Consortium Of Professional Arts … vs Permanent Committee For The … on 13 July, 2004

       

  

  

 
 
 IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 13/07/2004

CORAM

THE HONOURABLE MR.JUSTICE D.MURUGESAN

W.P.No.16034 of 2004
and W.P.Nos., 16068, 16095, 16444 to 16447, 16659 to 16662, 17383 of 2004
and
W.P.M.P.Nos.19009, 19041, 19061, 19430, 19432, 19434, 19436, 19707,
19709, 19711, 19713 and 20644 of 2004


Consortium of Professional Arts and
Science Colleges in Tamil Nadu
represented by its Secretary
No.29, Old No.12,
Ganapathy Street, Royapettah,                   Petitioner in
Chennai-14                                      ..  W.P.No.16034 of 2004

Forum of Tamil Nadu Minority Self-
Financing Engineering Colleges
represented by its President
Mr.R.S. Munirathinam,
No.29, Old No.12, Ganapathy Street          Petitioner in
Royapettah, Chennai-14                  ..  W.P.No.16068 of 2004


Tamil Nadu College of Engineering
represented by its Secretary and
Correspondent, Dr.P.V. Ravi

Karumathapatti, Avinashi Road,      Petitioner in
Coimbatore                      ..  W.P.No.16095 of 2004


Mohammed Sathak Trust represented by
its Chairman Dr.S.M.Hamid Abdul Quader
144/1, Nungambakkam High Road               Petitioner in
Chennai-34                              ..  W.P.No.16444 of 2004


The Gulf Returnees Educational Society
represented by its General Secretary
Dr.  G.  George, H.22, East Court               Petitioner in
Anna Nagar East, Chennai-102            ..  W.P.No.16445 of 2004

Erode Sengunthar Engineering College
represented by its Correspondent
J.Sudhanandhen, Thudupathi                  Petitioner in
Perundurai Taluk, Erode District        ..  W.P.No.16446 of 2004
M.P.Nachimuthu M.Jagannathan Engineering
College represented by its Correspondent

J.  Sudhanandhen, Chennimalai           Petitioner in
Perundurai Taluk, Erode District        ..  W.P.No.16447 of 2004


Deen Dayal Education and Health Trust
represented by its Chairman D.T.D.Naidu
61, Deen Dayal Nagar
Kunnavalam Post,
Chennai to Tirupathy N.H                    Petitioner in
Tiruvallur Taluk and District           ..  W.P.No.16659 of 2004


Arulmigu Kalasalingam College
of Engineering represented by
its Chairman, T. Kalasalingam
14, Sriman Srinivasan Road                  Petitioner in
Alwarpet, Chennai-18                    ..  W.P.No.16660 of 2004

SKR Engineering College represented
by its Chairman A.M. Srinivasan
Nazarethpet, Poonamallee                Petitioner in
Chennai-103                             ..  W.P.No.16661 of 2004

Anand Institute of Higher Technology
represented by its Chairman
T.Kalasalingam
Kalasalingam Nagar,
Old Mahabalipuram Road
Kazhipattur Tiruporur Taluk,                    Petitioner in
Kancheepuram District                   ..  W.P.No.16662 of 2004


All India Medical and Engineering
Colleges Association (Reg.No.128/2004)
represented by its President
Dr.T.D. Naidu,
5110, H Block, I Street
12th Main Road, Anna Nagar                  Petitioner in
Chennai-40                              ..  W.P.No.17383 of 2004

-Vs-

1. Permanent Committee for the conduct
   of Common Entrance Test
   represented by its Member-Secretary
   Higher Education Department
   Secretariat, Chennai-9



2. The Government of Tamil Nadu
   represented by its Secretary
   Higher Education Department
   Chennai-9

3.  Anna University                     Respondents 1 to 3
   represented by its Registrar         in all the writ
Chennai-25                              ..      petitions

4. All India Council for Technical
   Education represented by its Director
   Southern Regional Office

Sastri Bhavan, No.26, Haddows Road 4th respondent in
Chennai-6 .. W.P.No.16095 of 2004

Writ Petitions filed under Article 226 of The Constitution of India,
praying this Court to issue a Writ of Certiorarified Mandamus, as stated
therein.

!For petitioner in      Mr.  R.  Krishnamoorthy
W.P.No.16034/2004 ..  Senior Counsel for
                Mr.V.Ayyathurai

For petitioner in       Dr.  Rajeev Dhavan
W.P.No.16068/2004 ..  Senior Counsel for
                        Mr.R.S.Jeevarathinam

For petitioner in               Mrs.  Nalini Chidambaram
W.P.No.16095/2004 ..  for Mr.L.S.Hasan Fizal

For petitioners in              Mr.K.Doraiswami
W.P.Nos.16444 to                Senior Counsel for
16447/2004              ..  M/s Muthumani Doraiswami

For petitioners in
W.P.Nos.16659 to
16662 & 17383/2004 ..   Mr.  K.Selvaraj

^For respondents 1 to 3 Mr.N.R.  Chandran
in all W.Ps.  ..  Advocate General
                assisted by
                Mr.V.R.Rajasekaran
                Spl.  Government Pleader

For 4th respondent in
W.P.No.16095/2004 ..  Mr.Vijay Narayan


:COMMON ORDER

The petitioners in all these writ petitions have challenged the
proceedings in SFPC/PC/00014 dated 1.6.2004 of the Permanent Committee
constituted to ensure the fair conduct of Common Entrance Test for admission
of students by Association/Consortium of various unaided professional
engineering and Arts and Science colleges.

2. As the challenge made to the impugned order is almost on the
similar grounds and common issues are involved in all these writ petitions,
they are taken up together for hearing and disposal. This order shall govern
all the writ petitions.

3. The petitioner in W.P.No.16034 of 2004 is Consortium of
Professional Arts and Science Colleges in Tamil Nadu and formed by the
following associations viz.,
(1) Association of Self Financing Private Engineering
Colleges of Tamil Nadu;

(2) Tamil Nadu Self Financing Engineering Colleges
Association;

(3) Tamil Nadu Unaided Colleges Management
Association (TUCMA);

(4) Association of Self Financing Arts, Science
and Management Colleges of Tamil Nadu;

(5) Association of Muslim Colleges of Tamil Nadu;

(6) Association of Minority Unaided Christian
Institutions (AMUCI);

(7) Forum of Tamil Nadu Minority Self Financing
Engineering Colleges.

4. The Consortium was formed for the purpose of conducting Common
Entrance Test for admission to B.E., B.Tech., M.E., M.Tech., M.B.A., and
M.C.A. Courses in respect of the seats allocated to be filled by the
Managements, who are the member of colleges of the petitioner forum. The
Consortium represents both self-financing minority and nonminority educational
institutions established in the State of Tamil Nadu.

5. W.P.No.16068 of 2004 is filed by the 7th member of the Consortium
i.e., Forum of Tamil Nadu Minority Self-Financing Engineering Colleges, as the
members of the petitioner forum constitute the minority unaided private
engineering colleges.

6. The petitioner in W.P.No.16095 of 2004 is the Tamil Nadu College
of Engineering, a private unaided engineering college. The petitioner college
is also a member of the Consortium.

7. The petitioners in W.P.Nos.16444 to 16447 and 16659 to 16662 of 2
004 are individual unaided private engineering colleges. Though the
petitioners in W.P.Nos.16559 to 16662 of 2004 are not the members of
Consortium, Mr.K.Selvaraj, learned counsel appearing for those petitioners
would submit that the petitioners undertake to become members of Consortium
and the order in the writ petitions shall govern the petitioner colleges also.

8. The petitioner in W.P.No.17383 of 2004 is the All India Medical
and Engineering Colleges Association and have also questioned the same order.

9. In order to appreciate the submissions of the counsel for the
petitioners and the respondents, certain facts leading to the present dispute
require a mention. In the judgment reported in “UNNI KRISHNAN J.P. v. STATE
OF A.P.(1993 (1) SCC 645)”, the Apex Court in order to curb the
commercialization of education, framed a scheme relating to admission and
fixing of fee in private unaided educational institutions both for unaided
minority and non-minority private educational institutions. As we are
concerned with only the admission of students by unaided private educational
institutions, the scheme as to the percentage of seats for the State to be
filled under Single Widow System and the percentage of seats to be filled by
the private unaided educational institutions under the management quota is
alone referable. Under the Scheme, the Apex Court fixed 50% of seats to be
filled by the State under Single Window System and the remaining 50% of the
seats to be filled by the management and those seats are known as ” Management
Quota” with further entitlement to charge higher fee.

10. The judgment in Unni Krishnan’s case came up for consideration
before a Constitutional Bench of the Apex Court consisting of 11 Judges in
“T.M.A.PAI FOUNDATION AND OTHERS v. STATE OF KARNATAKA AND OTHERS (2002 (8)
SCC 481).” The Apex Court found that the scheme in Unni Krishnan’s case has
the effect of nationalizing education in respect of the right of private
unaided institution, to give admission and to fix the fee. The Apex Court
also held that the decision in Unni Krishnan’s case insofar 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., were held to be overruled. The judgment in T.M.A. Pai
Foundation case came up for clarification before the Apex Court in “ISLAMIC
ACADEMY OF EDUCATION AND ANOTHER v. STATE OF KARNATAKA AND OTHERS (2003 (6)
SCC 697)”. The Apex Court again formulated the following questions for its
consideration.

(1) Whether the educational institutions are entitled
to fix their own fee structure;

(2) Whether minority and non-minority 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.

11. Question Nos.2, 3 and 4 are relevant for the disposal of these
writ petitions. Their Lordships directed the State Governments to fix the
percentage of seats to be filled under Management quota depending upon the
local needs. Their Lordships also permitted the private unaided educational
institutions to opt for conduct of Common Entrance Test by the Association of
Colleges or to admit the students on the basis of Single Window System of
admissions made from among the candidates appeared for TNPCEE or the
Examination conducted by the State. The option shall be exercised before the
prospectus is issued. Their Lordships further also directed the respective
State Governments to appoint Permanent Committee, which will ensure the
fairness and transparency of the Common Entrance Test conducted by the
Association of Colleges. The Constitution of the Committee also was indicated
in the judgment. Pursuant to the above directions, the Government of Tamil
Nadu constituted a Permanent Committee in G.O.Ms.No.69, Higher Education (J2)
Department dated 19.3.2004 under the Chairmanship of the Hon’ ble Mr.Justice
S.S.Subramani, a retired Judge of this Court. The Permanent Committee also
consists of Dr.E.Balagurusamy, Vice Chancellor, Anna University,
Dr.M.S.Palanichamy, person of repute in the field of education,
Dr.V.Sankaranarayan, Engineer of Eminence as members and Thiru K.Gnanadesikan,
I.A.S., Secretary to Government, Higher Education Department, Chennai as
Member Secretary. The said Permanent Committee after hearing the
representatives of the Consortium of Self Financing Professional, Arts and
Science Colleges in Tamil Nadu and other individual institutions has passed
the impugned proceedings. It is also relevant to note that pursuant to the
directions of the Apex Court, the Government of Tamil Nadu allocated 50% of
seats for unaided non-minority professional colleges and 70% for unaided
minority professional colleges to be filled as management quota.

12. The directions of the Permanent Committee in the impugned
proceedings are as follows:-

A.IN THE COURSE OF CONDUCTING THE ENTRANCE TEST

(1) Consortium of self-finance professional, Arts
and Science colleges in Tamil Nadu is permitted to conduct the entrance test
for admission to under-graduate engineering courses for the entire Tamil Nadu
to fill up vacancies in management on the following conditions/directions.

a)Setting up of question papers and evaluation should be given to experts
approved by the Committee, which reserves its right to nominate it own experts
also.

b)Number of questions and papers should be same as TNPCEE and the syllabus
will be of Tamil Nadu (Plus 2).

c)Question papers should be printed in any security press approved by the
Committee-wherein also the nominee of the Committee will be present and the
Committee also reserves its rights to get the question papers printed in a
press of its choice.

d)One person nominated by the Consortium should be made totally responsible
for all activities connected with the examination, i.e. setting, printing,
transporting etc., who should also see that there is no leakage or other
malpractice. The Committee also reserves its right to give necessary
direction in this regard and also appoint such persons of its choice to
supervise the activities and the person made responsible should act according
to the direction given by the person so appointed by the Committee. We make
it clear that the test is conducted by the management to fill up their quota
and the Committee is only to supervise their work. In such case, if for any
reason the paper is leaked, the entire test will be cancelled and the
management takes the risk of admitting students on the basis of test conducted
already by Anna University.

e)Conduct of examination should be as per procedure of TNPCEE.

f)Question should be of objective type and the answer should be scanned for
valuation only by machine. Manual work is totally prohibited.

g)Examinations should be conducted only in the various District Head Quarters
in Tamil Nadu and also at Ernakulam in Kerala and at Vijayawada in Andhra
Pradesh. The examinations should be conducted in Government colleges as far
as possible.

h)The Consortium should co-operate with the representative (who will be
appointed by the Committee) at each examination centre.

i)The answer papers when collected should be separately packed and sealed by
the representatives of Consortium and Committee.

j)The question papers while it is being dispatched to various centers must
also sealed and signed by both representatives of Consortium and Committee and
opening the packet at examination Centre must also be done in the presence of
both representatives.

k)There will be separate squad appointed by the Committee for each
coordinating centre.

l)Application and examination fees should be reasonable, which may be fixed by
the Consortium and approved by the Committee.

m)The examination should be completed before 15th July, 2004 with notice to
the Committee and the results of the examination should be published without
any delay-at any rate within ten days from the date of completion of
examination.

n)All expenses for the supervisory work should be met by the Consortium and
one half of the estimated costs should be deposited with the Director of the
Technical Education. The estimated cost will be informed to the Consortium on
getting information about the schedule of the examination.

o)All correspondence in this regard, should be absolutely confidential.

p)Due publicity should be given intimating candidates about the necessity of
writing this examination along with details about the last date for the
receipt of application, the fees and the date of the examination along with
time-table.

q)The demand by the Consortium that it should be allowed to conduct the test
on two occasions, cannot be accepted for reason already stated.

r)The Committee reserves the right to give further directions and it is made
clear that the directions or conditions mentioned above are not exhaustive
“Consortium” is bound to obey the same as well.

B. AFTER THE EXAMINATION AND WHILE STUDENTS ARE BEING ADMITTED.

a)All private professional engineering colleges, (Whether they are members of
Consortium or not) should exercise their option to choose whether it adopts
the test conducted by the Association of Colleges (i.e. Consortium) or the
test conducted by the State through Anna University. The option should be
exercised within seven days after the conduct of examination by the
Consortium. If any College (which is a member of the Consortium) fails to
exercise any option it will be deemed to have exercised its option for the
State level test conducted by Anna University. Likewise if any college which
fails to exercise its option (and which is not a member of Consortium) shall
be deemed to have opted for the test conducted by the State through Anna
University. The option exercised should be informed to the Committee in
writing by Registered Post/Acknowledgment due.

b)The admission should be made only on the basis of the merit list opted and
deemed to have opted and should be by counselling by following single window
system as followed by Anna University under supervision of the Committee. The
venue for counselling under Single Window System will be decided after the
results are published and as directed by the Committee.

c)The admission of candidates shall be strictly according to Government of
Tamil Nadu norms, regarding eligibility and policy of reservation also shall
be followed.

d)The minority institutions also shall be bound to admit students only on
merit, but they are entitled to admit their own minority students on merits as
amongst them. Documents to support the claim of such students (i.e. minority
students) shall be submitted at the time of counselling. The copy of such
documents shall also be forwarded to the Committee along with the list of
admitted students.

e)The list of students admitted, their rank number, fees collected and all
particulars and details as may be required by the Committee also should be
furnished forthwith.

f)The question papers and answer sheets should be preserved in such places as
directed by the Committee for a period of six months from the date of
publication of results.

g)The Committee further reserves its rights to give further directions to the
private colleges or Consortium which shall also be fully complied with.

13. Mr.R.Krishnamoorthy, learned Senior Counsel assisted by Mr.V.
Ayyathurai, appearing for the Consortium would submit that the directions of
the Permanent Committee in Clause A(1)(b)(d)(e) and (n) would deprive the
valuable right of the self-financing professional and Arts and Science
colleges to conduct common entrance test and admit students of their choice
from among the merit listed candidates. He would draw my attention to the
constitution of Committee consisting of experts to set the question papers,
conduct exams under the supervision of invigilators, to value the answer
scripts and to ensure the method proposed to be adopted is foolproof and fair.
Hence, directions even to get the approval for number of question papers,
syllabi to be followed, sending officials to supervise the conduct of test
would undermine the bona fides of the Consortium. He would also submit that
it is impracticable to follow the procedure being adopted by TNPCEE, as the
said examination is restricted only to the candidates from Tamil Nadu whereas
Consortium is entitled to conduct Common Entrance Test for the candidates from
other States also. He would further submit that admission would be made
strictly on the basis of merit but from among the candidates applied to each
institution. Lastly he would submit that even in Single Window System of
admission, there were about 2 1666 vacancies out of the total number of 42350
seats in the academic year 2003-2004. That being the factual position,
insistence of Single Window System even for management seats is unwarranted.

14. Insofar as the directions in Clause B(b), the learned Senior
Counsel would submit that in view of the dictum in T.M.A. Pai Foundation
case, the unaided professional institutions are entitled to autonomy in the
matter of administration. Autonomy in administration includes admission of
the students of their choice, but of course not at the cost of merit. When
the State has prescribed 50% of the seats to be filled by the Management of
unaided non-minority professional institutions and 70% of the seats to be
filled up by the Management of unaided minority professional institutions, the
directions of the Permanent Committee for admission through Single Window
System is contrary to the judgment in T.M.A. Pai Foundation case. He would
also submit that as per the judgment in Islamic Academy case, there cannot be
any distinction in the manner of admission by both minority and non minority
professional colleges. Insofar as the directions in Clause B(c), he would
submit that once the merit-based system of admission is accepted to be
followed, directing the petitioner Consortium to admit students by following
communal reservation is bad in law. In support of the above submission, he
relied upon the judgment of a Division Bench of this Court in “KONGU
ENGINEERING COLLEGE AND OTHERS v. THE STATE OF TAMIL NADU AND OTHERS (2002
(3) L.W. 151)”.

15. Dr.Rajeev Dhavan, learned senior Counsel appearing for the
petitioner in W.P.No.16068 of 2004 viz., Forum of Tamil Nadu Minority Self
Financing Engineering Colleges would submit that the right to administer the
minority institutions is a constitutional right guaranteed under Article 30 of
the Constitution of India and such a right cannot be taken away by a Committee
constituted only to oversee the Common Entrance Test conducted by Consortium.
The Permanent Committee has exceeded and over stepped its power in directing
the admissions to be made only under Single Window System, as the right to
administer the educational institutions includes the right to admit students
also. Following the directions in T.M.A. Pai Foundation case, 70% of the
seats are allocated for the management to be filled from among the meritorious
candidates on the basis of Common Entrance Test conducted by Consortium. When
once certain percentage of seats are allocated, no further restriction is
permissible and the directions of the Permanent Committee to follow communal
reservation in the management quota and that too in the institutions
established by minorities are bad. He has also advanced arguments in
challenging the various directions of the Permanent Committee more or less on
the same line of submissions made by Mr.R.Krishnamoorthy, learned Senior
Counsel appearing for the petitioner in W.P.No.16034 of 2004. He would add
that the process of admission in respect of the seats reserved for management
can only be regulated by the State and there cannot be any restriction which
would amount to prohibition imposed in the process of admission.

16. Insofar as the direction of the Permanent Committee as to the
expenses to be borne by Consortium, he would submit that the directions in
Paragaraph 20 of Islamic Academy case are very clear whereby the Apex Court
had directed that the expenses incurred on the setting up of Permanent
Committee, the infrastructural needs, the provision for allowance and
remuneration of the Cha irman and other members of the Committee shall also be
borne by the State Government. Even in case the power of the Permanent
Committee to appoint persons by its choice to supervise the Common Entrance
Test is upheld, the Permanent Committee could only direct the State Government
to bear all the expenses for supervisory work. Hence direction in Clause
(A)(1)(n) is bad.

17. Mrs. Nalini Chidambaram, learned Senior Counsel appearing for
the Tamil Nadu College of Engineering, petitioner in W.P.No.16095 of 20 04,
though would adopt the arguments of Mr.R.Krishnamoorthy and Dr. Rajeev
Dhavan, has further submitted that the petitioner college does not have any
objection for the admissions to be made to the college under Single
Window System.

18. Mr.K.Selvaraj and Mr.Kandavadivel Doraiswami, the learned counsel
for other petitioners adopted the arguments of Mr.R.Krishnamoorthy, learned
Senior Counsel.

19. In response to the above arguments, Mr.N.R.Chandran, learned
Advocate General assisted by Mr.V.R.Rajasekaran, learned Special Government
Pleader would submit that the petitioners having agreed before the Permanent
Committee to abide by the directions that may be issued, cannot maintain the
writ petitions questioning the directions of the Permanent Committee. On this
ground alone the writ petition filed by Consortium is liable to be rejected.
He would place reliance on ground No.20(C) of the affidavit filed by
petitioner in support of the W. P.No.16095 of 2004 and contended that the
petitioner had infact agreed that Single Window System followed by Anna
University would be followed by the Consortium constituted by the Association
of Colleges, as the same will be foolproof. He would submit that even in the
application form made on 17.5.2004 and in the subsequent application dated 2
1.5.2004, the Consortium have submitted to the jurisdiction of the Permanent
Committee by seeking permission to conduct Common Entrance Test on the
conditions that may be imposed. Having sought and obtained such permission,
it is not now open to the petitioners to question the jurisdiction of the
Permanent Committee in imposing conditions. He would rely upon the judgment
in Pannalal Binjraj case and contended that once the petitioners acquiesce
themselves to the jurisdiction, they are estopped from questioning the power
of the Committee to issue directions. He would draw my attention to certain
paragraphs in the impugned order to sustain the plea of acquiescence and
contended that the petitioners have agreed to conduct the Common Entrance Test
on the same pattern of Tamil Nadu Professional Courses Entrance Examination.
On merits, the learned Advocate General would submit that the power of the
Committee to oversee and supervise the Common Entrance Test includes the power
to appoint persons for the said purpose. The directions in Clause
A(1)(b)(d)(e) and (n) are intended only to ensure a fair Common Entrance Test
conducted by Consortium. He would further submit that as the judgment in
T.M.A. Pai Foundation case was reconsidered in Islamic Academy case, in
respect of the issues involved in these writ petitions, the law laid down by
the Apex Court in Islamic Academy case alone should be taken into
consideration and the petitioners are not entitled to place any reliance on
T.M.A. Pai Foundation case.

20. Insofar as the direction as to Single Window System of admission,
the learned Advocate General would submit that in terms of Islamic Academy
case, merit is the sole criteria for admission even in respect of the seats
reserved for the private unaided professional colleges and the State is
obligated to ensure that meritorious students are not denied admissions. The
foolproof method to ensure merit-based admission can be secured only by
following the Single Window System of admission.

21. Insofar as the direction as to the rule of reservation, the
learned Advocate General would submit that though the Government in G.O.
Ms.No.23 (J1) Higher Education Department dated 13.2.2003 directed the unaided
minority professional colleges to follow the rule of reservation of the State
Government, the application of rule of reservation would not be insisted in
the case of minority institutions and the said statement may be recorded.

22. Insofar as the direction of the Permanent Committee to unaided
non-minority professional colleges to follow the rule of reservation of the
State, he would rely upon G.O.Ms.No.22, Higher Education (JI) Department dated
13.2.2003 wherein such professional colleges were directed to follow the rule
of reservation of the State. The learned Advocate General also submitted that
the said order is not questioned by any of the petitioners and so long as the
said order is in force, unaided non-minority professional colleges can only
admit the students strictly on the basis of merit by following the rule of
reservation of the State.

23. Mr.Vijay Narayan, learned counsel appearing for the All India
Council for Technical Education would submit that AICTE has issued guidelines
dated 3.11.2003 in the matter of admissions. He would draw my attention
particularly to paras 5, 6 and 9 of the guidelines and contended that the
management quota seats in private colleges shall be filled strictly on the
basis of inter se merit of the students who have taken Common Entrance Test
and such admission shall be made by following Single Window System and the
rule of reservation followed in the State. He would also submit that as per
clause 11 of the guidelines, all institutions conducting degree level
engineering programmes shall intimate to the Regional Office of AICTE and the
authority in the State, the number of seats that are to be filled on the basis
of tests conducted by AIEEE, State level and Association test for the
following academic year. Insofar as the candidates from other States, they
must take only the Common Entrance Test conducted by the AIEEE and in the
absence of any communication by the Consortium as to the number of seats to be
filled from among the candidates belonging to other States, the Consortium
cannot admit students from other States. The conduct of Common Entrance Test
by AIEEE for the students from other States is only to avoid hardship caused
to such students in taking more than one CET, namely the tests conducted by
Association in each State. As these guidelines are in conformity with the
judgments of the Apex Court, no deviation is permissible. The option to fill
up the seats by Common Entrance Test conducted by the State or Central Agency
or by Consortium shall be exercised by the individual institutions before the
prospectus is issued and such option shall be intimated to the AICTE in
advance. The AICTE has not received so far such options.

24. From the above submissions as well the pleadings, the following
points arise for consideration:-

(1)Whether the Consortium is estopped from questioning the power of the
Permanent Committee in issuing directions after submitting itself to the
jurisdiction of the Committee?

(2)Whether, after the judgment in Islamic Academy case, the petitioners are
entitled to rely upon the judgment of the Apex Court in TMA Pai Foundation
case?

(3)Whether the exercise of power by the Permanent Committee in issuing
directions as contained in Clause A(1)(b)(d)(e) and (n) is in conformity with
the directions of the Apex Court in Islamic Academy case and is therefore
justified?

(4)Whether the direction of the Permanent Committee contained in Clause B(b)
to follow the Single Window System of admission as followed by Anna University
under the supervision of the Committee is justified?

(5)Whether the direction of the Permanent Committee contained in Clause B(c)
to follow the policy of reservations while admissions are being made is
justified?

(6)Whether the Consortium is entitled to conduct Common Entrance Test and fill
up the seats from the candidates belonging to other States.

25. Point No.1: As far as the plea on acquiescence, the learned Advocate
General drew my attention to certain paragraphs in the impugned order wherein
the Permanent Committee has noted that the management had agreed to abide by
any directions given by the Committee under their supervisory power. The
relevant portion reads thus. “For the purpose of conducting tests, the
management agreed that they will abide any direction given by the Committee
under their supervisory power. In view of the above, we are of the view that
consent could be given to the Consortium to conduct the entrance te st, which
has to be done in a fair and transparent manner. For the above purpose and in
exercise of our supervisory power the Committee also proposes to put forward
certain conditions which the Consortium have agreed to obey.” The plea of
acquiescence is raised both in respect of the directions contained in Clause-A
as well in Clause-B. Though a plain reading of the paragraphs reveals that
the managements have agreed to abide by any direction given by the Committee,
the plea of acquiescence shall not stand in the way of the managements to
question the directions on the ground that they are opposed to the judgments
in T.M.A. Pai Foundation and Islamic Academy cases. As the sustainability of
the directions is to be dealt with on merits on the points formulated, the
plea of acquiescence is unacceptable. The judgment of the Apex Court in ”
MESSRS. PANNALAL BINJRAJ AND OTHERS v. UNION OF INDIA AND OTHERS (AIR 1957
SC 397)” relied upon by the learned Advocate General is distinguishable on
facts. That case arose under the Income Tax Act, 1922 wherein the
constitutionality of Section 5(7A) was challenged. By the said section, the
Commissioner of Income Tax was vested with the power of transfer of any case
from one Income Tax Officer subordinate to him to another and the Central
Board of Revenue to transfer any case from any one Income Tax Officer to
another. When a question arose as to whether such of those petitioners who
did not raise any objection for their cases being transferred from one Income
Tax Officer to another and submitted themselves to the jurisdiction of the
Income Tax Officers whom their cases were transferred, the Apex Court held
that after submitting the jurisdiction and after they acquiesced themselves to
the jurisdiction of the Income Tax Officer to whom their cases were
transferred, they were certainly not entitled to invoke the jurisdiction of
the Apex Court under Article 32. In the case on hand, the challenge is not
that the Permanent Committee has no jurisdiction to supervise the conduct of
examination as directed in Islamic Academy Case, but is only in respect of the
manner in which the jurisdiction has been exercised. I find that the judgment
relied upon by the learned Advocate General does not in any way support the
plea of acquiescence on the plea that the Permanent Committee has exceeded its
power. Hence, I reject the said submission and hold that the petitioners are
entitled to question the directions contained in the impugned order.

26. Point No.2: In addition to ten issues formulated on 10.4.2002 in T.M.A.
Pai Foundation case, the following five more issues were also formulated on
31.10.2002.

(1) Is there a fundamental right to set up educational
institutions and, if so, under which provision?

(2) Does Unni Krishnan case (1993 (4) SCC 111) required
reconsideration?

(3) In case of private institutions (unaided & aided)
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?

These issues encompass not only the issue of fundamental right to set up
educational institutions, but also as to whether the judgment in “UNNIKRISHNAN
J.P. v. STATE OF A.P. (1993 (1) SCC 645)” required reconsideration and
whether private institutions both aided and unaided should follow government
regulations and, if so, to what extent. As the issues in these writ petitions
are related only to unaided institutions, the discussion and finding in regard
to unaided institutions are only referred to in this order.

27. From paragraphs 48 to 66 of the judgment in T.M.A. Pai Foundation case,
Their Lordships have dealt with the issue as to the private unaided
non-minority institution in the matter of admission of students, reasonable
fee structure, etc. From paragraphs 67 to 70, Their Lordships have dealt with
the regulations that can be framed relating to private unaided professional
colleges. The law laid down in the above paragraphs was considered
subsequently in Islamic Academy case, more particularly, with reference to
paragraph 68 of T.M.A. Pai Foundation case. It was argued on behalf of the
Union of India, various State Governments and the students that the majority
judgment makes a clear distinction between professional educational
institutions (both minority and non-minority) and other educational
institutions i.e., schools and undergraduate colleges and that in professional
institutions merit had to play an important role and that excellence in
professional education required that for purposes of admission merit is
determined by government agencies. It was also argued that paragraph 68
provides that in unaided professional colleges only a “certain percentage of
seats” can be reserved for admission by the management and it is permissible
for the University or the Government to require a private unaided professional
institute to provide for a merit-based selection. The question that was
raised on the basis of paragraph 68 read with paragraph 59 was as to the fact
that in unaided professional colleges, merit should be determined by a common
entrance test conducted by government agencies. In view of the above
submissions, Their Lordships clarified paragraph 68 of T.M.A. Pai Foundation
case. In the sub-heading “private unaided professional colleges”, it was
clarified that the judgment in T.M.A. Pai Foundation case covers both
minority as well as non-minority professional colleges. As far as the
submission as to the “certain percentage of seats”, it was clarified that
specified percentage of seats can be reserved for admission by the management
and the rest should be filled on the basis of counselling by State agencies.
Their Lordships have further clarified that in non-minority professional
colleges, admission of students other than percentage given to the management
can only be made on the basis of merit as per the common entrance test
conducted by Government agencies. In paragraph 115, Their Lordships clarified
that minority professional colleges can admit in their management quota, a
student of their own community/language in preference to a student of another
community even though other students are more meritorious. Their Lordships
further clarified that whilst selecting/admitting students of their
community/language, the inter se merit of those students cannot be ignored.
It was further clarified that even the admission of members of their
community/language shall be strictly made on the basis of merit. It was
further clarified that if the seats cannot be filled from the members of their
community/language, the other students can be admitted only on the basis of
merit-based common entrance test conducted by government agencies. In
addition to the directions contained in T.M.A. Pai Foundation case, Their
Lordships also directed that admission by the management can be by a common
entrance test held by itself or by a State/University or by the Association
and that each institute cannot hold separate test. The purpose for which the
common entrance test is held by the Association and the manner of admission
and the list of candidates selected are all indicated in paragraph 16 of the
judgment. A further direction to the State Government to constitute a
Permanent Committee to oversee the test to be conducted by the Association was
issued in paragraph 19 of the judgment. Their Lordships have only clarified
certain portions of the judgment in T.M.A. Pai Foundation case as to the
right of the unaided professional colleges including minority and
non-minority, reservation of certain percentage of seats for admission by the
management, the conduct of common entrance test by the Association and in
addition to issue of certain directions. As the judgment in Islamic Academy
case is only clarificatory in nature clarifying the judgment in T.M.A. Pai
Foundation case, more particularly, paragraphs 59 and 68, the submission of
the learned Advocate General that after the judgment in Islamic Academy case,
the petitioners are not entitled to rely upon the judgment in T.M.A. Pai
Foundation case has no merit. For appreciation of the issue in question, both
the judgments in T.M.A. Pai Foundation and Islamic Academy cases hold good.
For the said reason, I hold that the petitioners are entitled to question the
impugned proceedings of the Permanent Committee not only by placing reliance
on Islamic Academy case, but also on T.M.A. Pai Foundation case.

28. Point No.3: Appointment of Permanent Committee by the State Government
was made in G.O.Ms.No.69, Higher Education (J2) Department dated 19.3.2004.
The Permanent Committee was appointed pursuant to the directions of the Apex
Court in Islamic Academy case. To understand the scope and power of the
Permanent Committee, paragraphs 19 and 20 of the said judgment are referable.
The directions in regard to the appointment of Permanent Committee and its
power with reference to the questions raised in these writ petitions can be
culled out as follows:-

(1)The respective State Governments should appoint a Permanent Committee and
such Committee shall ensure the test conducted by the Association of colleges
is fair and transparent.

(2)The Committee shall have the power to oversee the tests conducted by the
Association.

(3)The Committee shall have the power to call for the proposed question
paper(s), to know the names of the paper setters and the examiners and to
check the method adopted to ensure that the papers are not leaked.
(4)The Committee shall have the power to appoint experts to supervise and
ensure that the test is conducted in a fair and transparent manner.
(5)The expenses incurred on the setting up of Permanent Committee shall be
borne by the State.

(6)The expenses as to infrastructural needs and provision for allowance and
remuneration of Chairman and other members of the Committee shall also be
borne by the State Government.

29. The challenge to Clause A(1)(b)(d)(e) and (n) requires consideration with
reference to the above powers of the Committee. In Clause A(1)(a), the
Permanent Committee has directed the setting up of question papers and
evaluation should be done by experts approved by the Committee and reserved
the right to nominate its own examiners also. In terms of the directions, the
power of the Committee shall also include the power to call for the proposed
question papers, to know the names of the paper setters and the examiners and
to check the method adopted to ensure that the papers are not leaked. There
is no controversy on this issue.

30. Insofar as the challenge to Clause A(1)(b) and (e) of the impugned order,
the Permanent Committee has directed the Consortium to set the number of
questions as followed in TNPCEE, the syllabus of Tamil Nadu (+2) course and
the conduct of examination as per the procedure of TNPCEE. The power of the
Committee is only to oversee the test conducted by the Association. Of
course, the said power also includes the power to call for the proposed
question papers, names of the paper setters and examiners and to check the
method adopted to ensure that the papers are not leaked. The power vested
with the Permanent Committee is basically only to ensure as to whether the
test conducted by the Association is in a fair and transparent manner. No
where in the directions, a power is conferred on the Permanent Committee even
to issue directions as to setting up the numb er of question papers, the
manner in which the examination should be conducted and the syllabi to be
followed. If the above is accepted, the status of the Consortium to conduct
Common Entrance Test will be reduced to “only an agency of the State” to
conduct the test. It is made clear that this Court is considering the power
of the Permanent Committee as envisaged by the Apex Court and not the power of
the State/University/AICTE to issue such direction. So long as the fairness
is exhibited in the conduct of Common Entrance Test by Consortium and the
direction in Clause A(1)(a) is ensured, no further interference is
contemplated as to how the question papers are set etc. How the question
papers should be set and as to how the examination should be conducted are
matters to be left entirely to the discretion of the Association and the
Consortium in this case, as they are entitled to select and admit best
students in their assessment. An argument was advanced by the learned
Advocate General by placing reliance on the letter of the Consortium dated
21.5.2004 while seeking permission from the Permanent Committee for conduct of
entrance examination whereby it was indicated that the common entrance test
shall consist of four papers viz., Maths, Biology, Physics and Chemistry.
According to the learned Advocate General, Biology is not one of the subjects
required in engineering courses and the inclusion of the said subject in
Common Entrance Test is unnecessary. It was fairly submitted by
Mr.R.Krishnamoorthy, learned Senior Counsel appearing for the Consortium that
the test will be conducted only in Maths, Physics and Chemistry and no
questions will be asked in Biology. The question papers set up by TNPCEE are
also only on Maths, Physics and Chemistry subjects. I find no difference in
the conduct of common entrance test by the Consortium in the above three
subjects only, as the said method is also followed in TNPCEE. Moreover, the
directions for the conduct of examination made in paragraph 16 of Islamic
Academy case, are referable.

“In our view what is necessary is a practical approach keeping in mind the
need for a merit-based selection. Paragraph 68 provides that admission by the
management can be by a common entrance test held by “itself or by the
State/University”. The words “common entrance test” clearly indicate that
each institute cannot hold a separate test. We thus hold that the management
could select students, of their quota, either on the basis of the common
entrance test conducted by the State or on the basis of a common entrance test
to be conducted by an association of all colleges of a particular type in that
State e.g. medical, engineering or technical etc. The common entrance test,
held by the association, must be for admission to all colleges of that type in
the State. The option of choosing, between either of these tests, must be
exercised before issuing of prospectus and after intimation to the concerned
authority and the Committee set up hereinafter. If any professional college
chooses not to admit from the common entrance test conducted by the
association then that college must necessarily admit from the common entrance
test conducted by the State.”

The above paragraph clearly indicates that the common entrance test held by
the Association must be for admission to all colleges in that type. It is
also held that if any professional college chooses not to admit from common
entrance test conducted by the Association, then that college must necessarily
admit the students from common entrance test conducted by the State. There is
a clear distinction in the matter of conduct of the common entrance test by
the management and the State. There is no embargo on the managements to
evolve their own method in number of question papers and the conduct of
examination. The directions of the Apex Court does not suggest that common
entrance test conducted by the Association/Consortium shall be only on the
same pattern followed by TNPCEE. In the absence of any such restriction and
in the event the Permanent Committee ensures a fair and transparent manner in
the conduct of examination, the directions contained in Clause A(1)(b) and (e)
would be beyond the power conferred on the Permanent Committee. Such
directions would amount to interference on the right of the
Association/Consortium t o conduct the common entrance test. Except the
restrictions on the individual colleges to hold separate test, I find no other
restrictions imposed by the Apex Court as to the manner in which the
examinations are to be conducted. Hence the directions in Clause A(1)(b) and

(e) are liable to be set aside, as they are beyond the powers of the Permanent
Committee.

31. Insofar as the directions in Clause A(1)(d), the Permanent
Committee is vested with the power to supervise, setting, printing and
transporting etc., of the question papers and also to see that there is no
leakage or other malpractice and for the said purpose, the Committee can also
appoint such persons of its choice to supervise those activities. As a
necessary corollary, the Committee has the power to direct that one member
should be nominated by the Consortium and that member should be made
responsible for all the activities connected with the examination and in the
event of any malpractice, such member should be held responsible. The
Committee has also the power to direct the cancellation of the entire test in
the event the question paper is leaked. Mr.R.Krishnamoorthy and Dr.Rajeev
Dhavan, learned Senior Counsel argued that in directing the person to be
nominated by the Consortium to be totally responsible for all activities
connected with the examination is beyond the power of the Committee. In this
regard, the following directions of the Apex Court in Islamic Academy case
made in paragraph 16 are referable. “The question paper and the answer papers
must be preserved for such period as the concerned authority or Committee may
indicate. If it is found that any student has been admitted de hors merit,
penalty can be imposed on that institute and in appropriate cases
recognition/affiliation may also be withdrawn. To ensure fair and transparent
manner of conduct of examination and also to ensure that admission of students
should be on the basis of merit, the institute attracts penalty in addition to
withdrawal of recognition/affiliation in appropriate cases.” Unless
responsibility is fixed, the merit-based admission cannot be ensured. The
only reasonable conclusion would be that the directions of the Permanent
Committee in Clause A(1)(d) is to ensure fairness and transparency in the
conduct of tests and well within the directions in Islamic Academy case. In
that view of the matter, I find no merits in the challenge to the said clause.

32. Insofar as the challenge to Clause A(1)(n) as to the expenses
incurred for the supervisory work to be met by the Consortium and onehalf of
the estimated amount to be deposited with the Directorate of Technical
Education, paragraph 20 of the judgment in Islamic Academy case needs a
reference. In exercise of power under Article 42 of the Constitution of
India, the Apex Court directed the setting up of Committee in each State.
While such Committee was directed to be constituted, it was made clear that
the expenses incurred for setting up of such Committee shall be borne by the
State and in addition to the same, the infrastructural needs and provision for
allowance and remuneration of the Chairman and other members of the Committee
shall also be borne by the State. The Committee is vested with the power to
oversee the test to be conducted by the Association/Consortium. The said
power also includes the power to oversee the question papers, to know the
names of the paper setters and examiners and to check the method adopted to
ensure that the papers are not leaked. The Committee shall also have the
power to supervise and ensure that the test is conducted in a fair and
transparent manner. In order to ensure the above, the Committee is entitled
to appoint such persons of its choice to supervise these activities. The
appointment of experts is only to discharge the functions of the Permanent
Committee. The Constitution of the Permanent Committee has been referred to
in the earlier portion of the order. It contains persons of eminence, as the
Chairman himself is a retired Judge of this Court, two members are reputed
persons in education, one member is an engineer of eminence and the other
member Secretary is the Secretary to Government and it may not be possible for
them to supervise the conduct of examination in all centres held
simultaneously of course, on two days, the setting up of question papers and
evaluation of the same. While the power of the Permanent Committee to appoint
experts is upheld on the ground that the same is in conformity with the
directions of the Apex Court in Islamic Academy case, the supervisory work
shall also be traced to the work of the Permanent Committee in discharging its
functions. The directions to the State Government to bear the expenses for
setting up of the Committee including the infrastructural needs and provision
for allowance and remuneration to Chairman and other members of the Committee
to be borne by the State, shall therefore, necessarily mean that the State
should bear the expenses of those persons appointed to supervise the process
of conduct of the examination, more particularly, setting, printing,
transporting and conduct of common entrance test also. For the said reason, I
hold that the directions contained in Clause A(1)(n) in directing the
Consortium to bear the ex penses incurred for the supervisory work and also to
deposit the same with the Directorate of Technical Education cannot be
sustained.

33. In regard to Clause A(1)(m), the Committee has directed the
Consortium to complete the examination before 15th July, 2004 and the results
of the examination shall be published without any delay at any rate within 10
days from the completion of the examination. Mr.R. Krishnamoorthy and
Dr.Rajeev Dhavan, learned Senior Counsel submitted that in view of the
pendency of the writ petitions, the time for conduct of the common entrance
test must be extended. In fact they have submitted that the Consortium has
fixed the date of examination on 24 th and 25th of July, 2004, as the writ
petitions are pending in this Court and the petitioners have lost considerable
time in litigation. This request is reasonable and acceptable. Accordingly,
the Consortium is permitted to conduct the common entrance test as scheduled
on 24 th and 25th of July, 2004 with a further direction that the results of
the examination shall be published on or before 4th of August, 2004 .

34. Point Nos.4 & 5: The members of Consortium consist both minority
and non-minority institutions. Hence it would be appropriate to deal with the
points separately in respect of minority and nonminority institutions.

UNAIDED MINORITY INSTITUTIONS:

Article 29(1) contemplates that “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.” The right of a
minority community to establish and maintain educational institutions of its
choice is a necessary concomitant of the right conferred by Article 29(1).
This right is however subject to limitations in clause (2) of the said Article
in the event such institution receives aid from the State. The above dictum
is settled in In Re Kerala Education Bill (A.I.R. 1958 SC 956). Article
29(2) contemplates that “no citizen shall be denied admission into any
educational institution maintained by the State or receiving aid out of State
funds on grounds only of religion, race, caste, language or any of them.” The
said clause cannot be pressed into service in respect of an unaided minority
institution. Article 15(4) empowers the State to make special provision for
advancement of any socially and educationally backward classes of citizens or
for the Scheduled Castes and the Scheduled Tribes. The said Clause is only an
enabling provision and does not surpass constitutional guarantee given to a
minority community to establish educational institution of its choice under
Articles 29(1) and 30. The right of a minority community to establish
educational institution of its choice includes the right to administer the
institution. In turn the right to administer shall include the right to admit
the students. The law on this issue is settled by the Apex Court in the
judgment reported in “ST.XAVIER’S COLLEGE v. STATE OF GUJARAT (A.I.R. 1974
(1) SCC 717)”. Article 30(1) provides that all minorities, whether based on
religion or language, shall have the right to establish and administer
educational institutions of their choice. Article 30(1) contemplates the
right of minorities to establish and administer educational institutions of
their choice. While Article 29(1) gives a linguistic minority community right
to conserve its language or culture, Article 30(1) confers all religion or
linguistic minorities the right to establish educational institutions of their
own choice. Article 30(1) is wider than mere conservation of script, culture
etc as indicated by the word “choice”. In “SHAHAL H. MUSALIAR AND ANOTHER v.
STATE OF KERALA AND OTHERS (1993 (4) SCC 112)”, a Constitution Bench held that
minority institutions are entitled to fill all the seats earmarked as
management quota from among the candidates belonging to that minority
community in the order of merit. However, the right of a minority to
administer its educational institutions is not absolute as held by the Apex
Court in “SIDHAJBHAI SABHAI v. STATE OF GUJARAT (A.I.R. 1963 SC 540) and in
“FRANK ANTHONY PUBLIC SCHOOL EMPLOYEES’ UNION v. UNION OF INDIA (1986 (4) SCC

707)” as it is subject to reasonable regulations and such regulations are
intended for the benefit of the institution. This principle of law is also
approved by the Apex Court in “ALL SAINTS SCHOOL v. GOVERNMENT OF A.P. (1980
(2) SCC 478)” and in “ST.STEPHEN’S COLLEE v. UNIVERSITY OF DELHI ( AIR 1992
SC 1630)”. In Sidhajbhai Sabhai case it has been held that the State has
power to regulate the exercise of right of minority community to administer
institution in the interest of efficiency of its institution, discipline,
health, sanitation, morality or public order or the like so long as they do
not constitute restrictions on the substance of the right guaranteed under
Article 30(1). While the State has power to make regulation, to regulate the
exercise of the right of the minority community to administer institution, it
has no power to impose restrictions which would in turn amount to infringe the
right guaranteed under Article 30(1) on the minority communities to establish
educational institutions of their choice.

35. In T.M.A. Pai Foundation case, Their Lordships observed that right under
Article 30(1) is not absolute or above other provisions of law. It is further
held that there is no reason why regulations or conditions concerning
generally the welfare of students should not be made applicable in order to
provide a proper academic atmosphere as such provisions do not in any way
interfere with the right of administration or management under Article 30(1).
There is no dispute that 70% of the seats are reserved for being filled from
among the candidates who have taken the Common Entrance Test conducted by
consortium. There is no further dispute that in the event the unaided
minority institutions could not fill up all the seats from the candidates on
merit basis, such seats should be surrendered to the State to be filled from
among the meritorious candidate in the Common Entrance Test conducted by Anna
University. The State is well within the power in issuing such directions as
it is only regulating the admission and the State shall also ensure the
admissions are only on merit basis and that too from among the candidates
belonging to the minority community of the institutions. Such directions are
by way of regulatory measure. Once such safeguards are made, the right to
admit 70% of seats from among the candidates belonging to minority community
will be within the law declared by the Apex Court. Any further direction
either by the State/University/AICTE would amount only to restriction on
admission of students either by following Single Windo w System or by
following communal reservation, as the same would amount to restriction on the
fundamental right granted on minority institution to establish, administer and
admit the students of its choice. As the power of the State itself is
restricted to only to issue direction to regulate the admission and not to
impose limitations/restrictions to follow Single Window System, the directions
of the Permanent Committee are also beyond the powers vested in it in Islamic
Academy case. While referring to G.O.Ms.No.23, Higher Education (J1)
Department dated 13.2.2003 relating to direction for unaided minority
professional colleges to follow rule of reservation of the State Government,
the learned Advocate General would also fairly submit that the application of
communal reservation would not be insisted in the case of minority
institutions. He would also submit that the said statement could be recorded.
Hence, I hold that the minority institutions are entitled to fill 70% of the
seats from among the candidates of their community but strictly on merit
without reference to Single Window System of admission and communal rule of
reservation and in case if any seat is not filled, the same shall be reverted
back to the State. Consequently, the direction in Clause B(b)(c) in respect
of minority institutions cannot be sustained.

UNAIDED NON-MINORITY INSTITUTIONS:

The issue as to the right of private unaided educational institutions running
professional courses had earlier came up for consideration before the Apex
Court in Unni Krishnan’s case. Insofar as the private unaided institutions,
the Apex Court by way of a Scheme directed at least 50% of the seats in every
professional college shall be filled by the nominees of the Government or the
University as the case may be, as free seats. The scheme envisaged further
that those students shall be selected on the basis of merit determined on the
basis of Common Entrance Examination or in the absence of an entrance
examination, by such criteria as may be determined by the competent authority
or appropriate authority as the case may be. The remaining 50% of seats
commonly known as “payment seats” shall be filled from those candidates who
are prepared to pay the fee prescribed therefor and who have complied with the
instructions regarding deposit and furnishing of cash security/bank guarantee
for the balance of the amount. The scheme further envisaged that the
allotment of students against payment seats shall also be done on the basis of
inter se merit determined on the same basis as in the case of free seats. It
was further directed that there shall be no quota reserved for the management
or for any family, caste or community which may have established such college.
The scheme spoke of private unaided educational institution running
professional college and no distinction was made between minority and
nonminority institutions. The scheme in Unni Krishnan’s case came up for
consideration before the Apex Court in T.M.A. Pai Foundation case and insofar
as the scheme framed in Unni Krishnan’s case relating to grant of admission
and fixing of fee, Their Lordships held that the scheme was not correct and to
that extent the decision and consequent direction given to UGC, AICTE, Medical
Council of India, Central and State Governments etc., was overruled, as the
allotment of 50% of seats to private unaided educational institutions running
professional colleges was held as not correct.

36. All citizens shall have a right to establish and administer educational
institutions under Articles 19(1)(g) and 26, but this right is subject to the
provisions of Articles 19(1)(g) and 26(a) of the Constitution of India.
Article 19(6) enables the State to enact law imposing reasonable restrictions
in the interest of general public on the right conferred under Article
19(1)(g). Article 26(a) enables every religious denominations or any section
thereof to establish and maintain institutions for religious and charitable
purposes, but subject to public order, morality and health. Such institutions
cannot insist grant from the State as a matter of right, as the grant of aid
is subject to resources of the State. Aided institutions shall abide by all
laws, regulations and directives of the Government. In that context, the
unaided non-minority institutions, compared to the aided institutions will
have more autonomy to run the institutions. While considering the private
unaided non-minority educational institutions, Their Lordships in T.M.A. Pai
Foundation case observed that while the State has the right to prescribe
qualification necessary for the admission, private unaided colleges have their
right to admit students of their choice, subject to an objective and rational
procedure of selection and compliance with the conditions, if any, requiring
admission of a small percentage of students belonging to weaker sections of
the society by granting them freeships or scholarships, if not granted by the
Government. It was also held that the right to establish educational
institution can be regulated, but such regulatory measures must, in general,
be to ensure the maintenance of proper academic standards, atmosphere and
infrastructure and the prevention of maladministration by those in charge of
management. Fixing of rigid fee structure, dictating the formation and
composition of a governing body, compulsory nomination of teachers and the
staff for appointment or nominating the students for admissions were held to
be unacceptable restrictions. It was also held that the essence of a private
educational institution is the autonomy that the institution must have in its
management and the administration and, therefore, there has to be necessarily
a difference in administration of a private unaided institution and the
Government aided institution. It was also held that for admission into any
professional institution, merit must play an important role and such merit is
usually determined for admission to professional colleges by either the marks
that the students obtains at the qualifying examination or school leaving
certificate stage followed by the interview, or by a common entrance test
conducted by the institution or in the case of professional colleges, by the
Government agencies. The above findings were made while discussing the right
of a private unaided non-minority educational institution.

37. The rights of private unaided professional colleges were discussed from
paras 67 onwards. In para 68 of the judgment, the Apex Court permitted the
State Government/Universities who were granting permission or affiliation as
the case may be to require private unaided institutions to admit students for
a certain percentage of seats for admission from out of the students who have
passed Common Entrance Examination held by itself or by the State/University
and who have applied the college concerned for admission while the rest of the
seats may be filled on the basis of counselling by the State agency. For
better appreciation, para 68 of the judgment is reproduced below:

“It would be unfair to apply the same rules and regulations relating
admission to both aided and unaided professional institutions. It must be
borne in mind that unaided professional institutions are entitled to autonomy
in their administration while at the same time they do not forego or discard
the principle of merit. It would therefore, be permissible for the University
or the Government, at the time of granting recognition, to require a private
unaided institution to provide for merit based selection while, at the same
time, giving the management sufficient discretion in admitting students. This
can be done through various methods. For instance, a certain percentage of
the seats can be reserved for admission by the management out of those
students who have passed the common entrance test held by itself or by the
State/University and have applied to the college concerned for admission,
while the rest of the seats may be filled up on the basis of counselling by
the State agency. This will incidentally take care of poorer and backward
sections of the society. The prescription of percentage for this purpose has
to be done by the Government according to the local needs and different
percentages can be fixed for minority unaided and non-minority unaided and
professional colleges. The same principle may be applied to other
non-professional but unaided educational institutions viz., graduation and
postgraduation nonprofessional colleges or institutes.”
Thus it is clear that the unaided professional colleges are entitled to
autonomy in their administration and at the same time they do not forego or
discard the principle of merit in admission. The requirement as to
merit-based selection and admission can be fulfilled by a common entrance test
conducted by the association also. Such test is conducted in respect of
certain percentage of seats reserved for admission by the management from out
of those students who have passed the common entrance test held by itself or
by the State/University and have applied to the college concerned for
admission, while the rest of the seats may be filled up on the basis of the
counselling by the State agencies. The above procedure to be adopted for
admission is on the principle that the unaided private professional colleges
shall be given maximum autonomy.

38. While clarifying T.M.A. Pai Foundation case in Islamic Academy
case, Their Lordships formulated four questions for consideration, which I
have extracted in the earlier portion of this order. On the question as to
whether the minority and non-minority educational institutions stand on the
same footing and have the same right, Their Lordships held that the essence of
what has been laid in T.M.A. Pai Foundation case is that the minority
educational institutions have a guarantee or assurance to administer and
establish educational institutions of their choice and the non-minority
educational institutions do not have the protection of Article 30 and in
certain matters, they cannot and do not stand on similar footings as a
minority educational institution. Their Lordships also held that the minority
educational institutions have preferential right to admit students of their
community/language and no such right exist so far as the non-minority
educational institutions are concerned. While answering the question as to
whether the private unaided professional colleges are entitled to fill the
seats to the extent of 100% and, if not, to what extent and whether private
unaided professional colleges are entitled to admit students by evolving their
own method of admission, Their Lordships have held that so far as minority
professional colleges are concerned, they can admit in their management quota
a student of their community/ language in preference to a student of another
community even though that other student is more meritorious. A note of
caution was also added that whilst selecting/admitting students, the inter se
merit of those students cannot be ignored. It was also directed that even
members of their community/language must be strictly on the basis of merit
except in the case of their own students it has to be merit inter se those
students. Insofar as non-minority professional colleges, the discussion is
made in para 16 of the judgment. The said para is again made applicable to
both minority and non-minority professional colleges. It is true that
admissions could be made strictly on merits from among the candidates who have
taken common entrance test. A procedure for admission is also set out. The
relevant portion of the said para reads as under:-

“In our view what is necessary is a practical approach keeping in mind the
need for a merit-based selection. Paragraph 68 provides that admission by the
management can be by a common entrance test held by “itself or by the
State/University”. The words “common entrance test” clearly indicate that
each institute cannot hold a separate test. We thus hold that the management
could select students, of their quota, either on the basis of the common
entrance test conducted by the State or on the basis of a common entrance test
to be conducted by an association of all colleges of a particular type in that
State e.g. medical, engineering or technical etc. The common entrance test,
held by the association, must be for admission to all colleges of that type in
the State. The option of choosing, between either of these tests, must be
exercised before issuing of prospectus and after intimation to the concerned
authority and the Committee set up hereunder. If any professional college
chooses not to admit from the common entrance test conducted by the
association then that college must necessarily admit from the common entrance
test conducted by the State. After holding the common entrance test and
declaration of results the merit list will immediately be placed on the notice
board of all colleges which have chosen to admit as per this test. A copy of
the merit list will also be forthwith sent to the concerned authority and the
Committee. Selection of students must then be strictly on the basis of merit
as per that merit list. Of course, as indicated earlier, minority colleges
will be entitled to fill up their quota with their own students on the basis
of inter se merit amongst those students. The list of students admitted,
along with the rank number obtained by the student, the fees collected and all
such particulars and details as may be required by the concerned authority or
the Committee must be submitted to them forthwith. The question paper and the
answer papers must be preserved for such period as the concerned authority or
Committee may indicate. If it is found that any student has been admitted de
hors merit, penalty can be imposed on that institute and in appropriate cases
recognition/affiliation may also be withdrawn.” ( emphasis supplied)

39. So far as the minority institutions are concerned, they are
entitled to fill up the entire percentage of seats allocated to them from
among the candidates belonging to the same community, but strictly on the
basis of merit according to the marks obtained in the common entrance test
conducted by the association or by the State or by the Central agency
depending upon the option exercised by the institution. In the event a
certain number of seats are not filled, the seats shall be reverted back to
the State for being filled from among the meritorious candidates by following
Single Window System. So far as the non-minority institutions are concerned,
their right of admitting students cannot be equated with that of the minority
institutions. The admissions could be made strictly on the basis of merit
from among the candidates who have taken the common entrance test. Before the
common entrance test is conducted by the association/Consoritum, the
individual institute should opt for the mode of admission of students either
from common entrance test by association/Consortium or by the State or by the
central agency in advance and before the prospectus is issued.

40. This leads us to the next question as to whether the unaided non-minority
institution should follow Single Window System of admission. The right of
private unaided non-minority professional colleges to establish the
educational institution can be so urced to Articles 19(1 )(g) and 26(a). The
right conferred on them to administer the institution, which includes the
admission of students, is on the ground of maximum autonomy. The autonomy is
to ensure more such institutions are established, as the State has no funds to
establish institution at the same level of excellence as private institutions.
By the Single Window System, admissions are made on the basis of merit and by
following rule of reservation of the State and the colleges are allotted as
per the willingness of the candidates subject to availability of seats and the
course. As the association of unaided professional colleges were given
liberty to hold common entrance test to select and admit students, as a
necessary corollary, the admission of students must be based on the method
followed by the association/Consortium. In the event of insistence of Single
Window System of admission also for the seats to be filled by the management,
the direction for conduct of common entrance test has no meaning. In that
case, the entire seats earmarked both to be filled by the State and the
management could be filled on the basis of merit and following communal
reservation without there being any scope even for the minority institutions
to admit the students of their choice from their own community. The allotment
of seats must ultimately be based on the option of the candidates. Option is
exercised by each of the candidates at the time of counselling and in the same
analogy option is exercised by the candidates by applying to the college of
their choice and the discipline of their preference. In the event the Single
Window System of admission is also insisted, the autonomy in administration of
management and admission of students enjoyed by the unaided professional
colleges will be frustrated or become meaningless. So long as the merit based
admission are ensured and the admissions are made from among the candidates in
the order of merit as per the marks obtained in the common entrance test
together with the academic marks, the directions in T.M.A. Pai Foundation
case for merit-based admission shall be complied with and preserved and in
that event insistence of admission by Single Window System is impermissible.
By Islamic Academy case, the Permanent Committee is empowered with the power
to ensure the merit-based admission and also to take action and in the event
if it is found that any student has been admitted de hors merit, penalty can
be imposed on that institute and in appropriate cases recognition/affiliation
may also be withdrawn. The right of a member of the Consortium to admit the
students without reference to the Single Window System is further strengthened
while the Apex Court directed that the common entrance test held by the
association must be for admission to all colleges of that type in the State.
It was also directed that after holding the common entrance test and
declaration of results, the merit list will be immediately placed on the
notice board of all colleges which has chosen to admit as per the list and the
copy of the merit list shall also be forthwith sent to the concerned authority
and the Committee. It is also directed that the selection of students must
then be strictly on the basis of merit as per that merit list. List of
students admitted along with the rank number obtained by the student, the fees
collected and such particulars and details as may be required by the concerned
authority or the Committee must be submitted to them forthwith. The penal
provision for imposing penalty or in appropriate cases withdrawal of
recognition/affiliation is only after the above procedures are over and in the
event any student is admitted de hors merit. Single Window System of
admission is only intended for the seats to be filled on the basis of common
entrance test conducted by the State agency. It is only a procedure evolved
in exercise of executive power. As long as merit-based admission is ensured
as directed in T.M. A. Pai Foundation case and Islamic Academy case, the
right of unaided non-minority to admit the students on the basis of common
entrance test conducted by Consortium cannot be deprived. In that view, the
individual institutes are entitled to admit the students who have applied to
it, but strictly on the basis of order of merit. The directions of the
Permanent Committee to the Consortium to follow Single Window System of
admission in case of non-minority educational professional colleges is beyond
the power and contrar y to the law laid by the Apex Court and cannot therefore
be sustained.

41. This leads us to the next question as to whether the communal
reservation should be followed while admissions are made by the management in
the above manner. As the issues are inter-linked with each other, at the risk
of reputation it is again mentioned that the right of minority institution is
guaranteed under Article 30 and such right cannot be equated to the right of
non-minority institution. Insofar as conduct of common entrance test and
admission of students on the basis of merit, there appears to be no
difference. Insofar as the admission of students by the minority institution,
they are entitled to admit students belonging to the same community and in the
event any vacancy remains, it shall surrender the seat/seats to the State. No
such contingency exists for unaided non-minority professional colleges.
Neither in T.M.A. Pai Foundation case nor in Islamic Academy case, it is held
that non-minority institution need not follow rule of reservation. The right
to reservation has to be judged with reference to the provisions of the
Constitution. Laws are enacted under Article 15(4) prescribing certain
percentage of seats to be filled for the advancement of socially and
educationally backward class citizens or for scheduled caste or scheduled
tribes. Such special provisions are notwithstanding the other sub clauses of
Article 15 and the clauses of Article 29. Such reservation insofar as the
weaker section of people and in particular to scheduled castes and scheduled
tribes is also contemplated in the directive principles under Article 46 of
the Constitution of India.

42. Article 15(4) has to be read as an exception to Article 15(1) and
Article 29(2). This principle has been enunciated by the Apex Court in
“M.R.BALAJI v. STATE OF MYSORE (AIR 1963 SC 649)”, “R. CHITRALEKHA v. STATE
OF MYSORE (AIR 1964 SC 1823)”, “STATE OF A.P. v. P.SAGAR (AIR 1968 SC 1379)
and in “D.N.CHANCHALA v. STATE OF MYSORE (AIR 1971 SC 1762)”. In “STATE OF
A.P. v. BALARAM U.S.V. (AIR 1972 SC 1375)”, the Apex Court has held that
the Sta te is entitled to reserve a minimum percentage of seats under Article
15(4) notwithstanding Article 2 9(2). On the above backdrop, it is to be now
considered as to whether at the guise of the right to establish the
educational institutions under Article 19(1)(g) read with Article 26(a), the
unaided nonminority educational institution could refuse admission of students
by following communal reservation? The right to establish educational
institutions under Article 19(1)(g) is only on the basis of the right to carry
on “occupation”. Education cannot be regarded as either as a trade or
business where the profit is the motive. While the State is entitled to
regulate the education to ensure maintenance of proper academic standards,
atmosphere and infrastructure and also to prevent maladministration, the
management is obligated to follow the rule of reservation and that the right
of the management under Article 19(1)(g) is subject to reasonable restrictions
and r egulations, as the State has enacted law reserving certain percentage of
seats for backward, scheduled caste and scheduled tribe candidates under the
constitutional mandate. There is another aspect in the matter. After the
AICTE Act has come into force, the right of approval to start engineering
colleges, number of discipline, total number of intake etc., shall only vest
with the AICTE only. The approval is accorded subject to admission of
students based on merit as well communal reservation. If a particular
institute is allowed to admit 100 students in a particular discipline by the
All India Council for Technical Education, by virtue of the direction of the
Government 50% seats are filled by the State agency by following Single Window
System. The rule of reservation is followed only insofar as these 50 seats
are concerned. Insofar as the remaining 50 seats, the State has earmarked the
said seats as management quota pursuant to the directions in T.M.A. Pai
Foundation case. Hence only the unaided non-minority professional college
derives its right to fill the 50 seats from among the candidates in the order
of merit on the basis of the common entrance test conducted by the association
or Consortium. If the percentage of seats reserved is calculated for 100
seats, it would be less than 50% as the management is entitled to fill up the
entire 50 seats and the State agency is entitled to fill up the remaining
seats only by following rule of reservation. As the non-minority institutions
cannot be placed on par with minority institutions, as their right are
guaranteed under Article 30 and no such guarantee is available for
non-minority, I am of the considered view that while filling up the seats from
among the candidates applying to a particular institution on the basis of
merit, each institution shall also follow the rule of reservation of the State
while making admissions. Accordingly, point nos.4 and 5 insofar as private
unaided professional colleges are answered.

43. Point No.6: Insofar as the submission of Mr.Vijay Narayan,
learned counsel for the AICTE as to the requirement of the management also to
follow rule of reservation, the question is answered in point nos.4 and 5. He
would argue that pursuant to the directions of the Apex Court in T.M.A. Pai
Foundation case, the office memorandum dated 15 .10.2003 issued by the
Department of Secondary Education and Higher Education, Ministry of Human
Resource Development, Government of India as to the decision that all
admissions on all India basis to the undergraduate programmes in engineering
etc., in all institutions in the country shall be made through an All India
Engineering Entrance Examination (AIEEE). He would submit that subsequent to
the above memorandum, the All India Council for Technical Education issued
guidelines on 3.11.2003 for common entrance test for admission to degree level
engineering for the academic year 2004-2005. He would further submit that as
per clause 11, all institutes conducting degree level engineering shall
intimate to the authority in the State and the Regional Office of AICTE every
year the number of seats that are to be filled on the basis of test conducted
by AIEEE. The relevant guideline reads as under:-

“All the Institutions/Universities conducting Degree level Engineering,
Architecture/Planning and Pharmacy Programmes shall intimate on or before 30th
November, every year to the concerned authority in the State and the Regional
Office of AICTE, the number of seats that are to be filled up on the basis of
Tests to be conducted by AICEE, State Level Test and Association Test (if any)
for the following academic year.”

According to the learned counsel, none of the members of the Consortium has
intimated the number of seats to be filled up on All India basis and for the
test conducted by AIEEE. I am afraid that such arguments could be accepted at
this stage. The validity of the impugned order of the Permanent Committee is
judged in this order only with reference to the law decided in T.M.A. Pai
Foundation case and Islamic Academy case. So long as the above judgments
entitle the Association/ Consortium to have a common entrance test to admit
the students for management quota and the order of the Permanent Committee in
permitting the Consortium to conduct the common entrance test, and in the
absence of any challenge to such direction, it is needless for this Court to
go into the said question. Nevertheless, from the said guidelines, all that
has been directed is that the institutes shall intimate every year to the
concerned authority in the State or the Regional Office of AICTE the number of
seats that are to be filled up on the basis of test to be conducted by AIEEE,
State Level Test and Association test, if any, for the following academic
year. The right of exercise of option vests with the institution either to
opt for the test to be conducted on All India basis or the State Level or the
Association itself. By the said guidelines, it can neither be inferred nor be
held that the management must also inform the Regional Office of AICTE or the
concerned authority in the State as to the number of seats to be filled up
from the other State candidates. It is also relevant to note that the
Permanent Committee in exercise of power conferred on it has also directed the
conduct of Common Entrance Test at Ernakulam and Vijayawada. It was also
brought to my notice that such All India Engineering Entrance Examination is
already over for admission for the academic year 2004-2005 and being the
transitory period, the AICTE cannot insist that the members of the Consortium
should not admit students from other States. In fact students from other
States have also been permitted to write the common entrance test conducted by
the Tamil Nadu Professional Courses Entrance Examination, as there is no
embargo on any student from other State to take the common entrance test
conducted by TNPCEE. There cannot be also any restriction in the case of
common entrance test conducted by the Consortium. The conduct of examination
on all India basis cannot be equated with the right of an individual candidate
to appear for common entrance test in other States. This is more so there is
no specific percentage of seats earmarked to be filled on All India Basis as
is done in admission to medical courses. I would once again emphasize that I
am not considering the validity of guidelines of AICTE, but only the
directions of the Permanent Committee on the backdrop of law declared by Apex
Court. So far as the guidelines (2) and (6) are concerned, the procedure
followed for conduct of CET and the admission based on the merit, I do not
find any difference, as they are strictly complied. For all the above
reasons, I am unable to accept the submissions of Mr.Vijay Narayan.

44. In fine and subject to the findings in the order, all the writ
petitions are disposed of with the following directions:-
(1)The Consortium is not estopped from questioning the power of the Permanent
Committee in issuing directions.

(2)The petitioners are entitled to question the impugned proceedings by
placing reliance on both the judgments in T.M.A.Pai Foundation and in Islamic
Academy cases.

(3)The directions in Clause A(1)(b) and (e) are beyond the power conferred on
the Permanent Committee and, accordingly, they are set aside.
(4)The direction contained in Clause A(1)(d) is in accordance with the power
conferred on the Permanent Committee by the judgment in Islamic Academy case.
(5)The direction contained in Clause A(1)(n) in directing the Consortium to
bear the expenses of the experts is beyond the power of the Permanent
Committee and, accordingly, the same is set aside and the State is directed to
bear the expenses.

(6)The petitioners are entitled to conduct the common entrance test on 24th
and 25th July, 2004 as scheduled and shall publish the results on or before
5th August, 2004.

(7)The unaided minority institutions are entitled to fill 70% of the seats
from among the candidates of their community and applied to their institution,
but strictly on the basis of merit and the unfilled seat/seats shall be
surrendered to the State for being filled by following Single Window System of
admission. The unaided minority institutions need not follow the rule of
reservation while admitting the students under management quota and to the
above extent the direction of the Permanent Committee contained in Clause B(b)
is set aside.

(8)The unaided non-minority institutions are entitled to fill 50% of the seats
from among the students applied to each of the institutions, but strictly on
the basis of merit and to this extent the direction of the Permanent Committee
contained in Clause B(c) is set aside.

(9)The unaided non-minority educational institutions shall follow communal
rule of reservation while making admissions to the seats earmarked under the
management quota and to this extent the direction of the Permanent Committee
contained in Clause B(c) is sustained.

(10)The Consortium is entitled to conduct the test and the individual
institutions are entitled to fill the seats from the candidates belonging to
other States as directed by the Permanent Committee for this academic year.

Consequently, all the connected W.P.M.Ps. are closed. No costs.

Index: yes
Internet: yes

ss/vbs

To

1. The Member-Secretary
Permanent Committee for the conduct
of Common Entrance Test
Higher Education Department
Fort St. George
Chennai 600 009

2. The Secretary to Government
of Tamil Nadu
Higher Education Department
Fort St.George, Chennai 600 009

3. The Registrar
Anna University
Chennai 600 025

4. The Regional Director
All India Council for Technical
Education
Southern Regional Office
Sastri Bhavan
No.26, Haddows Road
Chennai 600 006