JUDGMENT
K.M. Mehta, J.
1. Institute of Rural Management, Anand, and others – petitioners have filed this petition under Article 226/227 of the Constitution of India with a prayer that this Court may issue a writ in the nature of mandamus or any other appropriate writ, order or direction quashing and setting aside the public notice dated 10th October, 2003, issued by All India Council For Technical Education in connection with guidelines for Common Entrance Test for admission to MBA/PGDBM or equivalent programmes in the country during the Academic Year 2004-05 and other reliefs.
2. The said petition was filed on 16th January, 2004, and this Court issued notice on 19th January, 2004. Thereafter the Court has passed the orders from time to time and ultimately in view of the fact that matter pertains to education field and admission for the year 2004-05. With consent of parties the matter has been taken up for final disposal. Mr. Sejpal, learned advocate along with Ms.Neha Jani waives service of rule on behalf of respondent.
3. The facts giving rise to this petition are as under:-
BACKGROUND OF THE MATTER:
3.1 Institute of Rural Management, Anand (hereinafter referred to as “IRMA”) – petitioner No. 1 is an institute imparting education in the field of Rural Management which is a highly specialized degree imperative to the growth and support of one of the primary and core sectors of the economy being Agriculture. The IRMA was established in the year 1979 to provide professional managerial support to Operations Flood implemented by the National Dairy Development Board. When the institute was established, the management graduates from good management institutions, including those from IIMs were unwilling to join and work for cooperatives and other organizations in rural sector. They also lacked the requisite skills to successfully operate in the rural environment. It was felt that at that time that to a large extent the management education in the so-called mainstream business schools has an urban bias and their graduates preferred corporate sector to display their managerial expertise which is true even to-day.
3.2 IRMA was established in recognition of the need for professional managers to work in the rural sector organizations. The rural sector being that of agriculture need a different breed of managers who combine the competencies of typical management graduates with the skill required to operate in the rural context. It is for this reason that this field requires specialized education for which the petitioner institute was set up almost 25 years ago.
3.3 It is a case of the petitioner institute that the graduates also need to have a different attitude and value orientation with respect to agriculture. In short, the profile of the candidates required to work in rural organizations is completely different from the typical profile of the main stream business management graduates whose core competency is with regard to economic viability and profitability to say the least.
3.4 Thus seeing the need for such typical and specialized breed of graduates, IRMA was set up to cultivate and inculcate the same attitude and aptitude for those with a similar vision.
3.5 For the purpose of admission to the institute, a special separate test was needed to identify and train students who fit the profile for appropriate working in such rural organizations. IRMA specifically designed such a test to segregate and identify such students who fit the profile. The IRMA test covers these aspects but also is not limited to the same. It also considers in addition to the usual, a candidate’s understanding of the issues of social concern and the specific needs of a rural society. It is pertinent to mention that the quality of IRMA’s graduates have been recognized by the recruiting organization and more than 60% of the IRMA graduates, of over 1265 till now, continue to work for many rural sector organizations. They have made significant contributions by working in cutting edge organizations equipped with the latest in education that this field has to offer which is made possible due to the petitioner institute.
3.6 It is for this reason that a definitive area specific admission test has been evolved which has gone a long way in helping to identify candidates who have the aptitude and the attitude for this particular sector.
3.7 It is pertinent to mention that earlier IRMA had considered using the common admission test in the early 1980s but decided against for the above reasons. A few other institutes like the XIMB, Bhubaneshwar, XISS, Ranchi, IIFM, Bhopal and IIPM, Bangalore have recently started offering similar courses.
3.8 The vision of IRMA was in fact indicated in the early years of its establishment when a variety of rural organizations ranging from the co-operative societies, NGOs, Government Rural Development Programme began to make demands on IRMA. In view of the same, all such organizations are welcomed except the corporate business sector. This is so as there already are a large number of business schools which serve the needs of the corporate sector but there are very few institutions like the petitioner to serve the non-corporate sector for development of rural projects and programmes.
3.9 It is a case of the petitioner that IRMA has issued an admission notice in connection with 25th Post-Graduate Programme in Rural Management (2004-2006) and 3rd Fellow Programme in Rural Management ( 2004-2007) on 29th August 2003. In the admission notice, it was stated that IRMA’s mission is to promote professional management of democratic and sustainable institutions for eco-friendly and equitable socio-economic development of rural people. The core of IRMA’s operating philosophy is to build and sustain a partnership between rural people and committed professional managers through education, research and consultancy. Its faculty comprises experienced practitioners and academicians. IRMA uses state of the art pedagogy. Facilities at IRMA cover state-of-the-art IT infrastructure including internet connectivity in individual hostel rooms, a fully computerized library with over 39,550 books, 517 technical journals and periodicals, CD-ROM titles, videos, microfiche and an excellent reprographic section. The admission notice provides 25th Post-Graduate Programme in Rural Management (2004-2006) and 3rd Fellow Programme in Rural Management (2004-2007). The last date for request for application forms was dated October 6, 2003, and last date for receiving completed application dated November 3, 2003. The said advertisement was published in almost in all leading Newspapers in India viz. Anand Bazar Patrika, Assam Tribune, Dainik Bhaskar, Dainik Jagran, Daily Thanthi, Eenadu, Hindu, Malayala Manorama, Gujarat Samachar, The Samaj, The New Indian Express, The Times of India, The Tribune, University News, Competition Success and Economic & Political Weekly which shows that the advertisement was widely published in all over India. It was also stated that the test to be conducted on 7th December, 2003, at 26 test centres across India and the interviews will be held in February 2004 at IRMA, Anand.
3.10 Pursuant to the said advertisement, it is a case of the petitioner institute that about 10244 applicants have applied, out of that 9608 had appeared for written test and thereafter 489 were shortlisted for personal interview and 144 candidates were finally shortlisted. It was further submitted that same arrangement was also followed by Xavier Institute of Management, Bubaneshwar (Rural Management Programme) and Vaikuntha Mehta National Institute of Cooperative Management, Pune (PGDBM, Agri-business Management) have also followed the pattern of petitioner.
3.11 It may be noted that as indicated above when petitioner saw the advertisement of All India Council For Technical Education ( “AICTE” for short) public notice dated 16th October, 2003, in connection with Common Entrance Test for MBA/PGDBM (or Equivalent) Programmes in the Country during the academic year 2004-05 which I have referred earlier. Mr. V.Kurien of Institute of Rural Management, Anand addressed a detailed letter to Dr.Murali Manohar Joshi, Hon’ble Minister for Human Resource Development, dated 17th October, 2003. In the said letter, the institute informed the Hon’ble Minister that none of the tests listed and recognized by the Ministry is suitable for admission to Post Graduate Courses in Rural Management and detailed reasons have been given in the said letter and requested the Hon’ble Minister to recognize the test designed and conducted by IRMA for the last 23 years for admission to the Post Graduate Programmes in Rural Management.
3.12 Shri P.K.Gupta, Director of Govt. of India, Ministry of Human Resource Development, Department of Secondary & Higher Education, New Delhi, by letter dated 21st November, 2003, without considering the contents of the letter addressed to the Hon’ble Minister stated that it is not possible to exempt any institute and the institute is requested to join any one of these five All India Tests or to score of any of these tests for admission to post graduate courses in your institute.
3.13 The IRMA thereafter again addressed a letter on 3rd November, 2003, to Dr.Ashok Kumar, Central Regional Officer, All India Council for Technical Education and also referred to earlier letter of Mr. V. Kurien and requested the Ministry to consider the case of the institute in this behalf and requested the AICTE to permit IRMA to conduct its own test this year.
3.14 The AICTE by its letter dated 11th November, 2003, informed the IRMA that institute is requested to send sanction by 21st November, 2003. It may be noted that the IRMA thereafter addressed a letter dated 1st November, 2003, to AICTE with a prayer that extension of AICTE approval to the Institute of Rural Management for conducting management programme. It was pointed out that institute was accorded AICTE’s approval to the IRMA’s Post-Graduate Programme in Rural Management (PGDRM) for the period 2000-2003 vide letter F. No. 431/25-7/MCP(M)/94 dated September 5, 2000. This approval was accorded on the recommendation of the Expert committee and the sub-committee of the All India Board of Management Studies and the AICTE. In view of the same, it was requested that the AICTE may kindly consider granting the extension of AICTE’s approval to our PGDRM on long-term basis, that is, atleast for five years. Along with the same, the details issues of social concern, details of written examination, Analytical Reasoning, English Comprehension, Quantitative Ability, issues of social concern and all details have been given to them.
3.15 In view of the aforesaid background of the matter, the present petition was filed on 16.1.2004 challenging the aforesaid action in this behalf.
4. It may be noted that when the first matter was placed for hearing on 19th January, 2004, the petitioner prayed for amendment challenging the communication dated 21st November, 2003, addressed by Director and also added the letter of AICTE dated 11th November, 2003, and petitioner’s letter dated 1st December, 2003, was also added by the said amendment.
5. The Court granted the said amendment and issued notice on 19.1.2004 to All India Council for Technical Education – New Delhi in view of the letter of Mr. Kurien dated 17th October, 2003, and 3rd November, 2003, in this behalf. The Court made notice returnable on 27th January, 2004.
6. The respondent was served on 21st January, 2004. The petitioner filed affidavit of service before this Court on 23rd January, 2004.
7. It may be noted that inspite of the fact that institute was served on 21st January, 2004, when the matter was reached hearing before this Court the respondent did not enter its appearance before this Court on 27th January, 2004, the court passed the following order:
“This Court has already issued notice on 19th January, 2004. Learned Senior Counsel Mr. K.S. Nanavati states that the otherside has been served, however nobody appears on behalf of the respondent. This being an important matter, this Court likely to give one more chance to the respondent, the matter stands adjourned to 3rd February, 2004. If they desire to file affidavit, they may file the affidavit in this behalf. The petitioners are at liberty to issue result of written test subject to the result of this petition.”
8. Thereafter the matter again reached hearing before this Court on 3rd February, 2004. The Court passed the following order:
“This Court has already issued notice on 27.1.2004. Thereafter, on 27.1.2004 respondeat did not appear. Hence, the matter was adjourned to 3.2.2004 i.e. today. Today also, respondent has not filed its appearance. Hence RULE.
2. The learned counsel for the petitioner has prayed for stay of operation and implementation of the public notice issued by All India Council for Technical Education and Guidelines for Common Entrance Test for admission to MBA/PGDM (or equivalent) Programmes in the Country, which is produced at Annexure-A page 20.
3. In view of absence of respondent, it will be open for the petitioner to call the candidates for interview pursuant to oral interview already held in this behalf. It will also be open for the petitioner to declare the result of oral interview. S.O. to 16.2.2004.”
9. Thereafter the matter has been adjourned from time to time. When the matter reached hearing on 5th April, 2004, Mr. Sejpal, learned advocate with Ms. Neha Jani on behalf of the respondent prays for some time for filing affidavit and ultimately the respondents filed their affidavit on 8th April, 2004, before this Court. The petitioner filed affidavit-in-rejoinder dated 28th April, 2004, and in view of the urgency of the matter and as this matter pertains to education and for coming academic year, with consent of parties, the matter was taken up for final hearing before this Court on 4th May, 2004.
10. Mr. K.S. Nanavati, learned Senior Advocate for the petitioners has made following submissions on record of the case. First of all he has invited my attention to the objective of petitioner institute which is mentioned in the Memorandum of the Association and object Clause 3(i), (ii) (a) to (e) which reads as under:
“3(i) the object for which the Society is established is to institute facilities for education, research, training and consultancy conducive to co-operatives and other agencies engaged in economic and social development for rural communities with special reference to rural poor.
(ii) to achieve the above objective the Society shall establish and carry on the administration and management of the Institute of Rural Management. The functions of the Society shall be:
(a) to provide training in management and related subjects for persons from co-operatives, institutions and bodies connected with cooperatives, and individuals in such a way as to equip them thoroughly to practice the art and profession of management, or in appropriate cases, to instruct others in the practice of management;
(b) to select and prepare outstanding young persons for careers leading to management responsibility in co-operatives and other rural oriented agencies;
(c) to award diplomas, certificates, and other distinctions to candidates trained, and to prescribe standards of proficiency before the award of such diplomas, certificates and other distinctions;
(d) to meet the needs of co-operatives, agriculture and rural development agencies in respect of up-to-date information on management through research consultation and publications;
(e) to assist, institute and carry out research into matters concerning management conducive to the well-being of the rural producers and rural society.”
10.1 The learned Senior Counsel for the petitioner has further invited my attention to the fact that the mission of the petitioner institute which is to promote professional management of democratic and substainable institution for eco-friendly and equitable socio-economic development of rural people. The core of IRMA’s operating philosophy is to build and sustain a partnership between rural people and committed professional managers. Through this IRMA strives to contribute to the processes of promoting sustainable development and social justice in India’s rural society. IRMA strives to achieve this mission by:
(i) Educating a new breed of professional rural managers having appropriate values and ethos to help rural organisations and institutions in professionalizing their management and empower rural people through self-sustaining processes;
(ii) Training policy makers, directors, general managers, and those in charge of specific managerial functions in such enterprises and projects;
(iii) Building new rural management knowledge and theories through action oriented and problem solving research and consultancy; and
(iv) Influencing public policies through policy oriented research and consultancy.”
10.2 Learned senior counsel for the petitioner, therefore, submitted that the petitioner institute recognizes the complex environment in which rural organisation work and greater need of professional management in such organisations. The course curriculum of the petitioner institute has been developed keeping these complexities in view. Thus, classroom and field work segments have been designed for integrated learning of rural organisations, co-operatives, and developmental organizations including government development programmes. The teaching consist of among those courses comprising of (i) Economics for Rural Managers, (ii) Rural Production and livelihoods, (iii) Rural Society and Polity, (iv) Rural Research Methods, (v) Collective Actions and Co-operation, (vi) Rural Development, (vii) Management of Co-operatives, and (vii) Strategic issues in developmental organisations.
10.3 It was therefore submitted that ten-week long fieldwork of the Post Graduate Programme in Rural Management of the petitioner institute exposes the students to the realities of the rural people. It attempts to develop in them sensitivity to the concerns of the rural people; helps them in appreciating constraints and possibilities for development; and gives them a flavour of community work at the grassroots level. The students are attached to an organisation and stay in an identified village. The students also execute a small action-oriented test entrusted by the host organisation. Fieldwork also exposes the students to the diverse problems the rural professional face in their roles and the ways through which experienced rural managers cope with such problems. Such an exposure enables the students to develop the skills and attitudes required for actions in which, in their careers as rural managers, they will have major stakes. Thus, the teaching and training at petitioner institute is entirely different from business management school.
10.4 The respondent has issued an admission advertisement notice on 10th October 2003. The learned counsel submitted that that identical criteria was also followed by Xavier Institute of Management, Bubaneshwar (Rural Management Programme) and Vaikuntha Mehta National Institute of Cooperative Management, Pune (PGDBM, Agri-business Management). The learned counsel submitted that immediately after issuance of aforesaid notice, Dr. Kurien addressed a letter for which I have made a reference, the Central Government through Director of Ministry of Human Resources Development has replied by a letter dated 21st October, 2003, and thereafter IRMA also addressed a letter to AICTE dated 3rd November, 2003. Ultimately IRMA also addressed a letter on 1st November, 2003, to AICTE also in this behalf. This shows that petitioner was trying to persuade both to the Central Government as well as AICTE as the Government decided to foist upon entrance test as per public notice dated 10th October, 2003, on petitioner. So the petitioner was constrained to file present petition in this behalf.
10.5 In view of the aforesaid facts and circumstances of the case, the present petition has been filed by the petitioner challenging the aforesaid action of the Government as well as AICTE.
10.6 In support of the assailing the aforesaid decision of the Government and respondent, the learned advocate for the petitioner has made following submissions:
(1) The petitioners submit that more than 10000 applications have been received in pursuant to the starting of a fresh academic year and those who are so interested and so inclined for this particular field of study have prepared and appeared for the specialized test administered by the IRMA and therefore present action of respondent would cause grave injustice if the entire nature of the admission test is changed.
(2) The petitioners submit that the said Public Notice itself provides for guidelines for admission to MBA/PGDM or equivalent programmes in the country. As mentioned earlier, the training programme offered by the IRMA to its students is not equivalent to either MBA or PGDBM and it is not PGDBM (Post Graduate Diploma in Business Management). Training for Business Management in urban sectors is entirely different from training course for rural management offered by the petitioner institute. Consequently on the very express language of the public notice, training programme by the petitioner institute is not equivalent to MBA or PGDBM and consequently admission test conducted by the petitioner institute cannot be included in the said guidelines as equivalent to the listed tests. It is also pertinent to mention that the Government of India has constituted a National Coordination Committee for effective implementation of common entrance test. The terms of reference of the Committee includes among other things – to consider cases of institutions having special and unique features for exemption from participation in common entrance test on case to case basis, if their special and unique feature cannot be accommodated through the common entrance test from the year 2005-06. Therefore, forcing petitioner institute to adopt one of the listed common entrance tests for 2004-05 appears unjustified and arbitrary.
10.7 The learned advocate for the petitioner submitted that the guidelines issued by Government if applied to training courses offered by the petitioner institute which are of entirely distinct nature would fall foul on the touch stone of directions issued by the Hon’ble Supreme Court in the case of Islamic Academy of Education and Another Vs. State of Karnataka and others reported in (2003) 6 SCC 697 particularly para 16 on page 728 where it has been clearly directed by the Hon’ble Supreme Court as under:
“para.16 … 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 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.”
10.8 The learned counsel submitted that as directed by the Hon’ble Supreme Court in para 16 of the said report, no common test can be required to be undertaken by the professional college or institution, if it is not the institution of the very same type, but of entirely different type like the petitioner institute.
10.9 In view of the aforesaid judgments, the learned counsel submitted that insistence in the guidelines promulgated by AICTE requiring the petitioner institute to conduct the same type of admission test as conducted by any of the aforesaid five listed institutions would not satisfy the requirements laid down by the Hon’ble Supreme Court for such a common entrance test. Hence, the said guidelines qua the petitioner institute will be exfacie illegal and violative of directions of the Hon’ble Supreme Court as aforesaid.
10.10 The learned counsel submitted that the impugned decision causes grave and irreparable damage and injury to the interest of the petitioner institute as well as the vision since the entire admission procedure is changed resulting into the selection of more commercial and main stream managerial candidates as against the select few which the admission test of the institute seeks to enroll.
10.11 Learned advocate further submitted that it has to be kept in view that AICTE is a statutory body of Government of India as mentioned in the public notice itself. It is a creature of the AICTE Act, 1987 established under Sec.3 thereof.
10.12 The learned advocate submitted that by a written representation dated 17th October, 2003, Dr.V. Kurien on behalf of the petitioner institute requested the Hon’ble Minister for Human Resource Development, Ministry of Human Resource Development, and Government of India to reconsider this question. However, by reply dated 21.11.2003, after this representation was turned down and the public notice issued by the AICTE was relied upon as operative qua the petitioner institute. The Office Memorandum of 10th October, 2003, of the Government of India was also communicated. The said communication dated 21.11.2003 from the Government of India in Ministry of Human Resource Development as well as office memorandum dated 10th October, 2003, of Government of India, would also suffer from the same infirmity from which the public notice issued by AICTE suffers, as highlighted hereinabove. Therefore, the above notice should be struck down and the petitioner institute should be allowed to continue conducting its own separate test for admissions, only by way of which the ends of justice would be met.
10.13 The petitioner has also filed further affidavit dated 21st April, 2004, in which it was stated that pursuant to the order of this Court dated 03rd February, 2004, permitting the personal interviews, being the last stage of the selection process and declaration of results thereon. It was further stated that it is pertinent to point out that Xavier Institute of Management, Bhubaneshwar (XIMB) which is a sister organisation of Xavier Labour Institute which conducts XAT test for their Post Graduate Diploma in Business Management course and uses XAT test for admission. However, XIMB also conducts post graduate diploma in Rural Management for that it does not find XAT score suitable for their admission to Rural Management Programme. Therefore, it uses IRMA test score. Similarly Centre for Management in Education of Vaikuntha Mehta National Institute of Cooperative Management, Pune also uses IRMA test score for their admission to Post Graduate Diploma in Business Management with specialisation in Agri-Business Management. Alongwith the said affidavit, a Table-1 which provides the number of candidates applied for IRMA test, appeared in written test, called for personal interview and final admission offered by different institutes.
Table 1
ADMISSION OFFERS THOUGH IRMA TEST IN DIFFERENT INSTITUTES
———————————————————————–
Name of the Applicants Written Shortlisted Final
Institute appeared test for short
personal listed
interview
-----------------------------------------------------------------------
Institute of 10244 9608 489 144
Rural Management
Anand (IRMA)
-----------------------------------------------------------------------
Xavier Institute 10244 955 217 55
of Management, (plus
Bhubaneshwar 11
(Rural Management waitlisted
Programme)
-----------------------------------------------------------------------
Vaikuntha Mehta 10244 748 Being Scheduled
Institute of finalised in
Cooperative April-May
Management, Pune
(PGDBM, Agri-
business Management)
-----------------------------------------------------------------------
* The number of candidates showed interest in studying the institutes.
10.14 This shows that the petitioner institute has already started the work and completed the work. This shows that the petitioner institute has enviable reputation and goodwill throughout the length and breadth of India.
11. In view of the aforesaid petition filed by the petitioner and the contention raised by the petitioner, the respondent No. 1 has filed an affidavit dated 8th April, 2004, by one Dr. Ashok Kumar, Director, Regional Officer and Member Secretary of Central Regional Committee of AICTE. In the said affidavit, it was stated that the impugned advertisement in the petition dated 10th October, 2003, which has been produced at Annexure “A” to the petition is published providing guidelines for common entrance test for admission to MBA/PGDBM (or equivalent) programmes in the Country during the Academic Year 2004-2005 pursuant to the clear and unambiguous directions of Hon’ble Supreme Court delivered on October 31, 2003, and August 14, 2003, in the cases of Islamic Academy and T.M.A. Pai (as referred to in the petition memo) as well as the policy decision taken by the Government of India, Department of Secondary and Education & Higher Education, Ministry of Human Resources Development, New Delhi on 10.10.2003. It was stated that upon perusal of judgment of Islamic Academy, it is very much clear that the Apex Court while saying 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 for 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, has very clearly laid down directions for holding the Common Entrance Tests and has no uncertain terms held that the main categories for the Common Entrance Test or to describe the colleges of a particular type could be only few depending upon the basic nature of studies i.e. Medical, Technical, Engineering, Management, etc.
11.1 In the said affidavit it was submitted that the prayer prayed in the petition therefore directly contrary to the directions of the Hon’ble Apex Court as well as the policy decision of the Government of India. It was stated that if the contention of the petitioners are accepted, then virtually the object and spirit behind directions of the Apex Court would be frustrated. The directions of the Apex Court are issued with the object to see that the students are not put to hardships to appear in various tests of various colleges from one place to another, by incurring expenditure and preparing for various different subjects. The object and spirit of the directions of the Apex Court will also be frustrated because then various colleges will demand their own entrance test to be held on the same grounds because in all the categories stated by the Apex Court, there are various sub-branches of education. In Medical, there would be allopathy, homeopathy, etc. In Engineering, there are various branches of electronics, civil engineering etc. which are totally different from each other. Likewise, in the Management studies, which applies to the present petition, there are various sub-branches also for e.g. business management, human resources management etc. It was therefore submitted that holding of separate tests for each sub-branch of the main category of education would not be appropriate in light of the directions of the Apex Court as well as the decision of the Government of India, which is also taken pursuant to the judgments of the Apex Court.
11.2 It was further submitted that the prayer sought for in the present petition would run contrary to the directions of the Hon’ble Supreme Court, the only remedy then remains for the petitioners is either to implement the guidelines of AICTE or to move an application before the Apex Court with appropriate reliefs to differentiate their case. It was further submitted that the Government of India while issuing the office memorandum on 10.10.2003 which is already a part of the petition has formed a National Coordination Committee to deal with the issue which has arisen in the present case. In the said memorandum, it is clearly mentioned in para 6(b) that the specific terms of reference to the committee shall be to consider the cases of institutions having special and unique features for exemption from participation in Common Entrance Test on case to case basis, if their special and unique features cannot be accommodated through the Common Entrance Test. From para 5 of the said memorandum, it is also clear the Committee is comprised of 16 members which are mainly the heads of various controlling authorities in the field of education wherein the Chairman of AICTE is also a member. In the circumstances, before taking recourse to any application or petition before the competent court, the petitioners are required to refer their case to the National Coordination Committee which is clearly not done in the present case and this Court under Article 226 of the Constitution of India is called upon to exercise the jurisdiction in place of a decision of NCC which is comprising of 16 expert members in the field of education. In the circumstances, the petition would not be maintainable in this Court for the reason stated above and therefore, the same is required to be rejected summarily.
11.3 In the affidavit-in-reply, the respondent has not denied all the contentions raised by the petitioner which has been made in the petition while dealing with the petition not parawise denial. However, the same has been done in para 5 of the affidavit-in-reply on page 37. It has been stated that as the petitioners have issued their guidelines in August 2003 which is almost 11 months earlier than the next Academic Year, is not required by any stretch of imagination and therefore, even if the petitioner institute has issued the admission notice on 29.8.2003 for the Academic Year of 2004-2005, the term of which begins in the month of July or August, the same would not be relevant for the purpose of present petition to over ride and ignore the clear directions of the Apex Court as well as the decision of the Government of India.
11.4 The deponent has further stated that the rural sector mainly dependent upon agriculture, may be requiring a different breed of Managers to combine the competencies of typical management graduates with the skill of operation in rural context but so far as the Entrance Tests are concerned, that consideration would not be relevant because the syllabus of a Common Entrance Test would cover all the aspects of various sub-branches of the category of Management studies, and therefore it is denied that a special and separate test is needed to identify and train students who file the profile of the petitioner institute.
11.5 Though in the notice the respondent has referred to the judgment of T.M.A. Pai’s case and in the affidavit-in-reply also the respondent has relied upon the judgment of Islamic Academy’s case, however the learned advocate for the respondent has not pointed out any paragraph from this judgment which shows that the Government can foist the common entrance test on the institute like petitioner.
12. In view of the aforesaid affidavit-in-reply, the petitioner has filed affidavit in rejoinder on 28th April, 2004. In the said affidavit it has been stated that pursuant to the order of this Court granting personal interview and declaration of result thereto, the result has already been declared of the interviews. This declaration of result also contains in itself an offer, by the petitioner institute, for admission to the students. Therefore, pursuant to the above order, the admission has been offered not only by the present petitioner institute but also by other two institutions details of which have already been submitted for which I have already referred in this behalf. It was further stated that an irreversible process has commenced and almost has been completed. It was further stated that the process of admission has already culminated into admission being granted, subsequent to the letter of acceptance being received from the students on 6th April, 2004, by the present petitioner-institute. In view of aforesaid submissions, it was stated that looking to the above situation no order should be passed by which the education of the students can be stopped. It was further stated that the Committee, if any so formed and established in any event does not have the power to enforce the said regulations in view of the specific terms of reference of the Committee, one of which is reproduced hereinbelow for convenience.
“6(a) To evolve strategy and develop action plan for a Single Common All India Entrance Test for admissions during the year 2005-2006”.
12.1 It was stated that the Committee, if any so formed and established does not have the power to decide and to deviate from the policy under challenge in this petition and can only ensure the participation of the institute in the Entrance Test. Cl.6(c) which is reproduced as follows.
“6(c) To ensure participation of institutions in the above entrance tests as per para 1 above for the year 2004-2005.”
12.2 After relying upon this clause, learned advocate for the petitioner relied upon the affidavit-in-rejoinder wherein the petitioner has also challenged the said policy. The learned counsel submitted that BITS-Pilani of Rajasthan, has succeeded in getting exemption by obtaining an order from the Hon’ble High Court of Rajasthan. The Rajasthan High Court has granted a blanket cover to the said institute from Common Entrance Test and for that purpose the learned advocate for the petitioner has relied upon the judgment of Rajasthan High Court in the case of Birla Institute of Technology and Science, Pilani (Rajasthan) through its Registrar vs. Union of India and others in S.B. Civil Writ Petition No. 2379 of 2003 decided on 2nd April, 2004 (Coram: Shiv Kumar Sharma, J.). Relying upon the said judgment it was stated that the petition needs to be allowed so far as it applies to the current year, so that the education of the students is not hampered or delayed by subjecting the petitioner institute to submit to the Common Entrance Test, more so as this would anyway amount to payment of double examination fees for the students who have already secured an admission in the present institute and the other institutes relying on the tests/results so conducted and declared by the petitioner institute.
12.3 The learned advocate for the petitioner has relied upon the aforesaid judgment of the Rajasthan High Court particularly para 37 on page 25 and 26 which reads as under:
“para 37. Having brooded over the rival submissions, I find that the education policy of the Union of India in making applicable the AIEEE for admission to professional and technical courses, to all the institutions of the country except Indian Institute of Technologies, Indian School of Mines (Dhanbad) and Institute of Technology (Banaras Hindu University) is discriminatory and violative of Article 14 of the Constitution. The UGC in framing Regulation 3.1.1 for admission to undergraduate programmes in Engineering, has show gross discrimination against the petitioner institute which has been assessed to have ranking over most of the IITs including the Institute of Technology (Banaras Hindu University). I would have dissuaded myself from wieghing the pros and cons of this education policy but looking to its unfairness I find it a fit case for judicial interference. The petitioner institute is established and run under the constitutional right guaranteed by Article 19(1)(g) and reasonable restrictions can be imposed under Article 19(6) on the exercise of such right. While the petitioner institute cannot grant admission on its own whims and fancies and must follow some identifiable or reasonable methodology of admitting the students any scheme, rule or regulation that does not give the institute the right to reject candidates who might otherwise be qualified according to their performance in an entrance test, would be an unreasonable restriction under Article 19(6), though appropriate guidelines can be prescribed for holding the entrance test in a fair manner. Even when students are required to be selected on the basis of merit, the ultimate decision to grant admission to the students who have otherwise qualified for the grant of admission must be left with the petitioner institute but such rejection must not be whimsical or for extraneous reasons. In my considered view the petitioner institute which is an unaided institution is entitled to autonomy in its administration while at the same time, it cannot discard the principles of merit.”
12.4 The learned advocate for the petitioner after relying upon the aforesaid judgment of the Hon’ble Apex Court has submitted that the case of the petitioner herein is much better as the institute at Rajasthan were granting admissions not even on their own entrance examination but only based on the 12th school results and, therefore, they were not even scrutinizing based on any particular method of examination but were considering a process called `normalization’ by which they would normalize the results of the other students by comparing it with the results of the toppers of all the HSC regions. That institute was worse off even more so as it is recognized by the UGC under the UGC Act, which specifically contemplates in the Act itself that all institutions recognized by UGC shall have to adhere to a common entrance examination. Therefore even by constitution, the institutions recognized by UGC had to adhere to common entrance examination. Despite all this the Rajasthan High Court held that since the above institution is granting admissions purely on merit, and it being a private college not getting any aid from the Government or the UGC, it is entitled to hold its own admission procedure and not adhere to any common entrance test, and thereby stayed the operation of the notices in its case.
12.5 The learned counsel for the petitioner therefore heavily relied upon the aforesaid judgment and stated that the petitioner institute is also a private institute not taking any aid from any Government or such machinery, and is also only admitting students on merit only, more particularly due to the fact that the entire approach of all the students studying in the petitioner institute needs to be different than that of the other commercial institutes. It has been further stated that even in the case of the present petitioner, the public notice and the action of forcing the petitioner institute to opt for one of the five tests should be quashed and set aside atleast for the current year. It is also pertinent to mention at this stage that there are other two institutions, which rely on the entrance examination and the results declared thereon of the petitioner institute, as clearly mentioned in the petition. Therefore stay of the operation of the above public notice becomes more imperative as the academic year has already commenced and the students have already accepted the admission. Even the course would be starting from 30th of May, 2004. Therefore now to send the students back by disallowing them to start their own course would be a complete breach of the reasons for which the Hon’ble Supreme Court passed the above two judgments, in that they would have to sacrifice one entire year for no fault of theirs or the institute’s. They would have to study, spend on another entrance examination, and on travelling expenses all over again. Expenses apart, just the fact that the students would need to waste an entire year shocks the pillars of morality, as this would have an effect far worse than anyone can imagine. This would place their entire future in jeopardy as most of the students would want to either start earning or go for further studies. Thus this would amount to greatly doubling the inconvenience that the Hon’ble Supreme Court wanted to remove for the students, therefore defeating the entire purpose of the judgment itself and, therefore, the petition should be allowed and the above public notices be quashed and set aside and the petitioner institute should be allowed to conduct its own entrance examination.
12.6 The learned advocate for the petitioner in the alternative submitted that the notices should be stayed qua the petitioner institute for atleast this year being 2004-2005 with liberty to the petitioners to approach the Committee for the years henceforth, along with a direction that the Committee should consider the case in its entirely with due application of mind.
12.7 The learned advocate for the petitioner has also relied upon the judgment of the Hon’ble Apex Court in the case of Islamic Academy of Education and Another vs. State of Karnataka and others reported in (2003) 6 SCC 697 particularly para 21 on page 730 the Hon’ble Supreme Court has observed as under:
“para 21 So far as the year 2003-04 is concerned, time is running out as the outer time-limit for admission is fast approaching or has gone. To meet the urgent situation without going into the issues involved in the various petitions/applications, we direct that the seats be filled up by the institution and the State Governments in the ratio 50:50. However, if by any interim order, this Court has permitted any institution to fill up a higher percentage of seats and the seats have been filled up accordingly, the same shall not be disturbed. It is made clear that due to the time constraint this arrangement has been made, without deciding the contentious issue involved in various pending cases.”
12.8 After relying upon the aforesaid judgment, the learned advocate for the petitioner submitted that in this case also whole admission process is already over and, therefore, in that case also if by interim order the Hon’ble Apex Court permitted the institution to fill up a higher percentage of seats and the seats have been filled up accordingly, the same shall not be disturbed. It is made clear that due to the time constraint this arrangement has been made, without deciding the contentious issue involved in various pending cases.” In this case also by an interim order of this Court and particularly the fact due to an irreversible situation emerges admissions were also given and the academic year of the said course will begin from 30th May, 2004. In view of the same, it will not be possible to give any direction to appear in common entrance test in this behalf.
MY CONCLUSION:
13. I have considered the rival submissions of the petitioner as well as of respondent in this behalf and I am of the view that in view of the averments made by the petitioner in this petition, additional affidavit, amendment and the rejoinder and also the judgment of Rajasthan High Court in the case of Birla Institute of Technology and Science (supra) and judgments of Hon’ble Apex Court in the cases of T.M.A. Pai’s (supra) and Islamic Academy (supra), I am of the view that prima facie the petitioner institute is an unique institute and the advertisement issued and the courses and the examination which has been conducted by the petitioner institute is quite different then the common entrance test envisaged by the Government for MBA course.
13(A) It is no doubt true that the Hon’ble Supreme Court has given directions of common entrance test. However, in the present case the institute like petitioner institute which is an unique institute that fact has not been invited to the Hon’ble Apex Court and, therefore, the observations made by the Hon’ble Apex Court and the order of the Government issuing common entrance test for all Universities and Education Institute cannot be applicable in the case of the petitioner.
13(B) It may be noted that this Court has considered the judgment of T.M.A. Pai’s case (supra) as well as Islamic Academy case (supra). The tenor of both the judgments is that in education field only merit and excellence has to be considered leaving aside all other contentions. This Court is of the view that the process of common entrance test and the process carried out by the petitioner institute clearly envisage that process carried out by the petitioner results into sheer merits and excellence when there are 10,000 people have applied for the said course and out of that 144 selected itself shows that the importance of this institute magnitude of the course. Therefore, it will not be possible for this Court to give any direction to the petitioner institute as the purpose and object of this institute is quite different then the purpose of other institute. It is not only this institute but other two institutes have also followed the same patterns and in view of the same it will not be possible for this Court to give any other direction as prayed for by the respondent in this behalf. This Court has carefully analyses the judgments of the Hon’ble Apex Court in the case of T.M.A. Pai’s case (supra) as well as Islamic Academy’s case (supra) and, there is nothing in this case which envisage that this type of common entrance test with the different object. It will therefore not be proper to this Court to give direction to the petitioner institute for the year 2004-05 for conducting the common entrance test by the Government/respondent.
13.(B/1) This Court has also gone through the judgments of T.M.A. Pai’s case and Islamic Academy’s case (supra). It is no doubt true that in that case the Hon’ble Supreme Court has considered the question of common entrance test for all the institutes which category admission to MBA/PGDBM (or Equivalent) programmes in the country during the Academic Year 2004-05. The All India Test admission by respondent after relying upon the aforesaid judgment issued guidelines for common entrance tests namely CAT (conducted by IIMs), JMET (conducted by IITs), MAT (conducted by AIMA), ATMA (conducted by AIMS) and XAT (conducted by XLRI). All these institutes are the management and other technical institutes to this common test applies. However, the case of the petitioner institute is quite distinct and different and, therefore, the authority will have to consider the case of the petitioner separately. From the fact of the judgment it appears that before the Hon’ble Supreme Court the question which has been raised before this Court was never raised and, therefore, the reliance placed by the respondent over the said judgment and the provisions of AICTE Act, 1987 and the guidelines issued by AICTE will not be prima facie applicable in this behalf. However, for the year 2004-2005 there is too much delay and, therefore, this Court has not decided the same on the merits of the matter due to paucity of time and allowed all students to continue their Academic Year from 30th May, 2004.
13(C) However, this Court is not deciding the said issues finally on merits of the matter, but so far as this order is concerned, as the situation is irreversible and even judgment of Hon’ble Supreme Court in Islamic’s case (supra) also the Hon’ble Supreme Court has stated that once the process of admission started and admissions are already given, the admission cannot be disturbed. In view of the same, in this case also the admission process is already completed and therefore the said admission should not be disturbed and the academic year which is to commence from 30th May, 2004, will have to be continued in this behalf.
13(D) As regards academic year 2005-2006, as per the affidavit filed and as per the order of the office memorandum dated 10th October, 2003, the Government has already constituted a Committee of about 16 expert people and the Committee has been given terms of reference. It will be open for the petitioner to make suitable application before the said Committee for the year 2005-2006 pointing out all these facts and thereafter the committee will consider the case of the petitioner in light of the averments made by the petitioner before this Court. It will be open for the petitioner to produce any further material before the Committee which the petitioner may desire in this behalf. This Court hope and trust that the committee will consider the case of the petitioner taking into consideration the distinct future of the petitioner institute in this behalf. Due to paucity of time this Court has not passed any order for 2005-2006 as prayed for by the petitioner.
13.1 At this stage, a following passage i.e. para 51 of T.M.A. Pai’s case (supra) – (2002) 8 SCC 481 the relevant paras are 51 & 52 on page 542 and 543 reads as follows:
13.1.1 “para.51 A University Education Commission was appointed on 4.11.1948, having Dr.S. Radhakrishnan as its Chairman and nine other renowned educationists as its members. The terms of reference, inter alia, included matters relating to means and objects of university education and research in India and maintenance of higher standards of teaching and examination in universities and colleges under their control. In the report submitted by this Commission, in paras 29 and 31, it referred to autonomy in education which reads as follows:
“University autonomy :- Freedom of individual development is the basis of democracy. Exclusive control of education by the State has been an important factor in facilitating the maintenance of totalitarian tyrannies. In such States institutions of higher learning controlled and managed by governmental agencies act like mercenaries, promote the political purposes of the State, make them acceptable to an increasing number of their population and supply them with the weapons they need. We must resist, in the interests of our own democracy, the trend towards the governmental domination of the educational process.
Higher education is, undoubtedly, an obligation of the State but State aid is not to be confused with State control over academic policies and practices. Intellectual progress demands the maintenance of the spirit of free inquiry. The pursuit and practice of truth regardless of consequences has been the ambition of universities. Their prayer is that of the dying Goethe: `More light’, or that of Ajax in the mist `Light, though I perish in the lighter.’
The respect in which the universities of Great Britain are held is due to the freedom from governmental interference which they enjoy constitutionally and actually. Our universities should be released from the control of politics.
Liberal education:- All education is expected to be liberal. It should free us from the shackles of ignorance, prejudice and unfounded belief. If we are incapable of achieving the good life, it is due to faults in our inward being, to the darkness in us. The process of education is the slow consquering of this darkness. To lead us from darkness to light, to free us from every kind of domination except that of reason, is the aim of education.”
13.1.2 “para.52 There cannot be a better exposition than what has been observed by these renowned educationists with regard to autonomy in education. The aforesaid passage clearly shows that the governmental domination of the educational process must be resisted. Another pithy observation of the Commission was that State aid was not to be confused with State control over academic policies and practices. The observations referred to hereinabove clearly contemplate educational institutions soaring to great heights in pursuit of intellectual excellence and being free from unnecessary governmental controls.”
13.2 The said paragraphs clearly depicts autonomy of university though the said has been done by Dr.S. Radhakrishnan in 1948, the same has been true in light of this decision.
14. In view of the aforesaid position, this Court is of the considered view that the petition is to be partly allowed for the present year 2004-2005. This Court pleased to issue a writ of mandamus and holding that public notice dated 10.10.2003 issued by respondent is not applicable so far as petitioner institute for the year 2004-2005 is concerned. The respondent will not insist upon the students of the petitioner institute to appear for the common entrance test as per the public notice dated 10.10.2003 in view of the facts and circumstances mentioned in the petition as well as in this judgment. This Court further direct the respondent to give exemption to the petitioner institute so far as this year 2004-2005 is concerned and allow the petitioner institute to start the academic year 2004-05 from 30th May, 2004. Any other order if this Court may pass the same will be detriment to the large number of students in this behalf. Rule is made absolute to the above extent. No order as to costs.
15. As regards 2005-2006 is concerned, as indicated earlier, the petitioner will make proper representation to respondent as well as Central Government in connection with obtaining exemption as regards common entrance test is concerned. This Court hope and trust that both Central Government and respondent will hear the petitioner and consider the case of the petitioner in light and circumstances of the case stated by the petitioner in this behalf.
15.1 It may be noted that in this case the Court has only made prima facie observations and it will be open for the Committee to consider the case of the petitioner independently without being influenced by the judgment of this Court.
16. Before I part with this judgment, I would like to observe what is meant by education and what is a real institute imparting education. “The education institute is not an academic cafeteria offering junk food for the mind. It aims at shaping and moulding students character. It not only wants to sharpen students skills – it wants to heighten students awareness, to clarify students vision, to purify students heart. This is education in its deepest sense.”
{Re: Nani Palkhivala, Selected Writings in the Article “Education for India’s Moral and Spiritual Regeneration” page 183 relevant para on page 187}