IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated:12.07.2006
Coram
The Honourable Mr. A.P. SHAH, CHIEF JUSTICE
and
The Honourable Mr. Justice P. JYOTHIMANI
Writ Appeal Nos. 876 to 878, 883, 884 and 896 of 2007
Madha Engineering College, rep. by its Chairman .. Appellant in
Kundrathur, Chennai. W.A.876/2007
Consortium of Self Financing Profession,
Arts & Science Colleges, Tamil Nadu, rep. by its
Secretary Dr. P. Selvaraj,
No.12, Ganapathy Street, .. Appellant in
Royapettah, Chennai-14. W.A.877/2007
Sakthi Mariamman Engineering College,
Rep. by its Chairman K.N. Ramachandran,
No.55, Narayanaswamy Nagar, .. Appellant in
Thandalam, Chennai-602 105. W.A.878/2007
All India Islamic Foundation, rep. by its
Joint Secretary, Seethakathi Chambers,
Old No.688, New No.272, .. Appellant in
Anna Salai, Chennai-6. W.A.883/2007
Sri Nandhanam College of Engineering & Technology,
Rep. by Secretary,
Molakarampatti Village, .. Appellant in
Vellore District. W.A.884/2007
Dr. Rajah Muthiah Chettiar Charitable and
Educational Trust, rep. by its
Trustee K. Chidambaram,
Rani Seethai Hall V Floor, .. Appellant in
No.603, Anna Salai, Chennai-2. W.A.896/2007
Vs.
1. State of Tamil Nadu, rep. by its
Secretary to Government,
Higher Education Department,
Fort St. George, Chennai-9.
2. Director of Higher Education, .. Respondents in
Chennai. W.A.876/2007
1. State of Tamil Nadu, rep. by its
Secretary to Government,
Higher Education Department,
Fort St. George, Chennai-9.
2. The Director of Technical Education, .. Respondents in
Chennai-25. W.As.877 & 878/2007
1. State of Tamil Nadu, rep. by its
Secretary to Government,
Law Department,
Secretariat, Chennai-9.
2. State of Tamil Nadu, rep. by its
Secretary to Government,
Higher Education Department,
Fort St. George, Chennai-9.
3. The Director of Higher Education,
Chennai-25.
4. Anna University, rep. by its Registrar, .. Respondents in
Sardar Patel Road, Guindy, Chennai-25. W.A.883/2007
1. State of Tamil Nadu, rep. by its
Secretary to Government,
Higher Education Department,
Fort St. George, Chennai-9.
2. Anna University, rep. by its Registrar, .. Respondents in
Sardar Patel Road, Guindy, Chennai-25. W.A.884/2007
1. State of Tamil Nadu, rep. by its
Secretary to Government,
Health and Family Welfare Department,
Secretariat, Fort St. George, Chennai-9.
2. The Director of Technical Education,
Kilpauk, Chennai-10.
3. The Selection Committee,
Directorate of Medical Education,
Kilpauk, Chennai-10, rep. by the .. Respondents in
Additional Director of Medical Education. W.A.896/2007
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Prayer : Appeals filed under Clause 15 of the Letters Patent against the orders passed in W.P. Nos.20266, 20212, 20213, 20259, 20346 and 21026 of 2007 dated 2.7.2007 respectively.
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For Appellant :: Mr. R. Muthukumaraswamy, Senior Counsel
in W.A.876/2007 for Mr. R. Natarajan
For Appellant :: Mr. Rajiv Dhawan, Senior Counsel
in W.A.877/2007 for Mr. R. Natarajan
For Appellant :: Mr.N.R. Chandran, Senior Counsel
in W.A.878/2007 for Mr. R. Natarajan
For Appellant in :: Mr.R. Krishnamurthy, Senior Counsel
W.As.883 & 884/2007 for M/s. V. Ayyadurai & V.B. Perumal Raj
For Appellant :: M/s.Sathish Parasaran and
in W.A.896 /2007 R. Parthasarathy
For Respondents :: Mr. R. Viduthalai, Advocate General
Assisted by Mr. M. Sekar,
Special Govt. Pleader (Education)
J U D G M E N T
(The Judgment of the Court was delivered by Honble The Chief Justice)
These appeals are directed against the common judgment and order passed by the learned single Judge in a batch of writ petitions. The challenge in these petitions is to the constitutional validity of some of the provisions of the Tamil Nadu Admission in Professional Educational Institutions Act, 2006 (Act No.3 of 2007) (for short the Act), and the consequential Government Order Nos. 115 and 87 dated 25.05.2007 and 16.03.2007 respectively issued in pursuance of the Act. The writ petitioners are the un-aided minority and non-minority professional colleges and the Consortium of Self Financing Professional, Arts & Science Colleges. The main ground of attack in the writ petitions is that the provisions of the Act are violative of the petitioners fundamental rights guaranteed under Articles 19(1)(g) and 30 of the Constitution of India.
2. The factual matrix of the matter may be noticed first.
From the year 1993-94 till the year 2002-03, admissions to self-financing Medical and Engineering Colleges were made on the basis of the scheme framed by the Supreme Court in the judgment reported in Unnikrishnan vs. State of Andhra Pradesh, 1993 (4) SCC 111. Subsequently, in T.M.A.Pai Foundation v. State of Karnataka, 2002 (8) SCC 481, a 11 Judge Bench ruled that the decision in Unnikrishnans case insofar as it framed the scheme relating to the admission and fixation of fee was unconstitutional. The scheme framed in the said decision and the consequential directions given by the various authorities were overruled. The Supreme Court in the said case further ruled that the minorities, as well as the non-minorities have a right to establish and administer educational institutions which are referable to Articles 30, 19 and 26 of the Constitution of India respectively, and the said right to establish and administer includes the right to admit students. By the said judgment, the Supreme Court recognized the autonomy of the unaided private institutions in the matter of governing admissions and held such institutions cannot be deprived of their right to select students, subject to adhering to the merit based selection.
3. After the judgment in T.M.A.Pai case was delivered on 30.01.2002, different statutes and regulations were enacted by different State Governments, Union of India, and some of the State Governments and educational institutions understood the majority judgment in T.M.A.Pai case in different perspective leading to litigations in several courts and passing of various orders by various courts. When the interim orders were assailed before the Supreme Court, the Supreme Court referred such of those matters to the Constitution Bench, so as to clarify the doubts and anomalies, if any arising out of the judgment in T.M.A.Pai case. The said reference was decided by the Constitution Bench in Islamic Academy of Education v. State of Karnataka, 2003 (6) SCC 697. The Constitution Bench sought to clarify the judgment in T.M.A.Pai case under four heads/questions. The private unaided professional institutions contended before the Supreme Court that they were entitled to fill up all the seats by themselves, evolving their own method of admission, while the State Governments contended that the judgment in T.M.A.Pai case enabled them to fill up a percentage of the seats in the private institutions and that the admission of students under the management quota should be based on merit through a Common Entrance Test conducted by the State Government/Agencies. The aforesaid issues which were covered by questions nos. 3 and 4 were answered by the Bench in the above mentioned case holding that the Government was entitled to fill up a certain percentage of seats in the private un-aided professional colleges which would vary from State to State depending on the exigencies, and that different percentages can be fixed for minority institutions and that the managements are entitled to fill up only the remaining seats. The Supreme Court further held that the Managements of both minority and non-minority professional colleges can admit students in the quota allotted to them either on the basis of the Common Entrance Test conducted by the State or on the basis of a Common Entrance Test conducted by an Association of all Colleges of a particular type in the State namely, Medical, Engineering, etc. Insofar as minority colleges are concerned, it was held that they will be entitled to fill up their quota with their own students on the basis of inter se merit among those students. The Supreme Court issued directions to the State Governments to appoint a Permanent Committee to ensure that the test conducted by the Association of Private Colleges is fair and transparent.
4. Pursuant to the judgment of the Supreme Court in Islamic Academy case, the State of Tamil Nadu issued orders fixing 50% of the seats in non-minority institutions to be filled up by the State through the Common Entrance Test conducted by the State and permitting the private self-financing non-minority institutions to fill up the remaining 50% seats. In minority institutions, 30% of the seats were to be filled up by the Government leaving the minority institutions to fill up the remaining 70% seats. The minority as well as non-minority institutions were permitted to conduct a Common Entrance Test through the petitioner consortium and they were also permitted to admit students pertaining to management quota based on the merit resulting from the entrance examination and marks obtained in the qualifying examinations.
5. In the meantime, number of writ petitions were filed in various courts raising several issues which were not resolved in T.M.A.Pai case as also the contentions to the effect that the judgment in Islamic Academy was contrary to the judgment in T.M.A.Pai case. The said matters were referred to a seven Judge Bench of the Supreme Court which rendered its judgment in the case of P.A.Inamdar & others v. State of Maharashtra, 2005 (6) SCC 537. The seven Judge Bench answered the issues posed before it under four heads. The Bench held that the States have no power to insist on seat sharing in un-aided private professional institutions by fixing a quota of seats between the Management and the State. The Bench, further, held that neither in the judgment in T.M.A.Pai case nor in the Kerala Educational Bill case, there is anything which would allow the State to regulate or control admissions in un-aided professional educational institutions so as to compel them to give up a share of the available seats to the candidates chosen by the State. The Bench held that such sharing would amount to nationalization of seats which was specifically disapproved in T.M.A.Pai case. The Bench further held that such imposition of quota or enforcing reservation policy of the available seats in un-aided professional colleges is an act constituting encroachment on the right of the private institutions which cannot be held to be regulatory within the meaning of Article 19(6) of the Constitution of India. The Bench accordingly held that it is unable to approve the scheme in Islamic Academy case to the extent that it allows the State to fix quota for seat sharing between the Management and the State on the basis of local needs of each State in un-aided institutions of both minority and non-minority categories. That part of the judgment in Islamic Academy case was declared as not laying down the correct law and running counter to the judgment in T.M.A.Pai case. The Supreme Court clarified that paragraph-68 of the majority opinion in T.M.A.Pai case could be construed only to mean that unaided institutions could voluntarily agree for seat sharing with the State Government and not otherwise.
6. Notwithstanding the judgment in P.A.Inamdar case, the Permanent Committee before which permission was sought for by the petitioner to conduct of Common Entrance Test passed an order on 09.05.2006 containing several directions. The said directions inter-alia directed that the admissions are to be made only on the basis of a rank list prepared by the centralized counseling following single window system and also to follow the rule of reservation by the non-minority private engineering colleges. This direction issued by the Permanent Committee was challenged by the petitioner Consortium as well as by the private institutions. When the matters were pending before this Court, there was a consensus arrived at between the Government and the petitioner Consortium in the matter of admissions pertaining to the academic year 2006-07. Accordingly, an affidavit was filed before this Court by which the petitioner Consortium agreed for seat sharing between the Government and the private self-financing institutions for the academic year 2006-07. It was agreed that in respect of non-minority institutions, 65% of the seats in their institutions could be filled by the Government, while the remaining 35% could be filled by the respective colleges. In respect of minority institutions, 50% of the seats could be filled by the Government while the remaining 50% could be filled by the respective colleges and 15% of the seats within the Management quota was permitted to be filled up with Non-Resident Indians (NRIs). The admissions were agreed to be made based on the marks obtained in the Common Entrance Test conducted by the petitioner Consortium taken along with the marks secured in the qualifying examinations. The State Government also filed an affidavit agreeing to follow the practice, which was followed for the previous academic year in the matter of admission of students by private colleges and making it clear that they do not insist that the self-financing colleges should follow the single window system. The affidavits filed by the petitioner were taken on record and in terms of the settlement arrived at between the parties, the writ petitions were disposed of by an order passed by the learned single Judge of this court reported in 2006 (3) MLJ 648 (Consortium of Self-Financing Professional Arts and Science Colleges v. Permanent Committee for the conduct of the Common Entrance Test). While disposing of the said writ petitions, by recording the affidavit and issuing directions thereof, the learned single Judge observed that the aforesaid directions though based on a consensus reached between the parties were nevertheless in conformity with the principles enunciated by the Supreme Court.
7. It is necessary to mention at this stage that the self-financing medical colleges without prejudice to their rights recognized in T.M.A.Pai case and P.A.Inamdar case offered 50% of the total seats in their institutions for the academic year 2006-07 for allotment by the Government under single window system. It seems that thereafter the Managements of the Institutions agreed to enhance the said quota to 65% and the remaining 35% were to be filled up by the medical colleges on multiple window basis.
8. When the matters stood thus, the Tamil Nadu State Legislature enacted Tamil Nadu Act 3 of 2007 on 06.12.2006 and the assent of the President was received on 03.03.2007 and the Act was brought into force on 07.03.2007. It will be convenient to refer to some of the provisions of the Act as they are material for the purpose of this case. The Object of the Act, as stated in the short title and in the preamble, is to provide for admission to professional degree courses such as Engineering, Medicine, Dental, Agriculture and other allied courses on the basis of the marks obtained in the qualifying examinations. Sections 2(c)(iii), 4 and 5(4) are the provisions which are impugned as unconstitutional and they are as follows: –
2. In this Act, unless the context otherwise requires: –
(a)
(b)..
(c)Government seats mean: –
(i)
(ii)
(iii)65% of the seats in each branch in non-minority unaided professional educational institutions and 50% of the seats in each branch in minority unaided professional educational institutions in accordance with the consensus arrived at between such professional educational institutions and the Government.
Section 4: – Admission to unaided professional educational institutions: – Notwithstanding anything contained in any relevant law or any rules, regulations or by laws made thereunder, admission to seats, excluding the seats referred to in item (iii) of clause (c) of section 2, in all unaided professional educational institutions shall be made by the consortium of unaided professional educational institutions approved by the Government or by any Authority authorized by the Government, on the basis of the marks obtained by a student in the relevant subjects, in the qualifying examination.
Section 5(4) : — The appropriate authority and the consortium of unaided professional educational institution shall prepare the rank lists for admission of students to the seats referred to in section 3 and section 4, respectively and allot students through centralized counseling.
Section 2(c)(iii) of the Act declares that 65% of the seats in each branch in non-minority un-aided professional educational institutions and 50% of the seats in each branch in minority unaided professional educational institutions shall be Government seats in accordance with the consensus arrived at between such professional educational institutions and the Government. Section 4 of the Act provides that admission to seats, excluding the seats referred to in item (iii) of clause (c) of Section 2, in all unaided professional educational institutions shall be made by the consortium of unaided professional educational institutions approved by the Government or by any authority authorized by the Government, on the basis of the marks obtained by a student in the relevant subjects, in the qualifying examinations. Then Section 5(4) of the Act provides that such admissions shall be through centralized counseling.
9. By G.O.Ms.No.87 dated 16.03.2007, the State Government directed that the apportionment ratio fixed between the Government and the Management of Unaided Minority/Non-Minority institutions shall be followed for admission to Under Graduate Courses to unaided Medical, Dental and other allied courses for the academic year 2007-08. By subsequent G.O.Ms.No.115 dated 25.05.2007, the State directed that the private engineering colleges shall admit the students in the management quota based on the marks obtained by them in the qualifying examinations by following the single window system and counseling in accordance with the provisions of the Act 3 of 2007.
10. The petitioners contended before the learned single Judge that as per the pronouncement of the Supreme Court in P.A.Inamdar case, the State has no right to appropriate any quota of seats or to compel the unaided professional institutions to give up a share of the available seats to the candidates chosen by the State. In the circumstances, the provisions contained in Section 2(c)(iii) of the Act defining Government seats to include a percentage of seats in each branch in unaided professional institutions would be opposed to the judgment of the Supreme Court in the aforementioned case. It was contended that the consensus arrived at between the Government and the private engineering colleges during the year 2006 was specifically for the academic year 2006-07 as could be seen from the undertakings given by the petitioners before this Court and the reference to the consensus arrived at between the institutions and the Government in the provision contained in Section 2(c)(iii) is a misconception and a non-existing fact, and in any event the provisions of Section 2(c) (iii) is liable to be struck down on the ground of unreasonableness. The petitioners further contended that the provision contained in Section 4 of the Act which directs admission in unaided private educational institutions to be made on the basis of the marks obtained in the qualifying examinations is unconstitutional, illegal and opposed to the principles laid down by the Supreme Court in T.M.A.Pai case. Further, the provision contained in Section 5(4) of the Act providing for the appropriate authority and requiring the Consortium of unaided professional institutions to allot candidates for admission through centralized counseling is unconstitutional, illegal and seriously impairs the rights of the petitioners. Reliance was placed on the judgment of the Division Bench of this Court in All India Medical and Engineering Colleges Association etc v. Permanent Committee for the conduct of the Common Entrance Test, etc and another, 2004 (4) L.W.70).
11. On the other hand, the respondent/State filed its counter contending that the order of a learned single Judge of this Court passed in a batch of writ petitions with regard to engineering admissions for the year 2004-05 dispensing with the single window system for selection of candidates to management quota was referred to a Division Bench and in view of the divergent views of the Bench expressed in the order dated 25.08.2004, the matter was referred to a third judge, who confirmed the finding of one of the Judges of the Bench that the individual institutions shall have their own counseling and the order dated 25.08.2004 has been taken on appeal in the S.L.P before the Supreme Court and the same is pending for final adjudication and as such, the order dated 25.08.2004 of this Court is not final and conclusive, more particularly when the Supreme Court, in paragraphs 133 and 135 of its judgment in P.A.Inamdar case has stood by the centralized counseling taking into account the larger interest and welfare of the student community. In response to the case of the petitioner that the consensus arrived at between the Consortium and the Government in respect of seat sharing is only for the academic year 2006-07, it is contended by the State that when the Consortium did not protest at the time of passing of the Bill in the Assembly in December 2006 after the assent by the President of India, the petitioners are now estopped from challenging Section 2(c) (iii) of the Act. In this context, it is further submitted by the State that seat-sharing cannot be reviewed every year unless there is a material change warranting modification of the terms of agreement.
12. The learned single Judge upon hearing the parties came to the conclusion that the provisions of the Act are intra vires. The learned single Judge was of the opinion that the State can fix quota according to the local needs in respect of minority and non-minority unaided professional colleges in the light of the observations made by the Supreme Court in para.68 of T.M.A.Pai case. The learned single Judge further held that the legislative intent is based on the consensus arrived between the Consortium and the State which was permanent and not limited to a particular year. The learned single Judge further held that the concept of reasonableness has no application, since the earlier consensus was arrived at between the consortium and the State. So far as Sections 4(1) and 5(4) of the Act are concerned, the learned single Judge held that the right of students selection must be subject to the supervisory power of the Government and the judgment in P.A.Inamdar case mandates a single window system of counseling and admissions. According to the learned single Judge even the minority institutions must yield the right to student selection to the State. Consequently, the learned single Judge dismissed all the petitions.
13. Dr. Rajeev Dhavan, learned senior counsel appearing for the Consortium, strenuously contended that para.68 of the T.M.A.Pai case cannot be read in isolation and it must be interpreted to mean that unaided institutions can enter into consensual seat-sharing arrangements with the State. He submitted that in P.A.Inamdar case, the Supreme Court categorically held that the State cannot impose quotas or seat-sharing arrangements on unaided institution and the decision in Islamic Academy insofar as it approves the imposition of quotas by the States is incorrect and overruled. As regards the issue of consensus, it was submitted by the learned senior counsel that in construing a legislation, the legislative facts behind a legislation may be looked at in order to ensure that the legislation is not an exercise in selfdeception. According to him, the consensus arrived at between the Consortium and the State contained three elements, namely that the consensus was for 2006-07, that the single window system was dispensed with and that 65:35 and 50:50 ratio was worked out for the State and unaided non-minority and minority institutions respectively. He submitted that the legislature could not have unilaterally accepted one part of the consensus ignoring that it was for one year and on a multi-window basis. Learned senior counsel submitted that the State action of unilaterally altering the consensus is wholly arbitrary and unreasonable. He referred to the case of M.Nagaraj v. Union of India, 2006 (8) SCC 212, wherein the Court held that the reasonableness is part of the basic structure of the constitution which cannot be ousted even by a constitutional amendment. He submitted that P.A.Inamdar case allows freedom to the colleges especially minorities to follow single window system where there is a CET and when CET is abolished the question of following the single window system would not arise.
14. Mr.R.Krishnamoorthy, and Mr.R.Muthukumarasamy, learned senior counsel, appearing for the unaided engineering colleges while adopting the submission of Dr.Rajeev Dhavan, on Section 2(c)(iii) made some further submissions on the question of validity of Sections 4(1) and 5(4) of the Act. Learned senior counsel submitted that the aforesaid provision which denies the choice of selection of students and which deprives the private unaided institutions of the right of admission amounts to surrendering the total process of selection to the State or its agencies, which would be unconstitutional, as held by the Supreme Court in T.M.A.Pai case The Supreme Court in T.M.A.Pai and P.A.Inamdar has clearly held that the unaided professional institutions, both minority and non-minority, have unfettered right to select and admit students subject to the procedure being fair and transparent. It was further submitted that in St.Stephens College v. University of Delhi, 1992 (1) SCC 558, the Supreme Court has held that the minority institutions are entitled to have their community candidates to maintain their minority character subject to the state regulating the intake, which shall not exceed 50%. Learned senior counsel submitted that in T.M.A. Pai the Supreme Court while considering the issue at para.133 of the judgment has proceeded to hold that the aided minority institutions can give preference to the students of those minority, not necessarily limited to 50% as held in St.Stephens case but to a reasonable extent depending on the type of the institution, etc. It was further submitted by the learned senior counsel that the Supreme Court has made it clear that this limitation is applicable only to aided minority institutions. Therefore, it is open to un-aided minority institutions to fill up all the seats with minority students. It was submitted that the operation of Sections 4(1) and 5(4) of the Act would hamper the right of minority to admit its own group of students.
15. Mr.N.R.Chandran, learned senior counsel, also appearing for unaided engineering colleges submitted that the decisions in T.M.A.Pai and P.A.Inamdar did not allow nationalization of seats. According to him appropriation of seats under Section 2(c) (iii) amounts to nationalization which has been clearly disapproved by the Supreme Court. Mr.N.R.Chandran submitted that the impugned Act does not disclose any public purpose behind take over of 65% of the seats in the private unaided educational institutions, particularly in view of the fact that the students to whom the seats are offered by the Government as well as private educational institutions are the same, the fee payable by the students to the institutions whether admitted through the Government counseling or through the Management itself is the same and all seats in private unaided non-minority educational institutions are based on inter se merit.
16. Mr.Satish Parasaran, learned counsel appearing for the unaided medical institutions, submitted that the autonomy of private unaided professional institutions in the matter of admission of students, among others, has been upheld by the decisions in T.M.A.Pai Foundation and P.A.Inamdar. Any seat sharing arrangement cannot be imposed by the State but can only arrive at by a consensual arrangement which may be reached between the private unaided professional institutions and the State. He submitted that in the light of the law laid down by the Supreme Court, the legislature is incompetent to legislate in respect of seat sharing since the legislation, such as it is, is never bilateral or consensual but is a unilateral command of the sovereign. He further submitted that after the consensual seat sharing arrangement expired by efflux of time, enactment of a legislation seeking to re-infuse life and perpetuate the expired arrangement even in the absence of a consensus is in clear violation of the law laid down by the Supreme Court in P.A.Inamdar. In the alternate, he submitted that it is necessary to read down Section 2(c) (iii) as a mere definition which provides a frame work or a pre-conceived model for seat sharing at 65:35 in case of non-minority unaided professional educational institutions and 50:50 in case of minority unaided professional educational institutions keeping as the basis the consensus arrived at between the educational institutions and the Government during the past year. He submitted that the observations in P.A.Inamdar with reference to centralized counseling made in paras. 136 and 138 have to be read in the context of a Common Entrance Test. Therefore, the insistence on centralized counseling to be done through a Consortium, after the abolition of the Common Entrance Test in the State of Tamil Nadu is not only an interference with the petitioners right of administration, but is also unworkable and a needless exercise.
17. In reply, learned Advocate General submitted that the consensual arrangement for seat sharing cannot be treated as an annual exercise. According to him, a possible consensual arrangement which can be reached between the unaided professional institutions and the State is not confined to any particular period, either by para.68 of the judgment in T.M.A.Pai case or by paras. 126 and 128 of P.A.Inamdar case. He submitted that it is clear from the observation of the Supreme Court in P.A.Inamdar that voluntary agreement for seat sharing is an aspect of merit and hence by necessary implication, it can only be a one-time agreement and not an annual exercise since merit as the criterion for admission is an essential ingredient for all time to come. Learned Advocate General submitted that the observations in para.68, even if it is taken as an observation in passing or illustrative situation, a seat sharing arrangement which can be reached by consent or agreement or persuasion, it has to be necessarily taken only as devising a possible mechanism so as to take care of the poor and backward sections of the society which do not vary from year to year. He submitted that in case of contract between the Government and the Consortium, which is a body corporate, the intention of the parties is to be gathered from the language employed in the agreement. He submitted that there is nothing to suggest that the seat sharing is restricted to the academic year 2006-07 only. He submitted that the State has a right to regulate admission procedure in unaided minority institutions. He further submitted that the observations in para.105 of the judgment in P.A.Inamdar case are to the effect that Article 30 does not come in the way of the State stepping in for the purpose of securing transparency and recognition of merit in the matter of admissions. Regulatory measures for ensuring educational standard and maintaining excellence thereof are no anathema to provision conferred by Article 30(1). Learned Advocate General submitted that Sections 4(1) and 5(4) of the Act are essentially regulatory measures to ensure transparency and merit in the selection of seats and do not suffer from any legal infirmity.
18. Before adverting to the rival contentions, it is necessary to refer to the relevant portions of the judgment of the Supreme Court in T.M.A.Pai case and P.A.Inamdar case. In T.M.A. Pai, the majority held that the decision in Unnikrishnans 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. are overruled. The Supreme Court further observed in paras.38, 40 & 41 as follows: – (SCC pages. 540 & 541)
38. The scheme in Unni Krishnan case has the effect of nationalizing education in respect of important features viz. the right of a private unaided institution to give admission and to fix the fee. By framing this scheme, which has led to the State Governments legislating in conformity with the scheme, the private institutions are indistinguishable from the government institutions; curtailing all the essential features of the right of administration of a private unaided educational institution can neither be called fair nor reasonable. Even in the decision in Unni Krishnan case it has been observed by Jeevan Reddy, J., at p. 749, para 194, as follows:
194 . The hard reality that emerges is that private educational institutions are a necessity in the present-day context. It is not possible to do without them because the governments are in no position to meet the demand particularly in the sector of medical and technical education which call for substantial outlays. While education is one of the most important functions of the Indian State it has no monopoly therein. Private educational institutions including minority educational institutions too have a role to play.
40. Any system of student selection would be unreasonable if it deprives the private unaided institution of the right of rational selection, which it devised for itself, subject to the minimum qualification that may be prescribed and to some system of computing the equivalence between different kinds of qualifications, like a common entrance test. Such a system of selection can involve both written and oral tests for selection, based on principle of fairness.
41. Surrendering the total process of selection to the State is unreasonable, as was sought to be done in Unni Krishnan scheme. Apart from the decision in St. Stephens College v. University of Delhi which recognized and upheld the right of a minority aided institution to have a rational admission procedure of its own, earlier Constitution Bench decisions of this Court have, in effect, upheld such a right of an institution devising a rational manner of selecting and admitting students. (emphasis supplied)
19. With regard to the question as to whether there can be Government regulations in case of private institutions, and if so to what extent, the Court observed in para.55 as follows: – (SCC. P.545)
..There, necessarily, has to be a difference in the administration of private unaided institutions and the government-aided institutions. Whereas in the latter case, the Government will have greater say in the administration, including admissions and fixing of fees, in the case of private unaided institutions, maximum autonomy in the day-to-day administration has to be with the private unaided institutions. Bureaucratic or governmental interference in the administration of such an institution will undermine its independence
(emphasis supplied)
In para.65 the Supreme Court has further observed: (SCCp.548)-
The reputation of an educational institution is established by the quality of its faculty and students, and the educational and other facilities that the college has to offer. The private educational institutions have a personality of their own, and in order to maintain their atmosphere and traditions, it is but necessary that they must have the right to choose and select the students who can be admitted to their courses of studies. It is for this reason that in St. Stephens College case this Court upheld the scheme whereby a cut-off percentage was fixed for admission, after which the students were interviewed and thereafter selected. While an educational institution cannot grant admission on its whims and fancies, and must follow some identifiable or reasonable methodology of admitting the students, any scheme, rule or regulation that does not give the institution the right to reject candidates who might otherwise be qualified according to, say, their performance in an entrance test, would be an unreasonable restriction under Article 19(6), though appropriate guidelines/modalities can be prescribed for holding the entrance test in a fair manner. Even when students are required to be selected on the basis of merit, the ultimate decision to grant admission to the students who have otherwise qualified for the grant of admission must be left with the educational institution concerned. However, when the institution rejects such students, such rejection must not be whimsical or for extraneous reasons.
(emphasis supplied)
The Court then with regard to private unaided professional colleges observed: – (SCC page.549 para.68)
..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.
(emphasis supplied)
20. The Court upon a detailed analysis of the decision of the Constitution Bench in St.Stephens case concluded as follows: – (SCC page 581 para.144 & page 584 para. 151)
As long as an educational institution, whether belonging to the minority or the majority community, does not receive aid, it would, in our opinion, be its right and discretion to grant admission to such students as it chooses or selects subject to what has been clarified before.
151. The right of the aided minority institution to preferably admit students of its community, when Article 29(2) was applicable, has been clarified by this Court over a decade ago in St. Stephens College case. While upholding the procedure for admitting students, this Court also held that aided minority educational institutions were entitled to preferably admit their community candidates so as to maintain the minority character of the institution, and that the State may regulate the intake in this category with due regard to the area that the institution was intended to serve, but that this intake should not be more than 50% in any case. Thus, St. Stephens endeavoured to strike a balance between the two articles. Though we accept the ratio of St. Stephens which has held the field for over a decade, we have compelling reservations in accepting the rigid percentage stipulated therein. As Article 29 and Article 30 apply not only to institutions of higher education but also to schools, a ceiling of 50% would not be proper. It will be more appropriate that, depending upon the level of the institution, whether it be a primary or secondary or high school or a college, professional or otherwise, and on the population and educational needs of the area in which the institution is to be located, the State properly balances the interests of all by providing for such a percentage of students of the minority community to be admitted, so as to adequately serve the interest of the community for which the institution was established. (emphasis supplied)
21. In Islamic Academy case, while seeking to clarify the observations in T.M.A.Pai case in para.68, the Constitution Bench concluded in para.13 of the judgment that a proper reading of Section 68 indicates that in cases of non-minority professional colleges a certain percentage of seats can be reserved for admission by the management. The rest have to be filled up on the basis of counselling by the State agencies. The prescription of percentage has to be done by the Government according to local needs keeping in mind that provisions have to be made for the poorer and backward sections of the society. The Bench further observed that a reading of paragraphs 59 and 68 shows that in non-minority professional colleges admission of students, other than the percentage given to the management, can only be on the basis of merit as per the common entrance tests conducted by the government agencies.
22. In P.A.Inamdar, the Supreme Court expressly disapproved
the scheme evolved in Islamic Academy to the extent it allows the States to fix quota for seat-sharing between the management and the States on the basis of local needs of each State, in the unaided private educational institutions of both minority and non-minority categories. It was held that the observations in para. 68 merely permit unaided private institutions to maintain merit as the criterion of admission by voluntarily agreeing for seat-sharing with the State or adopting selection based on common entrance test of the State. The Supreme Court while answering Question No.1 relating to the issue of unaided educational institutions; appropriation of quota by the State and enforcement of reservation policy observed: –
121. .The essential ingredients of the management, including admission of students, recruiting of staff and the quantum of fee to be charged, cannot be regulated. (Para 55, Pai Foundation).
124. So far as appropriation of quota by the State and enforcement of its reservation policy is concerned, we do not see much of a difference between non-minority and minority unaided educational institutions. We find great force in the submission made on behalf of the petitioners that the States have no power to insist on seat-sharing in unaided private professional educational institutions by fixing a quota of seats between the management and the State. The State cannot insist on private educational institutions which receive no aid from the State to implement the States policy on reservation for granting admission on lesser percentage of marks i.e. on any criterion except merit.
125. As per our understanding, neither in the judgment of Pai Foundation nor in the Constitution Bench decision in Kerala Education Bill which was approved by Pai Foundation is there anything which would allow the State to regulate or control admissions in the unaided professional educational institutions so as to compel them to give up a share of the available seats to the candidates chosen by the State, as if it was filling the seats available to be filled up at its discretion in such private institutions. This would amount to nationalisation of seats which has been specifically disapproved in Pai Foundation. Such imposition of quota of State seats or enforcing reservation policy of the State on available seats in unaided professional institutions are acts constituting serious encroachment on the right and autonomy of private professional educational institutions. Such appropriation of seats can also not be held to be a regulatory measure in the interest of the minority within the meaning of Article 30(1) or a reasonable restriction within the meaning of Article 19(6) of the Constitution. Merely because the resources of the State in providing professional education are limited, private educational institutions, which intend to provide better professional education, cannot be forced by the State to make admissions available on the basis of reservation policy to less meritorious candidates. Unaided institutions, as they are not deriving any aid from State funds, can have their own admissions if fair, transparent, non-exploitative and based on merit.
126. The observations in para. 68 of the majority opinion in Pai Foundation on which the learned counsel for the parties have been much at variance in their submissions, according to us, are not to be read disjointly from other parts of the main judgment. A few observations contained in certain paragraphs of the judgment in Pai Foundation if read in isolation, appear conflicting or inconsistent with each other. But if the observations made and the conclusions derived are read as a whole, the judgment nowhere lays down that unaided private educational institutions of minorities and non-minorities can be forced to submit to seat-sharing and reservation policy of the State. Reading relevant parts of the judgment on which learned counsel have made comments and counter-comments and reading the whole judgment (in the light of previous judgments of this Court, which have been approved in Pai Foundation in our considered opinion, observations in para 68 merely permit unaided private institutions to maintain merit as the criterion of admission by voluntarily agreeing for seat-sharing with the State or adopting selection based on common entrance test of the State. There are also observations saying that they may frame their own policy to give freeships and scholarships to the needy and poor students or adopt a policy in line with the reservation policy of the State to cater to the educational needs of the weaker and poorer sections of the society.
127. Nowhere in Pai Foundation either in the majority or in the minority opinion, have we found any justification for imposing seat-sharing quota by the State on unaided private professional educational institutions and reservation policy of the State or State quota seats or management seats.
128. We make it clear that the observations in Pai Foundation in para 68 and other paragraphs mentioning fixation of percentage of quota are to be read and understood as possible consensual arrangements which can be reached between unaided private professional institutions and the State.
129. In Pai Foundation it has been very clearly held at several places that unaided professional institutions should be given greater autonomy in determination of admission procedure and fee structure. State regulation should be minimal and only with a view to maintain fairness and transparency in admission procedure and to check exploitation of the students by charging exorbitant money or capitation fees.
130. For the aforesaid reasons, we cannot approve of the scheme evolved in Islamic Academy to the extent it allows the States to fix quota for seat-sharing between the management and the States on the basis of local needs of each State, in the unaided private educational institutions of both minority and non-minority categories. That part of the judgment in Islamic Academy in our considered opinion, does not lay down the correct law and runs counter to Pai Foundation. (emphasis supplied)
23. The Bench also ruled that neither the policy of reservation can be enforced by the State nor any quota or percentage of admissions can be carved out to be appropriated by the State in a minority or non-minority unaided educational institutions. It was observed in para.132: – (SCC page.603)
Our answer to the first question is that neither the policy of reservation can be enforced by the State nor any quota or percentage of admissions can be carved out to be appropriated by the State in a minority or non-minority unaided educational institution. Minority institutions are free to admit students of their own choice including students of non-minority community as also members of their own community from other States, both to a limited extent only and not in a manner and to such an extent that their minority educational institution status is lost. If they do so, they lose the protection of Article 30(1).
(emphasis supplied)
24. On question no.2 relating to admission procedure in unaided educational institutions, the Court held as follows: – (SCC para.136 to 138, pages 604 & 605)
136. Whether minority or non-minority institutions, there may be more than one similarly situated institutions imparting education in any one discipline, in any State. The same aspirant seeking admission to take education in any one discipline of education shall have to purchase admission forms from several institutions and appear at several admission tests conducted at different places on the same or different dates and there may be a clash of dates. If the same candidate is required to appear in several tests, he would be subjected to unnecessary and avoidable expenditure and inconvenience. There is nothing wrong in an entrance test being held for one group of institutions imparting same or similar education. Such institutions situated in one State or in more than one State may join together and hold a common entrance test or the State may itself or through an agency arrange for holding of such test. Out of such common merit list the successful candidates can be identified and chosen for being allotted t o different institutions depending on the courses of study offered, the number of seats, the kind of minority to which the institution belongs and other relevant factors. Such an agency conducting the common entrance test (CET for short) must be one enjoying utmost credibility and expertise in the matter. This would better ensure the fulfilment of twin objects of transparency and merit. CET is necessary in the interest of achieving the said objectives and also for saving the student community from har assment and exploitation. Holding of such common entrance test followed by centralised counselling or, in other words, single-window system regulating admissions does not cause any dent in the right of minority unaided educational institutions to admit students of their choice. Such choice can be exercised from out of the list of successful candidates prepared at CET without altering the order of merit inter se of the students so chosen.
137. Pai Foundation has held that minority unaided institutions can legitimately claim unfettered fundamental right to choose the students to be allowed admission and the procedure therefor subject to its being fair, transparent and non-exploitative. The same principle applies to non-minority unaided institutions. There may be a single institution imparting a particular type of education which is not being imparted by any other institution and having its own admission procedure fulfilling the test of being fair, transparent and non-exploitative. All institutions imparting same or similar professional education can join together for holding a common entrance test satisfying the abovesaid triple tests. The State can also provide a procedure of holding a common entrance test in the interest of securing fair and merit-based admissions and preventing maladministration. The admission procedure so adopted by a private institution or group of institutions, if it fails to satisfy all or any of the triple tests, indicated hereinabove, can be taken over by the State substituting its own procedure. The second question is answered accordingly.
138. It needs to be specifically stated that having regard to the larger interest and welfare of the student community to promote merit, achieve excellence and curb malpractices, it would be permissible to regulate admissions by providing a centralised and single-window procedure. Such a procedure, to a large extent, can secure grant of merit-based admissions on a transparent basis. Till regulations are framed, the Admission Committees can oversee admissions so as to ensure that merit is not the casualty. (emphasis supplied)
25. In P.A.Inamdar case, the Supreme Court expressly disapproved the scheme evolved in Islamic Academy case to the extent it allow the States to fix quota for seat sharing between the Management and the States on the basis of local needs of each State in the unaided private educational institutions of both minority and non-minority categories. It was categorically held that the States have no power to insist on seat sharing in unaided private professional educational institutions by fixing a quota of seats between the management and the State. It was held that this would amount to nationalization of seats, which has been specifically disapproved by T.M.A.Pai. Such imposition of quota of State seats would also amount to serious encroachment on the right and autonomy of private professional educational institutions. Such appropriation of seats can also not be held to be a regulatory measure in the interest of the minority within the meaning of Article 30(1) or a reasonable restriction within the meaning of Article 19(6) of the Constitution. It was held that unaided institutions, as they are not deriving any aid from the State funds, can have their own admissions if the procedure followed is fair, transparent and non-exploitative and based on merit. It was, further, held that the observations in para.68 in T.M.A.Pai merely permit unaided private institutions to maintain merit as the criteria of admission by voluntarily agreeing for seat sharing with the State or adopting selection based on common entrance test of the State. It was, however, argued by the State before the learned single Judge that the decision in P.A.Inamdar does not lay down any law and this submission seems to have persuaded the learned single Judge to give his own interpretation to para.68 of T.M.A.Pai. We are afraid that the submission of the State that P.A.Inamdar case does not lay down any law cannot be accepted, as P.A.Inamdar case specifically overrules Islamic Academy so far as it lays down seat sharing arrangement fixed on the basis of local needs formula. According to the learned counsel appearing for the petitioners, the State cannot seek to perpetuate the expired arrangement by enacting a legislation even in the absence of any such consensus.
26. Before we go into the question as to whether there was a permanent/perpetual consensual arrangement between the parties, it is necessary to find out if the legislative declaration of consensual arrangement in Section 2 (c) (iii) of the Act is amenable to judicial scrutiny. It is now well settled that the legislative declarations of facts are not beyond the judicial scrutiny in the context of constitutional challenge.
In Kesavananda Bharati v. State of Kerala, 1973 (4) SCC 225, the question arose in the context of legislative declarations made for purposes of Article 31-C whether the court was precluded from lifting the veil, examining the facts and holding such legislative declarations as invalid. The said issue was dealt with in various judgments in that case, e.g. judgments of Ray, J. (as he then was), Palekar, Khanna, Mathew, Dwivedi, JJ., and Beg, J. and Chandrachud, J. (as they then were) (see summary at pp. 304-L to O in SCC). The learned Judges held that the courts could lift the veil and examine the position in spite of a legislative declaration. Ray, J. (as he then was) observed: (SCC Headnote)
The court can tear the veil to decide the real nature of the statute if the facts and circumstances warrant such a course.
A conclusive declaration would not be permissible so as to defeat a fundamental right. (emphasis supplied)
Palekar, J. said that if the legislation was merely a pretence and the object was discrimination, the validity of the statute could be examined by the court notwithstanding the declaration made by the legislature and the learned Judge referred to Charles Russell v. R and to Attorney General v. Queen Insurance Co. Khanna, J. held that the declaration could not preclude judicial scrutiny. Mathew, J. held that declarations were amenable to judicial scrutiny. If the law was passed only ostensibly but was in truth and substance, one for accomplishing an unauthorised object, the court, it was held, would be entitled to tear the veil. Beg, J. (as he then was) held that the declaration by the legislature would not preclude a judicial examination. Dwivedi, J. said that the courts retain the power in spite of Article 3 1-C to determine the correctness of the declaration. Chandrachud, J. (as he than was) held that the declaration could not be utilised as a cloak to evade the law and the declaration would not preclude the jurisdiction of the courts to examine the facts.
27. In a recent judgment in Indra Sawhney v. Union of India, 2000 (1) SCC 168, a two Judge Bench considered a similar question in the context of Section 3 of the Kerala Act 16 of 1996. Section 3 of the said Act reads as follows: –
3. Declaration .It is hereby declared, having regard to known facts in existence in the State
(a) that there are no socially advanced sections in any backward classes who have acquired capacity to compete with forward classes; and
The Bench following the decision in Kesavananda Bharati v. State of Kerala (supra) held that it could certainly examine whether the so called known facts referred to in Section 3(a) were indeed non-existent. The court then examined the question whether the legislative declaration in Section 3 of the Act that there is, in effect, no creamy layer in the State of Kerala is one made by ignoring facts which do exist, and held that the declaration in clause (a) of Section 3 has no factual basis inspite of the use of the words known facts. The facts and circumstances, on the other hand, indicate to the contrary. It was held that the declaration in Section 3(a) is a mere cloak and is unrelated to facts in existence. The declaration in Section 3(a) was held to be contrary to the principles laid down in Indira Sawhney v. Union of India, 1992 Supp.(3) SCC 217 and Ashoka Kumar Thakur v. State of Bihar, 1995 (5) SCC 403 and violative of Article 14 and 16(1) of the Constitution and consequently, clause (a) of Section 3 of the Act was declared unconstitutional.
28. In the light of the law laid down in Indira Sawhney case, we shall have to examine whether the legislative declaration in Section 2(c) (iii) of the Act that the seat sharing arrangement mentioned therein is in accordance with the consensus arrived at between the professional educational institutions and the Government. The consensus arrived at between the parties is reflected in the affidavits filed on behalf of the Consortium and the State. In the affidavit filed on behalf of the Consortium, it was made clear that the seat sharing arrangement has been arrived at only for the year 2006-07. The undertaking dated 23.06.2006 also speaks of the arrangement for the academic year 2006-07. On behalf of the State, an affidavit was filed by the Commissioner of Technical Education on 26.03.2006, and paragraph-4 thereof states in no uncertain terms that the procedure stated therein has to be followed for the year 2006-07 by mutual consent of the respective parties of the petition. K.Raviraja Pandian, J has recorded in his order that the parties have amicably agreed to follow the practice which was adopted for the previous academic year 2005-06 for the academic session 2006-07. The settlement between the parties had four facets.
(i)the non-minority unaided engineering colleges shall surrender 65% of the seats whereas the minority unaided engineering colleges shall surrender 50% of the seats to the State Government.
(ii)the State Government shall not insist to make admission against the seats retained or held by them by following the single window system, and
(iii)that this arrangement shall be for the academic year 2006-07.
29. As held in P.A.Inamdar case, any seat sharing arrangement cannot be imposed by the State, but fixation of percentage of quota has to be read and understood as possible consensual arrangements which can be reached between unaided private professional institutions and the State. There is nothing on record to show that the parties intended to adopt this system as a permanent arrangement for all time to come. There is a clear distinction between a legislation and a private arrangement or contract. A contract is essentially an agreement between two or more parties; a law is not an agreement between the parties, but is a binding rule of conduct deriving its sanction from the sovereign authority. The former rests on consensus of mind and the latter expresses the will of the sovereign. As indicated above, the seat sharing arrangement arrived at during the year 2006-07 between the petitioner Consortium and the State was confined to that year alone. After the consensual arrangement expired by efflux of time, the legislature cannot enact a law with a view to perpetuate this arrangement in the absence of consensus and such a law would be clearly in violation of the decision of the Supreme Court in P.A.Inamdar case. The submission of the learned Advocate General that the consensual arrangement contemplated by P.A.Inamdar case is only a one time affair is only stated to be rejected. If the parties voluntarily enter into a consensual arrangement only for the one academic year, it is not permissible for the legislature to unilaterally treat this arrangement as a perpetual one. Section 2(c)(iii) of the Act therefore, in our opinion, is clearly violative of Article 19(1)(g) and Article 30 of the Constitution and is contrary to the law laid down by the Supreme Court in P.A.Inamdar case. Section 2 (c) (iii) also suffers from the vice of unreasonableness as the legislature could not have unilaterally accepted one part of the consensus and ignored that it was for one year and on multiple window basis. Such a law cannot be regarded as a reasonable restriction under Article 19(6) of the Constitution.
30. Coming then to the question of validity of Section 4 and 5(4) of the Act, it is necessary to mention that T.M.A.Pai case while recognizing the institutions right of selection, did not mandate any particular method of selection. In this regard, reference may be made to the majority judgment in T.M.A.Pai case in paragraph 40, 59 and 65: –
40. Any system of student selection would be unreasonable if it deprives the private unaided institution of the right of rational selection, which it devised for itself, subject to the minimum qualification that may be prescribed and to some system of computing the equivalence between different kinds of qualifications, like a common entrance test.
59. Merit is usually determined, for admission to professional and higher education colleges, by either the marks that the student 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 government agencies.
65 While an educational institution cannot grant admission on its whims and fancies, and must follow some identifiable or reasonable methodology of admitting the students, any scheme, rule or regulation that does not give the institution the right to reject candidates who might otherwise be qualified according to, say, their performance in an entrance test, would be an unreasonable restriction under Article 19(6), though appropriate guidelines/modalities can be prescribed for holding the entrance test in a fair manner..
(emphasis supplied)
Section 4(1) has the effect of compelling the unaided institutions to admit students solely on the basis of the marks obtained in the qualifying examination. It takes away the right of the institutions to hold the common entrance test either through the Consortium or by individual institutions, and make the selection to conform to the triple tests namely, merit, transparency and non-exploitative. Section 4 consists of two parts. First, it states that the management seats shall be filled up by the Consortium in unaided educational institutions, as approved by the State or by any authority appointed by the State. Secondly, it mandates that such selection shall be only on the basis of the marks obtained by the States in the qualifying examinations. We find merit in the argument of the learned counsel appearing for the unaided engineering colleges that the provisions of Section 4 are unreasonable as they deprive the unaided institutions their right of rationale selection on the basis of various methods of selection as mentioned in T.M.A.Pai. It is not permissible for the State to force unaided private institutions to follow a particular practice of admission. Similarly, the provision for grant of approval to the Consortium by the State Government or by the authority appointed by it would also amount to serious encroachment on the right and autonomy of the private educational institutions in selection of the students.
31. The last question is whether Section 5(4), which mandates centralized counseling i.e., single window system is legal and valid. At the outset, it must be noted that the Act abolishes the common entrance test by Section 3 of the Act, and the admissions have to be effected solely on the basis of the marks obtained in the qualifying examinations. At this stage, we may refer to paragraph 54 of T.M.A.Pai case, which reads as follows: –
The right to establish an educational institution can be regulated; but such regulatory measures must, in general, be to ensure the maintenance of proper academic standards, atmosphere and infrastructure (including qualified staff) and the prevention of maladministration by those in charge of management. The fixing of a rigid fee structure, dictating the formation and composition of a governing body, compulsory nomination of teachers and staff for appointment or nominating students for admissions would be unacceptable restrictions.
32. In the majority judgment of Kripal, C.J., it was observed as long as the educational institutions, whether belonging to minority or majority community, does not receive aid, it would in our opinion, have the right and discretion to grant admission to such students as it chooses or select the subject to what has been clarified before us. The following paragraphs of the judgment in T.M.A.Pai case are relevant: –
58. For admission into any professional institution, merit must play an important role. While it may not be normally possible to judge the merit of the applicant who seeks admission into a school, while seeking admission to a professional institution and to become a competent professional, it is necessary that meritorious candidates are not unfairly treated or put at a disadvantage by preferences shown to less meritorious but more influential applicants. Excellence in professional education would require that greater emphasis be laid on the merit of a student seeking admission. Appropriate regulations for this purpose may be made keeping in view the other observations made in this judgment in the context of admissions to unaided institutions.
59. Merit is usually determined, for admission to professional and higher education colleges, by either the marks that the student 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 government agencies.
68. It would be unfair to apply the same rules and regulations regulating 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 principles may be applied to other non-professional but unaided educational institutions viz. graduation and postgraduation non-professional colleges or institutes.
(emphasis supplied)
33. In Islamic Academy case, the Constitution Bench held in para.16 as follows:
.. 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 comm on 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. 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 dehors merit, penalty can be imposed on that institute and in appropriate cases recognition/affiliation may also be withdrawn.
34. In All India Medical and Engineering Colleges Association, etc v. Permanent Committee for the conduct of the Common Entrance Test, etc. and others, 2004( 4) L.W 70, a Division Bench of this Court came to the conclusion that single window system deprives the institution to choose its students, which right has been declared by the Supreme Court in the judgment in T.M.A. Pai case, and also clarified in the judgment in Islamic Academy case.
35. In P.A.Inamdar, the court, however, ruled in paragraphs 136 to 138 as follows: – (SCC pages 604 & 605)
.. There is nothing wrong in an entrance test being held for one group of institutions imparting same or similar education. Such institutions situated in one State or in more than one State may join together and hold a common entrance test or the State may itself or through an agency arrange for holding of such test. Out of such common merit list the successful candidates can be identified and chosen for being allotted to different institutions depending on the courses of study offered, the number of seats, the kind of minority to which the institution belongs and other relevant factors. Such an agency conducting the common entrance test (CET for short) must be one enjoying utmost credibility and expertise in the matter. This would better ensure the fulfilment of twin objects of transparency and merit. CET is necessary in the interest of achieving the said objectives and also for saving the student community from harassment and exploitation. Holding of such common entrance test followed by centralised counselling or, in other words, single-window system regulating admissions does not cause any dent in the right of minority unaided educational institutions to admit students of their choice. Such choice can be exercised from out of the list of successful candidates prepared at CET without altering the order of merit inter se of the students so chosen.
.. There may be a single institution imparting a particular type of education which is not being imparted by any other institution and having its own admission procedure fulfilling the test of being fair, transparent and non-exploitative. All institutions imparting same or similar professional education can join together for holding a common entrance test satisfying the abovesaid triple tests. The State can also provide a procedure of holding a common entrance test in the interest of securing fair and merit-based admissions and preventing maladministration. The admission procedure so adopted by a private institution or group of institutions, if it fails to satisfy all or any of the triple tests, indicated hereinabove, can be taken over by the State substituting its own procedure. The second question is answered accordingly.
It needs to be specifically stated that having regard to the larger interest and welfare of the student community to promote merit, achieve excellence and curb malpractices, it would be permissible to regulate admissions by providing a centralised and single-window procedure. Such a procedure, to a large extent, can secure grant of merit-based admissions on a transparent basis. Till regulations are framed, the Admission Committees can oversee admissions so as to ensure that merit is not the casualty.
From the aforesaid observations of the Supreme Court in P.A.Inamdar, it is clear that the Court has recommended centralized counseling in the context of common entrance test.
36. By the impugned Act, the CET has been abolished and therefore, the observations made in P.A.Inamadar case may not be strictly relevant. The provisions of Section 5(4) of the Act deprives the right of the unaided educational institutions to select students at their choice. It is seen that the Supreme Court has clearly observed in St.Stephens case followed by T.M.A.Pai case and P.A.Inamdar case, that unaided institutions, both minority and non-minority, have unfettered right to select and admit students, subject to following the procedure of triple tests namely, fair, transparent and non-exploitative. Therefore, in our view, the provisions of Section 5(4) mandating the centralized counseling violates Article 19(1)(g) of the Constitution. It may be mentioned that the right of unaided minority institutions to admit students belonging to their community is affected by the operation of Section 4 and Section 5(4) of the Act to admit their group of students. In the circumstances, Section 4(1) and Section 5(4) of the Act would be hit by Article 30(1) of the Constitution in respect of unaided minority institutions. We, however, hasten to add that in case the institutions decide to hold common entrance test, the Consortium would be required to follow the centralized counseling i.e., single window system. We may also add that the admission to the management quota i.e., 35% in case of non-minority institutions and 50% in case of minority institutions shall be conducted under the supervision of the Admission Committee headed by Justice M.Thanikachalam (Retd.)
37. In the result, the appeals are allowed. The order of the learned single Judge is set aside. The provisions of Sections 2(c) (iii), 4(1) and 5(4) of the Act are declared as violative of Article 19(1)(g) and Article 30 of the Constitution. Learned Advocate General, however, brought to our notice that nearly 160 institutions have given consent letters to the State for agreeing to share with the State 65% of their seats in non-minority institutions and 50% in case of minority institutions. He submitted that the admission process has already commenced and the counseling is slated to commence on 18th July 2007. In the facts and circumstances of the case, we are of the view that the agreed arrangement for the year 2006-07 shall be continued for the academic year 2007-08 as follows: –
that all unaided minority educational institutions shall surrender 65%, whereas minority institutions shall surrender 50% of their seats to the State Government, and the remaining seats retained by the private institutions shall be filled up on the basis of multiple window system, subject to satisfying the triple test namely, fairness, transparency and non-exploitative. The admission of candidates shall be strictly according to the merit, and the policy of reservation also shall be followed by the non-minority institutions. The minority institutions shall also be bound to admit students only on merit, but they are entitled to admit their own minority students on merit as amongst them. The documents to support claim of such students (i.e., minority students) shall be submitted at the time of counseling. The copy of such documents shall also be forwarded to the Committee along with the list of admitted students. The list of students admitted, their rank number, fees collected and all particulars and details as may be required by the committee should be furnished forthwith. It is needless to say that the minority, as well as non-minority educational institutions shall be entitled to charge fees only as per the fee structure fixed by the committee. As stated earlier the admission shall be conducted under the supervision of the Admission Committee headed by Justice M.Thanikachalam (Retd.).
Learned Advocate General sought leave to appeal to Supreme Court. The said plea is rejected. He also sought for stay of our order, which request is also refused. Consequently, M.P. Nos.1, 1, 1& 2, 1 and 1& 2 in the respective writ appeals are closed.
pv/sm
To
1. Secretary to Government,
Law Department,
Govt. of Tamil Nadu,
Secretariat, Chennai-9.
2. Secretary to Government,
State of Tamil Nadu,
Higher Education Department,
Fort St. George, Chennai-9.
3. Secretary to Government,
Health and Family Welfare Department,
State of Tamil Nadu,
Secretariat, Fort St. George, Chennai-9.
4. The Director of Higher Education,
Chennai-25.
5. Additional Director of Medical Education.
Selection Committee,
Directorate of Medical Education,
Kilpauk, Chennai-10,
6. The Registrar,
Anna University,
Sardar Patel Road,
Guindy, Chennai-25.