{"id":197254,"date":"2004-07-13T00:00:00","date_gmt":"2004-07-12T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/consortium-of-professional-arts-vs-permanent-committee-for-the-on-13-july-2004"},"modified":"2016-08-18T17:38:54","modified_gmt":"2016-08-18T12:08:54","slug":"consortium-of-professional-arts-vs-permanent-committee-for-the-on-13-july-2004","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/consortium-of-professional-arts-vs-permanent-committee-for-the-on-13-july-2004","title":{"rendered":"Consortium Of Professional Arts … vs Permanent Committee For The … on 13 July, 2004"},"content":{"rendered":"
Madras High Court<\/div>\n
Consortium Of Professional Arts … vs Permanent Committee For The … on 13 July, 2004<\/div>\n
       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS\n\nDATED: 13\/07\/2004\n\nCORAM\n\nTHE HONOURABLE MR.JUSTICE D.MURUGESAN\n\nW.P.No.16034 of 2004\nand W.P.Nos., 16068, 16095, 16444 to 16447, 16659 to 16662, 17383 of 2004\nand\nW.P.M.P.Nos.19009, 19041, 19061, 19430, 19432, 19434, 19436, 19707,\n19709, 19711, 19713 and 20644 of 2004\n\n\nConsortium of Professional Arts and\nScience Colleges in Tamil Nadu\nrepresented by its Secretary\nNo.29, Old No.12,\nGanapathy Street, Royapettah,                   Petitioner in\nChennai-14                                      ..  W.P.No.16034 of 2004\n\nForum of Tamil Nadu Minority Self-\nFinancing Engineering Colleges\nrepresented by its President\nMr.R.S. Munirathinam,\nNo.29, Old No.12, Ganapathy Street          Petitioner in\nRoyapettah, Chennai-14                  ..  W.P.No.16068 of 2004\n\n\nTamil Nadu College of Engineering\nrepresented by its Secretary and\nCorrespondent, Dr.P.V. Ravi<\/pre>\n
Karumathapatti, Avinashi Road,      Petitioner in\nCoimbatore                      ..  W.P.No.16095 of 2004\n\n\nMohammed Sathak Trust represented by\nits Chairman Dr.S.M.Hamid Abdul Quader\n144\/1, Nungambakkam High Road               Petitioner in\nChennai-34                              ..  W.P.No.16444 of 2004\n\n\nThe Gulf Returnees Educational Society\nrepresented by its General Secretary\nDr.  G.  George, H.22, East Court               Petitioner in\nAnna Nagar East, Chennai-102            ..  W.P.No.16445 of 2004\n\nErode Sengunthar Engineering College\nrepresented by its Correspondent\nJ.Sudhanandhen, Thudupathi                  Petitioner in\nPerundurai Taluk, Erode District        ..  W.P.No.16446 of 2004\nM.P.Nachimuthu M.Jagannathan Engineering\nCollege represented by its Correspondent\n\nJ.  Sudhanandhen, Chennimalai           Petitioner in\nPerundurai Taluk, Erode District        ..  W.P.No.16447 of 2004\n\n\nDeen Dayal Education and Health Trust\nrepresented by its Chairman D.T.D.Naidu\n61, Deen Dayal Nagar\nKunnavalam Post,\nChennai to Tirupathy N.H                    Petitioner in\nTiruvallur Taluk and District           ..  W.P.No.16659 of 2004\n\n\nArulmigu Kalasalingam College\nof Engineering represented by\nits Chairman, T. Kalasalingam\n14, Sriman Srinivasan Road                  Petitioner in\nAlwarpet, Chennai-18                    ..  W.P.No.16660 of 2004\n\nSKR Engineering College represented\nby its Chairman A.M. Srinivasan\nNazarethpet, Poonamallee                Petitioner in\nChennai-103                             ..  W.P.No.16661 of 2004\n\nAnand Institute of Higher Technology\nrepresented by its Chairman\nT.Kalasalingam\nKalasalingam Nagar,\nOld Mahabalipuram Road\nKazhipattur Tiruporur Taluk,                    Petitioner in\nKancheepuram District                   ..  W.P.No.16662 of 2004\n\n\nAll India Medical and Engineering\nColleges Association (Reg.No.128\/2004)\nrepresented by its President\nDr.T.D. Naidu,\n5110, H Block, I Street\n12th Main Road, Anna Nagar                  Petitioner in\nChennai-40                              ..  W.P.No.17383 of 2004\n\n-Vs-\n\n1. Permanent Committee for the conduct\n   of Common Entrance Test\n   represented by its Member-Secretary\n   Higher Education Department\n   Secretariat, Chennai-9\n\n\n\n2. The Government of Tamil Nadu\n   represented by its Secretary\n   Higher Education Department\n   Chennai-9\n\n3.  Anna University                     Respondents 1 to 3\n   represented by its Registrar         in all the writ\nChennai-25                              ..      petitions\n\n4. All India Council for Technical\n   Education represented by its Director\n   Southern Regional Office\n<\/pre>\n
   Sastri Bhavan, No.26, Haddows Road  4th respondent in
\n   Chennai-6                            ..  W.P.No.16095 of 2004<\/p>\n
        Writ Petitions filed under Article 226 of The Constitution  of  India,
\npraying  this  Court  to  issue  a  Writ of Certiorarified Mandamus, as stated
\ntherein.\n<\/p>\n
!For petitioner in      Mr.  R.  Krishnamoorthy\nW.P.No.16034\/2004 ..  Senior Counsel for\n                Mr.V.Ayyathurai\n\nFor petitioner in       Dr.  Rajeev Dhavan\nW.P.No.16068\/2004 ..  Senior Counsel for\n                        Mr.R.S.Jeevarathinam\n\nFor petitioner in               Mrs.  Nalini Chidambaram\nW.P.No.16095\/2004 ..  for Mr.L.S.Hasan Fizal\n\nFor petitioners in              Mr.K.Doraiswami\nW.P.Nos.16444 to                Senior Counsel for\n16447\/2004              ..  M\/s Muthumani Doraiswami\n\nFor petitioners in\nW.P.Nos.16659 to\n16662 & 17383\/2004 ..   Mr.  K.Selvaraj\n\n^For respondents 1 to 3 Mr.N.R.  Chandran\nin all W.Ps.  ..  Advocate General\n                assisted by\n                Mr.V.R.Rajasekaran\n                Spl.  Government Pleader\n\nFor 4th respondent in\nW.P.No.16095\/2004 ..  Mr.Vijay Narayan\n\n\n:COMMON ORDER\n\n<\/pre>\n
        The  petitioners  in  all  these  writ  petitions  have challenged the
\nproceedings  in  SFPC\/PC\/00014  dated  1.6.2004  of  the  Permanent  Committee
\nconstituted  to  ensure the fair conduct of Common Entrance Test for admission
\nof  students  by  Association\/Consortium  of  various   unaided   professional
\nengineering and Arts and Science colleges.\n<\/p>\n
        2.   As  the  challenge  made  to  the impugned order is almost on the
\nsimilar grounds and common issues are involved in all  these  writ  petitions,
\nthey are  taken up together for hearing and disposal.  This order shall govern
\nall the writ petitions.\n<\/p>\n
        3.   The  petitioner  in  W.P.No.16034  of  2004  is   Consortium   of
\nProfessional  Arts  and  Science  Colleges  in  Tamil  Nadu  and formed by the
\nfollowing associations viz.,
\n        (1) Association of Self Financing Private Engineering
\nColleges of Tamil Nadu;\n<\/p>\n
        (2) Tamil Nadu Self Financing Engineering Colleges
\nAssociation;\n<\/p>\n
        (3) Tamil Nadu Unaided Colleges Management
\nAssociation (TUCMA);\n<\/p>\n
        (4) Association of Self Financing Arts, Science
\n        and Management Colleges of Tamil Nadu;\n<\/p><\/blockquote>\n
        (5) Association of Muslim Colleges of Tamil Nadu;<\/p><\/blockquote>\n
        (6) Association of Minority Unaided Christian
\nInstitutions (AMUCI);\n<\/p>\n
        (7) Forum of Tamil Nadu Minority Self Financing
\n        Engineering Colleges.<\/p><\/blockquote>\n
        4.  The Consortium was formed for the  purpose  of  conducting  Common
\nEntrance  Test  for  admission  to  B.E.,  B.Tech., M.E., M.Tech., M.B.A., and
\nM.C.A.  Courses in respect  of  the  seats  allocated  to  be  filled  by  the
\nManagements, who  are  the  member  of  colleges of the petitioner forum.  The
\nConsortium represents both self-financing minority and nonminority educational
\ninstitutions established in the State of Tamil Nadu.\n<\/p>\n
        5.  W.P.No.16068 of 2004 is filed by the 7th member of the  Consortium
\ni.e., Forum of Tamil Nadu Minority Self-Financing Engineering Colleges, as the
\nmembers  of  the  petitioner  forum  constitute  the  minority unaided private
\nengineering colleges.\n<\/p>\n
        6.  The petitioner in W.P.No.16095 of 2004 is the Tamil  Nadu  College
\nof Engineering, a private unaided engineering college.  The petitioner college
\nis also a member of the Consortium.\n<\/p>\n
        7.   The petitioners in W.P.Nos.16444 to 16447 and 16659 to 16662 of 2
\n004 are  individual  unaided  private  engineering  colleges.     Though   the
\npetitioners  in  W.P.Nos.16559  to  16662  of  2004  are  not  the  members of
\nConsortium, Mr.K.Selvaraj, learned counsel  appearing  for  those  petitioners
\nwould  submit  that  the petitioners undertake to become members of Consortium
\nand the order in the writ petitions shall govern the petitioner colleges also.\n<\/p>\n
        8.  The petitioner in W.P.No.17383 of 2004 is the  All  India  Medical
\nand Engineering Colleges Association and have also questioned the same order.\n<\/p>\n
        9.   In  order  to  appreciate  the submissions of the counsel for the
\npetitioners and the respondents, certain facts leading to the present  dispute
\nrequire a mention.  In the judgment reported in “UNNI KRISHNAN J.P.  v.  STATE
\nOF   A.P.(1993   (1)   SCC  645)”,  the  Apex  Court  in  order  to  curb  the
\ncommercialization of education, framed a  scheme  relating  to  admission  and
\nfixing  of  fee  in  private unaided educational institutions both for unaided
\nminority and non-minority private educational institutions.     As   we    are
\nconcerned  with  only the admission of students by unaided private educational
\ninstitutions, the scheme as to the percentage of seats for  the  State  to  be
\nfilled  under  Single Widow System and the percentage of seats to be filled by
\nthe private unaided educational institutions under  the  management  quota  is
\nalone referable.    Under  the Scheme, the Apex Court fixed 50% of seats to be
\nfilled by the State under Single Window System and the remaining  50%  of  the
\nseats to be filled by the management and those seats are known as ” Management
\nQuota” with further entitlement to charge higher fee.\n<\/p>\n
        10.     The judgment in Unni Krishnan’s case came up for consideration
\nbefore  a  Constitutional  Bench  of the Apex Court consisting of 11 Judges in
\n“T.M.A.PAI FOUNDATION AND OTHERS v.  STATE OF KARNATAKA AND OTHERS<\/a>  (2002  (8)
\nSCC  481).”  The  Apex Court found that the scheme in Unni Krishnan’s case has
\nthe effect of nationalizing education in  respect  of  the  right  of  private
\nunaided institution,  to  give  admission  and to fix the fee.  The Apex Court
\nalso held that the decision in Unni Krishnan’s case insofar as it  framed  the
\nscheme  relating  to the grant of admission and the fixing of the fee, was not
\ncorrect and to that extent the said decision  and  the  consequent  directions
\ngiven  to  UGC,  AICTE,  the  Medical  Council of India, the Central and State
\nGovernments etc., were held to be overruled.  The  judgment  in  T.M.A.    Pai
\nFoundation  case  came  up for clarification before the Apex Court in “ISLAMIC
\nACADEMY OF EDUCATION AND ANOTHER v.  STATE OF KARNATAKA AND OTHERS<\/a>  (2003  (6)
\nSCC 697)”.    The  Apex Court again formulated the following questions for its
\nconsideration.\n<\/p>\n
        (1) Whether the educational institutions are entitled
\nto fix their own fee structure;\n<\/p>\n
        (2) Whether minority and non-minority educational
\ninstitutions stand on the same footing and have
\nthe same rights;\n<\/p>\n
        (3) Whether private unaided professional colleges
\nare entitled to fill in their seats, to the
\nextent of 100% and if not, to what extent; and<\/p>\n
        (4) Whether private unaided professional colleges
\nare entitled to admit students by evolving their
\n        own method of admission.\n<\/p>\n
        11.  Question Nos.2, 3 and 4 are relevant for the  disposal  of  these
\nwrit petitions.    Their  Lordships  directed the State Governments to fix the
\npercentage of seats to be filled under Management  quota  depending  upon  the
\nlocal needs.    Their Lordships also permitted the private unaided educational
\ninstitutions to opt for conduct of Common Entrance Test by the Association  of
\nColleges  or  to  admit  the  students on the basis of Single Window System of
\nadmissions  made  from  among  the  candidates  appeared  for  TNPCEE  or  the
\nExamination conducted  by the State.  The option shall be exercised before the
\nprospectus is issued.  Their Lordships further also  directed  the  respective
\nState  Governments  to  appoint  Permanent  Committee,  which  will ensure the
\nfairness and transparency  of  the  Common  Entrance  Test  conducted  by  the
\nAssociation of Colleges.  The Constitution of the Committee also was indicated
\nin the  judgment.    Pursuant to the above directions, the Government of Tamil
\nNadu constituted a Permanent Committee in G.O.Ms.No.69, Higher Education  (J2)
\nDepartment  dated  19.3.2004 under the Chairmanship of the Hon’ ble Mr.Justice
\nS.S.Subramani, a retired Judge of this Court.  The  Permanent  Committee  also
\nconsists    of    Dr.E.Balagurusamy,   Vice   Chancellor,   Anna   University,
\nDr.M.S.Palanichamy,  person   of   repute   in   the   field   of   education,
\nDr.V.Sankaranarayan, Engineer of Eminence as members and Thiru K.Gnanadesikan,
\nI.A.S.,  Secretary  to  Government,  Higher  Education  Department, Chennai as
\nMember Secretary.    The  said   Permanent   Committee   after   hearing   the
\nrepresentatives  of  the  Consortium  of Self Financing Professional, Arts and
\nScience Colleges in Tamil Nadu and other individual  institutions  has  passed
\nthe impugned  proceedings.    It is also relevant to note that pursuant to the
\ndirections of the Apex Court, the Government of Tamil Nadu  allocated  50%  of
\nseats  for  unaided  non-minority  professional  colleges  and 70% for unaided
\nminority professional colleges to be filled as management quota.\n<\/p>\n
        12.  The  directions  of  the  Permanent  Committee  in  the  impugned
\nproceedings are as follows:-\n<\/p>\n
A.IN THE COURSE OF CONDUCTING THE ENTRANCE TEST<\/p>\n
(1) Consortium of self-finance professional, Arts
\nand  Science  colleges in Tamil Nadu is permitted to conduct the entrance test
\nfor admission to under-graduate engineering courses for the entire Tamil  Nadu
\nto fill up vacancies in management on the following conditions\/directions.\n<\/p>\n
a)Setting  up  of  question  papers  and evaluation should be given to experts
\napproved by the Committee, which reserves its right to nominate it own experts
\nalso.\n<\/p>\n
b)Number of questions and papers should be same as  TNPCEE  and  the  syllabus
\nwill be of Tamil Nadu (Plus 2).\n<\/p>\n
c)Question  papers  should  be  printed  in any security press approved by the
\nCommittee-wherein also the nominee of the Committee will be  present  and  the
\nCommittee  also  reserves  its  rights to get the question papers printed in a
\npress of its choice.\n<\/p>\n
d)One person nominated by the Consortium should be  made  totally  responsible
\nfor all  activities  connected  with the examination, i.e.  setting, printing,
\ntransporting etc., who should also see that  there  is  no  leakage  or  other
\nmalpractice.   The  Committee  also  reserves  its  right  to  give  necessary
\ndirection in this regard and also  appoint  such  persons  of  its  choice  to
\nsupervise  the activities and the person made responsible should act according
\nto the direction given by the person so appointed by the Committee.   We  make
\nit  clear  that the test is conducted by the management to fill up their quota
\nand the Committee is only to supervise their work.  In such case, if  for  any
\nreason  the  paper  is  leaked,  the  entire  test  will  be cancelled and the
\nmanagement takes the risk of admitting students on the basis of test conducted
\nalready by Anna University.\n<\/p>\n
e)Conduct of examination should be as per procedure of TNPCEE.\n<\/p>\n
f)Question should be of objective type and the answer should  be  scanned  for
\nvaluation only by machine.  Manual work is totally prohibited.\n<\/p>\n
g)Examinations  should be conducted only in the various District Head Quarters
\nin Tamil Nadu and also at Ernakulam in Kerala  and  at  Vijayawada  in  Andhra
\nPradesh.   The  examinations should be conducted in Government colleges as far
\nas possible.\n<\/p>\n
h)The Consortium should  co-operate  with  the  representative  (who  will  be
\nappointed by the Committee) at each examination centre.\n<\/p>\n
i)The  answer  papers when collected should be separately packed and sealed by
\nthe representatives of Consortium and Committee.\n<\/p>\n
j)The question papers while it is being dispatched  to  various  centers  must
\nalso sealed and signed by both representatives of Consortium and Committee and
\nopening  the packet at examination Centre must also be done in the presence of
\nboth representatives.\n<\/p>\n
k)There  will  be  separate  squad  appointed  by  the  Committee   for   each
\ncoordinating centre.\n<\/p>\n
l)Application and examination fees should be reasonable, which may be fixed by
\nthe Consortium and approved by the Committee.\n<\/p>\n
m)The  examination  should  be completed before 15th July, 2004 with notice to
\nthe Committee and the results of the examination should be  published  without
\nany  delay-at  any  rate  within  ten  days  from  the  date  of completion of
\nexamination.\n<\/p>\n
n)All expenses for the supervisory work should be met by  the  Consortium  and
\none  half  of the estimated costs should be deposited with the Director of the
\nTechnical Education.  The estimated cost will be informed to the Consortium on
\ngetting information about the schedule of the examination.\n<\/p>\n
o)All correspondence in this regard, should be absolutely confidential.\n<\/p>\n
p)Due publicity should be given intimating candidates about the  necessity  of
\nwriting  this  examination  along  with  details  about  the last date for the
\nreceipt of application, the fees and the date of the  examination  along  with
\ntime-table.\n<\/p>\n
q)The  demand  by the Consortium that it should be allowed to conduct the test
\non two occasions, cannot be accepted for reason already stated.\n<\/p>\n
r)The Committee reserves the right to give further directions and it  is  made
\nclear  that  the  directions  or conditions mentioned above are not exhaustive
\n“Consortium” is bound to obey the same as well.\n<\/p>\n
B.  AFTER THE EXAMINATION AND WHILE STUDENTS ARE BEING ADMITTED.\n<\/p>\n
a)All private professional engineering colleges, (Whether they are members  of
\nConsortium  or  not)  should exercise their option to choose whether it adopts
\nthe test conducted by the Association of Colleges (i.e.   Consortium)  or  the
\ntest conducted  by  the  State  through Anna University.  The option should be
\nexercised  within  seven  days  after  the  conduct  of  examination  by   the
\nConsortium.   If  any  College  (which is a member of the Consortium) fails to
\nexercise any option it will be deemed to have exercised  its  option  for  the
\nState level  test conducted by Anna University.  Likewise if any college which
\nfails to exercise its option (and which is not a member of  Consortium)  shall
\nbe  deemed  to  have  opted  for  the test conducted by the State through Anna
\nUniversity.  The option exercised should  be  informed  to  the  Committee  in
\nwriting by Registered Post\/Acknowledgment due.\n<\/p>\n
b)The  admission  should be made only on the basis of the merit list opted and
\ndeemed to have opted and should be by counselling by following  single  window
\nsystem as followed by Anna University under supervision of the Committee.  The
\nvenue  for  counselling  under  Single Window System will be decided after the
\nresults are published and as directed by the Committee.\n<\/p>\n
c)The admission of candidates shall be strictly  according  to  Government  of
\nTamil  Nadu  norms, regarding eligibility and policy of reservation also shall
\nbe followed.\n<\/p>\n
d)The minority institutions also shall be bound  to  admit  students  only  on
\nmerit, but they are entitled to admit their own minority students on merits as
\namongst them.  Documents to support the claim of such students (i.e.  minority
\nstudents) shall  be  submitted  at  the time of counselling.  The copy of such
\ndocuments shall also be forwarded to the Committee  along  with  the  list  of
\nadmitted students.\n<\/p>\n
e)The  list  of  students  admitted, their rank number, fees collected and all
\nparticulars and details as may be required by the  Committee  also  should  be
\nfurnished forthwith.\n<\/p>\n
f)The  question papers and answer sheets should be preserved in such places as
\ndirected by the Committee for  a  period  of  six  months  from  the  date  of
\npublication of results.\n<\/p>\n
g)The  Committee further reserves its rights to give further directions to the
\nprivate colleges or Consortium which shall also be fully complied with.\n<\/p>\n
        13.  Mr.R.Krishnamoorthy, learned Senior  Counsel  assisted  by  Mr.V.
\nAyyathurai,  appearing  for the Consortium would submit that the directions of
\nthe Permanent Committee in Clause A(1)(b)(d)(e)  and  (n)  would  deprive  the
\nvaluable  right  of  the  self-financing  professional  and  Arts  and Science
\ncolleges to conduct common entrance test and admit students  of  their  choice
\nfrom among  the  merit  listed  candidates.  He would draw my attention to the
\nconstitution of Committee consisting of experts to set  the  question  papers,
\nconduct  exams  under  the  supervision  of  invigilators, to value the answer
\nscripts and to ensure the method proposed to be adopted is foolproof and fair.
\nHence, directions even to get the approval  for  number  of  question  papers,
\nsyllabi  to  be  followed,  sending officials to supervise the conduct of test
\nwould undermine the bona fides of the Consortium.  He would also  submit  that
\nit  is  impracticable  to follow the procedure being adopted by TNPCEE, as the
\nsaid examination is restricted only to the candidates from Tamil Nadu  whereas
\nConsortium is entitled to conduct Common Entrance Test for the candidates from
\nother States  also.    He  would  further  submit that admission would be made
\nstrictly on the basis of merit but from among the candidates applied  to  each
\ninstitution.   Lastly  he  would  submit  that even in Single Window System of
\nadmission, there were about 2 1666 vacancies out of the total number of  42350
\nseats in  the  academic  year  2003-2004.    That  being the factual position,
\ninsistence of Single Window System even for management seats is unwarranted.\n<\/p>\n
        14.  Insofar as the directions in  Clause  B(b),  the  learned  Senior
\nCounsel would  submit  that  in  view  of the dictum in T.M.A.  Pai Foundation
\ncase, the unaided professional institutions are entitled to  autonomy  in  the
\nmatter of  administration.    Autonomy in administration includes admission of
\nthe students of their choice, but of course not at the cost of  merit.    When
\nthe  State  has  prescribed 50% of the seats to be filled by the Management of
\nunaided non-minority professional institutions and 70%  of  the  seats  to  be
\nfilled up by the Management of unaided minority professional institutions, the
\ndirections  of  the  Permanent  Committee  for admission through Single Window
\nSystem is contrary to the judgment in T.M.A.  Pai Foundation case.   He  would
\nalso  submit that as per the judgment in Islamic Academy case, there cannot be
\nany distinction in the manner of admission by both minority and  non  minority
\nprofessional colleges.    Insofar  as  the directions in Clause B(c), he would
\nsubmit that once the  merit-based  system  of  admission  is  accepted  to  be
\nfollowed,  directing  the petitioner Consortium to admit students by following
\ncommunal reservation is bad in law.  In support of the  above  submission,  he
\nrelied  upon  the  judgment  of  a  Division  Bench  of  this  Court in “KONGU
\nENGINEERING COLLEGE AND OTHERS v.  THE STATE OF TAMIL NADU  AND  OTHERS<\/a>  (2002
\n(3) L.W.  151)”.\n<\/p>\n
        15.   Dr.Rajeev  Dhavan,  learned  senior  Counsel  appearing  for the
\npetitioner in W.P.No.16068 of 2004 viz., Forum of  Tamil  Nadu  Minority  Self
\nFinancing  Engineering  Colleges would submit that the right to administer the
\nminority institutions is a constitutional right guaranteed under Article 30 of
\nthe Constitution of India and such a right cannot be taken away by a Committee
\nconstituted only to oversee the Common Entrance Test conducted by  Consortium.
\nThe  Permanent  Committee has exceeded and over stepped its power in directing
\nthe admissions to be made only under Single Window System,  as  the  right  to
\nadminister  the  educational institutions includes the right to admit students
\nalso.  Following the directions in T.M.A.  Pai Foundation  case,  70%  of  the
\nseats are allocated for the management to be filled from among the meritorious
\ncandidates on the basis of Common Entrance Test conducted by Consortium.  When
\nonce  certain  percentage  of  seats  are allocated, no further restriction is
\npermissible and the directions of the Permanent Committee to  follow  communal
\nreservation  in  the  management  quota  and  that  too  in  the  institutions
\nestablished by minorities  are  bad.    He  has  also  advanced  arguments  in
\nchallenging  the various directions of the Permanent Committee more or less on
\nthe same line of  submissions  made  by  Mr.R.Krishnamoorthy,  learned  Senior
\nCounsel appearing  for  the  petitioner in W.P.No.16034 of 2004.  He would add
\nthat the process of admission in respect of the seats reserved for  management
\ncan  only  be regulated by the State and there cannot be any restriction which
\nwould amount to prohibition imposed in the process of admission.\n<\/p>\n
        16.  Insofar as the direction of the Permanent  Committee  as  to  the
\nexpenses  to  be  borne  by Consortium, he would submit that the directions in
\nParagaraph 20 of Islamic Academy case are very clear whereby  the  Apex  Court
\nhad  directed  that  the  expenses  incurred  on  the  setting up of Permanent
\nCommittee,  the  infrastructural  needs,  the  provision  for  allowance   and
\nremuneration of the Cha irman and other members of the Committee shall also be
\nborne by  the  State  Government.    Even  in  case the power of the Permanent
\nCommittee to appoint persons by its choice to supervise  the  Common  Entrance
\nTest is upheld, the Permanent Committee could only direct the State Government
\nto bear  all  the  expenses  for  supervisory work.  Hence direction in Clause
\n(A)(1)(n) is bad.\n<\/p>\n
        17.  Mrs.  Nalini Chidambaram, learned Senior  Counsel  appearing  for
\nthe  Tamil  Nadu  College of Engineering, petitioner in W.P.No.16095 of 20 04,
\nthough would adopt the  arguments  of  Mr.R.Krishnamoorthy  and  Dr.    Rajeev
\nDhavan,  has  further  submitted that the petitioner college does not have any
\nobjection       for the admissions to be made  to  the  college  under  Single
\nWindow System.\n<\/p>\n
        18.  Mr.K.Selvaraj and Mr.Kandavadivel Doraiswami, the learned counsel
\nfor  other  petitioners  adopted the arguments of Mr.R.Krishnamoorthy, learned
\nSenior Counsel.\n<\/p>\n
        19.     In response to the above arguments,  Mr.N.R.Chandran,  learned
\nAdvocate  General  assisted  by Mr.V.R.Rajasekaran, learned Special Government
\nPleader would submit that the petitioners having agreed before  the  Permanent
\nCommittee  to  abide by the directions that may be issued, cannot maintain the
\nwrit petitions questioning the directions of the Permanent Committee.  On this
\nground alone the writ petition filed by Consortium is liable to  be  rejected.
\nHe  would  place  reliance  on  ground  No.20(C)  of  the  affidavit  filed by
\npetitioner in support of the W.  P.No.16095 of 2004  and  contended  that  the
\npetitioner  had  infact  agreed  that  Single  Window  System followed by Anna
\nUniversity would be followed by the Consortium constituted by the  Association
\nof Colleges,  as the same will be foolproof.  He would submit that even in the
\napplication form made on 17.5.2004 and in the subsequent application  dated  2
\n1.5.2004,  the  Consortium have submitted to the jurisdiction of the Permanent
\nCommittee by seeking  permission  to  conduct  Common  Entrance  Test  on  the
\nconditions that  may  be imposed.  Having sought and obtained such permission,
\nit is not now open to the petitioners to  question  the  jurisdiction  of  the
\nPermanent Committee  in  imposing conditions.  He would rely upon the judgment
\nin Pannalal Binjraj case and contended that  once  the  petitioners  acquiesce
\nthemselves  to  the jurisdiction, they are estopped from questioning the power
\nof the Committee to issue directions.  He would draw my attention  to  certain
\nparagraphs  in  the  impugned  order  to  sustain the plea of acquiescence and
\ncontended that the petitioners have agreed to conduct the Common Entrance Test
\non the same pattern of Tamil Nadu Professional Courses  Entrance  Examination.
\nOn  merits,  the  learned  Advocate General would submit that the power of the
\nCommittee to oversee and supervise the Common Entrance Test includes the power
\nto appoint  persons  for  the  said  purpose.    The  directions   in   Clause
\nA(1)(b)(d)(e)  and (n) are intended only to ensure a fair Common Entrance Test
\nconducted by Consortium.  He would further submit  that  as  the  judgment  in
\nT.M.A.   Pai  Foundation  case  was  reconsidered  in Islamic Academy case, in
\nrespect of the issues involved in these writ petitions, the law laid  down  by
\nthe   Apex   Court  in  Islamic  Academy  case  alone  should  be  taken  into
\nconsideration and the petitioners are not entitled to place  any  reliance  on
\nT.M.A.  Pai Foundation case.\n<\/p>\n
        20.  Insofar as the direction as to Single Window System of admission,
\nthe  learned  Advocate  General  would submit that in terms of Islamic Academy
\ncase, merit is the sole criteria for admission even in respect  of  the  seats
\nreserved  for  the  private  unaided  professional  colleges  and the State is
\nobligated to ensure that meritorious students are not denied admissions.   The
\nfoolproof  method  to  ensure  merit-based  admission  can  be secured only by
\nfollowing the Single Window System of admission.\n<\/p>\n
        21.  Insofar as the direction as  to  the  rule  of  reservation,  the
\nlearned  Advocate  General  would  submit  that  though the Government in G.O.
\nMs.No.23 (J1) Higher Education Department dated 13.2.2003 directed the unaided
\nminority professional colleges to follow the rule of reservation of the  State
\nGovernment,  the  application  of rule of reservation would not be insisted in
\nthe case of minority institutions and the said statement may be recorded.\n<\/p>\n
22.   Insofar  as  the  direction  of  the  Permanent  Committee  to   unaided
\nnon-minority  professional  colleges  to follow the rule of reservation of the
\nState, he would rely upon G.O.Ms.No.22, Higher Education (JI) Department dated
\n13.2.2003 wherein such professional colleges were directed to follow the  rule
\nof reservation of the State.  The learned Advocate General also submitted that
\nthe  said order is not questioned by any of the petitioners and so long as the
\nsaid order is in force, unaided non-minority professional  colleges  can  only
\nadmit  the  students  strictly  on the basis of merit by following the rule of
\nreservation of the State.\n<\/p>\n
        23.  Mr.Vijay Narayan, learned counsel appearing  for  the  All  India
\nCouncil  for Technical Education would submit that AICTE has issued guidelines
\ndated 3.11.2003 in the matter of admissions.    He  would  draw  my  attention
\nparticularly  to  paras  5,  6  and 9 of the guidelines and contended that the
\nmanagement quota seats in private colleges shall be  filled  strictly  on  the
\nbasis  of  inter  se merit of the students who have taken Common Entrance Test
\nand such admission shall be made by following Single  Window  System  and  the
\nrule of  reservation  followed in the State.  He would also submit that as per
\nclause  11  of  the  guidelines,  all  institutions  conducting  degree  level
\nengineering  programmes shall intimate to the Regional Office of AICTE and the
\nauthority in the State, the number of seats that are to be filled on the basis
\nof tests conducted  by  AIEEE,  State  level  and  Association  test  for  the
\nfollowing academic  year.    Insofar as the candidates from other States, they
\nmust take only the Common Entrance Test conducted by  the  AIEEE  and  in  the
\nabsence of any communication by the Consortium as to the number of seats to be
\nfilled  from  among  the  candidates belonging to other States, the Consortium
\ncannot admit students from other States.  The conduct of Common Entrance  Test
\nby  AIEEE  for the students from other States is only to avoid hardship caused
\nto such students in taking more than one CET, namely the  tests  conducted  by
\nAssociation in  each  State.    As these guidelines are in conformity with the
\njudgments of the Apex Court, no deviation is permissible.  The option to  fill
\nup  the seats by Common Entrance Test conducted by the State or Central Agency
\nor by Consortium shall be exercised by the individual institutions before  the
\nprospectus  is  issued  and  such  option  shall  be intimated to the AICTE in
\nadvance.  The AICTE has not received so far such options.\n<\/p>\n
        24.  From the above submissions as well the pleadings,  the  following
\npoints arise for consideration:-\n<\/p>\n
(1)Whether  the  Consortium  is  estopped  from  questioning  the power of the
\nPermanent Committee in issuing  directions  after  submitting  itself  to  the
\njurisdiction of the Committee?\n<\/p>\n
(2)Whether,  after  the  judgment in Islamic Academy case, the petitioners are
\nentitled to rely upon the judgment of the Apex Court  in  TMA  Pai  Foundation
\ncase?\n<\/p>\n
(3)Whether  the  exercise  of  power  by  the  Permanent  Committee in issuing
\ndirections as contained in Clause A(1)(b)(d)(e) and (n) is in conformity  with
\nthe  directions  of  the  Apex  Court in Islamic Academy case and is therefore
\njustified?\n<\/p>\n
(4)Whether the direction of the Permanent Committee contained in  Clause  B(b)
\nto follow the Single Window System of admission as followed by Anna University
\nunder the supervision of the Committee is justified?\n<\/p>\n
(5)Whether  the  direction of the Permanent Committee contained in Clause B(c)
\nto follow the policy of  reservations  while  admissions  are  being  made  is
\njustified?\n<\/p>\n
(6)Whether the Consortium is entitled to conduct Common Entrance Test and fill
\nup the seats from the candidates belonging to other States.\n<\/p>\n
25.  Point  No.1:    As  far as the plea on acquiescence, the learned Advocate
\nGeneral drew my attention to certain paragraphs in the impugned order  wherein
\nthe  Permanent  Committee has noted that the management had agreed to abide by
\nany directions given by the Committee under  their  supervisory  power.    The
\nrelevant portion  reads  thus.    “For  the  purpose  of conducting tests, the
\nmanagement agreed that they will abide any direction given  by  the  Committee
\nunder their  supervisory power.  In view of the above, we are of the view that
\nconsent could be given to the Consortium to conduct the entrance te st,  which
\nhas to be done in a fair and transparent manner.  For the above purpose and in
\nexercise  of  our supervisory power the Committee also proposes to put forward
\ncertain conditions which the Consortium have agreed  to  obey.”  The  plea  of
\nacquiescence is raised both in respect of the directions contained in Clause-A
\nas well  in  Clause-B.   Though a plain reading of the paragraphs reveals that
\nthe managements have agreed to abide by any direction given by the  Committee,
\nthe  plea  of  acquiescence  shall  not stand in the way of the managements to
\nquestion the directions on the ground that they are opposed to  the  judgments
\nin T.M.A.  Pai Foundation and Islamic Academy cases.  As the sustainability of
\nthe  directions  is  to  be dealt with on merits on the points formulated, the
\nplea of acquiescence is unacceptable.  The judgment of the  Apex  Court  in  ”
\nMESSRS.  PANNALAL  BINJRAJ  AND OTHERS v.  UNION OF INDIA AND OTHERS (AIR<\/a> 1957
\nSC 397)” relied upon by the learned Advocate  General  is  distinguishable  on
\nfacts.    That  case  arose  under  the  Income  Tax  Act,  1922  wherein  the
\nconstitutionality of Section 5(7A) was challenged.  By the said  section,  the
\nCommissioner  of  Income Tax was vested with the power of transfer of any case
\nfrom one Income Tax Officer subordinate to him  to  another  and  the  Central
\nBoard  of  Revenue  to  transfer  any  case from any one Income Tax Officer to
\nanother.  When a question arose as to whether such of  those  petitioners  who
\ndid  not raise any objection for their cases being transferred from one Income
\nTax Officer to another and submitted themselves to  the  jurisdiction  of  the
\nIncome  Tax  Officers  whom  their cases were transferred, the Apex Court held
\nthat after submitting the jurisdiction and after they acquiesced themselves to
\nthe  jurisdiction  of  the  Income  Tax  Officer  to  whom  their  cases  were
\ntransferred,  they  were  certainly not entitled to invoke the jurisdiction of
\nthe Apex Court under Article 32.  In the case on hand, the  challenge  is  not
\nthat  the  Permanent Committee has no jurisdiction to supervise the conduct of
\nexamination as directed in Islamic Academy Case, but is only in respect of the
\nmanner in which the jurisdiction has been exercised.  I find that the judgment
\nrelied upon by the learned Advocate General does not in any  way  support  the
\nplea of acquiescence on the plea that the Permanent Committee has exceeded its
\npower.   Hence, I reject the said submission and hold that the petitioners are
\nentitled to question the directions contained in the impugned order.\n<\/p>\n
26.  Point No.2:  In addition to ten issues formulated on 10.4.2002 in  T.M.A.
\nPai  Foundation  case,  the following five more issues were also formulated on
\n31.10.2002.\n<\/p>\n
        (1) Is there a fundamental right to set up educational
\ninstitutions and, if so, under which provision?\n<\/p>\n
        (2) Does Unni Krishnan case (1993 (4) SCC 111) required
\nreconsideration?\n<\/p>\n
(3) In case of private institutions (unaided & aided)
\ncan there be Government regulations and, if so, to      what extent?\n<\/p>\n
        (4) In order to determine the existence of a religious
\nor linguistic minority in relation to Article 30,
\n        what is to be the unit, the State or the country
\nas a whole?\n<\/p>\n
        (5) To what extent can the rights of aided private
\nminority institutions to administer be regulated?\n<\/p>\n
These issues encompass not only the issue  of  fundamental  right  to  set  up
\neducational institutions, but also as to whether the judgment in “UNNIKRISHNAN
\nJ.P.  v.   STATE  OF  A.P.    (1993 (1) SCC 645)” required reconsideration and
\nwhether private institutions both aided and unaided should  follow  government
\nregulations and, if so, to what extent.  As the issues in these writ petitions
\nare related only to unaided institutions, the discussion and finding in regard
\nto unaided institutions are only referred to in this order.\n<\/p>\n
27.  From  paragraphs 48 to 66 of the judgment in T.M.A.  Pai Foundation case,
\nTheir  Lordships  have  dealt  with  the  issue  as  to  the  private  unaided
\nnon-minority  institution  in  the matter of admission of students, reasonable
\nfee structure, etc.  From paragraphs 67 to 70, Their Lordships have dealt with
\nthe regulations that can be framed relating to  private  unaided  professional
\ncolleges.    The  law  laid  down  in  the  above  paragraphs  was  considered
\nsubsequently in Islamic Academy case, more  particularly,  with  reference  to
\nparagraph 68 of  T.M.A.   Pai Foundation case.  It was argued on behalf of the
\nUnion of India, various State Governments and the students that  the  majority
\njudgment   makes   a   clear   distinction  between  professional  educational
\ninstitutions  (both  minority  and   non-minority)   and   other   educational
\ninstitutions i.e., schools and undergraduate colleges and that in professional
\ninstitutions  merit  had  to  play  an  important  role and that excellence in
\nprofessional education required  that  for  purposes  of  admission  merit  is
\ndetermined by  government  agencies.    It  was  also argued that paragraph 68
\nprovides that in unaided professional colleges only a “certain  percentage  of
\nseats”  can  be reserved for admission by the management and it is permissible
\nfor the University or the Government to require a private unaided professional
\ninstitute to provide for a merit-based  selection.    The  question  that  was
\nraised  on the basis of paragraph 68 read with paragraph 59 was as to the fact
\nthat in unaided professional colleges, merit should be determined by a  common
\nentrance test  conducted  by  government  agencies.    In  view  of  the above
\nsubmissions, Their Lordships clarified paragraph 68 of T.M.A.  Pai  Foundation
\ncase.   In  the  sub-heading  “private  unaided professional colleges”, it was
\nclarified that the judgment  in  T.M.A.    Pai  Foundation  case  covers  both
\nminority as  well  as  non-minority  professional  colleges.    As  far as the
\nsubmission as to the “certain percentage of  seats”,  it  was  clarified  that
\nspecified  percentage of seats can be reserved for admission by the management
\nand the rest should be filled on the basis of counselling by  State  agencies.
\nTheir  Lordships  have  further  clarified  that  in non-minority professional
\ncolleges, admission of students other than percentage given to the  management
\ncan  only  be  made  on  the  basis  of  merit as per the common entrance test
\nconducted by Government agencies.  In paragraph 115, Their Lordships clarified
\nthat minority professional colleges can admit in  their  management  quota,  a
\nstudent  of their own community\/language in preference to a student of another
\ncommunity even though other students are more meritorious.    Their  Lordships
\nfurther   clarified   that   whilst   selecting\/admitting  students  of  their
\ncommunity\/language, the inter se merit of those students  cannot  be  ignored.
\nIt  was  further  clarified  that  even  the  admission  of  members  of their
\ncommunity\/language shall be strictly made on the  basis  of  merit.    It  was
\nfurther clarified that if the seats cannot be filled from the members of their
\ncommunity\/language,  the  other  students can be admitted only on the basis of
\nmerit-based common  entrance  test  conducted  by  government  agencies.    In
\naddition to  the  directions  contained  in T.M.A.  Pai Foundation case, Their
\nLordships also directed that admission by the management can be  by  a  common
\nentrance  test  held  by itself or by a State\/University or by the Association
\nand that each institute cannot hold separate test.  The purpose for which  the
\ncommon  entrance  test  is held by the Association and the manner of admission
\nand the list of candidates selected are all indicated in paragraph 16  of  the
\njudgment.   A  further  direction  to  the  State  Government  to constitute a
\nPermanent Committee to oversee the test to be conducted by the Association was
\nissued in paragraph 19 of the judgment.  Their Lordships have  only  clarified
\ncertain portions  of  the  judgment  in  T.M.A.  Pai Foundation case as to the
\nright  of  the  unaided   professional   colleges   including   minority   and
\nnon-minority,  reservation of certain percentage of seats for admission by the
\nmanagement, the conduct of common entrance test  by  the  Association  and  in
\naddition to  issue  of certain directions.  As the judgment in Islamic Academy
\ncase is only clarificatory in nature clarifying the judgment in  T.M.A.    Pai
\nFoundation  case,  more  particularly, paragraphs 59 and 68, the submission of
\nthe learned Advocate General that after the judgment in Islamic Academy  case,
\nthe petitioners  are  not  entitled  to  rely upon the judgment in T.M.A.  Pai
\nFoundation case has no merit.  For appreciation of the issue in question, both
\nthe judgments in T.M.A.  Pai Foundation and Islamic Academy cases  hold  good.
\nFor  the said reason, I hold that the petitioners are entitled to question the
\nimpugned proceedings of the Permanent Committee not only by  placing  reliance
\non Islamic Academy case, but also on T.M.A.  Pai Foundation case.\n<\/p>\n
28.  Point  No.3:   Appointment of Permanent Committee by the State Government
\nwas made in G.O.Ms.No.69, Higher Education (J2)  Department  dated  19.3.2004.
\nThe  Permanent  Committee was appointed pursuant to the directions of the Apex
\nCourt in Islamic Academy case.  To understand  the  scope  and  power  of  the
\nPermanent  Committee, paragraphs 19 and 20 of the said judgment are referable.
\nThe directions in regard to the appointment of  Permanent  Committee  and  its
\npower  with  reference  to the questions raised in these writ petitions can be
\nculled out as follows:-\n<\/p>\n
(1)The respective State Governments should appoint a Permanent  Committee  and
\nsuch  Committee shall ensure the test conducted by the Association of colleges
\nis fair and transparent.\n<\/p>\n
(2)The Committee shall have the power to oversee the tests  conducted  by  the
\nAssociation.\n<\/p>\n
(3)The  Committee  shall  have  the  power  to  call for the proposed question
\npaper(s), to know the names of the paper setters  and  the  examiners  and  to
\ncheck the method adopted to ensure that the papers are not leaked.
\n(4)The  Committee  shall  have  the  power to appoint experts to supervise and
\nensure that the test is conducted in a fair and transparent manner.
\n(5)The expenses incurred on the setting up of  Permanent  Committee  shall  be
\nborne by the State.\n<\/p>\n
(6)The  expenses  as  to infrastructural needs and provision for allowance and
\nremuneration of Chairman and other members of  the  Committee  shall  also  be
\nborne by the State Government.\n<\/p>\n
29.  The challenge to Clause A(1)(b)(d)(e) and (n) requires consideration with
\nreference to  the  above  powers  of  the  Committee.   In Clause A(1)(a), the
\nPermanent Committee has  directed  the  setting  up  of  question  papers  and
\nevaluation  should  be  done by experts approved by the Committee and reserved
\nthe right to nominate its own examiners also.  In terms of the directions, the
\npower of the Committee shall also include the power to call for  the  proposed
\nquestion  papers, to know the names of the paper setters and the examiners and
\nto check the method adopted to ensure that the papers are not leaked.    There
\nis no controversy on this issue.\n<\/p>\n
30.  Insofar as the challenge to Clause A(1)(b) and (e) of the impugned order,
\nthe  Permanent  Committee  has  directed  the  Consortium to set the number of
\nquestions as followed in TNPCEE, the syllabus of Tamil Nadu  (+2)  course  and
\nthe conduct  of  examination as per the procedure of TNPCEE.  The power of the
\nCommittee is only to oversee the  test  conducted  by  the  Association.    Of
\ncourse,  the  said  power  also  includes  the  power to call for the proposed
\nquestion papers, names of the paper setters and examiners  and  to  check  the
\nmethod adopted  to  ensure  that  the papers are not leaked.  The power vested
\nwith the Permanent Committee is basically only to ensure  as  to  whether  the
\ntest conducted  by  the  Association  is in a fair and transparent manner.  No
\nwhere in the directions, a power is conferred on the Permanent Committee  even
\nto  issue  directions  as  to  setting  up the numb er of question papers, the
\nmanner in which the examination should be conducted  and  the  syllabi  to  be
\nfollowed.   If  the above is accepted, the status of the Consortium to conduct
\nCommon Entrance Test will be reduced to “only  an  agency  of  the  State”  to
\nconduct the  test.   It is made clear that this Court is considering the power
\nof the Permanent Committee as envisaged by the Apex Court and not the power of
\nthe State\/University\/AICTE to issue such direction.  So long as  the  fairness
\nis  exhibited  in  the  conduct  of Common Entrance Test by Consortium and the
\ndirection  in  Clause  A(1)(a)  is  ensured,  no   further   interference   is
\ncontemplated as  to  how  the  question  papers are set etc.  How the question
\npapers should be set and as to how the examination  should  be  conducted  are
\nmatters  to  be  left  entirely  to  the discretion of the Association and the
\nConsortium in this case, as  they  are  entitled  to  select  and  admit  best
\nstudents in  their  assessment.    An  argument  was  advanced  by the learned
\nAdvocate General by placing reliance on the letter  of  the  Consortium  dated
\n21.5.2004 while seeking permission from the Permanent Committee for conduct of
\nentrance  examination  whereby  it was indicated that the common entrance test
\nshall consist of four papers viz.,  Maths,  Biology,  Physics  and  Chemistry.
\nAccording  to the learned Advocate General, Biology is not one of the subjects
\nrequired in engineering courses and the  inclusion  of  the  said  subject  in
\nCommon Entrance   Test   is   unnecessary.      It  was  fairly  submitted  by
\nMr.R.Krishnamoorthy, learned Senior Counsel appearing for the Consortium  that
\nthe  test  will  be  conducted  only  in  Maths,  Physics and Chemistry and no
\nquestions will be asked in Biology.  The question papers set up by TNPCEE  are
\nalso only  on  Maths, Physics and Chemistry subjects.  I find no difference in
\nthe conduct of common entrance test by  the  Consortium  in  the  above  three
\nsubjects only,  as  the said method is also followed in TNPCEE.  Moreover, the
\ndirections for the conduct of examination made  in  paragraph  16  of  Islamic
\nAcademy case, are referable.\n<\/p>\n
“In  our  view  what  is necessary is a practical approach keeping in mind the
\nneed for a merit-based selection.  Paragraph 68 provides that admission by the
\nmanagement can be by a  common  entrance  test  held  by  “itself  or  by  the
\nState\/University”.   The  words  “common  entrance test” clearly indicate that
\neach institute cannot hold a separate test.  We thus hold that the  management
\ncould  select  students,  of  their  quota,  either on the basis of the common
\nentrance test conducted by the State or on the basis of a common entrance test
\nto be conducted by an association of all colleges of a particular type in that
\nState e.g.  medical, engineering or technical etc.  The common entrance  test,
\nheld by the association, must be for admission to all colleges of that type in
\nthe State.    The  option  of choosing, between either of these tests, must be
\nexercised before issuing of prospectus and after intimation to  the  concerned
\nauthority and  the  Committee set up hereinafter.  If any professional college
\nchooses  not  to  admit  from  the  common  entrance  test  conducted  by  the
\nassociation  then that college must necessarily admit from the common entrance
\ntest conducted by the State.”\n<\/p>\n
The above paragraph clearly indicates that the common entrance  test  held  by
\nthe Association  must  be  for  admission to all colleges in that type.  It is
\nalso held that if any professional college chooses not to  admit  from  common
\nentrance test conducted by the Association, then that college must necessarily
\nadmit the students from common entrance test conducted by the State.  There is
\na  clear  distinction  in the matter of conduct of the common entrance test by
\nthe management and the State.  There is  no  embargo  on  the  managements  to
\nevolve  their  own  method  in  number  of  question papers and the conduct of
\nexamination.  The directions of the Apex Court does not  suggest  that  common
\nentrance  test  conducted  by  the Association\/Consortium shall be only on the
\nsame pattern followed by TNPCEE.  In the absence of any such  restriction  and
\nin  the event the Permanent Committee ensures a fair and transparent manner in
\nthe conduct of examination, the directions contained in Clause A(1)(b) and (e)
\nwould be beyond  the  power  conferred  on  the  Permanent  Committee.    Such
\ndirections    would   amount   to   interference   on   the   right   of   the
\nAssociation\/Consortium t o conduct the  common  entrance  test.    Except  the
\nrestrictions on the individual colleges to hold separate test, I find no other
\nrestrictions  imposed  by  the  Apex  Court  as  to  the  manner  in which the
\nexaminations are to be conducted.  Hence the directions in Clause A(1)(b)  and\n<\/p>\n
(e) are liable to be set aside, as they are beyond the powers of the Permanent
\nCommittee.\n<\/p>\n
        31.   Insofar  as  the  directions  in  Clause  A(1)(d), the Permanent
\nCommittee is vested  with  the  power  to  supervise,  setting,  printing  and
\ntransporting  etc.,  of  the  question papers and also to see that there is no
\nleakage or other malpractice and for the said purpose, the Committee can  also
\nappoint such  persons  of  its  choice  to  supervise  those activities.  As a
\nnecessary corollary, the Committee has the power to  direct  that  one  member
\nshould  be  nominated  by  the  Consortium  and  that  member  should  be made
\nresponsible for all the activities connected with the examination and  in  the
\nevent of  any  malpractice,  such  member  should  be  held  responsible.  The
\nCommittee has also the power to direct the cancellation of the entire test  in
\nthe event  the  question  paper  is leaked.  Mr.R.Krishnamoorthy and Dr.Rajeev
\nDhavan, learned Senior Counsel argued that  in  directing  the  person  to  be
\nnominated  by  the  Consortium  to  be  totally responsible for all activities
\nconnected with the examination is beyond the power of the Committee.  In  this
\nregard,  the  following  directions  of the Apex Court in Islamic Academy case
\nmade in paragraph 16 are referable.  “The question paper and the answer papers
\nmust be preserved for such period as the concerned authority or Committee  may
\nindicate.   If  it  is found that any student has been admitted de hors merit,
\npenalty  can  be  imposed  on  that  institute  and   in   appropriate   cases
\nrecognition\/affiliation may also be withdrawn.  To ensure fair and transparent
\nmanner of conduct of examination and also to ensure that admission of students
\nshould be on the basis of merit, the institute attracts penalty in addition to
\nwithdrawal   of   recognition\/affiliation   in   appropriate   cases.”  Unless
\nresponsibility is fixed, the merit-based admission cannot  be  ensured.    The
\nonly  reasonable  conclusion  would  be  that  the directions of the Permanent
\nCommittee in Clause A(1)(d) is to ensure  fairness  and  transparency  in  the
\nconduct of  tests  and well within the directions in Islamic Academy case.  In
\nthat view of the matter, I find no merits in the challenge to the said clause.\n<\/p>\n
        32.  Insofar as the challenge to Clause A(1)(n)  as  to  the  expenses
\nincurred  for  the supervisory work to be met by the Consortium and onehalf of
\nthe estimated amount  to  be  deposited  with  the  Directorate  of  Technical
\nEducation,  paragraph  20  of  the  judgment  in  Islamic Academy case needs a
\nreference.  In exercise of power under  Article  42  of  the  Constitution  of
\nIndia,  the  Apex  Court  directed  the setting up of Committee in each State.
\nWhile such Committee was directed to be constituted, it was  made  clear  that
\nthe  expenses  incurred for setting up of such Committee shall be borne by the
\nState and in addition to the same, the infrastructural needs and provision for
\nallowance and remuneration of the Chairman and other members of the  Committee
\nshall also  be  borne by the State.  The Committee is vested with the power to
\noversee the test to be conducted by  the  Association\/Consortium.    The  said
\npower  also  includes  the  power  to oversee the question papers, to know the
\nnames of the paper setters and examiners and to check the  method  adopted  to
\nensure that  the  papers  are  not  leaked.  The Committee shall also have the
\npower to supervise and ensure that  the  test  is  conducted  in  a  fair  and
\ntransparent manner.    In order to ensure the above, the Committee is entitled
\nto appoint such persons of its choice to  supervise  these  activities.    The
\nappointment  of  experts  is  only to discharge the functions of the Permanent
\nCommittee.  The Constitution of the Permanent Committee has been  referred  to
\nin the  earlier portion of the order.  It contains persons of eminence, as the
\nChairman himself is a retired Judge of this Court,  two  members  are  reputed
\npersons  in  education,  one  member  is an engineer of eminence and the other
\nmember Secretary is the Secretary to Government and it may not be possible for
\nthem  to  supervise  the  conduct  of  examination   in   all   centres   held
\nsimultaneously  of  course, on two days, the setting up of question papers and
\nevaluation of the same.  While the power of the Permanent Committee to appoint
\nexperts is upheld on the ground that  the  same  is  in  conformity  with  the
\ndirections  of  the  Apex  Court in Islamic Academy case, the supervisory work
\nshall also be traced to the work of the Permanent Committee in discharging its
\nfunctions.  The directions to the State Government to bear  the  expenses  for
\nsetting  up of the Committee including the infrastructural needs and provision
\nfor allowance and remuneration to Chairman and other members of the  Committee
\nto  be  borne  by  the State, shall therefore, necessarily mean that the State
\nshould bear the expenses of those persons appointed to supervise  the  process
\nof   conduct   of  the  examination,  more  particularly,  setting,  printing,
\ntransporting and conduct of common entrance test also.  For the said reason, I
\nhold that  the  directions  contained  in  Clause  A(1)(n)  in  directing  the
\nConsortium to bear the ex penses incurred for the supervisory work and also to
\ndeposit  the  same  with  the  Directorate  of  Technical  Education cannot be
\nsustained.\n<\/p>\n
        33.  In regard to Clause  A(1)(m),  the  Committee  has  directed  the
\nConsortium  to complete the examination before 15th July, 2004 and the results
\nof the examination shall be published without any delay at any rate within  10
\ndays from the  completion  of  the  examination.    Mr.R.   Krishnamoorthy and
\nDr.Rajeev Dhavan, learned  Senior  Counsel  submitted  that  in  view  of  the
\npendency  of  the  writ petitions, the time for conduct of the common entrance
\ntest must be extended.  In fact they have submitted that  the  Consortium  has
\nfixed  the  date  of  examination on 24 th and 25th of July, 2004, as the writ
\npetitions are pending in this Court and the petitioners have lost considerable
\ntime in litigation.  This request is reasonable and acceptable.   Accordingly,
\nthe  Consortium  is permitted to conduct the common entrance test as scheduled
\non 24 th and 25th of July, 2004 with a further direction that the  results  of
\nthe examination shall be published on or before 4th of August, 2004 .\n<\/p>\n
        34.  Point Nos.4 & 5:  The members of Consortium consist both minority
\nand non-minority institutions.  Hence it would be appropriate to deal with the
\npoints separately in respect of minority and nonminority institutions.\n<\/p>\n
UNAIDED MINORITY INSTITUTIONS:\n<\/p>\n
Article  29(1)  contemplates that “any section of the citizens residing in the
\nterritory of India or any part thereof having a distinct language,  script  or
\nculture  of its own shall have the right to conserve the same.” The right of a
\nminority community to establish and maintain educational institutions  of  its
\nchoice  is  a  necessary  concomitant of the right conferred by Article 29(1).
\nThis right is however subject to limitations in clause (2) of the said Article
\nin the event such institution receives aid from the State.  The  above  dictum
\nis settled in  In  Re  Kerala  Education  Bill (A.I.R.  1958 SC 956).  Article
\n29(2) contemplates that  “no  citizen  shall  be  denied  admission  into  any
\neducational  institution maintained by the State or receiving aid out of State
\nfunds on grounds only of religion, race, caste, language or any of them.”  The
\nsaid  clause  cannot be pressed into service in respect of an unaided minority
\ninstitution.  Article 15(4) empowers the State to make special  provision  for
\nadvancement  of any socially and educationally backward classes of citizens or
\nfor the Scheduled Castes and the Scheduled Tribes.  The said Clause is only an
\nenabling provision and does not surpass constitutional guarantee  given  to  a
\nminority  community  to  establish educational institution of its choice under
\nArticles 29(1) and 30.   The  right  of  a  minority  community  to  establish
\neducational  institution  of  its  choice includes the right to administer the
\ninstitution.  In turn the right to administer shall include the right to admit
\nthe students.  The law on this issue is settled  by  the  Apex  Court  in  the
\njudgment reported in  “ST.XAVIER’S  COLLEGE v.  STATE OF GUJARAT (A.I.R.  1974
\n(1) SCC 717)”.  Article 30(1) provides that all minorities, whether  based  on
\nreligion  or  language,  shall  have  the  right  to  establish and administer
\neducational institutions of their choice.    Article  30(1)  contemplates  the
\nright  of  minorities  to establish and administer educational institutions of
\ntheir choice.  While Article 29(1) gives a linguistic minority community right
\nto conserve its language or culture, Article 30(1)  confers  all  religion  or
\nlinguistic minorities the right to establish educational institutions of their
\nown choice.   Article 30(1) is wider than mere conservation of script, culture
\netc as indicated by the word “choice”.  In “SHAHAL H.  MUSALIAR AND ANOTHER v.
\nSTATE OF KERALA AND OTHERS<\/a> (1993 (4) SCC 112)”, a Constitution Bench held that
\nminority institutions  are  entitled  to  fill  all  the  seats  earmarked  as
\nmanagement  quota  from  among  the  candidates  belonging  to  that  minority
\ncommunity in the order of  merit.    However,  the  right  of  a  minority  to
\nadminister  its  educational  institutions is not absolute as held by the Apex
\nCourt in “SIDHAJBHAI SABHAI v.  STATE OF GUJARAT (A.I.R.  1963 SC 540) and  in
\n“FRANK ANTHONY PUBLIC SCHOOL EMPLOYEES’ UNION v.  UNION OF INDIA<\/a> (1986 (4) SCC\n<\/p>\n
707)”  as  it  is  subject  to reasonable regulations and such regulations are
\nintended for the benefit of the institution.  This principle of  law  is  also
\napproved by the Apex Court in “ALL SAINTS SCHOOL v.  GOVERNMENT OF A.P.  (1980
\n(2) SCC  478)”  and in “ST.STEPHEN’S COLLEE v.  UNIVERSITY OF DELHI<\/a> ( AIR 1992
\nSC 1630)”.  In Sidhajbhai Sabhai case it has been  held  that  the  State  has
\npower  to  regulate  the exercise of right of minority community to administer
\ninstitution in the interest of  efficiency  of  its  institution,  discipline,
\nhealth,  sanitation,  morality  or public order or the like so long as they do
\nnot constitute restrictions on the substance of  the  right  guaranteed  under
\nArticle 30(1).   While the State has power to make regulation, to regulate the
\nexercise of the right of the minority community to administer institution,  it
\nhas no power to impose restrictions which would in turn amount to infringe the
\nright  guaranteed under Article 30(1) on the minority communities to establish
\neducational institutions of their choice.\n<\/p>\n
35.  In T.M.A.  Pai Foundation case, Their Lordships observed that right under
\nArticle 30(1) is not absolute or above other provisions of law.  It is further
\nheld that  there  is  no  reason  why  regulations  or  conditions  concerning
\ngenerally  the  welfare  of students should not be made applicable in order to
\nprovide a proper academic atmosphere as such provisions  do  not  in  any  way
\ninterfere  with the right of administration or management under Article 30(1).
\nThere is no dispute that 70% of the seats are reserved for being  filled  from
\namong  the  candidates  who  have  taken the Common Entrance Test conducted by
\nconsortium.  There is no  further  dispute  that  in  the  event  the  unaided
\nminority  institutions  could not fill up all the seats from the candidates on
\nmerit basis, such seats should be surrendered to the State to be  filled  from
\namong  the meritorious candidate in the Common Entrance Test conducted by Anna
\nUniversity.  The State is well within the power in issuing such directions  as
\nit  is  only  regulating  the  admission  and  the State shall also ensure the
\nadmissions are only on merit basis and that  too  from  among  the  candidates
\nbelonging to  the minority community of the institutions.  Such directions are
\nby way of regulatory measure.  Once such safeguards are  made,  the  right  to
\nadmit  70%  of seats from among the candidates belonging to minority community
\nwill be within the law declared by the Apex  Court.    Any  further  direction
\neither  by  the  State\/University\/AICTE  would  amount  only to restriction on
\nadmission of students  either  by  following  Single  Windo  w  System  or  by
\nfollowing communal reservation, as the same would amount to restriction on the
\nfundamental right granted on minority institution to establish, administer and
\nadmit the  students  of  its  choice.    As  the  power of the State itself is
\nrestricted to only to issue direction to regulate the  admission  and  not  to
\nimpose limitations\/restrictions to follow Single Window System, the directions
\nof  the Permanent Committee are also beyond the powers vested in it in Islamic
\nAcademy case.    While  referring  to  G.O.Ms.No.23,  Higher  Education   (J1)
\nDepartment   dated  13.2.2003  relating  to  direction  for  unaided  minority
\nprofessional colleges to follow rule of reservation of the  State  Government,
\nthe  learned Advocate General would also fairly submit that the application of
\ncommunal  reservation  would  not  be  insisted  in  the  case   of   minority
\ninstitutions.  He would also submit that the said statement could be recorded.
\nHence,  I  hold that the minority institutions are entitled to fill 70% of the
\nseats from among the candidates of  their  community  but  strictly  on  merit
\nwithout  reference  to  Single Window System of admission and communal rule of
\nreservation and in case if any seat is not filled, the same shall be  reverted
\nback to  the  State.  Consequently, the direction in Clause B(b)(c) in respect
\nof minority institutions cannot be sustained.\n<\/p>\n
UNAIDED NON-MINORITY INSTITUTIONS:\n<\/p>\n
The issue as to the right of private unaided educational institutions  running
\nprofessional  courses  had  earlier  came up for consideration before the Apex
\nCourt in Unni Krishnan’s case.  Insofar as the private  unaided  institutions,
\nthe  Apex Court by way of a Scheme directed at least 50% of the seats in every
\nprofessional college shall be filled by the nominees of the Government or  the
\nUniversity as  the  case  may be, as free seats.  The scheme envisaged further
\nthat those students shall be selected on the basis of merit determined on  the
\nbasis  of  Common  Entrance  Examination  or  in  the  absence  of an entrance
\nexamination, by such criteria as may be determined by the competent  authority
\nor appropriate  authority  as  the  case  may  be.  The remaining 50% of seats
\ncommonly known as “payment seats” shall be filled from  those  candidates  who
\nare prepared to pay the fee prescribed therefor and who have complied with the
\ninstructions  regarding deposit and furnishing of cash security\/bank guarantee
\nfor the balance of  the  amount.    The  scheme  further  envisaged  that  the
\nallotment of students against payment seats shall also be done on the basis of
\ninter se  merit determined on the same basis as in the case of free seats.  It
\nwas further directed that there shall be no quota reserved for the  management
\nor for any family, caste or community which may have established such college.
\nThe   scheme   spoke   of  private  unaided  educational  institution  running
\nprofessional  college  and  no  distinction  was  made  between  minority  and
\nnonminority institutions.    The  scheme  in  Unni Krishnan’s case came up for
\nconsideration before the Apex Court in T.M.A.  Pai Foundation case and insofar
\nas the scheme framed in Unni Krishnan’s case relating to  grant  of  admission
\nand fixing of fee, Their Lordships held that the scheme was not correct and to
\nthat extent the decision and consequent direction given to UGC, AICTE, Medical
\nCouncil  of  India,  Central and State Governments etc., was overruled, as the
\nallotment of 50% of seats to private unaided educational institutions  running
\nprofessional colleges was held as not correct.\n<\/p>\n
36.   All  citizens shall have a right to establish and administer educational
\ninstitutions under Articles 19(1)(g) and 26, but this right is subject to  the
\nprovisions  of  Articles  19(1)(g)  and  26(a)  of  the Constitution of India.
\nArticle 19(6) enables the State to enact law imposing reasonable  restrictions
\nin  the  interest  of  general  public  on  the  right conferred under Article
\n19(1)(g).  Article 26(a) enables every religious denominations or any  section
\nthereof  to  establish  and maintain institutions for religious and charitable
\npurposes, but subject to public order, morality and health.  Such institutions
\ncannot insist grant from the State as a matter of right, as the grant  of  aid
\nis subject  to  resources of the State.  Aided institutions shall abide by all
\nlaws, regulations and directives of the Government.    In  that  context,  the
\nunaided  non-minority  institutions,  compared  to the aided institutions will
\nhave more autonomy to run the institutions.   While  considering  the  private
\nunaided non-minority  educational institutions, Their Lordships in T.M.A.  Pai
\nFoundation case observed that while the  State  has  the  right  to  prescribe
\nqualification necessary for the admission, private unaided colleges have their
\nright  to admit students of their choice, subject to an objective and rational
\nprocedure of selection and compliance with the conditions, if  any,  requiring
\nadmission  of  a  small percentage of students belonging to weaker sections of
\nthe society by granting them freeships or scholarships, if not granted by  the
\nGovernment.   It  was  also  held  that  the  right  to  establish educational
\ninstitution can be regulated, but such regulatory measures must,  in  general,
\nbe  to  ensure  the  maintenance  of proper academic standards, atmosphere and
\ninfrastructure and the prevention of maladministration by those in  charge  of
\nmanagement.   Fixing  of  rigid  fee  structure,  dictating  the formation and
\ncomposition of a governing body, compulsory nomination  of  teachers  and  the
\nstaff  for  appointment or nominating the students for admissions were held to
\nbe unacceptable restrictions.  It was also held that the essence of a  private
\neducational  institution is the autonomy that the institution must have in its
\nmanagement and the administration and, therefore, there has to be  necessarily
\na  difference  in  administration  of  a  private  unaided institution and the
\nGovernment aided institution.  It was also held that for  admission  into  any
\nprofessional  institution, merit must play an important role and such merit is
\nusually determined for admission to professional colleges by either the  marks
\nthat  the  students  obtains  at  the qualifying examination or school leaving
\ncertificate stage followed by the interview, or  by  a  common  entrance  test
\nconducted  by  the institution or in the case of professional colleges, by the
\nGovernment agencies.  The above findings were made while discussing the  right
\nof a private unaided non-minority educational institution.\n<\/p>\n
37.   The  rights of private unaided professional colleges were discussed from
\nparas 67 onwards.  In para 68 of the judgment, the Apex  Court  permitted  the
\nState  Government\/Universities  who were granting permission or affiliation as
\nthe case may be to require private unaided institutions to admit students  for
\na  certain percentage of seats for admission from out of the students who have
\npassed Common Entrance Examination held by itself or by  the  State\/University
\nand who have applied the college concerned for admission while the rest of the
\nseats may  be  filled  on  the  basis of counselling by the State agency.  For
\nbetter appreciation, para 68 of the judgment is reproduced below:\n<\/p>\n
        “It would be unfair to apply the same rules and  regulations  relating
\nadmission to  both  aided  and  unaided professional institutions.  It must be
\nborne in mind that unaided professional institutions are entitled to  autonomy
\nin  their  administration while at the same time they do not forego or discard
\nthe principle of merit.  It would therefore, be permissible for the University
\nor the Government, at the time of granting recognition, to require  a  private
\nunaided  institution  to  provide for merit based selection while, at the same
\ntime, giving the management sufficient discretion in admitting students.  This
\ncan be done through various methods.  For instance, a  certain  percentage  of
\nthe  seats  can  be  reserved  for  admission  by  the management out of those
\nstudents who have passed the common entrance test held by  itself  or  by  the
\nState\/University  and  have  applied  to  the college concerned for admission,
\nwhile the rest of the seats may be filled up on the basis  of  counselling  by
\nthe State  agency.    This  will incidentally take care of poorer and backward
\nsections of the society.  The prescription of percentage for this purpose  has
\nto  be  done  by  the  Government  according  to the local needs and different
\npercentages can be fixed for minority unaided  and  non-minority  unaided  and
\nprofessional colleges.      The   same  principle  may  be  applied  to  other
\nnon-professional but unaided educational  institutions  viz.,  graduation  and
\npostgraduation nonprofessional colleges or institutes.”
\nThus  it  is  clear  that  the  unaided  professional colleges are entitled to
\nautonomy in their administration and at the same time they do  not  forego  or
\ndiscard the   principle  of  merit  in  admission.    The  requirement  as  to
\nmerit-based selection and admission can be fulfilled by a common entrance test
\nconducted by the association also.  Such  test  is  conducted  in  respect  of
\ncertain  percentage of seats reserved for admission by the management from out
\nof those students who have passed the common entrance test held by  itself  or
\nby  the  State\/University  and  have  applied  to  the  college  concerned for
\nadmission, while the rest of the seats may be filled up on the  basis  of  the
\ncounselling by  the  State  agencies.    The above procedure to be adopted for
\nadmission is on the principle that the unaided private  professional  colleges
\nshall be given maximum autonomy.\n<\/p>\n
        38.  While  clarifying  T.M.A.  Pai Foundation case in Islamic Academy
\ncase, Their Lordships formulated four questions  for  consideration,  which  I
\nhave extracted  in  the  earlier portion of this order.  On the question as to
\nwhether the minority and non-minority educational institutions  stand  on  the
\nsame footing and have the same right, Their Lordships held that the essence of
\nwhat has  been  laid  in  T.M.A.    Pai  Foundation  case is that the minority
\neducational institutions have a  guarantee  or  assurance  to  administer  and
\nestablish  educational  institutions  of  their  choice  and  the non-minority
\neducational institutions do not have the  protection  of  Article  30  and  in
\ncertain  matters,  they  cannot  and  do  not  stand  on similar footings as a
\nminority educational institution.  Their Lordships also held that the minority
\neducational institutions have preferential right to admit  students  of  their
\ncommunity\/language  and  no  such  right  exist  so  far  as  the non-minority
\neducational institutions are concerned.  While answering the  question  as  to
\nwhether  the  private  unaided  professional colleges are entitled to fill the
\nseats to the extent of 100% and, if not, to what extent  and  whether  private
\nunaided professional colleges are entitled to admit students by evolving their
\nown  method  of  admission,  Their Lordships have held that so far as minority
\nprofessional colleges are concerned, they can admit in their management  quota
\na  student  of their community\/ language in preference to a student of another
\ncommunity even though that other student is  more  meritorious.    A  note  of
\ncaution  was also added that whilst selecting\/admitting students, the inter se
\nmerit of those students cannot be ignored.  It was  also  directed  that  even
\nmembers  of  their  community\/language  must be strictly on the basis of merit
\nexcept in the case of their own students it has to be  merit  inter  se  those
\nstudents.   Insofar  as  non-minority professional colleges, the discussion is
\nmade in para 16 of the judgment.  The said para is again  made  applicable  to
\nboth minority  and  non-minority  professional  colleges.    It  is  true that
\nadmissions could be made strictly on merits from among the candidates who have
\ntaken common entrance test.  A procedure for admission is also set out.    The
\nrelevant portion of the said para reads as under:-\n<\/p>\n
“In  our  view  what  is necessary is a practical approach keeping in mind the
\nneed for a merit-based selection.  Paragraph 68 provides that admission by the
\nmanagement can be by a  common  entrance  test  held  by  “itself  or  by  the
\nState\/University”.   The  words  “common  entrance test” clearly indicate that
\neach institute cannot hold a separate test.  We thus hold that the  management
\ncould  select  students,  of  their  quota,  either on the basis of the common
\nentrance test conducted by the State or on the basis of a common entrance test
\nto be conducted by an association of all colleges of a particular type in that
\nState e.g.  medical, engineering or technical etc.  The common entrance  test,
\nheld by the association, must be for admission to all colleges of that type in
\nthe State.    The  option  of choosing, between either of these tests, must be
\nexercised before issuing of prospectus and after intimation to  the  concerned
\nauthority and  the  Committee  set  up hereunder.  If any professional college
\nchooses  not  to  admit  from  the  common  entrance  test  conducted  by  the
\nassociation  then that college must necessarily admit from the common entrance
\ntest conducted by the State.  After  holding  the  common  entrance  test  and
\ndeclaration of results the merit list will immediately be placed on the notice
\nboard of  all colleges which have chosen to admit as per this test.  A copy of
\nthe merit list will also be forthwith sent to the concerned authority and  the
\nCommittee.   Selection of students must then be strictly on the basis of merit
\nas per that merit list.  Of course, as indicated  earlier,  minority  colleges
\nwill  be  entitled to fill up their quota with their own students on the basis
\nof inter se merit amongst those students.   The  list  of  students  admitted,
\nalong with the rank number obtained by the student, the fees collected and all
\nsuch  particulars and details as may be required by the concerned authority or
\nthe Committee must be submitted to them forthwith.  The question paper and the
\nanswer papers must be preserved for such period as the concerned authority  or
\nCommittee may  indicate.  If it is found that any student has been admitted de
\nhors merit, penalty can be imposed on that institute and in appropriate  cases
\nrecognition\/affiliation may also be withdrawn.” ( emphasis supplied)<\/p>\n
        39.   So  far  as  the  minority  institutions are concerned, they are
\nentitled to fill up the entire percentage of  seats  allocated  to  them  from
\namong  the  candidates  belonging  to  the same community, but strictly on the
\nbasis of merit according to the marks obtained in  the  common  entrance  test
\nconducted  by  the  association  or  by  the  State  or  by the Central agency
\ndepending upon the option exercised by  the  institution.    In  the  event  a
\ncertain  number  of  seats are not filled, the seats shall be reverted back to
\nthe State for being filled from among the meritorious candidates by  following
\nSingle Window  System.  So far as the non-minority institutions are concerned,
\ntheir right of admitting students cannot be equated with that of the  minority
\ninstitutions.   The  admissions  could  be made strictly on the basis of merit
\nfrom among the candidates who have taken the common entrance test.  Before the
\ncommon  entrance  test  is  conducted  by  the   association\/Consoritum,   the
\nindividual  institute  should opt for the mode of admission of students either
\nfrom common entrance test by association\/Consortium or by the State or by  the
\ncentral agency in advance and before the prospectus is issued.\n<\/p>\n
40.  This leads us to the next question as to whether the unaided non-minority
\ninstitution should  follow  Single  Window  System of admission.  The right of
\nprivate  unaided  non-minority  professional   colleges   to   establish   the
\neducational institution  can be so urced to Articles 19(1 )(g) and 26(a).  The
\nright conferred on them to administer  the  institution,  which  includes  the
\nadmission of  students, is on the ground of maximum autonomy.  The autonomy is
\nto ensure more such institutions are established, as the State has no funds to
\nestablish institution at the same level of excellence as private institutions.
\nBy the Single Window System, admissions are made on the basis of merit and  by
\nfollowing  rule  of  reservation of the State and the colleges are allotted as
\nper the willingness of the candidates subject to availability of seats and the
\ncourse.  As the  association  of  unaided  professional  colleges  were  given
\nliberty  to  hold  common  entrance  test  to  select and admit students, as a
\nnecessary corollary, the admission of students must be  based  on  the  method
\nfollowed by  the association\/Consortium.  In the event of insistence of Single
\nWindow System of admission also for the seats to be filled by the  management,
\nthe direction  for  conduct  of  common entrance test has no meaning.  In that
\ncase, the entire seats earmarked both to  be  filled  by  the  State  and  the
\nmanagement  could  be  filled  on  the  basis  of merit and following communal
\nreservation without there being any scope even for the  minority  institutions
\nto admit the students of their choice from their own community.  The allotment
\nof seats  must ultimately be based on the option of the candidates.  Option is
\nexercised by each of the candidates at the time of counselling and in the same
\nanalogy option is exercised by the candidates by applying to  the  college  of
\ntheir choice  and the discipline of their preference.  In the event the Single
\nWindow System of admission is also insisted, the autonomy in administration of
\nmanagement and admission of  students  enjoyed  by  the  unaided  professional
\ncolleges will be frustrated or become meaningless.  So long as the merit based
\nadmission are ensured and the admissions are made from among the candidates in
\nthe  order  of  merit  as  per  the marks obtained in the common entrance test
\ntogether with the academic marks, the directions in  T.M.A.    Pai  Foundation
\ncase  for  merit-based  admission  shall be complied with and preserved and in
\nthat event insistence of admission by Single Window System  is  impermissible.
\nBy  Islamic  Academy case, the Permanent Committee is empowered with the power
\nto ensure the merit-based admission and also to take action and in  the  event
\nif  it  is found that any student has been admitted de hors merit, penalty can
\nbe imposed on that institute and in appropriate cases  recognition\/affiliation
\nmay also  be  withdrawn.  The right of a member of the Consortium to admit the
\nstudents without reference to the Single Window System is further strengthened
\nwhile the Apex Court directed that  the  common  entrance  test  held  by  the
\nassociation  must  be for admission to all colleges of that type in the State.
\nIt was  also  directed  that  after  holding  the  common  entrance  test  and
\ndeclaration  of  results,  the  merit  list  will be immediately placed on the
\nnotice board of all colleges which has chosen to admit as per the list and the
\ncopy of the merit list shall also be forthwith sent to the concerned authority
\nand the Committee.  It is also directed that the selection  of  students  must
\nthen be  strictly  on  the  basis  of  merit  as per that merit list.  List of
\nstudents admitted along with the rank number obtained by the student, the fees
\ncollected and such particulars and details as may be required by the concerned
\nauthority or the Committee must be submitted to them  forthwith.    The  penal
\nprovision   for  imposing  penalty  or  in  appropriate  cases  withdrawal  of
\nrecognition\/affiliation is only after the above procedures are over and in the
\nevent any student is  admitted  de  hors  merit.    Single  Window  System  of
\nadmission  is  only intended for the seats to be filled on the basis of common
\nentrance test conducted by the State agency.  It is only a  procedure  evolved
\nin exercise  of  executive power.  As long as merit-based admission is ensured
\nas directed in T.M.  A.  Pai Foundation case and  Islamic  Academy  case,  the
\nright  of  unaided  non-minority  to admit the students on the basis of common
\nentrance test conducted by Consortium cannot be deprived.  In that  view,  the
\nindividual  institutes  are entitled to admit the students who have applied to
\nit, but strictly on the basis of order  of  merit.    The  directions  of  the
\nPermanent  Committee  to  the  Consortium  to  follow  Single Window System of
\nadmission in case of non-minority educational professional colleges is  beyond
\nthe power and contrar y to the law laid by the Apex Court and cannot therefore
\nbe sustained.\n<\/p>\n
        41.   This  leads  us  to the next question as to whether the communal
\nreservation should be followed while admissions are made by the management  in
\nthe above manner.  As the issues are inter-linked with each other, at the risk
\nof  reputation it is again mentioned that the right of minority institution is
\nguaranteed under Article 30 and such right cannot be equated to the  right  of
\nnon-minority institution.    Insofar  as  conduct  of common entrance test and
\nadmission of  students  on  the  basis  of  merit,  there  appears  to  be  no
\ndifference.  Insofar as the admission of students by the minority institution,
\nthey are entitled to admit students belonging to the same community and in the
\nevent any vacancy remains, it shall surrender the seat\/seats to the State.  No
\nsuch  contingency  exists  for  unaided  non-minority  professional  colleges.
\nNeither in T.M.A.  Pai Foundation case nor in Islamic Academy case, it is held
\nthat non-minority institution need not follow rule of reservation.  The  right
\nto  reservation  has  to  be  judged  with  reference to the provisions of the
\nConstitution.  Laws  are  enacted  under  Article  15(4)  prescribing  certain
\npercentage  of  seats  to  be  filled  for  the  advancement  of  socially and
\neducationally backward class citizens or  for  scheduled  caste  or  scheduled
\ntribes.   Such special provisions are notwithstanding the other sub clauses of
\nArticle 15 and the clauses of Article 29.  Such  reservation  insofar  as  the
\nweaker  section  of people and in particular to scheduled castes and scheduled
\ntribes is also contemplated in the directive principles under  Article  46  of
\nthe Constitution of India.\n<\/p>\n
        42.  Article 15(4) has to be read as an exception to Article 15(1) and
\nArticle 29(2).    This  principle  has  been  enunciated  by the Apex Court in
\n“M.R.BALAJI v.  STATE OF MYSORE (AIR<\/a> 1963 SC 649)”, “R.  CHITRALEKHA v.  STATE
\nOF MYSORE (AIR<\/a> 1964 SC 1823)”, “STATE OF A.P.  v.  P.SAGAR (AIR<\/a> 1968 SC  1379)
\nand in “D.N.CHANCHALA  v.   STATE OF MYSORE (AIR<\/a> 1971 SC 1762)”.  In “STATE OF
\nA.P.  v.  BALARAM U.S.V.  (AIR<\/a> 1972 SC 1375)”, the Apex Court  has  held  that
\nthe  Sta te is entitled to reserve a minimum percentage of seats under Article
\n15(4) notwithstanding Article 2 9(2).  On the above backdrop, it is to be  now
\nconsidered  as  to  whether  at  the  guise  of  the  right  to  establish the
\neducational institutions under Article 19(1)(g) read with Article  26(a),  the
\nunaided nonminority educational institution could refuse admission of students
\nby following  communal  reservation?    The  right  to  establish  educational
\ninstitutions under Article 19(1)(g) is only on the basis of the right to carry
\non “occupation”.  Education cannot  be  regarded  as  either  as  a  trade  or
\nbusiness where  the  profit  is  the  motive.   While the State is entitled to
\nregulate the education to ensure maintenance  of  proper  academic  standards,
\natmosphere  and  infrastructure  and  also  to  prevent maladministration, the
\nmanagement is obligated to follow the rule of reservation and that  the  right
\nof the management under Article 19(1)(g) is subject to reasonable restrictions
\nand r egulations, as the State has enacted law reserving certain percentage of
\nseats  for  backward, scheduled caste and scheduled tribe candidates under the
\nconstitutional mandate.  There is another aspect in the  matter.    After  the
\nAICTE  Act  has  come  into  force, the right of approval to start engineering
\ncolleges, number of discipline, total number of intake etc., shall  only  vest
\nwith the  AICTE  only.    The  approval  is  accorded  subject to admission of
\nstudents based on merit  as  well  communal  reservation.    If  a  particular
\ninstitute  is  allowed to admit 100 students in a particular discipline by the
\nAll India Council for Technical Education, by virtue of the direction  of  the
\nGovernment 50% seats are filled by the State agency by following Single Window
\nSystem.   The  rule  of reservation is followed only insofar as these 50 seats
\nare concerned.  Insofar as the remaining 50 seats, the State has earmarked the
\nsaid seats as management quota pursuant to  the  directions  in  T.M.A.    Pai
\nFoundation case.    Hence  only  the unaided non-minority professional college
\nderives its right to fill the 50 seats from among the candidates in the  order
\nof merit on the basis of the common entrance test conducted by the association
\nor Consortium.    If  the  percentage  of seats reserved is calculated for 100
\nseats, it would be less than 50% as the management is entitled to fill up  the
\nentire  50  seats  and  the  State agency is entitled to fill up the remaining
\nseats only by following rule of reservation.  As the non-minority institutions
\ncannot be placed on  par  with  minority  institutions,  as  their  right  are
\nguaranteed   under   Article  30  and  no  such  guarantee  is  available  for
\nnon-minority, I am of the considered view that while filling up the seats from
\namong the candidates applying to a particular  institution  on  the  basis  of
\nmerit, each institution shall also follow the rule of reservation of the State
\nwhile making  admissions.    Accordingly, point nos.4 and 5 insofar as private
\nunaided professional colleges are answered.\n<\/p>\n
        43.  Point No.6:  Insofar  as  the  submission  of  Mr.Vijay  Narayan,
\nlearned  counsel for the AICTE as to the requirement of the management also to
\nfollow rule of reservation, the question is answered in point nos.4 and 5.  He
\nwould argue that pursuant to the directions of the Apex Court in T.M.A.    Pai
\nFoundation  case,  the  office  memorandum  dated  15  .10.2003  issued by the
\nDepartment of Secondary Education and  Higher  Education,  Ministry  of  Human
\nResource  Development,  Government  of  India  as  to  the  decision  that all
\nadmissions on all India basis to the undergraduate programmes  in  engineering
\netc.,  in  all  institutions in the country shall be made through an All India
\nEngineering Entrance Examination (AIEEE).  He would submit that subsequent  to
\nthe  above  memorandum,  the  All India Council for Technical Education issued
\nguidelines on 3.11.2003 for common entrance test for admission to degree level
\nengineering for the academic year 2004-2005.  He would further submit that  as
\nper  clause  11,  all  institutes  conducting  degree  level engineering shall
\nintimate to the authority in the State and the Regional Office of AICTE  every
\nyear  the number of seats that are to be filled on the basis of test conducted
\nby AIEEE.  The relevant guideline reads as under:-\n<\/p>\n
“All  the  Institutions\/Universities  conducting  Degree  level   Engineering,
\nArchitecture\/Planning and Pharmacy Programmes shall intimate on or before 30th
\nNovember,  every year to the concerned authority in the State and the Regional
\nOffice of AICTE, the number of seats that are to be filled up on the basis  of
\nTests to be conducted by AICEE, State Level Test and Association Test (if any)
\nfor the following academic year.”\n<\/p>\n
According  to  the  learned counsel, none of the members of the Consortium has
\nintimated the number of seats to be filled up on All India basis and  for  the
\ntest conducted by AIEEE.  I am afraid that such arguments could be accepted at
\nthis stage.   The validity of the impugned order of the Permanent Committee is
\njudged in this order only with reference to the law decided  in  T.M.A.    Pai
\nFoundation case  and  Islamic  Academy  case.   So long as the above judgments
\nentitle the Association\/ Consortium to have a common entrance  test  to  admit
\nthe  students for management quota and the order of the Permanent Committee in
\npermitting the Consortium to conduct the common  entrance  test,  and  in  the
\nabsence  of  any challenge to such direction, it is needless for this Court to
\ngo into the said question.  Nevertheless, from the said guidelines,  all  that
\nhas  been  directed  is  that  the institutes shall intimate every year to the
\nconcerned authority in the State or the Regional Office of AICTE the number of
\nseats that are to be filled up on the basis of test to be conducted by  AIEEE,
\nState  Level  Test  and  Association  test, if any, for the following academic
\nyear.  The right of exercise of option vests with the  institution  either  to
\nopt  for the test to be conducted on All India basis or the State Level or the
\nAssociation itself.  By the said guidelines, it can neither be inferred nor be
\nheld that the management must also inform the Regional Office of AICTE or  the
\nconcerned  authority  in  the  State as to the number of seats to be filled up
\nfrom the other State candidates.   It  is  also  relevant  to  note  that  the
\nPermanent Committee in exercise of power conferred on it has also directed the
\nconduct of  Common  Entrance  Test  at  Ernakulam and Vijayawada.  It was also
\nbrought to my notice that such All India Engineering Entrance  Examination  is
\nalready  over  for  admission  for  the  academic year 2004-2005 and being the
\ntransitory period, the AICTE cannot insist that the members of the  Consortium
\nshould not  admit  students  from  other  States.  In fact students from other
\nStates have also been permitted to write the common entrance test conducted by
\nthe Tamil Nadu Professional Courses  Entrance  Examination,  as  there  is  no
\nembargo  on  any  student  from  other  State to take the common entrance test
\nconducted by TNPCEE.  There cannot be also any  restriction  in  the  case  of
\ncommon entrance  test conducted by the Consortium.  The conduct of examination
\non all India basis cannot be equated with the right of an individual candidate
\nto appear for common entrance test in other States.  This is more so there  is
\nno  specific  percentage of seats earmarked to be filled on All India Basis as
\nis done in admission to medical courses.  I would once again emphasize that  I
\nam  not  considering  the  validity  of  guidelines  of  AICTE,  but  only the
\ndirections of the Permanent Committee on the backdrop of law declared by  Apex
\nCourt.   So  far  as  the  guidelines (2) and (6) are concerned, the procedure
\nfollowed for conduct of CET and the admission based on the  merit,  I  do  not
\nfind any  difference,  as  they  are  strictly  complied.    For all the above
\nreasons, I am unable to accept the submissions of Mr.Vijay Narayan.\n<\/p>\n
        44.  In fine and subject to the findings in the order,  all  the  writ
\npetitions are disposed of with the following directions:-
\n(1)The  Consortium is not estopped from questioning the power of the Permanent
\nCommittee in issuing directions.\n<\/p>\n
(2)The petitioners are  entitled  to  question  the  impugned  proceedings  by
\nplacing  reliance on both the judgments in T.M.A.Pai Foundation and in Islamic
\nAcademy cases.\n<\/p>\n
(3)The directions in Clause A(1)(b) and (e) are beyond the power conferred  on
\nthe Permanent Committee and, accordingly, they are set aside.
\n(4)The  direction  contained in Clause A(1)(d) is in accordance with the power
\nconferred on the Permanent Committee by the judgment in Islamic Academy case.
\n(5)The direction contained in Clause A(1)(n) in directing  the  Consortium  to
\nbear  the  expenses  of  the  experts  is  beyond  the  power of the Permanent
\nCommittee and, accordingly, the same is set aside and the State is directed to
\nbear the expenses.\n<\/p>\n
(6)The petitioners are entitled to conduct the common entrance  test  on  24th
\nand  25th  July,  2004 as scheduled and shall publish the results on or before
\n5th August, 2004.\n<\/p>\n
(7)The unaided minority institutions are entitled to fill  70%  of  the  seats
\nfrom among the candidates of their community and applied to their institution,
\nbut  strictly  on  the  basis  of  merit  and the unfilled seat\/seats shall be
\nsurrendered to the State for being filled by following Single Window System of
\nadmission.  The unaided minority institutions need  not  follow  the  rule  of
\nreservation  while  admitting  the  students under management quota and to the
\nabove extent the direction of the Permanent Committee contained in Clause B(b)
\nis set aside.\n<\/p>\n
(8)The unaided non-minority institutions are entitled to fill 50% of the seats
\nfrom among the students applied to each of the institutions, but  strictly  on
\nthe basis of merit and to this extent the direction of the Permanent Committee
\ncontained in Clause B(c) is set aside.\n<\/p>\n
(9)The  unaided  non-minority  educational  institutions shall follow communal
\nrule of reservation while making admissions to the seats earmarked  under  the
\nmanagement  quota  and to this extent the direction of the Permanent Committee
\ncontained in Clause B(c) is sustained.\n<\/p>\n
(10)The Consortium  is  entitled  to  conduct  the  test  and  the  individual
\ninstitutions  are  entitled to fill the seats from the candidates belonging to
\nother States as directed by the Permanent Committee for this academic year.\n<\/p>\n
Consequently, all the connected W.P.M.Ps.  are closed.  No costs.\n<\/p>\n
Index:  yes
\nInternet:  yes<\/p>\n
ss\/vbs<\/p>\n
To<\/p>\n
1.  The Member-Secretary
\nPermanent Committee for the conduct
\nof Common Entrance Test
\nHigher Education Department
\nFort St.  George
\nChennai 600 009<\/p>\n
2.  The Secretary to Government
\nof Tamil Nadu
\nHigher Education Department
\nFort St.George, Chennai 600 009<\/p>\n
3.  The Registrar
\nAnna University
\nChennai 600 025<\/p>\n
4.  The Regional Director
\nAll India Council for Technical
\nEducation
\nSouthern Regional Office
\nSastri Bhavan
\nNo.26, Haddows Road
\nChennai 600 006<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Consortium Of Professional Arts … vs Permanent Committee For The … on 13 July, 2004 IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 13\/07\/2004 CORAM THE HONOURABLE MR.JUSTICE D.MURUGESAN W.P.No.16034 of 2004 and W.P.Nos., 16068, 16095, 16444 to 16447, 16659 to 16662, 17383 of 2004 and W.P.M.P.Nos.19009, 19041, 19061, 19430, 19432, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-197254","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nConsortium Of Professional Arts ... vs Permanent Committee For The ... on 13 July, 2004 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/consortium-of-professional-arts-vs-permanent-committee-for-the-on-13-july-2004\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Consortium Of Professional Arts ... vs Permanent Committee For The ... on 13 July, 2004 - 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