institutions for socially and educationally
backward classes other than minority institutions. On 28th
March, 2006, the National Commission for Minority Educational
Institutions (Amendment) Act 2006 came into being, the purpose
of which was to recognise and give effect to rights of minority
educational institutions.
10. Before the decisions in T.M.A.Pai Foundation,
W.P.(C) No.17873/2006 etc. – 25 –
Islamic Academy of Education and Inamdar were rendered by the
Supreme Court, the State of Kerala came up with the
regulations known as the Kerala Unaided Professional Colleges
(Admission of Students and Fixation of Fee) Regulations, 2002,
wherein 50% of the seats were earmarked to be filled up
by the Commissioner for Entrance Examinations for
Travancore/Malabar, Ezhava, Muslim, SC/ST candidates and vide
orders dated 19.12.2002, the State Government fixed the fee of
Rs.8,750/- per student per year for the 50% of students
allocated by the Controller of Examinations and special fee up to
Rs.20,000/- was also permitted. This Regulation of 2002 was
challenged by the petitioner’s College in O.P.No.39420 of 2002
and vide judgment dated 20th January, 2003, this Court allowed
the writ petition and held that reservation of seats to the extent
of 50% by the Government was not valid in view of the decision
in T.M.A. Pai Foundation case, that the fee structure stipulated in
the notification dated 19th December, 2002 was held to be
arbitrary and illegal and contrary to the rule enunciated in
T.M.A.Pai Foundation case. It was further held therein that the
W.P.(C) No.17873/2006 etc. – 26 –
fee of Rs.1.5 lakhs as admitted by the State Government as
expenses per student in the medical colleges run by the State
can be collected by the private colleges as an interim measure.
It was also held that a Committee be constituted within three
months under Regulation 6 and in the meantime, the institutions
would fill up the seats in the ratio of 75 : 25. The Communal
and Regional reservations were held to be not permissible. The
application for review carried against the order aforesaid was
dismissed on 17.2.2003, by holding that the students admitted
by them were not lacking in merit after going through the entire
record and the performance in the qualifying examination, that
the fee of Rs.1.5 lakhs was not excessive and that the demand
for 50% was not justified. A Special Leave petition was filed by
the State Government to the judgment referred to above, where
in no interim order was granted by the Supreme Court. On
23.8.2003, by an interim order, this Court fixed the fee as Rs.1.5
lakhs per annum provisionally, whereas, the Commissioner of
Entrance Examination vide order dated 19.9.2003 fixed the fee
at Rs.11,825/- for the 50% students nominated by the State
W.P.(C) No.17873/2006 etc. – 27 –
Government. This order was challenged in this Court in
W.P.(C) No.29855 of 2005 and this Court stayed the operation of
the order in the light of its earlier judgments. For the academic
year 2003-04, students were admitted on the basis of individual
entrance tests owing to constraints of time, as provided in para
21 of the judgment in Islamic Academy of Education. In 2004,
the Committee headed by Justice K.T.Thomas was appointed as
Admission Supervising and Fee Fixation Committee and on
28.5.2004, the Committee for fixation of fees in private self
financing colleges set up in accordance with the guidelines in
Islamic Academy of Education case fixed the fee for MBBS
course. By proceedings dated 3.6.2004, the Committee headed
by Justice K.T.Thomas held that fee of Rs.4.35 lakhs was
excessive and exclusionary and therefore, not fair and directed
the postponement of test scheduled on 13th June, 2004. The
examination was conducted as per schedule on 13th June, 2004.
The order aforesaid, dated 3rd June, 2004 was challenged by the
petitioners in W.P.(C) No.16903 of 2004. On 15.7.2004, the Act
of 2004 came into being. This Act was challenged directly before
W.P.(C) No.17873/2006 etc. – 28 –
the Supreme Court and the petitions filed in that behalf are still
pending with interim arrangements. For every subsequent
academic year, similar interim directions have been issued. The
interim direction dated 29.5.2006 reads as follows:
“Subject to further orders that may
be passed by this Court, we direct that for the
Academic Year 2006-2007, the fee to be
charged and the quota of seats would be the
same as were in the previous Academic Year
2005-2006”.
While so, the Act of 2006 came into being on 2nd July, 2006.
Having seen the background preceding the Kerala Legislative
Enactment of 2006, time is now ripe to notice the Scheme of the
Act and provisions which are under challenge. The Act of 2006
has been enacted to provide for prohibition of capitation fee,
regulating the admission, fixation of non-exploitative fee,
allotment of seats to SC/ST and other socially and economically
backward classes and other measures to ensure equity and
excellence in professional education and for matters connected
therein, as per the headnote of the Preamble. The long Preamble
W.P.(C) No.17873/2006 etc. – 29 –
of the Act reads as follows:
“WHEREAS, the Hon’ble Supreme
Court has held that where there is more than
one minority or non-minority institution or
similarly situated institution in the State
imparting education in any one discipline, then
a single common entrance test followed by
centralized counselling or in other words,
single window system of admission is
necessary in order to achieve the twin
objectives of transparency and merit and
further has held that the State can take over
the admission procedure to ensure that it is
fair, transparent and non-exploitative.
AND WHEREAS, it is considered that
in the light of past experiences of
maladministration of the entrance test held by
the Consortium/Association of Private
Professional Colleges in the State, all
institutions of the same or similar type,
whether minority or non-minority shall be
required to fill their seats on the basis of merit
determined through a single common entrance
test followed by centralized counselling by the
W.P.(C) No.17873/2006 etc. – 30 –
State Commissioner for Entrance
Examinations;
AND WHEREAS, in the Constitution
(Ninety-third Amendment) Act, 2005, a
provision has been made under clause (5) of
Article 15 as follows:
‘(5) Nothing contained in this
article or in sub-clause (g) of clause (1) of
Article 19 shall prevent the State from
making any special provision, by law, for
the advancement of any socially and
educationally backward classes of citizens
or for the Scheduled Castes or the
Scheduled Tribes in so far as such special
provisions relate to their admission to
educational institutions including private
educational institutions whether aided or
unaided by the State, other than the
minority educational institutions referred
to in clause (1) of Article 30’.
AND WHEREAS, the Supreme Court
has further held that linguistic and religious
minorities are covered by the expression
“minority” under Article 30 of the Constitution;
AND WHEREAS, the reorganization
of the States in India has been made on
linguistic lines for the purpose of determining
the minority, the unit shall be the State and
not the whole of India and therefore, religious
W.P.(C) No.17873/2006 etc. – 31 –
and linguistic minorities, who have been put at
par in Article 30, have to be considered State-
wise;
AND WHEREAS, it has been further
held by the Supreme Court that Article 30(1) is
a sort of guarantee or assurance to the
linguistic and religious minority institutions of
their right to establish and administer
educational institutions of their choice and
secularism and equality being two of the basic
features of the Constitution, Article 30(1)
ensures protection to the linguistic and
religious minorities, thereby preserving the
secularism of the country;
AND WHEREAS, it has been further
held that the principles of equality must
necessarily apply to the enjoyment of such
rights and no law can be framed that will
discriminate against such minorities with
regard to the establishment and administration
of educational institutions vis-a-vis other
educational institutions and any law or rule or
regulation that would put the educational
institutions run by the minorities at a
disadvantage when compared to the
W.P.(C) No.17873/2006 etc. – 32 –
institutions run by others, will have to be
struck down and at the same time, there also
cannot be any reverse discrimination;
AND WHEREAS, the essence of
Article 30(1) is to ensure equal treatment
between the majority and the minority
institutions and no one type of category of
institution should be disfavoured or, for that
matter, receive more favourable treatment
than another, since laws of the land, including
rules and regulations, must apply equally to
the majority institutions as well as to the
minority institutions;
AND WHEREAS, keeping in mind the
above formulation of the Supreme Court on
minority rights and also the unique socio-
economic and demographic complexion of the
State in the context of the need and
commitment to protect and strengthen the
secular ethoes and the long tradition of
equitable sharing of the opportunities for
education among different communities
prevailing in the State, it is necessary to
ensure that the benefits that accrue from
W.P.(C) No.17873/2006 etc. – 33 –
minority rights be equitably shared among
different sections, including weaker sections,
within the minority community to which the
particular college or institution belongs;
AND WHEREAS, it is necessary to
provide freeship and scholarship to a large
number of economically weaker students to
protect and strengthen the State’s long
tradition of providing equitable opportunities
for education at all levels of learning, and to
promote social justice in accordance with the
directive principles of the Constitution, it is
necessary to apply the principle of using the
excess funds generated from Non-Resident
Indian seats for benefiting students such as
students from economically weaker sections of
society as enumerated by the Supreme Court
as one of the considerations for the fixation of
fee by the competent authority appointed for
the purpose and to set up a Higher Education
Scholarship Fund for providing scholarship to
the socially and economically weaker
students”.
The Admission Supervisory Committee as per Section 2(a) is
defined to mean ‘the Committee constituted under Section 4 for
W.P.(C) No.17873/2006 etc. – 34 –
regulating admission in the unaided professional colleges or
institutions. Aided college, Capitation fee, common entrance
test, minority, minority professional college or institution,
minority seats, privilege seats, single window system, specified
seats and unaided professional college or institution as per
Sections 2 (b),(c), (d) (l), (m), (n),(q), (r), (t), (u) and (w) have
been defined as follows:
“(b) Aided College means a
professional college or an institution
receiving financial aid or grant in aid from
any State or Central Government and
includes minority and non-minority
professional college or institution, as
specified by the Government.
(c) Capitation Fee means any amount
by whatever name called whether in cash or
in kind paid or collected or received directly
or indirectly in addition to the fees
determined under this Act.
(d) Common Entrance Test means
W.P.(C) No.17873/2006 etc. – 35 –
the entrance test conducted for
determination of merit of the candidates
followed by centralised counselling for the
purpose of merit based admission to
professional colleges or institutions through
a single window procedure by the State
Commissioner for Entrance Examinations.
(l) Minority for the purpose of this Act
means a community belonging to a religious
or linguistic minority as may be determined
by Government taking the State as a unit.
(m) Minority Professional College or
Institution means a professional college or
institution established and maintained by a
minority that fulfills the non-discriminatory
criteria as laid down in this Act and
determined as such by the Government.
(n) Minority Seats means seats
reserved for students who belong to the
community that runs the minority unaided
professional college or institution and filled
up on the basis of inter se merit in the
W.P.(C) No.17873/2006 etc. – 36 –
manner as may be prescribed from the rank
list prepared by the Commissioner for
Entrance Examinations;
(q) Privilege seats means seat filled
up through the single window system from
the common merit prepared by the
Commissioner for Entrance Examinations
through the Common Entrance Test, on the
basis of inter se merit from the applications
submitted by the management of each
unaided professional college or institution, as
may be prescribed;
(r) Professional college or
institution means a college of institution
aided or unaided, imparting professional
courses in any of the following disciplines,
namely:
(a) Engineering and Technology;
(b) Medicine, Dentistry, Pharmacy, Ayurveda, Homoeopathy, Siddha, and Nursing. (c) Teacher education or any other discipline as may be declared by the Government by notification in the Gazette; (t) Single Window System means the W.P.(C) No.17873/2006 etc. - 37 - centralized system for admissionadministered by the State Commissioner for
Entrance Examinations to professional
courses in both aided and unaided, minority
and non-minority colleges or institutions.
(u) Specified seats means seats
earmarked under sub-section (1) of section
10.
(w) Unaided Professional College
or Institution means professional college or
institution which is not receiving any aid or
grant in aid from any State or Central
Government and includes minority and non-
minority professional colleges or institutions."The manner of admission of students to professional college has
been prescribed in Section 3 which reads as follows:
“3. Method of admission in Professional
Colleges or Institutions.–Notwithstanding
anything contained in any other law for the
time being in force or in any judgment, decree
or order of any Court or any other authority,
admission of students in all professional
colleges or institutions to all seats except
W.P.(C) No.17873/2006 etc. – 38 –
Non-resident Indian seats shall be made
through Common Entrance Test conducted by
the St ate followed by centralised counselling
through a single window system in the order of
merit by the State Commissioner for Entrance
Examinations in accordance with such
procedure as may be specified by the
Government from time to time.”
The constitution of Admission Supervisory Committee and the
procedure to be adopted by it has been prescribed u/s.4 of the
Act which in so far it may be relevant reads as follows:
“4. Admission Supervisory Committee.–
(1) The Government shall constitute an Admission
Supervisory Committee to supervise and guide the
process of admission of students to unaided
professional colleges or institutions consisting of the
following members, namely:
(i) A retired Judge of the Supreme Court or High Court - Chairperson (ii) xxx (iii) xxx (iv)xxx (v) xxx (vi)xxx (2) The Admission Supervisory Committee W.P.(C) No.17873/2006 etc. - 39 -may adopt its own procedure for the conduct of its
business.
(3) xxx (4) xxx (5) xxx (6) The Admission Supervisory Committeeshall supervise and guide the entire process of
admission of students to the unaided professional
colleges or institutions with a view to ensure that
the process is fair, transparent, merit-based and
non-exploitative under the provisions of this Act.
(7) The Admission Supervisory Committee
may hear complaints with regard to admission in
contravention of the provisions contained herein.
If the Admission Supervisory Committee after
enquiry finds that there has been any violation of
the provisions for admission on the part of the
unaided professional colleges or institutions, it
shall make appropriate recommendation to the
Government for imposing a fine up to rupees ten
lakhs and the Government may on receipt of such
recommendation, fix the fine and collect the same
in the case of each such violation or any other
course of action as it deems fit and the amount so
fixed together with interest thereon shall be
W.P.(C) No.17873/2006 etc. – 40 –
recovered as if it were an arrear of public revenue
due on land. The Admission Supervisory
Committee may also declare admission made in
respect of any or all seats in a particular college or
institution to be de hors merit and therefore
invalid and communicate the same to the
concerned University. On the receipt of such
communication, the University shall debar such
candidates from appearing for any further
examination and cancel the results of
examinations already appeared for.
(8) The Admission Supervisory Committee
may if satisfied that any unaided professional
college or institution has violated any of the
provisions of the Act, recommend to the University
or statutory body for withdrawal of the affiliation
or recognition of such college or institution or any
other course of action it deems fit”.
Prohibition of collecting capitation fee and consequences of
collecting it has been provided in Section 5 of the Act.
The factors that may determine fee have been mentioned in
Section 7. The determining factors for according recognition and
conferring status as unaided minority institution have been
W.P.(C) No.17873/2006 etc. – 41 –
detailed in Section 8 which reads as follows:
“8. Determining factors for according
recognition and conferring status as unaided
minority professional college or institution.-
A minority unaided professional college or
institution established and maintained by any
linguistic or religious minority shall be
accorded recognition and conferred status of
an unaided minority professional college or
institution only if it satisfies all the following
conditions of demographic equivalence
between the minority community to which the
college belongs and the non-minority
community of the State taken as a single unit
namely:
(a) the population of the
linguistic or religious minority community in
the State which runs the professional college
or institution shall be lesser than fifty percent
of the total population of the State.
(b) the number of professional
colleges or institutions run by the linguistic or
religious minority community in the State to
which the college or institution belong shall be
proportionately lesser than the number of
professional colleges or institutions run by the
non-minority community in the State.
(c) the number of students
belonging to the linguistic or religious
minority community to which the college or
institution belongs undergoing professional
education in all professional colleges or
institutions in the State shall be
proportionately lesser than the number of
students belonging to the non-minority
community in the State.
W.P.(C) No.17873/2006 etc. – 42 –
As per Section 9, the fee cannot be collected excessively. Section
9 of the Act of 2006 that deals with fees and mandates that the
same shall not be collected excessively reads as follows:
“9. Fees not to be collected
excessively.- (1) No unaided professional
college or institution shall collect any fee by
whatever name called from the candidate for
admission over and above the fee determined
by the Fee Regulatory Committee and the fee
prescribed by the University concerned;
Provided that the Fee Regulatory
Committee shall fix the fee for Non-Resident
Indian seats and the amount so collected over
and above the fee fixed for other students in
the college or institution in such seats shall be
utilised for providing freeship to socially and
economically backward students.
(2) All unaided professional
colleges or institutions shall provide freeship
to the extent prescribed for a minimum of
fifty percent of the students admitted.
(3) Any officer of the State or
Central Government or any other public
officer or authority who issues an income
certificate which conceals the actual income
of the person to whom certificate is issued
and any recipient of such certificate who by
making use of the certificate claims any
benefit with regard to freeship or scholarship
shall be liable for penalty under section 15 of
the Act.
(4) Notwithstanding anything
contained in any other provisions of this Act,
W.P.(C) No.17873/2006 etc. – 43 –
the fixation and levy of fees at the rates fixed
by the Committee constituted before the date
of coming into force of this Act shall be
deemed to be validly fixed and collected.”.
Section 10 of the Act, which deals with allotment of seats reads
as follows:
“10.Allotment of seats.-(1) In every
professional college or institution other than a
minority college –
(a) ten per cent of the total number of
sanctioned seats shall be earmarked for the
Scheduled Castes and Scheduled Tribes.
(b) twenty-five per cent of the total
number of sanctioned seats to the Other
Socially and Educationally Backward Classes;
(c) three percent of the total number of
sanctioned seats shall be earmarked for
physically challenged persons; and
(d) twelve per cent of the total number
of sanctioned seats shall be earmarked for the
other sections of society not covered under
items (a), (b) and (c) of this sub-section on
merit-cum-means basis.
Provided that in an unaided professional
college or institution, the provisions in item (c)
W.P.(C) No.17873/2006 etc. – 44 –
and (d) shall apply in accordance with the
consensus based on mutual agreement arrived
at between the unaided professional college or
institution and the Government and following
such principles and in such manner as may be
prescribed.
Provided further that the admissions
contemplated in items (b), (c) and (d) above
shall be in compliance with the rules as may
be prescribed.
(2) In an unaided professional
college or institution belonging to both
minority and non-minority, up to fifteen
percent of the total number of sanctioned
seats may be filled by candidates under the
category of Non-resident Indian seats. Seats
not filled up under Non-resident Indian seats
shall be filled up from general merit seats.
(3) In an unaided professional
college or institution belonging to both
minority and non-minority community, up to
fifteen per cent of the total number of
sanctioned seats may be filled by candidates
under the category of privilege seats in the
manner as may be prescribed. Seats not filled
W.P.(C) No.17873/2006 etc. – 45 –
up under privilege seats shall be filled up from
general merit seats.
(4) In an unaided non-minority
professional college or institution eighteen per
cent of the total number of sanctioned seats
shall be filled up from general merit seats.
(5) In an unaided non-minority
professional college or institution two per cent
of the total number of sanctioned seats shall
be filled up by students who have made
outstanding contribution in the field of culture
or sports, on the basis of criteria as may be
prescribed. Seats not filled up shall be filled
up from general merit seats.
(6) When students of specified
categories surrender the seats after selection,
the same shall be filled by the candidates
belonging to the same category from the merit
list of the Common Entrance Test.
(7) Where the seats specified for
the Scheduled Castes or Scheduled Tribes and
other Socially and Educationally Backward
Classes are left unfilled due to non-availability
of candidates from the same category, the
seats shall be filled up by rotation from other
W.P.(C) No.17873/2006 etc. – 46 –
categories within the specified seats as may be
prescribed. Provided that any spillover
thereafter arising shall be filled up from the
general merit seats.
(8) A minority unaided professional
college or institution shall admit not less than
fifty per cent of the students from within the
State from the minority community to which
the college or institution belongs. Fifty per
cent of such seats may be filled up from
among the socially and economically backward
sections from within the minority community
on merit-cum-means basis with the consent of
the minority educational college or institution
as prescribed and the rest in the order of merit
in accordance with inter se merit, both from he
rank list prepared by the Commissioner for
Entrance Examinations, based on the common
application prescribed in the appropriate
prospectus published by the State
Government.
(9) A minority unaided
professional college or institution may
surrender up to eighteen per cent of the seats
to be filled up by the Commissioner for
W.P.(C) No.17873/2006 etc. – 47 –
Entrance Examinations from the specified
seats and general merit seats in equal
proportion. The first portion shall be filled up
on the basis of merit-cum-means basis as
prescribed. The second portion shall be filled
up on from the general merit seats. Any seats
not surrendered shall also be treated as
minority seats and filled up as such.
(10) A minority unaided
professional college or institution may
surrender up to two per cent of the total
number of sanctioned seats to be filled up by
students who have made outstanding
contribution in the field of culture or sports, on
the basis of criteria as may be prescribed.
Seats not so filled up shall be filled up from
general merit seats”.
Section 12 deals with higher Educational Scholarships Fund.
Section 13 deals with protection of action taken in good faith,
whereas Section 14 deals with the power of the Government to
issue directions. Section 15 deals with penalties. Section 16
deals with cognizance of offence. Section 17 deals with the
power to remove difficulties. Section 18 relates to special
W.P.(C) No.17873/2006 etc. – 48 –
provisions for admissions and fixation of fee for the Academic
Year 2006-07. Section 19 deals with power to make rules and as
per Section 20, the Act of 2004 has been repealed. Exercising
the powers under Section 19 of the Act, the Government has
framed the Rules viz. Kerala Professional Colleges or Institutions
(Prohibition of Capitation Fee, Regulation of Admission, Fixation
of Non-Exploitative Fee and other Measures to Ensure Equity and
Excellence in Professional Education) Rules, 2006 (hereinafter
referred to as ‘Rules of 2006’). Rule 10 of the aforesaid Rules
reads as follows:
“10. Allotment of seats:- (1) Allotment
of seats in unaided professional college or
institution shall be done college or institution
wise.
(2)In every Professional College or Institution
other than a minority college or
institution –
(a) The distribution of seats for Scheduled
Caste and Scheduled Tribe students
shall be as specified in the
prospectus.
(b) Identification of candidates belonging
to item (b) and (c) under sub-section
(1) of section 10 shall be made in the
same manner as is being followed in
Government College and allotment of
seats will be made in each category
W.P.(C) No.17873/2006 etc. – 49 –
on the basis of inter se merit taking
into account the option exercised by
the students. The identification of
candidates under item (c) shall be
subject to the conditions contained in
the prospectus.
(c) Allotment of seats to candidates
under item (d) of sub-section 1 of
Section 10 shall be on inter se merit
and subject to the limitation that the
annual income of the family does not
exceed two lakhs fifty thousand
rupees.
(2)Every professional college or institution
shall intimate their consent in writing or
otherwise, for admission of candidates
under item (c) and (d) of sub-section
(1) of section 10, within the time limit
specified for the same, by the
Government.
(3) In case the management does not convey
their consent in writing or otherwise,
within the time limit specified, it shall
be deemed that consent has been duly
given for treating such seats as seats
under (c) and (d) above, and filled up
accordingly.
(4) The qualification for Non-Resident Indian
students will be same as specified in
the prospectus.
(5) The management of each professional
college or institution shall submit to
the Commissioner for Entrance
Examinations the list of candidates to
W.P.(C) No.17873/2006 etc. – 50 –
be considered for admission under
privilege seats at least three days
before the date notified for the
commencement of first year classes.
(6) The unaided professional colleges or
institutions under the Institute of
Human Resources Development,
unaided Colleges under the Lal
Bahadur Sasthri Centre for Science and
Technology, unaided Colleges under
Mahatma Gandhi University, unaided
Colleges under University of Kerala,
unaided Colleges under University of
Calicut, unaided Colleges under
Center for Continuing Education shall
surrender the privilege seats and
admission to such surrendered seats
shall be made from general merit
seats.
(7) Ten percent of the seats under privilege
seats in the unaided College under
KSRTC may be filled by
children/dependents of employees in
the KSRTC on the basis of inter se merit
from the list prepared by the
Commissioner for Entrance
Examinations. A minimum of five per
cent seats under the same category
shall be surrendered to be filled from
general merit seats. Any seat unfilled
under privilege seats shall be filled from
general merit seats.
(8) 2% of the total number of sanctioned
seats in an unaided professional college
or institution shall be filled up by
W.P.(C) No.17873/2006 etc. – 51 –
students who have made outstanding
contribution in the field of culture and
sports in the ratio of 1:1. For allotment
to MBBS/BDS courses only those
candidates whose rank falls within 7
fold of the total number of MBBS/BDS
seats in Professional Colleges or
Institutions available for allotment
through the single window system will
be considered. The allotment shall be
done by the Commissioner for Entrance
Examinations based on the following
principles, namely:-
(a) allotment under seats reserved for
excellence in culture shall be based
on inter-se merit from among those
who have obtained ‘A Grade’ in any
item at the State Youth Festival or
Higher Secondary Youth Festival
conducted by the State Government.
(b) allotment under seats reserved for
excellence in sports shall be based on
inter se merit and in the manner
specified in the prospectus.
(9) All students belonging to the same
religious minority community
irrespective of denominational difference
shall be treated as belonging to the
same minority community for the
purpose of allotment of minority seats.
(10) Of the seats surrendered under
sub-clause (9) of Section 10, fifty per
cent shall be filled up from general merit
W.P.(C) No.17873/2006 etc. – 52 –
seats and the rest as specified under
items (a), (b),(c) and (d) of sub-section
(1) of Section 10.
(11) The principles of rotation specified under
sub-section (7) of section 10 shall be
the same as specified in the
prospectus.”.
Freeship and its disbursement is dealt with by Rule 11, which
reads as follows:
“11. Freeship and its disbursement- (1) All
unaided professional colleges or institutions,
including minority and non-minority colleges
or institutions shall provide freeship to a
minimum of 50% of the students admitted in
each college, subject to the stipulations
regarding income limit. Full remission will be
given to all SC/ST students, irrespective of
their income, whether admitted under
specified category or under general merit
category. 40% of the students admitted shall
also be given partial remission of fee.
Students other than those admitted under
SC/ST, privilege seats and Non-Resident
Indian seats will be eligible for the partial
remission of fee on merit-cum-means basis.
The fee payable by them will be the same as
prevailing in Government or Aided Colleges or
institutions for the same courses. Only those
students whose annual family income does not
exceed two lakh fifty thousand rupees and
who have applied for freeship with all relevant
documents to support their claim will be
considered for the grant of freeship. Initially,
W.P.(C) No.17873/2006 etc. – 53 –
freeship will be awarded to in the ratio of
seats allotted to other socially and
educationally backward classes, physically
challenged and to categories other than the
two above. Where adequate numbers of
claimants are not available under other
socially and educationally backward classes or
physically challenged categories, the same
shall be granted to other categories.
(2) The fee payable at rates prevailing
in Government/Aided colleges or institutions in
respect of SC/ST students admitted under
specified category will be paid to the
institution concerned by the Government. The
fee payable by SC/ST students admitted under
general merit will be fully paid to the
institution by the Government.”
Unaided minority professional college or institution shall be
recognised and conferred such status only if it strictly conforms
to all the three conditions mentioned in Section 8. Rule 13
reads as follows:
“13. Unaided Minority Professional College or
Institution.-(1) A minority unaided professional
college or institution established and
maintained by a minority community and
affiliated to a university shall be recognized as
an unaided minority professional college and
conferred status as such, only if it strictly
conforms to all the three conditions laid down
in Section 8.
(2) The status of an unaided
minority professional college or institution
W.P.(C) No.17873/2006 etc. – 54 –
recognized as an unaided minority professional
college or institution and conferred status as
such, will lose such status if and when the
unaided minority professional college or
institution concerned ceases to fulfill any of the
three conditions laid down in section 8 and
thenceforth shall be treated on part with other
unaided professional educational colleges or
institutions.”.
11. The challenge in the present petitions is to the
vires of Sections 3, 4, 7(a), 8(a) and (b), 9(2), 10, 12(2), as also
Rules 11 and 13. There is a multi dimensional frontal attack on
the vires of the provisions referred to above. It is the case of the
petitioners that the provisions of the Act and the Rules referred
to above would transgress the fundamental rights of the
petitioners enshrined under Articles 14, 15 [including Art.15(5)],
19, 21, 26 and 30 of the Constitution of India. It is then urged
that some of the provisions of the Act and in particular Section 8
(b) and (c) pertain to an occupied field by the Central Legislation
by virtue of the provisions contained in National Commission for
Minorities Educational Institutions Act, 2004 as amended by the
Act of 2006 and therefore, the State of Kerala would lack
legislative competence to enact Act of 2006. The provisions are
W.P.(C) No.17873/2006 etc. – 55 –
also stated to be in direct conflict with the various Supreme
Court judgments in particular T.M.A.Pai, Islamic Academy,
St.Stephen’s College and Inamdar. It is then urged that
inasmuch as the offending provisions of the Act are
non-severable from the other provisions of the Act and further
that the main sections around which the whole Act revolves are
ultra vires the provisions of the Constitution, the whole Act must
fall. These are the arguments which are commonly raised by
learned counsel representing the petitioners in all the matters.
The other arguments individually raised by the learned counsel in
some of the petitions shall be mentioned at appropriate places.
12. We have heard Sri.Andyarujina, Sri.Rajeev
Dhavan, learned Senior Advocates, who have led the arguments
from front assisted by a galaxy of lawyers for the petitioners as
also Sri.Vaidyanathan, learned Senior Advocate and
Sri.C.P.Sudhakara Prasad, learned Advocate General on behalf of
the State.
W.P.(C) No.17873/2006 etc. – 56 –
Power of Judicial Review on recitals in the Preamble
13. Before we may examine the validity of the provisions
of the Act and the Rules under challenge, it will be appropriate at the
very outset to deal with the objections raised by Mr.Vaidyanathan,
learned Senior Counsel representing the State along with
Mr.Sudhakara Prasad, Advocate General of Kerala that recitals in the
preamble to the Act are stated to be part of legislative facts and
cannot be subject matter of dispute and would be beyond the purview
of judicial review. For deciding the validity of a law, the
statements contained in the Preamble should be presumed to be
correct. If the preamble is read as a whole, it would be evident
that the object and provisions of the Act fall within the four
corners of the provisions of the Constitution. The same is also
in tune with the decisions of the Supreme Court and in particular
in Inamdar’s case. That being so, the legislative facts cannot
be subject matter of dispute or judicial review, thus contends the
learned counsel.
14. With a view to appreciate the contention of the
learned counsel, it will be appropriate to find out as to what are
the recitals of the preamble of the Act of 2006 which are stated
W.P.(C) No.17873/2006 etc. – 57 –
to be legislative facts thus not amenable to judicial review. The
preamble contains ten unnumbered paras. Paras 1, 4, 5, 6, 7
and 8, it appear, would only contain statements of law as
propounded by the Honourable Supreme Court. In so far as
para 3 is concerned, the same only reproduces the provisions
contained in Article 15(5) of the Constitution of India. In so far
as paras 2, 9 and 10 are concerned, the same may contain a
factual position.
15. Learned counsel appearing for the petitioners has
sought to divide the preamble in 10 parts and while commenting
on the relevant parts, it is urged by them that the Act of 2006 is
a self defeating statute. With regard to part or para 1, it is urged
that Supreme Court had never held so as mentioned therein.
The decision rather is that there could be a consortium for the
managements and further the State can take over only to ensure
or achieve the twin objectives of transparency and merit in the
event when the object might have been transgressed, the take
over can be only a temporary measure and not for all times to
come. With regard to part 2 of unnumbered para 2, it is urged
W.P.(C) No.17873/2006 etc. – 58 –
that the past experience was only with regard to facts collected
by Justice K.T.Thomas Committee and only once in 2004 the
Committee intervened. There was no such past experience in the
report of the Committee. The single instance could not be said to
be a past experience of maladministration. It is further urged
that one instance and that too with regard to Medical Colleges
could not be treated to be such transgression that would take
away the right of the management to hold the consortium test.
With regard to parts or unnumbered paras 3 and 4, counsel has
nothing to say. It is urged by them that they are not concerned
with the said parts of the preamble. With regard to part 5 of
unnumbered paragraphs thereof, it is urged that despite
mentioning that the religious and linguistic minorities have to be
considered Statewise, the other conditions that have been placed
to qualify as religious or linguistic minority are wholly
unworkable. Parts or unnumbered paragraphs 6 and 7 have
been put together. Learned counsel representing the petitioners
urge that the same is against the dictum of the Supreme Court.
With regard to part or unnumbered para 8, it is urged that the
W.P.(C) No.17873/2006 etc. – 59 –
words mentioned therein ‘must equally apply to the majority
institutions as well as minority institutions’ is not correct. With
regard to the words ‘accrue from minority rights be equitably
shared among different sections, including weaker sections,
within the minority community to which the particular college or
institution belongs’ in part or unnumbered para 9 of the
preamble, it is urged that it is not correct as it was not so held
by the Supreme Court. With regard to part or para 10, it is urged
that there cannot be any objection to the compromise mentioned
therein, but the same cannot be forced. With regard to the
contention of Mr.Vaidyanathan on the legal issue canvassed by
him as mentioned above, it is urged by the learned counsel for
the petitioners that the same is absolutely incorrect and that this
court exercising its powers under Article 226 of the Constitution
of India, when the challenge to Act is based upon violation of
fundamental rights, can always lift the veil as the legislative
declaration of facts are not beyond judicial scrutiny in the
constitutional context of Articles 14 and 16 of the Constitution of
India.
W.P.(C) No.17873/2006 etc. – 60 –
16. The issue debated before the Court with regard to
power of judicial review under the provisions of Article 226 of the
Constitution of India in the context of challenge to the provisions
on the basis of violation of fundamental rights is not res integra.
There will be no need to delve any further on the issue, but to
straightaway refer to the judicial precedents covering the field.
In Indira Sawhney v. Union of India, (2000) 1 SCC 168,
while dealing with this precise issue, the Honourable Supreme
Court observed that, “legislative declarations of facts are not
beyond judicial scrutiny in the Constitutional context of Articles
14 and 16”. The facts of the case aforesaid will reveal that
provisions of Section 3 of the Kerala State Backward Classes
(Reservation of Appointments or Posts in the Services under the
State) Act, 1995 was declared to be mentioning that having
regard to ‘known facts’ in existence in the State, there are no
socially advanced sections in any backward classes who may
have acquired capacity to compete with forward classes and that
the backward classes are not adequately represented in the
services of the State. Section 3 of the said Act of 1995 in so far
W.P.(C) No.17873/2006 etc. – 61 –
as would be relevant reads as follows:
“It is hereby declared, having regard
to known facts in existence of the State –
(a) that there are no socially advanced
sections in any Backward Classes who have
acquired capacity to compete with forward
classes; and (b) that the Backward Classes
in the State are still not adequately
represented in the services under the State
and they continue to be entitled to
reservation under clause (4) of Article 16
of the Constitution”.
For so holding, Honourable Supreme Court relied upon its earlier
decision in Kesavananda Bharati v. S
tate of Kerala, (1973) 4SCC 225. In the said case, the question before the Court that
arose in the context of legislative declaration made for the
purpose of Article 31-C was, whether the court was precluded
from lifting the veil, examine the facts and hold the legislative
declaration to be invalid. The Supreme Court after making a
reference to the observations made by the Honourable Judges in
the said case as also relying upon judicial precedents in Charles
Russel v. R, [1882 (7) AC 829] and Attorney General v. Queens
Insurance Co., [1878 (3) SC 1090], held that,
W.P.(C) No.17873/2006 etc. – 62 –
“This being the legal position, this
court could certainly examine whether the so
called known facts referred to in Section 3 were
indeed non-existent”.
While dealing with the precise question involved in the said case
in the context of legislative declaration in Section 3 with regard
to ‘known facts’, the Supreme Court gave six reasons categorised
as (a) to (f) and came to the conclusion as follows:
“It appears to us, therefore, from what
we have stated above in sub-paras (a) to (g)
that Kerala Act had shut its eyes to the
realities and facts and it came forward with a
declaration in clause (a) of Section 3 which,
perhaps, it was mistakenly believed was not
amenable to judicial scrutiny. Unfortunately,
the law is otherwise”.
It was further held that,
“In view of the facts and circumstances
referred to above, we hold that the declaration
in clause (a) of Section 3 made by the
legislature has no factual basis in spite of the
use of the words “known facts”. The facts and
circumstances, on the other hand, indicate to
W.P.(C) No.17873/2006 etc. – 63 –
the contrary. In our opinion, the declaration is
a mere cloak and is unrelated to facts in
existence. The declaration in Section 3(a) is,
in addition, contrary to the principles laid
down by this Court in Indra Sawhney, 1992
Suppl.(3) SCC 217 and in Ashoka Kumar
Thakur, (1995) 5 SCC 403. It is, therefore,
violative of Articles 14 and 16(1) of the
Constitution of India. Clause (a) of Section 3
is, therefore, declared unconstitutional.”.
17. In view of the authoritative pronouncement of
the Supreme Court with regard to the precise question as
involved in the present case, the contention raised by
Mr.Vaidyanathan, learned Senior Counsel that, recitals in the
preamble to the Act are stated to be part of legislative facts and
cannot be subject matter of dispute and would be beyond the
purview of judicial review has to be repelled and it has to be held
that court while examining the vires of the Act based upon
violation of fundamental rights can tear the veil to decide the
real nature of the statute if the facts and circumstances may
necessitate such a course. In so far as the statement of law
W.P.(C) No.17873/2006 etc. – 64 –
made in the preamble in the various paragraphs is concerned, if
the same may be actually against the dictum of the Supreme
Court, it shall have to be ignored. Having dealt with the
proposition of law and repelling the contention of
Mr.Vaidyanathan, time is now ripe to examine the factual aspect
of the preamble in the context of the contentions raised before
us. Learned counsel representing the petitioners contends that
the same are not correct or were such that could not be taken
into consideration.
18. The factual position stated in part or unnumbered
para 2 of the preamble may contain facts as stated by the
learned counsel appearing for the petitioners to be absolutely
incorrect. It is the case of the petitioners that there was no past
experience of maladministration of the entrance test conducted
by the consortium/association of private professional self
financing institutions of the State. In Para 75 of W.P.(C)
No.17873 of 2006 which has been filed by the petitioners’
W.P.(C) No.17873/2006 etc. – 65 –
institution running Nursing Courses, it is pleaded that as far as
the selection process and tests conducted by the Consortium of
Nursing Managements are concerned, there was no complaint of
any sort from any quarters so far and there was no notice of any
malpractice by the Association or any member of the Association
till date. All the members of the Association had opted to go by
the Test conducted by the Consortium and had effected
admissions only from the said Test. In the counter affidavit filed
on behalf of the State, it has been averred that necessity to
insist on admission through Common Entrance Test arose as
was felt by the Legislature in its wisdom that there was large
scale maladministration and exploitative methods adopted by the
private professional colleges. The power to admit is the root
cause of capitation fee and merit being given a go-by. It is
then pleaded that Justice K.T.Thomas, Chairman of the
Committee for Overseeing the conduct of examinations has
pointed out that the Management of Self Financing Medical,
Dental, Ayurveda and Sidha colleges have violently violated the
guidelines issued by the Supreme Court by conducting a rigged
W.P.(C) No.17873/2006 etc. – 66 –
and farce entrance test for admitting students as if they are
merit students. To substantiate its plea as mentioned above, the
respondents have placed on record the proceedings of the Justice
K.T.Thomas Committee as also a letter dated 21.6.2004 as
Exts.R1(a) and R1(b) respectively. A letter dated 30.7.2004
was written by a student who appeared in the entrance exam
conducted by the group of private colleges in 2004 complaining
about the manner in which the test was conducted. A copy of
the same is placed on record as Ext.R1(c). These are the kinds
of averments made in all the counter affidavits pertaining to the
test conducted by the Consortium of Medical Colleges or other
Technical Institutions. We may mention at this stage itself that
the institutions before us are imparting education in Engineering,
Medicine, Ayurveda, Teaching etc. Ext.R1(a) are the proceedings
of the Committee for Supervision of Common Entrance Test for
selection of students in the management seats in the Private Self
Financing Professional Colleges dated 3rd June, 2004. It deals
with Medical, Dental, Ayurveda and Siddha Colleges. In
paragraph 2 of the proceedings aforesaid, it has been mentioned
W.P.(C) No.17873/2006 etc. – 67 –
that the Committee had noticed that Association of Private Self
Financing Institutions received applications for appearing in the
Common Entrance Test to be conducted by them on the strength
of prospectus which has shown the fee structure proposed by
each member of the association which was far higher than the
fees fixed by the Committee. The last date fixed by the
association for receipt of application was long prior to the date
when the Committee decided the fee payable by the students.
As per the decision of the Committee, the fee which a student
has to pay in respect of each course is far less than the fee
proposed by each College shown in the prospectus. When the
fee structure was published, a large number of students who felt
that they could afford to pay the fee fixed by the Committee
made earnest efforts to apply in the colleges concerned but the
Association forestalled the rights and opportunity of such
students to make the application on the premise that last date
for making the application was already over. The Committee on
the aforesaid facts understood that the number of applications
received by the Association on the basis of prospectus issued
W.P.(C) No.17873/2006 etc. – 68 –
was abysmally small and this fact itself would prove that only a
handful of students who could afford to pay the exorbitant fee
shown in the prospectus fixed by the Association could make the
application. This, according to the Committee, was in contrast to
the number of applications received by the Commissioner for
Entrance Examinations. The Committee was of the view that
there was no doubt that if the last date for receipt of application
has been fixed giving a reasonable interval from the date of
fixation of fee, the number of applicants should have been far
higher than the small number now admitted by the management.
After discussing the matter in detail the Committee resolved as
follows:
“i. The Association shall postpone the last
date for receipt of application atleast till
20.06.2004.
ii. Sufficient number of application forms
should be made available at the office of the
Committee also for issuing to the intending
applicants and the cost of the forms issued
will be passed over to the Association.
iii. The other dates for holding the entrance
test shall be rescheduled accordingly in such
a way as to keep the last date for admission
W.P.(C) No.17873/2006 etc. – 69 –
specified by the MCI, pursuant to the
Judgement of the Supreme Court in MCI v.
Madhu Sing case.
iv. In the event of the Association being
unable to conduct the entrance test in the
manner specified above, the Association shall
follow the rank list published by the State
agencies after fixing up another date as the
last date for receiving application.”.
In the proceedings dated 3.6.2004, the Committee has directed
the Association of Managements of the Self Financing Medical
Colleges to extend the last date for receipt of applications by a
few more days, so as to enable the intending students to apply.
In the letter dated 21.6.2004, produced as Ext.R1 (b), it is
stated that the Chairman of the Association of Private Self
Financing Medical College filed a writ petition praying for stay of
operation of implementation of the order dated 3.6.2004 of the
Committee and when the High Court refused to grant stay of the
order, the Association in a hurry prepared the question paper
and a farce test was conducted on 13.6.2004, as announced by
them already. It was observed that the Association should not
have flouted the direction of the Committee which was necessary
W.P.(C) No.17873/2006 etc. – 70 –
for supervising the test and also to oversee that the admissions
are fair and transparent. It was further observed that denying
the opportunity to the students to apply for admission after the
fees was fixed by the Committee is a very grave violation of
fairness and transparency. Complaints have been received by
the committee that some of the Medical colleges have collected
huge amounts from some of the applicants by assuring
admission to them and that is the reason for preventing others
to make application. Though the committee has no direct
evidence on the truth of such allegations, the committee has
been convinced that transparency became a casualty when the
managements blocked the student community from applying for
admission after knowing the range of fees. The Committee then
observed that management of Self Financing Medical, Dental,
Ayurveda and Siddha Colleges have violently violated the
guidelines issued by the Supreme Court by conducting such a
rigged and farce entrance test for admitting students as if they
are merit students. The Committee also found that the test
conducted by the Medical Institutions on 13.6.2004 was wholly
W.P.(C) No.17873/2006 etc. – 71 –
unfair, wherein fairness and transparency have become
casualties. A letter dated 30.7.2004 [Ext.R1(d)], has been
addressed by one Anu.S. to Justice K.T.Thomas. It is a letter by
a student who appeared for the entrance examination conducted
on 13.6.2004 by the Self Finance College Association. It is
stated in the letter that even though the Committee headed by
Justice K.T.Thomas had objected to the conduct of the
examination, she had participated in the examination. The Self
Financing Colleges have admitted students of their choice in the
management quota. In many of the colleges, the classes have
started in between, but she and others were not included even in
the selection process. She had passed CBSE examination with
91.7% marks in Biology, Physics and Chemistry and performed
well in the examination conducted by the Association, but neither
the examination results were declared nor she was called for an
interview. She requested the Committee to help ordinary people
like her either by cancelling the entrance examination conducted
by the Association or by selecting the students in a transparent
manner.
W.P.(C) No.17873/2006 etc. – 72 –
19. It is the case of the petitioners that in so far as
the Committee headed by the former Judge of the Supreme
Court, Mr.Justice K.T.Thomas, is concerned, there was no
allegation with regard to fairness in the test. Unfairness in the
test was presumed on the ground that prospectus was issued by
Self Financing Institutions far prior to fixation of fees by the
Committee and inasmuch as the fee fixed in the prospectus was
far higher than the one fixed by the Committee later in point of
time, many students were debarred from participating in the test
conducted by the Self Financing Institutions. This, according to
the Committee, had resulted into a test which was a complete
farce. In so far as the letter written by a student is concerned, it
is urged by the learned counsel for the petitioners that, no
material has been placed on record to substantiate the
allegations made therein. The contents of the letter are in the
realm of allegation without any proof, thus would contend the
learned counsel.
20. It may not be possible to accept the contentions
of the learned counsel as noted above. The findings recorded by
W.P.(C) No.17873/2006 etc. – 73 –
the Committee headed by Justice K.T.Thomas may be
presumptive with regard to standard of the test, but, surely,
number of students could not participate. Further, there are
indeed other findings also like holding the test on a day and
announcing the result the very next day which point towards the
test not being fair. The declaration of facts made in unnumbered
para 2 of the preamble may be true, but the significant question
that arises in the present cases is as to whether on the basis of a
single test, authenticity of which was adversely commented upon
by the Committee headed by a former Judge of the Supreme
Court, Justice K.T.Thomas, and which test was conducted only by
Self Financing Institutions imparting Medicine, Ayurveda, Dental
and Siddha Courses, whether the right of managements to hold a
consortium test could be taken away for all times to come,
particularly when the Act of 2004 intervened between the
observations made by Justice K.T.Thomas Committee and the
Act of 2006. We will deal with this aspect of the case when we
may consider the right of Self Financing Unaided Institutions to
make admission of students through a Consortium Test. Suffice
W.P.(C) No.17873/2006 etc. – 74 –
it, however, to mention at this stage that, there is no allegation
of conducting a rigged or farce test against institutions imparting
education in other technical subjects like Engineering, Nursing
and Teacher Education and further that there is no allegation
whatsoever of a rigged test or a test held not to admit students
of merit either before or after the test conducted in 2004. It is
also to be stated that Regulations of 2002 that came into being
prior to the Act of 2004 were challenged in this Court in
O.P.No.39420 of 2002 and vide judgment dated 20th January,
2003 this Court allowed the Writ Petition. An application for
review was filed against the order aforesaid, which was
dismissed on 17th February, 2003. It was held in the said order
that the students admitted by the managements were not
lacking any merit and this finding came to be recorded after
going through the entire records and the performance in the
qualifying examination. The other factual position noticed in the
preamble, would pertain to unique socio economic and
demographic complexion of the State in the context of the need
and commitment to protect and strengthen the secular ethos
W.P.(C) No.17873/2006 etc. – 75 –
and the long tradition of equitable sharing of the opportunities
for education among different communities prevailing in the
State. It is not clear from the aforesaid statement of fact
mentioned in part or unnumbered para 9 of the Preamble as to
what is the socio economic and demographic complexion of the
State, but during the course of arguments it is clarified that it
relates to Christian and Muslim Communities being far more
progressive in establishing institutions of education as compared
to even so-called majority communities in the State. It is also
pointed out that students of the minority communities in various
fields of education may be more than the students of the
majority community. It is also urged that the communities
mentioned above have progressed enough. These communities
are now forward and have become rich and it is now time that
Government must protect and strengthen the Secular ethos and
the long tradition of equitable sharing of opportunities for
education among different communities prevailing in the State.
But for showing on material and which we may mention, is
admitted position that minority communities have established
W.P.(C) No.17873/2006 etc. – 76 –
educational institutions far more than the non-minority
communities, nothing has been shown which may even remotely
suggest that these communities have become advanced and rich.
We shall deal with this aspect of the matter in the context of
right of minorities to establish and administer institutions at the
relevant time, but all that we may mention at this stage is that
demographic complexion of the State in the context of the need
and commitment to protect and strengthen the secular ethos as
mentioned in the Preamble would pertain to only more
educational institutions having been established by the minority
communities and that is a fact in so far as State of Kerala is
concerned.
21. Having examined the backdrop of events
culminating into the filing of the present petitions and the
important dates and events which may have a bearing upon the
controversy in issue, we would have normally examined at this
stage the challenge to various provisions of the Act and the Rules
referred to above, but inasmuch as the learned counsel
appearing for the parties have primarily relied upon the
W.P.(C) No.17873/2006 etc. – 77 –
judgments of the Supreme Court in St.Xavier’s case,
St.Stephen’s case, T.M.A.Pai Foundation case and P.A.Inamdar’s
case and claimed that the said judicial precedents support their
view points, it shall be necessary to first take into consideration
the background in which the said cases came to be instituted,
the basic points involved therein and the results thereof. This
exercise has to be gone into as both parties rely upon the same
very judgments in their favour and unless the context in which
the said cases came to be decided is clear, a sure answer may
not be possible.
22. The litigation on education can be mainly divided
into two eras, namely, one, post Unnikrishnan and the other
post T.M.A.Pai Foundation, clarified by the Supreme Court in
Inamdar’s case. In Mohini Jain v. State of Karnataka, 1992 (3)
SCC 666 (hereinafter referred to as Mohini Jain’s case), the
challenge was to notification that provided for fee structure
whereby for Government seats the tuition fee was Rs.2000/-
per annum, and for students from Karnataka the fee was
Rs.25,000/- per annum while the fee for Indian students from
W.P.(C) No.17873/2006 etc. – 78 –
outside Karnataka, under the payment category was Rs.60,000/-
per annum. It was urged before the Supreme Court that
charging such a discriminatory and high fee would violate the
constitutional guarantees and rights. This attack was sustained
and it was held that there was fundamental right to education in
every citizen, and that the State was duty bound to provide
education as also the private institutions that discharge State’s
duties were equally bound not to charge a higher fee than the
Government institutions. The correctness of the same was
challenged in Unnikrishnan’s case where it was urged that if the
law laid down in Mohini Jain’s ratio was to apply, the educational
institutions would have to be closed down as they would be
unable to run the institutions with a kind of fee structure
ordained in the said case. The Supreme Court in the context of
arguments raised in the said case considered the conditions and
regulations, if any which the State could impose on private
unaided/aided, recognised or affiliated educational institutions
conducting professional courses, the extent of fee which could
be charged by such an institution and the manner in which the
W.P.(C) No.17873/2006 etc. – 79 –
admissions could be granted. It was held that private unaided
recognised/affiliated educational institutions running professional
courses were entitled to charge a fee higher than that charged by
Government institutions for similar courses, but such a fee
should not exceed the maximum limit fixed by the State. It was
also held that commercialisation of education was not
permissible, the same would be opposed to public policy, and
charging of capitation fee was held to be illegal. The court
upheld the power of the Government to frame rules and
regulations in matter of admission and fees with regard to
private aided recognised/affiliated educational institutions. The
question as to whether the setting up of an educational
institution would be a fundamental right under Article 19(1)(g)
was not answered. It was further held that a citizen who had
not completed the age of 14 years would have the right of free
education which would not be available to him beyond the age of
14 years. The private educational institutions were held to be
supplementing the efforts of the State in educating the people.
The authorities were obliged to recognise and/or affiliate such
W.P.(C) No.17873/2006 etc. – 80 –
institutions, but could insist upon such conditions as would be
appropriate to ensure not only an education of requisite
standard but also fairness and equal treatment in matters of
admission of students. The court then formulated a scheme
and directed every authority granting recognition and/or
affiliation to impose that scheme upon institutions seeking
recognition/affiliation, even if they were unaided institutions.
The scheme postulated that professional colleges should be
established and/or administered only by a Society under the
Society Registration Act, 1860, or corresponding Act of a State,
or by a Public Trust registered under the Trusts Act or under the
Wakfs Act and that no individual, firm, company or other body of
individuals would be permitted to establish and/or administer a
professional college; that 50% of seats in every professional
college should be filled by the nominees of the Government or
university, selected on the basis of merit determined by a
common entrance examination, referred to as free seats,
whereas the remaining 50% of seats (payment seats) should be
filled by those candidates who pay the fee prescribed therefor
W.P.(C) No.17873/2006 etc. – 81 –
and allotment of seats against payment seats should be done on
the basis of inter se merit determined on the same basis as in
the case of free seats; that there should be no quota reserved for
management or for any family, caste or community, which may
have established such a College; that it should be open to the
professional colleges to provide for reservation of seats for
constitutionally permissible classes with the approval of the
affiliating university; that the fee chargeable in each professional
college should be subject to a ceiling as may be prescribed by
the appropriate authority or by a competent Court; that every
State Government should constitute a Committee to fix the
ceiling on the fees chargeable by a professional college or class
of professional colleges, as the case may be. The committee so
constituted should fix the fee once in every three years or at
such longer intervals as it may think appropriate and that it
would be appropriate for the University Grants Commission to
frame regulations under its Act regulating the fees that could be
charged by the affiliated colleges operating on a no-grant-in-aid
basis. The AICTE , the Indian Medical Council and the Central
W.P.(C) No.17873/2006 etc. – 82 –
Government were also given similar advice. This is the scheme
which can be called as a scheme in the era of post Unnikrishnan’s
case and which held the field for ten years.
23. In T.M.A.Pai Foundation, the scheme as
formulated in Unnikrishnan’s case was challenged. It was the
case of petitioners therein that cost incurred on educating a
student in an unaided professional college was more than the
total fee which was realised at on the basis of the formula fixed
in the scheme. This had resulted in revenue shortfalls. It was
further represented that even though by interim orders some
percentage of seats to be alloted to NRI students against
payment of higher amount was permitted, that even then
sufficient funds were not available for development of
educational institutions. Another anomaly of free seats bagged
by students from affluent families, whereas students from poor
family were required to pay, were also highlighted. The
implementation of Unnikrishnan scheme it was urged, has helped
the privileged from richer urban families, even after they ceased
to be comparatively less meritorious and the same has also
W.P.(C) No.17873/2006 etc. – 83 –
resulted in economic loss for the educational institutions. The
scheme framed under Unnikrishnan’s case with regard to
affiliation and recognition subject to fulfilment of conditions
imposed by the concerned authorities was also challenged. The
nationalisation of education again formulated in the scheme
under Unnikrishnan’s case was also challenged. It was urged
that the right of private unaided educational institutions to give
admissions and fix fee was curtailed by the State Governments
legislating in conformity with the scheme was neither fair nor
reasonable. The institutions clamoured for their right in
admitting students particularly in private unaided institutions
subject to minimum qualifications that may be prescribed and to
some system of computing the equivalence between different
kinds of qualifications like a common entrance test.
Surrendering the total process of selection to the State was
labelled as unreasonable. The Government’s regulations in the
private institutions were also under challenge. The private
unaided non-minority educational institutions also clamoured for
their right for fixation of fee, admission of students and
W.P.(C) No.17873/2006 etc. – 84 –
non-interference in these matters by the State or other authorities.
In the context of all pervasive and all embracing attack on the
scheme formulated in Unnikrishnan’s case, the Supreme Court in
T.M.A. Pai Foundation case framed under five heads eleven
questions. The five headings under which discussions on the
eleven questions were classified read as follows:
“1. Is there a fundamental right to set up
educational institutions and if so, under
which provision?
2. Does Unni Krishnan case require reconsideration?3. In case of private institutions, can there be
government regulations and, if so, to what
extent?
4. In order to determine the existence of a
religious or linguistic minority in relation to
Article 30, what is to be the unit – the State
or the country as a whole?
5. To what extent can the rights of aided
private minority institutions to administer be
regulated?”.
In so far as the eleven questions with answers that may be
relevant for determination of controversy in the present case are
concerned, the same reads as follows:
W.P.(C) No.17873/2006 etc. – 85 –
“Q.1. What is the meaning and content of the
expression ‘minorities’ in Article 30 of the Constitution
of India?
A. Linguistic and religious minorities
are covered by the expression minority under
Article 30 of the Constitution. Since
re-organisation of the States in India has
been on linguistic lines, therefore, for the
purpose of determining the minority, the unit
will be the State and not the whole of India.
Thus, religious and linguistic minorities, who
have been put on a par in Article 30, have to
be considered Statewise.
Q.3(b).To what extent can professional
education be treated as a matter coming under
minorities’ rights under Article 30?
A. Article 30(1) gives religious and
linguistic minorities the right to establish and
administer educational institutions of their
choice. The use of the words ‘of their choice’
indicates that even professional educational
institutions would be covered by Article 30.
Q.4. Whether the admission of students to
minority educational institutions, whether aided or
W.P.(C) No.17873/2006 etc. – 86 –
unaided, can be regulated by the State Government
or by the University to which the institution is
affiliated?
A. Admission of students to unaided
minority educational institutions viz schools
and undergraduate colleges where the scope
for merit-based selection is practically nil,
cannot be regulated by the State or university
concerned, except for providing the
qualifications and minimum conditions of
eligibility in the interest of academic
standards.
The right to admit students being
an essential facet of the right to administer
educational institution of their choice, as
contemplated under Article 30 of the
Constitution, the State Government or the
University may not be entitled to interfere
with that right, so long as the admission to
the unaided educational institutions is on a
transparent basis and the merit is adequately
taken care of. The right to administer, not
being absolute, there could be regulatory
measures for ensuring educational standards
and maintaining excellence thereof, and it is
W.P.(C) No.17873/2006 etc. – 87 –
more so in the matter of admissions to
professional institutions.
A minority institution does not
cease to be so, the moment the grant-in-aid
is received by the institution. An aided
minority educational institution, therefore,
would be entitled to have the right of
admission of students belonging to the
minority group and at the same time, would
be required to admit a reasonable extent of
non-minority students, so that the rights
under Article 30(1) are not substantially
impaired and further the citizens’ right under
Article 29(2) are not infringed. What would be
a reasonable extent, would vary from the
types of institution, the courses of education
for which admission is sought and other
factors like educational needs. The State
Government concerned has to notify the
percentage of the non-minority students to be
admitted in the light of the above
observations. Observation of inter se merit
amongst the applicants belonging to minority
group could be ensured. In the case of aided
professional institutions, it can also be
W.P.(C) No.17873/2006 etc. – 88 –
stipulated that passing of the common
entrance test held by the State agency is
necessary to seek admission. As regards
non-minority students who are eligible to
seek admission for the remaining seats,
admission should normally be on the basis of
the common entrance test held by the State
agency followed by counselling wherever it
exists.
Q.5(a). Whether the minorities’ right to
establish and administer educational institutions of
their choice will include the procedure and method of
admission and selection of students?
A. A minority institution may have its
own procedure and method of admission as
well as selection of students, but such a
procedure must be fair and transparent and
selection of students in professional and
higher educational colleges should be on the
basis of merit. The procedure adopted and
selection made should not tantamount to
maladministration. Even an unaided minority
institution ought not to ignore merit of the
students for admission, while exercising its
right to admit students to the colleges
W.P.(C) No.17873/2006 etc. – 89 –
aforesaid, as in that event, the institution will
fail to achieve excellence.
Q5(b). When the minority institutions’ right of
admission of students and to lay down procedure and
method of admission, if any would be affected in any
way by the receipt of State aid?
A. While giving aid to professional
institutions, it would be permissible for the
authority giving aid to prescribe bye rules or
regulations, the conditions on the basis of
which admission will be granted to different
aided colleges by virtue of merit, coupled with
the reservation policy of the State qua
non-minority students. The merit may be
determined either through a common
entrance test conducted by the University or
the Government concerned followed by
counselling, or on the basis of an entrance
test conducted by individual institutions –
the method to be followed is for the university
or the Government to decide. The authority
may also devise other means to ensure that
admission is granted to an aided professional
institution on the basis of merit. In the case
W.P.(C) No.17873/2006 etc. – 90 –
of such institutions, it will be permissible for
the Government or the university to provide
that consideration should be shown to the
weaker sections of the Society.
Q.8. Whether the ratio laid down by this Court
in St.Stephen’s case (St.Stephen’s College v.
University of Delhi) is correct? If no, what order?
A. The basic ratio laid down by this
Court in St.Stephen’s College case is correct,
as indicated in this judgment. However, a
rigid percentage cannot be stipulated. It has
to be left to the authorities to prescribe a
reasonable percentage having regard to the
type of institution, population and educational
needs of minorities.
Q.9. Whether the decision of this Court in Unni
Krishnan J.P. v. State of A.P. (except where it holds
that primary education is a fundamental right) and the
scheme framed thereunder requires reconsideration/
modification and if yes, what?
A. The scheme framed by this Court in
Unni Krishnan case and the direction to
impose the same, except where it holds that
W.P.(C) No.17873/2006 etc. – 91 –
primary education is a fundamental right, is
unconstitutional. However, the principle that
there should not be capitation fee or
profiteering is correct. Reasonable surplus to
meet cost of expansion and augmentation of
facilities does not, however, amount to
profiteering.
Q.10. Whether the non-minorities have the right
to establish and administer educational institution
under Article 21 and 29(1) read with Articles 14 and
15(1), in the same manner and to the same extent as
minority institutions?
and
Q.11. What is the meaning of the expressions
‘education’ and ‘educational institutions’ in various
provisions of the Constitution? Is the right to
establish and administer educational institutions
guaranteed under the Constitution?
A. The expression ‘education’ in the
articles of the Constitution means and
includes education at all levels from the
primary school level up to the postgraduate
level. It include professional education. The
expression ‘educational institutions’ means
W.P.(C) No.17873/2006 etc. – 92 –
institutions that impart education, where
‘education’ is understood hereinabove.
The right to establish and administer educational institutions is guaranteed under the Constitution to allcitizens under Articles 19(1)(g) and 26, and
to minorities specifically under Article 30.
All citizens have a right to establish
and administer educational institutions under
Article 19(1)(g) and 26, but this right is
subject to the provisions of Article 19(6) and
26(a). However, minority institutions will
have a right to admit students belonging to
the minority group, in the manner as
discussed in this judgment”.
24. Even though one of the ever largest Bench of 11
Honourable Judges was constituted which as observed in
P.A.Inamdar’s case was expected to draw a final curtain,
subsequent events tell a different story. Some of the questions
it was observed had remained unsettled whereas some aspects
required clarification and it is this exercise which was taken by
the Bench consisting of 7 Honourable Judges in Inamdar’s case.
After the decision in Pai Foundation, however, another judgment
W.P.(C) No.17873/2006 etc. – 93 –
in Islamic Academy of Education was delivered by the Supreme
Court consisting of 5 Honourable Judges, which was the first
attempt to clarify the judgment of Supreme Court in Pai
Foundation case. The Pai Foundation judgment as mentioned
above gave rise to further litigations, both Government and
Managements of Institutions endeavouring to interpret the said
judgment in their favour. The Government too in the wake of
law laid down in T.M.A.Pai enacted laws as per the law
understood by it. That too was also an added reason for
litigation in post T.M.A.Pai era. When interim orders passed by
various High Courts were challenged, counsel appearing for the
parties agreed that there were certain anomalies and doubts in
T.M.A.Pai’s decision, which require clarification. This clarification
was sought primarily by unaided professional institutions, both
minority and majority. In Islamic Academy of Education case,
thus on the issues that required clarification, four questions were
framed, which read as follows:
“1. Whether the educational institutions are
entitled to fix their own fee structure?
2. Whether minority and non-minority
W.P.(C) No.17873/2006 etc. – 94 –
educational institutions stand on the same
footing and have the same rights?
3. Whether private unaided professional colleges
are entitled to fill in their seats, to the extent
of 100%, and if not, to what extent? and
4. Whether private unaided professional colleges
are entitled to admit students by evolving
their own method of admission?”.
The Constitution Bench in Inamdar’s case attempted to
formulate the gist of answers to the four questions as given by
the Constitution Bench in Islamic Academy of Education and as
understood by it. On the first question as mentioned above, the
Bench in Inamdar case observed that each minority institution is
entitled to have its own fee structure, subject to the condition
that there can be no profiteering and, capitation fee cannot be
charged. A provision for reasonable surplus should be made. The
relevant factors that should be taken into consideration for fee
structure would be infrastructure and facilities available, the
investments made, salaries paid to the teachers and staff, and
future plans for expansion and betterment of the institution. The
answer to question No.2 was summed up by observing that
minority institutions stand on a better footing than non-minority
W.P.(C) No.17873/2006 etc. – 95 –
institutions. Minority educational institutions have a guarantee
or assurance to establish and administer educational institutions
of their choice. State legislation, primary or delegated, cannot
favour non-minority institutions over minority institutions. The
difference was referable to Article 30 of the Constitution. The
questions 3 and 4 reproduced above were taken together for
answer and it was observed that in professional institutions, as
they are unaided, there will be full autonomy in their
administration, but the principle of merit cannot be sacrificed, as
excellence in professions is in the national interest, and that
without interfering with the autonomy of unaided institutions, the
object of merit-based admissions can be secured by insisting on
it as a condition to the grant of recognition as also that
management can have quota for admitting students at its
discretion but subject to satisfying the test of merit based
admissions. The management could pick up students of their
choice but the same had to be out of those who have passed the
common entrance test conducted by a centralised mechanism.
It was further observed that State can provide for reservation in
W.P.(C) No.17873/2006 etc. – 96 –
favour of financially or socially backward sections of the society
and that prescription of percentage of seats, i.e. allotment of
different quotas has to be done by the State in accordance with
the local needs and interests/needs of that minority community
in the State. The plea that each minority unaided educational
institution can hold its own admission test was expressly
overruled.
25. In the context of backdrop of controversies solved
or unsolved, obscure or otherwise, it was observed in Inamdar’s
case that the task of the Bench would be not to pronounce their
own independent opinions which were also considered in Pai
Foundation as even if the Bench was to disagree with the findings
recorded therein, it could not be done as the pronouncement of
11 Judges was binding upon them. The real task before the
seven Member Bench was to cull out the ratio decidendi of Pai
Foundation and to examine if the explanation or clarification
given in Islamic Academy runs counter to the decision in Pai
Foundation, and if so, to what extent. It was also observed
that if the Bench was to find anything said or held in Islamic
W.P.(C) No.17873/2006 etc. – 97 –
Academy which may be in conflict with Pai Foundation, it will be
said as being a departure from the law as laid down by Pai
Foundation and on the principle of binding efficacy of
precedents, overrule to that extent the opinion of Constitution
Bench in Islamic Academy case.
26. The direction made in Islamic Academy of
Education case for appointment of Committee was under severe
challenge in Inamdar’s case in the context of there being no
absolute clarity in law laid down in T.M.A.Pai and further
clarifications as has been made in Islamic Academy case, which
too were under challenge, in the reference constituting a Bench
higher than that of Islamic Academy of Education case, the
issues which arose for the decision were as follows:
“(i). The fixation of quota of
admission/students in respect of unaided
professional institutions.
(ii). The holding of examinations for
admissions to such colleges, that is, who
will hold the entrance tests; and
(iii) the fee structure”.
Spelled out from the two orders of reference, the Supreme Court
W.P.(C) No.17873/2006 etc. – 98 –
in Inamdar’s case confined its discussion to the following four
questions.
“(1)To what extent can the State regulate
admissions made by unaided (minority or
non-minority) educational institutions? Can
the State enforce its policy of reservation
and/or appropriate to itself any quota in
admissions to such institutions?
(2) Whether unaided (minority and non-minority)
educational institutions are free to devise their
own admission procedure or whether the
direction made in Islamic Academy for
compulsorily holding an entrance test by the
State or association of institutions and to
choose therefrom the students entitled to
admission in such institutions, can be sustained
in light of the law laid down in Pai Foundation?
(3) Whether Islamic Academy could have issued
guidelines in the matter of regulating the fee
payable by students to the educational
institutions?
(4) Can the admission procedure and free
structure be regulated or taken over by the
Committees ordered to be constituted by
Islamic Academy?”.
The four questions as referred to above were referable to
Headings 3 and 5 and to questions 3(b), 4, 5(a), 5(b), 5(c) and 9
as framed in Pai Foundation case. It would be thus clear that
W.P.(C) No.17873/2006 etc. – 99 –
clarification was to be done with regard to Headings and
questions as mentioned above and that too in the context of
clarification said to have been made in Islamic Academy of
Education case. It was urged by the counsel representing the
Managements that directions for setting up permanent
committee for regulating admissions and fixing fee structure in
unaided minority and non-minority institutions issued in the case
of Islamic Academy were contrary to the ratio of judgment in Pai
Foundation. The said direction clearly runs counter to all earlier
Constitution Bench decisions in St.Stephen’s, St.Xavier’s and
Kerala Education Bill case. A pertinent reference to para 68 of
the decision in Pai Foundation was made and it was urged that in
Islamic Academy case the said para has been wrongly read as
ratio of the judgment by the Bench of five Judges in Islamic
Academy. The directions for setting up of permanent
Committees, for fixing quota and fee structure seriously impinge
on the Constitutional guarantee of autonomy to minority
institutions under Article 30 and to unaided non-minority
institutions under Article 19(1)(g) was further the contention of
W.P.(C) No.17873/2006 etc. – 100 –
the counsel representing the Managements. Yet another point
pertinently argued was that taking over the right to regulate
admissions and fee structure of unaided institutions was not a
reasonable restriction within the meaning of regulations under
Article 19(6) of the Constitution. It was also urged that State
could prevent maladministration, but while doing so the State
could not take over the administration of the institutions
themselves into their own hands on the ground that there is
likelihood of such maladministration, as likelihood of an abuse of
a constitutional right cannot ever furnish justification for denial
of that right. An apprehension that a citizen may abuse his
liberty does not provide justification for imposing restraints on
the liberty of citizens.
27. Learned counsel appearing for the parties as
mentioned above have based their arguments almost exclusively
on the observations made in the three decisions mentioned
above, but we may mention that reading of a particular para or a
stray sentence without reference to the context in which it came
about would not lead to a correct decision. The Supreme Court
W.P.(C) No.17873/2006 etc. – 101 –
in Inamdar’s case also observed that, “it is dangerous to take
one or two observations out of a long judgment and to treat the
same as if they give the ratio decidendi of the said case”.
28. Having taken into consideration the reference
and context in which the three important decisions mentioned
above came to be rendered by the Supreme Court, the points
involved herein and the clarification of points made in T.M.A.Pai
case in particular, time is now ripe to examine the constitutional
validity of the provisions of the Act of 2006 as also the Rules,
under challenge. The right to establish and/or administer an
educational institution would broadly comprises the right to
admit students, to set up a reasonable fee structure, to
constitute a governing body, to take action if there is dereliction
of duty on the part of any employee and the State control to
provide for quotas. The last part of the administration as
mentioned above would primarily apply in the case of unaided
institutions, minority or non-minority. Whereas there is indeed a
discussion and law laid down with regard to all the rights covered
under establishing and administering an educational institution,
W.P.(C) No.17873/2006 etc. – 102 –
there may not be much discussion with regard to the indicia for
treating an educational institution as a minority institution. This
aspect shall have to be considered for the first time in this case.
Broadly speaking, the controversy in the present petition can be
on the rights of managements pertaining to autonomy in the
matter of admission of students, the extent of regulations to
monitor admissions, autonomy in the matter of fixation of fee
and the extent of regulations by which it can be controlled, the
autonomy and freeship, autonomy and quotas, and autonomy
and committees. In addition to these rights to administer the
educational institutions, the other question is with regard to
conditions placed on the minorities to exercise their right as a
minority. We will first deal with autonomy in admission,
permissibility of regulations to control admissions and the extent
thereof.
Admission procedure and State control:
29. The provisions relating to admission in the Act of
2006 would require to be noticed first in that connection. As per
Section 2(a), the Admission Supervisory Committee is defined to
W.P.(C) No.17873/2006 etc. – 103 –
mean the Committee constituted under Section 4 for regulating
admission in the unaided professional colleges or institutions. By
virtue of sub-section (6) of Section 4 the Admission Supervisory
Committee shall supervise and guide the entire process of
admission of students to the unaided professional colleges or
institutions with a view to ensure that the process is fair,
transparent, merit-based and non-exploitative. The Admission
Supervisory Committee may hear complaints with regard to
admission and shall make appropriate recommendation to the
Government for imposing a fine up to rupees ten lakhs if there
is violation of the provisions of the Act, as per sub-section (7) of
Section 4. The Admission Supervisory Committee can also
recommend to the University or statutory body for withdrawal of
the affiliation or recognition if unaided professional colleges or
institutions may violate any of the provisions of the Act.
Common Entrance Test means the entrance test conducted for
determination of merit of the candidates followed by centralised
counselling for the purpose of merit based admission to
professional colleges or institutions through a single window
W.P.(C) No.17873/2006 etc. – 104 –
procedure by the State Commissioner for Entrance Examinations.
Single Window System as per Section 2(t) means the centralized
system for admission administered by the State Commissioner
for Entrance Examinations to professional courses in both aided
and unaided, minority and non-minority colleges or institutions.
The method of admission in professional colleges or institutions
as prescribed by Section 3 is to be made through Common
Entrance Test conducted by the State followed by centralised
counselling through a single window system in the order of merit
by the State Commissioner for Entrance Examinations in
accordance with such procedure which may be specified by the
Government from time to time. The procedure shall be, as
mentioned above, notwithstanding anything contained in any
other law for the time being in force or in any judgment, decree
or order of any Court or any other authority. The Common
Entrance Test is the test conducted only by the State
Commissioner for Entrance Examination through the single
window procedure and as mentioned above, Single Window
System means centralised system for admission administered by
W.P.(C) No.17873/2006 etc. – 105 –
the State Commissioner for Professional Courses in both aided
and unaided, minority and non-minority colleges or institutions.
It is absolutely apparent and so is the case of the State as well
that the admission to all professional institutions, be it, aided or
unaided, minority or non-minority, would be governed by the
common entrance test to be held by the State. Is this
permissible in the context of fundamental rights of the
institutions to administer the educational institutions under
Article 19(1)(g) as recognised and so declared in T.M.A.Pai case
is the question. The method of admission as provided in
Section 3, surely and admittedly, takes away the right of
admission by the institutions. It is the procedure prescribed in
Section 3 which is to be followed notwithstanding anything
contained in any other law for the time being in force or in any
judgment, decree or order of any Court or any other authority.
By making use of the non-obstante clause in Section 3, the State
would urge that even though the minority or non-minority
institutions may have a right to admit students by a test
conducted by them, and such be the law as laid down by the
W.P.(C) No.17873/2006 etc. – 106 –
decisions of the Supreme Court, the State could completely take
over admission on the basis of non-obstante clause. However,
Mr.Vaidyanathan would not go to that extent and would rather
urge that the procedure prescribed in Section 3, even of taking
over the admission completely is justified by the decisions of the
Supreme Court and in particular, Inamdar’s case. The right with
the State will be more pronounced if the test held by the
consortium of private self financing institutions lacks merit,
transparency and fairness. The right of the institutions would be
forfeited in that case even though the same is available
otherwise under Article 19(1)(g) and Article 30(1) of the
Constitution.
30. Even though the State has taken the stand that,
entire process of admission has been taken over by the State as
per the law laid down in T.M.A.Pai, Islamic Academy and
Inamdar, and that it would not press into service the
non-obstante clause in Section 3, we may mention that the law
declared by the Supreme Court cannot be nullified by a
non-obstante clause as found mentioned in the beginning of
W.P.(C) No.17873/2006 etc. – 107 –
Section 3. In People’s Union for Civil Liberties v. Union of
India and another, (2003) 2 SCC 399, culled out from its
earlier decision in Cauvery Water Disputes Tribunal, In re, 1993
Supp (1) SCC 96, Municipal Corporation of the City of
Ahmedabad v. Sew Shrock Spinning and Weaving Company Ltd.
(1970) 2 SCC 280 and Mahal Chand Sethia v. State of W.B.
1969 UJ (SC) 616, it was held thus:
“…..the Legislature can change the basis
on which a decision is rendered by this Court
and thus change the law in general. However,
the power can be exercised subject to
constitutional provision, particularly, legislative
competence and if it is violative of fundamental
rights enshrined in Part III of the Constitution,
such law would be void as provided under
Article 13 of the Constitution. The legislature
also cannot declare any decision of a court of
law to be void or of no effect.”
The fundamental right guaranteed to an institution to carry on
occupation of running an educational institution under Article
19(1)(g) is not in dispute. This was so specifically held by the
Supreme Court in T.M.A.Pai’s case. The minority unaided
institutions too have fundamental right under Article 30(1) of the
W.P.(C) No.17873/2006 etc. – 108 –
Constitution to run educational institutions is also not in dispute.
The discordant view pertains only to right or jurisdiction of the
State or authorities to completely take over admission of
students; whereas counsel for the petitioners would vehemently
contend that the right granted to the minority or non-minority
to run the institution under Articles 19(1)(g) and 30(1) of the
Constitution, can at the most be regulated and the regulations
can also be only with regard to the triple test of fair, transparent
and non-exploitative method or procedure of admission,
Mr.Vaidyanathan learned Senior Counsel appearing for the State
with equal vehemence would contend that such a right can be
completely taken over by the State by framing regulations,
particularly when the institutions may indulge in
maladministration, thus crucifying merit.
31. The Unnikrishnan’s case upheld the power of the
Government to frame rules and regulations in the matter of
admission with regard to private aided recognised/affiliated
educational institutions. In the scheme so formulated, it was
permissible for every authority granting recognition or affiliation
W.P.(C) No.17873/2006 etc. – 109 –
to impose the scheme upon institutions seeking
recognition/affiliation, even if they were unaided institutions and
50% of seats in every professional college should be filled by the
nominees of the Government or university, selected on the basis
of merit determined by a common entrance examination. In
T.M.A. Pai’s case, the scheme as formulated in Unnikrishnan was
under severe challenge. The scheme with regard to affiliation or
recognition subject to fulfilment of conditions imposed by the
concerned authorities was also under challenge. The institutions
had claimed right for admitting students particularly in private
unaided institutions subject to minimum qualification prescribed.
Surrendering of total process of selection to the State was styled
as unreasonable. Out of five headings relating to 11 questions,
headings 2, 3 and 5 and out of the eleven questions, questions
4, 5(a), 5(b) and 9 were related to autonomy in the matter of
admission and the extent of law by which it can be regulated.
Question No.4 relating to admission alone that pertains to
minority educational institutions, whether aided or unaided, was
answered by observing that in so far as admission of students to
W.P.(C) No.17873/2006 etc. – 110 –
unaided minority educational institutions viz schools and
undergraduate colleges are concerned, the scope for merit-based
selection is practically nil. The admission in such institutions
cannot be regulated except for providing the qualifications and
minimum conditions of eligibility in the interest of academic
standards. The right of minority educational institutions to
admit students is an essential facet of the right to administer
educational institution of their choice, as contemplated under
Article 30 of the Constitution. It was specifically held that the
State Government or the University may not be entitled to
interfere with that right, so long as the admission to the unaided
educational institutions was on a transparent basis and the merit
was adequately taken care of. Thus there could be regulatory
measures for ensuring educational standards and maintaining
excellence thereof, which will be more so with regard to
admissions to professional institutions. The minority institutions
do not cease to be so, the moment the grant-in-aid is received
by the institution. It was held to be having the same right as an
unaided minority institution with the exception that it may be
W.P.(C) No.17873/2006 etc. – 111 –
required to admit a reasonable extent of non-minority students.
The reasonable extent was to vary from the types of institution,
the courses of education for which admission is sought and
various other factors like educational needs, etc. It is only in the
case of aided professional institutions that stipulations of
passing of the common entrance test held by the State agency
could be insisted upon. Under Question 5 (a) pertaining to the
minorities’ right to establish and administer educational
institutions of their choice to include in the said right, the
procedure and method of admission and selection of students, it
was held that minority institution can have its own procedure
and method of admission as well as selection of students, but
such procedure should be fair and transparent and selection of
students in professional and higher educational colleges should
be on the basis of merit. The procedure should not tantamount
to maladministration. Even an unaided minority institution
should not ignore merit of the students for admission, while
exercising its right to admit students to the colleges. Under
Question No.5(b) pertaining to the right of minority institutions
W.P.(C) No.17873/2006 etc. – 112 –
to admit students and the procedure and method of admission,
in the context when it was receiving any State aid, it was held
that it would be permissible for the authority giving aid to
prescribe bye-rules or regulations, the conditions on the basis of
which admission will be granted to different aided colleges by
virtue of merit, coupled with the reservation policy of the State
qua non-minority students. Under Question No.9, the scheme
in Unni Krishnan’s case except where it holds that primary
education is a fundamental right was held to be unconstitutional.
The principle that there should not be capitation fee or
profiteering was, however, held to be correct. In paragraph 56
of the decision in T.M.A.Pai’s case, the Supreme Court held thus:
“An educational institution is established for the
purpose of imparting education of the type made
available by the institution. Different courses of
study are usually taught by teachers who have to
be recruited as per qualifications that may be
prescribed. It is no secret that better working
conditions will attract better teachers. More
amenities will ensure that better students seek
admission to that institution. One cannot lose
W.P.(C) No.17873/2006 etc. – 113 –
sight of the fact that providing good amenities to
the students in the form of competent teaching
faculty and other infrastructure costs money. It
has, therefore, to be left to the institution, if it
chooses not to seek any aid from the
Government, to determine the scale of fee that it
can charge from the students. One also cannot
lose sight of the fact that we live in a competitive
world today, where professional education is in
demand. We have been given to understand that
a large number of professional and other
institutions have been started by private parties
who do not seek any governmental aid. In a
sense, a prospective student has various options
open to him/her where, therefore, normally
economic forces have a role to play. The decision
on the fee to be charged must necessarily be left
to the private educational institution that does
not seek or is not dependent upon any funds
from the Government”.
The system of student selection if it was to deprive the private
educational institution the right of rational selection was held to
be unreasonable. In para 40 it was observed as follows:
“Any system of student selection would be
W.P.(C) No.17873/2006 etc. – 114 –
unreasonable if it deprives the private unaided
institution of the right of rational selection, which
it devised for itself, subject to the minimum
qualification that may be prescribed and to some
system of computing the equivalence between
different kinds of qualifications, like a common
entrance test. Such a system of selection can
involve both written and oral tests for selection,
based on principle of fairness”.
The educational institutions, it was further held, would have the
right to chose and select students who can be admitted to the
course of studies. The observation made to that effect in
paragraph 65 reads as follows:
“The reputation of an educational institution
is established by the quality of its faculty and
students, and the educational and other facilities
that the college has to offer. The private
educational institutions have a personality of their
own, and in order to maintain their atmosphere
and traditions, it is but necessary that they must
have the right to choose and select the students
who can be admitted to their courses of studies.
It is for this reason that St.Stephen’s College case
this Court upheld the scheme whereby a cut off
W.P.(C) No.17873/2006 etc. – 115 –
percentage was fixed for admission, after which
the students were interviewed and thereafter
selected. While an educational institution cannot
grant admission on its whims and fancies, and
must follow some identifiable or reasonable
methodology of admitting the students, any
scheme, rule or regulation that does not give the
institution the right to reject candidates who
might otherwise be qualified according to, say
their performance in an entrance test, would be
an unreasonable restriction under Article 19(6),
though appropriate guidelines/modalities can be
prescribed for holding the entrance test in a fair
manner. Even when students are required to be
selected on the basis of merit, the ultimate
decision to grant admission to the students who
have otherwise qualified for the grant of
admission must be left with the educational
institution concerned. However, when the
institution rejects such students, such rejection
must not be whimsical or for extraneous
reasons.”.
In Islamic Academy of Education case, however, question No.4
reproduced in the earlier part of the judgment pertaining to right
W.P.(C) No.17873/2006 etc. – 116 –
of unaided professional colleges to admit students by evolving
their own method of admission, it was held, as culled out by the
Honourable Supreme Court in Inamdar’s case under questions 3
and 4 that in professional institutions, as they are unaided, there
will be full autonomy in their administration, but the principle of
merit cannot be sacrificed as excellence in professions is in the
national interest and without interfering with the autonomy of
unaided institutions, the object of merit based admissions can be
secured by insisting on it as a condition to the grant of
recognition as also that management can have quota for
admitting students at its discretion, but subject to satisfying the
test of merit based admissions. It was further held that the
management could pick up students of their choice, but the
same had to be from those who have passed the common
entrance test conducted by a centralised mechanism. There thus
appear to be some deviation of law with regard to right of
institutions to have its procedure for admission of students in
Islamic Academy case, but it may be recalled that the findings
recorded in Islamic Academy were under severe criticism before
W.P.(C) No.17873/2006 etc. – 117 –
the Supreme Court in Inamdar’s case. It is for that reason that
it appears the Supreme Court framed four questions for
determination which pertain to right of admission and the extent
to which the State could regulate the admission. These
questions as mentioned above were referable to Heading 3 and 5
and to questions 3(b), 4, 5(a), 5(b), 5(c) and 9 as framed in Pai
Foundation case. Question No.2 that pertains to admission
procedure of unaided educational institutions formulated in
Inamdar was answered in Paras 136 and 137 by observing as
follows:
“Whether minority or non-minority
institutions, there may be more than one
similarly situated institutions imparting
education in any one discipline, in any State.
The same aspirant seeking admission to take
education in any one discipline of education
shall have to purchase admission forms from
several institutions and appear at several
admission tests conducted at different places
on the same or different dates and there may
be a clash of dates. If the same candidate is
required to appear in several tests, he would be
W.P.(C) No.17873/2006 etc. – 118 –
subjected to unnecessary and avoidable
expenditure and inconvenience. There is
nothing wrong in an entrance test being held
for one group of institutions imparting same or
similar education. Such institutions situated
in one State or in more than one State may
itself or through an agency arrange for
holding of such test. (emphasis supplied).
Out of such common merit list the successful
candidates can be identified and chosen for
being allotted to different institutions
depending on the courses of study offered, the
number of seats, the kind of minority to which
the institution belongs and other relevant
factors. Such an agency conducting the
common entrance test (“CET” for short) must
be one enjoying utmost credibility and
expertise in the matter. This would better
ensure the fulfilment of twin objects of
transparency and merit. CET is necessary in
the interest of achieving the said objectives and
also for saving the student community from
harassment and exploitation. Holding of such
common entrance followed by centralised
counselling or, in other words, single window
W.P.(C) No.17873/2006 etc. – 119 –
system regulating admission does not cause
any dent in the right of minority unaided
educational institutions to admit students of
their choice. Such choice can be exercised
from out of the list of successful candidates
prepared at CET without altering the order of
merit inter se of the students so chosen.
Pai Foundation has held that
minority unaided institutions can legitimately
claim unfettered fundamental right to choose
the students to be allowed admission and the
procedure therefor subject to its being fair,
transparent and non-exploitative. The same
principle applies to non-minority unaided
institutions. There may be single institution
imparting a peculiar type of education which is
not being imparted by any other institution and
having its own admission procedure fulfilling
the test of being fair, transparent and
non-exploitative. All institutions imparting
same or similar professional education can join
together for holding a common entrance test
satisfying the above triple tests. The State can
also provide a procedure of holding a common
entrance test in the interest of securing fair and
W.P.(C) No.17873/2006 etc. – 120 –
merit-based admissions and preventing
maladministration. The admission
procedure so adopted by a private
institution or group of institutions, if it
fails to satisfy all or any of the triple tests,
indicated hereinabove, can be taken by the
State substituting its own procedure.
(emphasis supplied). The second question is
answered accordingly.”.
It is crystal clear from the observations made by the Honourable
Supreme Court as reproduced above that minority unaided
institutions have unfettered fundamental right to choose the
students to be allowed admission and the procedure therefor
subject to its being fair, transparent and non-exploitative. This
according to the Constitution Bench in Inamdar case is the law
laid down in T.M.A.Pai Foundation case, which could not be
dissented from as observed in Inamdar’s case itself.
Mr.Vaidyanathan has also relied upon paras 136 and 137. His
emphasis is on two sentences, one each in paras 136 and 137,
on which we have supplied emphasis. Reliance has also been
placed by Mr.Vaidyanathan upon the observation in para 155,
W.P.(C) No.17873/2006 etc. – 121 –
which reads as follows:
“It is for the Central Government, or for
the State Governments, in the absence a Central
legislation, to come out with a detailed
well-thought out legislation on the subject. Such
a legislation is long awaited. The States must
act towards this direction. The judicial wing of
the State is called upon to act when the other
two wings, the legislature and the executive, do
not act. The earlier the Union of India and the
State Governments act, the better it would be.
The Committees regulating admission procedure
and fee structure shall continue to exist, but only
as a temporary measure and an inevitable
passing phase until the Central Government or
the State Governments are able to devise a
suitable mechanism and appoint a competent
authority in consonance with the
observations made hereinabove (emphasis
supplied)”.
32. We have given our thoughtful consideration to
the question under debate and are of the view that the law laid
down by 11 member Bench in T.M.A.Pai case gives unfettered
fundamental right to minority unaided institutions to choose
W.P.(C) No.17873/2006 etc. – 122 –
students for admission. It also gives the right to choose the
procedure, but the same is subject to fair, transparent and
non-exploitative procedure. The law laid down to the contrary
in Unnikrishnan case has been specifically overruled in T.M.A.Pai
case, which has been reiterated or clarified in Inamdar’s case.
The contention of Mr.Vaidyanathan if accepted would lead to
reverting to the scheme in Unnikrishnan case, which has been
held to be unconstitutional. It is simply not permissible. The
two sentences emphasised by Mr.Vaidyanathan are being
pressed into service losing their reference and context. Para
136 starts with the factual position, when there may be more
than one similarly situated institutions, whether minority or non-
minority and the aspirant seeking admission facing difficulty in
taking various examinations. It is in that context that it has
been observed that, if the candidate is required to appear in
several tests, he would be subjected to unnecessary and
unavoidable expenditure and inconvenience. It is further in that
context that it was observed that, there was nothing wrong in an
entrance test being held for one group of institutions imparting
W.P.(C) No.17873/2006 etc. – 123 –
same or similar education and such institutions situated in one
State or in more than one State may join together and hold a
common entrance test or the State may itself or through an
agency arrange for holding of such test (emphasis supplied). In
the first part of the sentence referred to above, the decision to
hold such test for one group of institutions whether situated in
one State or in more than one State by joining together, the
reference is to the common entrance test to be conducted by the
institutions. It is in the alternative that it has been said that the
State may itself or through an agency arrange for holding of such
test. The words “such tests” necessarily means a test on
behalf of the institutions. This further necessarily means a test
which would be otherwise conducted by the institutions and it
would also certainly mean the test which shall not be a common
entrance test conducted by the State for all the students in the
State for all the institutions in the State. Section 3, is a
complete take over of the admission procedure thus completely
annihilating the right of the institutions, minority or
non-minority, but unaided, which would be in violation of
W.P.(C) No.17873/2006 etc. – 124 –
Articles 19(1)(g) and 30(1) of the Constitution of India. There is
no other conclusion which can be drawn from the various
judgments relied upon by the learned counsel representing the
parties referred to above. In so far as the emphasis on the
sentence in para 137 that, if the admission procedure so adopted
by a private institution or group of institutions fails to satisfy all
or any of the triple tests, it can be taken over by the State
substituting its own procedure, we may again mention that
reliance of the learned counsel is by completely ignoring the
reference and context of such sentence. It is clearly mentioned
in the beginning of para 137 as laid down in Pai Foundation that
managements of minority unaided institutions can legitimately
claim unfettered fundamental right to choose the students to be
allowed admission and the procedure therefor subject to its being
fair, transparent and non-exploitative. The same principle also
applies to non-minority institutions. The State also, no doubt,
can provide a procedure of holding common entrance test, but
the right of the State is ‘only to provide a procedure’. No doubt,
the Government can regulate the procedure of holding a common
W.P.(C) No.17873/2006 etc. – 125 –
entrance test, to vouchsafe fair and merit based admissions and
to prevent maladministration, but the test as such can be taken
over by the State only if the institutions may fail to satisfy the
triple test, by substituting its own procedure. It is, thus, in the
case of failure of the institutions to hold examination with the
triple test that, the State can take over the procedure. That is
the only exception provided with regard to right of minority to
have their own admission.
33. In so far as the contention of learned counsel
based upon para 155 of the judgment in Inamdar’s case, we
would like to mention that reliance upon aforesaid observation
has been placed by completely ignoring the reference and
context in which such observations were made. The Constitution
of the Committee regulating admission and fee structure was
said to be only a temporary measure, until such time the Central
or State Governments were to devise suitable mechanism even
by legislation. Surely, the legislation would be for regulating
admission procedure and fee structure. But the same in so far
as admissions are concerned, would only relate to the triple test
W.P.(C) No.17873/2006 etc. – 126 –
of fair, transparent and non-exploitative method or procedure.
An all sweeping legislation on all admission matters which may
even result in complete take over and resulting to nationalisation
is wholly impermissible. It is not all envisaged or spelt out from
the observations mentioned above and relied upon by the
learned counsel. If it was to be so read, there would have been
no need, whatsoever, to have a lengthy discussion on the subject
with law being laid down in the judgment leading to the
observations in para 155, and in particular, paras 136 and 137 .
34. The question that further arises for consideration
is whether there has been failure to conduct the examination
with the triple test as mentioned above as also as to whether a
single failure on this count by the institutions imparting single
stream of education would clothe the Government with the right
to take over the conduct of examination in the manner as
envisaged in Section 3, for all times to come and for institutions
imparting any stream of education.
35. We have in the earlier part of the judgment
already mentioned the pleadings on this score and the
W.P.(C) No.17873/2006 etc. – 127 –
accompanying/supporting documents. Whereas it is the positive
case of the petitioners that there was no past experience of
maladministration of examination conducted by the consortium
of private self financing professional institutions in the State, it
is the case of the respondent-State that the legislature felt in its
wisdom that there was large scale maladministration and
exploitative methods adopted by the private professional
colleges, and that the power to admit is the root cause of
capitation fee and merit being given a go-by. Mr.Justice
K.T.Thomas, the Chairman of the Committee for overseeing the
conduct of examination had pointed out that the management of
Self Financing Medical, Dental, Ayurveda and Siddha Colleges
have violently violated the guidelines issued by the Supreme
Court by conducting a rigged and farce entrance test for
admitting students as if they are merit students. We have
already referred to the proceedings of Justice K.T.Thomas
Committee and the letter, marked as Exts.R1(a) and R1(b) as
also letter dated 30.7.2004, written by a student. We have
already observed that the plea raised by the petitioners
W.P.(C) No.17873/2006 etc. – 128 –
institutions that there was no allegation in regard to the quality
of the test and that the main complaint against the institution
was that they had issued the prospectus and fixed the exorbitant
fee to be charged, before the Committee had fixed the fee
payable by the students, which resulted into preventing number
of students from taking the examination. The Committee
presumed from the aforesaid fact that the test conducted was
not proper. It is no doubt true that a presumption has been
drawn for the test to be rigged for the reason that a large
number of students were prevented from taking the test, but
even for that reason it can at least be said that the test that was
ultimately held, many students who could have fared better than
those who applied and admitted could have been admitted. In a
way, thus, some of the students who might have been better
than those who applied and admitted were prevented which may
have resulted into the test being not proper. The result of the
test having been declared on the very next day and the
presumption drawn therefrom that, it may not be a test on
merit cannot be said to be unfounded. A finding has to be
W.P.(C) No.17873/2006 etc. – 129 –
returned on the totality of facts and circumstances of the case
that the consortium test held in 2004 would be sans the triple
test.
36. A single complaint with regard to single test with
regard to a single consortium of medical institutions, in our view,
however, would not constitute abrogation of all examinations
conducted by Consortium of managements thus nationalising
the entire admission system. It is significant to mention that
preceding the test of 2004, in the year 2002 the Government
came up with Regulations dated December 18, 2002 for
admission to the Unaided Professional Colleges. This related to
maximum fee payable by students admitted against 50% merit
seats in the self financing colleges for M.B.B.S course. The
challenge to the Regulations succeeded and the the writ petition
and connected matters were allowed vide orders dated 20th
January, 2003. A review petition was filed against the aforesaid
judgment, wherein it was contended that the Colleges had
admitted candidates with very low merit. It was emphasised
that one of the candidates had a score of as low as 8.9% in the
W.P.(C) No.17873/2006 etc. – 130 –
examination conducted by the Commissioner. During the course
of hearing, on 14th February, 2003, the lists of students admitted
by both the Colleges were produced by the learned counsel. The
marks earned by candidates in various subjects viz., Physics,
Chemistry and Biology were indicated. It was pointed out that
candidates had high scores in their qualifying examination which
range from 52% to 88.4% and all of them fulfill the conditions of
eligibility. The court observed that the students had appeared in
the test conducted by the institution and they had been tested
not only for their knowledge of the essential subjects but were
also examined for their aptitude. They were interviewed and it
was thereafter the merit list was prepared. The court while
dealing with the issue observed thus:
“On a consideration of the matter,
we find that the students admitted by the
institutions were not ineligible. Still further, the
decision in T.M.A.Pai Foundation case (supra)
recognises the right of the unaided colleges to
conduct their own entrance test. In any event,
the respondents had not even raised their little
finger against the process of selection as
W.P.(C) No.17873/2006 etc. – 131 –
followed by the institutions during the course of
hearing of the Writ Petitions. No question
about the merit of the candidates admitted by
the institutions had been raised. Even at the
hearing of the Review Petitions, it was not
suggested that they were ineligible. Thus, at
this stage, especially when the students are not
even parties in the cases before us, it cannot be
said that there was any irregularity in their
admission.”.
The Bench after reproducing the article dated January 27, 2003
in the additional issue of Newsweek with the caption “Getting
Past the Gates” further observed:
“The above observations clearly indicate
that the Courts have to be slow to enter
academic thickets. It is best to leave the
matters of inter-se merit to the educationists
and experts in the field. Resultantly, the first
question as noticed above, is answered against
the applicants. It is held that the State does
not have a right to claim 50% seats in the
unaided professional colleges”.
W.P.(C) No.17873/2006 etc. – 132 –
What thus appears from the records of the present case is that
there was no complaint, whatsoever, with regard to the any of
the institutions imparting any stream of education with regard to
the test conducted by the Consortium. Even now, the allegation
of farce test is against the institutions imparting medical
education. There is no complaint whatsoever with regard to
institutions imparting Engineering, Nursing and Teacher
Education. In the circumstances mentioned above and also in
view of the law laid down by the Supreme Court referred to
above, in our view, the examination conducted in 2004 could at
the most pro-tempore taken over by the Government. The right
of the State to take over a test or an institution losing or
forfeiting its rights to conduct the test is sought to be supported
from the observations made by the Honourable Supreme Court in
Inamdar’s case in para 137, the pertinent reliance is upon the
following observation:
“The admission procedure so
adopted by a private institution or group of
institutions, if it fails to satisfy all or any of
the triple tests, indicated hereinabove, can be
W.P.(C) No.17873/2006 etc. – 133 –
taken over by the State substituting its own
procedure.”.
The observation extracted above may be read to mean that the
test, authenticity of which is doubted by the State, could be
taken over with regard to that test, but such taking over cannot
be perennial. No one with certainty can say that a mistake
committed once shall be repeated for ever. To illustrate, the
person in charge may in some weak moment actuated for some
extraneous reasons may depart from triple test. He himself
may realise the mistake or be told that he had indeed made a
mistake, there would be thus in that case, remedial measures
and may be in the next year the test be conducted by a
philanthropist of highest credentials, who may see to it that the
test is conducted with even better standards fixed by the
Government. Surely, such a test far from being condemned has
to be appreciated. However, if a single time failure to comply
with the triple test is held to be enough to take over the
admission and nationalise the education for all times to come, it
would be a travesty of justice. It would be harsh and
W.P.(C) No.17873/2006 etc. – 134 –
unreasonable and also violative of the rights of the institutions
under Articles 19(1)(g) and 30(1) of the Constitution of India.
We may further mention that the rights of the citizen are
permanent in nature. In case of reasonable restrictions, subject
to which that right may be available, are not adhered to the
solution cannot lie in taking with that right. It would lie in at the
most, in correcting it. The correction in the context of
controversy in issue would only mean taking over such a test
only and for that institution only. We have already mentioned
that the so-called one rigged test pertains only to medical
institutions. There is not even an allegation, least any proof
thereof, that any other institution imparting any other stream of
education had ever indulged into any malpractice and deviated
from the triple test for admission.
37. Our observations as made above apart, what
however, clinches the issue is that the Government of Kerala
enacted Act of 2004. This Act came into being on 15th July,
2004. The procedure for admission in the Self Financing
Professional Colleges was prescribed in the Act of 2004. No
W.P.(C) No.17873/2006 etc. – 135 –
notice of single default committed by the institutions imparting
medical education was taken into consideration by the
Legislature. The institutions were left free to make admissions
on the basis of consortium test. Surely, if the procedure of
admission in the State of Kerala had gone totally haywire and
merit had become a casualty, this important aspect could not
possibly be missed out and the legislative wisdom could well
have made provisions regulating the admission by the State as
the allegation of rigged test pertain to the year 2004 which was
held on 13.6.2004 and the proceedings, Ext.R1(a), of the
Mr.Justice K.T.Thomas Committee was recorded on 3.6.2004,
and also the letter written by a student who appeared in the
entrance examination conducted by the consortium was dated
30.7.2004. The judgment in T.M.A.Pai’s case was pronounced as
early as on 31st October, 2002 and it is this judgment only which
has been clarified in Inamdar’s case.
38. From the discussion made above, it has to be
held that the unaided minority or non-minority institutions have
a fundamental right enshrined under Articles 19(1)(g) and 30(1)
W.P.(C) No.17873/2006 etc. – 136 –
of the Constitution of India to run educational institutions. The
minority institutions have an additional right which may be
called as even a protection to establish and administer the
institutions of their choice. The admissions can be regulated by
legislation, but such legislation can only and surely be for
ensuring the triple test of fair, transparent and non-exploitative
procedure in the matter of admission. The State has indeed
taken adequate measures in the impugned Act itself that the
admissions may be merit oriented. The provisions do adequately
take care of a test which may ensure the triple test. The
Admission Supervisory Committee has been constituted as per
Section 4. It consists of a retired Judge of the Supreme Court
or High Court as Chairperson; Secretary to Government, Higher
Education Department is to be Member Secretary; whereas,
Secretary to Government, Health and Family Welfare
Department, Secretary to Government, Law Department, The
Commissioner for Entrance Examinations, Kerala, and an
educational expert belonging to Scheduled Caste or Scheduled
Tribe Community are to be Members of the Committee. By
W.P.(C) No.17873/2006 etc. – 137 –
virtue of provisions of sub-section (6) of Section 4, the
Admission Supervisory Committee shall supervise and guide the
entire process of admission of students to the unaided
professional colleges or institutions with a view to ensure that
the process is fair, transparent, merit-based and non-exploitative
under the provisions of the Act. The Admission Supervisory
Committee in view of sub-section (7) of Section 4 has the right
to hear complaints with regard to admission in contravention of
the provisions of the Act and if it may find violation of the
provisions, it could make appropriate recommendation to the
Government for imposing a fine up to Rupees Ten Lakhs. The
Committee has also the right to declare admissions made in
respect of any or all seats in a particular college or institution to
be de hors merit and therefore invalid and communicate the
same to the concerned University. On receipt of such
communication, the University shall debar such candidates from
appearing from any further examination and cancel the results of
examinations already appeared for. The Committee can also
recommend to the University or statutory body for withdrawal of
W.P.(C) No.17873/2006 etc. – 138 –
affiliation or recognition of such college or institution or take any
other action which it may deem fit. The provisions contained in
sub-sections (6) and (7) of Section 4 of the Act provide foolproof
procedure from the beginning of the test up to its end, which
would ensure that the process is fair, transparent and non-
exploitative. This is the only right of the State. Having done so,
there was no need for the State to frame Section 3 arrogating to
itself the complete right of admission and the procedure thereof.
This is nationalisation of education and is wholly impermissible.
Further, if by virtue of the provisions contained in Section 3 of
the Act dealing with the method of admission in professional
colleges or institutions, the admissions are now to be regulated
or made through the common entrance test conducted by the
State only followed by centralised counselling through the single
window system by the Commissioner for Entrance Examinations,
what was the requirement of making the provision such as sub-
sections (6) and (7) of Section 4. Surely, it cannot be case of
the State that the procedure followed by it may be defective or
lacking the triple test.
W.P.(C) No.17873/2006 etc. – 139 –
Determination of fee structure and State control
39. The next limb of the case would pertain to
provisions dealing with fee structure. The provisions contained in
the Act with regard to fee structure as mentioned above are
under challenge. The question once again would be the right of
the management to determine the fee structure and the
permissibility of the regulations and the extent thereof. The
provisions in the Act of 2006 that may have a bearing upon the
controversy and which are under challenge would need
immediate notice.
40. Fee has been defined in Section 2 (e) to mean all
fees including tuition fee, development fee and any other fee
fixed by the Fee Regulatory Committee. Freeship as per Section
2(g) would mean full or partial remission of tuition fee awarded
to Scheduled Caste and Scheduled Tribe and other socially,
educationally and economically backward students on merit cum
means basis by an unaided professional college or
institution as may be prescribed. Higher Education Scholarship
Fund has been defined in Section 2(j) to mean the fund for
W.P.(C) No.17873/2006 etc. – 140 –
providing scholarship to socially and economically backward
students on merit cum means basis. Collection of Capitation Fee
by virtue of provisions contained in Section 5 of the Act has been
prohibited. Violation of the provisions contained in Section 5 (1)
prohibiting collection of capitation fee would entail penal action
against the management. The fee regulatory committee would
consist of a Chairperson who should be a retired Judge of the
Supreme Court or High Court, a Member Secretary, who should a
Secretary to Government either in charge of Health and Family
Welfare or Higher Education and three Members of whom one
member would be a Chartered Accountant nominated by the
Government in consultation with the Chairperson, second
member a representative of either the Medical Council of India
or the All India Council for Teacher Education and the third
member to be an educational expert nominated by the
Government in consultation with the Chairperson. Sub-sections
(4), (5) and (7) of Section 6, Section 7 and Section 9 which are
most relevant read as follows:
W.P.(C) No.17873/2006 etc. – 141 –
“Section 6(4). The Fee Regulatory Committee
shall have power to:
(a) require each unaided professional
college or institution to place before the
committee the proposed fee structure of such
college or institution with all relevant
documents and books of accounts for scrutiny
well in advance of the commencement of the
academic year, i.e. not later than 31st
December, of the previous academic year;
(b) verify whether the fee proposed by
each college or institution is justified and it
does not amount to profiteering of charging of
capitation fee;
(c) approve the fee structure or
determine some other fee which can be
charged by the college or institution.
(5) The fee determined by the Committee shall be
binding on the unaided professional college or
institution for a period of three years. The fee
so determined shall be applicable to a
candidate who is admitted to a college or
institution in that academic year and shall not
be revised till the completion of his course in
the said college or institution. No unaided
W.P.(C) No.17873/2006 etc. – 142 –
professional college or institution shall collect a
fee amounting to more than one year’s fee
from a candidate in an academic year.
Collection of more than one year’s fee in an
academic year shall be construed as collecting
of capitation fee and shall be liable to be
proceeded against.
(8) The Fee Regulatory Committee shall have the
power to regulate its own procedure in all
matters arising out of the discharge of its
functions, and shall, for the purpose of making
any enquiry under this Act, have all the powers
of a Civil Court under the Code of Civil
Procedure, 1908 (Central Act 5 of 1908) while
trying a suit in respect of the following
matters, namely:
(a) summoning and enforcing the attendance
of any witness and examining him on
oath.
(b) requiring the discovery and production of
any document.
(c) issuing commissions for the examination
of witnesses and for local inspections;
and any proceeding before such Committee
shall be deemed to be a judicial proceeding
within the meaning of sections 193 and 228
and for the purpose of section 196 of the
W.P.(C) No.17873/2006 etc. – 143 –
Indian Penal Code (Central Act 45 of 1860).”
“Section 7. Factors for determination of fee.- The
Fee Regulatory Committee shall determine and fix
the fee or fees to be charged by an unaided
professional college or institution taking into
consideration the factors, such as,–
(a) the obligation on the part of all unaided
professional colleges or institutions to provide
freeship to a minimum of fifty per cent of the
students admitted and the additional expenses, if
any required for the same over and above the
excess funds generated from Non-Resident
Indians, charity on the part of managements and
contributions by the Government for providing
freeship for Scheduled Caste or Scheduled Tribe
students;
(b) the nature of the professional course;
(c) the available infrastructure;
(d) the expenditure on administration and
maintenance.
(e) a reasonable surplus required for the growth and development of the college. (f) any other factor as the Committee may deem fit. W.P.(C) No.17873/2006 etc. - 144 -“Section 9. Fees not to be collected excessively.-
(1) No unaided professional college or
institution shall collect any fee by whatever
name called from the candidate for admission
over and above the fee determined by the Fee
Regulatory Committee and the fee prescribed by
the University concerned;
Provided that the Fee Regulatory
Committee shall fix the fee for Non-Resident
Indian seats and the amount so collected over
and above the fee fixed for other students in
the college or institution in such seats shall be
utilised for providing freeship to socially and
economically backward students.
(2) All unaided professional colleges or
institutions shall provide freeship to the extent
prescribed for a minimum of fifty percent of the
students admitted.
(3) Any officer of the State or Central
Government or any other public officer or
authority who issues an income certificate which
conceals the actual income of the person to
whom certificate is issued and any recipient of
such certificate who by making use of the
W.P.(C) No.17873/2006 etc. – 145 –
certificate claims any benefit with regard to
freeship or scholarship shall be liable for penalty
under section 15 of the Act.
(4) Notwithstanding anything contained in
any other provisions of this Act, the fixation and
levy of fees at the rates fixed by the Committee
constituted before the date of coming into force
of this Act shall be deemed to be validly fixed
and collected.”.
From a reading of the provisions as reproduced above, it would
thus appear that the Fee Regulatory Committee would require
unaided professional colleges to place before it its fee structure,
it would have right to verify whether the fee proposed by the
institutions is justified and does not amount to profiteering or
charging capitation fee. It would approve the fee structure or
may even determine some other fee which can be charged by
the college or institution. The fee determined by the
Committee is binding on the college or institution. The
committee would have power to regulate its own procedure on
all matters arising out of the discharge of its functions. The
factors to be taken into consideration for determination of the
W.P.(C) No.17873/2006 etc. – 146 –
fee would include obligation on the part of the unaided institution
to provide freeship to a minimum of 50% of students, which
would be over and above the excess funds generated from
Non-Resident Indians, charity on the part of managements and
contribution by the Government for providing freeship for
Scheduled Caste and Scheduled Tribe students. The fee cannot
be collected excessively, which may be over and above the one
determined by the Committee. The Committee, however, would
fix fee for Non-Resident Indian seats and the amount so
collected over and above the fee fixed for other students in the
college or institution in such seats should be utilised for providing
freeship to socially and economically backward students.
Unaided professional colleges, minority or non-minority, have to
provide freeship for a minimum of 50% of the students admitted.
Rule 11 of the Rules of 2006 dealing with freeship and its
disbursement reads as follows:
“11. Freeship and its disbursement- (1) All
unaided professional colleges or institutions,
including minority and non-minority colleges or
institutions shall provide freeship to a minimum
of 50% of the students admitted in each college,
subject to the stipulations regarding income limit.
W.P.(C) No.17873/2006 etc. – 147 –
Full remission will be given to all SC/ST students,
irrespective of their income, whether admitted
under specified category or under general merit
category. 40% of the students admitted shall
also be given partial remission of fee. Students
other than those admitted under SC/ST, privilege
seats and Non-Resident Indian seats will be
eligible for the partial remission of fee on merit-
cum-means basis. The fee payable by them will
be the same as prevailing in Government or
Aided Colleges or institutions for the same
courses. Only those students whose annual
family income does not exceed two lakh fifty
thousand rupees and who have applied for
freeship with all relevant documents to support
their claim will be considered for the grant of
freeship. Initially, freeship will be awarded to in
the ratio of seats allotted to other socially and
educationally backward classes, physically
challenged and to categories other than the two
above. Where adequate numbers of claimants
are not available under other socially and
educationally backward classes or physically
challenged categories, the same shall be granted
to other categories.
(2) The fee payable at rates prevailing in
Government/Aided colleges or institutions in
respect of SC/ST students admitted under
specified category will be paid to the institution
concerned by the Government. The fee payable
by SC/ST students admitted under general merit
will be fully paid to the institution by the
Government.”
Unaided professional colleges, minority or non-minority, have to
provide freeship to a minimum of 50% of the students; full
W.P.(C) No.17873/2006 etc. – 148 –
remission has to be given to all SC/ST students; 40% of students
admitted have to be given partial remission of fee. Students
other than those admitted under SC/ST, privilege seats and NRI
seats are eligible for partial remission of fee on merit cum means
basis. The fee payable by them is the same as in Government
College or Institutions
41. Mr.Rajeev Dhavan, learned senior counsel for
the petitioners representing Medical Colleges contends that, the
fee fixation for unaided institutions has to take place on the basis
of the formula known as ‘revenue plus development’ laid down in
T.M.A Pai’s case. The fee as per the formula aforesaid can be
fixed by taking into consideration the revenue cost of the
institution, its loan and borrowings as also a reasonable amount
towards development. Profiteering and charging of capitation fee
is all that can be regulated by the State. In the present case, by
virtue of the provisions referred to above, the Government,
however, has taken over fixation of fee, which is wholly
impermissible, further contends the learned counsel.
W.P.(C) No.17873/2006 etc. – 149 –
42. Per Contra, Mr.Vaidyanathan contends that
fixation of fee by the State Level Committee had expressly been
approved and acted in Islamic Academy’s case. The
observations made in the said case with regard to fixation of fee
by the State were assailed by the institutions in Inamdar’s
case, but the contentions so raised were rejected and it was held
that direction with regard to determination of fee structure by
the committee as a permissible regulatory measure. In so far as
freeship is concerned, it is urged by the learned counsel that the
Supreme Court held that education is a national wealth which
should be distributed equally and widely in the interest of
creating an egalitarian society. Higher amounts of money
collected from the more affluent students like Non-Resident
Indians can be utilised for benefiting students from economically
weaker sections of society. The provisions contained in Sections
7 and 9 of the Act of 2006 are only extension of the principle of
rich subsidising the poor by including even the Non-NRI affluent
section to share the burden of subsidising the poor who are
identified on a merit cum means basis. The poor students can be
W.P.(C) No.17873/2006 etc. – 150 –
given scholarships/freeship and the cost of such seat should be
covered by fees which are fixed. By permitting freeship, no loss
of revenue would be caused to the managements. The State
fully subsidises all SC/ST students and the affluent students
subsidises the other educationally and economically weaker
section of the society. Under Article 41 and 46 of the
Constitution of India, the State has to promote the educational
and economic interests of the weaker sections of the people.
The impugned sections of the Act of 2006 only enable the State
to take care of weaker sections of the community, thus contends
the learned counsel.
43. The answer to the above question, in our opinion,
would once again lie in the three leading decisions in T.M.A.Pai’s
case, Islamic Academy’s case and Inamdar’s case, and we may
mention that arguments for and against have been raised, by
and large, on the basis of the observations in these three judicial
precedents. The background on which the question pertaining to
fee fixation by the Government or the authorities came to be
focussed by the Supreme Court shall however, have to be first
W.P.(C) No.17873/2006 etc. – 151 –
noticed. In the case of Mohini Jain v. State of Karnataka, it may
be recalled that the challenge was to a notification of June, 1989
which provided for a fee structure whereby for Government
seats the tuition fee was Rs.2000/- per annum and for students
from Karnataka the fee was Rs.25,000/- per annum while the fee
for Indian students from outside Karnataka under the payment
category the fee was Rs.60,000/- per annum. It was contended
that charging such a discriminatory and high fee violated
constitutional guarantees and rights, but it was held that there
was a fundamental right to education in every citizen, and that
the State was duty bound to provide education and that the
private institutions that discharge the State’s duties were equally
bound not to charge a higher fee than the government
institutions. The prescription of fee in excess of what was
payable in government colleges was held to be capitation fees,
which was illegal. This decision was under serious challenge in
Unnikrishnan’s case. The institutions urged before the Supreme
Court that if the ratio of the decision rendered in Mohini Jain’s
case was to be adhered to, the institutions shall have to be
W.P.(C) No.17873/2006 etc. – 152 –
closed down, for lack of funds by way of tuition fees. In
Unnikrishnan’s case, the Supreme Court considered the
conditions and regulations, if any, the State could impose in the
running of private unaided/aided, recognised or affiliated
educational institutions conducting professional course and it was
held that private unaided recognised/affiliated institutions
running professional courses were entitled to charge a fee higher
than that charged by government institutions for similar courses
but the same should not exceed the maximum limit prescribed
by the State. With regard to private aided recognised/affiliated
institutions, it was held that Government had power to frame
rules and regulations in the matter of admission and fees. The
court after examining these aspects of the matter formulated a
Scheme and directed every authority granting
recognition/affiliation to impose that scheme on every
institutions seeking recognition/affiliation, even if they were
unaided institutions. In the context of the issue under
consideration, the Scheme provided that 50% of seats in every
professional college should be filled by the nominees of the
W.P.(C) No.17873/2006 etc. – 153 –
Government or University, selected on the basis of merit
determined by common entrance test, which will be referred to
as ‘free seats’; the remaining 50% seats (payment seats) should
be filled up by those candidates who pay the fee prescribed
therefor and the allotment of students against payment seats
should be done on the basis of inter se merit determined on the
same basis as in the case of free seats. The Scheme further
provided that it would be open to the professional colleges to
provide for reservation of seats for constitutionally permissible
classes with the approval of the affiliating university and the fee
chargeable in each professional college should be subject to such
a ceiling as may be prescribed by the appropriate authority or by
a competent court. The scheme further provided that every
State Government should constitute a committee to fix the
ceiling on the fees chargeable by a professional college or class
of professional colleges, fix the fee once in every three years or
at such intervals as it may think appropriate. The University
Grants Commission was left open to frame regulations to
regulate the fee that the affiliated colleges operating on
W.P.(C) No.17873/2006 etc. – 154 –
no-grant-in-aid basis were entitled to charge. The AICTE, the
Indian Medical Council and the Central Government were also
given similar advice.
44. This Scheme as mentioned above was under
serious challenge. It was urged by the counsel on behalf of the
private institutions that the scheme framed in Unnikrishnan’s
case was not warranted. It is relevant to mention that even the
Solicitor General contended likewise. The costs incurred on
educating a student in an unaided professional college was
stated to be more than the total fee which could be realised as
per the scheme and this would result in revenue shortfalls. By
an interim order, the Supreme Court, subsequent to the decision
in Unnikrishnan’s case, permitted within the payment seats some
percentage of seats to be allotted to non-resident Indians,
against payment of a higher amount as determined by the
authorities, but that also would not make available sufficient
funds for development of such institutions, was further urged by
the counsel appearing for the institutions. Another infirmity
pointed out pertained to free seats being grabbed by students
W.P.(C) No.17873/2006 etc. – 155 –
coming from affluent families, whereas students from poor
families were required to pay much more to secure admission to
payment seats. We may quote a joint contention raised by the
learned counsel for the petitioner-institutions as also the Solicitor
General in that connection. It reads as follows:
“Counsel for the institutions, as well as the
Solicitor General, submitted that the decision in
Unni Krishnan case insofar as it had framed the
scheme relating to the grant of admission and
the fixing of the fee, was unreasonable and
invalid” .
The fixation of fee by the Government or by authorities of the
Government was thus directly in issue, not only independently
but also in connection with the law laid down on the issue
clothing the Government or the authorities to fix the fee in
Unnikrishnan’s case and the said scheme was under direct
challenge. On consideration of the issue, the Supreme Court in
T.M.A Pai’s held as under:
“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
W.P.(C) No.17873/2006 etc. – 156 –
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
Krishnan case made it difficult, if not impossible,
for the educational institutions to run efficiently.
Thus, such restrictions cannot be said to be
reasonable restrictions.
The private unaided educational
institutions impart education, and that cannot be
the reason to take away their choice in matters,
inter alia, of selection of students and fixation of
fees. Affiliation and recognition has to be
available to every institution that fulfils the
conditions for grant of such affiliation and
recognition. The private institutions are right in
submitting that it is not open to the Court to
insist that statutory authorities should impose
the terms of the scheme as a condition for grant
of affiliation or recognition; this completely
destroys the institutional autonomy and the very
objective of establishment of the institution”.
In so far as the scheme pertaining to freeship framed in Unni
Krishnan’s case is concerned, the Supreme Court in T.M.A.Pai’s
case observed as follows:
“Unni Krishnan judgment has created certain
problems and raised thorny issues. In its anxiety
to check the commercialization of education, a
scheme of ‘free’ and ‘payment’ seats was evolved
W.P.(C) No.17873/2006 etc. – 157 –
on the assumption that the economic capacity of
the first 50% of admitted students would be
greater than the remaining 50%, whereas the
converse has proved to be the reality. In this
scheme, the ‘payment seat’ student would not
only pay for his own seat, but also finance the
cost of a ‘free seat’ classmate. When one
considers the Constitution Bench’s earlier
statement that higher education is not a
fundamental right, it seems unreasonable to
compel a citizen to pay for the education of
another, more so in the unrealistic world of
competitive examinations which assess the merit
for the purpose of admission solely on the basis
of the marks obtained, where the urban students
always have an edge over the rural students. In
practice, it has been the case of the marginally
less merited rural or poor student bearing the
burden of a rich and well exposed urban
student.”
The other relevant observations read thus: “The scheme in
Unni Krishnan’s case has the effect of nationalizing the education
in respect of important features viz., the right of a private
unaided institution to give admission and to fix the fee. By
framing this scheme, which led to the State Governments
legislating in conformity with the scheme, the private institutions
are indistinguishable from the government institutions, curtailing
all the essential features of the right of administration can
W.P.(C) No.17873/2006 etc. – 158 –
neither be called fair nor reasonable”. —— —— —– —–
“In view of the discussion hereinabove, we hold that the
decision in Unni Krishnan case in so far as it framed the scheme
relating to the grant of admission and the fixing of the fee, was
not correct and to that extent, the said decision and the
consequent directions given to UGC, AICTE, the Medical Council
of India, the Central and State Governments etc. are overruled”.
Having overruled the scheme in Unni Krishnan’s case, the court
then examined the issue by taking into consideration the status
of the institutions like private institutions, private unaided non-
minority educational institutions, private unaided professional
colleges, private aided professional institutions (non-minority)
and other aided institutions. To what extent the regulations
could be made with regard to admission and fixation of fee was
the pertinent question. This matter was first considered with
regard to private unaided non-minority educational institutions,
by observing that unprecedented demand for access to higher
education and the inability or unwillingness of the Government to
provide the necessary support has brought private higher
W.P.(C) No.17873/2006 etc. – 159 –
education to the forefront, and the existence and expanding of
private institutions in the present scenario was observed to be
essential. The right to establish and administer essentially
included the right to set up reasonable fee structure was further
observed in T.M.A.Pai’s case. The report of the University
Education Commission, of which Dr.S.Radhakrishnan was the
Chairman, was then taken into consideration. On the said
passage reproduced in paragraph 51 of the judgment in
T.M.A.Pai’s case, the Supreme Court observed thus:
“There cannot be a better exposition than
what has been observed by these renowned
educationists with regard to autonomy in
education. The aforesaid passage clearly shows
that the governmental domination of the
educational process must be resisted. Another
pithy observation of the Commission was that
State aid was not to be confused with State
control over academic policies and practices.
The observations referred to hereinabove clearly
contemplate educational institutions soaring to
great heights in pursuit of intellectual excellence
and being free from unnecessary governmental
W.P.(C) No.17873/2006 etc. – 160 –
controls”.
In the context of fundamental rights of the institutions under
Articles 19 and 26(a), in so far as setting up a reasonable fee
structure is concerned, it was observed that, in setting up a
reasonable fee structure, the element of profiteering is not yet
accepted in Indian conditions. The fee structure must take into
consideration the need to generate funds to be utilised for the
betterment and growth of the educational institution, the
betterment of education in that institution and to provide
facilities necessary for the benefit of the students. The fixing of
a rigid fee structure was then held to be an unacceptable
restriction on the rights of the institution under Articles 19 and
26(a) of the Constitution. The other pertinent observation
pertaining to fee structure read thus:
“One cannot lose sight of the fact that
providing good amenities to the students in the
form of competent teaching faculty and other
infrastructure costs money. It has, therefore, to
be left to the institution, if it chooses not to seek
W.P.(C) No.17873/2006 etc. – 161 –
any aid from the Government, to determine the
scale of fee that it can charge from the students.
—– —— —— The decision on the fee to be
charged must necessarily be left to the private
educational institution that does not seek or is
not dependent upon any funds from the
Government. —– —– —– There can,
however, be a revenue surplus, which may be
generated by the educational institution for the
purpose of development of education and
expansion of the institution”.
While dealing with the unaided professional colleges, it was held
that it would be unfair to apply the same rules and regulations
regulating admission to both aided and unaided professional
institutions and it must be borne in mind that unaided
professional institutions are entitled to autonomy in their
administration. It was then held that a rational fee structure
should be adopted by the management, which would not entitle
them to charge a capitation fee and appropriate machinery can
be devised by the State or University to ensure that no capitation
fee is charged and that there is no profiteering, though a
W.P.(C) No.17873/2006 etc. – 162 –
reasonable surplus for the furtherance of the education is
permissible.
45. In Islamic Academy’s case, a Bench of Five
Honourable Judges was constituted to clarify the doubts or
anomalies in the decision of the Constitution Bench of 11 Judges
in T.M.A Pai’s case. Briefly put, the institutions projected before
the court that fixation of percentage of seats that could be filled
in the unaided professional colleges, both minority and
non-minority by the management as done by the various State
Governments was impermissible. The private unaided
professional educational institutions had been given complete
autonomy not only as regards the admission of students but also
as regards the determination of their own fee structure. These
institutions could fix their own fee structure which could include a
reasonable revenue surplus for purposes of development of
education and expansion of the institutions and that as long as
there was no profiteering or charging of capitation fee, there
could be no interference by the Government. The Supreme
Court, on the various contentions raised before it, framed four
W.P.(C) No.17873/2006 etc. – 163 –
questions, the first being whether the educational institutions are
entitled to fix their own fee structure. The majority judgment in
T.M.A.Pai case was interpreted or clarified to say that there can
be no fixing of rigid fee structure by the Government. Each
institute must have freedom to fix its own fee structure taking
into consideration the need to generate funds to run the
institution and to provide facilities necessary for the benefit of
the students. They must also be able to generate surplus which
must be used for the betterment and growth of that educational
institution. The fees to be charged must necessarily be left to
the private educational institution that do not seek and which are
not dependent upon any funds from the Government. Each
institute will be entitled to have its own fee structure. The fee
structure for each institute must be fixed keeping in mind the
infrastructure and facilities available, the investments made,
salaries paid to the teachers and staff, future plans for expansion
and/or betterment of the institution etc.. There can be no
profiteering and capitation fee cannot be charged. In Islamic
Academy’s case, the Supreme Court thus held that as per the
W.P.(C) No.17873/2006 etc. – 164 –
majority judgment in T.M.A.Pai’s case, imparting of education is
essentially charitable in nature and that the surplus/profit that
can be generated must be only for the benefit/use of that
educational institutions. Profit/surplus cannot be diverted for
any other use or purpose and cannot be used for personal gain
or for any other business or enterprise. The Supreme Court then
directed that in order to give effect to the judgment in T.M.A.
Pai’s case, the respective State Governments/concerned
authority shall set up in each State a Committee headed by a
retired High Court Judge who shall be nominated by the Chief
Justice of that State. Each educational institute must place
before the Committee well in advance of the academic year, its
proposed fee structure. Along with the proposed fee structure,
all relevant documents and books of accounts must also be
produced before the Committee for their scrutiny. The
Committee should then decide whether the fee proposed by that
institute are justified and are not profiteering or charging
capitation fee. The Committee will be at liberty to approve the
fee structure or to propose some other fee structure which can
W.P.(C) No.17873/2006 etc. – 165 –
be charged by the institute and the fee fixed by the Committee
shall be binding for a period of three years. Once the fee is fixed
by the Committee, the institute cannot charge either directly or
indirectly any other amount over and above the amount fixed as
fees. If any other amount is charged under any other head or
guise, e.g. donations, the same would amount to charging of
capitation fee. The Government/appropriate authorities should
consider framing appropriate regulations, if not already framed,
whereunder if it is found that an institution is charging capitation
fees or profiteering, that institution can be appropriately
penalised and also face the prospect of losing its
recognition/affiliation. In so far as institutions collecting advance
fee are concerned, it was observed that the same must be kept
invested in fixed deposits in nationlised bank and, as and when
fee fall due for a semester/year, only the fee falling due for that
semester/year must be withdrawn by the institution and the rest
must continue to remain deposited till such time they fall due.
At the end of the course, the interest earned on these deposits
must be paid to the student from whom the fees were collected
W.P.(C) No.17873/2006 etc. – 166 –
in advance.
46. In Inamdar’s case, in question No.3 framed by it
with regard to the correctness of the judgment in Islamic
Academy’s case, issuing guidelines in the matter of regulating
fee payable by students to the educational institution was under
discussion. To set up a reasonable fee structure was held to be
component of the right to establish and administer an institution
within the meaning of Article 30(1) of the Constitution as per law
declared in Pai Foundation. After so observing, it was held that,
every institution is free to devise its own fee structure subject to
the limitation that there can be no profiteering and no capitation
fee can be charged directly or indirectly, or in any form.
(Reliance for these observations was placed on paras 56 to 58
and 161 of Pai Foundation). In so far as capitation fee is
concerned, it was held that the same could not be charged. The
answer to the question was that every institution would be free
to devise its own fee structure, but the same can be regulated in
the interest of preventing profiteering and that no capitation fee
can be charged. While concluding its judgment, the Supreme
W.P.(C) No.17873/2006 etc. – 167 –
Court in para 155 observed thus:
“The committee regulating admission
procedure and fee structure shall continue to
exist, but only as a temporary measure and an
inevitable passing phase until the Central
Government or the State Governments are able
to devise a suitable mechanism and appoint a
competent authority in consonance with the
observations made hereinabove”.
47. From the three major decisions referred to
above what thus transpires is that whereas in Unnikrishnan’s
case the scheme that came to be framed pertaining to fee
fixation, 50% of the seats in every professional colleges were to
be filled by the nominees of the Government or University,
selected on the basis of merit determined by common entrance
test which were to be free seats whereas the remaining 50%
seats should be payment seats. The institution was left open to
provide for reservation of seats for constitutionally permissible
classes with the approval of the affiliating university and the fee
chargeable in each professional college was made subject to such
W.P.(C) No.17873/2006 etc. – 168 –
a ceiling prescribed by such appropriate authority or by a
competent court. Every State Government had to constitute a
committee to fix the ceiling on the fees chargeable by a
professional college or class of professional colleges and the
committee should fix the fee once in every three years or at
such intervals, and regulations could be framed to regulate the
fee for the institutions running on no-grant-in-aid basis. The
scheme in terms provided that fee as may be prescribed by the
professional colleges would be subject to such a ceiling as may
be prescribed by the appropriate authority. The Committee
that may be constituted had power to fix the ceiling on fee
chargeable by professional colleges. 50% of seats had to be
free seats and to be filled up by nominees of the Government or
University selected on the basis of merit determined by common
entrance test and rest of 50% would be payment seats. The
scheme framed in Unnikrishnan’s case was under serious
challenge in T.M.A.Pai’s case. The institutions made a fervent
request to recall or set at naught the scheme framed in
Unnikrishnan’s case as the same was bound to result in revenue
W.P.(C) No.17873/2006 etc. – 169 –
shortfalls. The interim order passed by the Court permitting
within payment seats, some percentage of seats which could be
alloted to non-resident Indians against payment of higher
amount, it was urged has also not come to rescue the petitioner
institutions and they could not run the institutions at all because
of paucity of funds. It is relevant to mention that the scheme
framed in Unnikrishnan’s case was stated to be unsustainable not
only by the counsel appearing for the petitioners institutions,
but also by the learned Solicitor General of India. It was
commonly contended by them that the scheme framed was
unreasonable and invalid. Indeed, the Supreme Court accepted
the said contention by holding that the scheme could not be
called a reasonable restriction under Article 19(6) of the
Constitution. The restriction imposed was held would make it
difficult, if not impossible, for the educational institutions to run
the institution. In so far as freeship envisaged in
Unnikrishnan’s case is concerned, it was held that when higher
education was not a fundamental right, it would be unreasonable
to compel a citizen to pay for the education of another, more so
W.P.(C) No.17873/2006 etc. – 170 –
in the unrealistic world of competitive examinations which
assess the merit for the purpose of admission solely on the basis
of marks obtained where the urban students always have an
edge over the rural students. The Scheme in Unnikrishnan’s
case was held to have the effect of nationalizing education in
respect of important features like right of private unaided
institution to give admission and to fix the fee. The law
permitting the directions given to the UGC, AICTE, Medical
Council of India, and Central and State Government was
overruled. After overruling the scheme framed in
Unnikrishnan’s case and holding it to be unconstitutional, the
matter was further examined and it was held that in the context
of fundamental right of the institution under Articles 19 and
26(a) of the Constitution pertaining to setting up of a reasonable
fee structure, the element of profiteering was not accepted and
further the fee structure must take into account the need to
generate funds to be utilised for the betterment and growth of
the educational institutions. The fixing of rigid fee structure was
held to be unreasonable restriction on the rights of the
W.P.(C) No.17873/2006 etc. – 171 –
institution. In Islamic Academy’s case, the view taken in
Unnikrishnan’s case was once again almost reiterated and
respective State Governments were then permitted to set up in
each State a Committee headed by a retired High Court Judge,
who should be nominated in consultation with the Chief Justice
of the State concerned. Each educational institution should place
before the Committee, well in advance, its proposed fee
structure. The Committee was then to decide whether the fees
prescribed by each institution was justified and did not involve
profiteering and charging capitation fee. It was further opined
that the Committee was at liberty either to approve the fee
structure or propose some other fee structure which could be
charged. In Inamdar’s case, it may be recalled that question
No.3 was with regard to correctness of the judgment issuing
guidelines in the matter of fee payable by students to
educational institutions. To set up a reasonable fee structure
was held to be a component of the right to establish and
administer an educational institution as per the law declared in
T.M.A.Pai’s case. Every educational institution was free to
W.P.(C) No.17873/2006 etc. – 172 –
devise its own fee structure subject to the limitation that there
was no profiteering and no capitation fee could be charged
directly or indirectly. From the conspectus of the decisions
culled out in the discussion made herein before, it is clear that
fixation of fee structure is a fundamental right of educational
institutions more particularly, of those which are unaided. It is
further clear that the fee has to be decided by the institutions
themselves and such right of the institutions cannot be arrogated
by the State. While, however, fixing the fee structure, the
institutions cannot indulge into profiteering nor can charge
capitation fee, even though the element of surplus income to
cater to the future needs of the institutions can be definitely
taken into account while fixing the fee. The Committees that
may be constituted or the law that may be even made could only
regulate the profiteering and charging of capitation fee. The
Committees would themselves have every right to modify the fee
structure fixed by the institutions and debar institutions by an
order and if legislation is made to that effect by law, to reduce
the fee in the event of its coming to a finding that the fee
W.P.(C) No.17873/2006 etc. – 173 –
structure had a component of profiteering and/or capitation fee,
but nothing beyond that. The fixation of fee structure is the
right of an institution particularly when unaided. The right of the
Committees that may be constituted or the Government to
legislate, in our considered view, cannot go beyond examining
the fee structure to find out therein the element of profiteering
or charging of capitation fee, be it by monitoring committees or
by legislation. It is in this view of the law laid down by the
Supreme Court, the provisions under challenge have to be
examined.
48. In view of the provisions contained in
sub-section (4) of Section 6, the fee regulatory committee would
have power to require each unaided college or institution to place
before it the proposed fee structure with all relevant documents
well in advance of the commencement of the academic year, i.e.
not later than 31st December of the previous academic year and
the committee has the power to verify whether the fee fixed is
justified and does not amount to profiteering or charging of
capitation fee and also to approve the fee structure or determine
W.P.(C) No.17873/2006 etc. – 174 –
some other fee which could be charged. The fee determined by
the committee is binding for a period of three years as per
sub-sections (4) and (5) of Section 6. It cannot be revised with
regard to the students admitted in that academic year till he
completes his course. The institution cannot collect any fee
more than one year’s fee in an academic year as that would
amount to collecting capitation fee. As per the provisions
contained in Section 7, the fee regulatory committee would
determine and fix the fee or fees to be charged by an unaided
professional college taking into consideration the obligation to
provide freeship to minimum of 50% of seats admitted and the
additional expenses, if any, required for the same over and
above the excess funds generated from Non-Resident Indians,
charity on the part of managements and contributions by the
Government for providing freeship for Scheduled Caste and
Scheduled Tribe students, the nature of the professional course,
the available infrastructure, the expenditure on administration
and maintenance, reasonable surplus required for the growth
and development of the college and any other factor which the
W.P.(C) No.17873/2006 etc. – 175 –
Committee may deem fit. In view of the provisions contained in
Section 9 of the Act, no institution can collect fee by whatever
name called over and above the fee determined by the fee
regulatory committee, provided that the committee may fix the
fee for NRI seats and the amount so collected over and above
the fee fixed for other students has to be utilised for providing
freeship to socially and economically backward classes. Tested
in the anvil of the law laid down by the Supreme Court as culled
out by us hereinbefore, it appears to us that the position as
available in Unnikrishnan’s case has been revived. There may be
some provisions in the Act that may be in consonance with the
law laid down in the judicial precedents referred to above, but in
so far as the right of self financing institutions to fix a fee
structure as may be thought appropriate by it is concerned, the
same has been completely taken away. It may be one thing to
say that self financing institutions would determine their own fee
structure subject to the approval of the Government, either
through committees constituted by it or by law framed by it, but
entirely another thing to say that every element that goes to
W.P.(C) No.17873/2006 etc. – 176 –
determine the fee structure would be considered by the
Committee or the Government and the fees thus fixed would be
binding upon the self financing institutions. Fixation of a fee
structure has indeed been held to be an important facet of
establishing and administering an educational institution, be it of
minority or non-minority. This right cannot be totally curtailed.
This right would be straightaway infringed if it is arrogated by
the State, even though there may be no infringement of such
rights if it is regulated to vouchsafe non-profiteering and
non-charging of capitation fee. It is no doubt true that in sub-
section (4) of Section 6 of the Act, it has been stated that
regulatory committee would require each unaided professional
college or institution to place before it the proposed structure of
fee and verify whether the fee proposed by each college is
justified and does not involve profiteering or charging of
capitation fee, but the right given to the fee regulatory
committee to determine and fix the fee to be charged by the
institution would undoubtedly infringe the right of the institution
to fix its own fee structure. In the context of entire legislation
W.P.(C) No.17873/2006 etc. – 177 –
pertaining to fee structure, however, that alone may not be
enough to strike down Section 6 under challenge. It is too well
settled a proposition of law that if it may be possible to reconcile
various provisions of the Act in such a way the same can be read
so as to harmonise such provisions to become in consonance
with the law, the same needs to be upheld. In the
circumstances aforesaid, there would be need to read down
the provisions of Sections 6 of the Act of 2006. The
provisions of Section 6 of the Act can be read to mean that every
professional college would have a right to fix its fee structure,
which would be subject to its finalisation by the Government,
which would have a right to re-model it by taking away the
element of profiteering and charging of capitation fee, if any. In
other words, the reading down of Section 6 of the Act of
2006 thus would be to the extent that every professional
college would place before the committee the fee
structure as set out by it, which would be subject to
verification by excluding the element of profiteering and
charging of capitation fee. This reading down of the Section
W.P.(C) No.17873/2006 etc. – 178 –
is necessary to protect Section 6 and such reading down shall
not make any difference either to the institution or to the
Government, as virtually it is in any case the right of the
management to fix the fee structure and in any case the right of
the Government to examine it to the extent it may have an
element of profiteering or charging of capitation fee.
49. The challenge to Section 7 of the Act, however,
stands on a different footing. The Fee Regulatory Committee, it
appears has been given all-sweeping powers to determine the
fee to be charged by an unaided professional college. The nature
of the professional course, the available infrastructure, the
expenditure on administration and maintenance, reasonable
surplus required for the growth and development of the college
and any other factor would all be taken into consideration by the
Committee itself and not by the institution. Even though while
dealing with Section 6 we have held that the same can be read
down to mean that the institution concerned would fix the fee
structure which may be regulated by the Committee as
mentioned above, but insofar as Section 7 is concerned, it is the
W.P.(C) No.17873/2006 etc. – 179 –
Fee Regulatory Committee which has been given the power to
determine the fee taking into consideration the various factors as
mentioned above. What expenses would be required to
efficiently run the institution taking into consideration the nature
of the professional course, the available infrastructure, the
expenses of administration and maintenance and what would be
the reasonable surplus required for growth and development of
the college, it appears to us, should be at the discretion of the
management, but this has been left to be taken into
consideration and fee accordingly fixed by the Fee Regulatory
Committee. In the very nature of the things it does not appear
that the Regulatory Committee would know in depth the affairs
of the institution as best as the institution may know itself.
That apart, if all these factors are considered and fee then
determined by the Regulatory Committee, then what is left out in
the right of the unaided institutions in the name of establishing
and administering the institution, which has an important
component of fixation of fee. To illustrate, if the institution may
plan its expansion to double the seats or have double the
W.P.(C) No.17873/2006 etc. – 180 –
buildings and infrastructures as according to it, it may be
necessary, and accordingly fix the fee, can the Regulatory
Committee say the expansion and development of the institution
would entail fixation of more fee and therefore it is not
permitted. It may be recalled that each institution, as held by
the Supreme Court, is entitled to have its own fee structure. The
fee structure for each institution must be fixed keeping in mind
the infrastructure and facilities available, the investments made,
salaries paid to the teachers and staff, future plans for expansion
and/or betterment of the institution etc.. It appears to us that
the position that became available after Unnikrishnan’s case has
almost been reiterated in framing Section 7 of the Act of 2006.
If one may examine closely the provisions contained in Section
7, it may appear to be almost similar to the scheme framed in
Unnikrishnan’s case. In Unnikrishnan’s case, the scheme that
came to be framed pertained to fee fixation, 50% of seats are to
be filled up by the nominees of the Government or University.
These 50% seats are to be free seats whereas the remaining
50% are payment seats. However, the Government has to
W.P.(C) No.17873/2006 etc. – 181 –
constitute a committee to fix a ceiling on the fee chargeable by
professional college/s and fix the fee once in every three years
or at such longer intervals. Regulations could be framed to
regulate the fee of the institutions. The scheme provided that
the fee that may be fixed by the professional college would be
subject to such ceiling as may be prescribed by the appropriate
authority. In the present case as well, 50% of seats are to be
compulsorily free seats. The Committee has been given
exclusive power to fix the fee by taking into consideration
different aspects as mentioned above. However, in what manner
the various components would be regulated like what budget
would be provided against those items has again been left to the
exclusive domain of the Regulatory Committee. No unaided
professional college would collect any fee from the candidates for
admission over and above the fee fixed by the Fee Regulatory
Committee as per the provisions contained in Section 9. There is
a maximum limit also thus prescribed. Violation of the
provisions of the above Act would entail penal action. This
appears to be in sharp contrast to the law laid down in
W.P.(C) No.17873/2006 etc. – 182 –
T.M.A.Pai’s case and Inamdar’s case. This is a virtual take over,
clearly infringing the right of the unaided institutions in the
matter of fixation of fee, which is indeed a right guaranteed to it
under Articles 19 (1)(g) and 26(a) of the Constitution of India.
50. Section 2 (o) defines Non-Resident Indian seats
to mean seats reserved for children or wards or dependents of
Non-Resident Indians to whom admission is given by the
management in a fair, transparent and non-exploitative manner
on the basis of fees as may be prescribed. Section 7(a) enjoins
upon even an unaided professional college to provide freeship to
a minimum of fifty per cent of students admitted. The additional
funds that may be required for giving 50% freeship, it is
provided, can be covered by the excess funds generated from
Non-Resident Indians, charity on the part of management and
contribution from the Government for providing freeship for
SC/ST students. In view of the provisions contained in
sub-section (2) of Section 9, an unaided institution is to provide
freeship to a minimum of 50% of students admitted irrespective
of whether they are unaided minority or non-minority. It is
W.P.(C) No.17873/2006 etc. – 183 –
interesting to note that Government by issuance of the
notification in the gazette may constitute a fund called a Higher
Education Scholarship Fund for providing scholarship to socially
and economically backward students admitted in professional
colleges as per sub-section (1) of Section 12. The corpus of the
fund shall be contributions from Government, the amount of fine
levied under the Act and the funds raised from any other source
including Non-resident Indians. The Fund is to be administered
by an administrator appointed by the Government. The
administration of the fund is in the hands of the administrator to
be used in such manner as may be prescribed. It may be
recalled that the scheme as framed in Unnikrishnan’s case
provided that 50% of the seats in every professional college
should be filled by the nominees of the Government or
University, which would be referred to as free seats, whereas,
the remaining 50% seats should be filled by those candidates
who pay the free prescribed therefor. This scheme was under
challenge in T.M.A.Pai’s case. It was urged on behalf of the
institutions that the cost incurred on educating a student in an
W.P.(C) No.17873/2006 etc. – 184 –
unaided professional college would be more than the total fee
which could be realised as per the scheme framed in
Unnikrishnan case. Despite the fact that the Supreme Court by
an interim order had permitted some percentage of seats to be
alloted as NRI seats against payment of higher amount, it was
still urged that the same would even not come to the rescue of
the institutions. It was urged that the said extra amounts would
not make available sufficient funds for the development of the
institutions providing freeship to the extent of 50%. While
dealing with the challenge to freeship in Unnikrishnan’s case, the
Supreme Court observed that the said judgment has created
problems and raised thorny issues. No doubt, it was observed
that, the anxiety of the Bench in Unnikrishnan’s case to
accommodate poor students have not come true and as a matter
of fact, converse had happened, but it was also observed that,
“it seems unreasonable to compel a citizen to pay for the
education of another, more so in the unrealistic world of
competitive examinations which assess the merit for the purpose
of admission solely on the basis of the marks obtained, where
W.P.(C) No.17873/2006 etc. – 185 –
the urban students always have an edge over the rural
students”. Paying for others is a cross subsidy and cannot be
permitted. Mr.Vaidyanathan, would however submit that the
anomaly in Unnikrishnan’s case that came about of poor actually
subsidising the rich has been set right in the Act and now it is
only the rich who would subsidise the poor. We have given our
anxious thoughts to the contention raised by him, but the same
does not appear to be having any substance. The two aspects in
the provisions of the Act of 2006 appear to be against the
contention raised by Mr.Vaidyanathan; the first being that 50%
freeship despite the institutions permitted to charge extra funds
from Non-Resident Indians demonstratively did not cater for
revenue shortfall of the institutions, as urged in T.M.A.Pai case
and accepted. Further, it is only in medical colleges we are told
there may be candidates aspiring to take admission under the
Non-Resident Indian category, whereas for other institutions
imparting education in the stream of Engineering, Nursing and
Teacher Education, there is hardly any seat that may be
reserved to be taken by Non-Resident Indians. In the
W.P.(C) No.17873/2006 etc. – 186 –
Engineering Colleges, we have been given data to show that
during the last three academic years, so many seats went
abegging. As per the data provided by the petitioner
institutions, the vacancy position of seats in B.Tech Courses in
the 49 institutions during the last three years viz. 2003-04,
2004-05 and 2005-06 are as follows:
Name of College/Institution 2003-04 2004-05 2005-06
Mohandas College of Engg. & Technology, Trivandrum. 47 112 55
Lourdes Matha College of Science & Tech. Trivandrum 49 139 110
Mar Baselios College of Engg. & Tech., Trivandrum 19 52 14
Mary Matha College of Engg. & Tech. Trivandrum 17 148 262
P.A.Aziz College of Engg. & Technology, Trivandrum – – –
Muslim Assn. College of Engg., Venjaramoodu, Trivandrum 34 82 73
Marian Engg. College, Kazhakuttom, Trivandrum 24 127 37
M.G.College of Engineering, Thiruvallom, Trivandrum 204 64
Sarabhai Institute of Science & Tech., Vellanad, Trivandrum. 0 33
SHM Engg. College, Kadakkal, Kollam. 56 163 108
Younus College of Engg. & Technology, Kollam 20 70 88
Baselios Mahews II College of Engg, Sasthamcotta, Kollam 13 73 17
Travancore Engineering College, Oyoor, Kollam 22 76 37
TKM Institute of Technology, Kollam 24 79 22
Caarmel Engg. College, Perunad, Ranni 40 99 134
Mount Zion College of Engg. , Kadammanitta, Pathanamthitta 57 135 73
Musaliar College of Engg. & Tech. Kumbazha, Pathanamthitta 19 48 63
Mar Baselios Christian College of Engg. & Tech. Peermade 43 145 135
Sree Budha College of Engineering, Pattoor, Alappuzha 4 101 6
Saintgits College of Engineering, Kottayam 3 89 139
St.Joseph’s College of Engg. & Technology, Pala, Kottayam 15 80 4
Mangalam Engineering College, Aluva, Ernakulam. 0 115 83
Amal Jyothi College of Engineering, Kanjirappaly, Kottayam 45 93 24
KMEA Engineering College, Aluva, Ernakulam. 46 68 19
Viswajyothi College of Engg. & Tech., Vazhakulam, Muvattupuzha 29 106 3
Federal Institute of Science & Tech.,Mookkanoor, Angamaly 9 24 5
W.P.(C) No.17873/2006 etc. – 187 –
SNM Institute of Management & Tech., Maliankara, EKM. 34 112 71
Ilahia College of Engg & Tech., Muvattupuzha 37 168 11
Adi Shankara Institute of Engg. & Tech., Kalady, Ernakulam. 31 68 8
Rajagiri School of Engg. & Technology, Ernakulam 26 11 0
SCMS School of Engg. & Tech. Karukutty, Ernakulam 58 68 50
Toc-H Institute of Science & Tech. Arakunnam, Ekm. 57 60 3
Sree Narayana Gurukulam College of Engg, Kadiyiruppu, Ekm. 31 102 14
Matha College of Engg & Tech. Mankkapady, Paravur, Ekm.
Met’s School of Engineering, Mala, Trissur 37 114 67
Jyothi Engineering College, Cheruthuruthy, Trissur 33 81 3
Nehru College of Engg. Research Centre, Thiruvilwamala,Trissur 19 98 17
Royal College of Engg. & Tech., Kunnamkulam, Trissur 47 169 38
Vidya Academy of Science & Technology, Trissur 6 21 9
Sahrdaya College of Engg. Technology, Kodakara, Trissur 3 10 0
IES College of Engg., Chittilappilly, Trissur 21 85 18
Al-Ameen Engineering College, Shoranur, Palakkad 51 79 40
MEA Engineering Colege, Perinthalmanna, Malappuram 47 96 118
Vedavyasa Institute of Technology, Malappuram 0 138 105
MES College of Engineering, Kuttipuram, Malappuram
KMCT College of Engineering, Mukkom, Calicut 55 145 133
AWH Engineering College, Calicut 31 159 110
Vimal Jyothi Engineering College, Kannur 35 144 51
Sree Narayana Guru College of Engg. & Tech,Payyannur, Kannur 1 110 9
1295 4266 2480
When even the sanctioned seats could not be filled and so
many seats remained vacant, as mentioned above, there would
be hardly any Non-Resident Indian in such stream of education.
That apart, it is not sure that in which year there would be
demand for Non-Resident Indian seats for admission in
Medical Colleges, how many such students or how many such
percentage of students would seek admission in such category.
W.P.(C) No.17873/2006 etc. – 188 –
In a given year there may not be any applicant desiring
admission in NRI category. It is one thing to say that number
of freeship would be commensurate to the admission of students
in NRI category and yet another thing to say that it would be
minimum 50%. Secondly, students other than Non-Resident
Indians cannot possibly be asked to pay for the other students as
that may cause cross subsidy and this is bound to happen if the
surplus gained from Non-Resident Indians may not be enough to
balance freeship to the extent of 50%. The Regulatory
Committee has to fix the fee structure by positively taking into
consideration 50% of freeship. It thus means that irrespective of
funds generated by the institutions on account of surplus from
Non-Resident Indians, charity etc., the freeship in any case
would be 50%. The only consequence of the provisions read
together would be either financial bankruptcy for the institutions
or prescribing high fee to the students who may be admitted in
non-free seats. This would make the position unreasonable and
disproportionate. In Inamdar’s case, the Supreme Court did
observe that limited reservation of seats not exceeding 15%
W.P.(C) No.17873/2006 etc. – 189 –
could be made available to Non-Resident Indians depending on
the discretion of the management and that amount of money in
whatever form collected from Non-Resident Indian should be
utilised for benefitting students such as from economically
weaker sections of the society, whom, on a well defined criteria,
the educational institution may admit on subsidised payment of
their fee. But, as mentioned above, what would happen if the
institutions may not consider it proper to admit students
belonging to NRI as it is in their discretion to do so. It is not
compulsory. In that event, there will be no candidate for
admission for a seat for NRI or when such students be one or
two percent. The admission of students in the NRI category
would vary from year to year, but in so far as fee structure is
concerned, the same shall have to be worked out by providing
50% freeship, to be catered from the surplus that may be
generated from Non-Resident Indians. Reference at this stage
also be made to sub-section (8) of Section 10. The minority
institutions are obliged to admit atleast 50% of seats of their
community and out of these seats 50% are free seats. The free
W.P.(C) No.17873/2006 etc. – 190 –
seats, subsidised seats or partly subsidised seats may be far
more commensurate to the seats which may bring some surplus
with the institutions. Not only that it may be difficult for the
institutions to run their affairs, but that shall also result in cross
subsidy. Looked from any angle, the provisions contained in
Section 7(a) read with other provisions as mentioned above
would make the said provisions unreasonable. Further, as per
Section 12, a higher education scholarship fund has to be
constituted for providing scholarship to socially and economically
backward students admitted in professional colleges or
institutions and the corpus of the fund would include funds raised
from Non-Resident Indians, and this Fund is to be administered
by the Administrator appointed by the Government. The surplus
funds generated from admission in NRI category and from
charity etc. may be to balance the freeship, but the fund has to
go into the hands of the Government and has to be administered
in the way and manner it may prescribe. The provisions of
Section 7 of Act of 2006 would infringe upon the rights of the
management in fixation of fee structure and the same have thus
W.P.(C) No.17873/2006 etc. – 191 –
to be held invalid and unconstitutional.
Minority Status – Determining factors:
51. There is a frontal attack on the provisions
dealing with the status of minority institutions. It is urged by the
learned counsel appearing on behalf of the petitioners that the
provisions have been made with the sole object of completely
annihilating the right of minorities to establish and administer
minority institutions. If the rights of the minorities are to be
worked out under the conditions envisaged under the provisions
of the Act under challenge, in the State of Kerala no institution
would have such a right. With a view to appreciate the
contention of the learned counsel, it will be useful to take into
consideration the provisions dealing with minority, particularly
such provisions which limit the exercise of the right by the
minorities. Minority has been defined under Section 2 (l) and the
same for the purpose of the Act means a community belonging
to a religious or linguistic minority as may be determined by
Government taking the State as a unit. As per Section 2(m),
minority professional college or institution means a professional
W.P.(C) No.17873/2006 etc. – 192 –
college or institution established and maintained by a minority
that fulfills the non-discriminatory criteria as laid down in the Act
and determined as such by the Government. Minority seats as
per Section 2 (n) means seats reserved for students who belong
to the community that runs the minority unaided professional
college or institution and filled up on the basis of inter se merit in
the manner prescribed, from the rank list prepared by the
Commissioner for Entrance Examinations. In the midst of
arguments on 18th October, 2006, when enquired as to whether
the determination as mentioned in Section 2(l) and 2 (m) has
been so far done or not, the State sought adjournment. The
order dated 18th October, 2006 reads as follows:
“In the midst of arguments when confronted
with sub-clauses (l) and (m) of Section 2 of Kerala
Professional Colleges (Prohibition of capitation fee,
regulation of admission, fixation of non-exploitative
measures to ensure Equity and Excellence in Professional
Education) Act, 2006 pertaining to definition of ‘minority’
and ‘minority professional college or institution’, regarding
which no determination has been made by the Government
yet, Sri.C.S.Vaidyanathan, Senior Counsel appearing for the
State seeks adjournment. List again on 26.10.2006”.
On the adjourned date, counsel stated they would produce the
order declaring Christians and Muslims as Minority Communities
W.P.(C) No.17873/2006 etc. – 193 –
for the purpose of Section 2(l) of the Act 19 of 2006. After the
case was reserved for judgment, but during the course of
preparing the judgment, the Government Pleader has produced a
copy of order dated 06.12.2006 which reads as follows:
“After considering all the aspects of the matter,
Government are pleased to order that Christians and Muslims will be
treated as Minorities under Section 2(l) of the The Kerala
Professional Colleges or Institutions (Prohibition of Capitation Fee,
Regulation of Admission, Fixation of Non Exploitative Fee and other
Measures to ensure equality and excellence in Professional
Education) Act, 2006, (Act 19 of 2006)”.
52. The determining factors for granting recognition
and conferring the status as unaided minority professional
college or institution are contained in Section 8 which has
already been reproduced. In so far as sub-section (1) of
Section 8 is concerned, there is no dispute about the same. An
unaided minority professional college established and maintained
by a linguistic and religious minority is to be recognised and
conferred the status of unaided minority professional college if it
may have population of the concerned linguistic or religious
minority community in the State which runs the professional
college or institution is lesser than 50% of the total population of
W.P.(C) No.17873/2006 etc. – 194 –
the State. This is indeed also what has been held in all the
decisions referred to above. The dispute is with regard to
clauses (b) and (c) of Section 8. As per clause (b) of Section 8,
the number of professional college or institution run by the
linguistic or religious minority community in the State to which
the college or institution belong has to be proportionately lesser
than the number of professional colleges run by the non-minority
community in the State. In other words, if the number of
professional colleges run by the concerned religious or linguistic
minorities are more than such professional colleges or
institutions run by non-minority institutions in the State, such
minority institutions would have no right as envisaged under
Article 30(1) of the Constitution. As per clause (c) of Section 8,
the number of students belonging to the linguistic or religious
minority community to which the college or institution belongs
undergoing professional education in all professional colleges or
institutions in the State has to be proportionately less than the
number of students belonging to the professional colleges or
institutions in the State. In other words, the number of the
W.P.(C) No.17873/2006 etc. – 195 –
students belonging to the concerned linguistic or religious
minority has to be lesser than the number of students belonging
to colleges or institutions in the State. If therefore, the total
number of students belonging to the concerned minority
community is more than the number of students in the State in a
particular stream of education, once again even though a
minority community, it shall have no right as envisaged under
Article 30(1) of the Constitution. Under Rule 13 of the Rules of
2006, it has been specifically provided that a minority unaided
professional college or institution established and maintained by
a minority community and affiliated to a University shall be
recognised as an unaided minority professional college and
conferred status as such only if it conforms to all the three
conditions laid down in Section 8. The status of an unaided
minority professional college shall be lost if and when the
unaided minority professional college concerned ceases to fulfil
any of the three conditions laid down in Section 8 and
thenceforth, it shall be treated on par with other unaided
professional college or institution. Section 10 deals with
W.P.(C) No.17873/2006 etc. – 196 –
allotment of seats. It will be at this stage relevant to refer to
sub-section (8) of Section 10. As per sub-section (8) of Section
10, a minority professional college shall have to admit not less
than 50% of the students from within the State from the
minority community to which the college or institution belongs.
53. In the context of the submissions made by the
learned counsel for the parties, some factual aspects shall have
first to be taken into consideration. The total population of
Kerala as per Ext.R1(m) in the counter affidavit filed by the State
was 2,90,98,518 in the year 1991. The population of Hindus
was 1,66,68,587 which would be 57.28% of the total population.
The Muslims at that time were 67,88,364 which would be
28.33% of the total population. The Christians at that time were
56,21,510 which would be 19.32% of the total population. The
Sikhs at that time were 2,224, which would be 0.01% of the
total population. The population of Buddhists and Jains and
other religions is found nil to 0.04%. It would thus appear that
all other communities but for Hindus are minority communities in
the State of Kerala. The percentage of population as in 1991 is
W.P.(C) No.17873/2006 etc. – 197 –
stated almost to be the same even now. The minority
communities running Professional College in the State of Kerala
primarily are Christians. Roughly whereas Hindus are 60%,
Muslims and Christians are 20% each. Muslims and Christians
are thus minorities as per clause (a) of Section 8 as the
percentage of the population of the concerned minority
community has to be considered Statewise. As per Ext.R1(n), a
chart showing number of private self financing professional
colleges belonging to Muslims, Christians and other
managements, there are 13 engineering colleges run by Muslim
community and 20 by Christians. The colleges run by other
communities are only 15. In the medical stream, wheres there
is only one college run by Muslim community, five are run by the
Christian community and there is only one such college as run by
other communities. In so far as Nursing is concerned, there are
8 institutions run by Muslims, 28 by Christians and 15 by others.
The chart placed on record by the State in its counter affidavit in
Ext.R1(n) is as follows:
W.P.(C) No.17873/2006 etc. – 198 –
Colleges Muslim Christian Others
Engineering 13 20 15
Medical 1 5 1
Nursing 8 28 15
The number of professional colleges or institutions run by the
linguistic or religious minorities in the State of Kerala are thus
more than the number of professional colleges run by
non-minority communities in the State, in all streams of
education, be it medical, engineering or nursing. If thus one is
to go by the determining factors for according recognition and
conferring status as unaided minority professional college as
envisaged in clause (b) of Section 8, there would be no minority
community in the State of Kerala at all. By virtue of sub-section
(8) of Section 10, a minority professional college has to
necessarily admit not less than 50% of the students from within
the State from the minority community to which the college or
institution belongs. That is a necessary requirement and the
same is to be adhered to. The number of students belonging to
linguistic or religious minority communities to which the college
or institution belongs shall be far far more than the number of
W.P.(C) No.17873/2006 etc. – 199 –
other students in the State. As mentioned above, the number of
institutions run by minority communities are far more and if
therefore at least 50% of that community only are admitted in
such institutions they will be far more than other students, thus
losing its status as minority community or the status as an
unaided minority professional college or institution. The concept
of minority and the institutions run by it at least in so far as the
State of Kerala is concerned, it is now totally lost. There would
be no unaided minority professional college or institution in the
State of Kerala.
54. Learned counsel representing the petitioners
vehemently contends that the rights of minorities to establish
and administer their institutions guaranteed to them under
Article 30 of the Constitution of India cannot be taken away by
such sweeping provisions as made and providing such
determining factors as envisaged in clauses (b) and (c) of
Section 8 of the Act of 2006. He further contends that the dual
or triple test to confer the status of minority or a minority
educational institution would be the only test whereas such tests
W.P.(C) No.17873/2006 etc. – 200 –
as have been placed emanating from clauses (b) and (c) of
Section 8 would annihilate the rights of the minorities and would
thus be unsustainable. Mr.Vaidyanathan, learned senior counsel
appearing for the State would, however, contend that no
definition of minority has so far been given and the judgments
relied upon by the learned counsel for the petitioners examined
the questions on the basis of India consisting of various States
based upon language. The specific questions framed, in
particular in T.M.A.Pai’s case pertaining to factors that may
constitute a minority community or a minority institution were
left undecided. The State of Kerala, for the first time, has laid
tests to determine a minority. The tests as provided would be
entirely justified as no minority can be called a minority if it may
become far more prosperous than even the so called majority
communities. The right provided to minority communities under
Article 30 was in consideration of the weak position of such
minorities and once such minorities may acquire a status even
better than that of majority communities or the institutions
established by the minorities may become far more than the
W.P.(C) No.17873/2006 etc. – 201 –
institutions established by other communities, the minority
communities or the minority institutions would not be entitled for
the exercise of their rights under Article 30 further contends the
learned counsel.
55. With a view to determine the vexed questions
posed for answer it will be first appropriate to take into
consideration, the provisions contained in Article 30 of the
Constitution which reads as follows:
“30. Rights of minorities to
establish and administer educational
institutions.-(1) All minorities, whether based
on religion or language, shall have the right to
establish and administer educational
institutions of their choice.
(1-A) In making any law providing
for the compulsory acquisition of any property
of an educational institution established and
administered by a minority, referred to in
clause (1), the State shall ensure that the
amount fixed by or determined under such law
for the acquisition of such property is such as
would not restrict or abrogate the right
guaranteed under that clause.
(2) The State shall not, in granting
aid to educational institutions, discriminate
against educational institution on the ground
that it is under the management of a minority,
whether based on religion or language.”
The exercise of fundamental rights as provided in Part III of the
W.P.(C) No.17873/2006 etc. – 202 –
Constitution are by and large subject to reasonable restrictions,
but it is interesting to note that the fundamental right enshrined
under Article 30 for the minorities to establish and administer
educational institutions cannot be curtailed even by reasonable
restrictions, but for to the extent as laid down by the Honourable
Supreme Court in various judgments to be referred.
56. Before we may delve further on the content and
extent of right available to minority communities under Article
30, we may make a mention of some other relevant provisions.
According to clause (1) of Article 25 of the Constitution, subject
to public order, morality and health and to the other provisions
of Part III, all persons are equally entitled to freedom of
conscience and the right freely to profess, practise and
propagate religion. Article 26 gives the right, subject to public
order, morality and health, to every religious denomination or
any section thereof to establish and maintain institutions for
religious and charitable purposes; to manage its own affairs in
matters of religion; to own and acquire movable and immovable
property; and to administer such property in accordance with
W.P.(C) No.17873/2006 etc. – 203 –
law. Articles 28 to 30 which contain provisions for educational
institutions read as follows:
“28. (1) No religious instruction shall be
provided in any educational institution whollymaintained out of State funds.
(2) Nothing in clause (1) shall apply to an
educational institution which is administered bythe State but has been established under any
endowment or trust which requires that religious
instruction shall be imparted in such institution.
(3) No person attending any educational
institution recognised by the State or receivingaid out of State funds shall be required to take
part in any religious instruction that may be
imparted in such institution or in any premises
attached thereto unless such person or, if such is
a minor, his guardian, has given his consent
thereto”.
“29. –(1) Any section of the citizens
residing in the territory of India or any part
thereof having a distinct language, script or
culture of its own shall have the right to conserve
the same.
(2) No citizen shall be denied admission
into any educational institution maintained by theState or receiving aid out of State funds on
grounds only of religion, race, caste, language or
any of them.”. .
The Honourable Supreme Court in St. Xaviers College v. State
of Gujarat, AIR 1974 SC 1389, on an analysis of Articles 28 to
30 of the Constitution observed that,
W.P.(C) No.17873/2006 etc. – 204 –
“Although the marginal note of
Article 29 mentions protection of minority
rights, the rights actually conferred by that
article are not restricted merely to the
minorities. According to clause (1) of that
Article, any section of the citizens residing in
the territory of India or any part thereof having
a distinct language, script or culture of its own
shall have the right to conserve the same. In
order to invoke the benefit of this clause, all
that is essential is that a section of the citizens
residing in the territory of India or any part
thereof should have a distinct language, script
or culture of its own. Once that is proved,
those citizens shall have the right to conserve
their language, script or culture irrespective of
the fact whether they are members of the
majority community or minority community”.
xxx xxx xxx.
“Clause (1) of Article 30 gives right to all
minorities, whether based on religion or
language, to establish and administer
educational institutions of their choice.
Analysing that clause, it would follow that the
right which has been conferred by the clause is
on two types of minorities. Those minorities
may be based either on religion or on
language.”.
While dealing with the contention raised before the Supreme
Court with regard to the scope and ambit of Article 30, the
Supreme Court referred to the historical background leading to
provide Article 30 of the Constitution. The same reads thus:
W.P.(C) No.17873/2006 etc. – 205 –
“Before we deal with the contentions
advanced before us and the scope and
ambit of Article 30 of the Constitution, it
may be pertinent to refer to the historical
background. India is the second most
populous country of the world. The people
inhabiting this land profess different
religions and speak different languages.
Despite the diversity of religion and
language, there runs through the fabric of
the nation the golden thread of a basic
innate unity. It is a mosaic of different
religions, languages and cultures. Each of
them has made a mark on the Indian polity
and India today represents a synthesis of
them all. The closing years of the British
rule were marked by communal riots and
dissensions. There was also a feeling of
distrust and the demand was made by a
section of the Muslims for a separate
homeland. This ultimately resulted in the
partition of the country. Those who led
the fight for independence in India always
laid great stress on communal amity and
accord. They wanted the establishment of
a secular State wherein people belonging
to the different religions should all have a
feeling of equality and non-discrimination.
Demand had also been made before the
partition by sections of people belonging to
the minorities for reservation of seats and
separate electorates. In oder to bring
about integration and fusion of the
different sections of the population, the
frames of the Constitution did away with
separate electorates and introduced the
system of joint electorates, so that every
candidate in an election should have to
W.P.(C) No.17873/2006 etc. – 206 –
look for support of all sections of the
citizens. Special safeguards were
guaranteed for the minorities and they
were made apart of the fundamental rights
with a view to instill a sense of confidence
and security in the minorities. Those
provisions were a kind of a Charter of
rights for the minorities so that none might
have the feeling that any section of the
population consisted of first-class citizens
and the others of second-class citizens.
The result was that minorities gave up
their claims for reservation of seats”.
The Supreme Court then referred to the speech delivered on
February 27, 1947 by Sardar Patel, who was the Chairman of the
Advisory Committee dealing with the right of minority
communities, a part of which is reproduced below:
“As long as the Constitution stands as it
is today, no tampering with those rights
can be countenanced. Any attempt to do
so would be not only an act of breach of
faith, it would be constitutionally
impermissible and liable to be struck
down by the courts”.
The content and extent of the rights of the minorities under
Article 30 appears to be unregulated by any restriction, but for
as the Supreme Court envisaged in various decisions. It is in the
W.P.(C) No.17873/2006 etc. – 207 –
light of the extent and content of this right, the question posed
before us is to be examined. In T.M.A.Pai’s case, question
No.4 pertained to determining factors of existence of religious or
linguistic minority in relation to Article 30, whether the State was
to be the unit or country as a whole was to be the unit was thus
the question. Taking into consideration that the States have
been carved out on the basis of language of majority of persons
of that region, it was held logical that such determination should
be only in relation to the population of a particular State. Taking
into consideration Kerala Education Bill 1957 case (supra),
D.A.V.College v State of Punjab (1971) 2 SCC 269, and
D.A.V.College v State of Punjab (1971) 2 SCC 261, it was held
that,
“There can, therefore, be little
doubt that this Court has consistently
held that, with regard to a State law,
the unit to determine a religious or
linguistic minority can only be the
State”.
As long as the dual or triple test pertaining to an institution
W.P.(C) No.17873/2006 etc. – 208 –
working out for the benefit of its community was complied with,
it was held that minorities have a right to establish and
administer educational institutions and as mentioned above, the
State was to be the unit for determining the minority. The right
could be exercised even by a single philanthropic individual who
may establish the institution either from his own funds or funds
collected from his community. The Government could at the
most regulate this right by laying down the educational
standards and allied matters. In Inamdar’s case, it was held
that the term ‘minority’ has not been defined in the Constitution
and it was taking the clue from the provisions of the State
Reorganisation Act that it was held in T.M.A.Pai Foundation case
that India having been divided into different linguistic States,
carved out on the basis of language of the majority of persons of
that region, it is the State and not the whole of India that shall
have to be taken as a unit for determining a linguistic or religious
minority with regard to its right. After taking State as a unit, it
has to find out what was the demography and whether the
persons speaking a particular language or following a particular
W.P.(C) No.17873/2006 etc. – 209 –
religion are less than 50% of the total population, and if that was
to be so, the status of religious or linguistic minority has to be
given to it. After referring to the judgment in Kerala Education
Bill case, it was further held in Inamdar’s case that the object
underlying Article 30(1) is to see the desire of minorities being
fulfilled that their children should be brought up properly and
efficiently, and acquire eligibility for higher university education
and go out in the world fully equipped with such intellectual
attainments as will make them fit for entering public services,
educational institutions imparting higher instructions including
general secular education. Thus the twin objects sought to be
achieved by Article 30(1) in the interest of minorities are: (i) to
enable such minority to conserve its religion and language, and
(ii) to give a thorough, good, general education to children
belonging to such minority. So long as the institution retains its
minority character by achieving and continuing to achieve the
abovesaid twin objectives, the institution would remain a
minority institution.
W.P.(C) No.17873/2006 etc. – 210 –
57. In Sidhrajbhai v. State of Gujarat, AIR 1963
SC 540, it was held that the right established by Article 30(1) is
a fundamental right declared in terms absolute. Unlike the
fundamental freedoms guaranteed by Article 19, it is not subject
to reasonable restrictions. It is intended to be a real right for the
protection of the minorities in the matter of setting up
educational institutions of their own choice. The right is intended
to be effective and is not to be whittled down by so-called
regulative measures conceived in the interest not of the minority
educational institutions, but of the public or the nation as a
whole. If every order which while maintaining the formal
character of a minority institution destroys the power of
administration is held justifiable because it is in the public or
national interest, though not in its interest as an educational
institution, the right guaranteed by Article 30(1) will be but a
“teasing illusion”, a promise of unreality. Regulations which
may lawfully be imposed either by legislative or executive action
as a condition of receiving grant or of recognition must be
directed to making the institution while retaining its character as
W.P.(C) No.17873/2006 etc. – 211 –
a minority institution effective as an educational institution.
Such regulations must satisfy a dual test – the test of
reasonableness and the test that it is regulative of the
educational character of the institution and is conducive to
making the institution an effective vehicle of education for the
minority community or other persons who resort to it. The
interpretation on Article 30 of the Constitution is clear and
eloquent. The very background of providing rights to minority
communities in the matter of running educational institutions
and the said right being not subject to any restriction would be
clearly suggestive of the fact that once a community is a
minority, it would have the right. The Government has indeed
declared pursuant to the provisions contained in Section 2(l),
the Muslims and Christians to be minority communities. The
contention of the learned counsel for the petitioners in
challenging clauses (b) and (c) of Section 8 of the Act of 2006
has to be examined in view of the interpretation placed by the
Supreme Court on Article 30 as mentioned above.
W.P.(C) No.17873/2006 etc. – 212 –
58. Having given our thoughtful consideration to the
question under debate, we have no hesitation whatsoever in
returning a firm finding that regulations or determining factors of
recognising and conferring the status as unaided minority
professional college or institution as envisaged under clauses (b)
and (c) of Section 8 would be violative of the rights of the
minorities and minority institutions as envisaged under Article 30
of the Constitution. The identifying tests as envisaged in clauses
(b) and (c) of Section 8, even as per the case of the State, would
leave no institution in the State of Kerala as a minority
institution.
59. Once the Christians and Muslims have been
declared to be a minority community in the State of Kerala, the
mere fact that such communities have established more
institutions than the majority community or the students of that
particular community are more than the students of other
communities in the State of Kerala cannot whittle down the right
enshrined under Article 30 of the Constitution. These
W.P.(C) No.17873/2006 etc. – 213 –
identifying factors are not regulative of the educational character
of the institution nor pertain to making the institution an
effective vehicle of education for the minority communities.
These are factors which completely annihilates the rights of the
minority even though declared as such. We will hereinafter deal
with the contention raised by Mr.Vaidyanathan with regard to the
minority institutions losing their right under Article 30 once they
become dominant or prosperous, but before we might do that,
another aspect of clauses (b) and (c) of Section 8 read with Sec.
10(8) needs to be dealt with.
60. The identifying criteria as contained in
clause (b) of Section 8 requires the professional college or
institution run by all religious and linguistic minorities to be
proportionately lesser than the number of professional colleges
or institutions run by the non-minority community in the State.
How is this criteria workable is the question. How long
this criteria will hold good is further the question. The medical
institutions belonging to Christian community as on today may
W.P.(C) No.17873/2006 etc. – 214 –
be more than such institutions run by non-minority communities
in the State and, therefore, at present Christians would not be a
minority having the right to establish and administer their
institutions. Next year, if the non-minority communities may
open up such number of institutions that they become more than
the institutions run by Christian community, would minority
character of the institution revert and if, in yet next year the
Christian community may open few more colleges so as to
become more than the institutions run by non-minority
communities, will it once again lose its right under Article 30.
The identifying criteria appears to be impracticable, unworkable
and temporary. The same would be true even with regard to
clause (c) of Section 8. To illustrate, this year if the students
of a minority community say Christians are more than the
students of the non-minority community, it would lose its right
to run the institution as a minority community, but next year if
the number of students may become lesser than the non-
minority community, would it re-gain its character as a minority
institution and still next year if the converse may happen, would
W.P.(C) No.17873/2006 etc. – 215 –
the things change again. This criteria again appears to be
impracticable, unworkable and temporary. That apart, in view of
sub-section (8) of Section 10 of the Act of 2006, an unaided
minority institution has to admit not less than 50% of students
from the minority community to which the college or institution
belongs. On one hand, the Government would insist admission
of at least 50% of seats from minority community
candidates whereas on the other hand, it would state that the
moment the total students of that community in the State are
more than 50%, the institution would lose its character as a
minority institution. Surely, when the minority institutions are
more than the non-minority institutions, admission of 50% of
students of that community would make the strength of such
students more than the strength of other community
students. The provisions contained in Section 8(c) and that of
Section 10(8) are mutually inconsistent. The institution will lose
its character as a minority institution, though run by a
community having the right to establish and administer its
W.P.(C) No.17873/2006 etc. – 216 –
institution under Article 30, if the students are less than 50% as
also when it is more than 50%. The criteria of allowing unaided
minority institutions to be recognised only if the colleges are
proportionately less than rest of the non-minority community
under Section 8(b) or if the total number of students belonging to
minority community is proportionately less than the number of
students belonging to non-minority community would destroy
the right of minority under Article 30(1). The right of minorities
under Article 30 appears to be absolute and subject only to the
regulations made by the State for ensuring excellence in
education of the institution as held in St.Xaviers case. No other
restriction it appears can be imposed upon minorities under
Article 30(1). Even though it is true that the observation with
regard to State being a unit for determining the minority
community came in the background of the States being carved
out on linguistic basis and without their being any definition of
minority, but the same would appear to be true even without the
definition of minority. In any case, such identifying criteria of
minorities as envisaged under clauses (b) and (c) of Section 8
W.P.(C) No.17873/2006 etc. – 217 –
would be destructive of the right of the minorities to establish
and administer the institutions under Article 30(1) of the
Constitution. The matter may be looked from another angle.
Section 8(b) and 8(c) if applied to the minority communities in
exercising their right would make it dependent upon what the
non-minorities may do or may not do, for establishing their
educational institutions. Can the right of a citizen or a
community be dependent upon what other communities may or
may not do? The answer appears to be an emphatic no. Yet
another contradiction or absurdity in Section 8 is that, it only
applies to minority unaided institutions and not to minority aided
institutions. The reason why the identifying criteria as envisaged
in Section 8 has not been made applicable to minority aided
institutions is not forthcoming from the provisions of the Act. It
is settled proposition of law that unaided minority institutions
have more freedom in running their institutions than that of
aided minority institutions. If that be so, the provisions
contained in section 8 would be totally irrational and would also
come under the vice of Article 14, by not according equal
W.P.(C) No.17873/2006 etc. – 218 –
treatment to minority-aided and minority-unaided institutions.
61. Mr.Vaidyanathan as mentioned above has urged
that Article 30 is meant to equalize or protect the right of
minorities from being deprived by the dominant majority in a
democratic set up and if viewed from that angle, Section 8
provides rationale and relevant criteria for determining what is a
minority professional institution. The object is to achieve
egalitarian, proportionate equality in respect of admissions to
professional institutions. There does not appear to be any merit
in the aforementioned contention of the learned counsel. The
criteria for exercising the right in the matter of establishing and
administering the educational institutions is minority and not the
status of such minority. For accepting the contention of
Mr.Vaidyanathan, there would be indeed requirement of
amendment in Article 30 of the Constitution to make their rights
dependent upon dominant or affluent status of the minority.
That is not so. As long as, therefore, Article 30 is as it is, the
contention raised by Mr.Vaidyanathan cannot be accepted,
howsoever attractive it may appear to be. There may be some
W.P.(C) No.17873/2006 etc. – 219 –
rationality in extending the benefit of Article 30 to a
non-dominant minority, but for that, as mentioned above, Article
30 itself has to be amended. Learned counsel however, for the
contention mentioned above, has placed reliance upon the
decision in Bal Patil v. Union of India, (2005) 5 SCC 690.
The facts in Bal Patil’s case would reveal that an organisation
representing a section of Jain Community approached the High
Court of Bombay seeking a writ in the nature of mandamus
directing the Central Government to notify the Jains as a
minority community under the National Commission for
Minorities Act, 1992 (in short, Central Act of 1992). The Minority
in the said Act of 1992 has been defined to mean a community
notified as such by the Central Government. The High Court,
however, disposed of the petition on the ground that the claim of
various communities for status of minority for seeking
constitutional protection was pending before 11 Judges Bench
before the Supreme Court. When the appeal was filed before the
Supreme Court, the matter was adjourned from time to time to
await the decision in T.M.A.Pai’s case. The matter came up for
W.P.(C) No.17873/2006 etc. – 220 –
hearing after the decision in Pai’s case. At the very outset, the
Supreme Court referred to question no.1 and the answer thereto
in T.M.A.Pai’s case and emphasised that religious and linguistic
minorities had to be considered Statewise for the purpose of
Article 30 as held in T.M.A.Pai’s case. The Central Government
took up the stand before the Supreme Court that it was for the
State Government to decide as to whether Jain community
should be treated as minority community in the respective States
and that some of the States had already notified Jain community
as a minority. It was urged before the Supreme Court that in
the light of the law declared in T.M.A.Pai’s case as also in view of
the stand taken by the Central Government, the Central
Government which is empowered to consider the claim of the
particular community for being notified u/s.2(c) of the Central
Act of 1992 cannot shirk its statutory responsibility at the
national level and the decision in T.M.A.Pai’s case would not
render the power of the Central Government u/s.2(c) as
redundant. The Additional Solicitor General who appeared for
the Central Government, however, urged that the Central
W.P.(C) No.17873/2006 etc. – 221 –
Government had no role to play and it was for the respective
State Governments to take the decision for status of Jains
depending upon the social condition in the respective States.
The issue involved in the case was as to whether the Central
Government would declare a community to be minority
community as per the provisions contained in Section 2(c) or
State was to do so in the context of the decision given by the 11
Judge Bench in T.M.A.Pai’s case. As a preface to its discussion
on the question aforesaid, the Supreme Court observed that the
expression minority has been used in Articles 29 and 30 of the
Constitution, but it has nowhere defined it. The group of
Articles 25 to 30 would guarantee protection of cultural,
educational and religious rights of both majority and minority
communities. According to the Supreme Court, it was not felt
necessary to define minority. The minority as per the
constitutional scheme would be an identifiable group of people or
community who were seen as deserving protection from likely
deprivation of their religious, cultural and educational rights by
other communities who happen to be in majority and likely to
W.P.(C) No.17873/2006 etc. – 222 –
gain political power in a democratic form of government based
on election. In the background of the constitutional scheme, the
provisions of the Central Act of 1992, in the view of the Supreme
Court, instead of giving definition of minority only provided for
notifying certain communities as minorities who would require
special treatment and protection of their religious, cultural and
educational rights. It was further observed that the definition of
minority given under the Act in Section 2(c) was in fact not a
definition as such, but only a provision enabling the Central
Government to identify a community which in the opinion of the
Central Government may deserve for the purpose of protecting
and monitoring its progress and development through the
Commission. The functions to be performed by the Commission
under the Central Act of 1992 were then discussed. In
paragraph 17 it was held that,
“Henceforth before the Central Government
takes a decision on the claims of Jain as a
‘minority’ under Section 2(c), the identification
has to be done on Statewise basis. The power of
the Central Government has to be exercised not
merely on the advice and recommendation of the
Commission, but on consideration of the social,
cultural and religious conditions of the Jain
W.P.(C) No.17873/2006 etc. – 223 –
community in each State. Statistical data
produced to show that a community is
numerically a minority cannot be the sole
criterion. If it is found that the majority of
members of the community belong to the affluent
class of industrialists, businessmen or
professionals and propertied class, it may not be
necessary to notify them as such and extend any
special treatment or protection to them as a
minority community. The provisions contained in
the group of Articles 25 to 30 are a protective
umbrella against possible deprivations of the
fundamental right of religious freedoms of
religious and linguistic minorities.”.
The Court then discussed the history culminating into the
framing of Articles 25 to 30 and the minority communities that
require protection in the historical background, at the time of
framing up of the Constitution. There were indeed communities
which after the independence of the country required protection.
62. What emerges from the observations in Bal Patil’s
case is that the question that was under consideration pertained
to whether the declaration of Jain community as a minority
community under Section 2(c) of the Central Act of 1992 should
be done at the national level or should it be Statewise.
Whereas, the contention of the learned counsel appearing for the
Jain Community was that the Commission should declare the Jain
W.P.(C) No.17873/2006 etc. – 224 –
community to be a minority community at the national level, the
Central Government took the stand that in view of the judgment
in T.M.A.Pai case, it had to be done at the State level. The
question was not the status of a community being minority or
otherwise dependent upon its affluence or dominant character.
Further, it was in the context of Act of 1992 that it was held that
determination has to be made as to which minority would
deserve to be so declared. A distinction between minority
communities, pre-1950 and thereafter was made and it was held
that it was not in the contemplation of the framers of the
Constitution to add to the list of minorities. No doubt, in
paragraph 17, there are observations of affluent minority
community, but the said reference was in the context of 1992
Act. That apart, the sole factor that Muslims and Christians had
established more educational institutions than that of majority
communities may not necessarily be indicative of the fact that
the Muslims and Christians minority community as such consists
of big industrialists, businessmen, professionals and propertied
class in the State of Kerala. The religious minority institutions
W.P.(C) No.17873/2006 etc. – 225 –
are not necessarily established by industrialists, businessmen or
professionals. Most of the institutions may have been
established by philanthropists by collecting donations.
Mr.Beeran, learned counsel appearing in I.A.No.15407 of 2006
in W.P.(C) No.17969 of 2006 on behalf of the additional 4th
respondent, i.e. President, of Travancore Educational Society,
the object of which is the upliftment of the members of the
Muslim Community and other backward classes contends that
Muslim Community is backward in educational field as well as in
civil services. It is stated in the application that from some
media reports the Society has come to know that the stand of
the Government before this Court is that Muslim minority
community has got sufficient seats in Medical Colleges and other
professional colleges proportionate to their population in the
State and hence they are educationally forward. Mr.Beeran
contends that the said stand taken by the Government is based
on some false and misleading information and datas. It is stated
that as per last 2001 census, 24.73 of the total population of the
State is Muslims. The present position of the Muslim community
W.P.(C) No.17873/2006 etc. – 226 –
is very backward in the field of education and has also very poor
representation in the State and Subordinate Services. As per
report dated 9.11.2001 of the Justice K.K.Narendran
Commission, which was appointed to study and report on the
adequacy or otherwise of representation of backward classes in
the service under the State Government, Public Sector
Undertakings, autonomous bodies and institutions under State
Governments including Universities, the Muslim community have
got only a total of 10.45% representation in all categories of
posts in public services. The report says that their
representation in Category 1 is only 10.03 as against a
reservation quota of 10%, in Category 2 their representation is
10.66 as against a quota of 12% and in Categories 3,4,5, and 6,
their representation is 9.85, 11.63, 9.94, and 9.71 respectively
as against their quota of 12 percent in each category. The
Commission further observed that Muslims have not fared well in
the matter of securing posts in public service and the main
reason for this is nothing but educational backwardness. The
Commission suggested that it is for the Government to take
W.P.(C) No.17873/2006 etc. – 227 –
appropriate action to minimise this deficiency in the years to
come. Mr.Beeran also relies on the report of Justice Rajinder
Sacher Committee appointed by the Prime Minister, according to
which the members of the Muslim community lag behind in
every field throughout India. The statement of facts made in the
impleading application has not been controverted by the State.
We are, however, not inclined to return a finding on the
contention raised by Mr.Beeran. Suffice it to say that there is
no material brought on record by the State to show that the
Christian and Muslims in the State of Kerala are a developed and
rich community, socially or financially. The State has not
chosen to supply any material nor it has even averred that
Christians and Muslims in the State are affluent or more
dominating than the majority community. The State, we are
further of the opinion, having itself declared Christians and
Muslims to be a minority in the State of Kerala would not be
permitted to say that because of these minority communities
having established more institutions or having more students
would not be minorities and even if a minority, would have no
W.P.(C) No.17873/2006 etc. – 228 –
right as available to them under Article 30 of the Constitution of India.
It is significant to mention that in T.M.A.Pai’s case, Hon’ble Justice
Quadri did opine that word ‘minority’ would literally mean
non-dominant group, but that was not the majority view. The
same was also not accepted to be an indicia for the definition of
religious minority in Inamdar’s case. The contention raised by
Mr.Vaidyanathan justifying Section 8(b) and (c) on the basis of
the observations contained in Bal Patil’s case are repelled.
Occupied Field & Repugnancy with Central Acts
63. Clauses (b) and (c) of Section 8 have been
challenged on yet another ground. It is urged by the learned
counsel for the petitioners that the provisions aforesaid are
repugnant to the National Commission for Minority Educational
Institutions Act, 2004 (Central Act 2 of 2005), as amended by
the Central Act 18 of 2006. The right to establish a minority
institution is now a matter under Section 11 of the Central Act 2
of 2005. The field is now stated to be occupied by Central
legislation. Act 19 of 2006 enacted by the State of Kerala would
be repugnant to the Central Act 2 of 2005 as amended in 2006,
W.P.(C) No.17873/2006 etc. – 229 –
as per the provisions contained in Article 254(2) of the
Constitution of India. Education by virtue of 42nd Amendment
to the Constitution is under the Concurrent List under Entry 25.
Entry 25 of List III, i.e. Concurrent List, reads as follows:
“Education, including technical
education, medical education and Universities
subject to the provisions of Entries 63, 64, 65
and 66 of List I; vocational and technical training
of labour”.
As a result of insertion of Entry 25 in List III, the Parliament can
also legislate in relation to technical education and medical
education. Technical education would surely include Engineering,
Nursing and Teaching. Before insertion of Entry 25 in the
Concurrent List, the field was occupied by the State Legislature,
but as mentioned above, now the Parliament can also legislate
in matters on education. The provisions contained in Article 254
of the Constitution would reveal that Parliament may legislate on
all or any type of matters enumerated in Entry 25 of List III, on
which the State too would have the power to do so, and the law
made by Parliament shall prevail but only if it may be in conflict
with the law laid down by the State. The State law, in other
W.P.(C) No.17873/2006 etc. – 230 –
words in that situation, would to the extent of repugnancy be
void. This position will be made clear from the provisions of
Article 254 of the Constitution which reads as follows:
“(1) If any provision of a law made by
the Legislature of a State is repugnant to any
provision of a law made by Parliament which
Parliament is competent to enact, or to any
provision of an existing law with respect to one of
the matters enumerated in the Concurrent List,
then, subject to the provisions of clause (2), the
law made by Parliament, whether passed before or
after the law made by the Legislature of such
State, or as the case may be, the existing law shall
prevail and the law made by the Legislature of the
State shall, to the extent of the repugnancy, be
void.
(2) Where a law made by the
Legislature of a State with respect to one of the
matters enumerated in the Concurrent List
contains any provision repugnant to the provisions
of an earlier law made by Parliament or an existing
law with respect to that matter, then the law so
made by the Legislature of such State shall, if it
has been reserved for the consideration of the
President and has received his assent, prevail in
that State.
Provided that nothing in this clause shall
prevent Parliament from enacting at any time any
law with respect to the same including a law
adding to, amending, varying or repealing the law
so made by the Legislature of the State.”.
Subject to the provisions of clause (2) of Article 254 of the
W.P.(C) No.17873/2006 etc. – 231 –
Constitution of India, if the law made by the State Legislature is
repugnant to any law made by Parliament, the law made by the
State Legislature shall be repugnant. Act 19 of 2006 made by
Kerala has not received the assent of the President of India.
If the provisions contained in Sections 8(b) and 8(c) of the Act
19 of 2006 may be repugnant to some provisions of law
contained in Central Act 2 of 2005 as amended in 2006, the said
provisions would be repugnant. To evaluate the contention
raised by the counsel for the petitioners, however, the provisions
of Central Act 2 of 2005 as amended in 2006 relied upon by the
counsel for the petitioners need a necessary mention.
64. ‘College’ has been defined under clause (b) of
Section 2 to mean a college or teaching institution (other than a
University) established or maintained by a person or group of
persons from amongst a minority community. ‘Commission’ as
per clause (c) of Section 2 has been defined to mean a National
Commission for Minority Educational Institutions constituted
under section 3. ‘Minority’ has been defined under clause (f) of
Section 2 to mean a community notified as such by the Central
W.P.(C) No.17873/2006 etc. – 232 –
Government. ‘Minority Educational Institution’ as per Section 2
(g) means, a college or institution (other than a University)
established or maintained by a person or group of persons from
amongst the minorities. Section 10 dealing with the right to
establish a minority educational institution reads as follows:
“10.(1) Any person who desires to establish
a Minority Educational Institution may apply to
the Competent Authority for the grant of no
objection certificate for the said purpose.
(2) The Competent authority shall, –
(a) on perusal of documents,
affidavits or other evidence, if any; and
(b) after giving an opportunity of
being heard to the applicant,
decide every application filed under sub-
section (1) as expeditiously as possible and
grant or reject the application, as the case
may be:
Provided that where an application is rejected,
the Competent Authority shall communicate the
same to the applicant.
(3) Where within a period of ninety days
from the receipt of application under sub-section
(1) for the grant of no objection certificate, –
(a) the Competent authority does not
grant such certificate; or
(b) where an application has been
rejected and the same has not been
communicated to the person who has applied for
the grant of such certificate,
it shall be deemed that the competent
authority has granted a no objection
W.P.(C) No.17873/2006 etc. – 233 –
certificate to the applicant.
(4) The applicant shall, on the grant of a no
objection certificate or where the Competent
authority has deemed to have granted the no
objection certificate, be entitled to commence
and proceed with the establishment of a Minority
Educational Institution in accordance with the
rules and regulations, as the case may be, laid
down by or under any law for the time being in
force.
Explanation.- For the purpose of this section, –
(a) “applicant” means any person who
makes an application under sub-section (1) for
establishment of a Minority Educational
Institution;
(b) “no objection certificate” means a
certificate stating therein, that the Competent
authority has no objection for the establishment
of a Minority Educational Institution.”.
Section 11 dealing with the functions of the Commission reads
thus:
“11.Notwithstanding anything contained in any
other law for the time being in force, the
Commission shall –
(a) advise the Central Government or
any State Government on any question
relating to the education of minorities that
may be referred to it;
(b) enquire, suo motu, or on a petition
presented to it by any Minority Educational
Institution, or any person on its behalf into
complaints regarding deprivation or violation
W.P.(C) No.17873/2006 etc. – 234 –
of rights of minorities to establish and
administer educational institutions of their
choice and any dispute relating to affiliation to
a University and report its finding to the
appropriate Government for its
implementation;
(c) intervene in any proceeding involving
any deprivation or violation of the educational
rights of the minorities before a court with the
leave of such court;
(d) review the safeguards provided by or
under the Constitution, or any law for the time
being in force, for the protection of educational
rights of the minorities and recommend
measures for their effective implementation;
(e) specify measures to promote and
preserve the minority status and character of
institutions of their choice established by
minorities;
(f) decide all questions relating to the
status of any institution as a Minority
Educational Institution and declare its status
as such;
(g) make recommendations to the
appropriate Government for the effective
implementation of programmes and schemes
relating to the Minority Educational
Institutions; and
(h) do such other acts and things as may
be necessary, incidental or conducive to the
attainment of all or any of the objects of the
Commission.”.
Section 12B dealing with the power of the Commission to decide
the minority status of an educational institution reads as follows:
W.P.(C) No.17873/2006 etc. – 235 –
“12B.(1)Without prejudice to the provisions
contained in the National Minority Commission
Act, 1992 (19 of 1992), where an authority
established by the Central Government or any
State Government, as the case be, for grant of
minority status to any educational institution
rejects the application for the grant of such
status, the aggrieved person may appeal
against such order of the authority to the
Commission.
(2) An appeal under sub-section (1) shall
be preferred within thirty days from the date of
the order communicated to the applicant:
Provided that the Commission may
entertain an appeal after expiry of the said
period of thirty days, if it is satisfied that there
was sufficient cause for not filing it within that
period.
(3) An appeal to the Commission shall be
made in such form as may be prescribed and
shall be accompanied by a copy of the order
against which the appeal has been filed.
(4) On receipt of the appeal under sub-
section(3), the Commission may, after giving
the parties to the appeal, an opportunity of
being heard, decide on the minority status of
the educational institution and shall proceed to
give such directions as it may deem fit and, all
such directions shall be binding on the parties.
Explanation.- For the purposes of this
section and section 12C, ‘authority’ means any
authority or officer or commission which is
established under any law for the time being in
force or under any order of the appropriate
government, for the purpose of granting a
certificate of minority status to an educational
institution.
W.P.(C) No.17873/2006 etc. – 236 –
Section 12C deals with the power to cancel the status of
minority. The same reads thus:
“12C. The Commission may, after giving a
reasonable opportunity of being heard to a
Minority Educational Institution to which
minority status has been granted by any
authority or Commission, as the case may be,
cancel such status under the following
circumstances, namely:-
(a) if the constitution, aims and objects
of the educational institution, which has
enabled it to obtain minority status has
subsequently been amended in such a way
that it no longer reflects the purpose, or
character of a Minority Educational Institution;
(b) if, on investigation of the records
during the inspection or investigation, it is
found that the Minority Educational Institution
has failed to admit students belonging to the
minority community in the institution as per
rules and prescribed percentage governing
admissions during any academic year.”.
Title of the Central Act 2 of 2005 is indicative of the fact that it
deals with minorities in the context of educational institutions.
The Act came with a view to constitute National Commission for
Minority Educational Institutions and to provide for matters
connected therewith and incidental thereto as would be clear
from the Preamble of the Act. The Act extends to the whole of
India, except Jammu and Kashmir. The Act came into force on
W.P.(C) No.17873/2006 etc. – 237 –
11th November, 2004. ‘College’ as mentioned above means a
college or teaching institution (other than a University)
established or maintained by a person or group of persons from
amongst a minority community. ‘Commission’ means a National
Commission for Minority Educational Institutions by virtue of
Section 2(b). ‘Minority’ for the purpose of the Act means a
community notified as such by the Central Government.
‘Minority Educational Institution’ means, a college or institution
(other than a University) established or maintained by a person or
group of persons from amongst the minorities. The Competent
Authority on production of documents and other materials as
mentioned above and after giving an opportunity of being heard
would decide the application and grant or reject the same. The
rejection has to be communicated. Section 10(3) of the Act is a
deeming provision. It states that where within ninety days
from the receipt of application for the grant of no objection
certificate, the Competent authority does not grant such
certificate; or where an application has been rejected and the
same has not been communicated to such applicant, it shall be
W.P.(C) No.17873/2006 etc. – 238 –
deemed that the competent authority has granted a no objection
certificate to the applicant. On grant of a no objection
certificate or even in a case where the competent authority may
be deemed to have granted no objection certificate, the applicant
would be entitled to commence and proceed with the
establishment of a minority educational institution in accordance
with the rules and regulations as may be laid down or under any
law for the time being in force. Section 10A deals with the right
of the minority educational institution to seek affiliation. Section
11 deals with the functions of the Commission. The Commission
would advise the Central Government or any State Government
on any question relating to the education of minorities that may
be referred to it. The Commission would enquire, suo motu, or
on a petition presented to it by any Minority Educational
Institution, or any person on its behalf into complaints regarding
deprivation or violation of rights of minorities to establish and
administer educational institutions of their choice and any
dispute relating to affiliation. The report and its findings have
then to be submitted by the Commission to the appropriate
W.P.(C) No.17873/2006 etc. – 239 –
Government for implementation. It has the power even to
intervene in pending proceedings involving deprivation or
violation of the educational rights of the minorities before a court
with the leave of such court. The Commission has also the
power to review the safeguards provided by the Constitution or
any law for the time being force for the protection of educational
rights of the minorities and recommend measures for their
effective implementation. The Commission can also specify the
measures to promote and preserve the minority status and
character of institutions of their choice established by the
minorities. The Commission has power as provided in clause (f)
of Section 11 to decide all questions relating to the status of any
institution as a minority educational institution and declare its
status as such.
65. Relying on the provisions of the Central Act 2 of
2005, as enumerated above and in particular Section 11(f)
counsel appearing for the petitioners would contend that once
the Commission under Section 11(f) is clothed with the power to
W.P.(C) No.17873/2006 etc. – 240 –
decide the status of an institution as a Minority Institution and
declared it as such, the provisions as envisaged in clauses (b)
and (c) of Section 8 of the Act 19 of 2006 would be repugnant.
Mr.Vaidyanathan, learned counsel representing the State, per
contra, however contends that the Central Act would not deprive
the State of its legislative power under Articles 245 and 246 in
matters related to Entry 25 of the Concurrent List. The
National Commission has not been vested with the power to
determine the criteria for recognising a minority institution. On
the other hand, the Central Act has recognised the Central and
State authorities to make such determination and that the power
u/s.11(f) and 12(b) is judicial. The pith and substance of the
State Act is different from the Central Act. Learned counsel
further contends that every effort should be made to reconcile
and harmonise the Central and State Act and only if that is not
possible, the State Act would be held to be repugnant and
unconstitutional.
66. We have given our anxious thought to the rival
contentions raised by the learned counsel as noted above, but in
W.P.(C) No.17873/2006 etc. – 241 –
the context of the provisions contained in the Central Act, the
provisions of clause (b) and (c) of Section 8 of the Act 19 of
2006 may appear to be bordering on transgressing such
provisions, but it do not however, actually transgress the same.
In so far as minority under the State Act is concerned, the same
for the purpose of the Act means a community belonging to a
religious or linguistic minority as may be determined by
Government taking the State as a unit. By notification dated
6.12.2006, even though after the judgment was reserved, the
Government passed an order declaring that Christians and
Muslims in the State will be treated as Minorities. The
Government of India also by notification dated 18th January,
2005 in exercise of the powers conferred by Section 2(f) of
Central Act 2 of 2005 has notified Muslims and Christians as
minority communities. Thus, in the matter of Muslims and
Christians to be a minority community, there is no repugnancy.
In fact, the same are identical. No determination has been
done by the State under Section 2 (m) with regard to minority
professional college or institution, even though minority
W.P.(C) No.17873/2006 etc. – 242 –
professional college or institution means a professional college or
institution established and maintained by a minority that may
fulfil the non-discriminatory criteria as laid down in the Act.
Under the Central Act, a Minority Educational Institution means a
college or institution established or maintained by a person or
group of persons from amongst the minorities. There will be
once again no difference in so far as minority institutions are
concerned, be it the Central or the State Act. It is only by virtue
of Section 11 that deals with the functions of the Commission
and clause (f) thereof by which one of the functions to be
decided by the Commission is the status of an educational
institution as a minority educational institution and declare its
status as such, that it is being urged that the field with regard to
status of a minority educational institution if it is determinable by
the Central Act, the field would be occupied. Therefore, such
identifying factors in clauses (b) and (c) of Section 8 of the
State Act would be repugnant to Section 11(f) of the Central Act.
We have already mentioned that provisions contained in clauses
(b) and (c) of Section 8 of the State Act may appear to be
W.P.(C) No.17873/2006 etc. – 243 –
bordering on transgression when read with the power of the
Commission under Section 11(f) of the Central Act, but there
may not be any apparent conflict between the same. There are
no provisions in the Central Act which may prescribe the
determining criteria for a minority institution. There are no
provisions either which may mention factors that may lead not
to clothe any minority institution with that status. It is true that
the Commission can decide the status of an educational
institution as a minority educational institution, but as to what
criteria has to be taken into consideration for so determining
finds no mention in any of the provisions of the Central Act. The
Central Act does not legislate on determining or non-determining
factors of the status of a minority educational institution. It is
one thing to say that the field is occupied so as to decide the
status of an institution, but another thing to say that what are
the governing factors. If perhaps, there was some provision in
the Central Act specifying the determining or non-determining
factors of the status of minority educational institution and such
factors were against or contrary to those specified in clauses (b)
W.P.(C) No.17873/2006 etc. – 244 –
and (c) of Section 8 of the State Act, the contention raised by
the counsel for the petitioners could have been accepted. It is
settled proposition of law that there has to be a conflict between
the provisions legislated by the Parliament and the State. The
conflict has further to be on same matter. The Supreme Court
in Vijaya Kumar Sharma v. State of Karnataka, (1990) 2
SCC 562, held thus:
“It is open to resolve the conflict
between two entries in different lists, viz. the
Union and the State List, by examining the
dominant purpose and therefore the pith and
substance of the two legislations, there is no
reason why the repugnancy between the
provisions of the two legislations under
different entries in the same list, viz., the
Concurrent List should not be resolved by
scrutinizing the same touchstone. What is to
be ascertained in each case is whether the
legislations are on the same subject matter or
not.”.
Mr.Vaidyanathan, for the proposition that the Central Act does
not deprive the State of its legislative powers under Articles 245
and 246 with regard to items contained in Entry 25 of List III
and there is no conflict between the provisions contained
in Section 11 (f) or any other provision of the Central Act with
W.P.(C) No.17873/2006 etc. – 245 –
provisions of Section 8(b) and (c) of the State Act, and that the
Court should make every effort to reconcile and harmonise the
provisions of the Central and State Act and has relied upon the
decisions in Dr.Preethi Srivastava v. St
ate of M.P. (1999) 7
SCC 720, State of A.P. v. K.Purushotham Reddy (2003) 9
SCC 564, State of T.N. v. S.V.Pratheep and others (2004) 4
SCC 513, B
harat H
ydro Power C
orpn. L
td. and others v.
State of Assam(2004) 2 SCC 553 and Government of A.P. v.
J.B.Educational Society (2005) 3 SCC 212. In all fairness, we
may mention that learned counsel for the petitioners have also
relied upon various judicial precedents, but there may be no
need to refer to the same, as, to hold the State Law to be
repugnant under Article 254 of the Constitution a conflict
between the Central and State Act has to be shown and none of
the judicial precedents cited by the counsel for the petitioners
have taken a different view. In view of the discussions made
above, it has to be held that the provisions of Section 2(f) of the
Central Act and the one contained in Section 8(b) and (c) of the
State Act are not in conflict and that being so, the contentions
W.P.(C) No.17873/2006 etc. – 246 –
with regard to occupied field and repugnancy raised by the
learned counsel for the petitioners have to be repelled and we do
so.
67. Mr. Vivek Tanka, learned counsel appearing for
the petitioners in W.P.(C) No.17969 of 2006 and connected
cases, which are filed by institutions running Engineering
Colleges has raised a similar argument in the context of the
provisions contained in the All India Council of Technical
Education Act, 1987. Learned counsel states that technical
education, which includes Engineering, as per Section 2 (g) of
the Act aforesaid are covered by the Act of 1987, which is a
central legislation and once the Council constituted under the Act
has power to co-ordinate the development of technical education
in the country at all levels [S.10-b], formulate schemes for
promoting technical education for women, handicapped and
weaker sections of the society [S.10-e], lay down norms and
standards for courses, curricula, physical and instructional
facilities, staff pattern, staff qualification, quality instructions,
assessment and examinations [S.10-i]; fix norms and guidelines
W.P.(C) No.17873/2006 etc. – 247 –
for charging tuition fees [S.10-j]; grant approval for starting new
technical institutions and for introduction of new courses or
programmes in consultation with the agencies concerned [S.10-
k]; lay down norms for granting autonomy to technical
institutions[S.10m]; take all necessary steps to prevent
commercialisation of technical education [S.10-n]; provide
guidelines for admission of students to technical institutions and
Universities imparting technical education[S.10(o)], the field
would be covered by Central Legislation, and the provisions
pertaining to fee structure and regulation of admissions as made
in the State Act would be repugnant. Counsel, for the said
proposition, relies upon the decisions of the Supreme Court in
State of Tamil Nadu v. Adhiyaman Educational & Research
Institute (1995) 4 SCC 104, Jaya Gokul Educational Trust
v. Commissioner and Secretary to Government Higher
Education Department (2000) 5 SCC 231, State of A.P. v.
K.Purushotham Reddy (2003) 9 SCC 534, Bharathi
Vidyapeeth v. State of Maharashtra (2004) 11 SCC 755,
Dr.Preeti Srivastava v. State of M.P. (1999) 7 SCC 120 and
W.P.(C) No.17873/2006 etc. – 248 –
Prof.Yashpal v. State of Chattisgarh (2005) 5 SCC 420. The
rules and regulations as made under the Central Act of 1987 that
have been shown to us would only depict regulation of
admission, fee structure, etc., in the light of the decision given
by the Supreme Court in T.M.A.Pai’s case, Islamic Academy’s
case and Inamdar’s case. If the provisions contained in the
State Act may be against the judgment of the Supreme Court in
T.M.A.Pai’s case, Islamic Academy’s case and Inamdar’s case,
the same would be otherwise also illegal and therefore, there will
be no need to further delve on the contention raised by Mr.Vivek
Tanka. No provision of the Act of 1987 we may however
mention, that be in conflict with the provisions of the State Act
has been brought to our notice. For parity of reasons noticed
while rejecting the contention based on the Central Act 2 of
2005, the contention raised by Mr.Vivek Tanka is also to be
repelled. We do so.
Fixation of minimum 50% seats for minority
68. Section 10 of the Act 19 of 2006 is also under
severe challenge. It has been challenged in two parts. The first
W.P.(C) No.17873/2006 etc. – 249 –
is attack on Section 10(8) whereas the second part of attack
pertains to quotas or reservations. We will first deal with the
criticism levelled by the learned counsel for the petitioners on the
provisions contained in Section 10(8) of the Act. A minority
unaided professional college or institution shall admit not less
than 50% of students from within the State from the minority
community to which the college or institution belongs. This is
the first part of Section 10(8). The other part of Section 10(8) is
that from amongst the 50% seats, 50% of seats may be filled
from within the minority community on the basis of merit-cum-
means basis and rest in the order of merit in accordance with
inter se merit. The second part of Section 10(8) shall be taken
for discussion along with other provisions of Section 10 of the
Act of 2006.
69. It is the case of the petitioners that Section 10(8)
is destructive of the right of the minority communities to
establish and administer educational institutions of their choice.
It obliges the minority institutions to admit not less than 50%
students from within the State from the minority community to
W.P.(C) No.17873/2006 etc. – 250 –
which the institution belongs. If the minority educational
institutions fails to or is unable to obtain such a strength from its
own community, it would not be recognised as a minority
educational institution. It is urged by the learned counsel for the
petitioners that it is common knowledge that the minority
educational institutions even if they make all out efforts,
may not be able to secure 50% admission from their own
community. The provisions is also stated to be unreasonable,
unworkable and would vary from year to year.
Mr.Vaidyanathan, learned counsel for the State, on the other
hand would contend that obligation of the institution under
Section 10(8) to admit not less than 50% from the minority
community to which the college belongs is not violative of Article
30 of the Constitution. The right under Article 30(1) is a
preferential right of minority institution to admit students of its
community. This obligation is intended to ensure that the
institution retains its minority character by achieving the twin
objects of Article 30(1) enabling the minority to conserve its
religion and language and to give a thorough, good, general
W.P.(C) No.17873/2006 etc. – 251 –
education to children belonging to such minority. So long as the
institution retains its essential character by achieving the said
objectives, it would remain a minority institution.
70. We have once again given our anxious thoughts
to the provisions contained in Section 10(8) and in our
considered view, the same are not only impracticable,
unworkable but also an ever-changing phenomena. It is also an
unreasonable restriction wholly impermissible either by virtue of
the provisions contained in Article 30 of the Constitution or by
judicial precedents governing the field.
71. The population of Christians and Muslims in the
State of Kerala is roughly 20% each. Even though no material
has been placed before us by the Government justifying
minimum 50% admission by the institutions from their own
community, one can make a reasonable guess that the students
seeking admission in professional colleges would normally be
commensurate to its population. Irrespective of the population
of a particular community in the State, irrespective of how many
institutions a particular community has established, irrespective
W.P.(C) No.17873/2006 etc. – 252 –
of as to what is the normal ratio of admission of students
belonging to minority or non-minority communities, a fixed
formula as the one under Section 10(8) of the Act 19 of 2006
does appear to be wholly impracticable and unworkable. To
illustrate, if in a particular State there may be very scanty
population of a particular community and number of students
seeking admission may be handful; Would such religious or
linguistic minority lose its right to establish and administer its
educational institutions. In the State of Kerala itself, the
population of Sikhs as per the census of 1991 is 2224 which
comes to 0.01% of the population. So would be Jains who
had a population of only 0.01%. Would religious minorities like
Sikhs and Buddhists have no right of establishing and
administering educational institutions. Surely, if the fixed
formula as provided in Sect ion 10(8) is to be adhered to, their
right under Article 30 would stand forfeited. In no case, they
shall be able to admit 50% of students from their community
because such number of students are not available. To illustrate
the impracticability of Section 10(8), we may further give an
W.P.(C) No.17873/2006 etc. – 253 –
illustration. In a given academic year, say 2006-2007, an
institution run by a religious minority may be able to secure 50%
of admissions from its community. In the academic year,
2006-2007, it would be a religious minority, capable of
exercising its right under Article 30(1). For the next academic
year, 2007-2008, it may not be able secure 50% admission from
its community and for that year it will lose the right available to
it under Article 30(1) of the Constitution. In the next academic
year, 2008-2009, they may again be able to secure 50%
admission from its community. Its character as a minority
institution shall be again restored. Would any institution in such
a situation be able to work its affairs. The clear and only answer
appears to us is an emphatic no. Having tested Section 10(8) in
the context of unworkability and impracticability, time is now
ripe to test the provisions of the Act on the anvil of judicial
precedents.
72. In St.Stephen’s College v. University of
Delhi, (1992) 1 SCC 558, one of the questions, i.e., the third
question, that came up for discussion was whether St.Stephen’s
W.P.(C) No.17873/2006 etc. – 254 –
College and the Allahabad Agricultural Institute were entitled to
accord preference to or reserve seats for students of their own
community and whether such preference or reservation would be
invalid under Article 29(2) of the Constitution. It was held that
minority educational institutions are entitled to prefer their
community candidates to maintain the minority character of the
institutions subject of course to conformity with the University
standards. The State may regulate the intake in this category
with due regard to the need of the community in the area which
the institution is intended to serve, but in no case such intake
shall exceed 50 per cent of the annual admission. The Supreme
Court was dealing with a minority but aided institutions which
would have far more control on them by way of regulations
framed by the Government than that of minority unaided
institutions. It is interesting to note that the law as mentioned
above was laid down in the context of challenge posed by
non-minority candidates for their admission in such institutions
in the context of their right under Article 29 of the Constitution
which prohibits any distinction on the basis of religion, race,
W.P.(C) No.17873/2006 etc. – 255 –
caste, language or any of them, in the matter of admission into
any educational institution which was receiving aid out of State
fund. The bare minimum facts which need a necessary mention
would show that St.Stephens College, Delhi and Allahabad
Agricultural Institute at Naine were two of the premier and
renowned institutions in the country. Both were aided
educational institutions and were getting grant from the State
fund. However, they would have their own admission
programme providing for giving preference to Christian students.
The validity of the admission programme and the preference
given to Christian students were the issues that were to be
resolved. The Supreme Court examined the right of the citizen
to get education untrammelled by religion, race, caste, language
etc. on the basis of the right under Article 29 of the Constitution
whereas the management sought to defend their preferential
treatment in the matter of admission of students from its
community on the basis of Article 30. The Supreme Court while
harmoniously interpreting the two provisions held that a balance
has to be struck. While holding that no distinction could be
W.P.(C) No.17873/2006 etc. – 256 –
made between citizens on the ground of religion, race, caste or
language in view of Article 29(2), it was further held that the
said article would not mean that it was intended to nullify the
special rights granted to minorities under Article 30(1). It was in
that context it was held that such institutions may not be
permitted to admit more than 50% from their community. The
embargo is on the maximum number of students i.e. 50% who
could be admitted to such institutions. In T.M.A.Pai’s case it
was observed that, St.Stephen’s case endeavoured to strike a
balance between the two articles and even though the ratio in
St.Stephen’s case holds the field for over a decade, there were
compelling reservations in not accepting the rigid percentage
stipulated therein. As Articles 29 and 30 applied not only to
institutions of higher learning, but also to schools, a ceiling of
50% was held to be not proper and it would be more
appropriate, depending upon the level of the institution, whether
it be a primary or secondary or high school or a college,
professional or otherwise and on the population and educational
needs of the area in which the institution is to be located, the
W.P.(C) No.17873/2006 etc. – 257 –
State properly balances the interests of all by providing for such
a percentage of students of the minority community to be
admitted, so as to adequately serve the interest of the
community for which the institution was established. The
observations in St.Stephen’s case as clarified in T.M.A.Pai’s case
that fixing of a maximum limit of 50% which is not held to be a
rigid one was arrived at as mentioned above, by reconciling the
rights of the students under Article 29(2) and the right of the
minority institutions under Article 30 of the Constitution,
pertaining to institutions receiving aid. In the present case, the
embargo is on admission of a minimum 50% of students of the
religious community and that also for those institutions which
are unaided. It has been clearly held in T.M.A.Pai’s case that as
long as the educational institution whether belonging to minority
or majority community, does not receive aid, it would be its right
and discretion to grant admission to such students as it chooses
or selects subject to the clarification made above. The
clarification is only with regard to the dual or triple test.
73. Mr.Vaidyanathan would however, rely upon the
W.P.(C) No.17873/2006 etc. – 258 –
observations in T.M.A.Pai’s case in paragraph 153. The aided
linguistic minority institutions, it has been observed, is given the
right to admit students belonging to the linguistic minority to a
reasonable extent only to ensure that its minority character is
preserved and that the objective of establishing the institution is
not defeated. If so, such an institution is under an obligation to
admit the bulk of the students fitting into the description of
minority community. It has further been held that, students of
that group residing in the State in which the institution is located
have to be necessarily admitted in a large measure because they
constitute the linguistic minority group as far as that State is
concerned. In other words, the predominance of linguistic
students hailing from the State in which the minority educational
institution is established should be present and the management
bodies of such institutions cannot resort to the device of
admitting the linguistic students of the adjoining State in which
they are in a majority under the facade of the protection given
under Article 30(1). The counsel would further rely upon the
observations made in paras 101 and 102 in Inamdar’s case.
W.P.(C) No.17873/2006 etc. – 259 –
74. In paragraph 100 of Inamdar’s case, the
Supreme Court was dealing with the nature of right conferred by
Articles 29 and 30, where it was observed that the same stood
more clarified and reconciled inter se as also with other articles,
if only it was understood that these two articles were intended to
confer protection on minorities rather than a right as such. It
was then in paragraph 101 that the complex question of
transborder reservation was considered and it was observed that
State is to be the unit for the purpose of deciding the minority.
By this declaration of law, certain consequences would follow.
Every community in India would become minority because in one
or the other State, it would be a minority religious or linguistic
The question would be what would happen if a minority
belonging to a particular State establishes an educational
institution in that State and administers it but for the benefit of
members belonging to that minority domiciled in the
neighbouring State where that community is in majority. Such
an exercise would be fraud on the Constitution. In paragraph
102, while referring to the observation in T.M.A.Pai’s case, it
W.P.(C) No.17873/2006 etc. – 260 –
was observed that to establish a minority institution the
institution must primarily cater to the requirements of that
minority of that State, else its character of minority institution
would be lost.
75. Having examined the contentions of
Mr.Vaidyanathan, we however find that the counsel relies on
observations which have been made in an entirely different
context. The observations made in paragraph 153 of T.M.A.Pai
with regard to the obligation of the institution to admit the bulk
of the students fitting into the description of the minority
community or students of that group from that State, it appears
was made in the context of cross-border admission. So is also
true with regard to the observations made and relied upon by
Mr.Vaidyanathan in paras 101 and 102 of Inamdar’s case. The
practice adopted by the institutions have shown that they will
make admissions from across the border of the State where the
concerned religious minority was not a minority. The State has
to be the unit for determining the minority and it would be
possible that a minority in Kerala may not be a minority in
W.P.(C) No.17873/2006 etc. – 261 –
Karnataka. Surely, if the religious minority institution is given
right to make admission even though of minority community
which are a majority in the other State, it would be a fraud on
the Constitution. It is in that context the observations came to
be made that bulk or majority of admission of minority
community has to be from within the State where the community
is a minority. Despite the observations made above, it has
further been observed that there could be a sprinkling of
admissions from across the border. There observations cannot
at all be construed to mean that the minority institutions aided
or unaided must necessarily admit 50% of its students from
within the community in that State. It may be recalled that
converse argument that minority institutions may not deny
admission to students of other communities was upheld, even
though the two provisions contained in Articles 29 and 30 were
reconciled. If a converse contention of giving admission to non-
minority community students was upheld, it cannot be a law that
minimum students admitted by minority institutions must be
50%. What appears to be the correct situation culled out from
W.P.(C) No.17873/2006 etc. – 262 –
the various Supreme Court decisions is that the intake of
community students in the concerned institution has to be
dependent upon variety of factors like what kind of institution it
is, whether primary, secondary, high school or professional or
otherwise, the population of that community in the State and to
the need of the area in which the institution is to be located. It
is by considering all these factors that the State may fix a
minimum intake of minority and non-minority students. It is
only in consideration of the factors as mentioned above, the ratio
of minority community and non-minority community students for
admission may be and can be determined. A fixed percentage
such as the 50% as a minimum limit of admission of students of
the same community would not be correct and therefore any
regulation or any provision of law such as Section 10(8) shall
have to be held to be unworkable, unreasonable, impractical as
also against the rights of minority institutions conferred on them
under Article 30 of the Constitution.
W.P.(C) No.17873/2006 etc. - 263 -
Fixation of Quotas
76. Section 10 of the Act 19 of 2006 has been
challenged with regard to all its main provisions. We have
already dealt with challenge to the first part of sub-section (8) of
Section 10. The challenge to the other part of sub-section (8)
and other sub-sections of Section 10 is to be considered now.
We have already reproduced Section 10 in its entirety as also the
supporting rules with regard to items provided under Section 10.
Section 10 pertains to all kinds of institutions, viz., minority;
non-minority; aided or unaided. It will be first useful to trace
allotment of seats as may pertain to professional colleges or
institutions other than minority. This would cover non-minority
professional colleges, whether aided or unaided. In this category
as well, it will be first useful to only examine the rules with
regard to non-minority but unaided college or institutions. Every
institution that we are dealing with is an unaided one, the
distinction is thus between minority and non-minority, and that
is why all these institutions are known as Self Financing. For
understanding the scheme of Section 10, it will be useful to
W.P.(C) No.17873/2006 etc. – 264 –
make a grid of 100. It would be seen that Section 10(1) would
relate to all colleges or institutions other than minority. In so far
as professional college or institution which is a non-minority but
is unaided is concerned, under item (a) 10% of total sanctioned
seats out of 100 shall be earmarked/reserved for Scheduled
Castes and Scheduled Tribes; under item (b) 25% of the total
sanctioned seats shall be earmarked/reserved for other socially
and educationally backward classes and under item (c) 3% of the
total sanctioned seats shall be earmarked/reserved for physically
challenged persons and under item (d) 12% of the total number
of sanctioned seats shall be earmarked/reserved for the other
sections of society not covered under items (a), (b) and (c) of
sub-section (1) on merit-cum-means basis. This would make a
reservation of 50%. By virtue of the first proviso to
sub-section (1) of Section 10, an unaided professional college or
institution would have an option to make reservation of 3% for
physically challenging persons and 12% for other sections of
society not covered by items (a), (b) and (c), on merit cum
means basis. In other words, the reservation as provided under
W.P.(C) No.17873/2006 etc. – 265 –
items (c) and (d) is to be provided only on consensus, on the
basis of mutual agreement arrived at between the institution and
the Government, which shall have to follow the principles as may
be prescribed. By virtue of the second proviso to Section 10(1),
admissions contemplated under items (b), (c) and (d) have to
be made in compliance with the rules as may be prescribed. As
per Rule 10(2), every professional college or institution shall
intimate its consent for admission of candidates under items (c)
and (d) of Section 10(1) within the time limit prescribed by
Government. As per Rule 10(3), if the managements may not
convey their consent within the time limit prescribed, it shall be
deemed that consent has been duly given for admissions under
items (c) and (d) of Section 10(1). By virtue of the provisions
contained in Section 10(2), 15% of seats in an unaided
professional college both from minority and non-minority can be
filled by candidates in the category of Non-Resident Indians.
The seats however, not filled in that category would be filled
from general merit. 15% of seats in an unaided professional
college both from minority and non-minority may be filled by
W.P.(C) No.17873/2006 etc. – 266 –
candidates in the category of privilege seats and seats not filled
in that category would be filled from general merit. 18% of total
number of sanctioned seats in an unaided minority institution
shall have to be filled from general merit quota by virtue of
Section 10(4). 2% of sanctioned seats have to be filled up from
among students who have made outstanding contribution in the
field of culture or sports. It would thus be seen that in a grid
of 100, in so far as unaided non-minority professional colleges
are concerned, there would be reservation of 82%. Out of 82%,
10% would be for SC/ST, 25% for Socially and Educationally
Backward classes, 3% for physically challenged persons, 10% for
other sections of society on merit cum means basis, 15% for
Non-Resident Indians, 15% for privilege seats and 2% for
outstanding contribution in sports or culture. It is no doubt true
that reservation as provided in items (c) and (d) i.e. 3% for
physically challenging persons and 12% for other sections of
society on merit cum means basis has to be determined by
consensus arrived at on the basis of mutual agreement between
the institution and government as per first proviso to Section
W.P.(C) No.17873/2006 etc. – 267 –
10(1). We shall deal with this consensual or mutually agreed
reservation later in point of time and would at this stage consider
the matter when all options may be exercised by the college in
making such reservation. It is apparent that if the options are
made to all the categories, it would come to 82%. If however,
there may not be any mutual consensus on the reservations
provided in items (c) and (d) of sub-section (1) of Section 10,
the reservation would come to 67%. The unaided professional
college may not fill seats under NRI category. It may not also fill
up 15% privilege seats. In that case, the compulsory
reservation would come to 37%. We would deal with the
situation when the institutions may not opt for reservation in
various categories as mentioned above but once such option is
available and it is exercised, as mentioned above, the
reservation would go to 82%. The questions in the context of
various kinds of reservations and percentage thereof would be
whether there is any reservation which may be impermissible
and may not have the sanction of Article 15(5) of the
Constitution, even as inserted; as also whether such percentage
W.P.(C) No.17873/2006 etc. – 268 –
of reservation is permissible in view of various judicial
precedents holding the field. We shall first deal with Sections
10(1)(c), 10(1)(d), 10(3) and 10 (5). Article 15(5) as inserted
by the Constitution (93rd Amendment) dated 21.1.2006 which
will be applicable on the same date reads as follows:
“Nothing contained in this article or in
sub-clause (g) of clause (1) of Article 19
shall prevent the State from making any
special provision, by law, for the
advancement of any socially and
educationally backward classes of citizens
or for the Scheduled Castes or the
Scheduled Tribes in so far as such special
provisions relate to their admission to
educational institutions including private
educational institutions whether aided or
unaided by the State, other than the
minority educational institutions referred
to in clause (1) of Article 30”.
We shall consider the provisions of reservation for the time being
in so far as they relate to unaided non-minority institutions.
W.P.(C) No.17873/2006 etc. – 269 –
Article 15(5) permits by way of special provision reservation for
socially and educationally backward classes or for Scheduled
Castes and Scheduled Tribes. In so far as reservations of 10%
for Scheduled Castes and Scheduled Tribes and 25% for other
Socially and educationally backward classes are concerned,
there may not be any exception to the same. The argument
with regard to non-permissibility of reservation even in the
context of Article 15(5) pertains to 3% of seats earmarked for
physically challenging persons, 12% of seats earmarked for
other sections of Society not covered under items (a), (b) and (c)
of Sec. 10(1) on merit-cum-means basis, 15% earmarked for
privilege seats under Section 10(3) and 2% earmarked for
outstanding contribution in culture and sports under Section 10
(5). These reservations it is urged cannot be protected on the
basis of the provisions contained in Article 15(5) of the
Constitution.
77. There appears to be considerable merit in the
contention raised by the learned counsel for the petitioners as
noted above. By virtue of the provisions of Article 15(5) of the
W.P.(C) No.17873/2006 etc. – 270 –
Constitution, notwithstanding anything contained in Article 15
itself or anything in Article 19(1)(g), the State by way of special
provision, by law, can provide for reservation for socially and
educationally backward classes of citizens and for Scheduled
Castes and Scheduled Tribes. Whether the reservation of 3%
provided for physically challenging persons and 12% for other
sections of Society not covered by items (a), (b) and (c), as also
reservation of 15% provided for privilege seats and 2% for
outstanding contribution in sports and culture, would have the
sanction of Article 15(5) of the Constitution. Physically
handicapped persons may be deserving reservation otherwise,
but such reservation cannot be protected by Article 15(5) of the
Constitution as surely, such categories may not be such as may
be identified as socially and educational backward nor it is
Scheduled Caste or Scheduled Tribes and it is only these two
categories for which by way of special provision by law
reservation can be provided under Article 15(5). So would be
true with regard to reservation provided for candidates who
made outstanding contribution in culture and sports. No doubt,
W.P.(C) No.17873/2006 etc. – 271 –
it is being urged by the State that 15% of privilege seats is for
the benefit of management, as they have been given an option
to make choice of the candidates, but it is emphatically urged by
the counsel for the institutions that they would not like to have
any such reservation as that would surely result into lowering the
standards of education. Be that as it may, it is certain that the
kind of reservation as mentioned above would not be protected
nor would have any sanction under Article 15(5) of the
Constitution. The question that thus arises is as to whether
when the management may make option of all reservations as
mentioned in various clauses of Section 10 and when it would
surely go up to 82%, would that be legally permissible, in view of
judicial precedents holding the field.
78. It is settled proposition of law by now that the
promotion or advancement of weaker elements in the society
needs to be balanced with consideration of national interest and
the interest of the community of the society as a whole. Article
15(4) provides that State can by special provision to legislate for
advancement of any socially and educationally backward classes
W.P.(C) No.17873/2006 etc. – 272 –
of citizens or for the Scheduled Castes or Scheduled Tribes.
There has been a debate eversince that the interest of the
weaker elements requires to be balanced with the interest of the
community of the society as a whole. In M.R.Balaji v. State of
Mysore, AIR 1963 SC 649, the Government of Mysore had by an
order reserved seats for backward classes in technical education
and the extent of reservation was 68%. It was urged that such
a high fixation of percentage would be inconsistent with the
provisions of Article 15(4) of the Constitution. While dealing with
the issue in the context of balancing the two interests as
mentioned above, it was held as follows:
“When Art.16(4) refers to the special
provision for the advancement of certain
classes or scheduled castes or scheduled tribes,
it must not be ignored that the provision which
is authorised to be made is a special provision;
it is not a provision which is exclusive in
character, so that in looking after the
advancement of those classes, the State would
be justified in ignoring altogether the
advancement of the rest of the society. It is
because the interest of the society at large
would be served by promoting the
advancement of the weaker elements in the
society that Art.15(4) authorises special
provision to be made. But if a provision which
is in the nature of an exception completely
W.P.(C) No.17873/2006 etc. – 273 –
excludes the rest of the society, that clearly is
outside the scope of Art.15(4). It would be
extremely unreasonable to assume that in
enacting Art.15(4) the Constitution intended to
provide that where the advancement of the
Backward Classes or the Scheduled Castes and
Tribes was concerned, the fundamental rights
of the citizens constituting the rest of the
society were to be completely and absolutely
ignored.
In this connection, it is necessary to
remember that the reservation made by the
impugned order is in regard to admission in the
seats of higher education in the State. It is
well known that as a result of the awakening
caused by political freedom, all classes of
citizens are showing a growing desire to give
their children higher university education and
so, the Universities are called upon to face the
challenge of this growing demand. While it is
necessary that the demand for higher
education which is thus increasing from year to
year must be adequately met and properly
channelised, we cannot overlook the fact that
in meeting that demand standards of higher
education in Universities must not be lowered.
The large demand for education may be met by
starting larger number of educational
institutions, vocational schools and
polytechnics. But, it would be against the
national interest to exclude from the portals of
our Universities qualified and competent
students on the ground that all the seats in the
Universities are reserved for weaker elements
in society.
xxx xxx xxx
W.P.(C) No.17873/2006 etc. – 274 –
Therefore in considering the question about the
propriety of the reservation made by the
impugned order, we cannot lose sight of the
fact that the reservation is made in respect of
higher university education. The demand for
technicians, scientists, doctors, economists,
engineers and experts for the further economic
advancement of the country is so great that it
would cause grave prejudice to national
interests if considerations of merit are
completely excluded by wholesale reservation
of seat in all technical, Medical or Engineering
colleges or institutions of that kind. Therefore,
considerations of national interest and the
interests of the community or society as a
whole cannot be ignored in determining the
question as to whether the special provision
contemplated by Art.15(4) can be special
provision which excludes the rest of the society
altogether.
xxx xxx xxx
The adjustment of these competing claims is
undoubtedly a difficult matter, but if under the
guise of making a special provision, a State
reserves practically all the seats available in all
the colleges, that clearly would be subverting
the object of Art.15(4). In this matter again,
we are reluctant to say definitely what would
be a proper provision to make. Speaking
generally and in a broad way, a special
provision should be less than 50 per cent; how
much less than 50 per cent would depend upon
the relevant prevailing circumstances in each
case. In this particular case, it is remarkable
that when the State issued its order on July 10,
1961, it emphatically expressed its opinion
that the reservation of 68% recommended by
W.P.(C) No.17873/2006 etc. – 275 –
the Nagan Gowda Committee would not be in
the larger interest of the State”.
In Indra Sahwney’s case, the majority held that rule of 50%
laid down in Balaji’s case was a binding rule and not a mere rule
of prudence. It was also held that Article 16(4) speaks of
adequate representation and not proportionate representation,
although proportion of population of backward classes to the
total population would certainly be relevant and that Article 16
(4) which protects the interest of certain sections of society has
to be balanced against Article 15(1) which protects the interest
of every citizen of the entire society. It should be harmonious
because they are resettlement of principles of equality under
Article 14.
79. A special provision to provide for reservation
must not go beyond 50% as in that situation, it would be against
the interest of the nation. Surely, in that event, it will be a
discrimination to non-reserved category and that is what is
adversely commented upon as reverse discrimination. This has
been the law all-through till date. It will be absolutely
W.P.(C) No.17873/2006 etc. – 276 –
unnecessary to refer to other judicial precedents as that would
burden this judgment which in the peculiar facts of the case is
to be in any case voluminous. We are also not referring to any
other case law on the point as it has remained undisputed that
a total reservation, be it in the matter of education or
employment, cannot go beyond 50%. The discordant view,
however, in the present case is that, it is not a case of more than
50% compulsory reservation. The compulsory reservation, as
submitted by Mr.Vaidyanathan, would not go beyond 50%.
What Mr.Vaidyanathan contends may be correct if options given
to the managements are not exercised. However, once the
options are available and can well be exercised, what shall then
happen. It is that situation which is permissible and may take
place in a particular year, or year after year, which has to be
taken into consideration in the context of Section 10. It is too
well known that constitutionality of a provision can be tested
even on hypothetical situation. In the present case, as
mentioned above, the reservation to the extent of 82% is not a
myth. It is a reality and as mentioned above may take place
W.P.(C) No.17873/2006 etc. – 277 –
every year and for all times to come. Where shall go in that
situation, the merit, for which alone it is urged on behalf of the
State that Act of 2006 has been enacted. Considering thus, the
contention raised by the learned counsel for the petitioners that
it is a case of reservation far beyond permissible limits in a
situation which is likely to happen, the court has no choice, but
to hold that extent of reservation is wholly impermissible,
illegal and unconstitutional. It is also against the law settled by
the Supreme Court which holds the field till date.
80. It is also urged by the counsel appearing for
the petitioners that if the college may consent to give
reservations which are optional as detailed above, the students
who may find selection by way of merit would be well within their
rights to challenge such option exercised by the management by
asserting that circumstances never existed for such a consent,
the converse shall also be true. In case, thus, the institutions
may not consent to optional reservations, candidates in the said
W.P.(C) No.17873/2006 etc. – 278 –
reserve category may challenge the same by pleading that
circumstances did exist that would justify their admission in such
reservation. This would open floodgates of litigation for the
management and the admission process shall never be
complete. There appears to be considerable merit in the
aforesaid contention of the learned counsel as well. Indeed a
piquant situation has been created where the institutions may
not be able to work out their affairs in either of two situations,
when they may exercise an option of reservation or when they
may not choose to do so.
81. Counsel for the petitioners would further contend
that the non-obstante clause in Article 15(5) would be limited to
Articles 15 and 19(1)(g). Articles 14, 21, 26 and 30 have been
left untouched and would thus apply. It is further urged that
special provisions contained in Article 15(5) must be reasonable
and proportionate, and that the term ‘special provision’ must be
subject to reasonableness. Article 15(5) cannot be used to
nationalise admission grids, it is further the contention of the
W.P.(C) No.17873/2006 etc. – 279 –
learned counsel appearing for the petitioners.
82. We have seriously considered the contention of
the learned counsel and are of the view that the same too has
merit. The provisions contained in Article 15(5) are
notwithstanding anything contained in Article 15 itself and Article
19(1)(g). Article 15 prohibits discrimination on the grounds of
religion, race, caste, sex or place of birth. Article 19(1)(g)
pertains to protection of the right of the citizens to practice any
profession, or to carry on any occupation, trade or business. The
provisions of Article 15(5) would apply irrespective of the
provisions contained in Article 15 prohibiting discrimination on
the grounds of religion, race, caste, sex or place of birth and also
the fundamental right of citizens under Article 19(1)(g) to
practice any profession. The running of an educational
institution has already been held to be a profession within the
meaning of Article 19(1)(g). Despite the provisions contained in
Article 15 and 19(1)(g), the State would have competence to
legislate by special provision for advancement of any socially and
W.P.(C) No.17873/2006 etc. – 280 –
educationally backward classes or Scheduled Castes and
Scheduled Tribes in the matter of education to educational
institutions. The special laws that may thus be made, would
not be subject to Articles 15 and 19(1)(g), but the same
would be certainly subject to the provisions contained in Articles
14, 21, 26 and 30 of the Constitution. If the special laws in the
matter of admission would thus be subject to Article 14, it shall
have to be seen whether the provisions of Section 10 of the Act
of 2006 are reasonable and proportionate. The special
provisions would be subject to reasonableness. What is
reasonable and proportionate has been the subject matter of
debate and decision by the Supreme Court from 1956 to 2006.
In State of Madras v. V.G. Row, (AIR 1956 SC 196), the
Supreme Court held as follows:
“The test of reasonableness, wherever
prescribed, should be applied to each
individual statute impugned, and no abstract
standard, or general pattern of reasonableness
can be laid down as applicable to all cases.
The nature of the right alleged to have been
infringed, the underlying purpose of the
W.P.(C) No.17873/2006 etc. – 281 –
restrictions imposed, the extent and urgency
of the evil sought to be remedied thereby, the
disproportion of the imposition, the prevailing
conditions at the time, should all enter into the
judicial verdict. In evaluating such elusive
factors and forming their own conception of
what is reasonable, in all the circumstances of
a given case, it is inevitable that the social
philosophy and the scale of values of the
judges participating in the decision should play
an important part, and limit to their
interference with legislative judgment in such
cases can only be dictated by their sense of
responsibility and self-restraint and the
sobering reflection that the Constitution is
meant not only for people of their way of
thinking but for all, and that the majority of
the elected representatives of the people have,
in authorizing the imposition of the
restrictions, considered them to be
reasonable.”.
In Teri Oat Estates (P) Ltd., v. U.T. Chandigarh, (2004) 2
SCC 130, it was held thus:
W.P.(C) No.17873/2006 etc. – 282 –
“By proportionality, it is meant that
the question whether while regulating exercise
of fundamental rights, the appropriate or least
restrictive choice of measures has been made
by the legislature or the administrator so as to
achieve the object of the legislation or the
purpose of the administrative order, as the
case may be. Under the principle, the court
will see that legislature and the administrative
authority maintain a proper balance between
the adverse effects which the legislation or the
administrative order may have on the rights,
liberties or interests of persons keeping in
mind the purpose which they were intended to
serve”.
It was further held that,
“Ever since 1952, the principle of
proportionality has been applied vigorously to
legislative and administrative action in India.
While dealing with the validity of legislation
infringing fundamental freedoms enumerated in
Article 19(1) of the Constitution of India, this
Court has occasion to consider whether the
restrictions imposed by legislation were
disproportionate to the situation and were not
the least restrictive of the choices. In cases
where such legislation is made and the
restrictions are reasonable; yet, if the statute
concerned permitted administrative authorities
W.P.(C) No.17873/2006 etc. – 283 –
to exercise power or discretion while imposing
restrictions in individual situations, question
frequently arises whether a wrong choice is
made by the administrator for imposing the
restriction or whether the administrator has not
properly balanced the fundamental right and
the need for the restriction or whether he has
imposed the least of the restrictions or the
reasonable quantum of restrictions etc. In such
cases, the administrative action in our country
has to be tested on the principle of
proportionality, just as it is done in the case of
main legislation. This, in fact, is being done by
the courts. Administrative action in India
affecting the fundamental freedom has always
been tested on the anvil of the proportionality
in the last 50 years even though it has not
been expressly stated that the principle that is
applied is the proportionality principle.”.
As recently as on 19th October, 2006 and during the course of
arguments in this case, the Constitution Bench in N.Nagraj v.
Union of India, (2006) 8 SCC 212 held that,
“The point which is important to be
noted is that principles of federalism,
secularism, reasonableness and socialism etc.,
are beyond the words of a particular statute”.
It was further held that,
“Therefore, axioms like secularism,
democracy, reasonableness, social justice etc.,
W.P.(C) No.17873/2006 etc. – 284 –
are overarching principles which provide a
linking factor for principle of fundamental rights
like Articles 14, 19 and 21. These principles
are beyond the amending power of Parliament.
They pervade all enacted laws and they stand
at the pinnacle of the hierarchy of
constitutional values.”.
The Supreme Court in N.Nagraj’s case touched on variety of
factors, some of which are applicable to the facts of the present
case. Before we may cull out the principles laid down in Nagraj’s
case, it will be appropriate to find out even though in brevity the
facts of the said case and the propositions of law that were
mooted and commented upon.
83. A writ under Article 32 of the Constitution came
to be filed before the Supreme Court seeking a writ in the
nature of certiorari to quash the Constitution (85th Amendment)
Act, 2001 inserting Article 16(4A) retrospectively from 17.6.1995
providing for reservation in promotion with consequential
seniority as being unconstitutional and violative of the basic
structure. One of the arguments raised in challenging the said
W.P.(C) No.17873/2006 etc. – 285 –
amendment was that the same would seek to alter the the
fundamental right of equality which is a part of the basic
structure of the Constitution. It was urged that equality in the
context of Article 16(1) connotes ‘accelerated promotion’ which
was not to include consequential seniority, and thereby
attaching of consequential seniority to the accelerated promotion
would violate the equality in Article 14 read with Article 16(1).
It was also urged that the same would impair efficiency. The
challenge was also to Constitution (77th Amendment) Act of
1995. It was urged that if accelerated seniority is given to the
roster-point promotees, the consequences would be disastrous.
The consequences of the impugned 85th Amendment which
provides for reservation in promotion with consequential
seniority, would result in reverse discrimination in the
percentage of representation of the reserved category officers in
the higher cadre. .
84. While considering the contentions as mentioned
above on the basis of Articles 16(1), 16(4) and 335 of the
Constitution of India, in the context of challenge to the 85th
W.P.(C) No.17873/2006 etc. – 286 –
amendment of the Constitution and in view of the provisions
contained in Article 14, it was observed that, enabling provisions
are permissive in nature. These are enacted to balance equality
with positive discrimination. The constitutional law is the law of
evolving concepts. Some of them are generic, others have to be
identified and valued. The enabling provisions deal with the
concept, which has to be identified and valued as in the case of
access vis-a-vis efficiency, which depends on the fact-situation
only and not abstract principle of equality in Article 14 as spelt
out in detail in Articles 15 and 16. Equality before the law,
guaranteed by the first part of Article 14, is a negative concept
while the second part is a positive concept which is enough to
validate equalizing measures depending upon the fact-situation.
While dealing with the test to judge the validity of the impugned
State Acts, it was observed as follows:
“As stated above, the boundaries of
the width of the power, namely the ceiling limit
of 50% (the numerical benchmark), the
principle of creamy layer, the compelling
reasons, namely, backwardness, inadequacy of
W.P.(C) No.17873/2006 etc. – 287 –
representation and the overall administrative
efficiency are not obliterated by the impugned
amendments”.
The other pertinent observations read as follows:
“Therefore, in our view, equality as a
concept is retained even under Article 16(4A)
which is carved out of Article 16(4).
xxx xxx xxx
The test for judging the width of the power and
the test for adjudicating the exercise of power
by the concerned State are two different tests
which warrant two different judicial
approaches. In the present case, as stated
above, we are required to test the width of the
power under the impugned amendments.
Therefore, we have to apply “the width test”.
In applying the “the width test” we have to see
whether the impugned amendments obliterate
the constitutional limitations mentioned in
Article 16(4), namely, backwardness and
inadequacy of representation. As stated above,
these limitations are not obliterated by the
impugned amendments. However, the
question still remains whether the concerned
W.P.(C) No.17873/2006 etc. – 288 –
States has identified and valued the
circumstances justifying it to make reservation.
This question has to be decided case-wise.
There are numerous petitions pending in this
Court in which reservations made under State
enactments have been challenged as excessive.
The extent of reservation has to be decided on
facts of each case. The judgment in Indra
Sawhney does not deal with constitutional
amendments. In our present judgment, we are
upholding the validity of the constitutional
amendments subject to the limitations.
Therefore, in each case, the Court has got to be
satisfied that the State has exercised its
opinion in making reservations in promotions
for SCs and STs and for which the concerned
State will have to place before the Court the
requisite quantifiable data in each case and
satisfy the Court that such reservations became
necessary on account of inadequacy of
representation of SCs/STs in a particular class
or classes of posts without affecting general
efficiency of service as mandated under Article
335 of the Constitution.
xxx xxx xxx
W.P.(C) No.17873/2006 etc. – 289 –
Reservation is not in issue. What is in issue is
the extent of reservation. If the extent of
reservation is excessive, then it makes an
inroad into the principles of equality in Article
16(1). Extent of reservation, as stated above,
will depend on the facts of each case.
Backwardness and inadequacy of
representation are compelling reasons for the
State Governments to provide representation in
public employment. Therefore, if in a given
case, the court finds excessive reservation
under the State enactment, then such an
enactment would be liable to be struck down
since it would amount to derogation of the
above constitutional requirements”.
While concluding the judgment, it was observed thus:
“The impugned constitutional
amendments by which Articles 16(4A) and
16(4B) have been inserted flow from Article
16(4). They do not alter the structure of
Article 16(4). They retain the controlling
factors or the compelling reasons, namely,
backwardness and inadequacy of
W.P.(C) No.17873/2006 etc. – 290 –
representation which enables the States to
provide for reservation keeping in mind the
overall efficiency of the State administration
under Article 335. These impugned
amendments are confined only to SCs and
STs. They do not obliterate any of the
constitutional requirements, namely, ceiling
limit of 50% (quantitative limitation), the
concept of creamy layer (qualitative
exclusion), the sub-classification between
OBC on one hand and SCs and STs on the
other hand as held in Indra Sawhney, the
concept of post-based Roster with in-built
concept of replacement as held in
R.K.Sabharwal.
We reiterate that the ceiling limit of
50%, the concept of creamy layer and the
compelling reasons, namely, backwardness,
inadequacy of representation and overall
administrative efficiency are all
constitutional requirements without which
the structure of equality of opportunity in
Article 16 would collapse. However, in this
case, as stated, the main issue concerns
the “extent of reservation”. In this regard,
W.P.(C) No.17873/2006 etc. – 291 –
the concerned State will have to show in
each case the existence of the compelling
reasons, namely backwardness, inadequacy
of representation and overall administrative
efficiency before making provision for
reservation.”.
85. Mr.Rajeev Dhavan, learned counsel for the
petitioners contends that Article 15(5) permits special provisions
but the same have to be reasonable and proportionate. The
judgment of the Supreme Court in Nagraj’s case would apply
irrespective of the fact that whereas reservation has been
provided for Scheduled Castes/Scheduled Tribes and socially and
educationally backward classes in the matter of education,
whereas the challenge in Nagraj’s case was to Article 16(4A)
inserted by 85th amendment. The provisions for reservation, be
it in admission to educational institutions or in service matters
shall have to be reasonable and proportionate.
Mr.Vaidyanathan, learned Senior Counsel representing the State
has not endeavoured to make any distinction between Articles
dealing with reservation in service or accelerated promotion in
W.P.(C) No.17873/2006 etc. – 292 –
service or reservation in admission to educational institutions
when tested on reasonableness and proportionality.
86. In Indra Sawhney v. Union of India, (Mandal
Case), 1992 Supp (3) SCC 217, while dealing with the
identification of other backward classes it was observed that
there should be a permanent body, in the nature of Commission
Tribunal, to which complaints of wrong inclusion or non-inclusion
of groups, classes and sections in the lists of Other Backward
Classes can be made. It was further observed that,
“It is equally desirable that each State
constitutes such a body which step would go a
long way in redressing genuine grievances. Such
a body can be created under clause (4) of Article
16 itself – or under Article 16(4) read with Article
340 – as a concomitant of the power to identify
and specify backward class of citizens, in whose
favour reservations are to be provided. We
direct that such a body be constituted both at
Central level and at the level of the States within
four months from today. They should become
immediately operational and be in a position to
entertain and examine forthwith complaints and
matters of the nature aforementioned, if any
received. It should be open to the Government
of India and the respective State Governments
to devise the procedure to be followed by such
body. The body or bodies so created can also be
consulted in the matter of periodic revision of
lists of OBCs. As suggested by Chandrachud,
W.P.(C) No.17873/2006 etc. – 293 –
CJ., in Vasanth Kumar (1985 Supp SCC 714),
there should be a periodic revision of these lists
to exclude those who have ceased to be
backward or for inclusion of new classes, as the
case may be.”.
In Atyant Pichhare Barg Chhatra Sangh v. Jharkhand
State Vaishya Federation, 2006 (7) SCALE 579, the challenge
was in amalgamating two classes, namely, Backward Classes and
Extremely Backward Classes and the reduction of reservation
from 12% and 9% respectively to 14% only for the purpose of
admission in professional educational institutions. The question
that was raised pertained to reservation in professional
educational institutions for extremely backward classes in the
State of Jharkhand. The State of Jharkhand had provided 73%
reservation for appointments in Government Services adopting
the Bihar (Scheduled castes, Scheduled Tribes and Backward
Classes) Reservation Act, with certain modifications vide
notification dated 3.10.2001. While considering the question as
mentioned above, the Supreme Court observed as follows:
“It was argued by the learned
counsel appearing for the respondents that the
Central Government is following the policy of
W.P.(C) No.17873/2006 etc. – 294 –
clubbing the Extremely Backward Classes with
the Backward Classes. In our opinion, it does
not justify Jharkhand following the same policy.
Jharkhand Government will look into the facts
and circumstances that are peculiar to it by
appointing an Expert Commission or a Body as
has been provided for in the Mandal
Commission’s case which can inquire into the
representations/complaints made over
under-inclusion and over-inclusion and make
binding recommendations. As rightly pointed
out by the learned senior counsel appearing for
the appellants, the Division Bench failed to
notice that the Government did not provide any
material on record which have justified
amalgamation of the two classes of people nor
were any documents, relevant materials or any
reports as produced to show a change in
circumstances as was alleged by the
Government. Before taking the decision to
amalgamate two classes, the relevant factors
were not taken into account.”.
87. From the judicial precedents mentioned above, it
will be clear that the non-obstante clause in Article 15(5) would
be limited to that Article and Article 19(1)(g) whereas Articles
14, 21, 26 and 30 have specifically been excluded. The rights of
minorities have been specifically excluded. Article 15(5) is for
the benefit of Scheduled Castes/Scheduled Tribes and socially
and educationally backward classes only and no one else, and
W.P.(C) No.17873/2006 etc. – 295 –
that the Article 15(5) is a special provision which must be
reasonable and proportionate. The special provisions are always
subject to reasonableness. In the context of the law laid down
by the Honourable Supreme Court in the judicial precedents as
mentioned above, it can well be said in the context of the Act
under challenge that it provides for a grid of 100% to regulate
all admissions by creating eight categories leaving the pure
merit candidates with clear and open chance to an extent of
18% and not more. The allocation of seats under Section 10(1)
(a) and (b) relating to SC/ST and socially and educationally
backward classes are fixed at 10% and 25% respectively,
without taking into consideration any data or determining factors
for determining the percentage of reservation. The creamy layer
has not been excluded. There is indeed allocation of 15% of
seats in NRI category and 15% of students can be admitted in
the privilege seats as per Section 10 (2) and 10(3), but
cumulatively these reservations/allocation would cut into merit
quota. We have already referred to some reservations which
are wholly impermissible under Article 15(5). The cumulative
W.P.(C) No.17873/2006 etc. – 296 –
effect of the factors mentioned would make Section 10 illegal
and unconstitutional; the same would be neither reasonable nor
proportionate.
88. Before we may part with the challenge to Section
10, we may mention the defence sought to be projected by the
State, even though in view of the law laid down as above, the
same may not be of much meaning and consequence. It is
urged by Mr.Vaidyanathan that in so far as non-minority
institutions are concerned, the challenge to Sections 10(1)(a)
and 10(1)(b) are unsustainable in view of the express power
conferred by Article 15(5) of the Constitution which to that
extent would prevail over the prior declaration of law made in
Inamdar’s case. There cannot be any exception to the
contention raised by Mr.Vaidyanathan, but the challenge is to
Section 10 as a whole. In fact, the case of the petitioners is
that if other provisions of Section 10 may not sustain, the whole
of Section 10 shall have to be declared as invalid. We will deal
with that part hereinafter. Suffice it to say that challenge to
Section 10 as a whole is primarily on the ground that it is neither
W.P.(C) No.17873/2006 etc. – 297 –
reasonable nor proportionate, and on this contention raised by
the learned counsel for the petitioners, there is hardly any
defence. It is then urged by Mr.Vaidyanathan that provisions in
Section 10(2) in respect of reservation for NRI seats is in line
with the decision of the Supreme Court in Inamdar’s case. That
may be so, and may be the institutions would like to have this
quota to an extent the students may be available in that
category, but then again as mentioned above, the challenge is to
Section 10 in its entirety. It is then urged on behalf of the State
that Section 10(2) read with Section 2(q) is an option given to
both minority and non-minority institutions for filling up 15% of
seats under the category of privilege seats. It is purely optional
and there is no compulsion. If the institutions do not desire to
fill up these categories with their choice of candidates as
prescribed, the said seats will be filled up from the general merit
seats. This contention is countered by the learned counsel for
the petitioners by stating that even though such a quota is
optional, but if opted it will cut upon merit seats, which will be
reduced to 18 out of the grid of 100. Mr.Vaidyanathan also
W.P.(C) No.17873/2006 etc. – 298 –
contends that assumption that only 18% seats are to be filled
from general merit seats relying on Section 10(4) is incorrect
and that is a mandatory minimum. The mandatory reservation
is only in respect of 10% for Scheduled Castes/Scheduled Tribes,
25% for other socially and economically weaker sections and 2%
for students who have made outstanding contribution in the field
of culture and sports. It is open to the institutions to fill up the
entire balance of 63% of the seats from the general merit list of
Common Entrance Test. The question as mentioned above is
not, if the management may not opt for such a quota. The
question is if they opt for such a quota, which they can and may
in all probability do, then merit seats would be only 18% and not
more. The options contained in Sections 10(1)(c) and 10(1)(d)
have already been dealt by us. It is also the contention of the
State that in so far as unaided minority professional colleges or
institutions are concerned, they can fill the entirety of seats (i.e.
100% of seats) from out of the students belonging to the
minority community to which the colleges/institutions belong.
That is, however, not the question that has been posed by the
W.P.(C) No.17873/2006 etc. – 299 –
petitioners. The question we repeat is what shall happen when
options are exercised and to that question there is no plausible
answer coming from the State.
SEVERABILITY
89. The last limb of argument pertains to
non-severability of valid and invalid provisions of the Act 19 of
2006. It is urged on behalf of the petitioners that the provisions
of the Act are so intermixed and connected with each other that
when invalid clauses may be struck down, the remaining
provision shall not be severable and therefore, shall also have to
be set aside. For the proposition that if the invalid parts of the
statute are not severable, the whole of the Act is to be struck
down, reliance is placed upon the decision of the Supreme
Court in R.M.D.Chamarbaugwalla v. Union of India, AIR
1957 SC 628. The doctrine of severability is not in dispute, but
it is urged on behalf of the State that even if the court may find
some provisions to be offending the provisions of the
Constitution and therefore not sustainable, the rest of the
provisions would be severable and there is no need to strike
W.P.(C) No.17873/2006 etc. – 300 –
down the entire Act. We accept this contention. The provisions
of the Act can be divided into two main categories. Whereas,
one category would be with regard to procedure for admission,
fixation of fee structure, determining factors of minority and
quota; the other an entirely separable part would be with regard
to constitution of the Admission Supervisory Committee as per
Section 4, and Fee Regulatory Committee as per Section 6 of the
Act. The Admission Supervisory Committee would consist of
members as mentioned above, which may adopt its own
procedure for conduct of its business. The Committee can
supervise and guide the process of admission of students to
unaided professional colleges or institutions with a view to
ensure that the entire process is fair, transparent, merit based
and non-exploitative. It would have the power to hear
complaints with regard to admission in contravention of the
provisions of the Act, it would have the power to impose fine, or
even recommend for withdrawal of recognition/affiliation. The
Fee Regulatory Committee shall consist of members as
mentioned above. The Committee shall adopt its own procedure
W.P.(C) No.17873/2006 etc. – 301 –
for the conduct of its business. There cannot be any exception
to the constitution of these Committees and the power given to
them. Such Committees have indeed been envisaged and even
ordered temporarily till such time law is enacted, even as per the
decisions relied on by the learned counsel for the parties as
mentioned above. These provisions are wholly unconnected
with the other part of the provisions as referred to above. There
is no occasion at all thus, to set aside the whole Act as urged by
the counsel representing the petitioners. Sections 4 and 6
constituting two Committees are valid, constitutional and have
the sanction of law as determined by the Supreme Court. These
Committees, indeed, need to be constituted to supervise the
admission procedure which has to satisfy the triple test of fair,
transparent and non-exploitative procedure for admission as
also fix the fee which cannot have the element of profiteering
and in fact has to be determined considering various factors as
mentioned above, keeping in view the future development of the
institution. The Committees would ensure transparency in
admission and fixation of fee. These provisions are wholesome
W.P.(C) No.17873/2006 etc. – 302 –
and the need of the hour.
90. In so far as, however, Section 10 is concerned,
the same has valid and invalid provisions and the valid provisions
are such which cannot be separated from the invalid provisions,
and therefore, the whole of Section 10 has to be set aside.
The provisions of Section 10(1)(a) and 10(1)(b) are permissible
and have the sanction of Article 15(5) of the Constitution. We
may only mention here that vires of Article 15(5) are not under
challenge in these petitions. There are certain petitions which
we have separated in which Article 15(5) is also challenged.
Subject to such challenge, the provisions of Section 10(1)(a) and
10(1)(b) are valid, but the same are so intermixed with other
provisions that the same have to be set aside even though
reluctantly. We have already referred to impermissible quotas
which cannot be protected under Article 15(5) of the
Constitution. The said impermissible quotas are 3% of seats
meant for physically challenged persons, 12% of seats for other
sections of Society not covered under items (a), (b) and (c) of
Section 10(1), 2% of students who might have made
W.P.(C) No.17873/2006 etc. – 303 –
outstanding contribution in the field of culture and sports. If
impermissible categories of reservation are set set aside, how
shall these seats be worked out. There may be provision for
interchangeability in the case of non-availability of students, but
not in the event of provisions providing reservation to specified
categories becoming invalid and no admission being made from
the said categories. Further, if merit seats are only 18 out of
100, to make it more than 50 which category shall have to be
deleted would not be known. It will not be possible for the court
to reduce the option of the managements under the NRI seats or
privilege seats so as to enhance merit seats to 50% or more.
The institutions have been given the option and as mentioned
above, they can exercise it. The court cannot in any case order
reduction of any such seats. Still further, there are provisions
for surrender and rotation of seats. The court can also not order
the institution to surrender the seats as that is their option. The
increase of merit seats to 50% or more by surrender cannot be
enforced by court. If some of the quotas may be impermissible,
how shall rotation take place is again difficult to guess. That
W.P.(C) No.17873/2006 etc. – 304 –
apart, the scheme of the Section is such that whereas freeship
are envisaged particularly with regard to Section 10(1)(a) and 10
(1)(b), the provision for NRI and Privilege seats are envisaged in
Sections 10(2) and 10(3). These provisions are related to the
structure of fee, as mentioned above, the fees paid by the NRI
and privilege seats would appear to balance the budget of the
institutions. If NRI or privilege seats are reduced or set at
naught, it will not be possible for the institutions to manage their
budget, they shall not at all be able to run the affairs of the
institution and might have to be closed down. At this stage, it is
necessary to refer to second part of Section 10(8) which enjoins
the minority community institutions to provide freeship to 50%
of seats as mentioned in the first part of Section 10(8). The
institutions have thus to provide free or partly free seats not only
to the categories mentioned in Section 10(1), but also to 50% of
the 50% students of its community. It would take freeship or
partly freeship to almost 75% and in that situation, if the profit
seats like NRI and/or Privilege seats are reduced, so as to raise
the merit seats, it will be a complete shut down or closure of the
W.P.(C) No.17873/2006 etc. – 305 –
institution. The provisions of Section 10 are so inextricably
interwoven that they are not separable. It is not a case of ironing
out the creases. If perhaps, the court could protect the provisions
contained in sub-sections 1(a) and (b) of Section 10, it would have
done so, but that would amount to rewriting or enacting the law by
the Court, which is not permissible. The reservation for SC/ST and
other backward classes is permissible. As mentioned above, there
cannot be any exception to the same, subject to the validity of Article
15(5). The Government would be well within its rights to provide
reservation for classes as mentioned above and may do even now but
the same has to be done after taking into consideration the factors as
enumerated above. The Government may even now take steps to
redraft the Section, provide for such reservation even by an Ordinance
or such other measures as may be permissible till such time Section
10 is suitably substituted keeping in view the parameters of providing
quotas as determined by the Supreme Court from time to time as also
keeping in view the upper limit of reservation.
91. Before we may draw our conclusions on
the basis of the discussion mentioned above, we would
W.P.(C) No.17873/2006 etc. – 306 –
like to mention that the Government appeared to be in an
extreme hurry in bringing about the Act of 2006. This
observation, we are making, on the basis of counter affidavit
filed by the State itself, wherein it is stated that the present
Government of the State assumed office on 18.5.2006. One of
the prime initiatives of the Government was to fulfil the promise
given to the people in regard to bringing in legislation to regulate
unaided colleges. Specific promises were made in respect of
regulating unaided educational institutions. Immediately after
assuming office the Government took steps to bring in proposed
legislation. The Bill was introduced on 22nd June, 2006 in the
very first session of the Legislative Assembly. It was examined
by the Subject Committee and unanimously passed by the
Assembly in the early hours of 30th June, 2006. The Governor
gave assent to the Bill on 2nd July, 2006. It appears to this Court
that the Government hurried in passing the Act without much
deliberations simply with a view to fulfil its electoral promises.
We are so observing as almost the entire Preamble of the Act
makes statements of law supposedly culled out from three
W.P.(C) No.17873/2006 etc. – 307 –
leading judgments referred to above. It appears that in its
anxiety to fulfil the promise to the electorate only stray
sentences were picked up from the three judicial precedents
without taking into consideration the reference and context in
which they were made. It may be recalled that a Constitution
Bench of seven Judges was constituted in Inamdar’s case,
primarily with a view to clarify the law laid down in T.M.A.Pai’s
case and Islamic Academy’s case. The educational institutions
and the Government were interpreting these judgments in their
favour. They were so interpreting these judgments in their
favour as some observations were made in favour of both. It is
interesting to note that even at this stage, when the Constitution
Bench has rendered the judgment in Inamdar’s case, both
parties are relying upon the same judgment. It is thus clear
that there are some sentences which may go in favour of the
petitioners and others in favour of the State. The State appears
to have picked up only such sentences or observations which go
in their favour, be it T.M.A.Pai’s case, Islamic Academy’s case or
Inamdar’s case. However, while doing so, the State ought to
W.P.(C) No.17873/2006 etc. – 308 –
have seen the reference and context in which such observations
were made. It is for that reason that at the very outset the
Constitution Bench in Inamdar’s case mentioned that “it is
dangerous to take one or two observations out of a long
judgment and to treat the same as if they give the ratio
decidendi of the said case”. The statements of law made in the
Preamble around which the Act of 2006 has been hedged appear
to be by making a vital mistake of taking one or two
observations out of the long judgment and treating the same to
be the ratio decidendi of the case.
92. We may also mention that Self Financing
Educational Institutions which are imparting quality education or
which may by regulations impart such education need to be
encouraged. The State for variety of reasons and in particular,
paucity of resources and funds, is unable to cater for the need of
the Society. It is unable to provide quality education to all
commensurate to the need of the Society. It is unable to provide
quantitative and qualitative education to all. The students
clamouring for education are far more commensurate to the
W.P.(C) No.17873/2006 etc. – 309 –
educational institutions established by the Government.
Unnecessary and unproductive regulations which may virtually
amount to take over of such reputed institutions would be
counter productive. The day to day monitoring of the
institutions and choking them financially may result in their
closure. Such regulatory measures would do far more harm than
the good they might be intended to do. Would closure of such
institutions which are sharing the responsibility of the
Government in imparting education in the Society not defeat the
very requirement of education in the country is the question
which has to be seriously pondered over. It is equally true that
such strata of the society who may be socially or economically
weak also deserves quality education. A balance has thus to be
struck. Far from striving to strike a balance, whereas it is the
endeavour of the Government to virtually take over these
institutions, the institutions may also be finding all ways and
means to breathe free, thus resulting into continuous litigation
which has brought no tangible results. A time has come when
this complex problem needs to be resolved amicably. The
W.P.(C) No.17873/2006 etc. – 310 –
Government and Managements of the private educational
institutions need to work in tandem both aiming to take
education to its pinnacle. Whereas, it should be the endeavour
of the Government to encourage Self Financing Institutions and
yet control imparting of quality education and non-exploitation
of students, the institutions must also endeavour to
accommodate as many students as may be possible, who may
not be as fortunate as their counter-parts coming from affluent
strata of the Society. As long as this is not sincerely felt by the
Government and the institutions, it appears to us that there will
be no end of litigation in this country. The court can only hope
that everyone would understand its responsibility and work for
the common goal to uplift the standard of education and to
ensure quality education to all, rich and poor.
93. At the end, we place on record our appreciation
of able assistance given to the Court by Mr.Andyarujina,
Mr.Rajeev Dhavan, Mr.Vivek Tanka, Senior Advocates and other
counsel appearing for the petitioners as also Mr.Vaidyanathan,
Senior Advocate and Sri.C.P.Sudhakara Prasad, Advocate
W.P.(C) No.17873/2006 etc. – 311 –
General, Kerala.
94. In view of the discussions made above, we hold
the provisions contained in Section 3, 7, 8(b) and (c), and 10 of
the Act of 2006 and Rules 10 and 11 of the Rules to be invalid
and ultra vires the Constitution and thus set aside the same.
The provisions mentioned above are opposed to Article 14 and
would also violate the fundamental rights of the
petitioner-institutions under Articles 19(1)(g), 26(a) and 30 of
the Constitution of India. The Writ Petitions are allowed to the
above extent. In view of the peculiar facts and circumstances of
the case, the costs are made easy.
Sd/-
V.K. BALI,
CHIEF JUSTICE.
Sd/-
P.R. RAMAN,
JUDGE.
DK
(True copy)