{"id":229612,"date":"2007-01-04T00:00:00","date_gmt":"2007-01-03T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/chief-executive-trustee-vs-state-of-kerala-on-4-january-2007-2"},"modified":"2015-09-11T12:45:09","modified_gmt":"2015-09-11T07:15:09","slug":"chief-executive-trustee-vs-state-of-kerala-on-4-january-2007-2","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/chief-executive-trustee-vs-state-of-kerala-on-4-january-2007-2","title":{"rendered":"Chief Executive Trustee vs State Of Kerala on 4 January, 2007"},"content":{"rendered":"
Kerala High Court<\/div>\n
Chief Executive Trustee vs State Of Kerala on 4 January, 2007<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nWP(C) No. 17873 of 2006(C)\n\n\n1. CHIEF EXECUTIVE TRUSTEE,\n                      ...  Petitioner\n2. THE SECRETARY (FR.FRANCIS XAVIER),\n3. LEENA JINCY CORREYA, (MINOR),\n4. LISHA P.THOMAS, (MINOR),\n5. RAYSON CHACKO,\n6. MINU JOHN, NERIAKKAL HOUSE,\n7. ROMY JOSEPH, (MINOR),\n8. SILMY JOSEPH, (MINOR),\n9. ANN STEFFY MARTIN, (MINOR),\n10. JOSEPH PAYNTER,\n11. MAXON JOB, S\/O.PUSHPPY JOB,\n12. SITHARA ANTONY, (MINOR),\n13. SIMY JOHN, PAZHAMPILLY HOUSE,\n14. NIXON PAUL, PALAKAL HOUSE,\n15. ANJU DAVIS, (MINOR),\n16. LIYA JOSEPH, (MINOR),\n17. RESHMA JOSE (MINOR),\n\n                        Vs\n\n\n\n1. STATE OF KERALA,\n                       ...       Respondent\n\n2. THE COMMISSIONER FOR ENTRANCE EDAMINA-\n\n                For Petitioner  :SRI.KURIAN GEORGE KANNAMTHANAM\n\n                For Respondent  :SRI.G.JANARDHANA KURUP (SR.)\n\nThe Hon'ble the Chief Justice MR.V.K.BALI\nThe Hon'ble MR. Justice P.R.RAMAN\n\n Dated :04\/01\/2007\n\n O R D E R\n                  V.K. BALI, C.J.   &   P.R. RAMAN, J.\n\n                --------------------------------------------\n\n                      W.P. (C) Nos. 17873,   17969,\n\n                      18008, 18012, 18299, 18307,\n\n                      18444, 18553, 18899, 18906,\n\n                      19253, 19440, 19588, 19584,\n\n                      19663, 19679, 19741, 19755,\n\n                      19844, 19846, 19888, 24824\n\n                               and 26444 of 2006\n\n                --------------------------------------------\n\n          Dated, this  the   4th       day   of  January, 2006\n\n\n                                  JUDGMENT\n<\/pre>\n
V.K. BALI, CJ.:\n<\/p>\n<\/p>\n
                    The Kerala Education Bill, 1957 contained many<\/p>\n
provisions   imposing   considerable   State   control   over   the<\/p>\n
management   of   Educational   institutions   in   the   State   of   Kerala,<\/p>\n
aided   or  recognised.      The   provisions   which   affected   the   aided<\/p>\n
institutions   were   much   more   stringent   than   those   which   would<\/p>\n
apply   only   to   recognised   institutions.     The   width   of   power   of<\/p>\n
control   sought   to   be   assumed   by   the   State   appeared   to   the<\/p>\n
President   of   India   to   be   calculated   to   raise   doubts   as   to   the<\/p>\n
constitutional validity of some of the provisions of the Bill as an<\/p>\n
infringement   of   some   of   the   fundamental   rights   guaranteed   to<\/p>\n
the   minority   communities   by   the   Constitution.       The   President<\/p>\n
under Article 143(1) of the Constitution of India sought opinion<\/p>\n
W.P.(C) No.17873\/2006 etc.                   – 2 –<\/span><\/p>\n
      of  the Supreme Court on questions  of  law of  public  importance<\/p>\n
      that had far reaching consequences.   The Supreme Court in Re.<\/p>\n
      Kerala   Education   Bill,   1957,  AIR   1958   SC   956,   for   the   first<\/p>\n
      time dealt with the right of minority community to establish and<\/p>\n
      maintain   educational   institutions   and   other   related   educational<\/p>\n
      matters.      Ever  since  the decision  of  the  Supreme  Court  in Re.<\/p>\n
      Kerala   Education   Bill   case     till   date,   the   same   very   and   other<\/p>\n
      questions   on   education   have   engaged   the   High   Courts   and   the<\/p>\n
      Supreme Court in a marathon litigation spanned over a period of<\/p>\n
      almost   six   decades.       The   leading   five   cases   decided   by   the<\/p>\n
      Supreme Court are  A
\n                                   hamedabad St.
\n                                                             Xavier’s C
\n                                                                             ollege Society<\/p>\n
      v.  State of Gujarat, 1974 (1) SCC 717, S
\n                                                                   t.Stephen’s C
\n                                                                                     ollege<\/p>\n
      v.  U
\n               niversity   of   Delhi,  (1992)   1   SCC   558;  Unnikrishnan    v.<\/p>\n
      State   of   A.P,  (1993)   1   SCC   645,   T
\n                                                              .M.A.  P
\n                                                                      ai  F
\n                                                                              oundation  v.\n<\/p>\n
\n      St
\n         ate of  K
\n                      arnataka,    (2002) 8  SCC 481  and  P.A. Inamdar  v.\n<\/p>\n
\n      State of Maharashtra, (2005) 6 SCC 527, (hereinafter referred<\/p>\n
      to   as   St.Xavier’s   case,   St.Stephen’s   case,   Unnikrishnan’s   case,<\/p>\n
      T.M.A.Pai Foundation case and Inamdar’s case respectively).<\/p>\n
W.P.(C) No.17873\/2006 etc.                 – 3 –<\/span><\/p>\n
                   2.  The second ever largest Bench consisting of eleven<\/p>\n
      Judges   was   constituted   culminating   into   the   decision   in  T.M.A.<\/p>\n
      Pai  Foundation  when  the   judgment   rendered  by  the   Supreme<\/p>\n
      Court   in  St.Stephen  was  doubted.     The   Supreme   Court   in<\/p>\n
      T.M.A.Pai  Foundation     framed   eleven   questions   to   be   answered<\/p>\n
      by it, some of which were answered and some left to be decided<\/p>\n
      by the regular Bench.  Even though one of the ever largest Bench<\/p>\n
      was   constituted,   the     aftermath   of   the   decision   in   T.M.A.Pai<\/p>\n
      Foundation     was   not   encouraging.     The   Bench  consisting   of   11<\/p>\n
      Honourable Judges gave five opinions, the majority decision was<\/p>\n
      delivered by the then Chief Justice;   the four Honourable Judges<\/p>\n
      delivered   three   separate   opinions   partly   dissenting   from   the<\/p>\n
      majority   view.     The   interpretation   of   the   judgment   of   the<\/p>\n
      Supreme Court  in  T.M.A.Pai  Foundation almost became a game<\/p>\n
      to be played by the State Governments and also the educational<\/p>\n
      institutions,   who   would   interpret   the   majority   opinion   in   their<\/p>\n
      own way.  This lead to flooding the courts at all levels with multi<\/p>\n
      faceted   and   multi   dimensional   litigations.     The   chaos   that<\/p>\n
      resulted because of the rival parties interpreting the judgment of<\/p>\n
W.P.(C) No.17873\/2006 etc.                    – 4 –<\/span><\/p>\n
      the Supreme Court in their own way paved way for constitution<\/p>\n
      of   yet   another   Bench   of   five   Judges   in    Islamic   Academy   of<\/p>\n
      Education  v.  St
\n                               ate   of   Karnataka,    (2003)   6   SCC   697,<\/p>\n
      (hereinafter   referred   to   as   Islamic   Academy   of   Education   case)<\/p>\n
      wherein as well two opinions were expressed, one by a majority<\/p>\n
      of   four   Honourable   Judges,  delivered  by  the  then   Chief   Justice,<\/p>\n
      whereas   the   other   by   one   Honourable   Judge,     who   delivered   a<\/p>\n
      separate judgment.     Despite the judgment in  Islamic Academy<\/p>\n
      of   Education,   it   was   accepted   both   by   the   Government   and   by<\/p>\n
      the   privately   managed   aided   or   unaided   institutions   that   the<\/p>\n
      position   in   law   was   still   not   clear.       There   were   still   unsettled<\/p>\n
      issues     and   there   was   still   no   clarity   in   the   decision   of   eleven<\/p>\n
      Judges in T.M.A.Pai Foundation, thus resulting into constitution of<\/p>\n
      seven   Judges   Bench   in  P.<\/p>\n
\n                                          A.  In\n                                                 amdar's  case.     Indeed   by   this\n\n\n<\/pre>\n
      decision,   some   of   the   issues   have   been   settled   whereas,<\/p>\n
      concededly, some still need to be settled and the  cases including<\/p>\n
      such  unsettled  points   are  still   pending  decision  of   the  Supreme<\/p>\n
      Court,   one   of   which   pertains   to   the   Kerala   Self   Financing<\/p>\n
      Professional   Colleges   (Prohibition   of   Capitation   Fee   and<\/p>\n
W.P.(C) No.17873\/2006 etc.                    – 5 –<\/span><\/p>\n
      Procedure   for   Admission   and   Fixation   of   Fees)   Act,   2004<\/p>\n
      (hereinafter referred to as ‘Act of 2004’).  It is at this stage when<\/p>\n
      the   judiciary   in   the   country  has   struggled   for   more   than   half   a<\/p>\n
      century to find out solutions to some of the educational related<\/p>\n
      problems and when answer to those problems is still awaited and<\/p>\n
      when so far the challenge to   the Act of 2004 is still alive,   the<\/p>\n
      Government of Kerala has come up with the Kerala Professional<\/p>\n
      Colleges or Institutions (Prohibition of Capitation Fee, Regulation<\/p>\n
      of   Admission,   Fixation   of   Non-Exploitative   Fee   and   other<\/p>\n
      Measures   to   Ensure   Equity   and   Excellence   in   Professional<\/p>\n
      Education)   Act,   2006   (hereinafter   referred  to   as   ‘Act   of   2006’).<\/p>\n
      To   the   questions   already   debated,   answered   or   unanswered,<\/p>\n
      many   more   dimensions   have   been   added.     Sea   changes   of   far<\/p>\n
      reaching   consequences   have   been   made.   The   admission   of<\/p>\n
      students   in   all   professional   colleges   or   institutions   for   all   seats<\/p>\n
      except NRI seats is now to be made through Common Entrance<\/p>\n
      Test   conducted   by   the   State   Government,   irrespective   of   any<\/p>\n
      judgment, decree  or   order  of   any  court  or   any  other   authority.<\/p>\n
      The right of management institutions, whether aided or unaided,<\/p>\n
W.P.(C) No.17873\/2006 etc.                  – 6 –<\/span><\/p>\n
      whether   run   by   the   religious   minority   or   otherwise,   to   make<\/p>\n
      admissions have been completely taken away.  The fee structure<\/p>\n
      has to be determined by the Regulatory Committee and the same<\/p>\n
      shall  be  binding  on  unaided professional   colleges  or   institutions<\/p>\n
      for a period of   three years.    Whatever  rights the management<\/p>\n
      had earlier   with regard to determination of fee have also been<\/p>\n
      taken away. The status of the minority institutions  now, for the<\/p>\n
      first   time,     shall   be   determined   by   Government   on   factors<\/p>\n
      enumerated   in   Section   8.     By   virtue   of   judicial   precedents,   the<\/p>\n
      status of minority institution was to be determined on the basis<\/p>\n
      of   percentage   of   population   of   a   particular   religious   minority<\/p>\n
      taking   State   as   a   Unit.     In   addition   to   this   condition   for<\/p>\n
      determination   of   minority   status   of   an   institution,   further<\/p>\n
      conditions that the number of professional colleges or institutions<\/p>\n
      run by the linguistic or religious minority community in the State<\/p>\n
      shall   be  proportionately   lesser   than   the   number  of   professional<\/p>\n
      colleges or institutions run by the non-minority community in the<\/p>\n
      State and that  the number of students belonging to the linguistic<\/p>\n
      or   religious   minority   community   to   which   the   college   or<\/p>\n
W.P.(C) No.17873\/2006 etc.                    – 7 –<\/span><\/p>\n
      institution   belongs   undergoing   professional   education   in   all<\/p>\n
      professional   colleges   or   institutions   in   the   State   shall   be<\/p>\n
      proportionately lesser than the number of students belonging to<\/p>\n
      the non-minority community  have been added.  In the words of<\/p>\n
      the Honourable Supreme Court  dealing with the appeals arising<\/p>\n
      from   the   interim   directions   issued   by   this   Court   in   these   very<\/p>\n
      cases, there are drastic changes in the Act of 2006 in the mode<\/p>\n
      of   admission   and   also   determination   of   minority   status   of   the<\/p>\n
      institution.     The   petitioners   take     strong   exception   to   the<\/p>\n
      provisions   dealing   with   the   right   of   admission   of   students,<\/p>\n
      determination   of   status   of   a   minority   institution,   fee   structure<\/p>\n
      and other provisions in the Act of 2006.   The contentions raised<\/p>\n
      in challenging the provisions of the Act of 2006 match with the<\/p>\n
      long title and preamble of the Act.\n<\/p>\n<\/p>\n
                    3.  Before we may, however, proceed to deal with the<\/p>\n
      pleadings   and   contentions   raised   by   learned   counsel   appearing<\/p>\n
      for   the   parties     on   the   constitutional   validity     of   the   provisions<\/p>\n
      under   challenge,   we   only   hope   and   pray   Almighty   that   the<\/p>\n
      litigation   on   education   with   such   far   reaching   consequences<\/p>\n
W.P.(C) No.17873\/2006 etc.                  – 8 –<\/span><\/p>\n
      which  may   change   the   very   course   of   education   in   the     nation<\/p>\n
      and   that started   in   Re. Kerala Education Bill case from Kerala<\/p>\n
      only may end with the decision on the provisions  of Act of 2006<\/p>\n
      by this Court or by the Apex Court, once again arising from the<\/p>\n
      State of Kerala.\n<\/p>\n<\/p>\n
                   4  We may also mention that at the time of admission<\/p>\n
      of the case, petitioners sought stay of operation of the Act.     A<\/p>\n
      Single Bench of this Court before whom these petitions came up<\/p>\n
      for initial   hearing on the prayer made by the  petitioners issued<\/p>\n
      interim   directions   that   the   procedure   with   regard   to   sharing   of<\/p>\n
      seats   between   the   Government   and   the   Managements   of   Self<\/p>\n
      Financing   Institutions   and   also   the   fee   structure   as   envisaged<\/p>\n
      under  the Act  of  2004 would govern  the field for  this  academic<\/p>\n
      year, 2006-2007,  vide  orders dated 18th  July, 2006.   Aggrieved,<\/p>\n
      the State preferred appeals which were dismissed  by a Division<\/p>\n
      Bench   of   this   Court   vide   orders   dated   29th  July,   2006.     Still<\/p>\n
      aggrieved,   the   State   preferred   appeals   to   the   Supreme   Court<\/p>\n
      which      were dismissed by the Honourable  Supreme Court vide<\/p>\n
      orders dated 25th August, 2006.\n<\/p>\n
\nW.P.(C) No.17873\/2006 etc.                  – 9 –<\/span><\/p>\n
                                 FACTUAL   MATRIX<\/p>\n
                   5.     The   factual   matrix   leading   to   the   filing   of   the<\/p>\n
      petitions   has   been   extracted   by   us   from   W.P.(C)   No.17873   of<\/p>\n
      2006,   wherever,   however,   required     additional   facts   may   be<\/p>\n
      given by giving a reference to such petitions wherein additional<\/p>\n
      facts   might   have   been   pleaded.     Petitioners   1   and   2   are   the<\/p>\n
      Managements of two reputed Self Financing Nursing Institutions<\/p>\n
      whereas other petitioners are students in B.Sc. (Nursing), in Self<\/p>\n
      Financing   Colleges.     Petitioners   1   and   2   claim   to   be   minority<\/p>\n
      managements   representing   two   Catholic     denominations   of<\/p>\n
      Christian   community.     The   first   petitioner’s   college   has   been<\/p>\n
      established   by   the   arch   Diocese   of  Ernakulam  and   the   second<\/p>\n
      petitioner’s   college   was   established   by   the   Arch   Diocese   of<\/p>\n
      Verapoly, both through Trusts\/Societies  created by them.   It is<\/p>\n
      the case of the petitioners that being directly established by the<\/p>\n
      community   through   its   higher   hierarchy,   no   declaration   of   any<\/p>\n
      status is necessary for exercising their rights under Article 30(1)<\/p>\n
      of   the     Constitution.       The   Self   Financing   Professional   Colleges<\/p>\n
      started coming in the State of Kerala as a phenomenon in 2002<\/p>\n
W.P.(C) No.17873\/2006 etc.                – 10 –<\/span><\/p>\n
      when ten Engineering Colleges were sanctioned by the AICTE.  At<\/p>\n
      that   time,   admissions   to   the   Self   Financing   Colleges   were<\/p>\n
      governed   by   the   judgment   of   the   Supreme   Court   in<\/p>\n
      Unnikrishnan’s  case,   which     formulated   a   scheme   with   such<\/p>\n
      ingredients that all admissions to the professional colleges should<\/p>\n
      be through a Common Entrance Test and allotment of admission<\/p>\n
      should be through a Single Window System by the State, 50% of<\/p>\n
      the   seats   would   be   free   seats   and   the   remaining   50%   seats<\/p>\n
      would be payment seats, free seats means rate of fee would be<\/p>\n
      as in Government College,  the fee payable would be decided by<\/p>\n
      the   State,   there   would   be   no   management   quota   and   there<\/p>\n
      should   be   no   capitation   fee.       The   petitioners   have   made   a<\/p>\n
      mention   of   the   leading   Supreme   Court   judgments   referred   to<\/p>\n
      above   which,   according   to   them,   would   give   them  the   right   to<\/p>\n
      chose   the   students   for   admission,   especially   of   the   Minority<\/p>\n
      Management.     The   consortium   of   managements   can   evolve   to<\/p>\n
      themselves a fair and transparent method of selection and as per<\/p>\n
      the decision of the Supreme Court, the admission process cannot<\/p>\n
      be taken over by the Government.   If, however, there   may be<\/p>\n
W.P.(C) No.17873\/2006 etc.                  – 11 –<\/span><\/p>\n
      foul   play   or   malpractices   in   the    examination  conducted  by   the<\/p>\n
      consortium   of   managements,   Government   may   take   over   the<\/p>\n
      examination,   but   it   can   be   limited   only   for   that   year   and   not<\/p>\n
      permanently for all years to come. It is further the case of  the<\/p>\n
      petitioners   that   in   so   far   as   the   selection   process   and   tests<\/p>\n
      conducted   by   the   consortium   of   Nursing   Management   is<\/p>\n
      concerned, there was no complaint from any quarters so far.  In<\/p>\n
      the   background   as   mentioned   above,   the   petitioners   have<\/p>\n
      challenged the validity of Act of 2006 by prominently highlighting<\/p>\n
      five areas of disputes reproduced in paragraph 78 of the petition,<\/p>\n
      which read as follows:\n<\/p>\n<\/p>\n
              “(1)   In   the   areas   of   redefining   ‘minority’   and<\/p>\n
                       imposing   conditions   to   satisfy   the   tests   of<\/p>\n
                       ‘minority’,   which   are   unheard   of   in   the<\/p>\n
                       Judicial History.<\/p>\n
\n              (2)   Laying down  a condition that  admissions are<\/p>\n
                       possible   only   from   the   rank   list   of   the<\/p>\n
                       Commissioner   for   Entrance   Exam   in   the<\/p>\n
                       CET, and that all allotments will be done by<\/p>\n
                       the Commissioner, except for NRI seats;<\/p>\n
              (3)  50% seats will be mandatorily ‘freeship’ seats,<\/p>\n
                       thus   bringing   back   the   ‘Unnikrishnan’s<\/p>\n
                       Scheme’ which was held unconstitutional by<\/p>\n
                       the Hon’ble Supreme Court.\n<\/p><\/blockquote>\n
\nW.P.(C) No.17873\/2006 etc.                – 12 –<\/span><\/p>\n
              (4)  Has brought in the principles of reservation in<\/p>\n
                      minority   unaided   institutions   also,   which  is<\/p>\n
                      expressly   prohibited   under   the            93rd<\/p>\n
                      amendment of the Constitution.\n<\/p><\/blockquote>\n
\n              (5)   Fees   will   be   fixed   by   a   Fee   Regulatory<\/p>\n
                      Committee, only”.\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
      Petitioners   plead   that   there   are   eight   Self   Financing   Medical<\/p>\n
      Colleges   in   the   State   of   which   five   belong   to   Christian<\/p>\n
      management,   one   belongs   to   Muslim   management   and   two<\/p>\n
      belong to Hindu management.  Out of the total 49 Self Financing<\/p>\n
      Engineering Colleges, eighteen belong to Christian management,<\/p>\n
      thirteen  belong to Muslim management, one belongs to Secular<\/p>\n
      Organisation  and seventeen belong to Hindu management.   Out<\/p>\n
      of   the   51   nursing   colleges,   28   Colleges   belong   to   Christian<\/p>\n
      management, which itself is more than 50% and if the provisions<\/p>\n
      contained in Section 8 of the Act of 2006 are to be applied, the<\/p>\n
      petitioners state that there cannot be any minority institution in<\/p>\n
      the State.  There is no need to detail further the facts as given in<\/p>\n
      the petition, but for to say that primary challenge in the writs is<\/p>\n
      to   provisions   of   the   Act   of   2006   as   mentioned   above.     The<\/p>\n
W.P.(C) No.17873\/2006 etc.                   – 13 –<\/span><\/p>\n
      grounds taken in the petition in challenging the provisions would<\/p>\n
      be   given   while   dealing   with   the   provisions   under   challenge<\/p>\n
      separately.\n<\/p>\n<\/p>\n
                    6.   The   respondent   State   has   entered   defence   and<\/p>\n
      joined   issues   with   the   petitioners   on   all   fronts.     In   the   counter<\/p>\n
      affidavit   filed   by   the   State,   it   has   been   averred   that   the<\/p>\n
      allegations made in the petitions are false and baseless.  The Act<\/p>\n
      of 2006 is in conformity with the Constitution of India and also<\/p>\n
      the dictum of the Supreme Court in Inamdar’s case.  The Act of<\/p>\n
      2006   is   in   the   larger   interests   of   the   public,   especially   the<\/p>\n
      student   community   and   is   aimed   at   ensuring   admissions   to<\/p>\n
      private   unaided   professional   colleges   in   a   fair,   transparent   and<\/p>\n
      non-exploitative   manner.       Each   provision   of   the   Act   is<\/p>\n
      incorporated   to   give   effect   to   the   judgments   of   the   Supreme<\/p>\n
      Court   in   its   entirety   and   the   relevant   direction   of   the   Central<\/p>\n
      Government.       The   Act   has   been   passed   keeping   in   view   the<\/p>\n
      aspirations   of   the   people   to   have   a   comprehensive   legislation<\/p>\n
      reflecting   the   socio   economic   and   demographic   needs   and<\/p>\n
      concerns of the State.   The allegation of the petitioners that the<\/p>\n
W.P.(C) No.17873\/2006 etc.                    – 14 –<\/span><\/p>\n
      Act   is   aimed   at   nationalisation   of   seats   has   been   denied.     It   is<\/p>\n
      further   averred   that   there   is   no   classification   as   Management<\/p>\n
      seats or Government seats and does not provide for seat sharing<\/p>\n
      arrangement   between   Government   and   Management.     The<\/p>\n
      admission   to   the   various   courses   is   only   through   the   Common<\/p>\n
      Entrance   Test   conducted   by   the   State   Government   followed   by<\/p>\n
      centralised   counselling   and   this   stipulation   in   the   Act   is   in<\/p>\n
      conformity with the  judgment    of Supreme Court in  Inamdar’s<\/p>\n
      case.   The   State   can   provide   a   procedure   of   holding   a   common<\/p>\n
      entrance   test   in   the   interest   of   securing   fair   and   merit-based<\/p>\n
      admissions and preventing  maladministration.   If the admission<\/p>\n
      procedure adopted by a private institution or group of institutions<\/p>\n
      fails to satisfy the triple test, i.e. it is fair, transparent and non-<\/p>\n
      exploitative, the admissions can be taken over by the State.  The<\/p>\n
      preamble to the Act clearly sets out that the need for stipulating<\/p>\n
      admissions can only be made through the common entrance test<\/p>\n
      conducted by the State followed by the centralised counselling in<\/p>\n
      view of the past experiences of maladministration of the entrance<\/p>\n
      test held by the consortium or association of private professional<\/p>\n
W.P.(C) No.17873\/2006 etc.                    – 15 –<\/span><\/p>\n
      colleges in the State.  The legislature would  insist on admissions<\/p>\n
      only   through   this   manner   as   it   was   felt   that   large   scale<\/p>\n
      maladministration   and   exploitative   methods     were   adopted   by<\/p>\n
      the private professional colleges.  The power to admit is the root<\/p>\n
      cause of the evil of capitation fee and merit being given a go-by,<\/p>\n
      the legislature was constrained to pass the new law.  The recitals<\/p>\n
      in   the   preamble   to   the   Act   are   stated   to   be   part   of   legislative<\/p>\n
      facts and the same cannot be the subject matter of  dispute  and<\/p>\n
      would be beyond the purview of judicial review.  For deciding the<\/p>\n
      validity   of   a   law,   the   statements   contained   in   the     Preamble<\/p>\n
      should be presumed to   be  correct  and cannot  be  disputed.      If<\/p>\n
      the   preamble   is   read   as   a   whole,   it   would   be   evident   that   the<\/p>\n
      object  and  provisions  of  the  Act  falls   within  the four corners   of<\/p>\n
      the provisions   of the Constitution as well as the decision of the<\/p>\n
      Supreme  Court   in   Inamdar’s   case.     It   is   then   pleaded   that   the<\/p>\n
      legislative   facts   cannot   be   the   subject   matter   of   dispute   or<\/p>\n
      judicial   review.     Mr.Justice   K.T.Thomas,   Chairman   of   the<\/p>\n
      Committee   for   overseeing   the   conduct   of   examinations   has<\/p>\n
      pointed   out   that   the   Management   of   Self   Financing,   Medical,<\/p>\n
W.P.(C) No.17873\/2006 etc.                 – 16 –<\/span><\/p>\n
      Dental, Ayurveda  and Sidha Colleges have violently violated the<\/p>\n
      guidelines   issued   by   the   Supreme   Court   by   conducting   rigged<\/p>\n
      and   farce   Entrance   Test   for   admitting   students   as   if   they   are<\/p>\n
      merit   students.     A   copy   of   the   proceedings   of   Mr.Justice<\/p>\n
      K.T.Thomas Committee dated 03.6.2004 and a copy of the letter<\/p>\n
      dated 21.6.2004 have been annexed to the counter affidavit,  as<\/p>\n
      Exts.R1(a) and Ext.R1(b).   A letter dated 30.7.2004  was written<\/p>\n
      by   a   student   complaining   about   the   manner   in   which   the<\/p>\n
      entrance   examination   was   conducted   by   the   group   of   private<\/p>\n
      colleges   in   2004,   copies   whereof   have   been   annexed   in   the<\/p>\n
      counter   affidavit   as   Exts.R1(c)   and   R1(d).     There   were   several<\/p>\n
      complaints voiced by different sections of the people with regard<\/p>\n
      to   commercialisation   of   education   by   the   managements   of<\/p>\n
      minority and non-minority unaided educational institutions. This<\/p>\n
      has been taken note of by Mr.Justice K.T.Thomas Committee in<\/p>\n
      the   specific   context   of   admission   made   in   Kerala   in   Ext.R1(a).<\/p>\n
      The   present   Government   in   the   State   assumed   office   on<\/p>\n
      18.5.2006.   One of the prime initiatives of the Government was<\/p>\n
      to fulfil the the promise given to the people in regard to bringing<\/p>\n
W.P.(C) No.17873\/2006 etc.                  – 17 –<\/span><\/p>\n
      in   legislation   to   regulate   unaided   colleges.   Following   were   the<\/p>\n
      specific   promises   made   in   respect   of   regulating   unaided<\/p>\n
      education:\n<\/p>\n<\/p>\n
             A.     Ensure social justice in admission and fees.<\/p>\n
             B.     Ensure   excellence   in   education   through   merit   based<\/p>\n
                    admission.\n<\/p><\/blockquote>\n
\n             C.     Prevent   capitation   fee   and  commercialisation  of<\/p>\n
                    education.\n<\/p><\/blockquote>\n
\n             D.     Set up a higher education fund for giving assistance to<\/p>\n
                    needy students.\n<\/p><\/blockquote>\n
\n             E.     Scientific   revision   of   norms   for   selection   of   students<\/p>\n
                    for professional courses.\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
      Immediately after assuming office, the Government took steps to<\/p>\n
      bring   in   the   proposed   legislation.     This   included   preparation   of<\/p>\n
      the   position   paper   and   holding   of   widespread   discussions   with<\/p>\n
      different   stakeholders   including   the   management   of   unaided<\/p>\n
      colleges.   The Bill for the above was introduced on 22.6.2006 in<\/p>\n
      the   very   first   session   of   the   Legislative   Assembly.     Except   for<\/p>\n
      revising the norms  for the conduct of entrance examination, all<\/p>\n
      other promises stated above were taken care of in the Bill.   The<\/p>\n
      Bill   was   examined   by   the   Subject   Committee   and   unanimously<\/p>\n
W.P.(C) No.17873\/2006 etc.                 – 18 –<\/span><\/p>\n
      passed by the Assembly on 30th June, 2006.   The Governor gave<\/p>\n
      assent   to   the   Bill   on   2.7.2006.     From   the   facts   as   mentioned<\/p>\n
      above, it is pleaded that the Government acted expeditiously in<\/p>\n
      accordance   with   the   directives   given   by   the   Supreme   Court   in<\/p>\n
      Inamdar’s   case     to   Central\/State   Governments   to   bring   in<\/p>\n
      suitable legislation to regulate unaided professional education at<\/p>\n
      the   earliest,   thereby   also   honouring   the   promise   given   to   the<\/p>\n
      people.     The   moment   the   present  Government   came   to   power,<\/p>\n
      the  entire  people  of  Kerala   knew  for   certain  that   admissions   to<\/p>\n
      the unaided professional courses for this year would be held as<\/p>\n
      per the new Act.   The managements were taken into confidence<\/p>\n
      by the Government.   The first draft of the Bill introduced in the<\/p>\n
      Assembly did not contain any provision for privilege seats.   The<\/p>\n
      provision for  15% privilege seats  was introduced  later,  even as<\/p>\n
      the   Assembly   was   debating   the   Bill,   to   accommodate   the<\/p>\n
      interests   of     Managements.     The   impression   given   by   the<\/p>\n
      Managements was that they were fully satisfied with the changes<\/p>\n
      made   in   the   draft   and   they   would   fully   co-operate   with   the<\/p>\n
      Government   for   the   implementation   of   the   Act,   but   behind   the<\/p>\n
W.P.(C) No.17873\/2006 etc.                 – 19 –<\/span><\/p>\n
      scene, they were also making arrangements for pre-empting the<\/p>\n
      implementation of the Act and creating a fait accompli   situation<\/p>\n
      by admitting students without reference to the provisions of the<\/p>\n
      Act   or   the   Supreme   Court   directives   for   fair,   transparent   and<\/p>\n
      non-exploitative  admission  procedure.    Like  the petitioners  who<\/p>\n
      have given reference to various judgments of the Supreme Court<\/p>\n
      and   interpret   it   in   their   favour,   the   State   too   has   made   a<\/p>\n
      reference to some judgments, in particular Inamdar’s case, and<\/p>\n
      would   interpret   the   said   judgments   in   their   favour.     The   legal<\/p>\n
      grounds   pressed   into   service   by   the   petitioners   have   been<\/p>\n
      countered   with   equal   vehemence.     Various   organisations<\/p>\n
      espousing the welfare of the student community and the general<\/p>\n
      public interest have moved application for impleadment and vide<\/p>\n
      separate orders some of the petitions have been allowed.   They<\/p>\n
      have filed separate counter affidavits as well.    There  will be no<\/p>\n
      need   to   make   a   mention   of   the   pleadings   made   therein,   as   by<\/p>\n
      and large, the Act of 2006 is sought to be defended in the  like<\/p>\n
      manner as has been done by the State.\n<\/p>\n
\n      Backdrop   of   events,   Judicial   Precedents   and   relevant<\/p>\n
W.P.(C) No.17873\/2006 etc.                  – 20 –<\/span><\/p>\n
      provisions of the Act including those under challenge:<\/p>\n
                   7.   Before we may advert to the provisions of the Act<\/p>\n
      of   2006   which   are   under   challenge,   we   propose   to   give   the<\/p>\n
      backdrop   of   events   and   judicial   precedents   that   may   touch   on<\/p>\n
      the controversy in issue.       The Constitution Bench consisting of<\/p>\n
      five Hon’ble Judges in   Unnikrishnan’s  case   held that   private<\/p>\n
      aided institutions cannot charge fee higher than the Government<\/p>\n
      institutions;   the   institutions   in   the   matter   of   admission   should<\/p>\n
      follow   only   merit   and;   the   activity   of   establishing   educational<\/p>\n
      institution   is   neither   a   trade   or   business   nor   a   profession   and<\/p>\n
      shall thus be not entitled to the protection under Article 19(1)(g)<\/p>\n
      of   the   Constitution.     The   authorities   granting   recognition   or<\/p>\n
      affiliation   are duty bound to insist on conditions ensuring inter<\/p>\n
      alia fairness in matters of admission.\n<\/p>\n<\/p>\n
                   8.     Some  private   educational   institutions,  both   aided<\/p>\n
      and   unaided   established   by   the   minorities   and   non-minorities<\/p>\n
      filed writ petitions before the Supreme Court asserting their right<\/p>\n
      to   establish   and   administer   educational   institutions   of   their<\/p>\n
      choice unhampered  by rules and regulations which unnecessarily<\/p>\n
W.P.(C) No.17873\/2006 etc.                 – 21 –<\/span><\/p>\n
      impinge   upon   their   autonomy.     The   petition   filed   by   Islamic<\/p>\n
      Academy   of   Education   and   connected   matters   came   up   for<\/p>\n
      hearing before the Five Honourable Judges of Supreme Court in<\/p>\n
      T.M.A.Pai   Foundation.     The   Bench   was   of   the   prima   facie   view<\/p>\n
      that     Article   30   of   the   Constitution     did     clothe   a   minority<\/p>\n
      educational institution with the power to adopt its own method of<\/p>\n
      selection   and   since   the   decision   of   the   Court   in  St.Stephen’s<\/p>\n
      case   was   doubted,   the   matter   was   thus   referred   to   a   larger<\/p>\n
      Bench of seven Judges.  On 6.2.1997, however, the Bench seized<\/p>\n
      of the matter directed that the case to be placed before a Bench<\/p>\n
      of eleven Judges.   When the matter came up for hearing before<\/p>\n
      the 11 Judges, the following order was passed.\n<\/p>\n<\/p>\n
                                “Since a doubt has arisen during the<\/p>\n
                   course   of   our   arguments   as   to   whether   this<\/p>\n
                   Bench   would   feel   itself   bound   by   the   ratio<\/p>\n
                   propounded in Kerala Education Bill, 1957 in Re.<\/p>\n
                   (AIR 1958 SC 956) and Ahamedabad St.Xaviers<\/p>\n
                   College Society v. State of Gujarat, it is clarified<\/p>\n
                   that   this   sized   Bench   would   not   feel   itself<\/p>\n
                   inhibited by the  views expressed in those cases<\/p>\n
                   since   the   present   endeavour   is   to   discern   the<\/p>\n
W.P.(C) No.17873\/2006 etc.                 – 22 –<\/span><\/p>\n
                   true scope and interpretation of  Article 30(1) of<\/p>\n
                   the   Constitution,   which   being   the   dominant<\/p>\n
                   question,   would   require   examination   in   its<\/p>\n
                   pristine purity.  The factum is recorded”.<\/p>\n<\/blockquote>\n
      The   Bench   framed   11   questions   for   its   answer.     The   questions<\/p>\n
      that   may   be   relevant   for   determining   the   controversy   in   the<\/p>\n
      present   case   in   the   context   of   provisions   of   the   Act   of   2006<\/p>\n
      would be mentioned in the latter part of this judgment.<\/p>\n
                   9.     Culled out from the questions and answers to the<\/p>\n
      same,   it   may   be   stated   that   the   Scheme   as   framed   in<\/p>\n
      Unnikrishnan’s   case   was   abolished   and   it   was   held   that   there<\/p>\n
      could not be  nationalisation  of admission process.   The right to<\/p>\n
      provide education under Article 19(1)(g)   read with   Articles 26<\/p>\n
      and   30   was   recognised,   whilst   accepting   that   minority   rights<\/p>\n
      under   Article   30   were   specially   protected   as   distinct   and<\/p>\n
      separate.     The  distinction  between  Government,  unaided,  aided<\/p>\n
      and   minority   institutions   was   accepted.     That   maximum<\/p>\n
      autonomy   was   to   be   given   to   unaided   institutions.   The   aided<\/p>\n
      institutions   were   to   have   autonomy   and   not   to   be   treated   as<\/p>\n
      Government   departments.     The   unaided,   specially   minority<\/p>\n
W.P.(C) No.17873\/2006 etc.                  – 23 –<\/span><\/p>\n
      institutions   were   to   have   autonomy   in   matters   of   admissions,<\/p>\n
      right   to   determine   their   fee   structure   and   exemption   from   any<\/p>\n
      Government quotas, the Minorities   were to be allowed to admit<\/p>\n
      students of their choice in accordance with St.Stephen’s case i.e.<\/p>\n
      50% for management and 50% for Government.   The judgment<\/p>\n
      in   T.M.A.Pai   Foundation     was   delivered   on   31st  October,   2002.<\/p>\n
      We have  already mentioned that this  judgment was interpreted<\/p>\n
      by   the   State   Governments   and   Educational   Institutions   in   their<\/p>\n
      favour   resulting   into   further   litigation.     There   were   certain<\/p>\n
      anomalies   and   doubts   needing   clarification.     This   resulted   into<\/p>\n
      the   constitution   of   5   Judges   Bench   in   Islamic   Academy   of<\/p>\n
      Education   case.     The   gist   of   the   answers   to   the   four   questions<\/p>\n
      formulated in Islamic Academy of Education have been given in<\/p>\n
      Inamdar’s case   by the  Supreme Court.    It  may  be said that it<\/p>\n
      was   held   that   even   in   unaided   institutions   quota   would   be<\/p>\n
      permitted   and   students   would   be   selected   on   the   basis   of<\/p>\n
      Common   Entrance   Test   and   further   the   selection   committee<\/p>\n
      would   oversee   the   admission   and   fees.     This     decision   was<\/p>\n
      rendered   on   August   14,   2003.     On   6.1.2005,   the   National<\/p>\n
W.P.(C) No.17873\/2006 etc.                  – 24 –<\/span><\/p>\n
      Commission for Minority Educational Institutions Act, 2004 came<\/p>\n
      into being.  The purpose of the Act was to ensure recognition and<\/p>\n
      affiliation   of   minority   institutions   .     Inasmuch   as   the   questions<\/p>\n
      framed in Islamic Academy of Education were not summed up or<\/p>\n
      pointedly   answered,   another   Bench   of   Seven   Judges     was<\/p>\n
      constituted in Inamdar’s case  the decision whereof was rendered<\/p>\n
      by the Supreme Court on 12th August, 2005.  The Supreme Court<\/p>\n
      in Inamdar’s   case, confined its discussion on the four questions<\/p>\n
      set out in paragraph 27 of the judgment.   The answers given to<\/p>\n
      those   questions   would   be   dealt   with   in   the   later   part   of   this<\/p>\n
      judgment. On 18th  January, 2006, Article 15 of the Constitution<\/p>\n
      was amended adding Article 15(5) to the Constitution to permit<\/p>\n
      quotas   in   educational   institutions   for   socially   and   educationally<\/p>\n
      backward   classes   other   than   minority   institutions.     On   28th<\/p>\n
      March, 2006, the National Commission   for Minority Educational<\/p>\n
      Institutions (Amendment) Act 2006 came into being, the purpose<\/p>\n
      of which was to  recognise  and give effect to   rights of minority<\/p>\n
      educational institutions.\n<\/p>\n<\/p>\n
                   10.   Before   the   decisions   in   T.M.A.Pai   Foundation,<\/p>\n
W.P.(C) No.17873\/2006 etc.                – 25 –<\/span><\/p>\n
      Islamic Academy of Education and Inamdar were rendered by the<\/p>\n
      Supreme   Court,       the   State   of   Kerala   came   up   with   the<\/p>\n
      regulations   known   as   the   Kerala   Unaided   Professional   Colleges<\/p>\n
      (Admission of  Students  and Fixation of Fee)  Regulations,  2002,<\/p>\n
      wherein 50%   of   the   seats were     earmarked to   be   filled   up<\/p>\n
      by   the   Commissioner   for   Entrance   Examinations   for<\/p>\n
      Travancore\/Malabar, Ezhava, Muslim, SC\/ST candidates and vide<\/p>\n
      orders dated 19.12.2002, the State Government fixed the fee of<\/p>\n
      Rs.8,750\/-   per   student   per   year   for   the   50%   of   students<\/p>\n
      allocated by the Controller of Examinations and special fee up to<\/p>\n
      Rs.20,000\/-  was also  permitted.      This Regulation of   2002  was<\/p>\n
      challenged   by   the   petitioner’s   College   in   O.P.No.39420   of   2002<\/p>\n
      and vide judgment dated 20th  January, 2003, this Court allowed<\/p>\n
      the writ petition and held that reservation of seats to the extent<\/p>\n
      of 50% by the Government was not valid  in view of the decision<\/p>\n
      in T.M.A. Pai Foundation case, that the fee structure stipulated in<\/p>\n
      the   notification   dated   19th  December,   2002   was   held   to   be<\/p>\n
      arbitrary   and   illegal   and   contrary   to   the   rule   enunciated   in<\/p>\n
      T.M.A.Pai Foundation case. It was   further held therein that the<\/p>\n
W.P.(C) No.17873\/2006 etc.                   – 26 –<\/span><\/p>\n
      fee   of   Rs.1.5  lakhs  as   admitted   by   the   State   Government   as<\/p>\n
      expenses   per   student   in   the   medical   colleges   run   by   the   State<\/p>\n
      can be collected by the private colleges as an interim measure.<\/p>\n
      It   was   also   held   that   a   Committee   be   constituted   within   three<\/p>\n
      months under Regulation 6 and in the meantime, the institutions<\/p>\n
      would   fill   up   the   seats   in   the   ratio   of   75 : 25.     The   Communal<\/p>\n
      and Regional reservations were held to be not permissible.   The<\/p>\n
      application   for   review   carried   against   the   order   aforesaid   was<\/p>\n
      dismissed  on   17.2.2003,  by holding  that   the  students   admitted<\/p>\n
      by them were not lacking in merit after going through the entire<\/p>\n
      record   and  the   performance   in   the   qualifying   examination,   that<\/p>\n
      the fee   of Rs.1.5 lakhs was not excessive and that the demand<\/p>\n
      for 50% was not justified.   A Special Leave petition was filed by<\/p>\n
      the State Government to the judgment referred to above, where<\/p>\n
      in   no   interim   order   was   granted   by   the   Supreme   Court.     On<\/p>\n
      23.8.2003, by an interim order, this Court fixed the fee as Rs.1.5<\/p>\n
      lakhs   per   annum   provisionally,   whereas,   the   Commissioner   of<\/p>\n
      Entrance  Examination   vide  order   dated   19.9.2003   fixed   the  fee<\/p>\n
      at   Rs.11,825\/-   for   the   50%   students   nominated   by   the   State<\/p>\n
W.P.(C) No.17873\/2006 etc.                – 27 –<\/span><\/p>\n
      Government.         This   order   was   challenged   in   this   Court     in<\/p>\n
      W.P.(C) No.29855 of 2005 and this Court stayed the operation of<\/p>\n
      the order in the light of its earlier judgments.   For the academic<\/p>\n
      year 2003-04, students were admitted on the basis of individual<\/p>\n
      entrance tests owing to constraints of time, as provided in para<\/p>\n
      21 of the judgment   in Islamic Academy of Education.   In 2004,<\/p>\n
      the Committee headed by Justice K.T.Thomas was appointed as<\/p>\n
      Admission   Supervising   and   Fee   Fixation   Committee   and   on<\/p>\n
      28.5.2004,   the   Committee   for   fixation   of   fees   in   private   self<\/p>\n
      financing   colleges   set   up   in   accordance   with   the   guidelines   in<\/p>\n
      Islamic   Academy   of   Education   case     fixed   the   fee   for   MBBS<\/p>\n
      course.   By proceedings dated 3.6.2004, the Committee headed<\/p>\n
      by   Justice   K.T.Thomas   held   that     fee     of   Rs.4.35   lakhs     was<\/p>\n
      excessive   and exclusionary and therefore, not fair and directed<\/p>\n
      the   postponement   of   test   scheduled   on   13th  June,   2004.     The<\/p>\n
      examination was conducted as per schedule on 13th  June, 2004.<\/p>\n
      The order aforesaid, dated 3rd June, 2004 was challenged by the<\/p>\n
      petitioners in W.P.(C) No.16903 of 2004.  On 15.7.2004, the Act<\/p>\n
      of 2004 came into being.  This Act was challenged directly before<\/p>\n
W.P.(C) No.17873\/2006 etc.                   – 28 –<\/span><\/p>\n
      the Supreme Court and the petitions filed in that behalf are still<\/p>\n
      pending   with   interim   arrangements.     For   every   subsequent<\/p>\n
      academic year, similar interim directions have been issued.   The<\/p>\n
      interim direction dated 29.5.2006 reads as follows:<\/p>\n
                                  “Subject   to   further   orders   that   may<\/p>\n
                    be passed by this Court, we direct that for the<\/p>\n
                    Academic   Year   2006-2007,   the   fee   to   be<\/p>\n
                    charged   and   the   quota   of   seats   would   be   the<\/p>\n
                    same   as   were   in   the   previous   Academic   Year<\/p>\n
                    2005-2006”.\n<\/p><\/blockquote>\n
<\/blockquote>\n
      While   so,   the     Act   of   2006   came   into   being   on   2nd  July,   2006.<\/p>\n
      Having   seen   the   background   preceding   the   Kerala   Legislative<\/p>\n
      Enactment of 2006, time is now ripe to notice the Scheme of the<\/p>\n
      Act and provisions which are under challenge.    The Act of 2006<\/p>\n
      has   been   enacted   to   provide   for   prohibition   of   capitation   fee,<\/p>\n
      regulating   the   admission,   fixation   of   non-exploitative   fee,<\/p>\n
      allotment of seats to SC\/ST and other socially and economically<\/p>\n
      backward   classes   and   other   measures   to   ensure   equity   and<\/p>\n
      excellence   in professional education and for matters connected<\/p>\n
      therein, as per the headnote of the Preamble.  The long Preamble<\/p>\n
W.P.(C) No.17873\/2006 etc.                – 29 –<\/span><\/p>\n
      of the Act reads as follows:\n<\/p>\n<\/p>\n
                                “WHEREAS,   the   Hon’ble   Supreme<\/p>\n
                 Court has held that  where there  is more than<\/p>\n
                 one   minority   or   non-minority   institution   or<\/p>\n
                 similarly   situated   institution   in   the   State<\/p>\n
                 imparting education in any one discipline, then<\/p>\n
                 a   single   common   entrance   test   followed   by<\/p>\n
                 centralized  counselling  or   in   other   words,<\/p>\n
                 single   window   system   of   admission   is<\/p>\n
                 necessary   in   order   to   achieve   the   twin<\/p>\n
                 objectives   of   transparency   and   merit   and<\/p>\n
                 further   has   held   that   the   State   can   take   over<\/p>\n
                 the   admission   procedure   to   ensure   that   it   is<\/p>\n
                 fair, transparent and non-exploitative.<\/p>\n<\/blockquote>\n
                                AND WHEREAS, it is considered that<\/p>\n
                 in   the   light   of   past   experiences   of<\/p>\n
                 maladministration of the entrance test held by<\/p>\n
                 the         Consortium\/Association            of         Private<\/p>\n
                 Professional   Colleges   in   the   State,   all<\/p>\n
                 institutions   of   the   same   or   similar   type,<\/p>\n
                 whether   minority   or   non-minority   shall   be<\/p>\n
                 required to fill their seats on the basis of merit<\/p>\n
                 determined through a single common entrance<\/p>\n
                 test followed by centralized counselling by the<\/p>\n
W.P.(C) No.17873\/2006 etc.              – 30 –<\/span><\/p>\n
               State         Commissioner              for         Entrance<\/p>\n
               Examinations;\n<\/p><\/blockquote>\n
                             AND   WHEREAS,   in   the   Constitution<\/p>\n
               (Ninety-third   Amendment)   Act,   2005,   a<\/p>\n
               provision   has   been   made   under   clause   (5)   of<\/p>\n
               Article 15 as follows:\n<\/p><\/blockquote>\n
                               ‘(5)   Nothing   contained   in   this<\/p>\n
                 article or in sub-clause (g) of clause (1) of<\/p>\n
                 Article   19   shall   prevent   the   State   from<\/p>\n
                 making  any special  provision, by  law, for<\/p>\n
                 the   advancement   of   any   socially   and<\/p>\n
                 educationally backward classes of citizens<\/p>\n
                 or   for   the   Scheduled   Castes   or   the<\/p>\n
                 Scheduled Tribes in so far as such special<\/p>\n
                 provisions   relate   to   their   admission   to<\/p>\n
                 educational   institutions   including   private<\/p>\n
                 educational   institutions   whether   aided   or<\/p>\n
                 unaided   by   the   State,   other   than   the<\/p>\n
                 minority   educational   institutions   referred<\/p>\n
                 to in clause (1) of Article 30’.\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
                             AND WHEREAS, the Supreme Court<\/p>\n
               has   further   held   that   linguistic   and   religious<\/p>\n
               minorities   are   covered   by   the   expression<\/p>\n
               “minority” under Article 30 of the Constitution;<\/p>\n<\/blockquote>\n
                             AND   WHEREAS,   the   reorganization<\/p>\n
               of   the   States   in   India   has   been   made   on<\/p>\n
               linguistic   lines   for   the   purpose   of   determining<\/p>\n
               the   minority,   the   unit   shall   be   the   State   and<\/p>\n
               not the whole of India and therefore, religious<\/p>\n
W.P.(C) No.17873\/2006 etc.             – 31 –<\/span><\/p>\n
               and linguistic minorities, who have been put at<\/p>\n
               par in Article 30, have to be considered State-<\/p>\n
               wise;\n<\/p><\/blockquote>\n
                            AND  WHEREAS,  it   has   been  further<\/p>\n
               held by the Supreme Court that Article 30(1) is<\/p>\n
               a   sort   of   guarantee   or   assurance   to   the<\/p>\n
               linguistic   and   religious   minority   institutions   of<\/p>\n
               their   right   to   establish   and   administer<\/p>\n
               educational   institutions   of   their   choice   and<\/p>\n
               secularism and equality being two of the basic<\/p>\n
               features   of   the   Constitution,   Article   30(1)<\/p>\n
               ensures   protection   to   the   linguistic   and<\/p>\n
               religious   minorities,   thereby   preserving   the<\/p>\n
               secularism of the country;\n<\/p><\/blockquote>\n
                            AND  WHEREAS,  it   has   been  further<\/p>\n
               held   that   the   principles   of   equality   must<\/p>\n
               necessarily   apply   to   the   enjoyment   of   such<\/p>\n
               rights   and   no   law   can   be   framed   that   will<\/p>\n
               discriminate   against   such   minorities   with<\/p>\n
               regard to the establishment and administration<\/p>\n
               of   educational   institutions   vis-a-vis   other<\/p>\n
               educational institutions and any law or rule or<\/p>\n
               regulation   that   would   put     the   educational<\/p>\n
               institutions   run   by   the   minorities   at   a<\/p>\n
               disadvantage   when   compared   to   the<\/p>\n
W.P.(C) No.17873\/2006 etc.             – 32 –<\/span><\/p>\n
               institutions   run   by   others,   will   have   to   be<\/p>\n
               struck down and at the same time, there also<\/p>\n
               cannot be any reverse discrimination;<\/p>\n<\/blockquote>\n
                            AND   WHEREAS,   the   essence   of<\/p>\n
               Article   30(1)   is   to   ensure   equal   treatment<\/p>\n
               between   the   majority   and   the   minority<\/p>\n
               institutions   and   no   one   type   of   category   of<\/p>\n
               institution   should   be   disfavoured   or,   for   that<\/p>\n
               matter,   receive   more   favourable   treatment<\/p>\n
               than another, since laws of the land, including<\/p>\n
               rules   and   regulations,   must   apply   equally   to<\/p>\n
               the     majority   institutions   as   well   as   to   the<\/p>\n
               minority institutions;\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
                            AND WHEREAS, keeping in mind the<\/p>\n
               above   formulation   of   the   Supreme   Court   on<\/p>\n
               minority   rights   and   also   the   unique   socio-<\/p>\n
               economic   and  demographic   complexion   of   the<\/p>\n
               State   in   the   context   of   the   need   and<\/p>\n
               commitment   to   protect   and   strengthen   the<\/p>\n
               secular   ethoes   and   the   long   tradition   of<\/p>\n
               equitable   sharing   of   the   opportunities   for<\/p>\n
               education   among   different   communities<\/p>\n
               prevailing   in   the   State,   it   is   necessary   to<\/p>\n
               ensure   that   the   benefits   that   accrue   from<\/p>\n
W.P.(C) No.17873\/2006 etc.                 – 33 –<\/span><\/p>\n
                  minority   rights   be   equitably   shared   among<\/p>\n
                  different   sections,   including   weaker   sections,<\/p>\n
                  within   the   minority   community   to   which   the<\/p>\n
                  particular college or institution belongs;<\/p>\n<\/blockquote>\n
                                AND   WHEREAS,   it   is   necessary   to<\/p>\n
                  provide   freeship   and   scholarship   to   a   large<\/p>\n
                  number   of   economically   weaker   students   to<\/p>\n
                  protect   and   strengthen   the   State’s   long<\/p>\n
                  tradition   of   providing   equitable   opportunities<\/p>\n
                  for   education   at   all   levels   of   learning,   and   to<\/p>\n
                  promote   social   justice   in   accordance   with   the<\/p>\n
                  directive   principles   of   the   Constitution,   it   is<\/p>\n
                  necessary   to   apply   the   principle   of   using   the<\/p>\n
                  excess   funds   generated   from   Non-Resident<\/p>\n
                  Indian   seats   for   benefiting   students   such   as<\/p>\n
                  students from economically weaker sections of<\/p>\n
                  society   as   enumerated   by  the   Supreme   Court<\/p>\n
                  as one of the considerations for the fixation of<\/p>\n
                  fee   by   the   competent   authority   appointed   for<\/p>\n
                  the purpose and to set up a Higher Education<\/p>\n
                  Scholarship   Fund   for   providing   scholarship   to<\/p>\n
                  the   socially   and   economically   weaker<\/p>\n
                  students”.\n<\/p><\/blockquote>\n
<\/blockquote>\n
      The   Admission   Supervisory   Committee   as   per   Section   2(a)   is<\/p>\n
      defined to mean ‘the Committee constituted under Section 4 for<\/p>\n
W.P.(C) No.17873\/2006 etc.                – 34 –<\/span><\/p>\n
      regulating   admission   in   the   unaided   professional   colleges   or<\/p>\n
      institutions.     Aided   college,   Capitation   fee,   common   entrance<\/p>\n
      test,   minority,   minority   professional   college   or   institution,<\/p>\n
      minority   seats,   privilege   seats,   single   window   system,   specified<\/p>\n
      seats   and   unaided   professional   college   or   institution     as   per<\/p>\n
      Sections 2 (b),(c), (d) (l), (m), (n),(q), (r), (t), (u) and (w) have<\/p>\n
      been defined as follows:\n<\/p>\n<\/p>\n
                         “(b)        Aided   College              means   a<\/p>\n
                  professional   college   or   an   institution<\/p>\n
                  receiving   financial   aid   or   grant   in   aid   from<\/p>\n
                  any   State   or   Central   Government   and<\/p>\n
                  includes         minority         and         non-minority<\/p>\n
                  professional   college   or   institution,   as<\/p>\n
                  specified by the Government.\n<\/p>\n<\/p>\n
                         (c) Capitation Fee means any amount<\/p>\n
                  by whatever name called whether in cash or<\/p>\n
                  in kind paid or collected or received directly<\/p>\n
                  or   indirectly   in   addition   to   the   fees<\/p>\n
                  determined under this Act.<\/p>\n<\/p>\n
                         (d)  Common   Entrance   Test  means<\/p>\n
W.P.(C) No.17873\/2006 etc.                  – 35 –<\/span><\/p>\n
               the         entrance         test           conducted         for<\/p>\n
               determination   of   merit   of   the   candidates<\/p>\n
               followed   by  centralised  counselling   for   the<\/p>\n
               purpose   of   merit   based   admission   to<\/p>\n
               professional   colleges   or   institutions   through<\/p>\n
               a   single   window   procedure   by   the   State<\/p>\n
               Commissioner for Entrance Examinations.\n<\/p>\n<\/p>\n
                      (l) Minority for the purpose of this Act<\/p>\n
               means a community belonging to a religious<\/p>\n
               or linguistic  minority as  may  be  determined<\/p>\n
               by Government taking the State as a unit.\n<\/p>\n<\/p>\n
                      (m) Minority Professional College or<\/p>\n
               Institution  means a professional college or<\/p>\n
               institution   established   and   maintained   by   a<\/p>\n
               minority   that   fulfills   the   non-discriminatory<\/p>\n
               criteria   as   laid   down   in   this   Act   and<\/p>\n
               determined as such by the Government.\n<\/p>\n<\/p>\n
                      (n)     Minority   Seats               means   seats<\/p>\n
               reserved   for   students   who   belong   to   the<\/p>\n
               community   that   runs   the   minority   unaided<\/p>\n
               professional   college   or   institution   and   filled<\/p>\n
               up   on   the   basis   of   inter   se   merit   in   the<\/p>\n
W.P.(C) No.17873\/2006 etc.               – 36 –<\/span><\/p>\n
               manner as may be prescribed from the rank<\/p>\n
               list   prepared   by   the   Commissioner   for<\/p>\n
               Entrance Examinations;\n<\/p>\n
                     (q)  Privilege   seats  means   seat   filled<\/p>\n
               up   through   the   single   window   system   from<\/p>\n
               the   common   merit   prepared   by   the<\/p>\n
               Commissioner   for   Entrance   Examinations<\/p>\n
               through  the   Common  Entrance   Test,   on   the<\/p>\n
               basis of inter se merit from the applications<\/p>\n
               submitted   by   the   management   of   each<\/p>\n
               unaided professional college or institution, as<\/p>\n
               may be prescribed;\n<\/p>\n<\/p>\n
                     (r)       Professional              college         or<\/p>\n
               institution  means   a   college   of   institution<\/p>\n
               aided   or   unaided,   imparting   professional<\/p>\n
               courses   in   any   of   the   following   disciplines,<\/p>\n
               namely:\n<\/p>\n
                (a)  Engineering and Technology;\n<\/p>\n
               (b) Medicine,        Dentistry,             Pharmacy,\n\n                     Ayurveda,                           Homoeopathy,\n\n                     Siddha,        and Nursing.\n\n               (c) Teacher   education   or     any     other\n\n                     discipline  as   may   be   declared   by   the\n\n                     Government            by  notification in   the\n\n                     Gazette;\n\n\n\n\n                     (t) Single Window System means the\n\n\nW.P.(C) No.17873\/2006 etc.                    - 37 -<\/span>\n\n\n\n\n                centralized             system               for         admission\n\n<\/pre>\n
                administered by the State Commissioner for<\/p>\n
                Entrance   Examinations   to   professional<\/p>\n
                courses in both aided and unaided, minority<\/p>\n
                and non-minority colleges or institutions.\n<\/p>\n
                       (u)  Specified   seats  means   seats<\/p>\n
                earmarked   under   sub-section   (1)   of   section<\/p>\n
                10.<\/span><\/p>\n
                       (w)    Unaided   Professional   College<\/p>\n
                or Institution means professional college or<\/p>\n
                institution   which  is   not  receiving  any  aid   or<\/p>\n
                grant   in   aid   from   any   State   or   Central<\/p>\n
                Government and includes minority and non-\n<\/p>\n
                minority           professional                   colleges         or\n\n                institutions.\"\n\n\n<\/pre>\n
      The manner of admission of students to professional college has<\/p>\n
      been prescribed in Section 3 which reads as follows:<\/p>\n
                       “3.   Method   of   admission   in   Professional<\/p>\n
                Colleges          or         Institutions.–Notwithstanding<\/p>\n
                anything   contained   in   any   other   law   for   the<\/p>\n
                time being in force or in any judgment, decree<\/p>\n
                or   order   of   any   Court   or   any   other   authority,<\/p>\n
                admission   of   students   in   all   professional<\/p>\n
                colleges   or   institutions   to   all   seats   except<\/p>\n
W.P.(C) No.17873\/2006 etc.                         – 38 –<\/span><\/p>\n
                            Non-resident   Indian   seats   shall   be   made<\/p>\n
                            through   Common   Entrance   Test   conducted   by<\/p>\n
                            the   St   ate   followed   by   centralised   counselling<\/p>\n
                            through a single window system in the order of<\/p>\n
                            merit   by   the   State   Commissioner   for   Entrance<\/p>\n
                            Examinations   in   accordance   with   such<\/p>\n
                            procedure   as   may   be   specified   by   the<\/p>\n
                            Government from time to time.”\n<\/p><\/blockquote>\n
<\/blockquote>\n
      The   constitution   of   Admission   Supervisory   Committee   and   the<\/p>\n
      procedure to be adopted by it has been prescribed u\/s.4 of the<\/p>\n
      Act which in so far it may be relevant reads as follows:<\/p>\n
                                  “4.   Admission   Supervisory   Committee.–<\/p>\n
              (1)   The   Government   shall   constitute   an   Admission<\/p>\n
              Supervisory Committee  to supervise  and  guide  the<\/p>\n
              process   of   admission   of   students   to   unaided<\/p>\n
              professional colleges or institutions consisting of the<\/p>\n
              following members, namely:<\/p><\/blockquote>\n
\n\n              (i) A retired Judge of the Supreme Court\n\n                    or High Court                                     -  Chairperson\n\n\n                (ii) xxx\n\n               (iii) xxx\n\n              (iv)xxx\n\n              (v) xxx\n\n              (vi)xxx\n\n\n\n\n                            (2)   The   Admission   Supervisory   Committee\n\n\nW.P.(C) No.17873\/2006 etc.               - 39 -<\/span>\n\n\n\n\n<\/pre>\n
          may adopt its own procedure for the conduct of its<\/p>\n
          business.\n<\/p><\/blockquote>\n
                (3)     xxx\n\n                (4)     xxx\n\n                (5)     xxx\n\n                (6)   The   Admission   Supervisory   Committee\n\n<\/pre>\n
          shall   supervise   and   guide   the   entire   process   of<\/p>\n
          admission of students to the unaided professional<\/p>\n
          colleges or institutions with a view to ensure that<\/p>\n
          the   process   is   fair,   transparent,   merit-based   and<\/p>\n
          non-exploitative under the provisions of this Act.<\/p>\n<\/blockquote>\n
                (7)   The   Admission   Supervisory   Committee<\/p>\n
          may   hear   complaints   with   regard  to   admission  in<\/p>\n
          contravention   of   the   provisions   contained   herein.<\/p>\n
          If   the   Admission   Supervisory   Committee   after<\/p>\n
          enquiry  finds that there has been any violation of<\/p>\n
          the   provisions   for   admission   on   the   part   of   the<\/p>\n
          unaided   professional   colleges   or   institutions,   it<\/p>\n
          shall   make   appropriate   recommendation   to   the<\/p>\n
          Government for imposing a fine up to rupees ten<\/p>\n
          lakhs and the Government may on receipt of such<\/p>\n
          recommendation, fix the fine and collect the same<\/p>\n
          in   the   case   of   each   such   violation   or   any   other<\/p>\n
          course of action as it deems fit and the amount so<\/p>\n
          fixed   together   with   interest   thereon   shall   be<\/p>\n
W.P.(C) No.17873\/2006 etc.                – 40 –<\/span><\/p>\n
            recovered as if it were an arrear of public revenue<\/p>\n
            due   on   land.   The   Admission   Supervisory<\/p>\n
            Committee   may   also   declare   admission   made   in<\/p>\n
            respect of any or all seats in a particular college or<\/p>\n
            institution   to   be   de   hors   merit   and   therefore<\/p>\n
            invalid   and   communicate   the   same   to   the<\/p>\n
            concerned   University.     On   the   receipt   of   such<\/p>\n
            communication,   the   University   shall   debar   such<\/p>\n
            candidates   from   appearing   for   any   further<\/p>\n
            examination   and   cancel   the   results   of<\/p>\n
            examinations already appeared for.<\/p>\n<\/blockquote>\n
                  (8)     The   Admission   Supervisory   Committee<\/p>\n
            may   if   satisfied   that   any   unaided   professional<\/p>\n
            college   or   institution   has   violated   any   of   the<\/p>\n
            provisions of the Act, recommend to the University<\/p>\n
            or   statutory  body  for   withdrawal   of   the   affiliation<\/p>\n
            or recognition of such college or institution or any<\/p>\n
            other course of action it deems fit”.<\/p>\n<\/blockquote>\n
      Prohibition   of   collecting   capitation   fee   and     consequences   of<\/p>\n
      collecting   it   has   been   provided   in   Section   5   of   the   Act.<\/p>\n
      The   factors   that   may   determine   fee   have   been   mentioned   in<\/p>\n
      Section 7.  The determining factors for according recognition and<\/p>\n
      conferring   status   as   unaided   minority   institution   have   been<\/p>\n
W.P.(C) No.17873\/2006 etc.                 – 41 –<\/span><\/p>\n
      detailed in Section 8 which reads as follows:\n<\/p>\n<\/p>\n
                        “8.   Determining   factors   for   according<\/p>\n
                 recognition   and   conferring   status   as   unaided<\/p>\n
                 minority   professional   college   or   institution.-<\/p>\n
                 A   minority   unaided   professional   college   or<\/p>\n
                 institution established and maintained by any<\/p>\n
                 linguistic   or   religious   minority   shall   be<\/p>\n
                 accorded   recognition   and   conferred   status   of<\/p>\n
                 an   unaided   minority   professional   college   or<\/p>\n
                 institution   only   if   it   satisfies   all   the  following<\/p>\n
                 conditions   of   demographic   equivalence<\/p>\n
                 between the minority community to which the<\/p>\n
                 college   belongs   and   the   non-minority<\/p>\n
                 community of the State taken as a single unit<\/p>\n
                 namely:\n<\/p><\/blockquote>\n
                               (a)     the   population   of   the<\/p>\n
                 linguistic   or   religious   minority   community   in<\/p>\n
                 the State which runs the professional college<\/p>\n
                 or institution shall be lesser than fifty percent<\/p>\n
                 of the total population of the State.<\/p>\n<\/blockquote>\n
                               (b)     the   number   of   professional<\/p>\n
                 colleges or institutions run by the linguistic or<\/p>\n
                 religious   minority   community   in   the   State   to<\/p>\n
                 which the college or institution belong shall be<\/p>\n
                 proportionately   lesser   than   the   number   of<\/p>\n
                 professional colleges or institutions run by the<\/p>\n
                 non-minority community in the State.<\/p>\n<\/blockquote>\n
                               (c)     the   number   of   students<\/p>\n
                 belonging   to   the   linguistic   or   religious<\/p>\n
                 minority   community   to   which   the   college   or<\/p>\n
                 institution   belongs   undergoing   professional<\/p>\n
                 education   in   all   professional   colleges   or<\/p>\n
                 institutions   in   the   State   shall   be<\/p>\n
                 proportionately   lesser   than   the   number   of<\/p>\n
                 students   belonging   to   the   non-minority<\/p>\n
                 community in the State.\n<\/p><\/blockquote>\n
\nW.P.(C) No.17873\/2006 etc.              – 42 –<\/span><\/p>\n<\/blockquote>\n
      As per Section 9, the fee cannot be collected excessively. Section<\/p>\n
      9 of the Act of 2006 that deals with fees and mandates that the<\/p>\n
      same shall not be collected excessively reads as follows:<\/p>\n
                             “9.   Fees   not   to   be   collected<\/p>\n
                excessively.-   (1)   No   unaided   professional<\/p>\n
                college or institution   shall collect any fee by<\/p>\n
                whatever name called from the candidate for<\/p>\n
                admission over and above the fee determined<\/p>\n
                by the Fee Regulatory Committee and the fee<\/p>\n
                prescribed by the University concerned;<\/p>\n<\/blockquote>\n
                             Provided   that   the   Fee   Regulatory<\/p>\n
                Committee shall   fix   the fee   for  Non-Resident<\/p>\n
                Indian seats and the amount so collected over<\/p>\n
                and above the fee fixed for other students in<\/p>\n
                the college or institution in such seats shall be<\/p>\n
                utilised  for   providing   freeship   to   socially   and<\/p>\n
                economically backward students.<\/p>\n<\/blockquote>\n
                             (2)        All   unaided   professional<\/p>\n
                colleges   or   institutions   shall   provide   freeship<\/p>\n
                to   the   extent   prescribed   for   a   minimum   of<\/p>\n
                fifty percent of the students admitted.<\/p>\n<\/blockquote>\n
                             (3)     Any   officer   of   the   State   or<\/p>\n
                Central   Government   or   any   other   public<\/p>\n
                officer   or   authority   who   issues   an   income<\/p>\n
                certificate   which   conceals   the   actual   income<\/p>\n
                of   the   person   to   whom   certificate   is   issued<\/p>\n
                and   any   recipient   of   such   certificate   who   by<\/p>\n
                making   use   of   the   certificate   claims   any<\/p>\n
                benefit with regard to freeship or scholarship<\/p>\n
                shall be liable for penalty under section 15 of<\/p>\n
                the Act.\n<\/p><\/blockquote>\n
                             (4)        Notwithstanding   anything<\/p>\n
                contained in any other provisions of this Act,<\/p>\n
W.P.(C) No.17873\/2006 etc.                    – 43 –<\/span><\/p>\n
                     the fixation and levy of fees at the rates fixed<\/p>\n
                     by the Committee constituted before the date<\/p>\n
                     of   coming   into   force   of   this   Act   shall   be<\/p>\n
                     deemed to be validly fixed and collected.”.<\/p>\n<\/blockquote>\n
      Section 10 of the Act, which deals with allotment of seats  reads<\/p>\n
      as follows:\n<\/p>\n<\/p>\n
                           “10.Allotment   of   seats.-(1)   In   every<\/p>\n
                     professional college or institution other than a<\/p>\n
                     minority college –\n<\/p><\/blockquote>\n
                           (a)   ten   per   cent   of   the   total   number   of<\/p>\n
                     sanctioned   seats   shall   be   earmarked   for   the<\/p>\n
                     Scheduled Castes and Scheduled Tribes.<\/p>\n<\/blockquote>\n
                           (b)     twenty-five   per   cent   of   the   total<\/p>\n
                     number   of   sanctioned   seats   to   the   Other<\/p>\n
                     Socially and Educationally Backward Classes;<\/p>\n<\/blockquote>\n
                           (c)   three percent of the total number of<\/p>\n
                     sanctioned   seats   shall   be   earmarked   for<\/p>\n
                     physically challenged persons; and<\/p>\n<\/blockquote>\n
                           (d)   twelve per cent of the total number<\/p>\n
                     of sanctioned seats shall be earmarked for the<\/p>\n
                     other   sections   of   society   not   covered   under<\/p>\n
                     items   (a),   (b)   and   (c)   of   this   sub-section   on<\/p>\n
                     merit-cum-means basis.\n<\/p><\/blockquote>\n
                           Provided  that   in  an  unaided  professional<\/p>\n
                     college or institution, the provisions in item (c)<\/p>\n
W.P.(C) No.17873\/2006 etc.             – 44 –<\/span><\/p>\n
               and   (d)   shall   apply   in   accordance   with   the<\/p>\n
               consensus based on mutual agreement arrived<\/p>\n
               at between the unaided professional college or<\/p>\n
               institution   and   the   Government   and   following<\/p>\n
               such principles and in such manner as may be<\/p>\n
               prescribed.\n<\/p><\/blockquote>\n
               Provided   further   that   the   admissions<\/p>\n
               contemplated  in  items  (b),  (c)  and  (d)  above<\/p>\n
               shall   be   in   compliance   with   the   rules   as   may<\/p>\n
               be prescribed.\n<\/p><\/blockquote>\n
                            (2)     In   an   unaided   professional<\/p>\n
               college   or   institution   belonging   to   both<\/p>\n
               minority   and   non-minority,  up   to  fifteen<\/p>\n
               percent   of   the   total   number   of   sanctioned<\/p>\n
               seats   may   be   filled   by   candidates   under   the<\/p>\n
               category  of  Non-resident Indian  seats.   Seats<\/p>\n
               not   filled   up   under   Non-resident   Indian   seats<\/p>\n
               shall be filled up from general merit seats.<\/p>\n<\/blockquote>\n
                            (3)   In   an   unaided   professional<\/p>\n
               college   or   institution   belonging   to   both<\/p>\n
               minority   and   non-minority   community,  up   to<\/p>\n
               fifteen   per   cent   of   the   total   number   of<\/p>\n
               sanctioned   seats   may   be   filled   by   candidates<\/p>\n
               under   the   category   of   privilege   seats   in   the<\/p>\n
               manner as may be prescribed.  Seats not filled<\/p>\n
W.P.(C) No.17873\/2006 etc.               – 45 –<\/span><\/p>\n
               up under privilege seats shall be filled up from<\/p>\n
               general merit seats.\n<\/p><\/blockquote>\n
                             (4)    In   an   unaided   non-minority<\/p>\n
               professional college or institution eighteen per<\/p>\n
               cent   of   the   total   number   of   sanctioned   seats<\/p>\n
               shall be filled up from general merit seats.<\/p>\n<\/blockquote>\n
                             (5)   In   an   unaided   non-minority<\/p>\n
               professional college or institution two per cent<\/p>\n
               of   the   total   number   of   sanctioned   seats   shall<\/p>\n
               be   filled   up   by   students   who   have   made<\/p>\n
               outstanding contribution in the field of culture<\/p>\n
               or   sports,   on   the   basis   of   criteria   as   may   be<\/p>\n
               prescribed.     Seats   not   filled   up   shall   be   filled<\/p>\n
               up from general merit seats.\n<\/p><\/blockquote>\n
                             (6)    When   students   of   specified<\/p>\n
               categories surrender the seats after selection,<\/p>\n
               the   same   shall   be   filled   by   the   candidates<\/p>\n
               belonging to the same category from the merit<\/p>\n
               list of the Common Entrance Test.<\/p>\n<\/blockquote>\n
                             (7)   Where   the   seats   specified   for<\/p>\n
               the Scheduled Castes or Scheduled Tribes and<\/p>\n
               other   Socially   and   Educationally   Backward<\/p>\n
               Classes are left unfilled due to non-availability<\/p>\n
               of   candidates   from   the   same   category,   the<\/p>\n
               seats shall be filled up by rotation from other<\/p>\n
W.P.(C) No.17873\/2006 etc.                 – 46 –<\/span><\/p>\n
               categories within the specified seats as may be<\/p>\n
               prescribed.            Provided   that   any   spillover<\/p>\n
               thereafter   arising   shall   be   filled   up   from   the<\/p>\n
               general merit seats.\n<\/p><\/blockquote>\n
                             (8) A minority unaided professional<\/p>\n
               college or institution shall admit not less than<\/p>\n
               fifty   per  cent   of   the   students   from   within  the<\/p>\n
               State   from   the   minority   community   to   which<\/p>\n
               the   college   or   institution   belongs.     Fifty   per<\/p>\n
               cent   of   such   seats   may   be   filled   up   from<\/p>\n
               among the socially and economically backward<\/p>\n
               sections   from   within   the   minority   community<\/p>\n
               on merit-cum-means basis with the consent of<\/p>\n
               the   minority   educational   college   or   institution<\/p>\n
               as prescribed and the rest in the order of merit<\/p>\n
               in accordance with inter se merit, both from he<\/p>\n
               rank   list   prepared   by   the   Commissioner   for<\/p>\n
               Entrance Examinations, based on the common<\/p>\n
               application   prescribed   in   the   appropriate<\/p>\n
               prospectus           published             by         the         State<\/p>\n
               Government.\n<\/p><\/blockquote>\n
                             (9)      A          minority                   unaided<\/p>\n
               professional   college   or   institution   may<\/p>\n
               surrender up to eighteen per cent of the seats<\/p>\n
               to   be   filled   up   by   the   Commissioner   for<\/p>\n
W.P.(C) No.17873\/2006 etc.                   – 47 –<\/span><\/p>\n
                   Entrance   Examinations   from   the   specified<\/p>\n
                   seats   and   general   merit   seats   in   equal<\/p>\n
                   proportion.   The   first   portion   shall   be   filled   up<\/p>\n
                   on   the   basis   of   merit-cum-means   basis   as<\/p>\n
                   prescribed.   The second portion shall be filled<\/p>\n
                   up on from the general merit seats.  Any seats<\/p>\n
                   not   surrendered   shall   also   be   treated   as<\/p>\n
                   minority seats and filled up as such.<\/p>\n<\/blockquote>\n
                                 (10) A            minority             unaided<\/p>\n
                   professional   college   or   institution   may<\/p>\n
                   surrender   up   to   two   per   cent   of   the   total<\/p>\n
                   number of sanctioned seats to be filled up by<\/p>\n
                   students   who   have   made   outstanding<\/p>\n
                   contribution in the field of culture or sports, on<\/p>\n
                   the   basis   of   criteria   as   may   be   prescribed.<\/p>\n
                   Seats   not   so   filled   up   shall   be   filled   up   from<\/p>\n
                   general merit seats”.\n<\/p><\/blockquote>\n
<\/blockquote>\n
      Section   12   deals   with   higher   Educational   Scholarships   Fund.<\/p>\n
      Section   13   deals   with   protection   of   action   taken   in   good   faith,<\/p>\n
      whereas Section 14 deals with the power of the Government to<\/p>\n
      issue   directions.   Section   15   deals   with   penalties.     Section   16<\/p>\n
      deals   with   cognizance   of  offence.    Section   17   deals   with   the<\/p>\n
      power   to   remove   difficulties.     Section   18     relates   to   special<\/p>\n
W.P.(C) No.17873\/2006 etc.                   – 48 –<\/span><\/p>\n
      provisions   for   admissions   and   fixation   of   fee   for   the     Academic<\/p>\n
      Year 2006-07.  Section 19 deals with power to make rules and as<\/p>\n
      per Section 20, the  Act of 2004 has been repealed.    Exercising<\/p>\n
      the   powers   under   Section   19   of   the   Act,   the   Government   has<\/p>\n
      framed the Rules viz. Kerala Professional Colleges or Institutions<\/p>\n
      (Prohibition of Capitation Fee, Regulation of Admission, Fixation<\/p>\n
      of Non-Exploitative Fee and other Measures to Ensure Equity and<\/p>\n
      Excellence   in   Professional   Education)   Rules,   2006   (hereinafter<\/p>\n
      referred  to  as  ‘Rules  of  2006’).    Rule 10 of  the aforesaid  Rules<\/p>\n
      reads as follows:\n<\/p>\n<\/p>\n
                            “10.   Allotment   of   seats:-   (1)   Allotment<\/p>\n
                   of   seats   in   unaided   professional   college   or<\/p>\n
                   institution shall be done college or institution<\/p>\n
                   wise.\n<\/p><\/blockquote>\n
\n                    (2)In every Professional College or Institution<\/p>\n
                            other   than   a   minority   college   or<\/p>\n
                            institution –\n<\/p><\/blockquote>\n
                       (a) The distribution of seats for Scheduled<\/p>\n
                               Caste   and   Scheduled   Tribe   students<\/p>\n
                               shall       be   as   specified   in   the<\/p>\n
                               prospectus.\n<\/p><\/blockquote>\n
                       (b)    Identification   of   candidates   belonging<\/p>\n
                               to item (b) and (c) under sub-section<\/p>\n
                               (1) of section 10 shall be made in the<\/p>\n
                               same manner as is being followed in<\/p>\n
                               Government College and allotment of<\/p>\n
                               seats   will   be   made   in   each   category<\/p>\n
W.P.(C) No.17873\/2006 etc.               – 49 –<\/span><\/p>\n
                          on  the   basis   of   inter   se  merit   taking<\/p>\n
                          into   account   the   option   exercised   by<\/p>\n
                          the   students.     The   identification   of<\/p>\n
                          candidates   under   item   (c)   shall   be<\/p>\n
                          subject to the conditions contained in<\/p>\n
                          the prospectus.\n<\/p><\/blockquote>\n
                  (c)     Allotment   of   seats   to   candidates<\/p>\n
                          under   item   (d)   of   sub-section   1   of<\/p>\n
                          Section 10 shall be on inter se merit<\/p>\n
                          and subject to the limitation that the<\/p>\n
                          annual income of the family does not<\/p>\n
                          exceed   two   lakhs   fifty   thousand<\/p>\n
                          rupees.\n<\/p><\/blockquote>\n
\n                (2)Every   professional   college   or   institution<\/p>\n
                     shall intimate their consent in writing or<\/p>\n
                     otherwise,   for   admission   of   candidates<\/p>\n
                     under   item   (c)   and   (d)   of   sub-section<\/p>\n
                     (1)   of   section   10,   within   the   time   limit<\/p>\n
                     specified   for   the   same,   by   the<\/p>\n
                     Government.\n<\/p><\/blockquote>\n
\n               (3) In case the management does not convey<\/p>\n
                         their   consent   in   writing   or   otherwise,<\/p>\n
                         within  the   time  limit   specified,  it   shall<\/p>\n
                         be deemed that consent has been duly<\/p>\n
                         given   for   treating   such   seats   as   seats<\/p>\n
                         under (c) and (d) above, and filled up<\/p>\n
                         accordingly.\n<\/p><\/blockquote>\n
\n                (4) The qualification for Non-Resident Indian<\/p>\n
                         students   will   be   same   as   specified   in<\/p>\n
                         the prospectus.\n<\/p><\/blockquote>\n
\n                (5)   The   management   of   each   professional<\/p>\n
                         college   or   institution   shall   submit   to<\/p>\n
                         the   Commissioner   for   Entrance<\/p>\n
                         Examinations   the   list   of   candidates   to<\/p>\n
W.P.(C) No.17873\/2006 etc.                        – 50 –<\/span><\/p>\n
                       be   considered   for   admission   under<\/p>\n
                       privilege   seats   at   least   three   days<\/p>\n
                       before   the   date   notified   for   the<\/p>\n
                       commencement of first year classes.<\/p><\/blockquote>\n
\n
                (6)   The   unaided   professional   colleges   or<\/p>\n
                       institutions   under   the   Institute   of<\/p>\n
                       Human                 Resources                  Development,<\/p>\n
                       unaided   Colleges   under   the   Lal<\/p>\n
                       Bahadur Sasthri Centre for Science and<\/p>\n
                       Technology,   unaided   Colleges   under<\/p>\n
                       Mahatma   Gandhi   University,   unaided<\/p>\n
                       Colleges   under   University   of   Kerala,<\/p>\n
                       unaided   Colleges   under   University   of<\/p>\n
                       Calicut,                unaided   Colleges   under<\/p>\n
                       Center   for   Continuing   Education   shall<\/p>\n
                       surrender   the   privilege   seats   and<\/p>\n
                       admission   to   such   surrendered   seats<\/p>\n
                       shall   be   made   from   general   merit<\/p>\n
                       seats.\n<\/p><\/blockquote>\n
\n               (7)   Ten   percent   of   the   seats   under   privilege<\/p>\n
                      seats   in   the   unaided   College   under<\/p>\n
                      KSRTC                        may            be         filled         by<\/p>\n
                      children\/dependents   of   employees   in<\/p>\n
                      the KSRTC on the basis of inter se merit<\/p>\n
                      from   the   list   prepared   by   the<\/p>\n
                      Commissioner                               for           Entrance<\/p>\n
                      Examinations.     A   minimum   of   five   per<\/p>\n
                      cent   seats   under   the   same   category<\/p>\n
                      shall   be   surrendered   to   be   filled   from<\/p>\n
                      general   merit   seats.     Any   seat   unfilled<\/p>\n
                      under privilege seats shall be filled from<\/p>\n
                      general merit seats.\n<\/p><\/blockquote>\n
<\/blockquote>\n
               (8)    2%   of   the   total   number   of   sanctioned<\/p>\n
                      seats in an unaided professional college<\/p>\n
                      or   institution   shall   be   filled   up   by<\/p>\n
W.P.(C) No.17873\/2006 etc.                 – 51 –<\/span><\/p>\n
                         students   who   have   made   outstanding<\/p>\n
                         contribution   in   the   field   of   culture   and<\/p>\n
                         sports in the ratio of 1:1. For allotment<\/p>\n
                         to   MBBS\/BDS   courses   only   those<\/p>\n
                         candidates   whose   rank   falls   within   7<\/p>\n
                         fold   of   the   total   number   of   MBBS\/BDS<\/p>\n
                         seats   in   Professional   Colleges   or<\/p>\n
                         Institutions   available   for   allotment<\/p>\n
                         through   the   single   window   system   will<\/p>\n
                         be   considered.     The   allotment   shall   be<\/p>\n
                         done by the Commissioner for Entrance<\/p>\n
                         Examinations   based   on   the   following<\/p>\n
                         principles, namely:-\n<\/p><\/blockquote>\n
<\/blockquote>\n
                  (a)      allotment   under   seats   reserved   for<\/p>\n
                           excellence   in   culture   shall   be   based<\/p>\n
                           on   inter-se   merit   from   among   those<\/p>\n
                           who   have   obtained   ‘A   Grade’   in   any<\/p>\n
                           item   at   the   State   Youth   Festival   or<\/p>\n
                           Higher   Secondary   Youth   Festival<\/p>\n
                           conducted by the State Government.<\/p>\n<\/blockquote>\n
                  (b)       allotment   under   seats   reserved   for<\/p>\n
                            excellence in sports shall be based on<\/p>\n
                            inter   se   merit   and   in   the   manner<\/p>\n
                            specified in the prospectus.\n<\/p><\/blockquote>\n
\n               (9)   All   students   belonging   to   the   same<\/p>\n
                    religious               minority           community<\/p>\n
                    irrespective of denominational difference<\/p>\n
                    shall   be   treated   as   belonging   to   the<\/p>\n
                    same   minority   community   for   the<\/p>\n
                    purpose of allotment of minority seats.<\/p>\n
                (10) Of   the   seats   surrendered   under<\/p>\n
                    sub-clause   (9)   of   Section   10,   fifty   per<\/p>\n
                    cent shall be filled up from general merit<\/p>\n
W.P.(C) No.17873\/2006 etc.                 – 52 –<\/span><\/p>\n
                          seats   and   the   rest   as   specified   under<\/p>\n
                          items (a), (b),(c) and (d) of sub-section<\/p>\n
                          (1) of Section 10.\n<\/p><\/blockquote>\n
\n                   (11) The principles of rotation specified under<\/p>\n
                          sub-section   (7)   of   section   10   shall   be<\/p>\n
                          the   same   as   specified   in   the<\/p>\n
                          prospectus.”.\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
      Freeship   and   its   disbursement   is   dealt   with   by   Rule   11,   which<\/p>\n
      reads as follows:\n<\/p>\n<\/p>\n
                   “11.   Freeship   and   its   disbursement-     (1)   All<\/p>\n
                   unaided   professional   colleges   or   institutions,<\/p>\n
                   including   minority   and   non-minority   colleges<\/p>\n
                   or   institutions   shall   provide   freeship   to   a<\/p>\n
                   minimum of 50% of the students admitted in<\/p>\n
                   each   college,   subject   to   the   stipulations<\/p>\n
                   regarding income limit.   Full remission will be<\/p>\n
                   given   to   all   SC\/ST   students,   irrespective   of<\/p>\n
                   their   income,   whether   admitted   under<\/p>\n
                   specified   category   or   under   general   merit<\/p>\n
                   category.  40% of the students admitted shall<\/p>\n
                   also   be   given   partial   remission   of   fee.<\/p>\n
                   Students   other   than   those   admitted   under<\/p>\n
                   SC\/ST,   privilege   seats   and   Non-Resident<\/p>\n
                   Indian   seats   will   be   eligible   for   the   partial<\/p>\n
                   remission   of   fee   on   merit-cum-means   basis.<\/p>\n
                   The fee payable by them will be the same as<\/p>\n
                   prevailing in Government or Aided Colleges or<\/p>\n
                   institutions   for   the   same   courses.   Only   those<\/p>\n
                   students whose annual family income does not<\/p>\n
                   exceed   two   lakh   fifty   thousand   rupees   and<\/p>\n
                   who have applied for freeship with all relevant<\/p>\n
                   documents   to   support   their   claim   will   be<\/p>\n
                   considered for the grant of freeship.   Initially,<\/p>\n
W.P.(C) No.17873\/2006 etc.                   – 53 –<\/span><\/p>\n
                    freeship   will   be   awarded   to   in   the   ratio   of<\/p>\n
                    seats   allotted   to   other   socially   and<\/p>\n
                    educationally   backward   classes,   physically<\/p>\n
                    challenged   and   to   categories   other   than   the<\/p>\n
                    two   above.     Where   adequate   numbers   of<\/p>\n
                    claimants   are   not   available   under   other<\/p>\n
                    socially and educationally backward classes or<\/p>\n
                    physically   challenged   categories,   the   same<\/p>\n
                    shall be granted to other categories.<\/p>\n<\/blockquote>\n
                           (2)    The  fee payable at rates prevailing<\/p>\n
                    in Government\/Aided colleges or institutions in<\/p>\n
                    respect   of   SC\/ST   students   admitted   under<\/p>\n
                    specified   category   will   be   paid   to   the<\/p>\n
                    institution concerned by the Government.  The<\/p>\n
                    fee payable by SC\/ST students admitted under<\/p>\n
                    general   merit   will   be   fully   paid   to   the<\/p>\n
                    institution by the Government.”<\/p>\n<\/blockquote>\n
      Unaided   minority   professional   college   or   institution   shall   be<\/p>\n
      recognised and conferred such status only if it strictly conforms<\/p>\n
      to     all   the   three   conditions   mentioned   in   Section   8.       Rule   13<\/p>\n
      reads as follows:\n<\/p>\n<\/p>\n
                    “13.   Unaided   Minority   Professional   College   or<\/p>\n
                    Institution.-(1) A minority unaided professional<\/p>\n
                    college   or   institution   established   and<\/p>\n
                    maintained   by   a   minority   community   and<\/p>\n
                    affiliated to a university shall be recognized as<\/p>\n
                    an   unaided   minority   professional   college   and<\/p>\n
                    conferred   status   as   such,   only   if     it   strictly<\/p>\n
                    conforms to all the three conditions laid down<\/p>\n
                    in Section 8.\n<\/p><\/blockquote>\n
<\/blockquote>\n
                                  (2)   The   status   of   an   unaided<\/p>\n
                    minority   professional   college   or   institution<\/p>\n
W.P.(C) No.17873\/2006 etc.                 – 54 –<\/span><\/p>\n
                  recognized as an unaided minority professional<\/p>\n
                  college   or   institution   and   conferred   status   as<\/p>\n
                  such,   will     lose   such   status   if   and   when   the<\/p>\n
                  unaided   minority   professional   college   or<\/p>\n
                  institution concerned ceases to fulfill any of the<\/p>\n
                  three   conditions   laid   down   in   section   8   and<\/p>\n
                  thenceforth shall be treated on part with other<\/p>\n
                  unaided   professional   educational   colleges   or<\/p>\n
                  institutions.”.<\/p><\/blockquote>\n
                  11.     The   challenge   in   the   present   petitions   is   to   the<\/p>\n
      vires of Sections 3, 4, 7(a), 8(a) and (b), 9(2), 10, 12(2), as also<\/p>\n
      Rules  11 and 13.  There is a multi dimensional frontal attack on<\/p>\n
      the vires of the provisions referred to above.  It is the case of the<\/p>\n
      petitioners that the provisions of the Act and the Rules referred<\/p>\n
      to   above   would   transgress   the   fundamental   rights   of   the<\/p>\n
      petitioners enshrined under Articles 14, 15 [including Art.15(5)],<\/p>\n
      19, 21, 26 and 30 of the Constitution of India.   It is then urged<\/p>\n
      that some of the provisions of the Act and in particular Section 8<\/p>\n
      (b) and (c) pertain to an occupied field by the Central Legislation<\/p>\n
      by virtue of the provisions contained in National Commission for<\/p>\n
      Minorities Educational Institutions Act, 2004 as amended by the<\/p>\n
      Act   of   2006   and   therefore,   the   State   of   Kerala   would   lack<\/p>\n
      legislative competence to enact Act of 2006.   The provisions are<\/p>\n
W.P.(C) No.17873\/2006 etc.                 – 55 –<\/span><\/p>\n
      also   stated   to   be   in   direct   conflict   with   the   various   Supreme<\/p>\n
      Court   judgments   in   particular  T.M.A.Pai,   Islamic   Academy,<\/p>\n
      St.Stephen’s   College    and    Inamdar.     It   is   then   urged   that<\/p>\n
      inasmuch   as   the   offending   provisions   of   the   Act   are<\/p>\n
      non-severable  from   the   other   provisions   of   the   Act   and   further<\/p>\n
      that the main sections around which the whole Act   revolves are<\/p>\n
      ultra vires  the provisions of the Constitution, the whole Act must<\/p>\n
      fall.     These   are   the   arguments   which   are   commonly   raised   by<\/p>\n
      learned   counsel   representing   the   petitioners   in   all   the   matters.<\/p>\n
      The other arguments individually raised by the learned counsel in<\/p>\n
      some of the petitions shall be mentioned at appropriate places.<\/p>\n
                    12.     We   have   heard   Sri.Andyarujina,   Sri.Rajeev<\/p>\n
      Dhavan, learned Senior Advocates, who have led the arguments<\/p>\n
      from front assisted by a galaxy of lawyers for the petitioners as<\/p>\n
      also   Sri.Vaidyanathan,   learned   Senior   Advocate   and<\/p>\n
      Sri.C.P.Sudhakara Prasad, learned Advocate General on behalf of<\/p>\n
      the State.\n<\/p>\n
\nW.P.(C) No.17873\/2006 etc.                     – 56 –<\/span><\/p>\n
          Power of Judicial Review on recitals in the Preamble<\/p>\n
                    13.   Before we may examine the validity of the provisions<\/p>\n
      of the Act and the Rules under challenge, it will be appropriate at the<\/p>\n
      very   outset   to   deal   with   the   objections   raised   by   Mr.Vaidyanathan,<\/p>\n
      learned   Senior   Counsel   representing   the   State   along   with<\/p>\n
      Mr.Sudhakara Prasad, Advocate General of Kerala that recitals in the<\/p>\n
      preamble   to   the   Act   are   stated   to   be   part   of   legislative   facts   and<\/p>\n
      cannot be subject matter of dispute and would be beyond the purview<\/p>\n
      of   judicial   review.       For   deciding   the   validity   of   a   law,   the<\/p>\n
      statements contained in the  Preamble should be presumed to be<\/p>\n
      correct.    If the preamble is read as a whole, it would be evident<\/p>\n
      that   the   object   and   provisions   of   the   Act   fall   within   the   four<\/p>\n
      corners of the provisions   of the Constitution.   The same is also<\/p>\n
      in tune with the decisions of the Supreme Court and in particular<\/p>\n
      in  Inamdar’s  case.    That being so, the  legislative facts cannot<\/p>\n
      be subject matter of dispute or judicial review, thus contends the<\/p>\n
      learned counsel.\n<\/p>\n<\/p>\n
                    14.  With    a  view  to   appreciate  the  contention  of  the<\/p>\n
      learned counsel, it will be appropriate to find out as to what are<\/p>\n
      the recitals of the preamble of the Act of 2006 which are stated<\/p>\n
W.P.(C) No.17873\/2006 etc.                 – 57 –<\/span><\/p>\n
      to be legislative facts  thus  not amenable to judicial review.  The<\/p>\n
      preamble  contains   ten   unnumbered  paras.     Paras   1,   4,   5,   6,   7<\/p>\n
      and   8,   it   appear,   would   only   contain   statements   of   law   as<\/p>\n
      propounded   by   the   Honourable   Supreme   Court.       In   so   far   as<\/p>\n
      para   3   is   concerned,   the   same   only   reproduces   the   provisions<\/p>\n
      contained in Article 15(5) of the Constitution of India.   In so far<\/p>\n
      as   paras   2,   9   and   10   are   concerned,   the   same   may   contain   a<\/p>\n
      factual position.\n<\/p>\n<\/p>\n
                   15.  Learned counsel appearing for the petitioners has<\/p>\n
      sought to divide the preamble in 10 parts and while commenting<\/p>\n
      on the relevant parts, it is urged by them that the Act of 2006 is<\/p>\n
      a self defeating statute.  With regard to part or para 1, it is urged<\/p>\n
      that   Supreme   Court   had   never   held   so   as   mentioned   therein.<\/p>\n
      The  decision  rather   is   that  there  could   be   a  consortium   for  the<\/p>\n
      managements and further the State can take over only to ensure<\/p>\n
      or achieve the twin  objectives  of transparency and merit in  the<\/p>\n
      event  when  the  object  might   have  been  transgressed,  the  take<\/p>\n
      over can be only a temporary measure and not for all times to<\/p>\n
      come.   With regard to part 2 of unnumbered para 2, it is urged<\/p>\n
W.P.(C) No.17873\/2006 etc.                   – 58 –<\/span><\/p>\n
      that   the past experience was only with regard to facts collected<\/p>\n
      by   Justice   K.T.Thomas   Committee   and   only   once   in   2004   the<\/p>\n
      Committee intervened. There was no such past experience in the<\/p>\n
      report of the Committee. The single instance could not be said to<\/p>\n
      be  a past experience of maladministration.     It is further urged<\/p>\n
      that   one instance and that too with regard to Medical Colleges<\/p>\n
      could   not   be   treated   to   be  such   transgression   that   would   take<\/p>\n
      away the right of the management to hold the consortium test.<\/p>\n
      With regard to parts or unnumbered paras 3 and 4, counsel has<\/p>\n
      nothing to say.  It is urged by them that they are not  concerned<\/p>\n
      with   the   said   parts   of   the   preamble.   With   regard   to   part   5   of<\/p>\n
      unnumbered   paragraphs   thereof,   it   is   urged   that   despite<\/p>\n
      mentioning that the religious and linguistic minorities have to be<\/p>\n
      considered Statewise, the other conditions that have been placed<\/p>\n
      to   qualify   as   religious   or   linguistic   minority   are   wholly<\/p>\n
      unworkable.     Parts   or   unnumbered   paragraphs   6   and   7   have<\/p>\n
      been put together.  Learned counsel representing the petitioners<\/p>\n
      urge that the same is against the dictum of the Supreme Court.<\/p>\n
      With regard to part or unnumbered para  8, it is urged that the<\/p>\n
W.P.(C) No.17873\/2006 etc.                  – 59 –<\/span><\/p>\n
      words   mentioned   therein   ‘must   equally   apply   to   the   majority<\/p>\n
      institutions as well as minority institutions’ is not correct.   With<\/p>\n
      regard   to     the   words   ‘accrue   from   minority   rights   be   equitably<\/p>\n
      shared   among   different   sections,   including   weaker   sections,<\/p>\n
      within the minority community to which the particular college or<\/p>\n
      institution   belongs’  in   part   or   unnumbered   para   9   of   the<\/p>\n
      preamble, it is urged that it is not correct as it was not so held<\/p>\n
      by the Supreme Court. With regard to part or para 10, it is urged<\/p>\n
      that there cannot be any objection to the compromise mentioned<\/p>\n
      therein,   but   the   same   cannot   be   forced.   With   regard   to   the<\/p>\n
      contention   of   Mr.Vaidyanathan   on   the   legal   issue   canvassed  by<\/p>\n
      him as mentioned above, it is urged by the learned counsel for<\/p>\n
      the petitioners that the same is absolutely incorrect and that this<\/p>\n
      court exercising its powers under Article 226 of the Constitution<\/p>\n
      of   India,   when   the   challenge   to   Act   is   based   upon   violation   of<\/p>\n
      fundamental   rights,   can   always   lift   the   veil   as   the   legislative<\/p>\n
      declaration   of   facts   are   not   beyond   judicial   scrutiny   in   the<\/p>\n
      constitutional context of Articles 14 and 16 of the Constitution of<\/p>\n
      India.\n<\/p>\n
\nW.P.(C) No.17873\/2006 etc.                   – 60 –<\/span><\/p>\n
                    16.  The issue debated before the Court with regard to<\/p>\n
      power of judicial review under the provisions of Article 226 of the<\/p>\n
      Constitution of India in the context of challenge to the provisions<\/p>\n
      on the basis of violation of fundamental rights is not res integra.<\/p>\n
      There will be no need to delve any further on the issue, but to<\/p>\n
      straightaway   refer  to   the   judicial   precedents   covering   the   field.<\/p>\n
      In  Indira   Sawhney  v.  Union   of   India,<\/a>  (2000)   1   SCC   168,<\/p>\n
      while   dealing   with   this   precise   issue,   the   Honourable   Supreme<\/p>\n
      Court   observed   that,   “legislative   declarations   of   facts   are   not<\/p>\n
      beyond  judicial   scrutiny  in  the  Constitutional   context   of   Articles<\/p>\n
      14   and   16”.     The   facts   of   the   case   aforesaid   will   reveal   that<\/p>\n
      provisions   of   Section   3   of   the   Kerala   State   Backward   Classes<\/p>\n
      (Reservation of Appointments or Posts in the Services under the<\/p>\n
      State)   Act,   1995   was   declared   to   be   mentioning   that   having<\/p>\n
      regard   to   ‘known   facts’   in   existence   in   the   State,   there   are   no<\/p>\n
      socially   advanced   sections   in   any   backward   classes   who   may<\/p>\n
      have acquired capacity to compete with forward classes and that<\/p>\n
      the   backward   classes   are   not   adequately   represented   in   the<\/p>\n
      services of the State.  Section 3 of the said Act of 1995 in so far<\/p>\n
W.P.(C) No.17873\/2006 etc.                   – 61 –<\/span><\/p>\n
      as would be relevant reads as follows:\n<\/p>\n<\/p>\n
                           “It   is   hereby  declared,  having  regard<\/p>\n
                    to  known  facts   in  existence of   the State  –<\/p>\n<\/blockquote>\n
                    (a)   that   there   are   no   socially   advanced<\/p>\n
                    sections in any Backward Classes who have<\/p>\n
                    acquired capacity to compete with forward<\/p>\n
                    classes; and (b) that the Backward Classes<\/p>\n
                    in   the   State   are   still   not   adequately<\/p>\n
                    represented in the services under the State<\/p>\n
                    and   they   continue   to   be   entitled   to<\/p>\n
                    reservation   under   clause   (4)   of   Article   16<\/p>\n
                    of the Constitution”.\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
      For so holding, Honourable Supreme Court relied upon its earlier<\/p>\n
      decision in Kesavananda Bharati v. S
\n                                                         tate of Kerala,   (1973) 4<\/p>\n
      SCC 225.     In the   said case, the question before the Court that<\/p>\n
      arose   in   the   context   of   legislative   declaration   made   for   the<\/p>\n
      purpose   of   Article   31-C   was,   whether   the   court   was   precluded<\/p>\n
      from   lifting   the   veil,   examine   the   facts   and   hold   the   legislative<\/p>\n
      declaration   to   be   invalid.     The   Supreme   Court   after   making   a<\/p>\n
      reference to the observations made by the Honourable Judges in<\/p>\n
      the said case as also relying upon judicial precedents in  Charles<\/p>\n
      Russel  v.  R, [1882 (7) AC 829] and Attorney General  v.  Queens<\/p>\n
      Insurance Co., [1878 (3) SC 1090], held that,<\/p>\n
W.P.(C) No.17873\/2006 etc.              – 62 –<\/span><\/p>\n
                               “This   being   the   legal   position,   this<\/p>\n
                 court   could   certainly   examine   whether   the   so<\/p>\n
                 called known facts referred to in Section 3 were<\/p>\n
                 indeed non-existent”.\n<\/p>\n
\n      While dealing with the precise question involved in the said case<\/p>\n
      in the context of legislative declaration in Section 3 with regard<\/p>\n
      to ‘known facts’, the Supreme Court gave six reasons categorised<\/p>\n
      as (a) to (f) and came to the conclusion as follows:<\/p>\n
                       “It   appears   to   us,   therefore,   from   what<\/p>\n
                 we have stated above in sub-paras (a) to (g)<\/p>\n
                 that   Kerala   Act   had   shut   its   eyes   to   the<\/p>\n
                 realities and facts and it came forward with a<\/p>\n
                 declaration in  clause (a)   of Section 3   which,<\/p>\n
                 perhaps,   it   was   mistakenly   believed   was   not<\/p>\n
                 amenable   to   judicial   scrutiny.     Unfortunately,<\/p>\n
                 the law is otherwise”.\n<\/p><\/blockquote>\n
<\/blockquote>\n
      It was further held that,<\/p>\n
                       “In   view   of   the   facts   and   circumstances<\/p>\n
                 referred to above, we hold that the declaration<\/p>\n
                 in   clause   (a)   of   Section   3   made   by   the<\/p>\n
                 legislature has no factual basis in spite of the<\/p>\n
                 use of the words “known facts”.  The facts and<\/p>\n
                 circumstances, on the other hand, indicate to<\/p>\n
W.P.(C) No.17873\/2006 etc.                  – 63 –<\/span><\/p>\n
                   the contrary.  In our opinion, the declaration is<\/p>\n
                   a   mere   cloak     and   is   unrelated   to   facts   in<\/p>\n
                   existence.   The declaration in Section 3(a) is,<\/p>\n
                   in   addition,   contrary   to   the   principles   laid<\/p>\n
                   down by this Court in  Indra Sawhney, 1992<\/p>\n
                   Suppl.(3)   SCC   217   and   in  Ashoka   Kumar<\/p>\n
                   Thakur,  (1995) 5  SCC  403.   It   is, therefore,<\/p>\n
                   violative   of   Articles     14   and   16(1)   of   the<\/p>\n
                   Constitution of India.   Clause (a) of Section 3<\/p>\n
                   is, therefore, declared unconstitutional.”.<\/p>\n
                   17.       In   view   of   the   authoritative   pronouncement   of<\/p>\n
      the   Supreme   Court   with   regard   to   the   precise   question   as<\/p>\n
      involved   in   the   present   case,   the   contention   raised   by<\/p>\n
      Mr.Vaidyanathan,   learned   Senior   Counsel     that,   recitals   in   the<\/p>\n
      preamble to the Act are stated to be part of legislative facts and<\/p>\n
      cannot   be   subject   matter   of   dispute   and   would   be   beyond   the<\/p>\n
      purview of judicial review has to be repelled and it has to be held<\/p>\n
      that   court   while   examining   the   vires   of   the   Act   based   upon<\/p>\n
      violation   of   fundamental   rights   can   tear   the   veil   to   decide   the<\/p>\n
      real   nature   of   the   statute   if   the   facts   and   circumstances   may<\/p>\n
      necessitate   such   a   course.     In   so   far   as   the   statement   of   law<\/p>\n
W.P.(C) No.17873\/2006 etc.                  – 64 –<\/span><\/p>\n
      made in the preamble in the various paragraphs  is concerned, if<\/p>\n
      the   same   may   be   actually   against   the   dictum   of   the   Supreme<\/p>\n
      Court,   it   shall   have   to   be   ignored.         Having   dealt   with   the<\/p>\n
      proposition   of   law   and   repelling   the   contention   of<\/p>\n
      Mr.Vaidyanathan, time is now ripe to examine the factual aspect<\/p>\n
      of  the preamble in the context of the contentions raised before<\/p>\n
      us.   Learned counsel  representing the petitioners  contends that<\/p>\n
      the same are not  correct  or  were such that could  not be taken<\/p>\n
      into consideration.\n<\/p>\n<\/p>\n
                   18.  The factual position stated in part or unnumbered<\/p>\n
      para   2   of   the   preamble   may   contain   facts   as   stated   by   the<\/p>\n
      learned   counsel   appearing   for   the   petitioners   to   be   absolutely<\/p>\n
      incorrect.  It is the case of the petitioners that there was no past<\/p>\n
      experience   of   maladministration   of   the   entrance  test  conducted<\/p>\n
      by   the   consortium\/association   of   private   professional   self<\/p>\n
      financing   institutions   of   the   State.     In   Para   75   of   W.P.(C)<\/p>\n
      No.17873   of  2006 which  has  been  filed  by  the    petitioners’<\/p>\n
W.P.(C) No.17873\/2006 etc.                    – 65 –<\/span><\/p>\n
      institution running Nursing  Courses, it  is pleaded that as far as<\/p>\n
      the selection process and tests conducted by the Consortium of<\/p>\n
      Nursing Managements are concerned, there was no complaint of<\/p>\n
      any sort from any quarters so far and there was no notice of any<\/p>\n
      malpractice by the Association or any member of the Association<\/p>\n
      till date.  All the members of the Association had opted to go by<\/p>\n
      the   Test   conducted   by   the   Consortium   and   had   effected<\/p>\n
      admissions only from the said Test.   In the counter affidavit filed<\/p>\n
      on   behalf   of     the   State,   it   has   been   averred   that   necessity   to<\/p>\n
      insist   on   admission   through   Common   Entrance   Test     arose   as<\/p>\n
      was   felt   by   the   Legislature   in   its   wisdom   that   there   was   large<\/p>\n
      scale maladministration and exploitative methods adopted by the<\/p>\n
      private   professional   colleges.     The   power   to   admit   is   the   root<\/p>\n
      cause   of   capitation   fee   and   merit   being   given   a   go-by.         It   is<\/p>\n
      then   pleaded   that   Justice   K.T.Thomas,   Chairman   of   the<\/p>\n
      Committee   for   Overseeing   the   conduct   of   examinations   has<\/p>\n
      pointed   out   that   the   Management   of   Self   Financing   Medical,<\/p>\n
      Dental, Ayurveda and Sidha colleges have violently violated the<\/p>\n
      guidelines issued by the Supreme Court by conducting a rigged<\/p>\n
W.P.(C) No.17873\/2006 etc.                 – 66 –<\/span><\/p>\n
      and   farce   entrance   test   for   admitting   students   as   if   they   are<\/p>\n
      merit students.  To substantiate its plea as mentioned above, the<\/p>\n
      respondents have placed on record the proceedings of the Justice<\/p>\n
      K.T.Thomas   Committee   as   also   a   letter   dated   21.6.2004   as<\/p>\n
      Exts.R1(a)   and   R1(b)   respectively.     A     letter   dated   30.7.2004<\/p>\n
      was   written   by   a   student   who   appeared   in   the   entrance   exam<\/p>\n
      conducted by the group of private colleges in 2004 complaining<\/p>\n
      about  the manner in which  the  test  was conducted.   A copy of<\/p>\n
      the same is placed on record as Ext.R1(c).   These are the kinds<\/p>\n
      of  averments made in all the counter affidavits pertaining to the<\/p>\n
      test   conducted   by   the   Consortium   of   Medical   Colleges   or   other<\/p>\n
      Technical Institutions.   We may mention at this stage itself that<\/p>\n
      the institutions before us are imparting education in Engineering,<\/p>\n
      Medicine, Ayurveda, Teaching etc.  Ext.R1(a) are the proceedings<\/p>\n
      of the Committee for Supervision of Common Entrance Test for<\/p>\n
      selection of students in the management seats in the Private Self<\/p>\n
      Financing   Professional   Colleges   dated   3rd  June,   2004.     It   deals<\/p>\n
      with   Medical,   Dental,   Ayurveda   and   Siddha   Colleges.   In<\/p>\n
      paragraph 2 of the proceedings aforesaid, it has been mentioned<\/p>\n
W.P.(C) No.17873\/2006 etc.                     – 67 –<\/span><\/p>\n
      that the Committee had noticed that Association of Private Self<\/p>\n
      Financing  Institutions  received  applications for   appearing  in  the<\/p>\n
      Common Entrance Test to be conducted by them on the strength<\/p>\n
      of   prospectus   which   has   shown   the   fee   structure   proposed   by<\/p>\n
      each   member  of   the  association   which  was  far   higher   than  the<\/p>\n
      fees   fixed   by   the   Committee.     The   last   date   fixed   by   the<\/p>\n
      association for receipt  of  application  was  long  prior  to  the  date<\/p>\n
      when   the   Committee   decided   the   fee   payable   by   the   students.<\/p>\n
      As   per   the   decision  of   the   Committee,   the  fee   which  a   student<\/p>\n
      has   to   pay   in   respect   of   each   course     is   far   less   than   the   fee<\/p>\n
      proposed   by   each   College   shown   in   the   prospectus.     When  the<\/p>\n
      fee structure was published, a large number of students who felt<\/p>\n
      that   they   could   afford   to   pay   the   fee   fixed   by   the   Committee<\/p>\n
      made earnest efforts to apply in the colleges concerned but the<\/p>\n
      Association   forestalled   the   rights   and   opportunity   of   such<\/p>\n
      students to  make  the  application  on  the  premise  that  last  date<\/p>\n
      for making the application was already over.  The Committee on<\/p>\n
      the   aforesaid   facts   understood   that   the   number   of   applications<\/p>\n
      received   by   the   Association   on   the   basis   of   prospectus   issued<\/p>\n
W.P.(C) No.17873\/2006 etc.                 – 68 –<\/span><\/p>\n
      was abysmally small  and this fact itself would prove that only a<\/p>\n
      handful   of   students   who  could   afford   to   pay   the   exorbitant   fee<\/p>\n
      shown in the prospectus fixed by the Association could make the<\/p>\n
      application. This, according to the Committee, was in contrast to<\/p>\n
      the   number   of   applications   received   by   the   Commissioner   for<\/p>\n
      Entrance   Examinations.     The   Committee   was   of   the   view   that<\/p>\n
      there was no doubt that if the last date for receipt of application<\/p>\n
      has   been   fixed   giving   a   reasonable   interval   from   the   date   of<\/p>\n
      fixation   of   fee,   the   number   of   applicants   should   have   been   far<\/p>\n
      higher than the small number now admitted by the management.<\/p>\n
      After discussing the matter in detail the Committee resolved as<\/p>\n
      follows:\n<\/p>\n<\/p>\n
                   “i.   The   Association   shall   postpone   the   last<\/p>\n
                   date   for   receipt   of   application   atleast   till<\/p>\n
                   20.06.2004.\n<\/p><\/blockquote>\n
\n                     ii.     Sufficient   number   of   application   forms<\/p>\n
                   should be made available at the office of the<\/p>\n
                   Committee   also   for   issuing   to   the   intending<\/p>\n
                   applicants   and   the   cost   of   the   forms   issued<\/p>\n
                   will be passed over to the Association.<\/p>\n
                   iii.   The other dates for holding the entrance<\/p>\n
                   test  shall  be rescheduled accordingly in such<\/p>\n
                   a way as to keep  the last  date for admission<\/p>\n
W.P.(C) No.17873\/2006 etc.                 – 69 –<\/span><\/p>\n
                   specified   by   the   MCI,   pursuant   to   the<\/p>\n
                   Judgement  of   the   Supreme   Court   in   MCI   v.<\/p>\n
                   Madhu Sing case.\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
                   iv.     In   the   event   of   the   Association   being<\/p>\n
                   unable   to   conduct   the   entrance   test   in   the<\/p>\n
                   manner specified above, the Association shall<\/p>\n
                   follow   the   rank   list   published   by   the   State<\/p>\n
                   agencies   after   fixing   up   another   date   as   the<\/p>\n
                   last date for receiving application.”.<\/p>\n<\/blockquote>\n
      In the proceedings dated 3.6.2004, the Committee has directed<\/p>\n
      the   Association   of   Managements   of     the   Self   Financing   Medical<\/p>\n
      Colleges to extend the last date for receipt of applications by a<\/p>\n
      few more days, so as to enable the intending students to apply.<\/p>\n
      In   the   letter   dated     21.6.2004,   produced   as   Ext.R1 (b),   it   is<\/p>\n
      stated   that   the   Chairman   of     the   Association   of   Private   Self<\/p>\n
      Financing Medical College filed a writ petition praying for stay of<\/p>\n
      operation of implementation of the order dated 3.6.2004 of the<\/p>\n
      Committee and when the High Court refused to grant stay of the<\/p>\n
      order,   the   Association   in   a   hurry   prepared   the   question   paper<\/p>\n
      and a farce test was conducted on 13.6.2004, as announced by<\/p>\n
      them already.   It was observed that the Association  should not<\/p>\n
      have flouted the direction of the Committee which was necessary<\/p>\n
W.P.(C) No.17873\/2006 etc.                  – 70 –<\/span><\/p>\n
      for supervising the test and also to oversee that the admissions<\/p>\n
      are  fair and transparent.    It was  further  observed that  denying<\/p>\n
      the opportunity to the students to apply for admission after the<\/p>\n
      fees   was   fixed   by   the     Committee   is   a   very   grave   violation   of<\/p>\n
      fairness   and   transparency.     Complaints   have   been   received   by<\/p>\n
      the committee that some of the Medical colleges have collected<\/p>\n
      huge   amounts   from   some   of   the   applicants   by   assuring<\/p>\n
      admission to them and that is the reason for preventing others<\/p>\n
      to   make   application.     Though   the   committee   has   no   direct<\/p>\n
      evidence   on   the   truth   of   such   allegations,   the   committee   has<\/p>\n
      been  convinced  that   transparency  became   a   casualty   when  the<\/p>\n
      managements blocked the student community from applying for<\/p>\n
      admission after knowing the range of fees.  The Committee then<\/p>\n
      observed   that   management   of   Self   Financing   Medical,   Dental,<\/p>\n
      Ayurveda   and   Siddha   Colleges   have   violently   violated   the<\/p>\n
      guidelines   issued   by   the   Supreme   Court   by   conducting   such   a<\/p>\n
      rigged and farce entrance test for admitting students as if they<\/p>\n
      are   merit   students.     The   Committee   also   found   that   the   test<\/p>\n
      conducted  by  the   Medical   Institutions   on  13.6.2004   was  wholly<\/p>\n
W.P.(C) No.17873\/2006 etc.                 – 71 –<\/span><\/p>\n
      unfair,   wherein   fairness   and   transparency   have   become<\/p>\n
      casualties.         A   letter   dated   30.7.2004   [Ext.R1(d)],   has   been<\/p>\n
      addressed by one Anu.S. to Justice K.T.Thomas.  It is a letter by<\/p>\n
      a student who appeared for the entrance examination conducted<\/p>\n
      on   13.6.2004   by   the     Self   Finance   College   Association.     It   is<\/p>\n
      stated in the letter that even though the   Committee headed by<\/p>\n
      Justice   K.T.Thomas   had   objected   to   the   conduct   of   the<\/p>\n
      examination, she had participated in the examination.   The Self<\/p>\n
      Financing Colleges have admitted students of their choice in the<\/p>\n
      management quota.   In many of the colleges, the classes have<\/p>\n
      started in between, but she and others were not included even in<\/p>\n
      the   selection   process.     She  had   passed  CBSE  examination  with<\/p>\n
      91.7%  marks  in  Biology,  Physics  and Chemistry and performed<\/p>\n
      well in the examination conducted by the Association, but neither<\/p>\n
      the examination results were declared nor she was called for an<\/p>\n
      interview.  She requested the Committee to help ordinary people<\/p>\n
      like her either by cancelling the entrance examination conducted<\/p>\n
      by the Association or by selecting the students in a transparent<\/p>\n
      manner.\n<\/p>\n
\nW.P.(C) No.17873\/2006 etc.                  – 72 –<\/span><\/p>\n
                   19.   It is the case of the petitioners that in so far as<\/p>\n
      the   Committee   headed   by   the     former   Judge   of   the   Supreme<\/p>\n
      Court,   Mr.Justice   K.T.Thomas,   is   concerned,   there   was   no<\/p>\n
      allegation with regard to fairness in the test.   Unfairness in the<\/p>\n
      test was presumed on the ground that prospectus was issued by<\/p>\n
      Self   Financing   Institutions   far   prior   to   fixation   of   fees   by   the<\/p>\n
      Committee and inasmuch as the fee fixed in the prospectus was<\/p>\n
      far higher than the one fixed by the Committee later in point of<\/p>\n
      time, many students were debarred from participating in the test<\/p>\n
      conducted by the Self Financing Institutions.   This, according to<\/p>\n
      the   Committee,   had   resulted   into   a   test   which   was   a   complete<\/p>\n
      farce.  In so far as the letter written by a student is concerned, it<\/p>\n
      is   urged   by   the   learned   counsel   for   the   petitioners   that,   no<\/p>\n
      material   has   been   placed   on   record   to   substantiate   the<\/p>\n
      allegations made therein.    The contents of the  letter are  in the<\/p>\n
      realm   of   allegation   without   any   proof,   thus   would   contend   the<\/p>\n
      learned counsel.\n<\/p>\n<\/p>\n
                   20.   It may not be possible to accept the contentions<\/p>\n
      of the learned counsel as noted above.  The findings recorded by<\/p>\n
W.P.(C) No.17873\/2006 etc.                  – 73 –<\/span><\/p>\n
      the   Committee   headed   by   Justice   K.T.Thomas   may   be<\/p>\n
      presumptive   with   regard   to   standard   of   the   test,   but,   surely,<\/p>\n
      number   of   students   could   not   participate.     Further,   there   are<\/p>\n
      indeed   other   findings   also   like   holding   the   test   on   a   day   and<\/p>\n
      announcing the result the very next day which point towards the<\/p>\n
      test not being fair.  The declaration of facts made in unnumbered<\/p>\n
      para 2 of the preamble may be true, but the significant question<\/p>\n
      that arises in the present cases is as to whether on the basis of a<\/p>\n
      single test, authenticity of which was adversely commented upon<\/p>\n
      by  the     Committee   headed   by   a   former   Judge  of   the   Supreme<\/p>\n
      Court, Justice K.T.Thomas, and which test was conducted only by<\/p>\n
      Self Financing Institutions imparting Medicine, Ayurveda, Dental<\/p>\n
      and Siddha Courses, whether the right of managements to hold a<\/p>\n
      consortium   test   could   be   taken   away   for   all   times   to   come,<\/p>\n
      particularly   when   the   Act   of   2004   intervened   between   the<\/p>\n
      observations   made   by   Justice   K.T.Thomas   Committee   and   the<\/p>\n
      Act of 2006.   We will deal with this aspect of the case when we<\/p>\n
      may consider the right of Self Financing Unaided Institutions to<\/p>\n
      make admission of students through a Consortium Test.  Suffice<\/p>\n
W.P.(C) No.17873\/2006 etc.                 – 74 –<\/span><\/p>\n
      it, however, to mention at this stage that, there is no allegation<\/p>\n
      of conducting a rigged or farce test against institutions imparting<\/p>\n
      education   in   other   technical   subjects   like   Engineering,   Nursing<\/p>\n
      and   Teacher   Education   and   further   that   there   is   no   allegation<\/p>\n
      whatsoever of a rigged test or a test held not to admit students<\/p>\n
      of merit either before or after the test conducted in 2004.  It  is<\/p>\n
      also to be stated that Regulations of 2002 that came into being<\/p>\n
      prior   to   the   Act   of   2004   were   challenged   in   this   Court   in<\/p>\n
      O.P.No.39420   of   2002   and   vide   judgment   dated   20th  January,<\/p>\n
      2003   this   Court   allowed   the   Writ   Petition.     An   application   for<\/p>\n
      review   was   filed   against   the   order   aforesaid,   which   was<\/p>\n
      dismissed on 17th  February, 2003.   It was held in the said order<\/p>\n
      that   the   students   admitted   by   the   managements   were   not<\/p>\n
      lacking   any   merit   and   this   finding   came   to   be   recorded   after<\/p>\n
      going   through   the   entire   records   and   the   performance   in   the<\/p>\n
      qualifying examination.   The other factual position noticed in the<\/p>\n
      preamble,     would   pertain   to   unique   socio   economic   and<\/p>\n
      demographic complexion of the State in the context of the need<\/p>\n
      and   commitment   to   protect   and   strengthen   the   secular   ethos<\/p>\n
W.P.(C) No.17873\/2006 etc.                    – 75 –<\/span><\/p>\n
      and   the   long   tradition   of   equitable   sharing   of   the   opportunities<\/p>\n
      for   education   among   different   communities   prevailing   in   the<\/p>\n
      State.       It   is   not   clear   from   the   aforesaid   statement   of   fact<\/p>\n
      mentioned in part or unnumbered para 9 of the Preamble as to<\/p>\n
      what is the socio economic and demographic complexion of the<\/p>\n
      State,   but   during   the   course   of   arguments   it   is   clarified   that   it<\/p>\n
      relates   to   Christian   and   Muslim   Communities   being   far   more<\/p>\n
      progressive in establishing institutions of education as compared<\/p>\n
      to  even so-called majority communities in the State.   It is also<\/p>\n
      pointed out that students of the minority communities in various<\/p>\n
      fields   of   education   may   be   more   than   the   students   of   the<\/p>\n
      majority   community.     It   is   also   urged   that   the   communities<\/p>\n
      mentioned above have progressed enough.   These communities<\/p>\n
      are now forward and have become rich and it is now time that<\/p>\n
      Government must protect and strengthen the Secular ethos and<\/p>\n
      the   long   tradition   of   equitable   sharing   of   opportunities   for<\/p>\n
      education   among   different   communities   prevailing   in   the   State.<\/p>\n
      But   for   showing   on   material   and   which   we   may   mention,     is<\/p>\n
      admitted   position   that   minority   communities   have   established<\/p>\n
W.P.(C) No.17873\/2006 etc.                    – 76 –<\/span><\/p>\n
      educational   institutions   far   more   than   the   non-minority<\/p>\n
      communities,  nothing has been shown which may even remotely<\/p>\n
      suggest that these communities have become advanced and rich.<\/p>\n
      We   shall   deal   with   this   aspect   of   the   matter   in   the   context   of<\/p>\n
      right of minorities to establish and administer institutions at the<\/p>\n
      relevant time, but all that we may mention at this stage is that<\/p>\n
      demographic complexion of the State in the context of the need<\/p>\n
      and commitment to protect and strengthen the secular ethos as<\/p>\n
      mentioned   in   the   Preamble   would   pertain   to   only   more<\/p>\n
      educational institutions having been established by the minority<\/p>\n
      communities   and   that   is   a   fact   in   so   far   as   State   of   Kerala   is<\/p>\n
      concerned.\n<\/p>\n<\/p>\n
                    21.     Having     examined   the   backdrop   of   events<\/p>\n
      culminating   into   the   filing   of     the     present   petitions   and   the<\/p>\n
      important dates and events which  may have a bearing upon the<\/p>\n
      controversy in issue,  we would have normally examined  at this<\/p>\n
      stage the challenge to various provisions of the Act and the Rules<\/p>\n
      referred   to   above,   but     inasmuch   as     the   learned   counsel<\/p>\n
      appearing   for   the   parties   have   primarily   relied   upon   the<\/p>\n
W.P.(C) No.17873\/2006 etc.                  – 77 –<\/span><\/p>\n
      judgments   of   the   Supreme   Court   in   St.Xavier’s   case,<\/p>\n
      St.Stephen’s case, T.M.A.Pai Foundation case and  P.A.Inamdar’s<\/p>\n
      case and claimed that the said judicial precedents support their<\/p>\n
      view points, it shall be necessary to first take into consideration<\/p>\n
      the   background   in   which   the   said   cases   came   to   be   instituted,<\/p>\n
      the   basic   points   involved   therein   and   the   results   thereof.     This<\/p>\n
      exercise has to be gone into as both parties rely upon the same<\/p>\n
      very  judgments in  their  favour  and unless the context in which<\/p>\n
      the said cases came to be decided is clear, a sure answer may<\/p>\n
      not be possible.\n<\/p>\n<\/p>\n
                   22.  The litigation on education can be mainly divided<\/p>\n
      into   two   eras,   namely,   one,     post   Unnikrishnan   and   the   other<\/p>\n
      post   T.M.A.Pai   Foundation,   clarified   by   the   Supreme   Court   in<\/p>\n
      Inamdar’s case.  In Mohini Jain v. State of Karnataka,  1992 (3)<\/p>\n
      SCC   666   (hereinafter   referred   to   as   Mohini   Jain’s   case),   the<\/p>\n
      challenge   was   to   notification   that   provided   for   fee   structure<\/p>\n
      whereby   for Government seats the tuition fee   was   Rs.2000\/-<\/p>\n
      per   annum,   and   for   students   from   Karnataka   the   fee   was<\/p>\n
      Rs.25,000\/-   per   annum   while   the   fee   for   Indian   students   from<\/p>\n
W.P.(C) No.17873\/2006 etc.                 – 78 –<\/span><\/p>\n
      outside Karnataka, under the payment category was Rs.60,000\/-<\/p>\n
      per   annum.     It   was   urged   before   the   Supreme   Court   that<\/p>\n
      charging   such   a   discriminatory   and   high   fee   would   violate   the<\/p>\n
      constitutional guarantees and rights.   This attack was sustained<\/p>\n
      and it was held that there was fundamental right to education in<\/p>\n
      every   citizen,   and   that   the   State   was   duty   bound   to   provide<\/p>\n
      education as also the private institutions that discharge   State’s<\/p>\n
      duties   were  equally   bound  not   to   charge   a   higher   fee   than   the<\/p>\n
      Government   institutions.       The   correctness   of   the   same   was<\/p>\n
      challenged in Unnikrishnan’s case where it was urged that if the<\/p>\n
      law laid down in Mohini Jain’s  ratio was to apply, the educational<\/p>\n
      institutions   would   have   to   be   closed   down   as   they   would   be<\/p>\n
      unable   to   run   the   institutions   with   a   kind   of   fee   structure<\/p>\n
      ordained in the said case.   The Supreme Court in the context of<\/p>\n
      arguments raised in the said case considered the conditions and<\/p>\n
      regulations,   if   any   which   the   State   could   impose   on   private<\/p>\n
      unaided\/aided,   recognised   or   affiliated   educational   institutions<\/p>\n
      conducting  professional  courses,    the   extent   of  fee   which  could<\/p>\n
      be charged by such an institution and the manner in which the<\/p>\n
W.P.(C) No.17873\/2006 etc.                 – 79 –<\/span><\/p>\n
      admissions   could  be  granted.    It  was  held  that   private   unaided<\/p>\n
      recognised\/affiliated educational institutions running professional<\/p>\n
      courses were entitled to charge a fee higher than that charged by<\/p>\n
      Government   institutions   for   similar   courses,   but   such   a   fee<\/p>\n
      should not exceed the maximum limit fixed by the State.   It was<\/p>\n
      also   held   that      commercialisation        of   education   was   not<\/p>\n
      permissible,     the   same   would   be   opposed   to   public   policy,   and<\/p>\n
      charging   of   capitation   fee   was   held   to   be   illegal.     The   court<\/p>\n
      upheld   the   power   of   the   Government   to   frame   rules   and<\/p>\n
      regulations   in   matter   of   admission   and   fees   with   regard   to<\/p>\n
      private   aided   recognised\/affiliated   educational   institutions.   The<\/p>\n
      question   as   to   whether   the   setting   up   of   an   educational<\/p>\n
      institution   would   be  a   fundamental   right   under   Article   19(1)(g)<\/p>\n
      was not answered.       It was further held that a citizen who had<\/p>\n
      not completed the age of 14 years would have the right of free<\/p>\n
      education which would not be available to him beyond the age of<\/p>\n
      14   years.     The   private   educational   institutions   were   held   to   be<\/p>\n
      supplementing  the  efforts  of   the State  in  educating  the  people.<\/p>\n
      The   authorities   were   obliged   to   recognise   and\/or   affiliate   such<\/p>\n
W.P.(C) No.17873\/2006 etc.                – 80 –<\/span><\/p>\n
      institutions,     but   could   insist  upon   such  conditions   as  would   be<\/p>\n
      appropriate   to   ensure     not   only     an   education   of   requisite<\/p>\n
      standard   but   also   fairness   and   equal   treatment   in     matters   of<\/p>\n
      admission   of   students.         The   court   then   formulated   a   scheme<\/p>\n
      and   directed   every   authority   granting   recognition   and\/or<\/p>\n
      affiliation     to   impose   that   scheme   upon   institutions   seeking<\/p>\n
      recognition\/affiliation,   even   if   they   were   unaided   institutions.<\/p>\n
      The   scheme   postulated   that     professional   colleges   should   be<\/p>\n
      established   and\/or   administered   only   by   a   Society   under   the<\/p>\n
      Society Registration Act, 1860, or corresponding Act of a State,<\/p>\n
      or by a Public Trust registered under the Trusts Act or under the<\/p>\n
      Wakfs Act and that no individual, firm, company or other body of<\/p>\n
      individuals would  be  permitted to   establish  and\/or   administer  a<\/p>\n
      professional   college;   that   50%   of   seats   in   every   professional<\/p>\n
      college should be filled   by the nominees of the Government or<\/p>\n
      university,     selected   on   the   basis   of   merit     determined   by   a<\/p>\n
      common   entrance   examination,   referred   to   as   free   seats,<\/p>\n
      whereas the remaining 50% of seats (payment seats) should be<\/p>\n
      filled   by   those   candidates   who   pay   the   fee   prescribed   therefor<\/p>\n
W.P.(C) No.17873\/2006 etc.                  – 81 –<\/span><\/p>\n
      and allotment of seats against payment seats should be  done on<\/p>\n
      the basis   of  inter se  merit  determined on  the  same  basis  as  in<\/p>\n
      the case of free seats; that there should be no quota reserved for<\/p>\n
      management or for any family, caste or community, which may<\/p>\n
      have  established   such   a   College;   that   it   should   be   open   to   the<\/p>\n
      professional   colleges   to   provide   for   reservation   of   seats   for<\/p>\n
      constitutionally   permissible   classes   with   the   approval   of   the<\/p>\n
      affiliating university; that the fee chargeable in each professional<\/p>\n
      college   should   be   subject   to   a   ceiling  as   may   be   prescribed   by<\/p>\n
      the appropriate authority or by a competent Court;     that every<\/p>\n
      State   Government   should   constitute   a   Committee   to   fix   the<\/p>\n
      ceiling  on the fees chargeable by a professional college or class<\/p>\n
      of professional colleges, as the case may be.   The committee so<\/p>\n
      constituted   should fix  the fee   once in every three  years or at<\/p>\n
      such longer  intervals  as   it  may think appropriate and     that  it<\/p>\n
      would   be   appropriate   for   the   University   Grants   Commission   to<\/p>\n
      frame regulations under its Act regulating the fees that could be<\/p>\n
      charged by the affiliated colleges operating on a no-grant-in-aid<\/p>\n
      basis.    The   AICTE   ,  the   Indian   Medical   Council   and   the   Central<\/p>\n
W.P.(C) No.17873\/2006 etc.                – 82 –<\/span><\/p>\n
      Government were also given similar advice.   This is the scheme<\/p>\n
      which can be called as a scheme in the era of post Unnikrishnan’s<\/p>\n
      case and which held the field for ten years.\n<\/p>\n<\/p>\n
                   23.     In   T.M.A.Pai   Foundation,   the   scheme   as<\/p>\n
      formulated   in   Unnikrishnan’s   case   was   challenged.     It   was   the<\/p>\n
      case   of   petitioners   therein   that   cost   incurred   on   educating   a<\/p>\n
      student   in   an   unaided   professional   college   was   more   than   the<\/p>\n
      total fee which was  realised  at on the basis of the formula fixed<\/p>\n
      in the scheme.   This had resulted in   revenue shortfalls.   It was<\/p>\n
      further   represented   that   even   though   by   interim   orders   some<\/p>\n
      percentage   of   seats   to   be   alloted   to   NRI   students   against<\/p>\n
      payment   of   higher   amount   was   permitted,   that   even   then<\/p>\n
      sufficient   funds   were   not   available   for   development   of<\/p>\n
      educational institutions.   Another  anomaly  of free seats  bagged<\/p>\n
      by  students   from  affluent  families,  whereas  students   from  poor<\/p>\n
      family   were   required   to   pay,   were   also   highlighted.     The<\/p>\n
      implementation of Unnikrishnan scheme it was urged, has helped<\/p>\n
      the privileged from richer urban  families, even after they ceased<\/p>\n
      to   be   comparatively   less   meritorious   and   the   same   has   also<\/p>\n
W.P.(C) No.17873\/2006 etc.                 – 83 –<\/span><\/p>\n
      resulted in  economic loss for   the educational institutions.   The<\/p>\n
      scheme   framed   under   Unnikrishnan’s   case     with   regard   to<\/p>\n
      affiliation   and   recognition   subject   to  fulfilment  of   conditions<\/p>\n
      imposed by the concerned authorities was also challenged.   The<\/p>\n
      nationalisation   of   education   again   formulated   in   the   scheme<\/p>\n
      under   Unnikrishnan’s   case   was   also   challenged.     It   was   urged<\/p>\n
      that the right of private unaided educational institutions to give<\/p>\n
      admissions and fix  fee  was curtailed by the State Governments<\/p>\n
      legislating   in   conformity   with   the   scheme     was   neither   fair   nor<\/p>\n
      reasonable.     The   institutions  clamoured  for   their   right   in<\/p>\n
      admitting   students   particularly   in   private   unaided   institutions<\/p>\n
      subject to minimum qualifications that may be prescribed and to<\/p>\n
      some   system   of   computing   the   equivalence   between   different<\/p>\n
      kinds   of   qualifications          like   a   common   entrance   test.<\/p>\n
      Surrendering   the   total   process   of   selection   to   the   State   was<\/p>\n
      labelled  as unreasonable.     The Government’s regulations in the<\/p>\n
      private   institutions   were   also   under   challenge.     The   private<\/p>\n
      unaided non-minority educational institutions also  clamoured  for<\/p>\n
      their   right   for   fixation   of   fee,   admission   of   students   and<\/p>\n
W.P.(C) No.17873\/2006 etc.                       – 84 –<\/span><\/p>\n
      non-interference in these matters by the State or other authorities.<\/p>\n
      In  the  context  of   all  pervasive  and all   embracing attack on  the<\/p>\n
      scheme formulated in Unnikrishnan’s case, the Supreme Court in<\/p>\n
      T.M.A.   Pai   Foundation   case   framed   under   five   heads   eleven<\/p>\n
      questions.   The   five   headings   under   which   discussions   on   the<\/p>\n
      eleven questions were classified read as follows:<\/p>\n
                  “1. Is   there   a   fundamental   right   to   set   up<\/p>\n
                      educational   institutions   and   if   so,   under<\/p>\n
                      which provision?\n<\/p><\/blockquote>\n
<\/blockquote>\n
                  2. Does           Unni         Krishnan         case         require\n\n                      reconsideration?\n\n\n<\/pre>\n
                  3.   In   case   of   private   institutions,   can   there   be<\/p>\n
                      government   regulations   and,   if   so,   to   what<\/p>\n
                      extent?\n<\/p><\/blockquote>\n
<\/blockquote>\n
                  4.   In   order   to   determine   the   existence   of   a<\/p>\n
                      religious   or   linguistic   minority   in   relation   to<\/p>\n
                      Article 30, what is to be the unit – the State<\/p>\n
                      or the country as a whole?\n<\/p><\/blockquote>\n
<\/blockquote>\n
                  5. To   what   extent   can   the   rights   of   aided<\/p>\n
                      private minority institutions to administer be<\/p>\n
                      regulated?”.\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
      In   so   far   as   the   eleven   questions   with   answers   that   may   be<\/p>\n
      relevant for determination of controversy in the present case are<\/p>\n
      concerned, the same reads as follows:\n<\/p>\n
\nW.P.(C) No.17873\/2006 etc.              – 85 –<\/span><\/p>\n
                “Q.1.  What   is   the   meaning   and   content   of   the<\/p>\n
          expression ‘minorities’ in Article 30 of the Constitution<\/p>\n
          of India?\n<\/p><\/blockquote>\n
                        A.    Linguistic   and   religious   minorities<\/p>\n
                are covered by the expression minority under<\/p>\n
                Article   30   of   the   Constitution.          Since<\/p>\n
                re-organisation  of   the   States   in   India   has<\/p>\n
                been   on   linguistic   lines,   therefore,   for   the<\/p>\n
                purpose of determining the minority, the unit<\/p>\n
                will be the State and not the whole of India.<\/p>\n
                Thus,   religious   and   linguistic   minorities,   who<\/p>\n
                have been put on a par in Article 30, have to<\/p>\n
                be considered Statewise.\n<\/p><\/blockquote>\n
\n
                 Q.3(b).To   what   extent   can   professional<\/p>\n
           education   be   treated   as   a   matter   coming   under<\/p>\n
           minorities’ rights under Article 30?<\/p>\n<\/blockquote>\n
                        A.    Article   30(1)   gives   religious   and<\/p>\n
                linguistic minorities the right to establish and<\/p>\n
                administer   educational   institutions   of   their<\/p>\n
                choice.  The use of the words ‘of their choice’<\/p>\n
                indicates   that   even   professional   educational<\/p>\n
                institutions would be covered by Article 30.<\/p>\n
                 Q.4.  Whether   the   admission   of   students   to<\/p>\n
           minority   educational   institutions,   whether   aided   or<\/p>\n
W.P.(C) No.17873\/2006 etc.                – 86 –<\/span><\/p>\n
           unaided,   can   be   regulated   by   the   State   Government<\/p>\n
           or   by   the   University   to   which   the   institution   is<\/p>\n
           affiliated?\n<\/p><\/blockquote>\n
                          A.    Admission   of   students   to   unaided<\/p>\n
                 minority   educational   institutions   viz   schools<\/p>\n
                 and   undergraduate   colleges   where  the   scope<\/p>\n
                 for   merit-based   selection   is   practically   nil,<\/p>\n
                 cannot be regulated by the State or university<\/p>\n
                 concerned,   except   for   providing   the<\/p>\n
                 qualifications   and   minimum   conditions   of<\/p>\n
                 eligibility   in   the   interest   of   academic<\/p>\n
                 standards.\n<\/p><\/blockquote>\n
                                The   right   to   admit   students   being<\/p>\n
                 an   essential   facet   of   the   right   to   administer<\/p>\n
                 educational   institution   of   their   choice,   as<\/p>\n
                 contemplated   under   Article   30   of   the<\/p>\n
                 Constitution,   the   State   Government   or   the<\/p>\n
                 University   may   not   be   entitled   to   interfere<\/p>\n
                 with   that   right,   so   long   as   the   admission   to<\/p>\n
                 the   unaided   educational   institutions   is   on   a<\/p>\n
                 transparent basis and the merit is adequately<\/p>\n
                 taken   care   of.     The   right   to   administer,   not<\/p>\n
                 being   absolute,   there   could   be   regulatory<\/p>\n
                 measures   for   ensuring   educational   standards<\/p>\n
                 and   maintaining   excellence   thereof,   and   it   is<\/p>\n
W.P.(C) No.17873\/2006 etc.             – 87 –<\/span><\/p>\n
               more   so   in   the   matter   of   admissions   to<\/p>\n
               professional institutions.\n<\/p><\/blockquote>\n
                            A   minority   institution   does   not<\/p>\n
               cease  to be  so,  the moment  the  grant-in-aid<\/p>\n
               is   received   by   the   institution.     An   aided<\/p>\n
               minority   educational   institution,   therefore,<\/p>\n
               would   be   entitled   to   have   the   right   of<\/p>\n
               admission   of   students   belonging   to   the<\/p>\n
               minority   group   and  at  the   same   time,   would<\/p>\n
               be   required   to   admit   a   reasonable   extent   of<\/p>\n
               non-minority   students,   so   that   the   rights<\/p>\n
               under   Article   30(1)   are   not   substantially<\/p>\n
               impaired and further the citizens’ right under<\/p>\n
               Article 29(2) are not infringed. What would be<\/p>\n
               a   reasonable   extent,   would   vary   from   the<\/p>\n
               types   of   institution,  the  courses  of   education<\/p>\n
               for   which   admission   is   sought   and   other<\/p>\n
               factors   like   educational   needs.     The   State<\/p>\n
               Government   concerned   has   to   notify   the<\/p>\n
               percentage of the non-minority students to be<\/p>\n
               admitted   in   the   light   of   the   above<\/p>\n
               observations.     Observation   of   inter   se   merit<\/p>\n
               amongst the applicants belonging to minority<\/p>\n
               group could be ensured.  In the case of aided<\/p>\n
               professional   institutions,   it   can   also   be<\/p>\n
W.P.(C) No.17873\/2006 etc.              – 88 –<\/span><\/p>\n
                stipulated   that   passing   of   the   common<\/p>\n
                entrance   test   held   by   the   State   agency   is<\/p>\n
                necessary   to   seek   admission.     As   regards<\/p>\n
                non-minority   students   who   are   eligible   to<\/p>\n
                seek   admission   for   the   remaining   seats,<\/p>\n
                admission should normally be on the basis of<\/p>\n
                the  common  entrance  test  held  by  the  State<\/p>\n
                agency   followed   by   counselling   wherever   it<\/p>\n
                exists.\n<\/p><\/blockquote>\n
                 Q.5(a).   Whether   the   minorities’   right   to<\/p>\n
           establish   and   administer   educational   institutions   of<\/p>\n
           their choice will include the procedure and method of<\/p>\n
           admission and selection of students?<\/p>\n<\/blockquote>\n
                       A.    A minority institution may have its<\/p>\n
                own   procedure   and   method   of   admission   as<\/p>\n
                well   as   selection   of   students,   but   such   a<\/p>\n
                procedure   must   be   fair   and   transparent   and<\/p>\n
                selection   of   students   in   professional   and<\/p>\n
                higher   educational   colleges   should   be   on   the<\/p>\n
                basis   of   merit.     The   procedure   adopted   and<\/p>\n
                selection   made   should   not   tantamount   to<\/p>\n
                maladministration.   Even an unaided minority<\/p>\n
                institution   ought   not   to   ignore   merit   of   the<\/p>\n
                students   for   admission,   while   exercising   its<\/p>\n
                right   to   admit   students   to   the   colleges<\/p>\n
W.P.(C) No.17873\/2006 etc.              – 89 –<\/span><\/p>\n
                aforesaid, as in that event, the institution will<\/p>\n
                fail to achieve excellence.\n<\/p><\/blockquote>\n
\n
                Q5(b).   When   the   minority   institutions’   right   of<\/p>\n
           admission of students and to lay down procedure and<\/p>\n
           method of admission, if any would be affected in any<\/p>\n
           way by the receipt of State aid?\n<\/p><\/blockquote>\n
                      A.     While   giving   aid   to   professional<\/p>\n
                institutions,   it   would   be   permissible   for   the<\/p>\n
                authority  giving aid  to  prescribe bye  rules  or<\/p>\n
                regulations,   the   conditions   on   the   basis   of<\/p>\n
                which   admission   will   be   granted   to   different<\/p>\n
                aided colleges by virtue of merit, coupled with<\/p>\n
                the   reservation   policy   of   the   State   qua<\/p>\n
                non-minority   students.   The   merit   may   be<\/p>\n
                determined   either   through   a   common<\/p>\n
                entrance  test   conducted  by the  University  or<\/p>\n
                the   Government   concerned   followed   by<\/p>\n
                counselling,   or   on   the   basis   of   an   entrance<\/p>\n
                test   conducted   by   individual   institutions     –<\/p>\n
                the method to be followed is for the university<\/p>\n
                or  the  Government  to   decide.   The  authority<\/p>\n
                may   also   devise   other   means   to   ensure   that<\/p>\n
                admission is granted to an aided professional<\/p>\n
                institution on the basis of merit.   In the case<\/p>\n
W.P.(C) No.17873\/2006 etc.                – 90 –<\/span><\/p>\n
                 of   such  institutions,   it   will   be   permissible   for<\/p>\n
                 the   Government   or   the   university   to   provide<\/p>\n
                 that   consideration   should   be   shown   to   the<\/p>\n
                 weaker sections of the Society.\n<\/p><\/blockquote>\n
\n
                 Q.8.  Whether the ratio   laid down by this Court<\/p>\n
           in   St.Stephen’s   case   (St.Stephen’s   College   v.<\/p>\n
           University of Delhi)<\/a> is correct?  If no, what order?<\/p>\n<\/blockquote>\n
                        A.   The   basic   ratio   laid   down   by   this<\/p>\n
                 Court in St.Stephen’s College case is correct,<\/p>\n
                 as   indicated   in   this   judgment.     However,   a<\/p>\n
                 rigid percentage cannot be stipulated.   It has<\/p>\n
                 to   be   left   to   the   authorities   to   prescribe   a<\/p>\n
                 reasonable   percentage   having   regard   to   the<\/p>\n
                 type of institution, population and educational<\/p>\n
                 needs of minorities.<\/p><\/blockquote>\n
\n<\/blockquote>\n
                 Q.9. Whether  the   decision   of   this   Court   in   Unni<\/p>\n
           Krishnan   J.P.  v.   State   of   A.P.   (except   where  it   holds<\/p>\n
           that primary education is a fundamental right) and the<\/p>\n
           scheme   framed   thereunder   requires   reconsideration\/<\/p>\n
           modification and if yes, what?\n<\/p><\/blockquote>\n
                        A.   The   scheme  framed   by   this   Court   in<\/p>\n
                 Unni   Krishnan   case   and   the   direction   to<\/p>\n
                 impose the same, except where it holds that<\/p>\n
W.P.(C) No.17873\/2006 etc.             – 91 –<\/span><\/p>\n
                primary   education   is   a   fundamental   right,   is<\/p>\n
                unconstitutional.   However, the principle that<\/p>\n
                there   should   not   be   capitation   fee   or<\/p>\n
                profiteering is correct.  Reasonable surplus to<\/p>\n
                meet cost of  expansion  and augmentation  of<\/p>\n
                facilities   does   not,   however,   amount   to<\/p>\n
                profiteering.<\/p><\/blockquote>\n
\n<\/blockquote>\n
                 Q.10. Whether the non-minorities have the right<\/p>\n
           to   establish   and   administer   educational   institution<\/p>\n
           under Article 21 and 29(1) read with Articles 14 and<\/p>\n
           15(1), in the same manner and to the same extent as<\/p>\n
           minority institutions?\n<\/p><\/blockquote>\n
                                          and<\/p>\n
                 Q.11.  What   is   the   meaning   of   the   expressions<\/p>\n
           ‘education’   and   ‘educational   institutions’   in   various<\/p>\n
           provisions   of   the   Constitution?     Is   the   right   to<\/p>\n
           establish   and   administer   educational   institutions<\/p>\n
           guaranteed under the Constitution?<\/p>\n<\/blockquote>\n
                      A.     The   expression   ‘education’   in   the<\/p>\n
                articles   of   the   Constitution   means   and<\/p>\n
                includes   education   at   all   levels   from   the<\/p>\n
                primary   school   level   up   to   the   postgraduate<\/p>\n
                level.   It include professional education.   The<\/p>\n
                expression   ‘educational   institutions’   means<\/p>\n
W.P.(C) No.17873\/2006 etc.                – 92 –<\/span><\/p>\n
                  institutions   that   impart   education,   where<\/p>\n
                  ‘education’ is understood hereinabove.<\/p><\/blockquote>\n
\n\n                                The   right   to   establish   and\n\n                  administer          educational         institutions         is\n\n                  guaranteed   under   the   Constitution   to   all\n\n<\/pre>\n
                  citizens   under   Articles   19(1)(g)   and   26,   and<\/p>\n
                  to minorities specifically under Article 30.<\/p>\n<\/blockquote>\n
                                All citizens have a right to establish<\/p>\n
                  and  administer   educational   institutions  under<\/p>\n
                  Article   19(1)(g)   and   26,   but   this   right   is<\/p>\n
                  subject to the provisions of Article 19(6) and<\/p>\n
                  26(a).     However,   minority   institutions   will<\/p>\n
                  have   a   right   to   admit   students   belonging   to<\/p>\n
                  the   minority   group,   in   the   manner   as<\/p>\n
                  discussed in this judgment”.<\/p><\/blockquote>\n
                  24.    Even though one of the ever largest Bench of 11<\/p>\n
      Honourable   Judges   was   constituted   which   as   observed   in<\/p>\n
      P.A.Inamdar’s   case   was   expected   to   draw   a   final   curtain,<\/p>\n
      subsequent events tell a different story.   Some of the questions<\/p>\n
      it  was  observed   had  remained   unsettled  whereas  some  aspects<\/p>\n
      required  clarification  and  it   is   this  exercise which  was  taken  by<\/p>\n
      the Bench consisting of 7 Honourable Judges in Inamdar’s case.<\/p>\n
      After the decision in Pai Foundation, however, another judgment<\/p>\n
W.P.(C) No.17873\/2006 etc.                  – 93 –<\/span><\/p>\n
      in Islamic Academy of Education was delivered by the Supreme<\/p>\n
      Court   consisting   of   5   Honourable   Judges,   which   was   the   first<\/p>\n
      attempt   to   clarify   the   judgment   of   Supreme   Court   in   Pai<\/p>\n
      Foundation   case.     The   Pai   Foundation   judgment   as   mentioned<\/p>\n
      above   gave   rise   to   further   litigations,   both   Government   and<\/p>\n
      Managements   of   Institutions  endeavouring  to   interpret   the   said<\/p>\n
      judgment in their favour.     The Government too in the wake   of<\/p>\n
      law   laid   down   in   T.M.A.Pai     enacted   laws   as   per   the   law<\/p>\n
      understood   by   it.     That   too   was   also   an   added   reason   for<\/p>\n
      litigation   in   post   T.M.A.Pai   era.   When   interim   orders   passed   by<\/p>\n
      various  High Courts were  challenged,  counsel  appearing  for  the<\/p>\n
      parties  agreed that  there were certain anomalies and doubts in<\/p>\n
      T.M.A.Pai’s decision, which require clarification.  This clarification<\/p>\n
      was   sought   primarily   by   unaided   professional   institutions,   both<\/p>\n
      minority   and   majority.     In   Islamic   Academy   of   Education   case,<\/p>\n
      thus on the issues that required clarification, four questions were<\/p>\n
      framed, which read as follows:\n<\/p>\n<\/p>\n
                   “1. Whether   the   educational   institutions   are<\/p>\n
                       entitled to fix their own fee structure?<\/p>\n<\/blockquote>\n
                   2. Whether            minority          and         non-minority<\/p>\n
W.P.(C) No.17873\/2006 etc.                  – 94 –<\/span><\/p>\n
                        educational   institutions   stand   on   the   same<\/p>\n
                        footing and have the same rights?<\/p>\n<\/blockquote>\n
                    3. Whether private unaided professional colleges<\/p>\n
                        are entitled to fill in their seats, to the extent<\/p>\n
                        of 100%, and if not, to what extent? and<\/p>\n<\/blockquote>\n
                    4. Whether private unaided professional colleges<\/p>\n
                        are   entitled   to   admit   students   by   evolving<\/p>\n
                        their own method of admission?”.<\/p>\n<\/blockquote>\n
      The   Constitution   Bench     in   Inamdar’s   case     attempted   to<\/p>\n
      formulate the gist of answers to the four questions as given by<\/p>\n
      the Constitution Bench  in Islamic Academy of Education and as<\/p>\n
      understood by it.  On the first question as mentioned above, the<\/p>\n
      Bench in Inamdar case observed that each minority institution is<\/p>\n
      entitled   to   have   its   own   fee   structure,   subject   to   the   condition<\/p>\n
      that there can be no profiteering and, capitation fee   cannot be<\/p>\n
      charged.  A provision for reasonable surplus should be made. The<\/p>\n
      relevant   factors   that   should   be   taken   into   consideration   for   fee<\/p>\n
      structure   would   be   infrastructure   and   facilities   available,   the<\/p>\n
      investments   made,   salaries   paid  to   the   teachers   and   staff,   and<\/p>\n
      future plans for expansion and betterment of the institution.  The<\/p>\n
      answer   to   question   No.2   was   summed   up   by   observing   that<\/p>\n
      minority institutions stand on a better footing than non-minority<\/p>\n
W.P.(C) No.17873\/2006 etc.                 – 95 –<\/span><\/p>\n
      institutions.     Minority   educational   institutions   have   a   guarantee<\/p>\n
      or assurance to establish and administer educational institutions<\/p>\n
      of  their   choice.     State  legislation,  primary   or   delegated,  cannot<\/p>\n
      favour non-minority institutions over minority institutions.     The<\/p>\n
      difference was referable to  Article 30 of the Constitution.     The<\/p>\n
      questions   3   and   4   reproduced   above   were   taken   together   for<\/p>\n
      answer  and it  was  observed  that  in professional  institutions, as<\/p>\n
      they   are   unaided,   there   will   be   full   autonomy   in   their<\/p>\n
      administration, but the principle of merit cannot be sacrificed, as<\/p>\n
      excellence   in   professions   is   in   the   national   interest,   and   that<\/p>\n
      without interfering with the autonomy of unaided institutions, the<\/p>\n
      object of merit-based admissions can be secured by insisting on<\/p>\n
      it   as   a   condition   to   the   grant   of   recognition   as   also   that<\/p>\n
      management   can   have   quota   for   admitting   students   at   its<\/p>\n
      discretion   but   subject   to   satisfying   the   test   of   merit   based<\/p>\n
      admissions.     The   management   could   pick   up   students   of   their<\/p>\n
      choice but the same had to be out of those who have passed the<\/p>\n
      common  entrance  test  conducted by a    centralised  mechanism.<\/p>\n
      It was further observed that State can provide for reservation in<\/p>\n
W.P.(C) No.17873\/2006 etc.                   – 96 –<\/span><\/p>\n
      favour of financially or socially backward sections of the society<\/p>\n
      and   that   prescription   of   percentage   of   seats,   i.e.   allotment   of<\/p>\n
      different quotas has to be done by the State in accordance with<\/p>\n
      the local needs and interests\/needs of that minority community<\/p>\n
      in the State.     The plea that each minority unaided educational<\/p>\n
      institution   can   hold   its   own   admission   test   was   expressly<\/p>\n
      overruled.\n<\/p>\n<\/p>\n
                    25.  In the context of backdrop of controversies solved<\/p>\n
      or unsolved, obscure or otherwise, it was observed in Inamdar’s<\/p>\n
      case  that the task of the Bench would  be not to pronounce their<\/p>\n
      own   independent   opinions   which   were   also   considered   in   Pai<\/p>\n
      Foundation as even if the Bench was to disagree with the findings<\/p>\n
      recorded therein, it could not be done as the pronouncement of<\/p>\n
      11   Judges   was   binding   upon   them.     The   real   task   before   the<\/p>\n
      seven Member Bench was to cull out   the  ratio decidendi of Pai<\/p>\n
      Foundation   and   to   examine   if   the   explanation   or     clarification<\/p>\n
      given   in   Islamic   Academy   runs   counter   to     the   decision   in   Pai<\/p>\n
      Foundation,       and  if   so,   to   what   extent.     It   was   also   observed<\/p>\n
      that   if   the   Bench   was   to   find   anything   said   or   held   in   Islamic<\/p>\n
W.P.(C) No.17873\/2006 etc.                 – 97 –<\/span><\/p>\n
      Academy  which may be in conflict  with Pai Foundation, it will be<\/p>\n
      said   as   being   a   departure   from   the   law   as   laid   down   by   Pai<\/p>\n
      Foundation     and   on   the   principle   of   binding   efficacy   of<\/p>\n
      precedents,   overrule to that   extent the opinion of Constitution<\/p>\n
      Bench in Islamic Academy case.\n<\/p>\n<\/p>\n
                   26.     The   direction   made   in   Islamic   Academy   of<\/p>\n
      Education case for appointment of Committee was under severe<\/p>\n
      challenge   in   Inamdar’s   case   in   the   context   of   there   being   no<\/p>\n
      absolute   clarity   in   law   laid   down   in   T.M.A.Pai   and   further<\/p>\n
      clarifications as has been made in Islamic Academy case, which<\/p>\n
      too were under challenge, in the reference constituting a Bench<\/p>\n
      higher   than   that   of   Islamic   Academy   of   Education   case,   the<\/p>\n
      issues which arose for the decision were as follows:<\/p>\n
                   “(i). The         fixation         of         quota         of<\/p>\n
                         admission\/students   in   respect   of   unaided<\/p>\n
                         professional institutions.\n<\/p>\n<\/p>\n
                   (ii). The   holding   of   examinations   for<\/p>\n
                         admissions   to  such  colleges,  that   is,  who<\/p>\n
                         will hold the entrance tests; and<\/p>\n
                   (iii) the fee structure”.\n<\/p>\n
\n      Spelled out from the two orders of reference, the Supreme Court<\/p>\n
W.P.(C) No.17873\/2006 etc.                 – 98 –<\/span><\/p>\n
      in   Inamdar’s   case   confined   its   discussion   to   the   following   four<\/p>\n
      questions.\n<\/p>\n<\/p>\n
              “(1)To   what   extent   can   the   State   regulate<\/p>\n
                    admissions   made   by   unaided   (minority   or<\/p>\n
                    non-minority)   educational   institutions?     Can<\/p>\n
                    the   State   enforce   its   policy   of   reservation<\/p>\n
                    and\/or   appropriate   to   itself   any   quota   in<\/p>\n
                    admissions to such institutions?<\/p>\n
              (2) Whether   unaided   (minority   and   non-minority)<\/p>\n
                    educational institutions are free to devise their<\/p>\n
                    own   admission   procedure   or   whether   the<\/p>\n
                    direction   made   in   Islamic   Academy   for<\/p>\n
                    compulsorily   holding   an   entrance   test   by   the<\/p>\n
                    State   or   association   of   institutions   and   to<\/p>\n
                    choose   therefrom   the   students   entitled   to<\/p>\n
                    admission in such institutions, can be sustained<\/p>\n
                    in light of the law laid down in Pai Foundation?<\/p>\n
              (3)   Whether   Islamic   Academy   could   have   issued<\/p>\n
                    guidelines    in the matter of regulating the fee<\/p>\n
                    payable   by   students   to   the   educational<\/p>\n
                    institutions?\n<\/p><\/blockquote>\n
\n              (4) Can   the   admission   procedure   and   free<\/p>\n
                    structure   be   regulated   or   taken   over   by   the<\/p>\n
                    Committees   ordered   to   be   constituted   by<\/p>\n
                    Islamic Academy?”.\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
      The   four   questions   as   referred   to   above   were   referable   to<\/p>\n
      Headings 3 and 5 and to questions 3(b), 4, 5(a), 5(b), 5(c) and 9<\/p>\n
      as  framed   in  Pai   Foundation  case.    It   would   be  thus  clear   that<\/p>\n
W.P.(C) No.17873\/2006 etc.                  – 99 –<\/span><\/p>\n
      clarification   was   to   be   done   with   regard   to   Headings   and<\/p>\n
      questions   as   mentioned   above   and   that   too   in   the   context   of<\/p>\n
      clarification   said   to   have   been   made   in   Islamic   Academy   of<\/p>\n
      Education   case.     It   was   urged   by   the   counsel   representing   the<\/p>\n
      Managements   that   directions   for   setting   up   permanent<\/p>\n
      committee  for   regulating   admissions   and   fixing   fee   structure  in<\/p>\n
      unaided minority and non-minority institutions issued in the case<\/p>\n
      of Islamic Academy were contrary to the ratio of judgment in Pai<\/p>\n
      Foundation.  The said direction clearly runs counter to all earlier<\/p>\n
      Constitution   Bench   decisions   in   St.Stephen’s,   St.Xavier’s   and<\/p>\n
      Kerala Education Bill case.   A pertinent reference to para 68 of<\/p>\n
      the decision in Pai Foundation was made and it was urged that in<\/p>\n
      Islamic  Academy   case   the   said   para   has   been  wrongly   read  as<\/p>\n
      ratio   of   the   judgment   by   the   Bench     of   five   Judges   in   Islamic<\/p>\n
      Academy.     The   directions   for   setting   up   of   permanent<\/p>\n
      Committees, for fixing quota and fee structure seriously impinge<\/p>\n
      on   the   Constitutional   guarantee   of   autonomy   to   minority<\/p>\n
      institutions   under   Article   30   and   to   unaided   non-minority<\/p>\n
      institutions under Article 19(1)(g) was further the  contention of<\/p>\n
W.P.(C) No.17873\/2006 etc.                – 100 –<\/span><\/p>\n
      the   counsel   representing   the   Managements.     Yet   another   point<\/p>\n
      pertinently   argued     was   that   taking   over   the   right   to   regulate<\/p>\n
      admissions   and   fee   structure   of   unaided   institutions   was   not   a<\/p>\n
      reasonable   restriction   within   the   meaning   of   regulations   under<\/p>\n
      Article 19(6) of the Constitution.     It was also urged that State<\/p>\n
      could   prevent   maladministration,   but   while   doing   so   the   State<\/p>\n
      could   not   take   over   the   administration   of   the   institutions<\/p>\n
      themselves   into   their   own   hands   on   the   ground   that   there   is<\/p>\n
      likelihood of such maladministration,  as likelihood of an abuse of<\/p>\n
      a  constitutional   right  cannot  ever furnish  justification  for   denial<\/p>\n
      of   that   right.     An   apprehension   that   a   citizen   may   abuse   his<\/p>\n
      liberty   does   not   provide   justification   for   imposing   restraints   on<\/p>\n
      the liberty of citizens.\n<\/p>\n<\/p>\n
                   27.     Learned   counsel   appearing   for   the   parties   as<\/p>\n
      mentioned above have based their arguments almost exclusively<\/p>\n
      on   the   observations   made   in   the   three   decisions   mentioned<\/p>\n
      above, but we may mention that reading of a particular para or a<\/p>\n
      stray sentence without reference to the context in which it came<\/p>\n
      about would not lead to a correct decision.  The  Supreme Court<\/p>\n
W.P.(C) No.17873\/2006 etc.                   – 101 –<\/span><\/p>\n
      in Inamdar’s   case also  observed that, “it  is dangerous  to  take<\/p>\n
      one or two observations out of a long judgment and to treat the<\/p>\n
      same as if they give the ratio decidendi of the said case”.<\/p>\n
                    28.       Having   taken   into   consideration   the   reference<\/p>\n
      and   context   in   which   the   three   important   decisions   mentioned<\/p>\n
      above   came   to   be   rendered   by   the   Supreme   Court,   the   points<\/p>\n
      involved herein  and the clarification of points made in T.M.A.Pai<\/p>\n
      case in particular,  time is now ripe to examine the constitutional<\/p>\n
      validity   of   the   provisions   of   the   Act   of   2006   as   also   the   Rules,<\/p>\n
      under   challenge.     The   right   to   establish   and\/or   administer   an<\/p>\n
      educational   institution   would   broadly   comprises   the   right   to<\/p>\n
      admit   students,   to   set   up   a   reasonable   fee   structure,   to<\/p>\n
      constitute a governing body, to take action if there is dereliction<\/p>\n
      of   duty   on   the   part   of   any   employee   and   the   State   control   to<\/p>\n
      provide   for   quotas.     The   last   part   of   the   administration   as<\/p>\n
      mentioned   above   would   primarily   apply   in   the   case   of   unaided<\/p>\n
      institutions, minority or non-minority.  Whereas there is indeed a<\/p>\n
      discussion and law laid down with regard to all the rights covered<\/p>\n
      under  establishing  and   administering  an   educational   institution,<\/p>\n
W.P.(C) No.17873\/2006 etc.                  – 102 –<\/span><\/p>\n
      there may not be much discussion with regard to the  indicia  for<\/p>\n
      treating an educational institution as a minority institution.  This<\/p>\n
      aspect shall have to be considered  for the first time in this case.<\/p>\n
      Broadly speaking, the controversy in the present petition can be<\/p>\n
      on   the   rights   of   managements   pertaining   to   autonomy   in   the<\/p>\n
      matter   of   admission   of   students,   the   extent   of   regulations   to<\/p>\n
      monitor   admissions,   autonomy   in   the   matter   of   fixation   of   fee<\/p>\n
      and the extent of regulations by which it can be controlled, the<\/p>\n
      autonomy   and   freeship,     autonomy   and   quotas,   and   autonomy<\/p>\n
      and   committees.     In   addition   to   these   rights   to   administer   the<\/p>\n
      educational   institutions,   the   other   question   is     with   regard   to<\/p>\n
      conditions   placed   on   the   minorities   to   exercise   their   right   as   a<\/p>\n
      minority.     We   will   first   deal   with   autonomy   in   admission,<\/p>\n
      permissibility of regulations to control admissions and the extent<\/p>\n
      thereof.\n<\/p>\n<\/p>\n
                   Admission  procedure and State control:\n<\/p>\n<\/p>\n
                   29.   The provisions relating to admission in the Act of<\/p>\n
      2006 would require to be noticed first in that connection.  As per<\/p>\n
      Section 2(a),  the Admission Supervisory Committee is defined to<\/p>\n
W.P.(C) No.17873\/2006 etc.                 – 103 –<\/span><\/p>\n
      mean the Committee constituted under Section 4 for regulating<\/p>\n
      admission in the unaided professional colleges or institutions.  By<\/p>\n
      virtue of sub-section (6) of Section 4 the Admission Supervisory<\/p>\n
      Committee   shall   supervise   and   guide   the   entire   process   of<\/p>\n
      admission   of   students   to   the   unaided   professional   colleges   or<\/p>\n
      institutions   with   a   view   to   ensure   that   the   process   is   fair,<\/p>\n
      transparent,   merit-based   and   non-exploitative.   The   Admission<\/p>\n
      Supervisory   Committee   may   hear   complaints   with   regard   to<\/p>\n
      admission     and   shall   make   appropriate   recommendation   to   the<\/p>\n
      Government for imposing a fine up to rupees ten lakhs   if there<\/p>\n
      is violation of the provisions of the Act, as per sub-section (7) of<\/p>\n
      Section   4.     The   Admission   Supervisory   Committee   can   also<\/p>\n
      recommend to the University or statutory body for withdrawal of<\/p>\n
      the   affiliation   or   recognition   if   unaided   professional   colleges   or<\/p>\n
      institutions   may   violate   any   of   the   provisions   of   the   Act.<\/p>\n
      Common   Entrance   Test   means   the   entrance   test   conducted   for<\/p>\n
      determination of merit of the candidates followed by centralised<\/p>\n
      counselling   for   the   purpose   of   merit   based   admission   to<\/p>\n
      professional   colleges   or   institutions   through   a   single   window<\/p>\n
W.P.(C) No.17873\/2006 etc.                – 104 –<\/span><\/p>\n
      procedure by the State Commissioner for Entrance Examinations.<\/p>\n
      Single Window System as per Section 2(t) means the centralized<\/p>\n
      system   for   admission   administered   by   the   State   Commissioner<\/p>\n
      for Entrance Examinations to professional courses in both aided<\/p>\n
      and unaided, minority and non-minority colleges or institutions.<\/p>\n
      The method of admission in professional colleges or institutions<\/p>\n
      as   prescribed   by   Section   3   is   to   be   made   through   Common<\/p>\n
      Entrance   Test   conducted   by   the   State   followed   by   centralised<\/p>\n
      counselling through a single window system in the order of merit<\/p>\n
      by   the   State   Commissioner   for   Entrance   Examinations   in<\/p>\n
      accordance   with  such procedure  which  may be specified  by the<\/p>\n
      Government   from   time   to   time.     The   procedure   shall   be,   as<\/p>\n
      mentioned   above,   notwithstanding   anything   contained   in   any<\/p>\n
      other law for the time being in force or in any judgment, decree<\/p>\n
      or   order   of   any   Court   or   any   other   authority.       The   Common<\/p>\n
      Entrance   Test   is   the   test   conducted   only   by   the   State<\/p>\n
      Commissioner   for   Entrance   Examination     through   the   single<\/p>\n
      window   procedure   and   as   mentioned   above,   Single   Window<\/p>\n
      System means centralised system for admission administered by<\/p>\n
W.P.(C) No.17873\/2006 etc.                 – 105 –<\/span><\/p>\n
      the   State   Commissioner   for   Professional   Courses   in   both   aided<\/p>\n
      and unaided, minority and non-minority colleges or institutions.<\/p>\n
      It is absolutely apparent and so is the case of the State as well<\/p>\n
      that the admission to all professional institutions, be it, aided or<\/p>\n
      unaided,   minority   or   non-minority,   would   be   governed   by   the<\/p>\n
      common   entrance   test   to   be   held   by   the   State.     Is   this<\/p>\n
      permissible   in   the   context   of   fundamental   rights   of   the<\/p>\n
      institutions   to   administer   the   educational   institutions   under<\/p>\n
      Article 19(1)(g) as recognised and so declared in T.M.A.Pai case<\/p>\n
      is   the   question.        The   method   of   admission   as   provided   in<\/p>\n
      Section   3,     surely   and   admittedly,       takes   away   the   right   of<\/p>\n
      admission by the institutions.   It is the procedure prescribed in<\/p>\n
      Section   3   which   is   to   be   followed   notwithstanding   anything<\/p>\n
      contained in any other law for the time being in force or in any<\/p>\n
      judgment, decree or order of any Court or any other authority.<\/p>\n
      By making use of the non-obstante clause in Section 3, the State<\/p>\n
      would     urge   that   even   though   the   minority   or   non-minority<\/p>\n
      institutions   may   have   a   right   to   admit   students   by   a   test<\/p>\n
      conducted   by   them,   and   such   be   the   law   as   laid   down   by   the<\/p>\n
W.P.(C) No.17873\/2006 etc.               – 106 –<\/span><\/p>\n
      decisions of the Supreme Court, the State could completely take<\/p>\n
      over   admission   on   the   basis   of   non-obstante   clause.   However,<\/p>\n
      Mr.Vaidyanathan   would   not   go  to   that   extent  and   would   rather<\/p>\n
      urge that the procedure prescribed in Section 3, even of taking<\/p>\n
      over the admission completely is justified by the decisions of the<\/p>\n
      Supreme Court and in particular, Inamdar’s case.  The right with<\/p>\n
      the   State   will   be   more   pronounced   if   the   test   held   by   the<\/p>\n
      consortium   of   private   self   financing   institutions   lacks   merit,<\/p>\n
      transparency and fairness. The right of the institutions would be<\/p>\n
      forfeited   in   that   case   even   though   the   same   is   available<\/p>\n
      otherwise   under   Article   19(1)(g)   and   Article   30(1)   of   the<\/p>\n
      Constitution.\n<\/p>\n<\/p>\n
                   30.   Even though the State has taken the stand that,<\/p>\n
      entire process of admission has been taken over by the State as<\/p>\n
      per   the   law   laid   down   in   T.M.A.Pai,   Islamic   Academy   and<\/p>\n
      Inamdar,   and   that   it   would   not   press   into   service   the<\/p>\n
      non-obstante clause in  Section 3, we may mention that the law<\/p>\n
      declared   by   the   Supreme   Court   cannot   be   nullified   by   a<\/p>\n
      non-obstante   clause   as   found   mentioned   in   the   beginning   of<\/p>\n
W.P.(C) No.17873\/2006 etc.               – 107 –<\/span><\/p>\n
      Section 3.   In People’s Union for Civil Liberties v. Union of<\/p>\n
      India   and<\/a>   another,   (2003)   2   SCC   399,     culled   out   from   its<\/p>\n
      earlier decision in  Cauvery Water Disputes Tribunal, In re, 1993<\/p>\n
      Supp   (1)   SCC   96,  Municipal   Corporation   of   the   City   of<\/p>\n
      Ahmedabad  v. Sew Shrock Spinning and Weaving Company Ltd.<\/p>\n
      (1970)   2   SCC   280     and  Mahal   Chand   Sethia  v.  State   of   W.B.<\/p>\n
      1969 UJ (SC) 616, it was held thus:\n<\/p>\n<\/p>\n
                         “…..the Legislature can change the basis<\/p>\n
                  on which a decision is rendered   by this Court<\/p>\n
                  and thus change the law in general.  However,<\/p>\n
                  the   power   can   be   exercised   subject   to<\/p>\n
                  constitutional provision, particularly, legislative<\/p>\n
                  competence and if it is violative of fundamental<\/p>\n
                  rights enshrined in Part III of the Constitution,<\/p>\n
                  such   law   would   be   void   as   provided   under<\/p>\n
                  Article 13  of  the Constitution.    The legislature<\/p>\n
                  also  cannot  declare  any  decision  of  a  court  of<\/p>\n
                  law to be void or of no effect.”\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
      The   fundamental   right   guaranteed  to   an   institution   to   carry  on<\/p>\n
      occupation   of   running   an   educational   institution   under   Article<\/p>\n
      19(1)(g) is not in dispute.   This was so specifically held by the<\/p>\n
      Supreme   Court   in   T.M.A.Pai’s   case.     The   minority   unaided<\/p>\n
      institutions too have fundamental right under Article 30(1) of the<\/p>\n
W.P.(C) No.17873\/2006 etc.                – 108 –<\/span><\/p>\n
      Constitution to run educational institutions is also not in dispute.<\/p>\n
      The discordant  view pertains  only to right or jurisdiction of the<\/p>\n
      State   or   authorities   to   completely   take   over   admission   of<\/p>\n
      students; whereas counsel for the petitioners would vehemently<\/p>\n
      contend   that   the   right   granted   to   the   minority   or   non-minority<\/p>\n
      to  run  the institution  under   Articles  19(1)(g)  and 30(1)  of  the<\/p>\n
      Constitution,   can   at   the   most   be   regulated   and  the   regulations<\/p>\n
      can also be only with regard to the triple test of fair, transparent<\/p>\n
      and   non-exploitative   method   or   procedure   of   admission,<\/p>\n
      Mr.Vaidyanathan learned Senior Counsel appearing for the State<\/p>\n
      with   equal   vehemence   would  contend   that   such  a   right   can   be<\/p>\n
      completely   taken   over   by   the   State   by   framing   regulations,<\/p>\n
      particularly   when   the   institutions   may   indulge   in<\/p>\n
      maladministration, thus crucifying merit.\n<\/p>\n<\/p>\n
                   31. The Unnikrishnan’s case upheld the power of the<\/p>\n
      Government   to   frame   rules   and   regulations   in   the   matter   of<\/p>\n
      admission   with   regard   to   private   aided   recognised\/affiliated<\/p>\n
      educational   institutions.     In   the   scheme   so   formulated,   it   was<\/p>\n
      permissible for every authority granting recognition or affiliation<\/p>\n
W.P.(C) No.17873\/2006 etc.                 – 109 –<\/span><\/p>\n
      to   impose   the   scheme   upon   institutions   seeking<\/p>\n
      recognition\/affiliation, even if they were unaided institutions and<\/p>\n
      50% of seats in every professional college should be filled by the<\/p>\n
      nominees of the Government or university, selected on the basis<\/p>\n
      of   merit   determined   by   a   common   entrance   examination.       In<\/p>\n
      T.M.A. Pai’s case, the scheme as formulated in Unnikrishnan was<\/p>\n
      under severe challenge.  The scheme with regard to affiliation or<\/p>\n
      recognition   subject   to  fulfilment  of   conditions   imposed   by   the<\/p>\n
      concerned authorities was also under challenge.   The institutions<\/p>\n
      had claimed right for admitting students   particularly in private<\/p>\n
      unaided institutions subject to minimum qualification prescribed.<\/p>\n
      Surrendering of total process of selection to the State was styled<\/p>\n
      as unreasonable.   Out of five headings relating to 11 questions,<\/p>\n
      headings 2, 3 and 5 and out of the eleven questions, questions<\/p>\n
      4, 5(a), 5(b) and 9    were related to autonomy in the matter of<\/p>\n
      admission   and   the   extent   of   law   by  which   it   can   be   regulated.<\/p>\n
      Question   No.4   relating   to   admission   alone   that   pertains   to<\/p>\n
      minority educational institutions, whether aided or unaided, was<\/p>\n
      answered by observing that in so far as admission of students to<\/p>\n
W.P.(C) No.17873\/2006 etc.                 – 110 –<\/span><\/p>\n
      unaided   minority   educational   institutions   viz   schools   and<\/p>\n
      undergraduate colleges are concerned, the scope for merit-based<\/p>\n
      selection   is   practically   nil.     The   admission   in   such   institutions<\/p>\n
      cannot be regulated except for   providing the qualifications and<\/p>\n
      minimum   conditions   of   eligibility   in   the   interest   of   academic<\/p>\n
      standards.       The   right   of   minority   educational   institutions   to<\/p>\n
      admit   students   is   an   essential   facet   of   the   right   to   administer<\/p>\n
      educational   institution   of   their   choice,   as   contemplated   under<\/p>\n
      Article 30   of   the  Constitution.    It   was  specifically  held  that  the<\/p>\n
      State   Government   or   the   University   may   not   be   entitled   to<\/p>\n
      interfere with that right, so long as the admission to the unaided<\/p>\n
      educational institutions was on a transparent basis and the merit<\/p>\n
      was  adequately   taken   care   of.     Thus   there   could   be  regulatory<\/p>\n
      measures   for   ensuring   educational   standards   and   maintaining<\/p>\n
      excellence   thereof,   which   will   be   more   so   with   regard   to<\/p>\n
      admissions to professional institutions. The  minority institutions<\/p>\n
      do not cease to be so, the moment the grant-in-aid is received<\/p>\n
      by the institution.   It was held to be having the same right as an<\/p>\n
      unaided  minority   institution   with   the   exception   that     it   may   be<\/p>\n
W.P.(C) No.17873\/2006 etc.                  – 111 –<\/span><\/p>\n
      required to admit a reasonable extent of non-minority students.<\/p>\n
      The reasonable extent was to vary from the types of institution,<\/p>\n
      the   courses   of   education   for   which   admission   is   sought   and<\/p>\n
      various other factors like educational needs, etc.  It is only in the<\/p>\n
      case   of   aided   professional   institutions   that   stipulations   of<\/p>\n
      passing of the common entrance test held  by the State agency<\/p>\n
      could be insisted upon.    Under Question 5 (a) pertaining to the<\/p>\n
      minorities’   right   to   establish   and   administer   educational<\/p>\n
      institutions   of   their   choice     to   include   in   the   said   right,   the<\/p>\n
      procedure and method of admission and selection of students, it<\/p>\n
      was  held   that     minority   institution   can   have   its   own   procedure<\/p>\n
      and   method   of   admission   as   well   as   selection   of   students,   but<\/p>\n
      such  procedure should  be fair and transparent and selection of<\/p>\n
      students   in   professional   and   higher   educational   colleges   should<\/p>\n
      be on the basis of merit.   The procedure should not tantamount<\/p>\n
      to   maladministration.     Even   an   unaided   minority   institution<\/p>\n
      should   not     ignore   merit   of   the   students   for   admission,   while<\/p>\n
      exercising   its   right   to   admit   students   to   the   colleges.    Under<\/p>\n
      Question No.5(b) pertaining to the right of minority institutions<\/p>\n
W.P.(C) No.17873\/2006 etc.                 – 112 –<\/span><\/p>\n
      to admit students and the procedure and method of admission,<\/p>\n
      in the context when it was receiving any State aid, it was held<\/p>\n
      that     it   would   be   permissible   for   the   authority   giving   aid   to<\/p>\n
      prescribe bye-rules or regulations,  the conditions on the basis of<\/p>\n
      which   admission   will   be   granted   to   different   aided   colleges   by<\/p>\n
      virtue of merit, coupled with the reservation policy of the State<\/p>\n
      qua   non-minority   students.     Under   Question   No.9,   the   scheme<\/p>\n
      in   Unni   Krishnan’s   case   except   where   it   holds   that   primary<\/p>\n
      education is a fundamental right was held to be unconstitutional.<\/p>\n
      The   principle   that   there   should   not   be   capitation   fee   or<\/p>\n
      profiteering  was, however, held to be correct.   In paragraph 56<\/p>\n
      of the decision in T.M.A.Pai’s case, the Supreme Court held thus:<\/p>\n
                   “An educational  institution  is  established for  the<\/p>\n
                   purpose of imparting education of the type made<\/p>\n
                   available   by   the   institution.   Different   courses  of<\/p>\n
                   study are usually taught by teachers who have to<\/p>\n
                   be   recruited   as   per   qualifications   that   may   be<\/p>\n
                   prescribed.   It   is   no   secret   that   better   working<\/p>\n
                   conditions   will   attract   better   teachers.   More<\/p>\n
                   amenities   will   ensure   that   better   students   seek<\/p>\n
                   admission   to   that   institution.   One   cannot   lose<\/p>\n
W.P.(C) No.17873\/2006 etc.                 – 113 –<\/span><\/p>\n
                 sight of the fact that providing good amenities to<\/p>\n
                 the   students   in   the   form   of   competent   teaching<\/p>\n
                 faculty   and   other   infrastructure   costs   money.   It<\/p>\n
                 has,   therefore,   to   be   left   to   the   institution,   if   it<\/p>\n
                 chooses   not   to   seek   any   aid   from   the<\/p>\n
                 Government, to determine the scale of fee that it<\/p>\n
                 can   charge   from   the   students.   One   also   cannot<\/p>\n
                 lose sight of the fact that we live in a competitive<\/p>\n
                 world   today,   where   professional   education   is   in<\/p>\n
                 demand. We have been given to understand that<\/p>\n
                 a   large   number   of   professional   and   other<\/p>\n
                 institutions have been started by private parties<\/p>\n
                 who   do   not   seek   any   governmental   aid.   In   a<\/p>\n
                 sense, a prospective student has various options<\/p>\n
                 open   to   him\/her   where,   therefore,   normally<\/p>\n
                 economic forces have a role to play. The decision<\/p>\n
                 on the fee to be charged must necessarily be left<\/p>\n
                 to   the   private   educational   institution   that   does<\/p>\n
                 not   seek   or   is   not   dependent   upon   any   funds<\/p>\n
                 from the Government”.\n<\/p><\/blockquote>\n
<\/blockquote>\n
      The system of student selection if it was to deprive the private<\/p>\n
      educational institution the right of rational selection was held to<\/p>\n
      be unreasonable.  In para 40 it was observed as follows:<\/p>\n
                 “Any   system   of   student   selection   would   be<\/p>\n
W.P.(C) No.17873\/2006 etc.                – 114 –<\/span><\/p>\n
                   unreasonable   if   it   deprives   the   private   unaided<\/p>\n
                   institution of the right of rational selection, which<\/p>\n
                   it   devised   for   itself,   subject   to   the   minimum<\/p>\n
                   qualification that may be prescribed and to some<\/p>\n
                   system   of   computing   the   equivalence   between<\/p>\n
                   different   kinds   of   qualifications,   like   a   common<\/p>\n
                   entrance   test.   Such   a   system   of   selection   can<\/p>\n
                   involve   both   written   and   oral   tests   for   selection,<\/p>\n
                   based on principle of fairness”.<\/p>\n<\/blockquote>\n
      The educational institutions, it was further held, would have the<\/p>\n
      right   to   chose  and  select   students   who  can  be   admitted  to   the<\/p>\n
      course   of   studies.       The   observation   made   to   that   effect   in<\/p>\n
      paragraph 65 reads as follows:\n<\/p>\n<\/p>\n
                         “The reputation of an educational institution<\/p>\n
                   is   established   by   the   quality   of   its   faculty   and<\/p>\n
                   students,  and  the   educational and other  facilities<\/p>\n
                   that   the   college   has   to   offer.     The   private<\/p>\n
                   educational institutions have a personality of their<\/p>\n
                   own,   and   in   order   to   maintain   their   atmosphere<\/p>\n
                   and traditions, it is but necessary that they must<\/p>\n
                   have  the right  to choose and  select  the students<\/p>\n
                   who can be admitted  to their  courses  of  studies.<\/p>\n
                   It is for this reason that St.Stephen’s College case<\/p>\n
                   this   Court   upheld   the   scheme   whereby   a   cut   off<\/p>\n
W.P.(C) No.17873\/2006 etc.                – 115 –<\/span><\/p>\n
                  percentage   was   fixed   for   admission,   after   which<\/p>\n
                  the   students   were   interviewed   and   thereafter<\/p>\n
                  selected.   While an educational institution cannot<\/p>\n
                  grant   admission   on   its   whims   and   fancies,   and<\/p>\n
                  must   follow   some   identifiable   or   reasonable<\/p>\n
                  methodology   of   admitting   the   students,   any<\/p>\n
                  scheme, rule or regulation that does not give the<\/p>\n
                  institution   the   right   to   reject   candidates   who<\/p>\n
                  might   otherwise   be   qualified   according   to,   say<\/p>\n
                  their   performance   in   an   entrance   test,   would   be<\/p>\n
                  an   unreasonable   restriction   under   Article   19(6),<\/p>\n
                  though   appropriate   guidelines\/modalities   can   be<\/p>\n
                  prescribed  for   holding   the   entrance   test   in   a   fair<\/p>\n
                  manner.   Even when students are required to be<\/p>\n
                  selected   on   the   basis   of   merit,   the   ultimate<\/p>\n
                  decision   to   grant   admission   to   the   students   who<\/p>\n
                  have   otherwise   qualified   for   the   grant   of<\/p>\n
                  admission   must   be   left   with   the   educational<\/p>\n
                  institution   concerned.             However,   when   the<\/p>\n
                  institution   rejects   such   students,   such   rejection<\/p>\n
                  must   not   be   whimsical   or   for   extraneous<\/p>\n
                  reasons.”.\n<\/p><\/blockquote>\n
<\/blockquote>\n
      In   Islamic   Academy   of   Education   case,  however,  question  No.4<\/p>\n
      reproduced in the earlier part of the judgment pertaining to right<\/p>\n
W.P.(C) No.17873\/2006 etc.                 – 116 –<\/span><\/p>\n
      of   unaided   professional   colleges   to   admit   students   by   evolving<\/p>\n
      their own method of admission, it was held, as culled out by the<\/p>\n
      Honourable Supreme Court in Inamdar’s case under questions 3<\/p>\n
      and 4 that in professional institutions, as they are unaided, there<\/p>\n
      will be full autonomy in their administration, but the principle of<\/p>\n
      merit cannot be sacrificed as excellence in professions is in the<\/p>\n
      national   interest   and   without   interfering   with   the   autonomy   of<\/p>\n
      unaided institutions, the object of merit based admissions can be<\/p>\n
      secured   by   insisting   on   it   as   a   condition   to   the   grant   of<\/p>\n
      recognition   as   also   that   management   can   have   quota   for<\/p>\n
      admitting students at  its discretion, but subject to satisfying the<\/p>\n
      test   of   merit   based   admissions.     It   was   further   held   that   the<\/p>\n
      management   could   pick   up   students   of   their   choice,   but   the<\/p>\n
      same   had   to   be   from   those   who   have   passed   the   common<\/p>\n
      entrance test conducted by a centralised mechanism.  There thus<\/p>\n
      appear   to   be   some   deviation   of   law   with   regard   to   right   of<\/p>\n
      institutions   to   have   its   procedure   for   admission   of   students   in<\/p>\n
      Islamic  Academy  case,  but  it   may  be   recalled   that   the   findings<\/p>\n
      recorded in Islamic Academy were under severe criticism before<\/p>\n
W.P.(C) No.17873\/2006 etc.               – 117 –<\/span><\/p>\n
      the Supreme Court in Inamdar’s case.   It is for that reason that<\/p>\n
      it   appears   the   Supreme   Court   framed   four   questions   for<\/p>\n
      determination which pertain to right of admission and the extent<\/p>\n
      to   which   the   State   could   regulate   the   admission.     These<\/p>\n
      questions as mentioned above were referable to Heading 3 and 5<\/p>\n
      and to questions 3(b), 4, 5(a), 5(b), 5(c) and 9 as framed in Pai<\/p>\n
      Foundation   case.     Question   No.2   that   pertains   to   admission<\/p>\n
      procedure   of   unaided   educational   institutions   formulated   in<\/p>\n
      Inamdar   was   answered   in   Paras   136   and   137   by   observing   as<\/p>\n
      follows:\n<\/p>\n<\/p>\n
                         “Whether   minority   or   non-minority<\/p>\n
                  institutions,   there   may   be   more   than   one<\/p>\n
                  similarly   situated   institutions   imparting<\/p>\n
                  education   in   any   one   discipline,   in   any   State.<\/p>\n
                  The   same   aspirant   seeking   admission   to   take<\/p>\n
                  education   in   any   one   discipline   of   education<\/p>\n
                  shall   have   to   purchase   admission   forms   from<\/p>\n
                  several   institutions   and   appear   at   several<\/p>\n
                  admission   tests   conducted   at   different     places<\/p>\n
                  on the  same   or  different   dates  and  there may<\/p>\n
                  be a clash of dates.     If the same candidate is<\/p>\n
                  required to appear in several tests, he would be<\/p>\n
W.P.(C) No.17873\/2006 etc.           – 118 –<\/span><\/p>\n
               subjected   to   unnecessary   and   avoidable<\/p>\n
               expenditure   and   inconvenience.     There   is<\/p>\n
               nothing   wrong   in   an   entrance   test   being   held<\/p>\n
               for one group of institutions imparting same or<\/p>\n
               similar education.  Such institutions situated<\/p>\n
               in one State or in more than one State may<\/p>\n
               itself   or   through   an   agency   arrange   for<\/p>\n
               holding   of   such   test.   (emphasis   supplied).<\/p>\n
               Out   of   such   common   merit   list   the   successful<\/p>\n
               candidates   can   be   identified   and   chosen   for<\/p>\n
               being   allotted   to   different   institutions<\/p>\n
               depending on the courses of study offered, the<\/p>\n
               number of seats, the kind of minority to which<\/p>\n
               the   institution   belongs   and   other   relevant<\/p>\n
               factors.     Such   an   agency   conducting   the<\/p>\n
               common   entrance   test   (“CET”   for   short)   must<\/p>\n
               be   one   enjoying   utmost   credibility   and<\/p>\n
               expertise   in   the   matter.     This   would   better<\/p>\n
               ensure   the  fulfilment  of   twin   objects   of<\/p>\n
               transparency   and   merit.     CET   is   necessary   in<\/p>\n
               the interest of achieving the said objectives and<\/p>\n
               also   for   saving   the   student   community   from<\/p>\n
               harassment   and   exploitation.     Holding   of   such<\/p>\n
               common   entrance   followed   by   centralised<\/p>\n
               counselling   or,   in   other   words,   single   window<\/p>\n
W.P.(C) No.17873\/2006 etc.            – 119 –<\/span><\/p>\n
               system   regulating   admission   does   not   cause<\/p>\n
               any   dent   in   the   right   of   minority   unaided<\/p>\n
               educational   institutions   to   admit   students   of<\/p>\n
               their   choice.     Such   choice   can   be   exercised<\/p>\n
               from   out   of   the   list   of   successful   candidates<\/p>\n
               prepared   at   CET   without   altering   the   order   of<\/p>\n
               merit inter se  of the students so chosen.<\/p>\n<\/blockquote>\n
                            Pai   Foundation   has   held   that<\/p>\n
               minority   unaided   institutions   can   legitimately<\/p>\n
               claim   unfettered   fundamental   right   to   choose<\/p>\n
               the   students   to   be   allowed   admission   and   the<\/p>\n
               procedure   therefor   subject   to   its   being   fair,<\/p>\n
               transparent   and   non-exploitative.     The   same<\/p>\n
               principle   applies   to   non-minority   unaided<\/p>\n
               institutions.     There   may   be   single   institution<\/p>\n
               imparting a peculiar type of education which is<\/p>\n
               not being imparted by any other institution and<\/p>\n
               having   its   own   admission   procedure   fulfilling<\/p>\n
               the   test   of   being   fair,   transparent   and<\/p>\n
               non-exploitative.     All   institutions   imparting<\/p>\n
               same or similar professional education can join<\/p>\n
               together   for   holding   a   common   entrance   test<\/p>\n
               satisfying the above triple tests.   The State can<\/p>\n
               also provide a procedure of holding a common<\/p>\n
               entrance test in the interest of securing fair and<\/p>\n
W.P.(C) No.17873\/2006 etc.               – 120 –<\/span><\/p>\n
                  merit-based   admissions   and   preventing<\/p>\n
                  maladministration.                 The         admission<\/p>\n
                  procedure   so   adopted   by   a   private<\/p>\n
                  institution   or   group   of   institutions,   if   it<\/p>\n
                  fails to satisfy all or any of the triple tests,<\/p>\n
                  indicated hereinabove, can be taken by the<\/p>\n
                  State   substituting   its   own   procedure.<\/p>\n
                  (emphasis   supplied).     The   second   question   is<\/p>\n
                  answered accordingly.”.\n<\/p><\/blockquote>\n
<\/blockquote>\n
      It is crystal clear from the observations made by the Honourable<\/p>\n
      Supreme   Court   as   reproduced   above   that   minority   unaided<\/p>\n
      institutions   have   unfettered   fundamental   right   to   choose   the<\/p>\n
      students   to   be   allowed   admission   and   the   procedure   therefor<\/p>\n
      subject to its being fair, transparent and  non-exploitative.   This<\/p>\n
      according to the  Constitution  Bench in  Inamdar case is the  law<\/p>\n
      laid   down   in   T.M.A.Pai   Foundation   case,   which   could   not   be<\/p>\n
      dissented   from   as   observed   in   Inamdar’s   case   itself.<\/p>\n
      Mr.Vaidyanathan   has   also   relied   upon   paras   136   and  137.    His<\/p>\n
      emphasis is on two sentences, one each in paras 136 and 137,<\/p>\n
      on   which   we   have   supplied   emphasis.     Reliance   has   also   been<\/p>\n
      placed   by   Mr.Vaidyanathan   upon   the   observation   in   para   155,<\/p>\n
W.P.(C) No.17873\/2006 etc.                    – 121 –<\/span><\/p>\n
      which reads  as follows:\n<\/p>\n<\/p>\n
                           “It   is   for   the   Central   Government,   or   for<\/p>\n
                  the State Governments, in the absence a Central<\/p>\n
                  legislation,   to   come   out   with   a   detailed<\/p>\n
                  well-thought out legislation on the subject.  Such<\/p>\n
                  a   legislation   is   long   awaited.     The   States   must<\/p>\n
                  act  towards   this   direction.    The  judicial   wing  of<\/p>\n
                  the   State   is   called   upon   to   act   when   the   other<\/p>\n
                  two wings, the legislature and the executive, do<\/p>\n
                  not act.   The earlier the Union of India and the<\/p>\n
                  State   Governments   act,   the   better   it   would   be.<\/p>\n
                  The Committees regulating admission procedure<\/p>\n
                  and fee structure shall continue to exist, but only<\/p>\n
                  as   a   temporary   measure   and   an   inevitable<\/p>\n
                  passing   phase   until   the   Central   Government   or<\/p>\n
                  the   State   Governments   are   able   to   devise   a<\/p>\n
                  suitable   mechanism   and   appoint   a   competent<\/p>\n
                  authority        in         consonance           with         the<\/p>\n
                  observations   made   hereinabove  (emphasis<\/p>\n
                  supplied)”.<\/p><\/blockquote>\n
                  32.     We   have   given   our   thoughtful   consideration   to<\/p>\n
      the question under debate and are of the view that the law laid<\/p>\n
      down   by   11   member   Bench   in   T.M.A.Pai   case   gives   unfettered<\/p>\n
      fundamental   right   to   minority   unaided   institutions   to   choose<\/p>\n
W.P.(C) No.17873\/2006 etc.                  – 122 –<\/span><\/p>\n
      students   for   admission.     It   also   gives   the   right   to   choose   the<\/p>\n
      procedure,   but   the   same   is   subject   to   fair,   transparent   and<\/p>\n
      non-exploitative  procedure.     The law laid down to the contrary<\/p>\n
      in Unnikrishnan case has been specifically overruled in T.M.A.Pai<\/p>\n
      case,   which   has   been   reiterated   or   clarified   in   Inamdar’s   case.<\/p>\n
      The   contention   of   Mr.Vaidyanathan   if   accepted   would   lead   to<\/p>\n
      reverting   to   the   scheme   in   Unnikrishnan   case,   which   has   been<\/p>\n
      held   to   be   unconstitutional.     It   is   simply   not   permissible.     The<\/p>\n
      two   sentences  emphasised  by   Mr.Vaidyanathan   are   being<\/p>\n
      pressed   into   service     losing   their   reference   and   context.     Para<\/p>\n
      136   starts   with   the   factual   position,   when   there   may   be   more<\/p>\n
      than one similarly situated institutions, whether minority or non-<\/p>\n
      minority   and   the   aspirant   seeking   admission   facing   difficulty   in<\/p>\n
      taking   various   examinations.     It   is   in   that   context   that   it   has<\/p>\n
      been   observed   that,   if   the   candidate   is   required   to   appear   in<\/p>\n
      several   tests,   he   would   be   subjected   to   unnecessary   and<\/p>\n
      unavoidable expenditure and inconvenience.  It is further in that<\/p>\n
      context that it was observed that, there was nothing wrong in an<\/p>\n
      entrance  test  being  held for   one  group  of  institutions  imparting<\/p>\n
W.P.(C) No.17873\/2006 etc.                  – 123 –<\/span><\/p>\n
      same   or   similar   education   and  such   institutions   situated   in   one<\/p>\n
      State   or   in   more   than   one   State   may   join   together   and   hold   a<\/p>\n
      common   entrance   test   or   the   State   may   itself   or   through   an<\/p>\n
      agency arrange for holding of such test (emphasis supplied). In<\/p>\n
      the first part of the sentence referred to above, the decision to<\/p>\n
      hold  such  test   for  one  group  of   institutions  whether  situated  in<\/p>\n
      one   State   or   in   more   than   one   State   by   joining   together,   the<\/p>\n
      reference is to the common entrance test to be conducted by the<\/p>\n
      institutions.  It is in the alternative that it has been said that the<\/p>\n
      State may itself or through an agency arrange for holding of such<\/p>\n
      test.       The   words  “such   tests”    necessarily   means   a   test   on<\/p>\n
      behalf of the institutions.   This further necessarily means a test<\/p>\n
      which   would   be   otherwise   conducted   by   the   institutions   and   it<\/p>\n
      would also certainly mean  the test which shall not be a common<\/p>\n
      entrance test conducted by the State for all the students in the<\/p>\n
      State   for   all   the   institutions   in   the   State.     Section   3,   is   a<\/p>\n
      complete take over of the admission procedure thus completely<\/p>\n
      annihilating        the   right   of   the   institutions,   minority   or<\/p>\n
      non-minority,   but   unaided,     which   would   be   in   violation   of<\/p>\n
W.P.(C) No.17873\/2006 etc.                   – 124 –<\/span><\/p>\n
      Articles 19(1)(g) and 30(1) of the Constitution of India.  There is<\/p>\n
      no   other   conclusion   which   can   be   drawn   from   the   various<\/p>\n
      judgments   relied upon by the learned counsel representing the<\/p>\n
      parties   referred   to   above.     In   so   far   as   the   emphasis   on   the<\/p>\n
      sentence in para 137 that, if the admission procedure so adopted<\/p>\n
      by a private institution or group of institutions fails to satisfy all<\/p>\n
      or   any   of   the   triple   tests,   it   can   be   taken   over   by   the   State<\/p>\n
      substituting   its   own   procedure,   we   may   again   mention   that<\/p>\n
      reliance   of   the   learned   counsel   is   by   completely   ignoring   the<\/p>\n
      reference and context of such sentence.   It is clearly mentioned<\/p>\n
      in the beginning of para 137 as laid down in Pai Foundation that<\/p>\n
      managements   of   minority   unaided   institutions   can   legitimately<\/p>\n
      claim unfettered fundamental right to choose the students to be<\/p>\n
      allowed admission and the procedure therefor subject to its being<\/p>\n
      fair,   transparent   and  non-exploitative.    The   same  principle   also<\/p>\n
      applies to non-minority institutions.     The State also, no doubt,<\/p>\n
      can   provide   a   procedure   of   holding   common   entrance   test,   but<\/p>\n
      the right of the State is ‘only to provide a procedure’.  No doubt,<\/p>\n
      the Government can regulate the procedure of holding a common<\/p>\n
W.P.(C) No.17873\/2006 etc.                 – 125 –<\/span><\/p>\n
      entrance test, to vouchsafe fair and merit based admissions and<\/p>\n
      to prevent maladministration, but the test as such can be taken<\/p>\n
      over by the  State  only if  the institutions may fail  to satisfy the<\/p>\n
      triple test, by substituting its own procedure.   It is, thus, in the<\/p>\n
      case  of  failure  of  the  institutions   to  hold  examination   with    the<\/p>\n
      triple test  that,   the State can take over the procedure.   That is<\/p>\n
      the   only   exception   provided   with   regard  to   right   of   minority   to<\/p>\n
      have their own admission.\n<\/p>\n<\/p>\n
                   33.     In   so   far   as   the   contention   of   learned   counsel<\/p>\n
      based   upon   para   155   of   the   judgment   in   Inamdar’s   case,   we<\/p>\n
      would   like   to   mention   that   reliance   upon   aforesaid   observation<\/p>\n
      has   been   placed   by   completely   ignoring   the   reference   and<\/p>\n
      context in which such observations were made.  The Constitution<\/p>\n
      of   the   Committee   regulating   admission   and   fee   structure   was<\/p>\n
      said to be only a temporary measure, until such time the Central<\/p>\n
      or State Governments were to  devise suitable mechanism even<\/p>\n
      by   legislation.     Surely,   the   legislation   would   be   for   regulating<\/p>\n
      admission procedure and fee structure.   But the same in so far<\/p>\n
      as admissions are concerned, would only relate to the triple test<\/p>\n
W.P.(C) No.17873\/2006 etc.                 – 126 –<\/span><\/p>\n
      of    fair, transparent and non-exploitative  method  or  procedure.<\/p>\n
      An all  sweeping legislation on  all  admission  matters  which may<\/p>\n
      even result in complete take over and resulting to nationalisation<\/p>\n
      is wholly impermissible.  It is not all envisaged or spelt out from<\/p>\n
      the   observations   mentioned   above   and   relied   upon   by   the<\/p>\n
      learned counsel.  If it was to be so read, there would have been<\/p>\n
      no need, whatsoever, to have a lengthy discussion on the subject<\/p>\n
      with   law   being   laid   down   in   the   judgment   leading   to   the<\/p>\n
      observations in para 155, and in particular, paras 136 and 137  .<\/p>\n
                   34.  The question that further arises for consideration<\/p>\n
      is   whether   there   has   been   failure   to   conduct   the   examination<\/p>\n
      with the triple test as mentioned above as also as to whether a<\/p>\n
      single   failure   on   this   count   by   the   institutions   imparting   single<\/p>\n
      stream of education would clothe the Government with the right<\/p>\n
      to   take   over   the   conduct   of   examination   in   the   manner   as<\/p>\n
      envisaged in Section 3, for all times to come and for institutions<\/p>\n
      imparting any stream of education.\n<\/p>\n<\/p>\n
                   35.     We   have   in   the   earlier   part   of   the   judgment<\/p>\n
      already   mentioned   the   pleadings   on   this   score   and   the<\/p>\n
W.P.(C) No.17873\/2006 etc.                – 127 –<\/span><\/p>\n
      accompanying\/supporting documents.  Whereas it is the positive<\/p>\n
      case   of   the   petitioners   that   there   was   no   past   experience   of<\/p>\n
      maladministration of   examination conducted by the consortium<\/p>\n
      of  private self financing professional institutions in the State,  it<\/p>\n
      is the case of the respondent-State that the legislature felt in its<\/p>\n
      wisdom   that   there   was   large   scale   maladministration   and<\/p>\n
      exploitative   methods   adopted   by   the   private   professional<\/p>\n
      colleges,   and   that   the   power   to   admit   is   the   root   cause   of<\/p>\n
      capitation   fee   and   merit   being   given   a   go-by.       Mr.Justice<\/p>\n
      K.T.Thomas, the Chairman of the Committee for overseeing the<\/p>\n
      conduct of examination had pointed out that the management of<\/p>\n
      Self   Financing   Medical,   Dental,   Ayurveda   and   Siddha   Colleges<\/p>\n
      have   violently   violated   the   guidelines   issued   by   the   Supreme<\/p>\n
      Court   by   conducting   a   rigged   and   farce   entrance   test   for<\/p>\n
      admitting   students   as   if   they   are   merit   students.     We   have<\/p>\n
      already   referred   to   the   proceedings   of   Justice   K.T.Thomas<\/p>\n
      Committee   and the  letter,  marked as Exts.R1(a) and  R1(b)  as<\/p>\n
      also   letter   dated   30.7.2004,   written   by   a   student.     We   have<\/p>\n
      already   observed   that   the   plea   raised   by   the   petitioners<\/p>\n
W.P.(C) No.17873\/2006 etc.                 – 128 –<\/span><\/p>\n
      institutions that there was no allegation in regard to the quality<\/p>\n
      of  the test and that the   main complaint against the institution<\/p>\n
      was that they had issued the prospectus and fixed the exorbitant<\/p>\n
      fee   to   be   charged,   before   the   Committee   had   fixed   the   fee<\/p>\n
      payable by the students, which resulted into preventing number<\/p>\n
      of   students   from   taking   the   examination.     The   Committee<\/p>\n
      presumed   from   the   aforesaid   fact   that   the   test   conducted   was<\/p>\n
      not   proper.     It   is   no   doubt   true   that   a   presumption   has   been<\/p>\n
      drawn   for   the   test   to   be   rigged   for   the   reason   that   a   large<\/p>\n
      number   of   students   were   prevented   from   taking   the   test,   but<\/p>\n
      even for that reason it can at least be said that the test that was<\/p>\n
      ultimately held, many students who could have fared better than<\/p>\n
      those who applied and admitted could have been admitted.  In a<\/p>\n
      way,   thus,   some   of   the   students   who   might   have   been   better<\/p>\n
      than those  who applied and admitted were prevented which may<\/p>\n
      have  resulted into the test being not proper.   The result of the<\/p>\n
      test   having   been   declared     on   the   very   next   day   and   the<\/p>\n
      presumption   drawn   therefrom     that,   it   may   not   be   a   test   on<\/p>\n
      merit   cannot   be   said   to   be   unfounded.       A   finding   has   to   be<\/p>\n
W.P.(C) No.17873\/2006 etc.                – 129 –<\/span><\/p>\n
      returned  on   the   totality  of   facts   and   circumstances   of   the   case<\/p>\n
      that   the   consortium   test  held   in   2004   would   be  sans  the   triple<\/p>\n
      test.\n<\/p>\n<\/p>\n
                   36.  A single complaint with regard to single test with<\/p>\n
      regard to a single consortium of medical institutions, in our view,<\/p>\n
      however,   would   not   constitute   abrogation   of   all     examinations<\/p>\n
      conducted   by   Consortium   of   managements     thus  nationalising<\/p>\n
      the   entire admission system.       It is significant to mention that<\/p>\n
      preceding  the   test   of   2004,    in  the   year  2002   the   Government<\/p>\n
      came   up   with   Regulations   dated   December   18,   2002   for<\/p>\n
      admission to the Unaided Professional Colleges.   This related to<\/p>\n
      maximum fee payable by students admitted against 50% merit<\/p>\n
      seats   in   the   self   financing   colleges   for   M.B.B.S   course.   The<\/p>\n
      challenge to the Regulations succeeded and the the writ petition<\/p>\n
      and   connected   matters   were   allowed   vide   orders   dated   20th<\/p>\n
      January, 2003.  A review petition was filed against the aforesaid<\/p>\n
      judgment,   wherein   it   was   contended   that   the   Colleges   had<\/p>\n
      admitted   candidates   with   very   low   merit.     It   was   emphasised<\/p>\n
      that one of the candidates had a score of as low as 8.9% in the<\/p>\n
W.P.(C) No.17873\/2006 etc.               – 130 –<\/span><\/p>\n
      examination conducted by the Commissioner.  During the course<\/p>\n
      of hearing, on 14th February, 2003, the lists of students admitted<\/p>\n
      by both the Colleges were produced by the learned counsel.  The<\/p>\n
      marks   earned   by   candidates   in   various   subjects   viz.,   Physics,<\/p>\n
      Chemistry and Biology were  indicated.   It was pointed out  that<\/p>\n
      candidates had high scores in their qualifying examination which<\/p>\n
      range from 52% to 88.4% and all of them fulfill the conditions of<\/p>\n
      eligibility.  The court observed that the students had appeared in<\/p>\n
      the test  conducted  by  the institution  and they  had been  tested<\/p>\n
      not  only  for   their knowledge  of  the  essential   subjects but   were<\/p>\n
      also examined for their aptitude.   They were   interviewed and it<\/p>\n
      was   thereafter   the   merit   list   was   prepared.     The   court   while<\/p>\n
      dealing with the issue observed thus:\n<\/p>\n<\/p>\n
                                “On   a   consideration   of   the   matter,<\/p>\n
                   we   find   that   the   students   admitted   by   the<\/p>\n
                   institutions were not ineligible.  Still further, the<\/p>\n
                   decision   in   T.M.A.Pai   Foundation   case   (supra)<\/p>\n
                   recognises  the right of the unaided colleges to<\/p>\n
                   conduct their own entrance test.  In any event,<\/p>\n
                   the respondents had not even raised their little<\/p>\n
                   finger   against   the   process   of   selection   as<\/p>\n
W.P.(C) No.17873\/2006 etc.                  – 131 –<\/span><\/p>\n
                   followed by the institutions during the course of<\/p>\n
                   hearing   of   the   Writ   Petitions.     No   question<\/p>\n
                   about the merit of the  candidates admitted by<\/p>\n
                   the   institutions   had   been   raised.     Even   at   the<\/p>\n
                   hearing   of   the   Review   Petitions,   it   was   not<\/p>\n
                   suggested that they were ineligible.     Thus, at<\/p>\n
                   this stage, especially when the students are not<\/p>\n
                   even parties in the cases before us, it cannot be<\/p>\n
                   said   that   there   was   any   irregularity   in   their<\/p>\n
                   admission.”.\n<\/p><\/blockquote>\n
<\/blockquote>\n
      The Bench after reproducing the article dated January 27, 2003<\/p>\n
      in   the   additional   issue   of   Newsweek   with   the   caption   “Getting<\/p>\n
      Past the Gates” further observed:\n<\/p>\n<\/p>\n
                          “The   above   observations   clearly   indicate<\/p>\n
                   that   the   Courts   have   to   be   slow   to   enter<\/p>\n
                   academic   thickets.     It   is   best   to   leave   the<\/p>\n
                   matters   of   inter-se   merit   to   the   educationists<\/p>\n
                   and experts  in  the  field.    Resultantly,  the  first<\/p>\n
                   question as noticed above, is answered against<\/p>\n
                   the   applicants.     It   is   held   that   the   State   does<\/p>\n
                   not   have   a   right   to   claim   50%   seats   in   the<\/p>\n
                   unaided professional colleges”.<\/p>\n
W.P.(C) No.17873\/2006 etc.                    – 132 –<\/span><\/p>\n<\/blockquote>\n
      What thus appears from the records of the present case is that<\/p>\n
      there  was  no  complaint,  whatsoever,  with  regard  to   the  any  of<\/p>\n
      the institutions imparting any stream of education with regard to<\/p>\n
      the test conducted by the Consortium.  Even now, the allegation<\/p>\n
      of   farce   test   is   against   the   institutions   imparting   medical<\/p>\n
      education.     There   is   no   complaint   whatsoever   with   regard   to<\/p>\n
      institutions   imparting   Engineering,   Nursing   and   Teacher<\/p>\n
      Education.     In the  circumstances mentioned above  and also in<\/p>\n
      view   of   the   law   laid   down   by   the   Supreme   Court     referred   to<\/p>\n
      above, in our view, the examination conducted in 2004 could at<\/p>\n
      the most pro-tempore taken over by the Government.   The right<\/p>\n
      of   the   State   to   take   over   a   test   or   an   institution   losing   or<\/p>\n
      forfeiting its rights to conduct the test is sought to be supported<\/p>\n
      from the observations made by the Honourable Supreme Court in<\/p>\n
      Inamdar’s   case   in   para   137,   the   pertinent   reliance   is   upon   the<\/p>\n
      following observation:\n<\/p>\n<\/p>\n
                                  “The   admission   procedure   so<\/p>\n
                   adopted   by   a   private   institution   or   group   of<\/p>\n
                   institutions,   if   it   fails   to   satisfy   all   or   any   of<\/p>\n
                   the triple tests, indicated hereinabove, can be<\/p>\n
W.P.(C) No.17873\/2006 etc.                 – 133 –<\/span><\/p>\n
                   taken   over   by   the   State   substituting   its   own<\/p>\n
                   procedure.”.\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
      The observation extracted above may be read to mean that the<\/p>\n
      test,   authenticity   of   which   is   doubted   by   the   State,   could   be<\/p>\n
      taken over with regard to that test, but such taking over cannot<\/p>\n
      be   perennial.     No   one   with   certainty   can   say   that   a   mistake<\/p>\n
      committed once shall be repeated for ever.     To illustrate,   the<\/p>\n
      person in charge may in some weak moment  actuated for  some<\/p>\n
      extraneous   reasons   may   depart   from   triple   test.         He   himself<\/p>\n
      may  realise  the  mistake  or  be  told  that  he  had  indeed  made  a<\/p>\n
      mistake,   there   would   be   thus   in   that   case,   remedial   measures<\/p>\n
      and   may   be   in   the     next   year   the   test   be   conducted   by   a<\/p>\n
      philanthropist of highest credentials, who may see to it that the<\/p>\n
      test   is   conducted   with   even   better   standards   fixed   by   the<\/p>\n
      Government.  Surely, such a test far from being condemned has<\/p>\n
      to be appreciated.   However,   if a single time failure to comply<\/p>\n
      with   the   triple   test   is   held   to   be   enough   to   take   over   the<\/p>\n
      admission and nationalise the education for all times to come, it<\/p>\n
      would   be   a   travesty   of   justice.   It   would     be   harsh   and<\/p>\n
W.P.(C) No.17873\/2006 etc.                 – 134 –<\/span><\/p>\n
      unreasonable   and  also   violative   of   the   rights   of   the   institutions<\/p>\n
      under   Articles   19(1)(g)   and   30(1)   of   the   Constitution   of   India.<\/p>\n
      We   may   further   mention   that   the   rights   of   the   citizen   are<\/p>\n
      permanent in nature.  In  case of reasonable restrictions, subject<\/p>\n
      to   which   that   right   may   be   available,   are   not   adhered   to   the<\/p>\n
      solution cannot lie in taking with that right.  It would lie in at the<\/p>\n
      most,   in   correcting   it.     The   correction   in   the   context   of<\/p>\n
      controversy   in   issue   would   only   mean   taking   over   such   a   test<\/p>\n
      only   and   for   that   institution   only.     We   have   already   mentioned<\/p>\n
      that   the   so-called   one   rigged   test   pertains   only   to   medical<\/p>\n
      institutions.     There   is   not   even   an   allegation,   least   any   proof<\/p>\n
      thereof, that any other institution imparting any other stream of<\/p>\n
      education   had   ever   indulged   into   any   malpractice   and   deviated<\/p>\n
      from the triple test for admission.\n<\/p>\n<\/p>\n
                   37.     Our   observations   as   made   above   apart,   what<\/p>\n
      however,   clinches   the   issue   is   that   the   Government   of   Kerala<\/p>\n
      enacted   Act   of   2004.     This   Act   came   into   being   on   15th  July,<\/p>\n
      2004.     The   procedure   for   admission   in   the   Self   Financing<\/p>\n
      Professional   Colleges   was   prescribed   in   the   Act   of   2004.     No<\/p>\n
W.P.(C) No.17873\/2006 etc.                 – 135 –<\/span><\/p>\n
      notice   of   single   default   committed   by  the   institutions   imparting<\/p>\n
      medical   education   was   taken   into   consideration   by   the<\/p>\n
      Legislature.    The  institutions   were  left  free  to  make  admissions<\/p>\n
      on   the   basis   of   consortium   test.     Surely,   if   the   procedure   of<\/p>\n
      admission   in   the   State   of   Kerala   had   gone   totally   haywire   and<\/p>\n
      merit   had   become   a   casualty,   this   important   aspect   could   not<\/p>\n
      possibly   be   missed   out   and   the   legislative   wisdom   could   well<\/p>\n
      have made provisions regulating the admission   by the State as<\/p>\n
      the allegation of rigged test pertain to the year 2004  which was<\/p>\n
      held   on   13.6.2004   and   the   proceedings,   Ext.R1(a),   of   the<\/p>\n
      Mr.Justice   K.T.Thomas   Committee     was   recorded   on   3.6.2004,<\/p>\n
      and   also   the   letter   written   by   a   student   who   appeared   in   the<\/p>\n
      entrance   examination   conducted   by   the   consortium   was   dated<\/p>\n
      30.7.2004. The judgment in T.M.A.Pai’s case was pronounced as<\/p>\n
      early as on 31st October, 2002 and it is this judgment only which<\/p>\n
      has been clarified in Inamdar’s case.\n<\/p>\n<\/p>\n
                   38.     From   the   discussion   made   above,   it   has   to   be<\/p>\n
      held that the unaided minority or non-minority institutions have<\/p>\n
      a fundamental right enshrined under Articles 19(1)(g) and 30(1)<\/p>\n
W.P.(C) No.17873\/2006 etc.                – 136 –<\/span><\/p>\n
      of the Constitution of India to run educational institutions.   The<\/p>\n
      minority   institutions   have   an   additional   right     which   may   be<\/p>\n
      called   as   even   a   protection   to   establish   and   administer   the<\/p>\n
      institutions of their choice.   The admissions can be regulated by<\/p>\n
      legislation,   but   such   legislation   can   only     and   surely   be   for<\/p>\n
      ensuring the triple test of fair, transparent and non-exploitative<\/p>\n
      procedure   in   the   matter   of   admission.     The   State   has   indeed<\/p>\n
      taken   adequate   measures   in   the   impugned   Act   itself   that   the<\/p>\n
      admissions may be merit oriented.  The provisions do adequately<\/p>\n
      take   care   of   a   test     which   may   ensure   the   triple   test.   The<\/p>\n
      Admission   Supervisory   Committee   has   been   constituted   as   per<\/p>\n
      Section 4.     It consists of a retired Judge of the Supreme Court<\/p>\n
      or High Court as Chairperson; Secretary to Government, Higher<\/p>\n
      Education     Department   is   to   be   Member   Secretary;   whereas,<\/p>\n
      Secretary   to   Government,   Health   and   Family   Welfare<\/p>\n
      Department,   Secretary   to   Government,   Law   Department,   The<\/p>\n
      Commissioner   for   Entrance   Examinations,   Kerala,   and   an<\/p>\n
      educational   expert   belonging   to   Scheduled   Caste   or   Scheduled<\/p>\n
      Tribe   Community   are   to   be   Members   of   the   Committee.       By<\/p>\n
W.P.(C) No.17873\/2006 etc.                  – 137 –<\/span><\/p>\n
      virtue   of   provisions   of   sub-section   (6)   of   Section   4,   the<\/p>\n
      Admission Supervisory Committee shall supervise and guide the<\/p>\n
      entire   process   of   admission   of   students   to   the   unaided<\/p>\n
      professional   colleges   or   institutions   with   a   view   to   ensure   that<\/p>\n
      the process is fair, transparent, merit-based and non-exploitative<\/p>\n
      under   the   provisions   of   the   Act.   The   Admission   Supervisory<\/p>\n
      Committee  in view of sub-section (7) of Section 4  has the right<\/p>\n
      to hear complaints with regard to admission in contravention of<\/p>\n
      the   provisions   of   the   Act   and   if   it   may   find   violation   of   the<\/p>\n
      provisions,   it   could   make   appropriate   recommendation   to   the<\/p>\n
      Government   for   imposing   a  fine   up  to   Rupees   Ten  Lakhs.    The<\/p>\n
      Committee   has   also   the   right   to   declare   admissions   made   in<\/p>\n
      respect of any or all seats in a particular college or institution to<\/p>\n
      be   de   hors   merit   and   therefore   invalid   and   communicate   the<\/p>\n
      same   to   the   concerned   University.     On   receipt   of   such<\/p>\n
      communication, the University shall debar such candidates from<\/p>\n
      appearing from any further examination and cancel the results of<\/p>\n
      examinations already appeared for.         The Committee can also<\/p>\n
      recommend to the University or statutory body for withdrawal of<\/p>\n
W.P.(C) No.17873\/2006 etc.                 – 138 –<\/span><\/p>\n
      affiliation or recognition of such college or institution or take any<\/p>\n
      other action which it may deem fit.   The provisions contained in<\/p>\n
      sub-sections (6) and (7) of Section 4 of the Act provide foolproof<\/p>\n
      procedure   from   the   beginning   of   the   test   up   to   its   end,   which<\/p>\n
      would   ensure   that   the   process   is   fair,   transparent   and   non-<\/p>\n
      exploitative.  This is the only right of the State.  Having done so,<\/p>\n
      there was no need for the State to frame Section 3 arrogating to<\/p>\n
      itself the complete right of admission and the procedure thereof.<\/p>\n
      This is  nationalisation of education and  is wholly impermissible.<\/p>\n
      Further,  if  by  virtue   of   the  provisions   contained  in  Section  3  of<\/p>\n
      the   Act   dealing   with   the   method   of   admission   in   professional<\/p>\n
      colleges or institutions, the admissions are now to be regulated<\/p>\n
      or   made   through   the   common   entrance   test   conducted   by   the<\/p>\n
      State only followed by centralised counselling through the single<\/p>\n
      window system by the Commissioner for Entrance Examinations,<\/p>\n
      what was the requirement of making the provision such as sub-<\/p>\n
      sections (6) and  (7) of Section 4.   Surely, it  cannot be case  of<\/p>\n
      the State that the procedure followed by it may be defective or<\/p>\n
      lacking the triple test.\n<\/p>\n
\nW.P.(C) No.17873\/2006 etc.                – 139 –<\/span><\/p>\n
           Determination of fee structure   and  State control<\/p>\n
                   39.     The   next   limb   of   the   case   would   pertain   to<\/p>\n
      provisions dealing with fee structure.  The provisions contained in<\/p>\n
      the   Act   with   regard   to   fee   structure   as   mentioned   above   are<\/p>\n
      under challenge.  The question once again would be  the right of<\/p>\n
      the   management   to   determine   the   fee   structure   and   the<\/p>\n
      permissibility   of   the   regulations   and   the   extent   thereof.     The<\/p>\n
      provisions  in the Act of 2006 that may have a bearing upon the<\/p>\n
      controversy   and   which   are   under   challenge   would   need<\/p>\n
      immediate notice.\n<\/p>\n<\/p>\n
                   40.  Fee has been defined in Section 2 (e) to mean all<\/p>\n
      fees   including   tuition   fee,   development   fee   and   any   other   fee<\/p>\n
      fixed by the Fee Regulatory Committee.   Freeship as per Section<\/p>\n
      2(g) would mean full or partial  remission of tuition fee awarded<\/p>\n
      to   Scheduled   Caste   and   Scheduled   Tribe   and   other   socially,<\/p>\n
      educationally and economically backward students on merit cum<\/p>\n
      means       basis     by     an     unaided     professional     college   or<\/p>\n
      institution  as may be prescribed.    Higher  Education  Scholarship<\/p>\n
      Fund   has   been   defined   in   Section   2(j)   to   mean   the   fund   for<\/p>\n
W.P.(C) No.17873\/2006 etc.                 – 140 –<\/span><\/p>\n
      providing   scholarship   to   socially   and   economically   backward<\/p>\n
      students on merit cum means basis.   Collection of Capitation Fee<\/p>\n
      by virtue of provisions contained in Section 5 of the Act has been<\/p>\n
      prohibited.  Violation of the provisions contained in Section 5 (1)<\/p>\n
      prohibiting   collection   of   capitation   fee  would  entail   penal   action<\/p>\n
      against  the  management.    The  fee   regulatory  committee  would<\/p>\n
      consist   of   a   Chairperson   who   should   be   a   retired   Judge   of   the<\/p>\n
      Supreme Court or High Court, a Member Secretary, who should a<\/p>\n
      Secretary  to Government  either  in charge of  Health  and Family<\/p>\n
      Welfare   or   Higher   Education   and   three   Members   of   whom   one<\/p>\n
      member   would   be   a   Chartered   Accountant   nominated   by   the<\/p>\n
      Government   in   consultation   with   the   Chairperson,   second<\/p>\n
      member   a representative of either the Medical   Council of India<\/p>\n
      or   the   All   India   Council   for   Teacher   Education   and   the   third<\/p>\n
      member   to   be   an   educational   expert   nominated   by   the<\/p>\n
      Government in consultation with the Chairperson.   Sub-sections<\/p>\n
      (4), (5) and (7) of Section 6,  Section 7 and Section 9  which are<\/p>\n
      most relevant read as follows:\n<\/p>\n
\nW.P.(C) No.17873\/2006 etc.              – 141 –<\/span><\/p>\n
                    “Section   6(4).       The   Fee   Regulatory   Committee<\/p>\n
             shall have power to:\n<\/p><\/blockquote>\n
                      (a)     require   each   unaided   professional<\/p>\n
               college   or   institution   to   place   before   the<\/p>\n
               committee   the   proposed   fee  structure   of   such<\/p>\n
               college   or   institution   with   all   relevant<\/p>\n
               documents and  books of accounts for scrutiny<\/p>\n
               well   in   advance   of   the   commencement   of   the<\/p>\n
               academic   year,   i.e.   not   later   than   31st<\/p>\n
               December, of the previous academic year;<\/p>\n<\/blockquote>\n
                      (b)     verify   whether   the   fee   proposed   by<\/p>\n
               each   college   or   institution   is   justified   and   it<\/p>\n
               does not amount to profiteering of charging of<\/p>\n
               capitation fee;\n<\/p><\/blockquote>\n
                      (c)     approve   the   fee   structure   or<\/p>\n
               determine   some   other   fee   which   can   be<\/p>\n
               charged by the college or institution.<\/p>\n
           (5)   The fee determined by the Committee shall be<\/p>\n
               binding  on  the unaided professional college or<\/p>\n
               institution for a period of three years.  The fee<\/p>\n
               so   determined   shall   be   applicable   to   a<\/p>\n
               candidate   who   is   admitted   to   a   college   or<\/p>\n
               institution in that academic year and shall not<\/p>\n
               be   revised   till   the   completion   of   his   course   in<\/p>\n
               the   said   college   or   institution.   No   unaided<\/p>\n
W.P.(C) No.17873\/2006 etc.              – 142 –<\/span><\/p>\n
                 professional college or institution shall collect a<\/p>\n
                 fee   amounting   to   more   than   one   year’s   fee<\/p>\n
                 from   a   candidate   in   an   academic   year.<\/p>\n
                 Collection   of   more   than   one   year’s   fee   in   an<\/p>\n
                 academic year shall be construed as collecting<\/p>\n
                 of   capitation   fee   and   shall   be   liable   to   be<\/p>\n
                 proceeded against.\n<\/p><\/blockquote>\n
           (8)   The   Fee   Regulatory   Committee   shall   have   the<\/p>\n
                 power   to   regulate   its   own   procedure   in   all<\/p>\n
                 matters   arising   out   of   the   discharge   of   its<\/p>\n
                 functions, and shall, for the purpose of making<\/p>\n
                 any enquiry under this Act, have all the powers<\/p>\n
                 of   a   Civil   Court   under   the   Code   of   Civil<\/p>\n
                 Procedure, 1908 (Central Act 5 of 1908) while<\/p>\n
                 trying   a   suit   in   respect   of   the   following<\/p>\n
                 matters, namely:\n<\/p><\/blockquote>\n
                 (a)   summoning and enforcing the attendance<\/p>\n
                        of   any   witness   and   examining   him   on<\/p>\n
                        oath.\n<\/p><\/blockquote>\n
                 (b)   requiring the discovery and production of<\/p>\n
                        any document.\n<\/p><\/blockquote>\n
                 (c)    issuing commissions for   the examination<\/p>\n
                        of witnesses and for local inspections;<\/p>\n
                 and   any   proceeding   before   such   Committee<\/p>\n
                 shall   be   deemed   to   be   a   judicial   proceeding<\/p>\n
                 within   the   meaning   of   sections   193   and   228<\/p>\n
                 and   for   the   purpose   of   section   196   of   the<\/p>\n
W.P.(C) No.17873\/2006 etc.              – 143 –<\/span><\/p>\n
                Indian Penal Code (Central Act 45 of 1860).”<\/p>\n
            “Section 7. Factors for determination of fee.- The<\/p>\n
            Fee Regulatory Committee shall determine and fix<\/p>\n
            the   fee   or   fees   to   be   charged   by   an   unaided<\/p>\n
            professional   college   or   institution   taking   into<\/p>\n
            consideration the factors, such as,–<\/p>\n<\/blockquote>\n
                   (a)  the obligation on the part of all unaided<\/p>\n
             professional   colleges   or   institutions   to   provide<\/p>\n
             freeship   to   a   minimum   of   fifty   per   cent   of   the<\/p>\n
             students admitted and the additional expenses, if<\/p>\n
             any   required   for   the   same   over   and   above   the<\/p>\n
             excess   funds   generated   from   Non-Resident<\/p>\n
             Indians, charity on the part of managements and<\/p>\n
             contributions   by   the   Government   for   providing<\/p>\n
             freeship   for   Scheduled   Caste   or   Scheduled   Tribe<\/p>\n
             students;\n<\/p><\/blockquote>\n
                 (b)  the nature of the professional course;<\/p>\n<\/blockquote>\n
                 (c)   the available infrastructure;<\/p><\/blockquote>\n
\n<\/blockquote>\n
                 (d)     the   expenditure   on   administration   and<\/p>\n
           maintenance.\n<\/p><\/blockquote>\n
<\/blockquote>\n
                 (e)     a   reasonable   surplus   required   for   the\n\n           growth and development of the college.\n\n\n\n\n                  (f)    any other factor as the  Committee may\n\n           deem fit.\n\n\nW.P.(C) No.17873\/2006 etc.              - 144 -<\/span>\n\n\n\n\n\n<\/pre>\n
             “Section 9. Fees not to be collected excessively.-<\/p>\n<\/blockquote>\n
                   (1)   No   unaided   professional   college   or<\/p>\n
             institution     shall   collect   any   fee   by   whatever<\/p>\n
             name   called   from   the   candidate   for   admission<\/p>\n
             over   and   above   the   fee   determined   by   the   Fee<\/p>\n
             Regulatory Committee and the fee prescribed by<\/p>\n
             the University concerned;\n<\/p><\/blockquote>\n
                             Provided   that   the   Fee   Regulatory<\/p>\n
                Committee shall   fix   the fee   for  Non-Resident<\/p>\n
                Indian seats and the amount so collected over<\/p>\n
                and above the fee fixed for other students in<\/p>\n
                the college or institution in such seats shall be<\/p>\n
                utilised   for   providing   freeship   to   socially   and<\/p>\n
                economically backward students.<\/p>\n<\/blockquote>\n
                   (2)     All   unaided   professional   colleges   or<\/p>\n
            institutions   shall   provide   freeship   to   the   extent<\/p>\n
            prescribed for a minimum of fifty percent of the<\/p>\n
            students admitted.\n<\/p><\/blockquote>\n
                   (3)     Any   officer   of   the   State   or   Central<\/p>\n
            Government   or   any   other   public   officer   or<\/p>\n
            authority who issues an income certificate which<\/p>\n
            conceals   the   actual   income   of   the   person   to<\/p>\n
            whom   certificate   is   issued   and   any   recipient   of<\/p>\n
            such   certificate   who   by   making   use   of   the<\/p>\n
W.P.(C) No.17873\/2006 etc.                  – 145 –<\/span><\/p>\n
               certificate   claims   any   benefit   with   regard   to<\/p>\n
               freeship or scholarship shall be liable for penalty<\/p>\n
               under section 15 of the Act.\n<\/p><\/blockquote>\n
                       (4)   Notwithstanding anything contained in<\/p>\n
                any other provisions of this Act, the fixation and<\/p>\n
                levy of fees at the rates fixed by the Committee<\/p>\n
                constituted before the date of coming into force<\/p>\n
                of   this   Act   shall   be   deemed   to   be   validly   fixed<\/p>\n
                and collected.”.\n<\/p><\/blockquote>\n
<\/blockquote>\n
      From a reading of the provisions as reproduced above, it would<\/p>\n
      thus   appear   that   the   Fee   Regulatory   Committee   would   require<\/p>\n
      unaided professional colleges to place before it its fee structure,<\/p>\n
      it   would   have   right   to   verify   whether   the   fee   proposed   by   the<\/p>\n
      institutions   is   justified   and   does   not   amount   to   profiteering   or<\/p>\n
      charging   capitation   fee.   It   would   approve   the   fee   structure   or<\/p>\n
      may   even   determine   some   other   fee   which   can   be   charged   by<\/p>\n
      the   college   or   institution.         The   fee   determined   by   the<\/p>\n
      Committee   is   binding   on   the   college   or   institution.     The<\/p>\n
      committee  would  have   power  to   regulate   its   own  procedure  on<\/p>\n
      all   matters   arising   out   of   the   discharge   of   its   functions.     The<\/p>\n
      factors   to   be   taken   into   consideration   for   determination   of   the<\/p>\n
W.P.(C) No.17873\/2006 etc.                – 146 –<\/span><\/p>\n
      fee would include obligation on the part of the unaided institution<\/p>\n
      to   provide   freeship   to   a   minimum   of   50%   of   students,   which<\/p>\n
      would   be   over   and   above   the   excess   funds   generated   from<\/p>\n
      Non-Resident Indians, charity on the part  of  managements and<\/p>\n
      contribution   by   the   Government   for   providing   freeship   for<\/p>\n
      Scheduled Caste and Scheduled Tribe students.   The fee cannot<\/p>\n
      be collected excessively, which may be over and above the one<\/p>\n
      determined by the Committee.  The Committee, however, would<\/p>\n
      fix   fee   for   Non-Resident   Indian   seats   and   the   amount   so<\/p>\n
      collected over and above the fee fixed for other students in the<\/p>\n
      college or institution in such seats should be utilised for providing<\/p>\n
      freeship   to   socially   and   economically   backward   students.<\/p>\n
      Unaided professional colleges, minority or non-minority, have to<\/p>\n
      provide freeship for a minimum of 50% of the students admitted.<\/p>\n
      Rule   11   of   the   Rules   of   2006   dealing   with   freeship   and   its<\/p>\n
      disbursement reads as follows:\n<\/p>\n<\/p>\n
               “11.   Freeship   and   its   disbursement-     (1)   All<\/p>\n
               unaided   professional   colleges   or   institutions,<\/p>\n
               including   minority   and   non-minority   colleges   or<\/p>\n
               institutions   shall   provide   freeship   to   a   minimum<\/p>\n
               of 50% of the students admitted in each college,<\/p>\n
               subject to the stipulations regarding income limit.<\/p>\n
W.P.(C) No.17873\/2006 etc.                 – 147 –<\/span><\/p>\n
               Full remission will be given to all SC\/ST students,<\/p>\n
               irrespective   of   their   income,   whether   admitted<\/p>\n
               under  specified   category   or   under   general   merit<\/p>\n
               category.     40%   of   the   students   admitted   shall<\/p>\n
               also be given partial remission of fee.   Students<\/p>\n
               other than those admitted under SC\/ST, privilege<\/p>\n
               seats   and   Non-Resident   Indian   seats   will   be<\/p>\n
               eligible for the partial remission of fee on merit-<\/p>\n
               cum-means basis.   The fee payable by them will<\/p>\n
               be   the   same   as   prevailing   in   Government   or<\/p>\n
               Aided   Colleges   or   institutions   for   the   same<\/p>\n
               courses.   Only   those   students   whose   annual<\/p>\n
               family   income   does   not   exceed   two   lakh   fifty<\/p>\n
               thousand   rupees   and   who   have   applied   for<\/p>\n
               freeship   with   all   relevant   documents   to   support<\/p>\n
               their   claim   will   be   considered   for   the   grant   of<\/p>\n
               freeship.   Initially, freeship will be awarded to in<\/p>\n
               the   ratio   of   seats   allotted   to   other   socially   and<\/p>\n
               educationally   backward   classes,   physically<\/p>\n
               challenged and to categories other than the two<\/p>\n
               above.     Where   adequate   numbers   of   claimants<\/p>\n
               are   not   available   under   other   socially   and<\/p>\n
               educationally   backward   classes   or   physically<\/p>\n
               challenged categories, the same shall be granted<\/p>\n
               to other categories.\n<\/p><\/blockquote>\n
                      (2)    The fee payable at  rates  prevailing in<\/p>\n
               Government\/Aided   colleges   or   institutions   in<\/p>\n
               respect   of   SC\/ST   students   admitted   under<\/p>\n
               specified   category  will   be   paid   to   the   institution<\/p>\n
               concerned by the Government.   The fee payable<\/p>\n
               by SC\/ST students admitted under general merit<\/p>\n
               will   be   fully   paid   to   the   institution   by   the<\/p>\n
               Government.”\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
      Unaided professional colleges, minority or non-minority, have to<\/p>\n
      provide   freeship   to   a   minimum   of   50%   of   the   students;   full<\/p>\n
W.P.(C) No.17873\/2006 etc.                – 148 –<\/span><\/p>\n
      remission has to be given to all SC\/ST students; 40% of students<\/p>\n
      admitted   have   to   be   given   partial   remission   of   fee.     Students<\/p>\n
      other than those admitted under SC\/ST, privilege seats and NRI<\/p>\n
      seats are eligible for partial remission of fee on merit cum means<\/p>\n
      basis.     The fee payable by them is the same as in Government<\/p>\n
      College or Institutions<\/p>\n
                   41.    Mr.Rajeev   Dhavan,   learned   senior   counsel   for<\/p>\n
      the petitioners representing Medical Colleges contends that, the<\/p>\n
      fee fixation for unaided institutions has to take place on the basis<\/p>\n
      of the formula known as ‘revenue plus development’ laid down in<\/p>\n
      T.M.A  Pai’s   case.    The  fee  as   per   the   formula   aforesaid   can  be<\/p>\n
      fixed   by   taking   into   consideration   the   revenue   cost   of   the<\/p>\n
      institution, its loan and borrowings as also a reasonable amount<\/p>\n
      towards development.  Profiteering and charging of capitation fee<\/p>\n
      is all that can be regulated by the State.  In the present case, by<\/p>\n
      virtue   of   the   provisions   referred   to   above,   the   Government,<\/p>\n
      however,   has   taken   over   fixation   of   fee,   which   is   wholly<\/p>\n
      impermissible, further contends the learned counsel.<\/p>\n
W.P.(C) No.17873\/2006 etc.                – 149 –<\/span><\/p>\n
                   42.     Per   Contra,   Mr.Vaidyanathan   contends   that<\/p>\n
      fixation of fee by the State Level Committee had expressly been<\/p>\n
      approved   and   acted   in   Islamic   Academy’s   case.                   The<\/p>\n
      observations made in the said case with regard to fixation of fee<\/p>\n
      by   the   State   were   assailed   by   the   institutions   in  Inamdar’s<\/p>\n
      case, but the contentions so raised were rejected and it was held<\/p>\n
      that   direction   with   regard   to   determination   of   fee   structure   by<\/p>\n
      the committee as a permissible regulatory measure.  In so far as<\/p>\n
      freeship is concerned, it is urged by the learned counsel that the<\/p>\n
      Supreme   Court   held   that   education   is   a   national   wealth   which<\/p>\n
      should   be   distributed   equally   and   widely   in   the   interest   of<\/p>\n
      creating   an   egalitarian   society.     Higher   amounts   of   money<\/p>\n
      collected   from   the   more   affluent   students   like     Non-Resident<\/p>\n
      Indians can be utilised for benefiting students from economically<\/p>\n
      weaker sections of society.  The provisions contained in Sections<\/p>\n
      7 and 9 of the Act of 2006 are only extension of the principle of<\/p>\n
      rich  subsidising  the poor by including even the Non-NRI affluent<\/p>\n
      section   to   share   the   burden   of  subsidising  the   poor   who   are<\/p>\n
      identified on a merit cum means basis.  The poor students can be<\/p>\n
W.P.(C) No.17873\/2006 etc.                – 150 –<\/span><\/p>\n
      given scholarships\/freeship and the cost of such seat should be<\/p>\n
      covered by fees which are fixed.  By permitting freeship, no loss<\/p>\n
      of   revenue   would   be   caused   to   the   managements.     The   State<\/p>\n
      fully  subsidises  all   SC\/ST   students   and   the   affluent   students<\/p>\n
      subsidises  the   other   educationally   and   economically   weaker<\/p>\n
      section   of   the   society.     Under   Article   41   and   46   of   the<\/p>\n
      Constitution of India,  the State  has to  promote the educational<\/p>\n
      and   economic   interests   of   the   weaker   sections   of   the   people.<\/p>\n
      The impugned sections of the Act of 2006 only enable the State<\/p>\n
      to take care of weaker sections of the community, thus contends<\/p>\n
      the learned counsel.\n<\/p>\n<\/p>\n
                   43.  The answer to the above question, in our opinion,<\/p>\n
      would once again lie in the three leading decisions in T.M.A.Pai’s<\/p>\n
      case, Islamic Academy’s case and Inamdar’s case, and we may<\/p>\n
      mention   that   arguments   for   and   against   have   been   raised,   by<\/p>\n
      and large, on the basis of the observations in these three judicial<\/p>\n
      precedents.  The background on which the question pertaining to<\/p>\n
      fee   fixation   by   the   Government   or   the   authorities   came   to   be<\/p>\n
      focussed  by  the  Supreme  Court   shall   however,  have  to  be  first<\/p>\n
W.P.(C) No.17873\/2006 etc.                  – 151 –<\/span><\/p>\n
      noticed.  In the case of  Mohini Jain v. State of Karnataka, it may<\/p>\n
      be recalled that the challenge was to a notification of June, 1989<\/p>\n
      which   provided   for   a   fee   structure   whereby   for     Government<\/p>\n
      seats the tuition fee was Rs.2000\/- per annum  and for students<\/p>\n
      from Karnataka the fee was Rs.25,000\/- per annum while the fee<\/p>\n
      for   Indian   students   from  outside  Karnataka  under   the  payment<\/p>\n
      category the fee was Rs.60,000\/- per annum.  It was contended<\/p>\n
      that   charging   such   a   discriminatory   and   high   fee   violated<\/p>\n
      constitutional  guarantees  and rights,  but  it  was held  that  there<\/p>\n
      was a fundamental right to education in every citizen, and that<\/p>\n
      the   State   was   duty   bound   to   provide   education   and   that   the<\/p>\n
      private institutions that discharge the State’s duties were equally<\/p>\n
      bound   not   to   charge   a   higher   fee   than   the   government<\/p>\n
      institutions.     The   prescription   of   fee   in   excess   of   what   was<\/p>\n
      payable in government colleges was held to be   capitation fees,<\/p>\n
      which was illegal.   This decision was under serious challenge in<\/p>\n
      Unnikrishnan’s case.   The institutions urged before the Supreme<\/p>\n
      Court   that   if  the   ratio   of   the   decision   rendered  in  Mohini   Jain’s<\/p>\n
      case   was   to   be   adhered   to,   the   institutions   shall   have   to   be<\/p>\n
W.P.(C) No.17873\/2006 etc.                 – 152 –<\/span><\/p>\n
      closed   down,     for   lack   of   funds   by   way   of   tuition   fees.     In<\/p>\n
      Unnikrishnan’s   case,   the   Supreme   Court   considered   the<\/p>\n
      conditions and regulations, if any, the State could impose in the<\/p>\n
      running   of   private   unaided\/aided,   recognised   or   affiliated<\/p>\n
      educational institutions conducting professional course and it was<\/p>\n
      held   that   private   unaided   recognised\/affiliated   institutions<\/p>\n
      running professional courses were entitled to charge a fee higher<\/p>\n
      than that charged by government institutions for similar courses<\/p>\n
      but   the   same   should  not   exceed  the   maximum   limit   prescribed<\/p>\n
      by the State.   With regard to private aided recognised\/affiliated<\/p>\n
      institutions,   it   was   held   that   Government   had   power   to   frame<\/p>\n
      rules and regulations in the matter of admission and fees.   The<\/p>\n
      court after examining these aspects of the matter formulated a<\/p>\n
      Scheme   and   directed   every                        authority   granting<\/p>\n
      recognition\/affiliation   to   impose   that   scheme   on   every<\/p>\n
      institutions   seeking   recognition\/affiliation,   even   if   they   were<\/p>\n
      unaided   institutions.       In   the   context   of   the   issue       under<\/p>\n
      consideration, the Scheme provided that 50% of  seats in every<\/p>\n
      professional   college   should   be   filled   by   the   nominees   of   the<\/p>\n
W.P.(C) No.17873\/2006 etc.                  – 153 –<\/span><\/p>\n
      Government   or   University,   selected   on   the   basis   of   merit<\/p>\n
      determined by common entrance test, which will be referred to<\/p>\n
      as ‘free seats’; the remaining 50% seats (payment seats) should<\/p>\n
      be   filled   up   by   those   candidates   who   pay   the   fee   prescribed<\/p>\n
      therefor   and   the   allotment   of   students   against   payment   seats<\/p>\n
      should be done on the basis of inter se merit determined on the<\/p>\n
      same   basis   as   in   the   case   of   free   seats.       The   Scheme   further<\/p>\n
      provided   that   it   would   be   open   to   the   professional   colleges   to<\/p>\n
      provide   for   reservation   of   seats   for   constitutionally   permissible<\/p>\n
      classes with the approval of the affiliating university and the fee<\/p>\n
      chargeable in each professional college should be subject to such<\/p>\n
      a ceiling as may be prescribed by the appropriate authority or by<\/p>\n
      a   competent   court.     The   scheme   further   provided   that   every<\/p>\n
      State   Government   should   constitute   a   committee   to   fix   the<\/p>\n
      ceiling on the fees chargeable by a professional college or class<\/p>\n
      of professional colleges, fix the fee once in every three years or<\/p>\n
      at   such   intervals   as   it   may   think   appropriate.     The   University<\/p>\n
      Grants   Commission   was   left   open   to   frame   regulations   to<\/p>\n
      regulate   the   fee   that   the   affiliated   colleges   operating   on<\/p>\n
W.P.(C) No.17873\/2006 etc.               – 154 –<\/span><\/p>\n
      no-grant-in-aid   basis   were   entitled   to   charge.     The   AICTE,   the<\/p>\n
      Indian   Medical   Council   and   the   Central   Government   were   also<\/p>\n
      given similar advice.\n<\/p>\n<\/p>\n
                   44.   This   Scheme   as   mentioned   above   was   under<\/p>\n
      serious challenge.  It was urged by the counsel on behalf of  the<\/p>\n
      private   institutions   that   the   scheme   framed   in   Unnikrishnan’s<\/p>\n
      case was not warranted.  It is relevant to mention that even the<\/p>\n
      Solicitor   General   contended   likewise.   The   costs   incurred   on<\/p>\n
      educating   a   student   in   an   unaided   professional   college   was<\/p>\n
      stated to be more than the total fee which could be realised as<\/p>\n
      per the scheme and this would result in revenue shortfalls.   By<\/p>\n
      an interim order, the Supreme Court, subsequent to the decision<\/p>\n
      in Unnikrishnan’s case, permitted within the payment seats some<\/p>\n
      percentage   of   seats   to   be   allotted   to   non-resident   Indians,<\/p>\n
      against   payment   of   a   higher   amount   as   determined   by   the<\/p>\n
      authorities,   but  that  also  would  not  make   available   sufficient<\/p>\n
      funds for development of such institutions, was further urged by<\/p>\n
      the   counsel   appearing   for   the   institutions.     Another   infirmity<\/p>\n
      pointed   out   pertained   to   free   seats   being   grabbed   by   students<\/p>\n
W.P.(C) No.17873\/2006 etc.                – 155 –<\/span><\/p>\n
      coming   from   affluent   families,   whereas   students   from   poor<\/p>\n
      families were required to pay much more to secure admission to<\/p>\n
      payment seats.   We may quote a joint contention raised by the<\/p>\n
      learned counsel for the petitioner-institutions as also the Solicitor<\/p>\n
      General in that connection.  It reads as follows:<\/p>\n
                          “Counsel for the institutions, as well as the<\/p>\n
                   Solicitor   General,   submitted   that   the   decision   in<\/p>\n
                   Unni Krishnan case insofar   as  it  had framed  the<\/p>\n
                   scheme   relating   to   the   grant   of   admission   and<\/p>\n
                   the   fixing   of   the   fee,   was   unreasonable   and<\/p>\n
                   invalid” .\n<\/p><\/blockquote>\n
<\/blockquote>\n
      The  fixation   of   fee  by  the   Government   or   by  authorities   of   the<\/p>\n
      Government   was   thus   directly   in   issue,   not   only   independently<\/p>\n
      but   also   in   connection   with   the   law   laid   down   on   the   issue<\/p>\n
      clothing   the   Government   or   the   authorities   to   fix   the   fee   in<\/p>\n
      Unnikrishnan’s   case   and   the   said   scheme   was   under   direct<\/p>\n
      challenge.   On consideration of the issue, the Supreme Court in<\/p>\n
      T.M.A Pai’s held as under:\n<\/p>\n<\/p>\n
                                “It   appears   to   us   that   the   scheme<\/p>\n
                   framed by this Court and thereafter followed by<\/p>\n
                   the Governments was one that cannot be called<\/p>\n
                   a   reasonable   restriction     under   Article   19(6)   of<\/p>\n
W.P.(C) No.17873\/2006 etc.                 – 156 –<\/span><\/p>\n
                   the   Constitution.     Normally,   the   reason   for<\/p>\n
                   establishing   an   educational   institution   is   to<\/p>\n
                   impart   education.     The   institution   thus   needs<\/p>\n
                   qualified   and   experienced   teachers   and   proper<\/p>\n
                   facilities   and   equipment,   all   of   which   require<\/p>\n
                   capital investment.  The teachers are required to<\/p>\n
                   be   paid   properly.     As   pointed   out   above,   the<\/p>\n
                   restrictions   imposed   by   the   scheme,   in   Unni<\/p>\n
                   Krishnan case made it difficult, if not impossible,<\/p>\n
                   for the educational institutions to run efficiently.<\/p>\n
                   Thus,   such   restrictions   cannot   be   said   to   be<\/p>\n
                   reasonable restrictions.\n<\/p><\/blockquote>\n
                                 The   private   unaided   educational<\/p>\n
                   institutions impart education, and that cannot be<\/p>\n
                   the reason to take away their choice in matters,<\/p>\n
                   inter alia, of selection of students  and fixation of<\/p>\n
                   fees.     Affiliation   and   recognition   has   to   be<\/p>\n
                   available   to   every   institution   that  fulfils  the<\/p>\n
                   conditions   for   grant   of   such   affiliation   and<\/p>\n
                   recognition.   The private institutions are right in<\/p>\n
                   submitting   that   it   is   not   open   to   the   Court   to<\/p>\n
                   insist   that   statutory   authorities   should   impose<\/p>\n
                   the terms of the scheme as a condition for grant<\/p>\n
                   of   affiliation   or   recognition;   this   completely<\/p>\n
                   destroys the institutional autonomy and the very<\/p>\n
                   objective of establishment of the institution”.<\/p>\n<\/blockquote>\n
      In   so   far   as   the   scheme   pertaining   to   freeship   framed   in   Unni<\/p>\n
      Krishnan’s  case is  concerned,  the  Supreme Court  in T.M.A.Pai’s<\/p>\n
      case observed as follows:\n<\/p>\n<\/p>\n
                   “Unni   Krishnan   judgment   has   created   certain<\/p>\n
                   problems and raised thorny issues.  In its anxiety<\/p>\n
                   to   check   the   commercialization   of   education,   a<\/p>\n
                   scheme of ‘free’ and ‘payment’ seats was evolved<\/p>\n
W.P.(C) No.17873\/2006 etc.                 – 157 –<\/span><\/p>\n
                   on the assumption that the economic capacity of<\/p>\n
                   the   first   50%   of   admitted   students   would   be<\/p>\n
                   greater   than   the   remaining   50%,   whereas   the<\/p>\n
                   converse   has   proved   to   be   the   reality.     In   this<\/p>\n
                   scheme,   the   ‘payment   seat’   student   would   not<\/p>\n
                   only   pay   for   his   own   seat,   but   also   finance   the<\/p>\n
                   cost   of   a   ‘free   seat’   classmate.     When   one<\/p>\n
                   considers   the   Constitution   Bench’s   earlier<\/p>\n
                   statement   that   higher   education   is   not   a<\/p>\n
                   fundamental   right,   it   seems   unreasonable   to<\/p>\n
                   compel   a   citizen   to   pay   for   the   education   of<\/p>\n
                   another,   more   so   in   the   unrealistic   world   of<\/p>\n
                   competitive examinations which assess the merit<\/p>\n
                   for the purpose of admission solely on the basis<\/p>\n
                   of the marks obtained, where the urban students<\/p>\n
                   always have an edge over the rural students.  In<\/p>\n
                   practice,  it   has   been  the  case   of   the  marginally<\/p>\n
                   less   merited   rural   or   poor   student   bearing   the<\/p>\n
                   burden   of   a   rich   and   well   exposed   urban<\/p>\n
                   student.”\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
      The   other   relevant   observations     read   thus:       “The   scheme   in<\/p>\n
      Unni Krishnan’s case has the effect of nationalizing the education<\/p>\n
      in   respect   of   important   features   viz.,   the   right   of   a   private<\/p>\n
      unaided   institution   to   give   admission   and   to   fix   the   fee.     By<\/p>\n
      framing   this   scheme,   which   led   to   the   State   Governments<\/p>\n
      legislating in conformity with the scheme, the private institutions<\/p>\n
      are indistinguishable from the government institutions, curtailing<\/p>\n
      all   the   essential   features   of   the   right   of   administration   can<\/p>\n
W.P.(C) No.17873\/2006 etc.               – 158 –<\/span><\/p>\n
      neither be called fair nor reasonable”.   ——   ——   —– —–<\/p>\n
      “In   view   of   the   discussion   hereinabove,     we   hold   that     the<\/p>\n
      decision in Unni Krishnan case in so far as it framed the scheme<\/p>\n
      relating to the grant of admission and the fixing of the fee, was<\/p>\n
      not   correct   and   to   that   extent,   the   said   decision   and   the<\/p>\n
      consequent directions given to UGC, AICTE, the Medical Council<\/p>\n
      of India, the Central and State Governments etc. are overruled”.<\/p>\n
      Having overruled the scheme in Unni Krishnan’s case, the court<\/p>\n
      then examined the issue by taking into consideration the status<\/p>\n
      of  the institutions like private institutions, private unaided non-<\/p>\n
      minority   educational   institutions,   private   unaided   professional<\/p>\n
      colleges,   private   aided   professional   institutions   (non-minority)<\/p>\n
      and   other   aided   institutions.     To   what   extent   the   regulations<\/p>\n
      could be made with regard to admission and fixation of fee was<\/p>\n
      the pertinent question.       This matter was first considered with<\/p>\n
      regard   to   private   unaided   non-minority   educational   institutions,<\/p>\n
      by   observing   that   unprecedented   demand   for   access   to   higher<\/p>\n
      education and the inability or unwillingness of the Government to<\/p>\n
      provide   the   necessary   support   has   brought   private   higher<\/p>\n
W.P.(C) No.17873\/2006 etc.                – 159 –<\/span><\/p>\n
      education   to   the   forefront,   and  the  existence   and  expanding   of<\/p>\n
      private   institutions   in   the   present   scenario   was   observed   to   be<\/p>\n
      essential.     The   right   to   establish   and   administer   essentially<\/p>\n
      included the right to set up reasonable fee structure was further<\/p>\n
      observed   in   T.M.A.Pai’s   case.     The   report   of   the   University<\/p>\n
      Education   Commission,   of   which   Dr.S.Radhakrishnan   was   the<\/p>\n
      Chairman,     was   then   taken   into   consideration.     On   the   said<\/p>\n
      passage   reproduced   in   paragraph   51   of   the   judgment   in<\/p>\n
      T.M.A.Pai’s case, the Supreme Court observed thus:<\/p>\n
                          “There   cannot   be   a   better   exposition   than<\/p>\n
                   what   has   been   observed   by   these   renowned<\/p>\n
                   educationists   with   regard   to   autonomy   in<\/p>\n
                   education.   The aforesaid passage clearly shows<\/p>\n
                   that   the   governmental   domination   of   the<\/p>\n
                   educational   process   must   be   resisted.     Another<\/p>\n
                   pithy   observation   of   the   Commission   was   that<\/p>\n
                   State   aid   was   not   to   be   confused   with   State<\/p>\n
                   control   over   academic   policies   and   practices.<\/p>\n
                   The observations referred to hereinabove clearly<\/p>\n
                   contemplate   educational   institutions   soaring   to<\/p>\n
                   great heights in pursuit of intellectual excellence<\/p>\n
                   and   being   free   from   unnecessary   governmental<\/p>\n
W.P.(C) No.17873\/2006 etc.                 – 160 –<\/span><\/p>\n
                   controls”.\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
      In   the   context   of   fundamental   rights   of   the   institutions   under<\/p>\n
      Articles 19   and 26(a), in so far as setting up a reasonable fee<\/p>\n
      structure   is   concerned,     it   was   observed   that,   in   setting   up   a<\/p>\n
      reasonable   fee  structure,   the   element   of   profiteering   is   not   yet<\/p>\n
      accepted in Indian conditions.   The fee structure must take into<\/p>\n
      consideration   the   need   to   generate   funds   to   be  utilised   for   the<\/p>\n
      betterment   and   growth   of   the   educational   institution,   the<\/p>\n
      betterment   of   education   in   that   institution   and   to   provide<\/p>\n
      facilities necessary for the benefit of the students.   The fixing of<\/p>\n
      a   rigid   fee   structure   was   then   held   to   be   an   unacceptable<\/p>\n
      restriction  on  the rights  of the  institution under  Articles  19 and<\/p>\n
      26(a)   of   the   Constitution.     The   other   pertinent   observation<\/p>\n
      pertaining to fee structure read thus:\n<\/p>\n<\/p>\n
                                 “One cannot lose sight of the fact that<\/p>\n
                   providing   good   amenities   to   the   students   in   the<\/p>\n
                   form   of   competent   teaching   faculty   and   other<\/p>\n
                   infrastructure costs money.   It has, therefore, to<\/p>\n
                   be left to the institution, if it chooses not to seek<\/p>\n
W.P.(C) No.17873\/2006 etc.               – 161 –<\/span><\/p>\n
                  any   aid  from   the   Government,   to   determine   the<\/p>\n
                  scale of fee that it can charge from the students.<\/p>\n<\/blockquote>\n
                  —–  ——    ——  The decision on the fee to be<\/p>\n
                  charged   must   necessarily   be   left   to   the   private<\/p>\n
                  educational   institution   that   does   not   seek   or   is<\/p>\n
                  not   dependent   upon   any   funds   from   the<\/p>\n
                  Government.   —–     —–     —–       There   can,<\/p>\n
                  however,   be   a   revenue   surplus,   which   may   be<\/p>\n
                  generated   by   the   educational   institution   for   the<\/p>\n
                  purpose   of   development   of   education   and<\/p>\n
                  expansion of the institution”.\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
      While dealing with the unaided professional colleges, it was held<\/p>\n
      that it would be unfair   to apply the same rules and regulations<\/p>\n
      regulating   admission   to   both   aided   and   unaided   professional<\/p>\n
      institutions   and   it   must   be   borne   in   mind   that   unaided<\/p>\n
      professional   institutions   are   entitled   to   autonomy   in   their<\/p>\n
      administration.       It was then held that a rational fee structure<\/p>\n
      should be adopted by the management, which would not entitle<\/p>\n
      them   to charge a capitation fee and appropriate machinery can<\/p>\n
      be devised by the State or University to ensure that no capitation<\/p>\n
      fee   is   charged   and   that   there   is   no   profiteering,   though   a<\/p>\n
W.P.(C) No.17873\/2006 etc.                – 162 –<\/span><\/p>\n
      reasonable   surplus   for   the   furtherance   of   the   education   is<\/p>\n
      permissible.\n<\/p>\n<\/p>\n
                   45.     In   Islamic   Academy’s   case,   a   Bench   of   Five<\/p>\n
      Honourable   Judges   was   constituted   to   clarify   the   doubts   or<\/p>\n
      anomalies in the decision of the Constitution Bench of 11 Judges<\/p>\n
      in T.M.A Pai’s case.  Briefly put, the institutions projected before<\/p>\n
      the court that fixation of percentage of seats that could be filled<\/p>\n
      in   the   unaided   professional   colleges,   both   minority   and<\/p>\n
      non-minority by the management as done by the various State<\/p>\n
      Governments   was   impermissible.                 The   private   unaided<\/p>\n
      professional   educational   institutions   had   been   given   complete<\/p>\n
      autonomy not only as regards the admission of students but also<\/p>\n
      as regards the determination of their own fee structure.   These<\/p>\n
      institutions could fix their own fee structure which could include a<\/p>\n
      reasonable   revenue   surplus   for   purposes   of   development   of<\/p>\n
      education and expansion of the institutions and that as long as<\/p>\n
      there   was   no   profiteering   or   charging   of   capitation   fee,   there<\/p>\n
      could   be   no   interference   by   the   Government.     The   Supreme<\/p>\n
      Court,   on   the   various   contentions   raised   before   it,   framed   four<\/p>\n
W.P.(C) No.17873\/2006 etc.                  – 163 –<\/span><\/p>\n
      questions, the first being whether the educational institutions are<\/p>\n
      entitled to fix their own fee structure.  The majority judgment in<\/p>\n
      T.M.A.Pai case was interpreted or clarified to say that there can<\/p>\n
      be   no   fixing   of   rigid   fee   structure   by   the   Government.     Each<\/p>\n
      institute   must   have   freedom   to   fix   its   own  fee  structure  taking<\/p>\n
      into   consideration   the   need   to   generate   funds   to   run   the<\/p>\n
      institution   and   to   provide   facilities   necessary   for   the   benefit   of<\/p>\n
      the students.  They must also be able to generate surplus which<\/p>\n
      must be used for the betterment and growth of that educational<\/p>\n
      institution.     The   fees   to   be charged  must  necessarily  be   left  to<\/p>\n
      the private educational institution that do not seek and which are<\/p>\n
      not   dependent   upon   any   funds   from   the   Government.     Each<\/p>\n
      institute will be entitled to have its own fee structure.   The fee<\/p>\n
      structure   for   each   institute   must   be   fixed   keeping   in   mind   the<\/p>\n
      infrastructure   and   facilities   available,   the   investments   made,<\/p>\n
      salaries paid to the teachers and staff, future plans for expansion<\/p>\n
      and\/or   betterment   of   the   institution   etc..   There   can   be   no<\/p>\n
      profiteering   and   capitation   fee   cannot   be   charged.     In   Islamic<\/p>\n
      Academy’s   case,   the   Supreme   Court   thus   held   that   as   per   the<\/p>\n
W.P.(C) No.17873\/2006 etc.                  – 164 –<\/span><\/p>\n
      majority judgment in T.M.A.Pai’s case, imparting of education  is<\/p>\n
      essentially   charitable   in   nature   and   that   the   surplus\/profit   that<\/p>\n
      can   be   generated   must   be   only   for   the   benefit\/use   of   that<\/p>\n
      educational   institutions.     Profit\/surplus   cannot   be   diverted   for<\/p>\n
      any other use or purpose and cannot be used for personal gain<\/p>\n
      or for any other business or enterprise.  The Supreme Court then<\/p>\n
      directed   that   in   order   to   give   effect   to   the   judgment   in   T.M.A.<\/p>\n
      Pai’s   case,   the   respective   State   Governments\/concerned<\/p>\n
      authority   shall   set   up   in   each   State   a   Committee   headed   by   a<\/p>\n
      retired   High   Court   Judge   who   shall   be   nominated   by   the   Chief<\/p>\n
      Justice   of   that   State.       Each   educational   institute   must   place<\/p>\n
      before the Committee well in advance of the academic year, its<\/p>\n
      proposed fee structure.   Along with the proposed fee structure,<\/p>\n
      all   relevant   documents   and   books     of   accounts   must   also   be<\/p>\n
      produced   before   the   Committee   for   their   scrutiny.       The<\/p>\n
      Committee should then decide whether the fee proposed by that<\/p>\n
      institute   are   justified   and   are   not   profiteering   or   charging<\/p>\n
      capitation fee.   The Committee will be at liberty to approve the<\/p>\n
      fee structure or to propose some other fee structure which can<\/p>\n
W.P.(C) No.17873\/2006 etc.                – 165 –<\/span><\/p>\n
      be charged by the institute and the fee fixed by the Committee<\/p>\n
      shall be binding for a period of three years.  Once the fee is fixed<\/p>\n
      by the Committee, the institute cannot charge either directly or<\/p>\n
      indirectly any other amount over and above the amount fixed as<\/p>\n
      fees.   If any other amount is charged under any other head or<\/p>\n
      guise,  e.g.  donations,   the   same   would   amount   to   charging   of<\/p>\n
      capitation   fee.     The   Government\/appropriate   authorities   should<\/p>\n
      consider framing appropriate regulations, if not already framed,<\/p>\n
      whereunder if it is found that an institution is charging capitation<\/p>\n
      fees   or   profiteering,   that   institution   can   be   appropriately<\/p>\n
      penalised      and   also   face   the   prospect   of   losing   its<\/p>\n
      recognition\/affiliation.  In so far as institutions collecting advance<\/p>\n
      fee are concerned, it was observed that the same must be kept<\/p>\n
      invested in fixed deposits in  nationlised  bank and, as and when<\/p>\n
      fee fall due for a semester\/year, only the fee falling due for that<\/p>\n
      semester\/year  must be withdrawn by the institution and the rest<\/p>\n
      must   continue   to   remain   deposited  till   such  time   they   fall   due.<\/p>\n
      At the end of the course, the interest earned on these deposits<\/p>\n
      must be paid to the student from whom the fees were collected<\/p>\n
W.P.(C) No.17873\/2006 etc.                 – 166 –<\/span><\/p>\n
      in advance.\n<\/p>\n<\/p>\n
                   46.  In Inamdar’s case, in  question No.3 framed by it<\/p>\n
      with   regard   to   the   correctness   of   the   judgment   in   Islamic<\/p>\n
      Academy’s   case,   issuing   guidelines   in   the   matter   of   regulating<\/p>\n
      fee payable by students to the educational institution was under<\/p>\n
      discussion.   To set up a reasonable fee structure was held to be<\/p>\n
      component of the right to establish and administer an institution<\/p>\n
      within the meaning of Article 30(1) of the Constitution as per law<\/p>\n
      declared in Pai Foundation.  After so observing, it was held that,<\/p>\n
      every institution is free to devise its own fee structure subject to<\/p>\n
      the limitation that there can be no profiteering and no capitation<\/p>\n
      fee   can   be   charged   directly   or   indirectly,   or   in   any   form.<\/p>\n
      (Reliance  for   these  observations   was  placed  on   paras   56   to   58<\/p>\n
      and   161   of   Pai   Foundation).     In   so   far   as   capitation   fee   is<\/p>\n
      concerned, it was held that the same could not be charged.  The<\/p>\n
      answer to the question was that every institution would be free<\/p>\n
      to devise its own fee structure, but the same can be regulated in<\/p>\n
      the interest of preventing profiteering and that no capitation fee<\/p>\n
      can  be charged.    While  concluding  its judgment, the Supreme<\/p>\n
W.P.(C) No.17873\/2006 etc.                – 167 –<\/span><\/p>\n
      Court in para 155 observed thus:\n<\/p>\n<\/p>\n
                                “The committee regulating admission<\/p>\n
                   procedure   and   fee   structure   shall   continue   to<\/p>\n
                   exist, but only as a temporary measure and an<\/p>\n
                   inevitable   passing   phase   until   the   Central<\/p>\n
                   Government or the State Governments are able<\/p>\n
                   to   devise   a   suitable   mechanism   and   appoint   a<\/p>\n
                   competent   authority   in   consonance   with   the<\/p>\n
                   observations made hereinabove”.<\/p><\/blockquote>\n
                         47.   From the three major decisions referred to<\/p>\n
      above   what   thus   transpires   is   that  whereas   in   Unnikrishnan’s<\/p>\n
      case   the   scheme   that   came   to   be   framed   pertaining   to   fee<\/p>\n
      fixation, 50% of the seats in every professional colleges were to<\/p>\n
      be   filled   by   the   nominees   of   the   Government   or   University,<\/p>\n
      selected on the basis of merit determined by common entrance<\/p>\n
      test   which   were   to   be   free   seats   whereas     the   remaining   50%<\/p>\n
      seats  should be payment seats. The institution was left open to<\/p>\n
      provide   for   reservation   of   seats   for   constitutionally   permissible<\/p>\n
      classes with the approval of the affiliating university and the fee<\/p>\n
      chargeable in each professional college was made subject to such<\/p>\n
W.P.(C) No.17873\/2006 etc.                  – 168 –<\/span><\/p>\n
      a   ceiling     prescribed   by   such   appropriate   authority   or   by   a<\/p>\n
      competent   court.     Every  State   Government   had  to   constitute  a<\/p>\n
      committee   to   fix   the   ceiling   on   the   fees   chargeable   by   a<\/p>\n
      professional   college   or   class   of   professional   colleges   and   the<\/p>\n
      committee   should     fix   the   fee   once   in   every   three   years   or   at<\/p>\n
      such intervals,  and regulations could be framed  to regulate the<\/p>\n
      fee for  the institutions  running   on no-grant-in-aid basis.      The<\/p>\n
      scheme in terms provided that fee as may be prescribed by the<\/p>\n
      professional colleges would be subject to such  a ceiling as may<\/p>\n
      be  prescribed  by  the   appropriate   authority.           The   Committee<\/p>\n
      that   may   be   constituted   had   power   to   fix   the   ceiling   on   fee<\/p>\n
      chargeable   by   professional   colleges.     50%   of     seats   had   to   be<\/p>\n
      free seats and to be filled up by nominees of the Government or<\/p>\n
      University selected on the basis of merit determined by common<\/p>\n
      entrance   test   and   rest   of   50%   would   be   payment   seats.     The<\/p>\n
      scheme   framed   in   Unnikrishnan’s   case   was   under   serious<\/p>\n
      challenge   in   T.M.A.Pai’s   case.     The   institutions   made   a   fervent<\/p>\n
      request   to   recall   or   set   at   naught   the   scheme   framed   in<\/p>\n
      Unnikrishnan’s case as  the same was bound to result in revenue<\/p>\n
W.P.(C) No.17873\/2006 etc.                – 169 –<\/span><\/p>\n
      shortfalls.     The   interim   order   passed   by   the   Court   permitting<\/p>\n
      within payment seats, some percentage of seats which could be<\/p>\n
      alloted   to   non-resident   Indians   against   payment   of   higher<\/p>\n
      amount, it was urged has also not come to rescue the petitioner<\/p>\n
      institutions and they could not run the institutions at all because<\/p>\n
      of   paucity   of  funds.   It  is relevant  to mention  that  the  scheme<\/p>\n
      framed in Unnikrishnan’s case was stated to be unsustainable not<\/p>\n
      only   by   the   counsel   appearing   for   the   petitioners     institutions,<\/p>\n
      but   also   by   the   learned   Solicitor   General   of   India.     It   was<\/p>\n
      commonly   contended   by   them   that   the   scheme   framed   was<\/p>\n
      unreasonable and invalid.   Indeed, the Supreme Court accepted<\/p>\n
      the   said   contention   by   holding   that   the   scheme   could   not   be<\/p>\n
      called   a   reasonable   restriction   under   Article   19(6)   of   the<\/p>\n
      Constitution.     The   restriction   imposed   was   held   would   make   it<\/p>\n
      difficult, if not impossible, for the educational institutions to run<\/p>\n
      the   institution.         In   so   far   as   freeship   envisaged   in<\/p>\n
      Unnikrishnan’s  case  is  concerned,  it  was  held  that   when  higher<\/p>\n
      education was not a fundamental right, it would be unreasonable<\/p>\n
      to compel a citizen  to pay for the education of another, more so<\/p>\n
W.P.(C) No.17873\/2006 etc.                 – 170 –<\/span><\/p>\n
      in   the   unrealistic   world   of   competitive   examinations     which<\/p>\n
      assess the merit for the purpose of admission solely on the basis<\/p>\n
      of   marks   obtained     where   the   urban   students   always   have   an<\/p>\n
      edge   over   the   rural   students.     The   Scheme   in   Unnikrishnan’s<\/p>\n
      case   was   held   to   have   the   effect   of   nationalizing   education   in<\/p>\n
      respect   of   important   features   like   right   of   private   unaided<\/p>\n
      institution   to   give   admission   and   to   fix   the   fee.       The   law<\/p>\n
      permitting   the   directions   given   to   the   UGC,   AICTE,   Medical<\/p>\n
      Council   of   India,   and   Central   and   State   Government   was<\/p>\n
      overruled.             After   overruling         the   scheme   framed   in<\/p>\n
      Unnikrishnan’s   case   and   holding   it   to   be   unconstitutional,   the<\/p>\n
      matter was further examined and it was held that in the context<\/p>\n
      of   fundamental   right   of   the   institution   under   Articles   19   and<\/p>\n
      26(a) of the Constitution pertaining to setting up of a reasonable<\/p>\n
      fee structure, the element of profiteering was not accepted and<\/p>\n
      further   the   fee   structure   must   take   into   account     the   need   to<\/p>\n
      generate  funds  to   be   utilised   for   the  betterment   and   growth   of<\/p>\n
      the educational institutions.  The fixing of rigid fee structure was<\/p>\n
      held   to   be   unreasonable   restriction   on   the   rights   of   the<\/p>\n
W.P.(C) No.17873\/2006 etc.                 – 171 –<\/span><\/p>\n
      institution.       In   Islamic   Academy’s   case,   the   view   taken     in<\/p>\n
      Unnikrishnan’s   case   was   once   again   almost   reiterated   and<\/p>\n
      respective State Governments were then   permitted to set up in<\/p>\n
      each State a Committee headed by a retired High Court Judge,<\/p>\n
      who should be nominated in consultation with   the Chief Justice<\/p>\n
      of the State concerned.  Each educational institution should place<\/p>\n
      before   the   Committee,   well   in   advance,   its   proposed   fee<\/p>\n
      structure.    The Committee was then to decide whether the fees<\/p>\n
      prescribed   by   each   institution   was   justified   and   did   not   involve<\/p>\n
      profiteering   and  charging  capitation   fee.     It   was   further   opined<\/p>\n
      that   the   Committee   was   at   liberty   either   to   approve   the   fee<\/p>\n
      structure   or   propose   some   other   fee   structure   which   could   be<\/p>\n
      charged.     In   Inamdar’s   case,   it   may   be   recalled   that   question<\/p>\n
      No.3   was   with   regard   to   correctness   of   the   judgment   issuing<\/p>\n
      guidelines   in   the   matter   of   fee   payable   by   students   to<\/p>\n
      educational   institutions.     To   set   up   a   reasonable   fee   structure<\/p>\n
      was   held   to   be   a   component   of   the   right   to   establish   and<\/p>\n
      administer  an educational  institution  as  per the  law  declared in<\/p>\n
      T.M.A.Pai’s   case.       Every   educational   institution   was   free   to<\/p>\n
W.P.(C) No.17873\/2006 etc.                   – 172 –<\/span><\/p>\n
      devise its own  fee  structure subject to the limitation that there<\/p>\n
      was   no   profiteering   and   no   capitation   fee   could   be   charged<\/p>\n
      directly   or   indirectly.      From  the   conspectus   of   the   decisions<\/p>\n
      culled out in the   discussion made herein before, it is clear that<\/p>\n
      fixation   of   fee   structure   is   a   fundamental   right   of   educational<\/p>\n
      institutions more particularly, of those which are unaided.   It is<\/p>\n
      further   clear   that   the   fee   has   to   be   decided   by   the   institutions<\/p>\n
      themselves and such right of the institutions cannot be arrogated<\/p>\n
      by   the   State.       While,   however,   fixing   the   fee   structure,   the<\/p>\n
      institutions   cannot   indulge   into   profiteering   nor   can   charge<\/p>\n
      capitation   fee,   even   though   the   element   of   surplus   income   to<\/p>\n
      cater   to   the   future   needs   of   the   institutions   can   be   definitely<\/p>\n
      taken   into   account   while   fixing   the   fee.     The   Committees   that<\/p>\n
      may be constituted or the law that may be even made could only<\/p>\n
      regulate   the   profiteering   and   charging   of   capitation   fee.     The<\/p>\n
      Committees would themselves have every right to modify the fee<\/p>\n
      structure   fixed   by   the   institutions   and   debar   institutions   by   an<\/p>\n
      order and if legislation is made to that effect by law, to reduce<\/p>\n
      the   fee   in   the   event   of   its   coming   to   a   finding   that   the   fee<\/p>\n
W.P.(C) No.17873\/2006 etc.                    – 173 –<\/span><\/p>\n
      structure had a component of profiteering and\/or capitation fee,<\/p>\n
      but   nothing   beyond   that.     The   fixation   of   fee   structure   is   the<\/p>\n
      right of an institution particularly when unaided.  The right of the<\/p>\n
      Committees   that   may   be   constituted   or   the   Government   to<\/p>\n
      legislate,   in   our   considered   view,   cannot   go   beyond   examining<\/p>\n
      the fee structure to find out therein  the element of profiteering<\/p>\n
      or charging of capitation fee, be it by monitoring committees or<\/p>\n
      by   legislation.     It   is   in   this   view   of   the   law   laid   down   by   the<\/p>\n
      Supreme   Court,   the   provisions   under   challenge   have   to   be<\/p>\n
      examined.\n<\/p>\n<\/p>\n
                    48.     In   view   of   the   provisions   contained   in<\/p>\n
      sub-section (4) of Section 6, the fee regulatory committee would<\/p>\n
      have power to require each unaided college or institution to place<\/p>\n
      before it the proposed fee structure with all relevant documents<\/p>\n
      well in advance of the commencement of the academic year, i.e.<\/p>\n
      not later than 31st  December of the previous academic year and<\/p>\n
      the committee has the power to verify whether the fee fixed is<\/p>\n
      justified   and   does   not   amount   to   profiteering   or   charging   of<\/p>\n
      capitation fee and also to approve the fee structure or determine<\/p>\n
W.P.(C) No.17873\/2006 etc.                 – 174 –<\/span><\/p>\n
      some other fee which could be charged.  The fee determined by<\/p>\n
      the   committee   is   binding   for   a   period   of   three   years   as   per<\/p>\n
      sub-sections (4) and (5) of Section 6.  It cannot be revised with<\/p>\n
      regard   to   the   students   admitted   in   that   academic   year     till   he<\/p>\n
      completes   his   course.     The   institution   cannot   collect   any   fee<\/p>\n
      more   than   one   year’s   fee   in   an   academic   year   as   that   would<\/p>\n
      amount   to   collecting   capitation   fee.       As   per   the   provisions<\/p>\n
      contained   in   Section   7,   the   fee   regulatory   committee   would<\/p>\n
      determine and fix  the fee or  fees to  be  charged  by  an  unaided<\/p>\n
      professional   college   taking   into   consideration   the   obligation   to<\/p>\n
      provide freeship to minimum of   50% of seats admitted and the<\/p>\n
      additional   expenses,   if   any,   required   for   the   same   over   and<\/p>\n
      above   the   excess   funds   generated   from   Non-Resident   Indians,<\/p>\n
      charity   on   the   part   of   managements   and   contributions   by   the<\/p>\n
      Government   for   providing   freeship   for   Scheduled   Caste   and<\/p>\n
      Scheduled Tribe students, the nature of the professional course,<\/p>\n
      the   available   infrastructure,   the   expenditure   on   administration<\/p>\n
      and   maintenance,   reasonable   surplus   required   for   the   growth<\/p>\n
      and development  of  the college and any  other factor which the<\/p>\n
W.P.(C) No.17873\/2006 etc.                   – 175 –<\/span><\/p>\n
      Committee may deem fit.  In view of the provisions contained in<\/p>\n
      Section  9  of  the Act,  no  institution  can  collect   fee  by  whatever<\/p>\n
      name   called   over   and   above   the   fee   determined   by   the   fee<\/p>\n
      regulatory committee, provided that the committee may fix the<\/p>\n
      fee  for   NRI   seats   and  the  amount   so   collected   over   and  above<\/p>\n
      the  fee fixed  for  other students  has to  be  utilised for providing<\/p>\n
      freeship to  socially   and  economically  backward classes.   Tested<\/p>\n
      in  the anvil of the law  laid down by the Supreme Court as culled<\/p>\n
      out   by   us  hereinbefore,   it   appears   to   us     that   the   position   as<\/p>\n
      available in Unnikrishnan’s case has been revived.  There may be<\/p>\n
      some provisions in the Act that may be in consonance with the<\/p>\n
      law laid down in the judicial precedents referred to above, but in<\/p>\n
      so   far   as   the   right   of   self   financing   institutions   to   fix   a   fee<\/p>\n
      structure as may be thought appropriate by it is concerned, the<\/p>\n
      same has been completely taken away.   It may be one thing to<\/p>\n
      say that self financing institutions would determine their own fee<\/p>\n
      structure   subject   to   the   approval   of   the   Government,   either<\/p>\n
      through committees constituted by it or by law framed by it, but<\/p>\n
      entirely   another   thing   to   say   that   every   element   that   goes   to<\/p>\n
W.P.(C) No.17873\/2006 etc.                  – 176 –<\/span><\/p>\n
      determine   the   fee   structure   would   be   considered   by   the<\/p>\n
      Committee or the Government and the fees thus fixed would be<\/p>\n
      binding   upon   the   self   financing   institutions.     Fixation   of   a   fee<\/p>\n
      structure   has   indeed   been   held   to   be   an   important   facet   of<\/p>\n
      establishing and administering an educational institution, be it of<\/p>\n
      minority or non-minority.   This right cannot be totally curtailed.<\/p>\n
      This   right   would   be   straightaway   infringed   if   it   is   arrogated   by<\/p>\n
      the State,   even  though  there  may be no  infringement  of   such<\/p>\n
      rights   if   it   is   regulated   to   vouchsafe   non-profiteering   and<\/p>\n
      non-charging of capitation fee.   It is no doubt true that in sub-<\/p>\n
      section   (4)   of   Section   6   of   the   Act,   it   has   been   stated   that<\/p>\n
      regulatory   committee   would   require   each   unaided   professional<\/p>\n
      college or institution to place before it the proposed  structure of<\/p>\n
      fee     and   verify   whether   the   fee   proposed   by   each   college   is<\/p>\n
      justified   and   does   not   involve   profiteering   or   charging   of<\/p>\n
      capitation   fee,   but   the   right   given   to   the   fee   regulatory<\/p>\n
      committee   to   determine   and   fix   the   fee   to   be   charged   by   the<\/p>\n
      institution would undoubtedly infringe the right of the institution<\/p>\n
      to fix its own fee structure.   In the context of entire    legislation<\/p>\n
W.P.(C) No.17873\/2006 etc.                  – 177 –<\/span><\/p>\n
      pertaining   to   fee   structure,   however,   that   alone   may   not   be<\/p>\n
      enough to strike down Section 6 under challenge.   It is too well<\/p>\n
      settled a proposition of law  that if it may be possible to reconcile<\/p>\n
      various provisions of the Act in such a way the same can be read<\/p>\n
      so   as   to  harmonise  such   provisions   to   become   in   consonance<\/p>\n
      with   the   law,   the   same   needs   to     be   upheld.     In   the<\/p>\n
      circumstances aforesaid,   there would be need to read down<\/p>\n
      the   provisions   of   Sections   6   of   the   Act   of   2006.          The<\/p>\n
      provisions of Section 6 of the Act can be read to mean that every<\/p>\n
      professional   college   would   have   a   right   to   fix   its   fee   structure,<\/p>\n
      which   would   be   subject   to   its  finalisation  by   the   Government,<\/p>\n
      which   would   have   a   right   to   re-model   it   by   taking   away   the<\/p>\n
      element of profiteering and charging of capitation fee, if any.  In<\/p>\n
      other   words,   the  reading   down   of     Section   6   of   the  Act   of<\/p>\n
      2006 thus would be  to the extent that every professional<\/p>\n
      college   would   place   before   the   committee   the   fee<\/p>\n
      structure   as   set   out   by   it,   which   would   be   subject   to<\/p>\n
      verification   by   excluding   the   element   of   profiteering   and<\/p>\n
      charging of capitation fee.    This reading down of the Section<\/p>\n
W.P.(C) No.17873\/2006 etc.                – 178 –<\/span><\/p>\n
      is   necessary   to   protect   Section   6   and   such   reading   down   shall<\/p>\n
      not   make   any   difference   either   to   the   institution   or   to   the<\/p>\n
      Government,   as   virtually   it   is   in   any   case   the   right   of   the<\/p>\n
      management to fix the fee structure and in any case the right of<\/p>\n
      the  Government   to examine it      to the extent  it may  have an<\/p>\n
      element of profiteering or charging of capitation fee.<\/p>\n
                   49.   The challenge to Section 7 of the Act, however,<\/p>\n
      stands on a different footing.   The Fee Regulatory Committee, it<\/p>\n
      appears   has   been   given   all-sweeping   powers   to   determine   the<\/p>\n
      fee to be charged by an unaided professional college.  The nature<\/p>\n
      of   the   professional   course,   the   available   infrastructure,   the<\/p>\n
      expenditure   on   administration   and   maintenance,   reasonable<\/p>\n
      surplus required for the growth and development of the college<\/p>\n
      and any other factor  would all be taken into consideration by the<\/p>\n
      Committee itself and not by the institution.   Even though while<\/p>\n
      dealing with Section 6 we have held that the same can be read<\/p>\n
      down   to   mean   that   the   institution   concerned   would   fix   the   fee<\/p>\n
      structure   which   may   be   regulated   by   the   Committee   as<\/p>\n
      mentioned above, but insofar as Section 7 is concerned, it is the<\/p>\n
W.P.(C) No.17873\/2006 etc.                 – 179 –<\/span><\/p>\n
      Fee  Regulatory   Committee   which   has   been   given   the   power   to<\/p>\n
      determine the fee taking into consideration the various factors as<\/p>\n
      mentioned   above.     What   expenses   would   be   required   to<\/p>\n
      efficiently run the institution taking into consideration the nature<\/p>\n
      of   the   professional   course,   the   available   infrastructure,   the<\/p>\n
      expenses of administration and maintenance and what would be<\/p>\n
      the  reasonable  surplus required for  growth and  development  of<\/p>\n
      the college, it appears to us, should   be at the discretion of the<\/p>\n
      management,   but   this   has   been   left   to   be   taken   into<\/p>\n
      consideration   and   fee   accordingly   fixed   by   the   Fee   Regulatory<\/p>\n
      Committee.    In the very nature of the things  it does not appear<\/p>\n
      that the Regulatory Committee would know in depth the affairs<\/p>\n
      of   the   institution   as   best   as   the   institution   may   know   itself.<\/p>\n
      That   apart,   if   all   these   factors   are   considered   and   fee   then<\/p>\n
      determined by the Regulatory Committee, then what is left out in<\/p>\n
      the right of the unaided institutions in the name of establishing<\/p>\n
      and   administering   the   institution,   which   has   an   important<\/p>\n
      component of fixation of fee.  To illustrate, if the institution may<\/p>\n
      plan   its   expansion   to   double   the   seats   or   have   double   the<\/p>\n
W.P.(C) No.17873\/2006 etc.               – 180 –<\/span><\/p>\n
      buildings   and   infrastructures   as   according   to   it,   it   may   be<\/p>\n
      necessary,   and   accordingly   fix   the   fee,   can   the   Regulatory<\/p>\n
      Committee say the expansion and development of the institution<\/p>\n
      would   entail   fixation   of   more   fee   and   therefore   it   is   not<\/p>\n
      permitted.     It may be recalled that each institution, as held by<\/p>\n
      the Supreme Court, is entitled to have its own fee structure.  The<\/p>\n
      fee structure for each institution   must be fixed keeping in mind<\/p>\n
      the infrastructure and facilities available,  the investments made,<\/p>\n
      salaries paid to the teachers and staff, future plans for expansion<\/p>\n
      and\/or betterment of the institution etc..   It appears to us that<\/p>\n
      the position that became available after Unnikrishnan’s case has<\/p>\n
      almost been reiterated in framing Section 7 of the Act of 2006.<\/p>\n
      If  one  may  examine closely the provisions contained in Section<\/p>\n
      7, it may appear to be almost similar to the scheme framed in<\/p>\n
      Unnikrishnan’s   case.     In   Unnikrishnan’s   case,   the   scheme   that<\/p>\n
      came to be framed pertained to fee fixation, 50% of seats are to<\/p>\n
      be  filled   up  by   the   nominees   of   the   Government   or   University.<\/p>\n
      These   50%   seats   are   to   be   free   seats   whereas   the   remaining<\/p>\n
      50%   are   payment   seats.     However,   the   Government   has   to<\/p>\n
W.P.(C) No.17873\/2006 etc.                 – 181 –<\/span><\/p>\n
      constitute a committee to fix a ceiling on the fee chargeable by<\/p>\n
      professional college\/s and   fix the fee once in every three years<\/p>\n
      or   at   such   longer   intervals.     Regulations   could   be   framed   to<\/p>\n
      regulate   the   fee   of   the   institutions.     The   scheme   provided   that<\/p>\n
      the fee that   may be  fixed  by  the  professional  college would  be<\/p>\n
      subject to such ceiling as may be prescribed by the appropriate<\/p>\n
      authority.    In the present case as well, 50% of seats are to be<\/p>\n
      compulsorily   free   seats.       The   Committee   has   been   given<\/p>\n
      exclusive   power   to   fix   the   fee   by   taking   into   consideration<\/p>\n
      different aspects as mentioned above.  However, in what manner<\/p>\n
      the   various   components   would   be   regulated   like   what   budget<\/p>\n
      would be provided against those items has again been left to the<\/p>\n
      exclusive   domain   of   the   Regulatory   Committee.     No   unaided<\/p>\n
      professional college would collect any fee from the candidates for<\/p>\n
      admission   over and above the fee fixed by the Fee Regulatory<\/p>\n
      Committee as per the provisions contained in Section 9.  There is<\/p>\n
      a   maximum   limit   also   thus   prescribed.     Violation   of   the<\/p>\n
      provisions   of   the   above   Act   would   entail   penal   action.       This<\/p>\n
      appears   to   be   in   sharp   contrast   to   the   law   laid   down   in<\/p>\n
W.P.(C) No.17873\/2006 etc.                 – 182 –<\/span><\/p>\n
      T.M.A.Pai’s case and Inamdar’s case.   This is a virtual take over,<\/p>\n
      clearly   infringing   the   right   of   the   unaided   institutions     in   the<\/p>\n
      matter of fixation of fee, which is indeed a right guaranteed to it<\/p>\n
      under Articles 19 (1)(g) and 26(a) of the  Constitution of India.<\/p>\n
                   50.   Section 2 (o) defines Non-Resident Indian seats<\/p>\n
      to   mean  seats  reserved  for   children or   wards  or   dependents  of<\/p>\n
      Non-Resident   Indians   to   whom   admission   is   given   by   the<\/p>\n
      management in a fair, transparent and non-exploitative manner<\/p>\n
      on the basis of fees as may be prescribed.   Section 7(a) enjoins<\/p>\n
      upon even an unaided professional college to provide freeship to<\/p>\n
      a minimum of fifty per cent of students admitted.  The additional<\/p>\n
      funds   that   may   be   required   for   giving   50%   freeship,   it   is<\/p>\n
      provided,   can   be   covered   by   the   excess   funds   generated   from<\/p>\n
      Non-Resident   Indians,   charity   on   the   part   of   management   and<\/p>\n
      contribution   from   the   Government   for   providing   freeship   for<\/p>\n
      SC\/ST   students.   In   view   of   the   provisions   contained   in<\/p>\n
      sub-section (2) of Section 9,  an unaided institution is to provide<\/p>\n
      freeship to a minimum of 50% of students admitted irrespective<\/p>\n
      of   whether   they   are   unaided   minority   or   non-minority.       It   is<\/p>\n
W.P.(C) No.17873\/2006 etc.                  – 183 –<\/span><\/p>\n
      interesting   to   note   that   Government   by   issuance   of   the<\/p>\n
      notification in the gazette may constitute a fund called a Higher<\/p>\n
      Education  Scholarship   Fund  for   providing scholarship to   socially<\/p>\n
      and   economically   backward   students   admitted   in   professional<\/p>\n
      colleges as per sub-section (1) of Section 12.   The corpus of the<\/p>\n
      fund shall be contributions from Government, the amount of fine<\/p>\n
      levied under the Act and the funds raised from any other source<\/p>\n
      including Non-resident Indians.   The Fund is  to be administered<\/p>\n
      by   an   administrator   appointed   by   the   Government.   The<\/p>\n
      administration of the fund is in the hands of the administrator to<\/p>\n
      be   used     in   such   manner   as   may   be   prescribed.         It   may   be<\/p>\n
      recalled   that   the   scheme   as   framed   in   Unnikrishnan’s   case<\/p>\n
      provided   that     50%   of   the   seats   in   every   professional   college<\/p>\n
      should   be   filled   by   the   nominees   of   the   Government   or<\/p>\n
      University,   which   would   be   referred   to   as   free   seats,   whereas,<\/p>\n
      the   remaining   50%   seats   should   be   filled   by   those   candidates<\/p>\n
      who  pay   the   free   prescribed  therefor.     This   scheme   was   under<\/p>\n
      challenge   in   T.M.A.Pai’s   case.     It   was   urged   on   behalf   of   the<\/p>\n
      institutions   that  the  cost  incurred  on  educating  a student  in  an<\/p>\n
W.P.(C) No.17873\/2006 etc.                – 184 –<\/span><\/p>\n
      unaided   professional   college   would   be   more   than   the   total   fee<\/p>\n
      which   could   be   realised   as   per   the   scheme   framed   in<\/p>\n
      Unnikrishnan case.   Despite the fact that the Supreme Court by<\/p>\n
      an interim order had permitted some percentage of seats to be<\/p>\n
      alloted as  NRI  seats   against  payment  of   higher  amount,  it  was<\/p>\n
      still urged that the same would even not come to the rescue of<\/p>\n
      the institutions.  It was urged that the said extra amounts would<\/p>\n
      not   make   available   sufficient   funds   for   the   development   of   the<\/p>\n
      institutions   providing     freeship   to   the   extent   of   50%.     While<\/p>\n
      dealing with the challenge to freeship in Unnikrishnan’s case, the<\/p>\n
      Supreme   Court   observed   that   the   said   judgment   has   created<\/p>\n
      problems   and raised thorny issues.    No  doubt,   it  was  observed<\/p>\n
      that,     the   anxiety   of   the   Bench   in   Unnikrishnan’s   case   to<\/p>\n
      accommodate poor students have not come true and as a matter<\/p>\n
      of   fact,  converse had  happened,  but  it  was also observed  that,<\/p>\n
      “it   seems   unreasonable   to   compel   a   citizen   to   pay   for   the<\/p>\n
      education   of   another,   more   so   in   the   unrealistic   world   of<\/p>\n
      competitive examinations which assess the merit for the purpose<\/p>\n
      of   admission   solely   on   the   basis   of   the   marks   obtained,   where<\/p>\n
W.P.(C) No.17873\/2006 etc.                 – 185 –<\/span><\/p>\n
      the   urban   students   always   have   an   edge   over   the   rural<\/p>\n
      students”.     Paying   for   others   is   a   cross   subsidy   and   cannot   be<\/p>\n
      permitted.     Mr.Vaidyanathan,   would   however   submit   that   the<\/p>\n
      anomaly in Unnikrishnan’s case that came about of poor actually<\/p>\n
      subsidising the rich has been set right in the Act and now   it is<\/p>\n
      only the rich who would  subsidise  the poor.   We have given our<\/p>\n
      anxious thoughts to the contention raised by him, but the same<\/p>\n
      does not appear to be having any substance.  The two aspects in<\/p>\n
      the   provisions   of   the   Act   of   2006   appear   to   be   against   the<\/p>\n
      contention raised by Mr.Vaidyanathan; the first being that 50%<\/p>\n
      freeship despite the institutions permitted to charge extra funds<\/p>\n
      from   Non-Resident   Indians   demonstratively   did   not   cater   for<\/p>\n
      revenue shortfall   of  the  institutions,  as  urged in  T.M.A.Pai  case<\/p>\n
      and accepted.  Further, it is only in medical colleges we are told<\/p>\n
      there   may   be   candidates   aspiring   to   take   admission   under   the<\/p>\n
      Non-Resident   Indian   category,   whereas   for   other   institutions<\/p>\n
      imparting   education   in   the   stream   of   Engineering,   Nursing   and<\/p>\n
      Teacher   Education,   there   is   hardly   any   seat   that   may   be<\/p>\n
      reserved   to   be   taken   by   Non-Resident   Indians.     In   the<\/p>\n
W.P.(C) No.17873\/2006 etc.                          – 186 –<\/span><\/p>\n
      Engineering   Colleges,   we   have   been   given   data   to   show   that<\/p>\n
      during   the   last     three   academic   years,   so   many   seats   went<\/p>\n
      abegging.         As   per   the   data   provided   by   the   petitioner<\/p>\n
      institutions,   the   vacancy   position   of   seats   in   B.Tech   Courses  in<\/p>\n
      the   49   institutions   during   the   last   three   years   viz.   2003-04,<\/p>\n
      2004-05 and 2005-06 are as follows:\n<\/p>\n<\/p>\n
                 Name of College\/Institution                            2003-04 2004-05 2005-06<\/p>\n
      Mohandas College of Engg. & Technology, Trivandrum.                 47      112     55<\/p>\n
      Lourdes Matha College of Science & Tech. Trivandrum                 49      139     110<\/p>\n
      Mar Baselios College of Engg. & Tech., Trivandrum                   19      52      14<\/p>\n
      Mary Matha College of Engg. & Tech. Trivandrum                      17      148     262<\/p>\n
      P.A.Aziz College of Engg. & Technology, Trivandrum                   –       –       –<\/p>\n
      Muslim Assn. College of Engg., Venjaramoodu, Trivandrum             34      82      73<\/p>\n
      Marian Engg. College, Kazhakuttom, Trivandrum                       24      127     37<\/p>\n
      M.G.College of Engineering, Thiruvallom, Trivandrum                         204     64<\/p>\n
      Sarabhai Institute of Science & Tech., Vellanad, Trivandrum.                 0      33<\/p>\n
      SHM Engg. College, Kadakkal, Kollam.                                56      163     108<\/p>\n
      Younus College of Engg. & Technology, Kollam                        20      70      88<\/p>\n
      Baselios Mahews II College of Engg, Sasthamcotta, Kollam            13      73      17<\/p>\n
      Travancore Engineering College, Oyoor, Kollam                       22      76      37<\/p>\n
      TKM Institute of Technology, Kollam                                 24      79      22<\/p>\n
      Caarmel Engg. College, Perunad,  Ranni                              40      99      134<\/p>\n
      Mount Zion College of Engg. , Kadammanitta, Pathanamthitta          57      135     73<\/p>\n
      Musaliar College of Engg. & Tech. Kumbazha, Pathanamthitta          19      48      63<\/p>\n
      Mar Baselios Christian College of Engg. & Tech. Peermade            43      145     135<\/p>\n
      Sree Budha College of Engineering, Pattoor, Alappuzha                4      101      6<\/p>\n
      Saintgits College of Engineering, Kottayam                           3      89      139<\/p>\n
      St.Joseph’s College of Engg. & Technology, Pala, Kottayam           15      80       4<\/p>\n
      Mangalam Engineering College, Aluva, Ernakulam.                      0      115     83<\/p>\n
      Amal Jyothi College of Engineering, Kanjirappaly, Kottayam          45      93      24<\/p>\n
      KMEA  Engineering College, Aluva, Ernakulam.                        46      68      19<\/p>\n
      Viswajyothi College of Engg. & Tech., Vazhakulam, Muvattupuzha      29      106      3<\/p>\n
      Federal Institute of Science & Tech.,Mookkanoor, Angamaly            9      24       5<\/p>\n
W.P.(C) No.17873\/2006 etc.                       – 187 –<\/span><\/p>\n
      SNM Institute of Management & Tech., Maliankara, EKM.              34     112      71<\/p>\n
      Ilahia College of Engg & Tech., Muvattupuzha                       37     168      11<\/p>\n
      Adi Shankara Institute of Engg. & Tech., Kalady, Ernakulam.        31      68      8<\/p>\n
      Rajagiri School of Engg. & Technology, Ernakulam                   26      11      0<\/p>\n
      SCMS School of Engg. & Tech. Karukutty, Ernakulam                  58      68      50<\/p>\n
      Toc-H  Institute of  Science & Tech. Arakunnam, Ekm.               57      60      3<\/p>\n
      Sree Narayana Gurukulam College of Engg, Kadiyiruppu, Ekm.         31     102      14<\/p>\n
      Matha College of Engg & Tech. Mankkapady, Paravur, Ekm.<\/p>\n
      Met’s School of Engineering, Mala, Trissur                         37     114      67<\/p>\n
      Jyothi Engineering College, Cheruthuruthy, Trissur                 33      81      3<\/p>\n
      Nehru College of Engg. Research Centre, Thiruvilwamala,Trissur     19      98      17<\/p>\n
      Royal College of Engg. & Tech., Kunnamkulam, Trissur               47     169      38<\/p>\n
      Vidya Academy of Science & Technology, Trissur                     6       21      9<\/p>\n
      Sahrdaya College of Engg. Technology, Kodakara, Trissur            3       10      0<\/p>\n
      IES College of Engg., Chittilappilly, Trissur                      21      85      18<\/p>\n
      Al-Ameen Engineering College, Shoranur, Palakkad                   51      79      40<\/p>\n
      MEA Engineering Colege, Perinthalmanna, Malappuram                 47      96     118<\/p>\n
      Vedavyasa Institute of Technology, Malappuram                      0      138     105<\/p>\n
      MES College of Engineering, Kuttipuram, Malappuram<\/p>\n
      KMCT College of Engineering, Mukkom, Calicut                       55     145     133<\/p>\n
      AWH Engineering College, Calicut                                   31     159     110<\/p>\n
      Vimal Jyothi Engineering College, Kannur                           35     144      51<\/p>\n
      Sree Narayana Guru College of Engg. & Tech,Payyannur, Kannur       1      110      9<\/p>\n
                                                                        1295    4266    2480<\/p>\n
      When   even     the   sanctioned   seats     could   not   be   filled   and   so<\/p>\n
      many seats remained vacant, as mentioned above, there would<\/p>\n
      be hardly any Non-Resident Indian in such stream of education.<\/p>\n
      That   apart,   it   is   not   sure   that   in   which   year   there   would   be<\/p>\n
      demand   for   Non-Resident   Indian   seats   for   admission   in<\/p>\n
      Medical   Colleges,   how   many   such   students   or   how   many   such<\/p>\n
      percentage of students would seek   admission in such  category.<\/p>\n
W.P.(C) No.17873\/2006 etc.                  – 188 –<\/span><\/p>\n
      In   a   given   year   there   may   not   be   any   applicant   desiring<\/p>\n
      admission in NRI category.   It is  one thing to say that number<\/p>\n
      of freeship would be commensurate to the admission of students<\/p>\n
      in   NRI   category   and   yet   another   thing   to   say   that   it   would  be<\/p>\n
      minimum   50%.         Secondly,   students   other   than   Non-Resident<\/p>\n
      Indians cannot possibly be asked to pay for the other students as<\/p>\n
      that may cause cross subsidy and this is bound to happen if the<\/p>\n
      surplus gained from Non-Resident Indians may not be enough to<\/p>\n
      balance   freeship   to   the   extent   of   50%.         The   Regulatory<\/p>\n
      Committee has to fix the fee structure by positively taking into<\/p>\n
      consideration 50% of freeship.  It thus means that irrespective of<\/p>\n
      funds   generated   by   the   institutions   on   account   of   surplus   from<\/p>\n
      Non-Resident   Indians,   charity     etc.,   the   freeship   in   any   case<\/p>\n
      would   be   50%.     The   only   consequence   of   the   provisions   read<\/p>\n
      together would be either financial bankruptcy for the institutions<\/p>\n
      or prescribing high fee to the students who may be admitted in<\/p>\n
      non-free seats.   This would make the position unreasonable and<\/p>\n
      disproportionate.     In   Inamdar’s   case,   the     Supreme   Court   did<\/p>\n
      observe   that   limited   reservation   of   seats     not   exceeding   15%<\/p>\n
W.P.(C) No.17873\/2006 etc.                  – 189 –<\/span><\/p>\n
      could  be  made available to  Non-Resident  Indians   depending  on<\/p>\n
      the discretion of the management and that amount of money in<\/p>\n
      whatever   form   collected   from   Non-Resident     Indian   should   be<\/p>\n
      utilised   for   benefitting   students   such   as   from   economically<\/p>\n
      weaker sections of the society, whom, on  a well defined criteria,<\/p>\n
      the educational institution may admit on  subsidised  payment of<\/p>\n
      their   fee.    But,  as  mentioned  above,   what   would  happen  if   the<\/p>\n
      institutions   may   not   consider   it   proper   to   admit   students<\/p>\n
      belonging to NRI as it is in their discretion   to do so.   It is not<\/p>\n
      compulsory.     In   that   event,   there   will   be   no   candidate   for<\/p>\n
      admission for a seat   for NRI  or when such students be one  or<\/p>\n
      two   percent.     The   admission   of   students   in   the   NRI   category<\/p>\n
      would   vary   from   year   to   year,   but  in  so  far   as   fee  structure   is<\/p>\n
      concerned,  the   same  shall   have  to   be   worked  out  by  providing<\/p>\n
      50%   freeship,   to   be   catered   from   the   surplus   that   may   be<\/p>\n
      generated   from   Non-Resident   Indians.  Reference   at   this   stage<\/p>\n
      also   be   made   to   sub-section   (8)   of   Section   10.     The   minority<\/p>\n
      institutions   are   obliged   to   admit   atleast   50%   of   seats   of   their<\/p>\n
      community and out of these seats 50% are free seats.  The free<\/p>\n
W.P.(C) No.17873\/2006 etc.                   – 190 –<\/span><\/p>\n
      seats,   subsidised   seats     or   partly   subsidised   seats   may   be   far<\/p>\n
      more commensurate to the seats which may bring some surplus<\/p>\n
      with   the   institutions.     Not   only   that   it   may   be   difficult   for   the<\/p>\n
      institutions to run their affairs, but that shall also result in cross<\/p>\n
      subsidy.     Looked   from   any   angle,   the   provisions   contained   in<\/p>\n
      Section   7(a)   read   with   other   provisions   as   mentioned   above<\/p>\n
      would   make   the   said   provisions   unreasonable.     Further,   as   per<\/p>\n
      Section   12,   a   higher   education   scholarship   fund   has   to   be<\/p>\n
      constituted for providing scholarship to socially and economically<\/p>\n
      backward   students   admitted   in   professional   colleges   or<\/p>\n
      institutions and the corpus of the fund would include funds raised<\/p>\n
      from Non-Resident Indians, and this Fund  is to be administered<\/p>\n
      by the Administrator appointed by the Government.  The surplus<\/p>\n
      funds   generated   from   admission   in   NRI   category   and   from<\/p>\n
      charity etc. may be to balance the freeship, but the fund has to<\/p>\n
      go into the hands of the Government and has to be administered<\/p>\n
      in   the   way   and   manner   it   may   prescribe.       The   provisions   of<\/p>\n
      Section   7   of   Act   of   2006   would   infringe   upon   the   rights   of   the<\/p>\n
      management in fixation of fee structure and the same have thus<\/p>\n
W.P.(C) No.17873\/2006 etc.                   – 191 –<\/span><\/p>\n
      to be held invalid and  unconstitutional.\n<\/p>\n<\/p>\n
                     Minority Status – Determining factors:\n<\/p>\n<\/p>\n
                    51.       There   is   a   frontal   attack   on   the   provisions<\/p>\n
      dealing with the status of minority institutions.  It is urged by the<\/p>\n
      learned   counsel   appearing  on   behalf   of   the   petitioners   that   the<\/p>\n
      provisions   have   been   made   with   the   sole   object   of   completely<\/p>\n
      annihilating   the   right   of   minorities   to   establish   and   administer<\/p>\n
      minority   institutions.     If   the   rights   of   the   minorities   are   to   be<\/p>\n
      worked out under the conditions envisaged under the provisions<\/p>\n
      of the Act under challenge, in the State of Kerala   no institution<\/p>\n
      would   have   such   a   right.     With   a   view   to   appreciate   the<\/p>\n
      contention   of   the   learned  counsel,  it   will   be  useful   to   take   into<\/p>\n
      consideration   the   provisions   dealing   with   minority,   particularly<\/p>\n
      such   provisions   which   limit   the   exercise   of   the   right   by   the<\/p>\n
      minorities.  Minority has been defined under Section 2 (l) and the<\/p>\n
      same for the purpose of the Act means a community belonging<\/p>\n
      to   a   religious   or   linguistic   minority   as   may   be   determined   by<\/p>\n
      Government taking the State as a unit.       As per Section 2(m),<\/p>\n
      minority professional college or institution  means a professional<\/p>\n
W.P.(C) No.17873\/2006 etc.                     – 192 –<\/span><\/p>\n
      college or institution established and maintained   by a minority<\/p>\n
      that fulfills the non-discriminatory criteria as laid down in the Act<\/p>\n
      and determined as such by the Government.     Minority seats as<\/p>\n
      per Section 2 (n) means seats reserved for students who belong<\/p>\n
      to   the   community   that   runs   the   minority   unaided   professional<\/p>\n
      college or institution and filled up on the basis of inter se merit in<\/p>\n
      the   manner   prescribed,   from   the   rank   list   prepared   by   the<\/p>\n
      Commissioner   for   Entrance   Examinations.     In   the   midst   of<\/p>\n
      arguments on 18th  October, 2006, when  enquired  as to whether<\/p>\n
      the   determination   as   mentioned   in   Section   2(l)   and   2   (m)   has<\/p>\n
      been   so   far   done   or   not,   the   State   sought   adjournment.     The<\/p>\n
      order dated 18th October, 2006 reads as follows:<\/p>\n
                                   “In   the   midst   of   arguments   when   confronted<\/p>\n
                   with   sub-clauses   (l)   and   (m)   of   Section   2   of   Kerala<\/p>\n
                   Professional   Colleges   (Prohibition   of   capitation   fee,<\/p>\n
                   regulation   of   admission,   fixation   of   non-exploitative<\/p>\n
                   measures   to   ensure   Equity   and   Excellence   in   Professional<\/p>\n
                   Education)   Act,   2006   pertaining   to   definition   of   ‘minority’<\/p>\n
                   and   ‘minority  professional   college   or   institution’,   regarding<\/p>\n
                   which  no determination  has been made by the Government<\/p>\n
                   yet, Sri.C.S.Vaidyanathan, Senior Counsel appearing for the<\/p>\n
                   State seeks adjournment.  List again on 26.10.2006”.<\/p>\n<\/blockquote>\n
      On  the   adjourned  date,   counsel   stated   they   would   produce  the<\/p>\n
      order declaring Christians and Muslims as Minority Communities<\/p>\n
W.P.(C) No.17873\/2006 etc.                      – 193 –<\/span><\/p>\n
      for the purpose of Section 2(l) of the Act 19 of 2006. After the<\/p>\n
      case   was   reserved   for   judgment,   but   during   the   course   of<\/p>\n
      preparing the judgment, the Government Pleader has produced a<\/p>\n
      copy of  order dated 06.12.2006 which reads as follows:<\/p>\n
                            “After   considering   all   the   aspects   of   the   matter,<\/p>\n
            Government are pleased to order that Christians and Muslims will be<\/p>\n
            treated   as   Minorities   under   Section   2(l)   of   the   The   Kerala<\/p>\n
            Professional   Colleges   or   Institutions   (Prohibition   of   Capitation   Fee,<\/p>\n
            Regulation of Admission, Fixation of Non Exploitative Fee and other<\/p>\n
            Measures   to   ensure   equality   and   excellence   in   Professional<\/p>\n
            Education) Act, 2006, (Act 19 of 2006)”.<\/p><\/blockquote>\n
                    52.   The determining factors for granting recognition<\/p>\n
      and   conferring   the   status   as   unaided   minority   professional<\/p>\n
      college   or   institution   are   contained   in   Section   8   which   has<\/p>\n
      already   been   reproduced.         In   so   far   as   sub-section   (1)   of<\/p>\n
      Section 8 is concerned, there is no dispute about the same.   An<\/p>\n
      unaided minority professional college established and maintained<\/p>\n
      by   a   linguistic   and     religious   minority   is   to   be   recognised   and<\/p>\n
      conferred the status of unaided minority professional college if it<\/p>\n
      may   have   population   of   the   concerned   linguistic   or   religious<\/p>\n
      minority   community   in   the   State   which   runs   the   professional<\/p>\n
      college or institution is lesser than 50% of the total population of<\/p>\n
W.P.(C) No.17873\/2006 etc.                   – 194 –<\/span><\/p>\n
      the   State.     This   is   indeed   also   what   has   been   held   in   all   the<\/p>\n
      decisions   referred   to   above.     The   dispute   is   with   regard   to<\/p>\n
      clauses (b) and (c) of Section 8.   As per clause (b) of Section 8,<\/p>\n
      the   number   of   professional   college   or   institution   run   by   the<\/p>\n
      linguistic or  religious minority  community in the  State to  which<\/p>\n
      the college or institution belong has to be proportionately lesser<\/p>\n
      than the number of professional colleges run by the non-minority<\/p>\n
      community   in   the   State.     In   other   words,   if   the   number   of<\/p>\n
      professional colleges run by the concerned religious or linguistic<\/p>\n
      minorities   are   more   than   such   professional   colleges   or<\/p>\n
      institutions   run   by   non-minority   institutions   in   the   State,   such<\/p>\n
      minority   institutions   would   have   no   right   as   envisaged   under<\/p>\n
      Article 30(1) of the Constitution.   As per clause (c) of Section 8,<\/p>\n
      the   number   of   students   belonging   to   the   linguistic   or   religious<\/p>\n
      minority   community   to   which   the   college   or   institution   belongs<\/p>\n
      undergoing professional education in all professional colleges or<\/p>\n
      institutions  in the State has to be proportionately less than the<\/p>\n
      number   of   students   belonging   to   the   professional   colleges   or<\/p>\n
      institutions   in   the   State.     In   other   words,     the   number   of   the<\/p>\n
W.P.(C) No.17873\/2006 etc.                   – 195 –<\/span><\/p>\n
      students   belonging   to   the   concerned   linguistic   or   religious<\/p>\n
      minority has to be lesser than the number of students belonging<\/p>\n
      to   colleges   or   institutions   in   the   State.     If   therefore,   the   total<\/p>\n
      number   of   students   belonging   to   the   concerned   minority<\/p>\n
      community is more than the number of students in the State in a<\/p>\n
      particular   stream   of   education,   once   again   even   though     a<\/p>\n
      minority   community,   it   shall   have   no   right   as   envisaged   under<\/p>\n
      Article 30(1) of the Constitution.   Under Rule 13 of the Rules of<\/p>\n
      2006,   it   has   been  specifically  provided   that   a   minority   unaided<\/p>\n
      professional college or institution established and maintained by<\/p>\n
      a   minority   community   and   affiliated   to   a   University   shall   be<\/p>\n
      recognised   as   an   unaided   minority   professional   college   and<\/p>\n
      conferred   status   as   such   only   if   it   conforms   to   all   the   three<\/p>\n
      conditions   laid   down   in   Section   8.     The   status   of   an   unaided<\/p>\n
      minority   professional   college   shall   be   lost   if   and   when   the<\/p>\n
      unaided   minority   professional   college   concerned   ceases   to   fulfil<\/p>\n
      any   of   the   three   conditions   laid   down   in   Section   8   and<\/p>\n
      thenceforth,   it   shall   be   treated   on   par   with   other   unaided<\/p>\n
      professional   college   or   institution.     Section   10   deals   with<\/p>\n
W.P.(C) No.17873\/2006 etc.                  – 196 –<\/span><\/p>\n
      allotment   of   seats.    It  will   be  at   this  stage  relevant  to  refer   to<\/p>\n
      sub-section (8) of Section 10.  As per sub-section (8) of Section<\/p>\n
      10, a minority professional  college shall have to admit  not  less<\/p>\n
      than   50%   of   the   students   from   within   the   State   from   the<\/p>\n
      minority community to which the college or institution belongs.<\/p>\n
                   53.     In  the   context   of   the   submissions   made   by  the<\/p>\n
      learned counsel for the parties, some factual aspects shall have<\/p>\n
      first   to   be   taken   into   consideration.     The   total   population   of<\/p>\n
      Kerala as per Ext.R1(m) in the counter affidavit filed by the State<\/p>\n
      was   2,90,98,518   in   the   year   1991.     The   population   of   Hindus<\/p>\n
      was 1,66,68,587 which would be 57.28% of the total population.<\/p>\n
      The   Muslims   at     that   time   were   67,88,364       which   would   be<\/p>\n
      28.33% of the total population.  The Christians at that time were<\/p>\n
      56,21,510 which would be 19.32% of the total population.   The<\/p>\n
      Sikhs   at   that   time   were   2,224,   which   would   be   0.01%   of   the<\/p>\n
      total   population.     The   population   of   Buddhists   and   Jains   and<\/p>\n
      other religions is found nil to 0.04%.   It would thus appear that<\/p>\n
      all other communities but for Hindus are minority communities in<\/p>\n
      the State of Kerala.   The percentage of population as in 1991 is<\/p>\n
W.P.(C) No.17873\/2006 etc.                – 197 –<\/span><\/p>\n
      stated   almost   to   be   the   same   even   now.     The   minority<\/p>\n
      communities running Professional College in the State of Kerala<\/p>\n
      primarily   are   Christians.     Roughly   whereas   Hindus   are   60%,<\/p>\n
      Muslims and Christians are   20% each.   Muslims and Christians<\/p>\n
      are   thus   minorities   as   per   clause   (a)   of   Section   8     as   the<\/p>\n
      percentage   of   the   population   of   the   concerned   minority<\/p>\n
      community has to be considered Statewise.  As per Ext.R1(n), a<\/p>\n
      chart   showing   number   of   private   self   financing   professional<\/p>\n
      colleges   belonging   to   Muslims,   Christians   and   other<\/p>\n
      managements, there are 13 engineering colleges run by Muslim<\/p>\n
      community   and   20   by   Christians.     The   colleges   run   by   other<\/p>\n
      communities are only 15.   In the medical stream, wheres there<\/p>\n
      is only one college run by Muslim community, five are run by the<\/p>\n
      Christian community and there is only one such college as run by<\/p>\n
      other communities.  In so far as Nursing is concerned, there are<\/p>\n
      8 institutions run by Muslims, 28 by Christians  and 15 by others.<\/p>\n
      The chart placed on record by the State in its counter affidavit in<\/p>\n
      Ext.R1(n) is as follows:\n<\/p>\n
\nW.P.(C) No.17873\/2006 etc.                     – 198 –<\/span><\/p>\n
                  Colleges            Muslim         Christian        Others<\/p>\n
                Engineering              13               20             15<\/span><\/p>\n
                Medical                   1               5              1<\/span><\/p>\n
                Nursing                   8               28             15<\/span><\/p>\n
      The   number   of   professional   colleges   or   institutions   run   by   the<\/p>\n
      linguistic   or   religious  minorities   in   the   State   of   Kerala   are   thus<\/p>\n
      more   than   the   number   of   professional   colleges   run   by<\/p>\n
      non-minority   communities   in   the   State,   in   all   streams   of<\/p>\n
      education, be it medical, engineering or nursing.  If thus one   is<\/p>\n
      to   go   by   the   determining   factors   for   according   recognition   and<\/p>\n
      conferring   status   as   unaided   minority   professional   college   as<\/p>\n
      envisaged in clause (b) of Section 8, there would be no minority<\/p>\n
      community in the State of Kerala at all.  By virtue of sub-section<\/p>\n
      (8)   of   Section   10,   a   minority   professional   college   has   to<\/p>\n
      necessarily admit not less than 50% of the students from within<\/p>\n
      the  State from the minority  community  to which  the college or<\/p>\n
      institution   belongs.     That   is   a   necessary   requirement   and   the<\/p>\n
      same is to be adhered to.  The number of students belonging to<\/p>\n
      linguistic or religious minority communities to which the college<\/p>\n
      or  institution  belongs shall  be  far far  more than  the number of<\/p>\n
W.P.(C) No.17873\/2006 etc.                  – 199 –<\/span><\/p>\n
      other students in the State.  As mentioned above, the number of<\/p>\n
      institutions   run   by   minority   communities   are   far   more   and   if<\/p>\n
      therefore  at least  50%  of  that  community  only  are  admitted  in<\/p>\n
      such institutions they will be far more than other students, thus<\/p>\n
      losing   its   status   as   minority   community   or   the   status   as   an<\/p>\n
      unaided minority professional college or institution.  The concept<\/p>\n
      of minority and the institutions run by it at least in so far as the<\/p>\n
      State of Kerala is concerned, it is now totally lost.   There would<\/p>\n
      be   no unaided minority professional college or institution in the<\/p>\n
      State of Kerala.\n<\/p>\n<\/p>\n
                    54.     Learned   counsel   representing   the   petitioners<\/p>\n
      vehemently   contends   that   the   rights   of   minorities   to   establish<\/p>\n
      and   administer   their   institutions   guaranteed   to   them   under<\/p>\n
      Article 30 of the Constitution of India cannot be taken away by<\/p>\n
      such   sweeping   provisions   as   made   and   providing   such<\/p>\n
      determining   factors  as   envisaged   in   clauses   (b)   and   (c)   of<\/p>\n
      Section 8 of the Act of 2006.  He further contends that the dual<\/p>\n
      or   triple   test     to   confer   the   status   of   minority   or   a   minority<\/p>\n
      educational institution  would be the only test whereas such tests<\/p>\n
W.P.(C) No.17873\/2006 etc.                – 200 –<\/span><\/p>\n
      as   have   been   placed   emanating   from   clauses   (b)   and   (c)   of<\/p>\n
      Section 8 would annihilate  the rights of the minorities and would<\/p>\n
      thus be unsustainable.  Mr.Vaidyanathan, learned senior counsel<\/p>\n
      appearing   for   the   State   would,   however,   contend   that   no<\/p>\n
      definition   of   minority  has  so  far  been  given  and the  judgments<\/p>\n
      relied upon by the learned counsel  for the petitioners examined<\/p>\n
      the questions on the  basis of India consisting of various States<\/p>\n
      based   upon   language.     The   specific   questions   framed,   in<\/p>\n
      particular   in   T.M.A.Pai’s   case   pertaining   to   factors   that   may<\/p>\n
      constitute   a   minority   community   or   a   minority   institution   were<\/p>\n
      left undecided.   The State of Kerala, for the first time, has laid<\/p>\n
      tests to  determine a minority.   The  tests  as  provided would be<\/p>\n
      entirely justified as no minority can be called a minority if it may<\/p>\n
      become   far   more   prosperous   than   even   the   so   called   majority<\/p>\n
      communities.   The right provided to minority communities under<\/p>\n
      Article   30   was   in   consideration   of   the   weak   position   of   such<\/p>\n
      minorities  and   once  such  minorities   may   acquire   a   status   even<\/p>\n
      better   than   that   of   majority   communities   or   the   institutions<\/p>\n
      established   by   the   minorities   may   become   far   more   than   the<\/p>\n
W.P.(C) No.17873\/2006 etc.                 – 201 –<\/span><\/p>\n
      institutions   established   by   other   communities,     the   minority<\/p>\n
      communities or the minority institutions would not be entitled for<\/p>\n
      the exercise of their rights under Article 30  further contends the<\/p>\n
      learned counsel.\n<\/p>\n<\/p>\n
                  55.     With   a   view   to   determine   the   vexed   questions<\/p>\n
      posed   for   answer   it   will   be   first   appropriate   to   take   into<\/p>\n
      consideration,   the   provisions   contained   in   Article   30   of   the<\/p>\n
      Constitution which reads as follows:\n<\/p>\n<\/p>\n
                               “30.          Rights   of   minorities   to<\/p>\n
                  establish         and         administer         educational<\/p>\n
                  institutions.-(1)  All  minorities,  whether based<\/p>\n
                  on religion or language, shall have the right to<\/p>\n
                  establish         and         administer         educational<\/p>\n
                  institutions of their choice.\n<\/p><\/blockquote>\n
                               (1-A)   In   making   any   law   providing<\/p>\n
                  for the compulsory acquisition of any property<\/p>\n
                  of   an   educational   institution   established   and<\/p>\n
                  administered   by   a   minority,   referred   to   in<\/p>\n
                  clause   (1),   the   State   shall   ensure   that   the<\/p>\n
                  amount fixed by or determined under such law<\/p>\n
                  for the acquisition of such property is such as<\/p>\n
                  would   not   restrict   or   abrogate   the   right<\/p>\n
                  guaranteed under that clause.\n<\/p><\/blockquote>\n
                               (2) The State shall  not, in granting<\/p>\n
                  aid   to   educational   institutions,   discriminate<\/p>\n
                  against   educational   institution   on   the   ground<\/p>\n
                  that it is under the management of a minority,<\/p>\n
                  whether based on religion or language.”<\/p>\n<\/blockquote>\n
      The exercise of fundamental rights as provided in Part III of the<\/p>\n
W.P.(C) No.17873\/2006 etc.                – 202 –<\/span><\/p>\n
      Constitution are by and large subject to reasonable restrictions,<\/p>\n
      but it is interesting to note that the fundamental right enshrined<\/p>\n
      under   Article   30   for   the   minorities   to   establish   and   administer<\/p>\n
      educational   institutions   cannot   be   curtailed   even   by   reasonable<\/p>\n
      restrictions, but for to the extent as laid down by the Honourable<\/p>\n
      Supreme Court in various judgments to be referred.<\/p>\n
                   56.   Before we may delve further on the content and<\/p>\n
      extent   of   right   available   to   minority   communities   under   Article<\/p>\n
      30, we may make a mention of some other relevant provisions.<\/p>\n
      According to clause (1) of Article 25 of the Constitution, subject<\/p>\n
      to public order, morality and health and to the other provisions<\/p>\n
      of   Part   III,   all   persons   are   equally   entitled   to   freedom   of<\/p>\n
      conscience   and   the   right   freely   to   profess,  practise  and<\/p>\n
      propagate religion.   Article 26 gives the right, subject to public<\/p>\n
      order,   morality   and   health,   to   every   religious   denomination   or<\/p>\n
      any   section   thereof   to   establish   and   maintain   institutions   for<\/p>\n
      religious   and   charitable   purposes;   to   manage   its   own   affairs   in<\/p>\n
      matters of religion; to own and acquire movable and immovable<\/p>\n
      property;   and   to   administer   such   property   in   accordance   with<\/p>\n
W.P.(C) No.17873\/2006 etc.                  – 203 –<\/span><\/p>\n
      law.   Articles  28  to  30   which  contain  provisions  for  educational<\/p>\n
      institutions read as follows:\n<\/p>\n<\/p>\n
                            “28. (1)  No religious instruction shall be
\n                  provided   in   any   educational   institution   wholly<\/p>\n
                  maintained out of State funds.\n<\/p><\/blockquote>\n
                         (2)   Nothing in clause (1) shall apply to an
\n                  educational   institution   which   is   administered   by<\/p>\n
                  the   State   but   has   been   established   under   any<\/p>\n
                  endowment or trust which requires that religious<\/p>\n
                  instruction shall be imparted in such institution.<\/p>\n<\/blockquote>\n
                         (3)  No   person   attending   any   educational
\n                  institution   recognised   by   the   State   or   receiving<\/p>\n
                  aid   out   of   State   funds   shall   be   required   to   take<\/p>\n
                  part   in   any   religious   instruction   that   may   be<\/p>\n
                  imparted   in   such   institution   or   in   any   premises<\/p>\n
                  attached thereto unless such person or, if such is<\/p>\n
                  a   minor,   his   guardian,   has   given   his   consent<\/p>\n
                  thereto”.\n<\/p><\/blockquote>\n
<\/blockquote>\n
                         “29.  –(1)  Any   section   of   the   citizens<\/p>\n
                  residing   in   the   territory   of   India   or   any   part<\/p>\n
                  thereof   having   a   distinct   language,   script   or<\/p>\n
                  culture of its own shall have the right to conserve<\/p>\n
                  the same.\n<\/p><\/blockquote>\n
                         (2)  No   citizen   shall   be   denied   admission
\n                  into any educational institution maintained by the<\/p>\n
                  State   or   receiving   aid   out   of   State   funds   on<\/p>\n
                  grounds only of religion, race, caste, language or<\/p>\n
                  any of them.”.              .\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
      The Honourable Supreme Court in St. Xaviers College v. State<\/p>\n
      of Gujarat, AIR 1974 SC 1389, on an analysis of Articles 28 to<\/p>\n
      30 of the Constitution observed that,<\/p>\n
W.P.(C) No.17873\/2006 etc.                       – 204 –<\/span><\/p>\n
                                      “Although   the   marginal   note   of<\/p>\n
                   Article   29   mentions   protection   of   minority<\/p>\n
                   rights,   the   rights   actually   conferred   by   that<\/p>\n
                   article   are   not   restricted   merely   to   the<\/p>\n
                   minorities.     According   to   clause   (1)   of   that<\/p>\n
                   Article,   any   section   of   the   citizens   residing   in<\/p>\n
                   the territory of India or any part thereof having<\/p>\n
                   a distinct language, script or culture of its own<\/p>\n
                   shall have the right to conserve the same.   In<\/p>\n
                   order   to   invoke   the   benefit   of   this   clause,   all<\/p>\n
                   that is essential is that a section of the citizens<\/p>\n
                   residing   in   the   territory   of   India   or   any   part<\/p>\n
                   thereof should have a distinct language, script<\/p>\n
                   or   culture   of   its   own.     Once   that   is   proved,<\/p>\n
                   those citizens shall have the right to conserve<\/p>\n
                   their language, script or culture irrespective of<\/p>\n
                   the   fact   whether   they   are   members   of   the<\/p>\n
                   majority community or minority community”.\n<\/p>\n
                                                     xxx   xxx   xxx.\n<\/p>\n
                   “Clause   (1)   of   Article   30   gives   right   to   all<\/p>\n
                   minorities,   whether   based   on   religion   or<\/p>\n
                   language,   to   establish   and   administer<\/p>\n
                   educational   institutions   of   their   choice.\n<\/p>\n
                   Analysing  that  clause, it would  follow that the<\/p>\n
                   right which has been conferred by the clause is<\/p>\n
                   on  two types of minorities.   Those   minorities<\/p>\n
                   may   be   based   either   on   religion   or   on<\/p>\n
                   language.”.\n<\/p>\n
\n      While   dealing   with   the   contention   raised   before   the   Supreme<\/p>\n
      Court   with   regard   to   the   scope   and   ambit   of   Article   30,   the<\/p>\n
      Supreme Court  referred to  the  historical  background  leading  to<\/p>\n
      provide Article 30 of the Constitution. The same reads thus:<\/p>\n
W.P.(C) No.17873\/2006 etc.             – 205 –<\/span><\/p>\n
                 “Before   we   deal   with   the   contentions<\/p>\n
                 advanced   before   us   and   the   scope   and<\/p>\n
                 ambit  of     Article  30  of the Constitution, it<\/p>\n
                 may be pertinent to  refer to the  historical<\/p>\n
                 background.     India   is   the   second   most<\/p>\n
                 populous country of the world.  The people<\/p>\n
                 inhabiting   this   land   profess   different<\/p>\n
                 religions   and   speak   different   languages.<\/p>\n
                 Despite   the   diversity   of   religion   and<\/p>\n
                 language, there runs through the fabric of<\/p>\n
                 the   nation   the   golden   thread   of   a   basic<\/p>\n
                 innate   unity.     It   is   a   mosaic   of   different<\/p>\n
                 religions, languages and cultures.   Each of<\/p>\n
                 them has made a mark on the Indian polity<\/p>\n
                 and   India   today   represents   a   synthesis   of<\/p>\n
                 them  all.    The  closing  years  of  the  British<\/p>\n
                 rule   were   marked   by   communal   riots   and<\/p>\n
                 dissensions.     There   was   also   a   feeling   of<\/p>\n
                 distrust   and   the   demand   was   made   by   a<\/p>\n
                 section   of   the   Muslims   for   a   separate<\/p>\n
                 homeland.    This  ultimately resulted in  the<\/p>\n
                 partition   of   the   country.       Those   who   led<\/p>\n
                 the fight for independence in India always<\/p>\n
                 laid   great   stress   on   communal   amity   and<\/p>\n
                 accord.   They wanted the establishment of<\/p>\n
                 a   secular   State   wherein   people   belonging<\/p>\n
                 to the  different religions should all have a<\/p>\n
                 feeling   of   equality   and   non-discrimination.<\/p>\n
                 Demand   had   also   been   made   before   the<\/p>\n
                 partition by sections of people belonging to<\/p>\n
                 the minorities for reservation of seats and<\/p>\n
                 separate   electorates.     In   oder   to   bring<\/p>\n
                 about   integration   and   fusion   of   the<\/p>\n
                 different   sections   of   the   population,   the<\/p>\n
                 frames   of   the   Constitution   did   away   with<\/p>\n
                 separate   electorates   and   introduced   the<\/p>\n
                 system   of   joint   electorates,   so   that   every<\/p>\n
                 candidate   in   an   election   should   have   to<\/p>\n
W.P.(C) No.17873\/2006 etc.                – 206 –<\/span><\/p>\n
                     look   for   support   of   all   sections   of   the<\/p>\n
                     citizens.        Special   safeguards   were<\/p>\n
                     guaranteed   for   the   minorities   and   they<\/p>\n
                     were made apart of the fundamental rights<\/p>\n
                     with a view to instill  a sense of confidence<\/p>\n
                     and   security   in   the   minorities.     Those<\/p>\n
                     provisions   were   a   kind   of   a   Charter   of<\/p>\n
                     rights for the minorities so that none might<\/p>\n
                     have   the   feeling   that   any   section   of   the<\/p>\n
                     population   consisted   of   first-class   citizens<\/p>\n
                     and   the   others   of   second-class   citizens.<\/p>\n
                     The   result   was   that   minorities   gave   up<\/p>\n
                     their claims for reservation of seats”.<\/p>\n<\/blockquote>\n
      The  Supreme  Court   then  referred  to   the   speech      delivered   on<\/p>\n
      February 27, 1947 by Sardar Patel, who was the Chairman of the<\/p>\n
      Advisory   Committee   dealing   with   the   right   of   minority<\/p>\n
      communities, a part of which is reproduced below:<\/p>\n
                       “As long as the Constitution stands as it<\/p>\n
                       is today, no tampering with those rights<\/p>\n
                       can be countenanced.  Any attempt to do<\/p>\n
                       so would be not only an act of breach of<\/p>\n
                       faith,   it   would   be   constitutionally<\/p>\n
                       impermissible   and   liable   to   be   struck<\/p>\n
                       down by the courts”.\n<\/p><\/blockquote>\n
<\/blockquote>\n
      The   content   and   extent   of   the   rights   of   the   minorities   under<\/p>\n
      Article 30 appears to be unregulated by any restriction, but for<\/p>\n
      as the Supreme Court envisaged in various decisions.  It is in the<\/p>\n
W.P.(C) No.17873\/2006 etc.                  – 207 –<\/span><\/p>\n
      light of the extent and content of this right, the question posed<\/p>\n
      before   us   is   to   be   examined.     In  T.M.A.Pai’s   case,   question<\/p>\n
      No.4 pertained to determining factors of existence of religious or<\/p>\n
      linguistic minority in relation to Article 30, whether the State was<\/p>\n
      to be the  unit or country as a whole was to be the unit  was thus<\/p>\n
      the   question.     Taking   into   consideration   that   the   States   have<\/p>\n
      been carved out on the basis of language of majority of persons<\/p>\n
      of that region, it was held logical that such determination should<\/p>\n
      be only in relation to the population of a particular State.  Taking<\/p>\n
      into   consideration   Kerala   Education   Bill   1957   case   (supra),<\/p>\n
      D.A.V.College   v   State   of   Punjab   (1971)   2   SCC   269,   and<\/p>\n
      D.A.V.College v State of Punjab (1971) 2 SCC 261,   it was held<\/p>\n
      that,<\/p>\n
                                “There   can,   therefore,   be   little<\/p>\n
                       doubt that this Court has consistently<\/p>\n
                       held that, with regard to a State law,<\/p>\n
                       the   unit   to   determine   a   religious   or<\/p>\n
                       linguistic   minority   can   only   be   the<\/p>\n
                       State”.\n<\/p>\n
\n      As   long   as   the   dual   or   triple   test   pertaining   to   an   institution<\/p>\n
W.P.(C) No.17873\/2006 etc.                – 208 –<\/span><\/p>\n
      working out for the benefit of its community was complied with,<\/p>\n
      it   was   held   that   minorities   have   a   right   to   establish   and<\/p>\n
      administer educational institutions and as mentioned above, the<\/p>\n
      State was to be the unit for determining the minority.  The right<\/p>\n
      could be exercised even by a single philanthropic individual who<\/p>\n
      may establish the institution either from his own funds or funds<\/p>\n
      collected   from   his   community.     The   Government   could   at   the<\/p>\n
      most   regulate   this   right   by   laying   down   the   educational<\/p>\n
      standards and allied matters.    In Inamdar’s case, it was held<\/p>\n
      that the term ‘minority’ has not been defined in the Constitution<\/p>\n
      and   it   was   taking   the   clue   from   the   provisions   of   the   State<\/p>\n
      Reorganisation  Act that it was held in T.M.A.Pai Foundation case<\/p>\n
      that   India   having   been   divided   into   different   linguistic   States,<\/p>\n
      carved out on the basis of language of the majority of persons of<\/p>\n
      that region, it is the State and not the whole of India that shall<\/p>\n
      have to be taken as a unit for determining a linguistic or religious<\/p>\n
      minority with regard to its right.   After taking State as a unit,  it<\/p>\n
      has   to   find   out   what   was     the   demography   and   whether   the<\/p>\n
      persons speaking a particular language or   following a particular<\/p>\n
W.P.(C) No.17873\/2006 etc.                – 209 –<\/span><\/p>\n
      religion are less than 50% of the total population, and if that was<\/p>\n
      to  be so, the status of religious or linguistic minority has to be<\/p>\n
      given to it.  After referring to the judgment in  Kerala Education<\/p>\n
      Bill case, it was further held in  Inamdar’s case  that the object<\/p>\n
      underlying Article 30(1) is to  see the desire of minorities being<\/p>\n
      fulfilled   that   their   children   should   be   brought   up   properly   and<\/p>\n
      efficiently, and acquire  eligibility  for higher university  education<\/p>\n
      and   go   out   in   the   world   fully   equipped   with   such   intellectual<\/p>\n
      attainments   as   will   make   them   fit   for   entering   public   services,<\/p>\n
      educational   institutions   imparting   higher   instructions   including<\/p>\n
      general   secular   education.    Thus  the   twin  objects   sought   to   be<\/p>\n
      achieved by Article 30(1) in the interest of minorities are: (i) to<\/p>\n
      enable such minority to conserve its religion and language, and<\/p>\n
      (ii)   to   give   a   thorough,   good,   general   education   to   children<\/p>\n
      belonging to such minority.  So long as the institution retains its<\/p>\n
      minority   character   by   achieving   and   continuing   to   achieve   the<\/p>\n
      abovesaid   twin   objectives,   the   institution   would   remain   a<\/p>\n
      minority institution.\n<\/p>\n
\nW.P.(C) No.17873\/2006 etc.                  – 210 –<\/span><\/p>\n
                    57.   In  Sidhrajbhai  v. State of Gujarat, AIR 1963<\/p>\n
      SC 540, it was held that the right established by Article 30(1) is<\/p>\n
      a   fundamental   right   declared   in   terms   absolute.       Unlike   the<\/p>\n
      fundamental freedoms guaranteed by Article 19, it is not subject<\/p>\n
      to reasonable restrictions.  It is intended to be a real right for the<\/p>\n
      protection   of   the   minorities   in   the   matter   of   setting   up<\/p>\n
      educational institutions of their own choice.  The right is intended<\/p>\n
      to   be   effective   and   is   not   to   be   whittled   down   by   so-called<\/p>\n
      regulative measures conceived in the interest not of the minority<\/p>\n
      educational   institutions,   but   of   the   public   or   the   nation   as   a<\/p>\n
      whole.         If   every   order   which   while   maintaining   the   formal<\/p>\n
      character   of   a   minority   institution   destroys   the   power   of<\/p>\n
      administration   is   held   justifiable   because   it   is   in   the   public   or<\/p>\n
      national   interest,   though   not   in   its   interest   as   an   educational<\/p>\n
      institution,   the   right   guaranteed   by   Article   30(1)   will   be   but   a<\/p>\n
      “teasing   illusion”,     a   promise   of   unreality.     Regulations   which<\/p>\n
      may lawfully be imposed either by legislative or executive action<\/p>\n
      as   a   condition   of   receiving   grant   or   of   recognition   must   be<\/p>\n
      directed to making the institution while retaining its character as<\/p>\n
W.P.(C) No.17873\/2006 etc.                 – 211 –<\/span><\/p>\n
      a   minority   institution   effective   as   an   educational   institution.<\/p>\n
      Such   regulations   must   satisfy   a   dual   test   –   the   test   of<\/p>\n
      reasonableness   and   the   test   that   it   is   regulative   of   the<\/p>\n
      educational   character   of   the   institution   and   is   conducive   to<\/p>\n
      making   the   institution   an   effective   vehicle   of   education   for   the<\/p>\n
      minority   community   or   other   persons   who   resort   to   it.       The<\/p>\n
      interpretation   on   Article   30   of   the   Constitution   is   clear   and<\/p>\n
      eloquent.   The   very   background   of   providing   rights   to   minority<\/p>\n
      communities   in   the   matter   of   running   educational   institutions<\/p>\n
      and the said right being not subject to any restriction  would be<\/p>\n
      clearly   suggestive   of   the   fact   that   once   a   community   is   a<\/p>\n
      minority, it would have the right.     The Government has indeed<\/p>\n
      declared   pursuant   to   the   provisions   contained   in   Section   2(l),<\/p>\n
      the   Muslims   and   Christians   to   be   minority   communities.       The<\/p>\n
      contention   of   the   learned   counsel   for   the   petitioners   in<\/p>\n
      challenging  clauses (b) and (c) of  Section 8 of the Act of 2006<\/p>\n
      has  to  be  examined in view of   the interpretation placed  by  the<\/p>\n
      Supreme Court on Article 30 as mentioned above.<\/p>\n
W.P.(C) No.17873\/2006 etc.                  – 212 –<\/span><\/p>\n
                   58.   Having given our thoughtful consideration to the<\/p>\n
      question   under   debate,   we   have   no   hesitation   whatsoever   in<\/p>\n
      returning a firm finding that regulations or determining factors of<\/p>\n
      recognising   and   conferring   the   status   as   unaided   minority<\/p>\n
      professional college or institution as envisaged under clauses (b)<\/p>\n
      and   (c)   of   Section   8   would   be   violative   of   the   rights   of   the<\/p>\n
      minorities and minority institutions as envisaged under Article 30<\/p>\n
      of the Constitution.  The identifying tests as envisaged in clauses<\/p>\n
      (b) and (c) of Section 8, even as per the case of the State, would<\/p>\n
      leave   no   institution   in   the   State   of   Kerala   as   a   minority<\/p>\n
      institution.\n<\/p>\n<\/p>\n
                   59.     Once   the   Christians   and   Muslims   have   been<\/p>\n
      declared to be a minority community in the State of Kerala, the<\/p>\n
      mere   fact   that   such   communities   have   established   more<\/p>\n
      institutions than the majority community or the students of that<\/p>\n
      particular   community   are   more   than   the   students   of   other<\/p>\n
      communities in the State of Kerala cannot whittle down the right<\/p>\n
      enshrined   under   Article   30   of   the   Constitution.     These<\/p>\n
W.P.(C) No.17873\/2006 etc.                  – 213 –<\/span><\/p>\n
      identifying factors are not regulative of the educational character<\/p>\n
      of   the   institution   nor   pertain   to   making   the   institution   an<\/p>\n
      effective   vehicle   of   education   for   the   minority   communities.<\/p>\n
      These are factors which completely annihilates the rights of the<\/p>\n
      minority even though declared as such.  We will hereinafter deal<\/p>\n
      with the contention raised by Mr.Vaidyanathan with regard to the<\/p>\n
      minority institutions losing their right under Article 30 once they<\/p>\n
      become   dominant   or   prosperous,   but   before   we  might   do   that,<\/p>\n
      another aspect of clauses (b) and (c) of Section 8 read with Sec.<\/p>\n
      10(8) needs to be dealt with.\n<\/p>\n<\/p>\n
                   60.         The       identifying       criteria       as   contained   in<\/p>\n
      clause   (b)   of   Section   8     requires   the   professional   college   or<\/p>\n
      institution   run   by   all   religious   and   linguistic   minorities   to   be<\/p>\n
      proportionately   lesser   than   the   number   of   professional   colleges<\/p>\n
      or institutions run by the non-minority community in the State.<\/p>\n
      How    is   this   criteria   workable   is   the question.  How long<\/p>\n
      this criteria will hold good is further the question.   The medical<\/p>\n
      institutions   belonging   to   Christian   community   as   on   today   may<\/p>\n
W.P.(C) No.17873\/2006 etc.                   – 214 –<\/span><\/p>\n
      be more than such institutions run by non-minority communities<\/p>\n
      in the State and, therefore, at present Christians would not be a<\/p>\n
      minority   having   the   right   to   establish   and   administer   their<\/p>\n
      institutions.     Next   year,   if   the   non-minority   communities   may<\/p>\n
      open up such number of institutions that they become more than<\/p>\n
      the   institutions   run   by   Christian   community,   would   minority<\/p>\n
      character   of   the   institution   revert   and   if,     in   yet   next   year   the<\/p>\n
      Christian   community   may   open   few   more   colleges   so   as   to<\/p>\n
      become   more   than   the   institutions   run   by   non-minority<\/p>\n
      communities,   will   it   once   again   lose   its   right   under   Article   30.<\/p>\n
      The identifying criteria appears to be impracticable, unworkable<\/p>\n
      and   temporary.     The   same   would   be   true   even   with   regard   to<\/p>\n
      clause (c) of Section 8.    To illustrate, this  year  if the students<\/p>\n
      of   a   minority   community   say   Christians   are   more   than   the<\/p>\n
      students of the   non-minority community, it would lose its right<\/p>\n
      to run the institution as a minority community, but next year if<\/p>\n
      the   number   of   students   may   become   lesser   than   the   non-<\/p>\n
      minority community, would it re-gain its character as a minority<\/p>\n
      institution and still next year if the converse may happen, would<\/p>\n
W.P.(C) No.17873\/2006 etc.                 – 215 –<\/span><\/p>\n
      the   things   change   again.     This   criteria   again     appears   to   be<\/p>\n
      impracticable, unworkable and temporary.  That apart, in view of<\/p>\n
      sub-section   (8)   of   Section   10   of   the   Act   of   2006,   an   unaided<\/p>\n
      minority institution has to admit not less than 50% of students<\/p>\n
      from the minority community to which the college or institution<\/p>\n
      belongs.   On one hand, the Government would insist admission<\/p>\n
      of   at   least   50%   of   seats   from   minority   community<\/p>\n
      candidates   whereas   on   the   other   hand,   it   would  state   that   the<\/p>\n
      moment   the   total   students   of   that   community   in   the   State   are<\/p>\n
      more   than   50%,   the   institution   would   lose   its   character   as   a<\/p>\n
      minority institution.     Surely, when the minority institutions are<\/p>\n
      more   than   the   non-minority   institutions,   admission   of   50%   of<\/p>\n
      students   of   that   community   would   make   the   strength   of   such<\/p>\n
      students     more   than   the   strength   of   other   community<\/p>\n
      students.     The  provisions  contained  in  Section  8(c)  and  that   of<\/p>\n
      Section  10(8) are mutually inconsistent.  The institution will lose<\/p>\n
      its   character   as   a   minority   institution,   though   run   by   a<\/p>\n
      community  having   the   right  to  establish  and  administer  its<\/p>\n
W.P.(C) No.17873\/2006 etc.                  – 216 –<\/span><\/p>\n
      institution under Article 30, if the students are less than 50% as<\/p>\n
      also when it is more than 50%.  The criteria of allowing unaided<\/p>\n
      minority   institutions   to   be   recognised   only   if   the   colleges   are<\/p>\n
      proportionately   less   than   rest   of   the   non-minority   community<\/p>\n
      under Section 8(b) or if the total number of students belonging to<\/p>\n
      minority   community   is   proportionately   less   than   the   number  of<\/p>\n
      students   belonging   to   non-minority   community   would   destroy<\/p>\n
      the right of minority under Article 30(1). The right of minorities<\/p>\n
      under Article 30  appears to be absolute and subject only to the<\/p>\n
      regulations   made   by   the   State   for   ensuring   excellence   in<\/p>\n
      education of the institution as held in St.Xaviers  case.  No other<\/p>\n
      restriction   it   appears   can   be   imposed  upon   minorities   under<\/p>\n
      Article 30(1).    Even  though  it  is  true   that   the  observation  with<\/p>\n
      regard   to   State   being   a   unit   for   determining   the   minority<\/p>\n
      community  came  in  the background  of  the  States  being carved<\/p>\n
      out  on  linguistic   basis   and  without  their  being  any  definition  of<\/p>\n
      minority, but the same would appear to be true even without the<\/p>\n
      definition   of   minority.     In   any   case,   such   identifying   criteria   of<\/p>\n
      minorities  as   envisaged   under   clauses   (b)   and   (c)   of   Section   8<\/p>\n
W.P.(C) No.17873\/2006 etc.                  – 217 –<\/span><\/p>\n
      would   be   destructive   of   the   right   of   the   minorities   to   establish<\/p>\n
      and   administer   the   institutions   under   Article   30(1)   of   the<\/p>\n
      Constitution.     The   matter   may   be   looked   from   another   angle.<\/p>\n
      Section 8(b) and 8(c) if   applied to the minority communities in<\/p>\n
      exercising  their   right     would  make   it   dependent   upon  what   the<\/p>\n
      non-minorities   may   do   or   may   not   do,   for   establishing   their<\/p>\n
      educational   institutions.     Can   the   right   of   a   citizen   or   a<\/p>\n
      community be dependent upon what other communities may or<\/p>\n
      may   not   do?     The   answer   appears   to   be  an   emphatic   no.     Yet<\/p>\n
      another   contradiction   or   absurdity   in   Section   8   is   that,   it   only<\/p>\n
      applies to minority unaided institutions and not to minority aided<\/p>\n
      institutions.  The reason why the identifying criteria as envisaged<\/p>\n
      in   Section   8   has   not   been   made   applicable   to   minority   aided<\/p>\n
      institutions is not  forthcoming from the provisions of the Act.  It<\/p>\n
      is   settled   proposition   of   law   that   unaided   minority   institutions<\/p>\n
      have   more   freedom   in   running   their   institutions   than   that   of<\/p>\n
      aided   minority   institutions.     If     that   be   so,   the   provisions<\/p>\n
      contained in section 8 would be totally irrational and would also<\/p>\n
      come   under   the   vice   of     Article   14,   by   not   according   equal<\/p>\n
W.P.(C) No.17873\/2006 etc.                 – 218 –<\/span><\/p>\n
      treatment to minority-aided and minority-unaided institutions.<\/p>\n
                   61.   Mr.Vaidyanathan as mentioned above has urged<\/p>\n
      that   Article   30   is   meant   to   equalize   or   protect   the   right   of<\/p>\n
      minorities   from   being   deprived   by   the   dominant   majority   in   a<\/p>\n
      democratic   set   up   and   if   viewed   from   that   angle,   Section   8<\/p>\n
      provides rationale and relevant criteria for determining what is a<\/p>\n
      minority   professional   institution.     The   object   is   to   achieve<\/p>\n
      egalitarian,   proportionate   equality   in   respect   of   admissions   to<\/p>\n
      professional institutions.   There does not appear to be any merit<\/p>\n
      in   the   aforementioned   contention   of   the   learned   counsel.     The<\/p>\n
      criteria for exercising  the right in the matter of establishing and<\/p>\n
      administering the educational institutions is minority and not the<\/p>\n
      status   of   such   minority.       For   accepting   the   contention   of<\/p>\n
      Mr.Vaidyanathan,   there   would   be   indeed   requirement   of<\/p>\n
      amendment in Article 30 of the Constitution to make their rights<\/p>\n
      dependent   upon   dominant   or   affluent   status   of   the   minority.<\/p>\n
      That is not so.   As long as, therefore, Article 30 is as it is, the<\/p>\n
      contention   raised   by   Mr.Vaidyanathan   cannot   be   accepted,<\/p>\n
      howsoever attractive it may appear to be.   There may be some<\/p>\n
W.P.(C) No.17873\/2006 etc.                 – 219 –<\/span><\/p>\n
      rationality   in   extending   the   benefit   of   Article   30   to   a<\/p>\n
      non-dominant minority, but for that, as mentioned above, Article<\/p>\n
      30 itself has to be amended.   Learned counsel however, for the<\/p>\n
      contention   mentioned   above,   has   placed   reliance   upon   the<\/p>\n
      decision   in  Bal  Patil   v.   Union   of   India,<\/a>  (2005)   5   SCC   690.<\/p>\n
      The   facts   in   Bal   Patil’s   case   would   reveal   that   an   organisation<\/p>\n
      representing  a   section   of   Jain   Community   approached   the   High<\/p>\n
      Court   of   Bombay   seeking   a   writ   in   the   nature   of   mandamus<\/p>\n
      directing   the   Central   Government   to   notify   the   Jains   as   a<\/p>\n
      minority   community   under   the   National   Commission   for<\/p>\n
      Minorities Act, 1992 (in short, Central Act of 1992).  The Minority<\/p>\n
      in the said Act of 1992 has been defined to mean a community<\/p>\n
      notified   as   such   by   the   Central   Government.     The   High   Court,<\/p>\n
      however, disposed of the petition on the ground that the claim of<\/p>\n
      various   communities   for   status   of   minority   for   seeking<\/p>\n
      constitutional   protection   was   pending   before   11   Judges   Bench<\/p>\n
      before the Supreme Court.  When the appeal was filed before the<\/p>\n
      Supreme Court, the matter was adjourned from time to time to<\/p>\n
      await the decision in T.M.A.Pai’s case.   The matter came up for<\/p>\n
W.P.(C) No.17873\/2006 etc.               – 220 –<\/span><\/p>\n
      hearing after the decision  in  Pai’s  case. At the very  outset, the<\/p>\n
      Supreme Court referred to question no.1 and the answer thereto<\/p>\n
      in  T.M.A.Pai’s  case  and   emphasised  that   religious   and   linguistic<\/p>\n
      minorities   had   to   be   considered   Statewise   for   the   purpose   of<\/p>\n
      Article 30 as held in T.M.A.Pai’s case.   The Central Government<\/p>\n
      took up the stand before the Supreme Court that it was for the<\/p>\n
      State   Government   to   decide   as   to   whether   Jain   community<\/p>\n
      should be treated as minority community in the respective States<\/p>\n
      and that some of the States had already notified Jain community<\/p>\n
      as  a  minority.    It  was  urged  before  the  Supreme  Court  that  in<\/p>\n
      the light of the law declared in T.M.A.Pai’s case as also in view of<\/p>\n
      the   stand   taken   by   the   Central   Government,   the   Central<\/p>\n
      Government   which   is   empowered   to   consider   the   claim   of   the<\/p>\n
      particular   community   for   being   notified   u\/s.2(c)   of   the   Central<\/p>\n
      Act   of   1992   cannot   shirk   its   statutory   responsibility   at   the<\/p>\n
      national   level   and   the   decision   in   T.M.A.Pai’s   case   would   not<\/p>\n
      render   the   power   of   the   Central   Government   u\/s.2(c)   as<\/p>\n
      redundant.     The   Additional   Solicitor   General   who   appeared   for<\/p>\n
      the   Central   Government,   however,   urged   that   the   Central<\/p>\n
W.P.(C) No.17873\/2006 etc.                 – 221 –<\/span><\/p>\n
      Government   had   no   role   to   play   and   it   was   for   the   respective<\/p>\n
      State   Governments   to   take   the   decision     for       status   of   Jains<\/p>\n
      depending     upon   the   social   condition   in   the   respective   States.<\/p>\n
      The   issue   involved   in   the   case   was   as   to   whether   the   Central<\/p>\n
      Government   would   declare   a   community   to   be   minority<\/p>\n
      community   as   per   the   provisions   contained   in   Section   2(c)   or<\/p>\n
      State was to do so in the context of the decision given by the 11<\/p>\n
      Judge Bench in T.M.A.Pai’s case.   As a preface to its discussion<\/p>\n
      on the question aforesaid, the Supreme Court observed that  the<\/p>\n
      expression minority has been used in Articles 29 and 30 of the<\/p>\n
      Constitution,   but   it   has   nowhere     defined   it.     The   group   of<\/p>\n
      Articles   25   to   30   would   guarantee   protection   of   cultural,<\/p>\n
      educational   and   religious   rights   of   both   majority   and   minority<\/p>\n
      communities.     According   to   the   Supreme   Court,   it   was   not   felt<\/p>\n
      necessary   to   define   minority.     The   minority   as   per   the<\/p>\n
      constitutional scheme would be an identifiable group of people or<\/p>\n
      community   who   were   seen   as   deserving   protection   from   likely<\/p>\n
      deprivation  of   their   religious,  cultural   and  educational   rights  by<\/p>\n
      other   communities   who   happen   to   be   in   majority   and   likely   to<\/p>\n
W.P.(C) No.17873\/2006 etc.                   – 222 –<\/span><\/p>\n
      gain  political   power  in   a   democratic   form   of   government   based<\/p>\n
      on election.  In the background of the constitutional scheme, the<\/p>\n
      provisions of the Central Act of 1992, in the view of the Supreme<\/p>\n
      Court,   instead  of   giving   definition   of   minority   only   provided  for<\/p>\n
      notifying   certain   communities   as   minorities   who   would   require<\/p>\n
      special   treatment   and   protection   of   their   religious,   cultural   and<\/p>\n
      educational rights.  It was further observed that the definition of<\/p>\n
      minority   given   under   the   Act   in   Section   2(c)   was   in   fact   not   a<\/p>\n
      definition   as   such,   but   only   a   provision   enabling   the   Central<\/p>\n
      Government to identify a community which in the opinion of the<\/p>\n
      Central   Government   may  deserve  for  the  purpose  of   protecting<\/p>\n
      and   monitoring   its   progress   and   development   through   the<\/p>\n
      Commission.   The functions to be performed by the Commission<\/p>\n
      under   the   Central   Act   of   1992   were   then   discussed.     In<\/p>\n
      paragraph 17 it was held that,<\/p>\n
                       “Henceforth before the Central Government<\/p>\n
                takes   a   decision   on   the   claims   of   Jain   as   a<\/p>\n
                ‘minority’   under   Section   2(c),   the   identification<\/p>\n
                has to be done on Statewise basis.  The power of<\/p>\n
                the Central Government has to be exercised not<\/p>\n
                merely on the advice and recommendation of the<\/p>\n
                Commission,   but   on   consideration   of   the   social,<\/p>\n
                cultural   and   religious   conditions   of   the   Jain<\/p>\n
W.P.(C) No.17873\/2006 etc.                 – 223 –<\/span><\/p>\n
               community   in   each   State.     Statistical   data<\/p>\n
               produced   to   show   that   a   community   is<\/p>\n
               numerically   a   minority   cannot   be   the   sole<\/p>\n
               criterion.     If   it   is   found   that   the   majority   of<\/p>\n
               members of the community belong to the affluent<\/p>\n
               class   of   industrialists,   businessmen   or<\/p>\n
               professionals and propertied class, it may not be<\/p>\n
               necessary to notify them as such and extend any<\/p>\n
               special   treatment   or   protection   to   them   as   a<\/p>\n
               minority community.  The provisions contained in<\/p>\n
               the   group   of   Articles   25   to   30   are   a   protective<\/p>\n
               umbrella   against   possible   deprivations   of   the<\/p>\n
               fundamental   right   of   religious   freedoms   of<\/p>\n
               religious and linguistic minorities.”.\n<\/p>\n
\n      The   Court   then   discussed     the   history   culminating   into   the<\/p>\n
      framing of Articles 25 to 30 and the minority communities that<\/p>\n
      require   protection   in   the   historical   background,   at   the   time   of<\/p>\n
      framing up of the Constitution.   There were indeed communities<\/p>\n
      which after the independence of the country required  protection.<\/p>\n
                   62.  What emerges from the observations in Bal Patil’s<\/p>\n
      case is that the question that was under consideration pertained<\/p>\n
      to   whether   the     declaration   of   Jain   community   as   a   minority<\/p>\n
      community under Section 2(c) of the Central Act of 1992  should<\/p>\n
      be   done   at   the   national   level   or   should     it   be   Statewise.<\/p>\n
      Whereas, the contention of the learned counsel appearing for the<\/p>\n
      Jain Community was that the Commission should declare the Jain<\/p>\n
W.P.(C) No.17873\/2006 etc.                  – 224 –<\/span><\/p>\n
      community to be a minority community at the national level, the<\/p>\n
      Central Government took the stand  that in view of the judgment<\/p>\n
      in   T.M.A.Pai   case,   it   had   to   be   done   at   the   State   level.   The<\/p>\n
      question   was   not   the   status   of   a   community   being   minority   or<\/p>\n
      otherwise   dependent   upon   its   affluence   or   dominant   character.<\/p>\n
      Further, it was in the context of Act of 1992 that it was held that<\/p>\n
      determination   has   to   be   made   as   to   which   minority   would<\/p>\n
      deserve   to   be   so   declared.     A   distinction   between   minority<\/p>\n
      communities, pre-1950 and thereafter was made and it was held<\/p>\n
      that   it   was   not   in   the   contemplation   of   the   framers   of   the<\/p>\n
      Constitution   to   add   to   the   list   of   minorities.       No   doubt,   in<\/p>\n
      paragraph   17,   there   are   observations   of   affluent   minority<\/p>\n
      community,   but   the   said   reference   was   in   the   context   of   1992<\/p>\n
      Act.   That apart, the sole factor that Muslims and Christians had<\/p>\n
      established   more   educational   institutions   than   that   of   majority<\/p>\n
      communities   may   not   necessarily   be   indicative   of   the   fact   that<\/p>\n
      the Muslims and Christians minority community as such consists<\/p>\n
      of   big   industrialists,   businessmen,   professionals   and   propertied<\/p>\n
      class  in  the  State  of   Kerala.    The  religious  minority  institutions<\/p>\n
W.P.(C) No.17873\/2006 etc.                  – 225 –<\/span><\/p>\n
      are not necessarily established  by industrialists, businessmen or<\/p>\n
      professionals.     Most   of   the   institutions   may   have   been<\/p>\n
      established   by   philanthropists   by   collecting   donations.<\/p>\n
      Mr.Beeran, learned counsel appearing  in  I.A.No.15407 of 2006<\/p>\n
      in   W.P.(C)   No.17969   of   2006   on   behalf   of     the   additional   4th<\/p>\n
      respondent,   i.e.   President,     of   Travancore   Educational   Society,<\/p>\n
      the   object   of   which   is   the  upliftment  of   the   members   of   the<\/p>\n
      Muslim   Community   and   other   backward   classes   contends   that<\/p>\n
      Muslim Community is backward in educational field as well as in<\/p>\n
      civil   services.     It   is   stated   in   the   application   that   from   some<\/p>\n
      media  reports   the  Society  has   come  to   know   that   the   stand  of<\/p>\n
      the   Government   before   this   Court   is   that   Muslim   minority<\/p>\n
      community has got sufficient seats in Medical Colleges and other<\/p>\n
      professional   colleges   proportionate   to   their   population   in   the<\/p>\n
      State   and   hence   they   are   educationally   forward.     Mr.Beeran<\/p>\n
      contends that  the said stand taken by the Government is based<\/p>\n
      on some false and misleading information and datas. It is stated<\/p>\n
      that as per last 2001 census, 24.73 of the total population of the<\/p>\n
      State is Muslims.  The present position of the Muslim community<\/p>\n
W.P.(C) No.17873\/2006 etc.                 – 226 –<\/span><\/p>\n
      is very backward in the field of education and has also very  poor<\/p>\n
      representation   in   the   State   and   Subordinate   Services.     As   per<\/p>\n
      report   dated   9.11.2001   of   the   Justice   K.K.Narendran<\/p>\n
      Commission,   which   was   appointed   to   study   and   report   on   the<\/p>\n
      adequacy or otherwise of representation of backward classes in<\/p>\n
      the   service   under   the   State   Government,   Public   Sector<\/p>\n
      Undertakings,   autonomous   bodies   and   institutions   under   State<\/p>\n
      Governments including Universities,  the Muslim community have<\/p>\n
      got   only   a   total   of   10.45%   representation   in   all   categories   of<\/p>\n
      posts   in   public   services.       The   report   says   that   their<\/p>\n
      representation   in   Category   1   is   only   10.03   as   against   a<\/p>\n
      reservation quota of 10%, in Category 2 their representation is<\/p>\n
      10.66 as against a quota of 12% and in Categories 3,4,5, and 6,<\/p>\n
      their representation is 9.85,  11.63, 9.94,  and 9.71 respectively<\/p>\n
      as   against   their   quota   of   12   percent   in   each   category.     The<\/p>\n
      Commission further observed that Muslims have not fared well in<\/p>\n
      the   matter   of   securing   posts   in   public   service   and   the   main<\/p>\n
      reason   for   this   is   nothing   but   educational   backwardness.     The<\/p>\n
      Commission   suggested   that   it   is   for   the   Government   to   take<\/p>\n
W.P.(C) No.17873\/2006 etc.                  – 227 –<\/span><\/p>\n
      appropriate   action   to  minimise  this   deficiency   in   the   years   to<\/p>\n
      come.       Mr.Beeran  also   relies   on  the   report   of   Justice  Rajinder<\/p>\n
      Sacher Committee appointed by the Prime Minister, according to<\/p>\n
      which   the   members   of   the   Muslim     community   lag   behind   in<\/p>\n
      every field throughout India.  The statement of facts made in the<\/p>\n
      impleading  application  has  not  been controverted  by the  State.<\/p>\n
      We   are,   however,   not   inclined   to   return   a   finding   on   the<\/p>\n
      contention raised by Mr.Beeran.       Suffice it to say that there is<\/p>\n
      no   material   brought   on   record   by   the   State   to   show   that   the<\/p>\n
      Christian and Muslims in the State of Kerala are a developed and<\/p>\n
      rich   community,   socially   or   financially.        The   State   has   not<\/p>\n
      chosen   to   supply   any   material   nor   it   has   even   averred   that<\/p>\n
      Christians   and   Muslims   in   the   State   are   affluent   or   more<\/p>\n
      dominating   than   the   majority   community.     The   State,   we   are<\/p>\n
      further   of   the   opinion,   having   itself   declared   Christians   and<\/p>\n
      Muslims   to   be   a   minority   in   the   State   of   Kerala   would   not   be<\/p>\n
      permitted   to   say   that   because   of   these   minority   communities<\/p>\n
      having   established   more   institutions   or   having   more   students<\/p>\n
      would   not   be  minorities   and  even  if   a  minority,   would  have   no<\/p>\n
W.P.(C) No.17873\/2006 etc.                    – 228 –<\/span><\/p>\n
      right as available to them under Article 30 of the Constitution of India.<\/p>\n
      It   is   significant   to   mention   that   in   T.M.A.Pai’s   case,   Hon’ble   Justice<\/p>\n
      Quadri  did   opine   that   word  ‘minority’   would   literally   mean<\/p>\n
      non-dominant   group,  but   that   was  not   the  majority   view.    The<\/p>\n
      same was also not accepted to be an indicia for the definition of<\/p>\n
      religious   minority   in   Inamdar’s   case.     The   contention   raised   by<\/p>\n
      Mr.Vaidyanathan justifying Section 8(b) and (c) on the basis of<\/p>\n
      the observations contained in Bal Patil’s case are repelled.<\/p>\n
              Occupied Field & Repugnancy  with Central Acts<\/p>\n
                    63.     Clauses   (b)   and   (c)   of   Section   8   have   been<\/p>\n
      challenged   on   yet   another   ground.   It   is   urged   by   the   learned<\/p>\n
      counsel   for   the   petitioners   that   the   provisions   aforesaid   are<\/p>\n
      repugnant   to   the   National   Commission   for   Minority   Educational<\/p>\n
      Institutions   Act,   2004   (Central   Act   2   of   2005),   as   amended  by<\/p>\n
      the Central Act 18 of 2006.      The right to establish a minority<\/p>\n
      institution is now  a matter under Section 11 of the Central Act 2<\/p>\n
      of   2005.   The   field   is   now   stated   to   be   occupied   by     Central<\/p>\n
      legislation.  Act 19 of 2006 enacted by the State of Kerala would<\/p>\n
      be repugnant to the Central Act 2 of 2005 as amended in 2006,<\/p>\n
W.P.(C) No.17873\/2006 etc.                   – 229 –<\/span><\/p>\n
      as   per   the   provisions   contained   in   Article   254(2)   of   the<\/p>\n
      Constitution of India.       Education by virtue of 42nd  Amendment<\/p>\n
      to the Constitution is under the Concurrent List under Entry 25.<\/p>\n
      Entry 25 of List III, i.e. Concurrent List, reads as follows:<\/p>\n
                                   “Education,           including          technical<\/p>\n
                    education,   medical   education   and   Universities<\/p>\n
                    subject   to   the   provisions   of   Entries   63,   64,   65<\/p>\n
                    and 66 of List I; vocational and technical training<\/p>\n
                    of labour”.\n<\/p>\n
\n      As a result of insertion of Entry 25 in List III, the Parliament can<\/p>\n
      also   legislate     in   relation   to   technical   education   and   medical<\/p>\n
      education.  Technical education would surely include Engineering,<\/p>\n
      Nursing   and   Teaching.     Before   insertion   of   Entry   25   in   the<\/p>\n
      Concurrent List, the field was occupied by the State Legislature,<\/p>\n
      but   as mentioned above, now the Parliament can also legislate<\/p>\n
      in matters on  education.  The provisions contained in Article 254<\/p>\n
      of the Constitution would reveal that Parliament may legislate on<\/p>\n
      all or any type of matters enumerated in Entry 25 of List III, on<\/p>\n
      which  the State too would have the power to do so,  and the law<\/p>\n
      made by Parliament shall prevail but only if it may be in conflict<\/p>\n
      with   the  law   laid   down   by   the   State.       The   State   law,   in   other<\/p>\n
W.P.(C) No.17873\/2006 etc.                  – 230 –<\/span><\/p>\n
      words  in   that   situation,   would     to   the   extent   of  repugnancy  be<\/p>\n
      void.   This   position   will   be   made     clear   from   the   provisions   of<\/p>\n
      Article 254 of the Constitution which reads as follows:<\/p>\n
                              “(1) If any provision  of a law made by<\/p>\n
             the   Legislature   of   a   State   is   repugnant   to   any<\/p>\n
             provision   of   a   law   made   by   Parliament   which<\/p>\n
             Parliament   is   competent   to   enact,   or   to   any<\/p>\n
             provision of an existing law with respect to one of<\/p>\n
             the   matters   enumerated   in   the   Concurrent   List,<\/p>\n
             then,   subject   to   the   provisions   of   clause   (2),   the<\/p>\n
             law made by Parliament, whether passed before or<\/p>\n
             after   the   law   made   by   the   Legislature   of   such<\/p>\n
             State, or as the case may be, the existing law shall<\/p>\n
             prevail and the law made by the Legislature of the<\/p>\n
             State   shall,   to   the   extent   of   the   repugnancy,   be<\/p>\n
             void.\n<\/p><\/blockquote>\n
                             (2)   Where   a   law   made   by   the<\/p>\n
              Legislature   of   a   State   with   respect   to   one   of   the<\/p>\n
              matters   enumerated   in   the   Concurrent   List<\/p>\n
              contains any provision repugnant to the provisions<\/p>\n
              of an earlier law made by Parliament or an existing<\/p>\n
              law   with   respect   to   that   matter,   then   the   law   so<\/p>\n
              made   by   the   Legislature   of   such   State   shall,   if   it<\/p>\n
              has   been   reserved   for   the   consideration   of   the<\/p>\n
              President   and   has   received   his   assent,   prevail   in<\/p>\n
              that State.\n<\/p><\/blockquote>\n
                             Provided that nothing in this clause shall<\/p>\n
              prevent Parliament from enacting at any time any<\/p>\n
              law   with   respect   to   the   same   including     a   law<\/p>\n
              adding to, amending, varying or repealing the law<\/p>\n
              so made by the Legislature of the State.”.<\/p>\n<\/blockquote>\n
      Subject   to   the   provisions   of   clause   (2)   of   Article   254   of   the<\/p>\n
W.P.(C) No.17873\/2006 etc.                – 231 –<\/span><\/p>\n
      Constitution of India, if the law made by the State Legislature is<\/p>\n
      repugnant to any law made by Parliament, the law made by the<\/p>\n
      State   Legislature  shall   be  repugnant.    Act  19   of   2006   made  by<\/p>\n
      Kerala   has   not   received   the   assent   of   the   President   of   India.<\/p>\n
      If  the provisions contained  in Sections 8(b) and  8(c) of the  Act<\/p>\n
      19   of   2006   may   be   repugnant   to   some   provisions   of   law<\/p>\n
      contained in  Central Act 2 of 2005 as amended in 2006, the said<\/p>\n
      provisions   would   be   repugnant.     To   evaluate   the   contention<\/p>\n
      raised by the counsel for the petitioners, however, the provisions<\/p>\n
      of Central Act 2 of 2005 as amended in 2006 relied upon by the<\/p>\n
      counsel for the petitioners need a necessary mention.<\/p>\n
                   64.     ‘College’   has   been   defined   under   clause   (b)   of<\/p>\n
      Section 2 to mean a college or teaching institution (other than a<\/p>\n
      University)   established   or   maintained   by   a   person   or   group   of<\/p>\n
      persons  from   amongst  a  minority  community.    ‘Commission’  as<\/p>\n
      per clause (c) of Section 2 has been defined to mean a National<\/p>\n
      Commission   for   Minority   Educational   Institutions   constituted<\/p>\n
      under section 3.   ‘Minority’ has been defined under clause (f) of<\/p>\n
      Section 2 to mean a community notified as such by the Central<\/p>\n
W.P.(C) No.17873\/2006 etc.               – 232 –<\/span><\/p>\n
      Government.    ‘Minority Educational Institution’ as per Section 2<\/p>\n
      (g)   means,   a   college   or   institution   (other   than   a   University)<\/p>\n
      established or maintained by a person or group of persons from<\/p>\n
      amongst  the  minorities.     Section  10   dealing  with the  right  to<\/p>\n
      establish a minority educational institution reads as follows:<\/p>\n
                         “10.(1) Any person who desires to establish<\/p>\n
                   a   Minority   Educational   Institution   may   apply   to<\/p>\n
                   the   Competent   Authority   for   the   grant   of   no<\/p>\n
                   objection certificate for the said purpose.<\/p>\n
                   (2)  The Competent authority shall, –<\/p>\n<\/blockquote>\n
                                (a)   on   perusal   of   documents,<\/p>\n
                         affidavits or other evidence, if any; and<\/p>\n<\/blockquote>\n
                                (b)   after   giving   an   opportunity   of<\/p>\n
                         being heard to the applicant,<\/p>\n
                         decide   every   application   filed   under   sub-<\/p>\n
                         section (1) as expeditiously as possible and<\/p>\n
                         grant or reject the application, as the case<\/p>\n
                         may be:\n<\/p><\/blockquote>\n<\/blockquote>\n
                   Provided   that     where  an   application   is   rejected,<\/p>\n
                   the  Competent   Authority   shall  communicate   the<\/p>\n
                   same to the applicant.\n<\/p><\/blockquote>\n
<\/blockquote>\n
                         (3)     Where   within   a   period   of   ninety   days<\/p>\n
                   from the receipt of application under sub-section<\/p>\n
                   (1) for the grant of no objection certificate, –<\/p>\n<\/blockquote>\n
                                (a) the Competent authority does not<\/p>\n
                   grant such certificate; or<\/p>\n<\/blockquote>\n
                                (b)   where   an   application   has   been<\/p>\n
                   rejected   and   the   same   has   not   been<\/p>\n
                   communicated to the person who has applied for<\/p>\n
                   the grant of such certificate,<\/p>\n
                         it   shall   be   deemed   that   the   competent<\/p>\n
                         authority   has   granted   a   no   objection<\/p>\n
W.P.(C) No.17873\/2006 etc.                – 233 –<\/span><\/p>\n
                         certificate to the applicant.\n<\/p><\/blockquote>\n
\n                          (4) The applicant shall, on the grant of a no<\/p>\n
                   objection   certificate   or   where   the   Competent<\/p>\n
                   authority   has   deemed   to   have   granted   the   no<\/p>\n
                   objection   certificate,   be   entitled   to   commence<\/p>\n
                   and proceed with the establishment of a Minority<\/p>\n
                   Educational   Institution   in   accordance   with   the<\/p>\n
                   rules   and   regulations,   as   the   case   may   be,   laid<\/p>\n
                   down by or under any law for the time being in<\/p>\n
                   force.\n<\/p><\/blockquote>\n
\n                  Explanation.-  For the purpose of this section, –<\/p>\n<\/blockquote>\n
                          (a)   “applicant”   means   any   person   who<\/p>\n
                   makes   an   application   under   sub-section   (1)   for<\/p>\n
                   establishment   of   a   Minority   Educational<\/p>\n
                   Institution;\n<\/p><\/blockquote>\n
                          (b)   “no   objection   certificate”   means   a<\/p>\n
                   certificate   stating   therein,   that   the   Competent<\/p>\n
                   authority has no objection for the establishment<\/p>\n
                   of a Minority Educational Institution.”.<\/p>\n<\/blockquote>\n
      Section   11   dealing   with   the   functions   of   the   Commission   reads<\/p>\n
      thus:\n<\/p>\n<\/p>\n
                   “11.Notwithstanding anything contained in any<\/p>\n
                   other   law   for   the   time   being   in   force,   the<\/p>\n
                   Commission shall –\n<\/p><\/blockquote>\n
                         (a)   advise   the   Central   Government   or<\/p>\n
                   any   State   Government   on   any   question<\/p>\n
                   relating   to   the   education   of   minorities   that<\/p>\n
                   may be referred to it;\n<\/p><\/blockquote>\n
                         (b)     enquire,  suo  motu, or on a petition<\/p>\n
                   presented   to   it   by   any   Minority   Educational<\/p>\n
                   Institution,   or   any   person   on   its   behalf   into<\/p>\n
                   complaints   regarding   deprivation   or   violation<\/p>\n
W.P.(C) No.17873\/2006 etc.              – 234 –<\/span><\/p>\n
                 of   rights   of   minorities   to   establish   and<\/p>\n
                 administer   educational   institutions     of   their<\/p>\n
                 choice and any dispute relating to affiliation to<\/p>\n
                 a   University   and   report   its   finding   to   the<\/p>\n
                 appropriate           Government              for         its<\/p>\n
                 implementation;\n<\/p><\/blockquote>\n
                       (c) intervene in any proceeding involving<\/p>\n
                 any deprivation or violation of the educational<\/p>\n
                 rights of the minorities before a court with the<\/p>\n
                 leave of such court;\n<\/p><\/blockquote>\n
                       (d) review the safeguards provided by or<\/p>\n
                 under the Constitution, or any law for the time<\/p>\n
                 being in force, for the protection of educational<\/p>\n
                 rights   of   the   minorities   and   recommend<\/p>\n
                 measures for their effective implementation;<\/p>\n<\/blockquote>\n
                       (e)   specify   measures   to   promote   and<\/p>\n
                 preserve  the   minority   status   and  character   of<\/p>\n
                 institutions   of   their   choice   established   by<\/p>\n
                 minorities;\n<\/p><\/blockquote>\n
                       (f)     decide   all   questions   relating   to   the<\/p>\n
                 status   of   any   institution   as   a   Minority<\/p>\n
                 Educational   Institution   and   declare   its   status<\/p>\n
                 as such;\n<\/p><\/blockquote>\n
                       (g)     make   recommendations   to   the<\/p>\n
                 appropriate   Government   for   the   effective<\/p>\n
                 implementation   of  programmes  and   schemes<\/p>\n
                 relating   to   the   Minority   Educational<\/p>\n
                 Institutions; and<\/p>\n<\/blockquote>\n
                       (h) do such other acts and things as may<\/p>\n
                 be   necessary,   incidental   or   conducive   to   the<\/p>\n
                 attainment  of   all  or  any  of   the  objects   of   the<\/p>\n
                 Commission.”.\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
      Section 12B dealing with the power of the Commission to decide<\/p>\n
      the minority status of an educational institution reads as follows:<\/p>\n
W.P.(C) No.17873\/2006 etc.             – 235 –<\/span><\/p>\n
               “12B.(1)Without   prejudice   to   the   provisions<\/p>\n
               contained in the National Minority Commission<\/p>\n
               Act,   1992   (19   of   1992),   where   an   authority<\/p>\n
               established by the Central Government or any<\/p>\n
               State Government, as the case be, for grant of<\/p>\n
               minority   status   to   any   educational   institution<\/p>\n
               rejects   the   application   for   the   grant   of   such<\/p>\n
               status,   the   aggrieved   person   may   appeal<\/p>\n
               against   such   order   of   the   authority   to   the<\/p>\n
               Commission.\n<\/p><\/blockquote>\n
                     (2) An appeal under sub-section (1) shall<\/p>\n
               be preferred within thirty days from the date of<\/p>\n
               the order communicated to the applicant:<\/p>\n<\/blockquote>\n
                               Provided   that   the   Commission   may<\/p>\n
               entertain   an   appeal   after   expiry   of   the   said<\/p>\n
               period of thirty days, if it is satisfied that there<\/p>\n
               was sufficient cause for not filing it within that<\/p>\n
               period.\n<\/p><\/blockquote>\n
                     (3)  An appeal to the Commission shall be<\/p>\n
               made  in   such  form  as   may  be  prescribed  and<\/p>\n
               shall   be   accompanied   by   a   copy   of   the   order<\/p>\n
               against which the appeal has been filed.<\/p>\n<\/blockquote>\n
                     (4)    On receipt of the appeal under sub-<\/p>\n
               section(3),   the   Commission   may,   after   giving<\/p>\n
               the   parties   to   the   appeal,   an   opportunity   of<\/p>\n
               being   heard,   decide   on   the   minority   status   of<\/p>\n
               the educational institution and shall proceed to<\/p>\n
               give such directions as it may deem fit and, all<\/p>\n
               such directions shall be binding on the parties.<\/p>\n<\/blockquote>\n
                     Explanation.-     For   the   purposes   of   this<\/p>\n
               section and section 12C, ‘authority’ means any<\/p>\n
               authority   or   officer   or   commission   which   is<\/p>\n
               established under any law for the time being in<\/p>\n
               force   or   under   any   order   of   the   appropriate<\/p>\n
               government,   for   the   purpose   of   granting   a<\/p>\n
               certificate of minority status to an educational<\/p>\n
               institution.\n<\/p><\/blockquote>\n
\nW.P.(C) No.17873\/2006 etc.                – 236 –<\/span><\/p>\n<\/blockquote>\n
      Section   12C     deals   with   the   power   to   cancel   the   status   of<\/p>\n
      minority.  The same reads thus:\n<\/p>\n<\/p>\n
                   “12C.     The   Commission   may,   after   giving   a<\/p>\n
                   reasonable   opportunity   of   being   heard   to   a<\/p>\n
                   Minority   Educational   Institution   to   which<\/p>\n
                   minority   status   has   been   granted   by   any<\/p>\n
                   authority or Commission, as the case may be,<\/p>\n
                   cancel   such   status   under   the   following<\/p>\n
                   circumstances, namely:-\n<\/p>\n
                          (a)   if the constitution, aims and objects<\/p>\n
                   of   the   educational   institution,   which   has<\/p>\n
                   enabled   it   to   obtain   minority   status   has<\/p>\n
                   subsequently   been   amended   in   such   a   way<\/p>\n
                   that   it   no   longer   reflects   the   purpose,   or<\/p>\n
                   character of a Minority Educational Institution;<\/p>\n
                          (b)     if,   on   investigation   of   the   records<\/p>\n
                   during   the   inspection   or   investigation,   it   is<\/p>\n
                   found that the Minority Educational Institution<\/p>\n
                   has   failed   to   admit   students   belonging   to   the<\/p>\n
                   minority   community   in   the   institution   as   per<\/p>\n
                   rules   and   prescribed   percentage   governing<\/p>\n
                   admissions during any academic year.”.\n<\/p>\n
\n      Title of the Central Act 2 of 2005 is indicative of the fact that it<\/p>\n
      deals   with   minorities   in   the   context   of   educational   institutions.<\/p>\n
      The Act came with a view to constitute National Commission for<\/p>\n
      Minority   Educational   Institutions   and   to   provide   for   matters<\/p>\n
      connected   therewith   and   incidental   thereto   as   would   be   clear<\/p>\n
      from the Preamble of the Act.   The Act extends to the whole of<\/p>\n
      India, except  Jammu  and Kashmir.   The Act came into force on<\/p>\n
W.P.(C) No.17873\/2006 etc.                 – 237 –<\/span><\/p>\n
      11th  November,   2004.    ‘College’  as   mentioned   above     means   a<\/p>\n
      college   or   teaching   institution   (other   than   a   University)<\/p>\n
      established or maintained by a person or group of persons from<\/p>\n
      amongst a minority community. ‘Commission’  means a National<\/p>\n
      Commission   for   Minority   Educational   Institutions   by   virtue   of<\/p>\n
      Section   2(b).     ‘Minority’   for   the   purpose   of   the   Act   means   a<\/p>\n
      community   notified   as   such   by   the   Central   Government.<\/p>\n
      ‘Minority Educational Institution’   means, a college or institution<\/p>\n
      (other than a University) established or maintained by a person or<\/p>\n
      group of persons from amongst the minorities.   The Competent<\/p>\n
      Authority   on   production   of   documents   and   other   materials   as<\/p>\n
      mentioned above and after giving an opportunity of being heard<\/p>\n
      would decide the application and grant or reject the same.   The<\/p>\n
      rejection has to be communicated.  Section 10(3) of the Act is a<\/p>\n
      deeming   provision.     It   states   that      where   within   ninety   days<\/p>\n
      from   the   receipt   of   application     for   the   grant   of   no   objection<\/p>\n
      certificate,     the   Competent   authority   does   not   grant   such<\/p>\n
      certificate;   or   where   an   application   has   been   rejected   and   the<\/p>\n
      same has not been communicated to such applicant, it shall be<\/p>\n
W.P.(C) No.17873\/2006 etc.                 – 238 –<\/span><\/p>\n
      deemed that the competent authority has granted a no objection<\/p>\n
      certificate   to   the   applicant.       On   grant   of   a   no   objection<\/p>\n
      certificate or even in a case where the competent authority may<\/p>\n
      be deemed to have granted no objection certificate, the applicant<\/p>\n
      would   be   entitled   to   commence   and   proceed   with   the<\/p>\n
      establishment of a minority educational institution in accordance<\/p>\n
      with the rules and regulations as may be laid down or under any<\/p>\n
      law for the time being in force.  Section 10A deals with the right<\/p>\n
      of the minority educational institution to seek affiliation.  Section<\/p>\n
      11 deals with the functions of the Commission.  The Commission<\/p>\n
      would  advise the Central Government or any State Government<\/p>\n
      on any question relating to the education of minorities that may<\/p>\n
      be referred to it.  The Commission would    enquire, suo motu, or<\/p>\n
      on   a   petition   presented   to   it   by   any   Minority   Educational<\/p>\n
      Institution, or any person on its behalf  into complaints regarding<\/p>\n
      deprivation   or   violation   of   rights   of   minorities   to   establish   and<\/p>\n
      administer   educational   institutions     of   their   choice   and   any<\/p>\n
      dispute relating to affiliation.     The report and its findings have<\/p>\n
      then   to   be   submitted   by   the   Commission   to   the   appropriate<\/p>\n
W.P.(C) No.17873\/2006 etc.                – 239 –<\/span><\/p>\n
      Government   for   implementation.     It   has   the   power   even   to<\/p>\n
      intervene   in   pending   proceedings   involving     deprivation   or<\/p>\n
      violation of the educational rights of the minorities before a court<\/p>\n
      with   the   leave   of   such   court.     The   Commission   has   also   the<\/p>\n
      power to review the safeguards provided by the Constitution or<\/p>\n
      any law for the time being force for the protection of educational<\/p>\n
      rights   of   the   minorities   and   recommend   measures   for   their<\/p>\n
      effective   implementation.   The   Commission   can   also   specify   the<\/p>\n
      measures   to   promote   and   preserve   the   minority   status   and<\/p>\n
      character   of   institutions   of   their   choice   established   by   the<\/p>\n
      minorities.  The Commission has power as provided in clause (f)<\/p>\n
      of Section 11  to decide all questions relating to the status of any<\/p>\n
      institution   as   a   minority   educational   institution   and   declare   its<\/p>\n
      status as such.\n<\/p>\n<\/p>\n
                   65. Relying on the provisions of the Central Act 2 of<\/p>\n
      2005,   as   enumerated   above   and   in   particular   Section   11(f)<\/p>\n
      counsel   appearing  for   the  petitioners  would  contend  that     once<\/p>\n
      the Commission under Section 11(f) is clothed with the power to<\/p>\n
W.P.(C) No.17873\/2006 etc.                  – 240 –<\/span><\/p>\n
      decide the  status   of   an  institution  as  a  Minority  Institution  and<\/p>\n
      declared   it   as   such,   the   provisions   as   envisaged   in   clauses   (b)<\/p>\n
      and (c) of Section 8 of the Act 19 of 2006 would be repugnant.<\/p>\n
      Mr.Vaidyanathan,   learned   counsel   representing   the   State,   per<\/p>\n
      contra,  however contends that the Central Act would not deprive<\/p>\n
      the State of its legislative power under Articles 245 and 246 in<\/p>\n
      matters   related   to     Entry   25   of   the   Concurrent   List.             The<\/p>\n
      National   Commission   has   not     been   vested   with   the   power   to<\/p>\n
      determine the criteria for recognising a minority institution.   On<\/p>\n
      the other hand, the Central Act has recognised the Central and<\/p>\n
      State authorities to make such determination and that the power<\/p>\n
      u\/s.11(f) and  12(b) is judicial.      The pith and substance of  the<\/p>\n
      State   Act   is   different   from   the   Central   Act.     Learned   counsel<\/p>\n
      further   contends   that   every   effort   should   be   made   to   reconcile<\/p>\n
      and harmonise the Central and State Act and only if that is not<\/p>\n
      possible,   the   State   Act   would   be   held   to   be   repugnant   and<\/p>\n
      unconstitutional.\n<\/p>\n<\/p>\n
                    66.   We have given our anxious thought to  the rival<\/p>\n
      contentions raised by the learned counsel as noted above, but in<\/p>\n
W.P.(C) No.17873\/2006 etc.                   – 241 –<\/span><\/p>\n
      the   context   of   the   provisions   contained   in   the   Central   Act,   the<\/p>\n
      provisions   of   clause   (b)   and   (c)   of   Section   8   of   the   Act   19   of<\/p>\n
      2006   may   appear   to   be     bordering   on   transgressing   such<\/p>\n
      provisions, but   it do not however, actually transgress the same.<\/p>\n
      In so far as minority under the State Act is  concerned, the same<\/p>\n
      for   the   purpose   of   the   Act   means   a   community   belonging   to   a<\/p>\n
      religious   or   linguistic   minority   as   may   be   determined   by<\/p>\n
      Government taking the State as a unit.       By notification dated<\/p>\n
      6.12.2006,   even   though   after   the   judgment   was   reserved,   the<\/p>\n
      Government   passed   an   order   declaring   that     Christians   and<\/p>\n
      Muslims   in   the   State   will   be   treated   as   Minorities.     The<\/p>\n
      Government   of   India   also     by   notification   dated   18th  January,<\/p>\n
      2005     in   exercise   of   the   powers   conferred   by   Section   2(f)   of<\/p>\n
      Central   Act   2   of   2005   has   notified   Muslims   and   Christians   as<\/p>\n
      minority   communities.     Thus,   in   the   matter   of   Muslims   and<\/p>\n
      Christians to be a minority community, there is no repugnancy.<\/p>\n
      In   fact,   the   same   are   identical.         No   determination   has   been<\/p>\n
      done by the State under Section 2 (m) with regard to minority<\/p>\n
      professional   college   or   institution,   even   though   minority<\/p>\n
W.P.(C) No.17873\/2006 etc.                   – 242 –<\/span><\/p>\n
      professional college or institution means a professional college or<\/p>\n
      institution   established   and   maintained   by   a   minority   that   may<\/p>\n
      fulfil   the   non-discriminatory   criteria   as   laid   down   in   the   Act.<\/p>\n
      Under the Central Act, a Minority Educational Institution means a<\/p>\n
      college   or   institution   established   or   maintained   by   a   person   or<\/p>\n
      group   of   persons   from   amongst   the   minorities.     There   will   be<\/p>\n
      once   again   no   difference   in   so   far   as   minority   institutions   are<\/p>\n
      concerned, be it the Central or the State Act.   It is only by virtue<\/p>\n
      of   Section   11   that   deals   with   the   functions   of   the   Commission<\/p>\n
      and   clause   (f)   thereof   by   which   one   of   the   functions   to   be<\/p>\n
      decided   by   the   Commission   is   the   status   of   an   educational<\/p>\n
      institution   as   a   minority   educational   institution   and   declare   its<\/p>\n
      status as such, that it is being urged that the field with regard to<\/p>\n
      status of a minority educational institution if it is determinable by<\/p>\n
      the Central Act, the field would be occupied.       Therefore, such<\/p>\n
      identifying   factors     in   clauses   (b)   and   (c)   of   Section   8   of   the<\/p>\n
      State Act would be repugnant to Section 11(f) of the Central Act.<\/p>\n
      We have already mentioned that provisions contained in clauses<\/p>\n
      (b)   and   (c)   of   Section   8   of   the   State   Act   may   appear   to   be<\/p>\n
W.P.(C) No.17873\/2006 etc.                    – 243 –<\/span><\/p>\n
      bordering   on   transgression   when   read   with   the   power   of   the<\/p>\n
      Commission   under   Section   11(f)   of   the   Central   Act,   but   there<\/p>\n
      may not be any apparent conflict between the same.  There are<\/p>\n
      no   provisions   in   the   Central   Act   which   may   prescribe   the<\/p>\n
      determining   criteria   for   a   minority   institution.       There   are   no<\/p>\n
      provisions either which may mention factors that may lead   not<\/p>\n
      to clothe any minority institution with that status.  It is true that<\/p>\n
      the   Commission   can   decide   the   status   of   an   educational<\/p>\n
      institution   as   a   minority   educational   institution,   but   as   to   what<\/p>\n
      criteria   has   to   be   taken   into   consideration   for   so   determining<\/p>\n
      finds no mention in any of the provisions of the Central Act.  The<\/p>\n
      Central Act does not legislate on determining or non-determining<\/p>\n
      factors  of  the status of  a minority  educational  institution.   It  is<\/p>\n
      one   thing   to   say   that   the   field   is   occupied   so   as   to   decide   the<\/p>\n
      status  of  an  institution,  but  another thing  to  say  that  what are<\/p>\n
      the governing factors.   If perhaps, there was some provision in<\/p>\n
      the   Central   Act   specifying   the   determining   or   non-determining<\/p>\n
      factors of the status of minority educational institution and such<\/p>\n
      factors were against or contrary to those specified in clauses (b)<\/p>\n
W.P.(C) No.17873\/2006 etc.                   – 244 –<\/span><\/p>\n
      and  (c)  of   Section  8   of   the   State   Act,  the  contention  raised  by<\/p>\n
      the counsel for the petitioners could have been accepted.   It is<\/p>\n
      settled proposition of law that there has to be a conflict between<\/p>\n
      the  provisions  legislated by the Parliament  and  the  State.   The<\/p>\n
      conflict has further to be on same matter.    The Supreme Court<\/p>\n
      in  Vijaya  Kumar  Sharma  v.  State   of   Karnataka,   (1990)   2<\/p>\n
      SCC 562, held thus:\n<\/p>\n<\/p>\n
                                  “It   is   open   to   resolve   the   conflict<\/p>\n
                    between   two   entries   in   different   lists,   viz.   the<\/p>\n
                    Union   and   the   State   List,   by   examining   the<\/p>\n
                    dominant   purpose   and   therefore   the   pith   and<\/p>\n
                    substance   of   the   two   legislations,   there   is   no<\/p>\n
                    reason   why   the   repugnancy   between   the<\/p>\n
                    provisions   of   the   two   legislations   under<\/p>\n
                    different   entries   in   the   same   list,   viz.,   the<\/p>\n
                    Concurrent   List   should     not   be   resolved   by<\/p>\n
                    scrutinizing   the   same   touchstone.     What   is   to<\/p>\n
                    be   ascertained   in   each   case   is   whether   the<\/p>\n
                    legislations are on the same subject  matter or<\/p>\n
                    not.”.\n<\/p><\/blockquote>\n
<\/blockquote>\n
      Mr.Vaidyanathan,   for the proposition that the Central Act does<\/p>\n
      not deprive the State of its legislative powers under Articles 245<\/p>\n
      and   246   with   regard   to   items   contained   in   Entry   25   of   List   III<\/p>\n
      and   there   is   no   conflict   between   the   provisions   contained<\/p>\n
      in  Section 11  (f) or any other provision of the Central Act with<\/p>\n
W.P.(C) No.17873\/2006 etc.                  – 245 –<\/span><\/p>\n
      provisions of Section 8(b) and (c) of the State Act, and that the<\/p>\n
      Court  should  make  every  effort  to  reconcile  and  harmonise the<\/p>\n
      provisions of the Central and State Act  and has relied upon the<\/p>\n
      decisions in  Dr.Preethi Srivastava  v.  St
\n                                                              ate of M.P.    (1999) 7<\/p>\n
      SCC  720,    State   of   A.P.  v.  K.Purushotham  Reddy<\/a>  (2003)   9<\/p>\n
      SCC 564,  State of T.N.  v.  S.V.Pratheep and others  (2004) 4<\/p>\n
      SCC   513,    B
\n                        harat  H
\n                                 ydro   Power  C
\n                                                         orpn.  L
\n                                                                 td.   and   others  v.\n<\/p>\n
\n      State of Assam(2004) 2 SCC 553 and Government of A.P. v.<\/p>\n
      J.B.Educational Society (2005) 3 SCC 212.  In all fairness, we<\/p>\n
      may mention  that learned  counsel  for  the petitioners have  also<\/p>\n
      relied   upon   various   judicial   precedents,   but   there   may   be   no<\/p>\n
      need   to   refer   to   the   same,   as,   to   hold   the   State   Law   to   be<\/p>\n
      repugnant   under   Article   254   of   the   Constitution   a   conflict<\/p>\n
      between the Central and State Act has to be shown and none of<\/p>\n
      the   judicial   precedents   cited   by   the   counsel   for   the   petitioners<\/p>\n
      have   taken   a   different   view.     In   view   of   the   discussions   made<\/p>\n
      above, it has to be held that the provisions  of Section 2(f) of the<\/p>\n
      Central Act and the one contained in Section 8(b) and (c) of the<\/p>\n
      State  Act are not  in  conflict  and  that  being so, the  contentions<\/p>\n
W.P.(C) No.17873\/2006 etc.                   – 246 –<\/span><\/p>\n
      with   regard   to   occupied   field   and   repugnancy   raised   by   the<\/p>\n
      learned counsel for the petitioners have to be repelled and we do<\/p>\n
      so.\n<\/p>\n<\/p>\n
                    67.     Mr.   Vivek  Tanka,   learned   counsel   appearing   for<\/p>\n
      the   petitioners   in   W.P.(C)   No.17969   of   2006   and   connected<\/p>\n
      cases,   which   are   filed     by   institutions   running   Engineering<\/p>\n
      Colleges   has   raised   a   similar   argument   in   the   context   of   the<\/p>\n
      provisions   contained   in   the   All   India   Council   of   Technical<\/p>\n
      Education   Act,   1987.     Learned   counsel   states   that     technical<\/p>\n
      education,   which   includes   Engineering,   as   per   Section   2   (g)   of<\/p>\n
      the   Act   aforesaid     are   covered   by   the   Act   of   1987,   which   is   a<\/p>\n
      central legislation and once the Council constituted under the Act<\/p>\n
      has power to co-ordinate the development of technical education<\/p>\n
      in   the   country   at   all   levels   [S.10-b],     formulate   schemes   for<\/p>\n
      promoting   technical   education   for   women,   handicapped   and<\/p>\n
      weaker   sections   of   the   society   [S.10-e],   lay   down   norms   and<\/p>\n
      standards   for   courses,   curricula,   physical   and   instructional<\/p>\n
      facilities,   staff   pattern,   staff   qualification,   quality   instructions,<\/p>\n
      assessment and examinations [S.10-i]; fix norms and guidelines<\/p>\n
W.P.(C) No.17873\/2006 etc.                – 247 –<\/span><\/p>\n
      for charging tuition fees [S.10-j]; grant approval for starting new<\/p>\n
      technical   institutions   and   for   introduction   of   new   courses   or<\/p>\n
      programmes  in consultation with the agencies concerned [S.10-<\/p>\n
      k];   lay   down   norms   for   granting   autonomy   to   technical<\/p>\n
      institutions[S.10m];   take   all   necessary     steps   to   prevent<\/p>\n
      commercialisation   of   technical     education   [S.10-n];     provide<\/p>\n
      guidelines for admission of students to technical institutions and<\/p>\n
      Universities   imparting   technical   education[S.10(o)],   the   field<\/p>\n
      would   be   covered   by   Central   Legislation,   and   the   provisions<\/p>\n
      pertaining to fee structure and regulation of admissions as made<\/p>\n
      in   the   State   Act   would   be   repugnant.     Counsel,   for   the   said<\/p>\n
      proposition,   relies   upon   the   decisions   of   the   Supreme   Court   in<\/p>\n
      State of Tamil Nadu  v. Adhiyaman Educational & Research<\/p>\n
      Institute<\/a>  (1995)   4   SCC   104,  Jaya   Gokul   Educational   Trust<\/p>\n
      v.   Commissioner   and   Secretary   to   Government   Higher<\/p>\n
      Education   Department  (2000)   5   SCC   231,  State   of   A.P.   v.<\/p>\n
      K.Purushotham   Reddy<\/a>  (2003)   9   SCC   534,                      Bharathi<\/p>\n
      Vidyapeeth   v.   State   of   Maharashtra  (2004)   11   SCC   755,<\/p>\n
      Dr.Preeti  Srivastava v. State of M.P. (1999) 7 SCC  120 and<\/p>\n
W.P.(C) No.17873\/2006 etc.                 – 248 –<\/span><\/p>\n
      Prof.Yashpal v. State of Chattisgarh (2005) 5 SCC 420.  The<\/p>\n
      rules and regulations as made under the Central Act of 1987 that<\/p>\n
      have   been   shown   to   us   would   only   depict   regulation   of<\/p>\n
      admission, fee structure, etc., in the  light of the  decision given<\/p>\n
      by   the   Supreme   Court   in   T.M.A.Pai’s   case,   Islamic   Academy’s<\/p>\n
      case   and   Inamdar’s   case.     If   the   provisions   contained   in   the<\/p>\n
      State Act  may be against the judgment of the Supreme Court in<\/p>\n
      T.M.A.Pai’s   case,   Islamic   Academy’s   case   and   Inamdar’s   case,<\/p>\n
      the same would be otherwise also illegal and therefore, there will<\/p>\n
      be no need to further delve on the contention raised by Mr.Vivek<\/p>\n
      Tanka.   No   provision   of   the   Act   of   1987   we   may   however<\/p>\n
      mention, that be in   conflict with the provisions of the State Act<\/p>\n
      has   been   brought   to   our   notice.     For   parity   of   reasons   noticed<\/p>\n
      while   rejecting   the   contention   based   on   the   Central   Act   2   of<\/p>\n
      2005,   the   contention   raised   by   Mr.Vivek   Tanka   is   also   to   be<\/p>\n
      repelled.  We do so.\n<\/p>\n<\/p>\n
                 Fixation of  minimum 50% seats for minority<\/p>\n
                   68.   Section   10   of   the   Act   19   of   2006   is   also   under<\/p>\n
      severe challenge.  It has been challenged in two parts.  The first<\/p>\n
W.P.(C) No.17873\/2006 etc.                 – 249 –<\/span><\/p>\n
      is   attack   on   Section   10(8)   whereas   the   second   part   of   attack<\/p>\n
      pertains to quotas   or reservations.     We will first deal with the<\/p>\n
      criticism levelled by the learned counsel for the petitioners on the<\/p>\n
      provisions   contained   in   Section   10(8)   of   the   Act.     A   minority<\/p>\n
      unaided   professional   college   or   institution   shall   admit   not   less<\/p>\n
      than   50%   of   students   from   within   the   State   from   the   minority<\/p>\n
      community   to which the college or  institution belongs.   This is<\/p>\n
      the first part of Section 10(8).  The other part of Section 10(8) is<\/p>\n
      that   from amongst the 50% seats, 50% of seats may be filled<\/p>\n
      from within the minority community on the basis of merit-cum-<\/p>\n
      means  basis   and  rest in the order of merit in accordance with<\/p>\n
      inter se merit.   The second part of Section 10(8) shall be taken<\/p>\n
      for   discussion   along   with   other   provisions   of   Section   10   of   the<\/p>\n
      Act of 2006.\n<\/p>\n<\/p>\n
                   69.  It is the case of the petitioners that Section 10(8)<\/p>\n
      is   destructive   of   the   right   of   the   minority   communities   to<\/p>\n
      establish and administer educational institutions of their choice.<\/p>\n
      It   obliges   the   minority   institutions   to   admit   not   less   than   50%<\/p>\n
      students from within the State from the minority community to<\/p>\n
W.P.(C) No.17873\/2006 etc.                – 250 –<\/span><\/p>\n
      which   the   institution   belongs.     If   the   minority   educational<\/p>\n
      institutions fails to or is unable to obtain such a strength from its<\/p>\n
      own   community,   it   would   not   be   recognised   as   a   minority<\/p>\n
      educational institution.  It is urged by the learned counsel for the<\/p>\n
      petitioners   that   it   is   common   knowledge   that   the   minority<\/p>\n
      educational   institutions   even   if   they   make   all   out     efforts,<\/p>\n
      may   not   be   able   to   secure   50%   admission   from   their   own<\/p>\n
      community.     The   provisions   is   also   stated   to   be   unreasonable,<\/p>\n
      unworkable   and   would   vary   from   year   to   year.\n<\/p>\n
\n      Mr.Vaidyanathan,   learned   counsel   for   the   State,   on   the   other<\/p>\n
      hand   would   contend   that   obligation   of   the   institution   under<\/p>\n
      Section   10(8)   to   admit   not   less   than   50%   from   the   minority<\/p>\n
      community to which the college belongs is not violative of Article<\/p>\n
      30   of   the   Constitution.     The   right   under   Article   30(1)   is   a<\/p>\n
      preferential  right of minority institution to admit students of its<\/p>\n
      community.     This   obligation   is   intended   to   ensure   that   the<\/p>\n
      institution   retains   its   minority   character   by   achieving   the   twin<\/p>\n
      objects   of   Article   30(1)   enabling   the   minority   to   conserve   its<\/p>\n
      religion   and   language   and   to   give   a   thorough,   good,   general<\/p>\n
W.P.(C) No.17873\/2006 etc.                  – 251 –<\/span><\/p>\n
      education to children belonging to such minority.  So long as the<\/p>\n
      institution   retains   its   essential   character   by   achieving   the   said<\/p>\n
      objectives, it would remain a minority institution.<\/p>\n
                   70.   We  have once again given our anxious thoughts<\/p>\n
      to   the   provisions   contained   in   Section   10(8)   and   in   our<\/p>\n
      considered   view,   the   same   are   not   only   impracticable,<\/p>\n
      unworkable but also an ever-changing phenomena.   It is also an<\/p>\n
      unreasonable restriction wholly impermissible either by virtue of<\/p>\n
      the   provisions   contained   in   Article   30   of   the   Constitution   or   by<\/p>\n
      judicial precedents governing the field.\n<\/p>\n<\/p>\n
                   71.   The population  of  Christians  and Muslims  in  the<\/p>\n
      State of Kerala is roughly 20% each.   Even though no material<\/p>\n
      has   been   placed   before   us   by   the   Government   justifying<\/p>\n
      minimum   50%   admission   by   the   institutions   from   their   own<\/p>\n
      community, one can make a reasonable guess that the students<\/p>\n
      seeking   admission   in   professional   colleges   would   normally   be<\/p>\n
      commensurate to its population.   Irrespective of the population<\/p>\n
      of a particular community in the State, irrespective of how many<\/p>\n
      institutions a particular community  has established, irrespective<\/p>\n
W.P.(C) No.17873\/2006 etc.                  – 252 –<\/span><\/p>\n
      of   as   to   what   is   the   normal   ratio   of   admission   of   students<\/p>\n
      belonging   to   minority   or   non-minority   communities,   a   fixed<\/p>\n
      formula as the one   under Section 10(8) of the Act 19 of 2006<\/p>\n
      does   appear   to   be   wholly   impracticable   and   unworkable.       To<\/p>\n
      illustrate,   if   in   a   particular   State   there   may   be   very   scanty<\/p>\n
      population   of   a   particular   community   and   number   of   students<\/p>\n
      seeking   admission   may   be   handful;     Would   such   religious   or<\/p>\n
      linguistic   minority     lose  its   right   to   establish  and  administer  its<\/p>\n
      educational   institutions.     In   the   State   of   Kerala   itself,   the<\/p>\n
      population   of   Sikhs   as   per   the   census   of   1991   is   2224   which<\/p>\n
      comes to 0.01% of the population.           So would  be Jains who<\/p>\n
      had a population of only 0.01%.    Would religious minorities like<\/p>\n
      Sikhs   and   Buddhists     have   no   right   of   establishing   and<\/p>\n
      administering   educational   institutions.     Surely,   if   the   fixed<\/p>\n
      formula as provided in Sect ion 10(8) is to be adhered to, their<\/p>\n
      right   under   Article   30   would   stand   forfeited.     In   no   case,   they<\/p>\n
      shall   be   able   to   admit   50%   of   students   from   their   community<\/p>\n
      because such number of students are not available.   To illustrate<\/p>\n
      the  impracticability  of   Section   10(8),   we   may   further   give   an<\/p>\n
W.P.(C) No.17873\/2006 etc.                   – 253 –<\/span><\/p>\n
      illustration.     In   a   given   academic   year,   say   2006-2007,   an<\/p>\n
      institution run by a religious minority may be able to secure 50%<\/p>\n
      of   admissions   from   its   community.     In   the     academic   year,<\/p>\n
      2006-2007,   it   would   be   a   religious   minority,   capable   of<\/p>\n
      exercising  its   right   under  Article  30(1).    For  the  next  academic<\/p>\n
      year, 2007-2008, it may not be able secure 50% admission from<\/p>\n
      its community and for that year it will lose the right available to<\/p>\n
      it under Article 30(1) of the Constitution.   In the next academic<\/p>\n
      year,   2008-2009,   they   may   again   be   able   to   secure   50%<\/p>\n
      admission   from   its   community.     Its   character   as   a   minority<\/p>\n
      institution shall be again restored.  Would any institution in such<\/p>\n
      a situation be able to work its affairs.  The clear and only answer<\/p>\n
      appears to us is an emphatic no.   Having tested Section 10(8) in<\/p>\n
      the   context   of   unworkability   and  impracticability,   time   is   now<\/p>\n
      ripe   to   test   the   provisions   of   the   Act   on   the   anvil   of   judicial<\/p>\n
      precedents.\n<\/p>\n<\/p>\n
                    72.     In  St.Stephen’s   College   v.   University   of<\/p>\n
      Delhi,<\/a>  (1992)   1   SCC   558,   one   of   the   questions,   i.e.,   the   third<\/p>\n
      question, that came up for discussion was whether St.Stephen’s<\/p>\n
W.P.(C) No.17873\/2006 etc.                  – 254 –<\/span><\/p>\n
      College and the Allahabad Agricultural Institute were entitled to<\/p>\n
      accord preference  to or reserve seats for  students of their own<\/p>\n
      community and whether such preference or reservation would be<\/p>\n
      invalid under Article 29(2) of the Constitution.     It was held that<\/p>\n
      minority   educational   institutions   are   entitled   to   prefer   their<\/p>\n
      community candidates to maintain the minority character of the<\/p>\n
      institutions   subject   of   course   to   conformity   with   the   University<\/p>\n
      standards.   The   State   may   regulate   the   intake   in   this   category<\/p>\n
      with due regard to the need of the community in the area which<\/p>\n
      the   institution   is   intended   to   serve,   but   in   no   case   such  intake<\/p>\n
      shall exceed 50 per cent of the annual admission.  The Supreme<\/p>\n
      Court     was  dealing  with a  minority  but  aided institutions  which<\/p>\n
      would   have   far   more   control   on   them   by   way   of   regulations<\/p>\n
      framed   by   the   Government   than   that   of   minority   unaided<\/p>\n
      institutions.   It is interesting to note that the law as mentioned<\/p>\n
      above   was   laid   down   in   the   context   of   challenge   posed   by<\/p>\n
      non-minority   candidates   for   their   admission   in   such   institutions<\/p>\n
      in the context of their right under Article 29 of the Constitution<\/p>\n
      which   prohibits   any   distinction   on   the   basis   of   religion,   race,<\/p>\n
W.P.(C) No.17873\/2006 etc.                 – 255 –<\/span><\/p>\n
      caste, language or any of them, in the matter of admission into<\/p>\n
      any educational institution which was receiving aid out of State<\/p>\n
      fund.   The bare minimum facts which need a necessary mention<\/p>\n
      would   show   that   St.Stephens   College,   Delhi   and   Allahabad<\/p>\n
      Agricultural   Institute   at   Naine   were   two   of   the   premier   and<\/p>\n
      renowned   institutions   in   the   country.     Both   were   aided<\/p>\n
      educational   institutions   and   were   getting   grant   from   the   State<\/p>\n
      fund.     However,   they   would   have   their   own   admission<\/p>\n
      programme providing for giving preference to Christian students.<\/p>\n
      The   validity   of   the   admission   programme   and   the   preference<\/p>\n
      given   to   Christian   students   were   the   issues   that   were   to   be<\/p>\n
      resolved.   The Supreme Court examined the right of the citizen<\/p>\n
      to get education untrammelled by religion, race, caste, language<\/p>\n
      etc. on the basis of the right under Article 29 of the Constitution<\/p>\n
      whereas   the   management   sought   to   defend   their   preferential<\/p>\n
      treatment   in   the   matter   of   admission   of   students   from     its<\/p>\n
      community on the basis of Article 30.   The Supreme Court while<\/p>\n
      harmoniously interpreting the two provisions  held that a balance<\/p>\n
      has   to   be   struck.     While   holding   that   no   distinction   could   be<\/p>\n
W.P.(C) No.17873\/2006 etc.                   – 256 –<\/span><\/p>\n
      made between citizens on the ground of religion, race, caste or<\/p>\n
      language   in   view   of   Article   29(2),   it   was   further   held   that   the<\/p>\n
      said  article  would  not mean that  it   was intended  to  nullify the<\/p>\n
      special rights granted to minorities under Article 30(1).  It was in<\/p>\n
      that   context   it   was   held   that   such   institutions   may   not   be<\/p>\n
      permitted to admit more than 50% from their community.   The<\/p>\n
      embargo is on the maximum number of students i.e. 50% who<\/p>\n
      could   be   admitted   to   such   institutions.       In   T.M.A.Pai’s   case   it<\/p>\n
      was   observed   that,   St.Stephen’s   case   endeavoured   to   strike   a<\/p>\n
      balance   between   the   two   articles   and   even   though   the   ratio   in<\/p>\n
      St.Stephen’s case holds the field for over a decade, there were<\/p>\n
      compelling   reservations   in   not   accepting   the   rigid   percentage<\/p>\n
      stipulated   therein.     As   Articles   29   and   30   applied   not   only   to<\/p>\n
      institutions   of   higher   learning,   but   also   to   schools,   a   ceiling   of<\/p>\n
      50%   was   held   to   be   not   proper   and   it   would   be   more<\/p>\n
      appropriate, depending upon the level of the institution, whether<\/p>\n
      it   be   a   primary   or   secondary     or   high   school   or   a   college,<\/p>\n
      professional or otherwise and on the population and educational<\/p>\n
      needs   of   the   area   in   which  the   institution   is   to   be  located,   the<\/p>\n
W.P.(C) No.17873\/2006 etc.                  – 257 –<\/span><\/p>\n
      State properly balances the interests of all by providing for such<\/p>\n
      a   percentage   of   students   of   the   minority   community   to   be<\/p>\n
      admitted,   so   as   to   adequately   serve   the   interest   of   the<\/p>\n
      community   for   which   the   institution   was   established.       The<\/p>\n
      observations in St.Stephen’s case as clarified in T.M.A.Pai’s case<\/p>\n
      that fixing of a maximum limit of 50% which is not held to be a<\/p>\n
      rigid one was arrived at as mentioned above, by reconciling the<\/p>\n
      rights   of   the   students   under   Article   29(2)   and   the   right   of   the<\/p>\n
      minority   institutions   under   Article   30   of   the   Constitution,<\/p>\n
      pertaining to institutions  receiving aid.   In the present case, the<\/p>\n
      embargo is on admission of a minimum 50% of students of the<\/p>\n
      religious   community   and   that   also     for   those   institutions   which<\/p>\n
      are unaided.  It has been clearly held in T.M.A.Pai’s case that as<\/p>\n
      long as the educational institution whether belonging to minority<\/p>\n
      or majority community, does not receive aid, it would be its right<\/p>\n
      and discretion to grant admission to such students as it chooses<\/p>\n
      or   selects   subject   to   the   clarification   made   above.       The<\/p>\n
      clarification is only with regard to the dual or triple test.<\/p>\n
                    73.     Mr.Vaidyanathan   would   however,   rely   upon   the<\/p>\n
W.P.(C) No.17873\/2006 etc.                   – 258 –<\/span><\/p>\n
      observations   in   T.M.A.Pai’s   case   in   paragraph   153.     The   aided<\/p>\n
      linguistic minority institutions, it has been observed, is given the<\/p>\n
      right to admit students belonging to the linguistic minority to a<\/p>\n
      reasonable   extent   only   to   ensure   that   its   minority   character   is<\/p>\n
      preserved and that the objective of establishing the institution is<\/p>\n
      not defeated.  If so, such an institution is under an obligation to<\/p>\n
      admit   the   bulk   of   the   students   fitting   into   the   description   of<\/p>\n
      minority community.   It has further been held that, students of<\/p>\n
      that group residing in the State in which the institution is located<\/p>\n
      have to be necessarily admitted in a large measure because they<\/p>\n
      constitute   the   linguistic   minority     group   as   far   as   that   State   is<\/p>\n
      concerned.     In   other   words,   the   predominance   of   linguistic<\/p>\n
      students hailing from the State in which the minority educational<\/p>\n
      institution is established should be present and the management<\/p>\n
      bodies   of   such   institutions   cannot   resort   to   the   device   of<\/p>\n
      admitting the linguistic students of the adjoining State in which<\/p>\n
      they are in a majority under the facade of the protection given<\/p>\n
      under   Article   30(1).     The   counsel   would   further   rely   upon   the<\/p>\n
      observations made in paras 101 and 102 in Inamdar’s case.<\/p>\n
W.P.(C) No.17873\/2006 etc.                – 259 –<\/span><\/p>\n
                   74.     In   paragraph   100   of   Inamdar’s   case,   the<\/p>\n
      Supreme Court was dealing with the nature of right conferred by<\/p>\n
      Articles 29 and 30, where it was observed that the same stood<\/p>\n
      more clarified and reconciled inter se as also with other articles,<\/p>\n
      if only it was understood that these two articles were intended to<\/p>\n
      confer protection on minorities rather than a right as such.     It<\/p>\n
      was   then   in   paragraph   101   that   the   complex   question   of<\/p>\n
      transborder reservation was considered and it was observed that<\/p>\n
      State is to be the unit for the purpose of deciding the minority.<\/p>\n
      By   this   declaration   of   law,   certain   consequences   would   follow.<\/p>\n
      Every community in India would become minority because in one<\/p>\n
      or the other State, it would be a minority religious or linguistic<\/p>\n
      The   question   would   be   what   would   happen   if   a   minority<\/p>\n
      belonging   to   a   particular   State   establishes   an   educational<\/p>\n
      institution in that State and administers it but for the benefit of<\/p>\n
      members   belonging   to   that   minority   domiciled   in   the<\/p>\n
      neighbouring  State where that community is in majority.   Such<\/p>\n
      an   exercise   would   be   fraud   on   the   Constitution.     In   paragraph<\/p>\n
      102,   while   referring   to   the   observation   in   T.M.A.Pai’s   case,   it<\/p>\n
W.P.(C) No.17873\/2006 etc.                  – 260 –<\/span><\/p>\n
      was   observed   that   to   establish   a   minority   institution   the<\/p>\n
      institution   must   primarily   cater   to   the   requirements   of   that<\/p>\n
      minority   of   that   State,   else   its   character   of   minority   institution<\/p>\n
      would be lost.\n<\/p>\n<\/p>\n
                   75.         Having   examined   the   contentions   of<\/p>\n
      Mr.Vaidyanathan,   we   however   find   that     the   counsel   relies   on<\/p>\n
      observations   which   have   been   made   in   an   entirely   different<\/p>\n
      context.    The observations made in paragraph 153 of T.M.A.Pai<\/p>\n
      with regard to the obligation of the institution to admit the bulk<\/p>\n
      of   the   students   fitting   into   the   description   of   the   minority<\/p>\n
      community or students of that group from that State, it appears<\/p>\n
      was made  in the context of  cross-border admission.  So is also<\/p>\n
      true   with   regard   to   the   observations   made   and   relied   upon   by<\/p>\n
      Mr.Vaidyanathan in   paras 101 and 102 of Inamdar’s case.   The<\/p>\n
      practice   adopted   by  the   institutions    have   shown  that   they   will<\/p>\n
      make admissions from across the border of the State where the<\/p>\n
      concerned religious minority was not a minority.   The State has<\/p>\n
      to   be   the   unit   for   determining   the   minority   and   it   would   be<\/p>\n
      possible   that   a   minority   in   Kerala   may   not   be   a   minority   in<\/p>\n
W.P.(C) No.17873\/2006 etc.                 – 261 –<\/span><\/p>\n
      Karnataka.     Surely,   if   the   religious   minority   institution   is   given<\/p>\n
      right   to   make   admission   even   though   of   minority   community<\/p>\n
      which are a majority in the other State, it would be a fraud on<\/p>\n
      the Constitution.   It is in that context the observations came to<\/p>\n
      be   made   that   bulk   or   majority   of   admission   of   minority<\/p>\n
      community has to be from within the State where the community<\/p>\n
      is   a   minority.     Despite   the   observations   made   above,   it   has<\/p>\n
      further   been   observed   that   there   could   be   a   sprinkling   of<\/p>\n
      admissions   from  across  the border.   There  observations   cannot<\/p>\n
      at all be construed to mean that  the minority institutions aided<\/p>\n
      or   unaided   must   necessarily   admit   50%   of   its   students   from<\/p>\n
      within   the   community   in   that   State.     It   may   be   recalled   that<\/p>\n
      converse   argument   that   minority   institutions   may     not   deny<\/p>\n
      admission   to   students   of   other   communities   was   upheld,   even<\/p>\n
      though the two provisions contained in Articles 29 and 30 were<\/p>\n
      reconciled.  If a converse contention of giving admission to non-<\/p>\n
      minority community students was upheld, it cannot be a law that<\/p>\n
      minimum   students   admitted   by     minority   institutions   must   be<\/p>\n
      50%.   What appears to be the correct situation culled out from<\/p>\n
W.P.(C) No.17873\/2006 etc.                  – 262 –<\/span><\/p>\n
      the   various   Supreme   Court   decisions   is   that   the   intake   of<\/p>\n
      community   students   in   the   concerned   institution   has   to   be<\/p>\n
      dependent upon variety of factors like what kind of institution it<\/p>\n
      is,    whether   primary,  secondary,   high  school   or   professional   or<\/p>\n
      otherwise, the population of that community in the State and to<\/p>\n
      the need of the area in which the institution is to be  located.  It<\/p>\n
      is   by   considering     all   these   factors   that   the   State   may   fix   a<\/p>\n
      minimum   intake   of   minority   and   non-minority     students.     It   is<\/p>\n
      only in consideration of the factors as mentioned above, the ratio<\/p>\n
      of minority community and non-minority community students for<\/p>\n
      admission  may  be and  can be  determined.    A  fixed  percentage<\/p>\n
      such as the 50% as a minimum limit of admission of students of<\/p>\n
      the   same   community   would   not   be   correct   and   therefore   any<\/p>\n
      regulation   or   any   provision   of   law   such   as   Section   10(8)   shall<\/p>\n
      have to be held to be unworkable, unreasonable, impractical as<\/p>\n
      also against the rights of minority institutions conferred on them<\/p>\n
      under Article 30 of the Constitution.<\/p>\n
\n\n\nW.P.(C) No.17873\/2006 etc.                   - 263 -<\/span>\n\n\n\n\n                                   Fixation of Quotas\n\n\n                    76.    Section   10     of   the   Act   19   of   2006   has   been\n\n\n<\/pre>\n
      challenged   with   regard   to   all   its   main   provisions.   We   have<\/p>\n
      already dealt with challenge to the first part of sub-section (8) of<\/p>\n
      Section 10.    The  challenge to  the other  part  of  sub-section (8)<\/p>\n
      and  other  sub-sections  of Section 10    is  to be considered  now.<\/p>\n
      We have already reproduced Section 10 in its entirety as also the<\/p>\n
      supporting rules with regard to items provided under Section 10.<\/p>\n
      Section   10   pertains   to   all   kinds   of   institutions,   viz.,   minority;<\/p>\n
      non-minority;   aided   or   unaided.     It   will   be   first   useful   to   trace<\/p>\n
      allotment   of   seats   as   may   pertain   to   professional   colleges   or<\/p>\n
      institutions other than minority.   This would cover non-minority<\/p>\n
      professional colleges, whether aided or unaided.  In this category<\/p>\n
      as   well,   it   will   be   first   useful   to   only   examine   the   rules   with<\/p>\n
      regard to non-minority but unaided college or institutions. Every<\/p>\n
      institution   that   we   are   dealing   with   is   an   unaided   one,   the<\/p>\n
      distinction is thus between minority and non-minority, and   that<\/p>\n
      is   why   all   these   institutions   are   known   as   Self   Financing.     For<\/p>\n
      understanding   the   scheme   of   Section   10,   it   will   be   useful   to<\/p>\n
W.P.(C) No.17873\/2006 etc.                   – 264 –<\/span><\/p>\n
      make a grid of 100.  It would be seen that  Section 10(1) would<\/p>\n
      relate to all colleges or institutions other than minority.  In so far<\/p>\n
      as professional college or institution which is a non-minority but<\/p>\n
      is unaided is concerned, under item (a) 10%  of total sanctioned<\/p>\n
      seats   out   of   100   shall   be   earmarked\/reserved   for   Scheduled<\/p>\n
      Castes   and   Scheduled   Tribes;   under   item   (b)   25%   of   the   total<\/p>\n
      sanctioned   seats  shall   be  earmarked\/reserved  for   other  socially<\/p>\n
      and educationally backward classes and under item (c) 3% of the<\/p>\n
      total sanctioned seats shall be earmarked\/reserved for physically<\/p>\n
      challenged persons and under item (d) 12% of the total number<\/p>\n
      of   sanctioned   seats   shall   be   earmarked\/reserved   for   the   other<\/p>\n
      sections   of   society  not   covered  under  items  (a),  (b)  and  (c)   of<\/p>\n
      sub-section (1) on merit-cum-means basis.   This would make a<\/p>\n
      reservation       of     50%.             By   virtue   of   the   first   proviso   to<\/p>\n
      sub-section (1) of Section 10,  an unaided professional college or<\/p>\n
      institution would have an option to make reservation of 3%   for<\/p>\n
      physically   challenging   persons   and   12%   for   other   sections   of<\/p>\n
      society not covered by items   (a), (b)  and (c),     on merit cum<\/p>\n
      means basis.  In other words, the reservation as provided under<\/p>\n
W.P.(C) No.17873\/2006 etc.                 – 265 –<\/span><\/p>\n
      items (c) and (d) is to be     provided only on consensus, on the<\/p>\n
      basis of mutual agreement arrived at between the institution and<\/p>\n
      the Government, which shall have to follow the principles as may<\/p>\n
      be prescribed.   By virtue of the second proviso to Section 10(1),<\/p>\n
      admissions contemplated   under  items (b), (c) and (d) have to<\/p>\n
      be made in compliance with the rules as may be prescribed.  As<\/p>\n
      per   Rule   10(2),   every   professional   college   or   institution   shall<\/p>\n
      intimate its consent  for admission of candidates under items  (c)<\/p>\n
      and   (d)   of   Section   10(1)   within   the   time   limit   prescribed   by<\/p>\n
      Government.    As  per   Rule 10(3),  if   the  managements  may  not<\/p>\n
      convey their consent within the time limit prescribed, it shall be<\/p>\n
      deemed that consent has been duly given for admissions under<\/p>\n
      items (c) and (d) of Section   10(1).   By virtue of the provisions<\/p>\n
      contained   in   Section   10(2),   15%   of   seats   in   an   unaided<\/p>\n
      professional college  both from minority and non-minority can be<\/p>\n
      filled   by   candidates   in   the   category   of   Non-Resident   Indians.<\/p>\n
      The   seats   however,   not   filled   in   that   category   would   be   filled<\/p>\n
      from   general   merit.     15%   of   seats   in   an   unaided   professional<\/p>\n
      college   both   from   minority   and   non-minority   may   be   filled   by<\/p>\n
W.P.(C) No.17873\/2006 etc.                  – 266 –<\/span><\/p>\n
      candidates in the category of privilege seats and seats not filled<\/p>\n
      in that category would be filled from general merit.  18% of total<\/p>\n
      number   of   sanctioned   seats   in   an   unaided   minority   institution<\/p>\n
      shall     have   to   be   filled   from   general   merit   quota   by   virtue   of<\/p>\n
      Section 10(4).   2% of sanctioned seats have to be filled up from<\/p>\n
      among students who have made outstanding contribution in the<\/p>\n
      field of culture  or sports.    It would thus  be seen that in a grid<\/p>\n
      of   100,   in   so   far   as   unaided   non-minority   professional   colleges<\/p>\n
      are concerned, there would be reservation of 82%.  Out of  82%,<\/p>\n
      10%  would  be for  SC\/ST,   25%  for    Socially and  Educationally<\/p>\n
      Backward classes, 3% for physically challenged persons, 10% for<\/p>\n
      other   sections   of   society     on   merit   cum   means   basis,   15%   for<\/p>\n
      Non-Resident   Indians,     15%   for   privilege   seats   and   2%   for<\/p>\n
      outstanding contribution in sports or culture.  It is no doubt true<\/p>\n
      that   reservation   as   provided   in   items   (c)   and   (d)   i.e.   3%   for<\/p>\n
      physically   challenging   persons   and   12%   for   other   sections   of<\/p>\n
      society   on   merit   cum   means   basis   has   to   be   determined   by<\/p>\n
      consensus arrived at on the basis of mutual agreement between<\/p>\n
      the institution and government as per first proviso     to Section<\/p>\n
W.P.(C) No.17873\/2006 etc.                – 267 –<\/span><\/p>\n
      10(1).      We  shall   deal  with  this   consensual  or  mutually  agreed<\/p>\n
      reservation later in point of time and would at this stage consider<\/p>\n
      the matter when all options may be exercised by the college in<\/p>\n
      making such reservation.   It is apparent that if the options are<\/p>\n
      made to all the  categories,  it  would come to 82%.  If however,<\/p>\n
      there   may   not   be   any   mutual   consensus   on   the   reservations<\/p>\n
      provided  in  items   (c)  and   (d)  of   sub-section   (1)   of   Section  10,<\/p>\n
      the reservation would come to 67%.     The unaided professional<\/p>\n
      college may not fill seats under NRI category.  It may not also fill<\/p>\n
      up   15%   privilege   seats.     In   that   case,   the   compulsory<\/p>\n
      reservation   would   come   to   37%.     We   would   deal   with   the<\/p>\n
      situation   when   the   institutions   may   not   opt   for   reservation   in<\/p>\n
      various categories   as  mentioned  above   but  once   such  option   is<\/p>\n
      available   and   it   is   exercised,   as   mentioned   above,   the<\/p>\n
      reservation would go to 82%.   The   questions in the context of<\/p>\n
      various   kinds   of   reservations   and   percentage   thereof   would   be<\/p>\n
      whether   there   is   any   reservation   which   may   be   impermissible<\/p>\n
      and   may   not   have   the   sanction   of   Article   15(5)   of   the<\/p>\n
      Constitution, even as inserted; as also  whether such percentage<\/p>\n
W.P.(C) No.17873\/2006 etc.                – 268 –<\/span><\/p>\n
      of   reservation   is   permissible   in   view   of   various   judicial<\/p>\n
      precedents holding the field.       We shall first deal with Sections<\/p>\n
      10(1)(c), 10(1)(d), 10(3) and   10 (5).   Article 15(5) as inserted<\/p>\n
      by   the   Constitution   (93rd  Amendment)   dated  21.1.2006  which<\/p>\n
      will be applicable on the same date reads as follows:<\/p>\n
                     “Nothing   contained   in   this   article   or   in<\/p>\n
                     sub-clause   (g)  of   clause  (1)  of   Article   19<\/p>\n
                     shall   prevent   the   State   from   making   any<\/p>\n
                     special   provision,   by   law,   for   the<\/p>\n
                     advancement   of   any   socially   and<\/p>\n
                     educationally backward classes of citizens<\/p>\n
                     or   for   the   Scheduled   Castes   or   the<\/p>\n
                     Scheduled Tribes in so far as such special<\/p>\n
                     provisions   relate   to   their   admission   to<\/p>\n
                     educational   institutions   including   private<\/p>\n
                     educational   institutions   whether   aided   or<\/p>\n
                     unaided   by   the   State,   other   than   the<\/p>\n
                     minority   educational   institutions   referred<\/p>\n
                     to in clause (1) of Article 30”.\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
      We shall consider the provisions of reservation for the time being<\/p>\n
      in   so   far   as   they   relate   to   unaided   non-minority   institutions.<\/p>\n
W.P.(C) No.17873\/2006 etc.                – 269 –<\/span><\/p>\n
      Article 15(5) permits by way of special provision  reservation for<\/p>\n
      socially   and   educationally   backward   classes   or   for   Scheduled<\/p>\n
      Castes and Scheduled Tribes.   In so far as reservations of 10%<\/p>\n
      for Scheduled Castes and  Scheduled Tribes    and 25% for  other<\/p>\n
      Socially   and   educationally   backward   classes   are     concerned,<\/p>\n
      there   may not be any exception to the same.     The argument<\/p>\n
      with   regard   to   non-permissibility   of   reservation   even   in   the<\/p>\n
      context   of   Article   15(5)   pertains   to   3%   of   seats   earmarked  for<\/p>\n
      physically   challenging   persons,   12%     of   seats   earmarked   for<\/p>\n
      other sections of Society not covered under items (a), (b) and (c)<\/p>\n
      of   Sec.   10(1)   on   merit-cum-means   basis,   15%     earmarked   for<\/p>\n
      privilege   seats   under   Section   10(3)   and   2%   earmarked   for<\/p>\n
      outstanding contribution in  culture and sports  under  Section  10<\/p>\n
      (5).    These  reservations  it is  urged cannot  be protected on  the<\/p>\n
      basis   of   the   provisions   contained   in   Article   15(5)   of   the<\/p>\n
      Constitution.\n<\/p>\n<\/p>\n
                   77.     There   appears   to   be   considerable   merit   in   the<\/p>\n
      contention   raised   by   the   learned   counsel   for   the   petitioners   as<\/p>\n
      noted above.    By virtue of the provisions of Article 15(5) of the<\/p>\n
W.P.(C) No.17873\/2006 etc.                 – 270 –<\/span><\/p>\n
      Constitution, notwithstanding  anything contained  in    Article     15<\/p>\n
      itself or anything in Article 19(1)(g), the State by way of special<\/p>\n
      provision,   by   law,   can   provide   for   reservation   for   socially   and<\/p>\n
      educationally   backward   classes   of   citizens   and   for   Scheduled<\/p>\n
      Castes   and   Scheduled   Tribes.     Whether   the   reservation   of   3%<\/p>\n
      provided  for     physically   challenging   persons  and   12%   for   other<\/p>\n
      sections of Society not covered by items (a), (b) and (c),  as also<\/p>\n
      reservation   of   15%   provided   for   privilege   seats   and   2%   for<\/p>\n
      outstanding   contribution   in   sports   and   culture,   would   have   the<\/p>\n
      sanction   of   Article   15(5)   of   the   Constitution.     Physically<\/p>\n
      handicapped   persons   may   be   deserving   reservation   otherwise,<\/p>\n
      but such reservation cannot be protected by Article 15(5)  of the<\/p>\n
      Constitution as surely, such categories may not be such as may<\/p>\n
      be   identified   as   socially   and   educational   backward     nor     it   is<\/p>\n
      Scheduled   Caste   or   Scheduled   Tribes   and   it   is   only   these   two<\/p>\n
      categories   for   which   by   way   of   special   provision   by   law<\/p>\n
      reservation   can   be   provided   under   Article   15(5).     So   would   be<\/p>\n
      true   with   regard   to   reservation   provided   for   candidates   who<\/p>\n
      made  outstanding contribution in  culture and sports. No doubt,<\/p>\n
W.P.(C) No.17873\/2006 etc.                 – 271 –<\/span><\/p>\n
      it is being urged by the State that 15% of privilege seats is for<\/p>\n
      the benefit of management, as they have been given an option<\/p>\n
      to make choice of the candidates, but it is emphatically urged by<\/p>\n
      the counsel for the institutions that they would not like   to have<\/p>\n
      any such reservation as that would surely result into lowering the<\/p>\n
      standards of education.  Be that as it may, it is certain that  the<\/p>\n
      kind of reservation as mentioned above would not be protected<\/p>\n
      nor   would   have   any   sanction   under   Article   15(5)   of   the<\/p>\n
      Constitution.     The     question   that   thus   arises   is   as   to   whether<\/p>\n
      when  the   management   may   make   option   of   all   reservations   as<\/p>\n
      mentioned  in  various  clauses of  Section 10 and   when it would<\/p>\n
      surely go up to 82%, would that be legally permissible, in view of<\/p>\n
      judicial precedents holding the field.\n<\/p>\n<\/p>\n
                   78.   It is settled proposition of law by now that   the<\/p>\n
      promotion   or   advancement   of   weaker   elements   in   the   society<\/p>\n
      needs to be balanced with consideration of national interest and<\/p>\n
      the interest of the community of the society as a whole.   Article<\/p>\n
      15(4) provides that State can by special provision to legislate for<\/p>\n
      advancement of any socially and educationally backward classes<\/p>\n
W.P.(C) No.17873\/2006 etc.                – 272 –<\/span><\/p>\n
      of   citizens   or   for   the   Scheduled   Castes   or   Scheduled   Tribes.<\/p>\n
      There   has   been   a   debate  eversince  that   the   interest   of   the<\/p>\n
      weaker elements requires to be balanced with the interest of the<\/p>\n
      community of the society as a whole.  In M.R.Balaji v. State of<\/p>\n
      Mysore, AIR<\/a> 1963 SC 649, the Government of Mysore had by an<\/p>\n
      order reserved seats for backward classes in technical education<\/p>\n
      and the extent of reservation was 68%.  It was urged that such<\/p>\n
      a   high   fixation   of   percentage   would   be   inconsistent   with   the<\/p>\n
      provisions of Article 15(4) of the Constitution.  While dealing with<\/p>\n
      the   issue   in   the   context   of   balancing   the   two   interests   as<\/p>\n
      mentioned above, it was held as follows:\n<\/p>\n<\/p>\n
                         “When   Art.16(4)   refers   to   the   special<\/p>\n
                  provision   for   the   advancement   of   certain<\/p>\n
                  classes or scheduled castes or scheduled tribes,<\/p>\n
                  it must not be ignored that the provision which<\/p>\n
                  is authorised to be made is a special provision;<\/p>\n
                  it   is   not   a   provision   which   is   exclusive   in<\/p>\n
                  character,   so   that   in   looking   after   the<\/p>\n
                  advancement of those classes, the State would<\/p>\n
                  be   justified   in   ignoring   altogether   the<\/p>\n
                  advancement   of   the   rest   of   the   society.     It   is<\/p>\n
                  because   the   interest   of   the   society   at   large<\/p>\n
                  would   be   served   by   promoting   the<\/p>\n
                  advancement   of   the   weaker   elements   in   the<\/p>\n
                  society   that   Art.15(4)           authorises       special<\/p>\n
                  provision to be made.   But if a provision which<\/p>\n
                  is   in   the   nature   of   an   exception   completely<\/p>\n
W.P.(C) No.17873\/2006 etc.              – 273 –<\/span><\/p>\n
               excludes the rest of the society, that clearly is<\/p>\n
               outside   the   scope   of   Art.15(4).     It   would   be<\/p>\n
               extremely   unreasonable   to   assume   that   in<\/p>\n
               enacting Art.15(4) the Constitution intended to<\/p>\n
               provide   that   where   the   advancement   of   the<\/p>\n
               Backward Classes or the Scheduled Castes and<\/p>\n
               Tribes   was   concerned,   the   fundamental   rights<\/p>\n
               of   the   citizens   constituting   the   rest   of   the<\/p>\n
               society   were   to   be   completely   and   absolutely<\/p>\n
               ignored.\n<\/p><\/blockquote>\n
                              In this connection, it is necessary to<\/p>\n
               remember   that   the   reservation   made   by   the<\/p>\n
               impugned order is in regard to admission in the<\/p>\n
               seats   of   higher   education   in   the   State.     It   is<\/p>\n
               well   known   that   as   a   result   of   the   awakening<\/p>\n
               caused   by   political   freedom,   all   classes   of<\/p>\n
               citizens   are   showing   a   growing   desire   to   give<\/p>\n
               their   children   higher   university   education   and<\/p>\n
               so, the Universities are called upon to face the<\/p>\n
               challenge of  this growing  demand.    While it is<\/p>\n
               necessary   that   the   demand   for   higher<\/p>\n
               education which is thus increasing from year to<\/p>\n
               year   must   be   adequately   met   and   properly<\/p>\n
               channelised,   we   cannot   overlook   the   fact   that<\/p>\n
               in   meeting   that   demand   standards   of   higher<\/p>\n
               education in Universities must not be lowered.<\/p>\n
               The large demand for education may be met by<\/p>\n
               starting   larger   number   of   educational<\/p>\n
               institutions,          vocational          schools         and<\/p>\n
               polytechnics.     But,   it   would   be   against   the<\/p>\n
               national interest to exclude from the portals of<\/p>\n
               our   Universities   qualified   and   competent<\/p>\n
               students on the ground that all the seats in the<\/p>\n
               Universities   are   reserved   for   weaker   elements<\/p>\n
               in society.\n<\/p><\/blockquote>\n
<\/blockquote>\n
                                      xxx     xxx     xxx<\/p>\n
W.P.(C) No.17873\/2006 etc.             – 274 –<\/span><\/p>\n
               Therefore in considering the question about the<\/p>\n
               propriety   of   the   reservation   made   by   the<\/p>\n
               impugned   order,   we   cannot   lose   sight   of   the<\/p>\n
               fact that the reservation is made in respect of<\/p>\n
               higher   university   education.     The   demand   for<\/p>\n
               technicians,   scientists,   doctors,   economists,<\/p>\n
               engineers and experts for the further economic<\/p>\n
               advancement of the country is so great that it<\/p>\n
               would   cause   grave   prejudice   to   national<\/p>\n
               interests   if   considerations   of   merit   are<\/p>\n
               completely   excluded   by   wholesale   reservation<\/p>\n
               of seat in all technical, Medical   or Engineering<\/p>\n
               colleges or institutions of that kind.  Therefore,<\/p>\n
               considerations   of   national   interest   and   the<\/p>\n
               interests   of   the   community   or   society   as   a<\/p>\n
               whole   cannot   be   ignored   in   determining   the<\/p>\n
               question   as   to   whether   the   special   provision<\/p>\n
               contemplated   by   Art.15(4)   can   be   special<\/p>\n
               provision which excludes the rest of the society<\/p>\n
               altogether.\n<\/p><\/blockquote>\n
                            xxx     xxx       xxx<\/p>\n
               The   adjustment   of   these   competing   claims   is<\/p>\n
               undoubtedly a difficult matter, but if under the<\/p>\n
               guise   of   making   a   special   provision,   a   State<\/p>\n
               reserves practically all the seats available in all<\/p>\n
               the   colleges,   that   clearly   would   be   subverting<\/p>\n
               the  object   of  Art.15(4).     In  this  matter  again,<\/p>\n
               we   are   reluctant   to   say   definitely   what   would<\/p>\n
               be   a   proper   provision   to   make.     Speaking<\/p>\n
               generally   and   in   a   broad   way,   a   special<\/p>\n
               provision should be less than 50 per cent; how<\/p>\n
               much less than 50 per cent would depend upon<\/p>\n
               the   relevant   prevailing   circumstances   in   each<\/p>\n
               case.    In  this   particular   case,   it   is   remarkable<\/p>\n
               that when the State issued its order on July 10,<\/p>\n
               1961,     it   emphatically   expressed   its   opinion<\/p>\n
               that   the   reservation   of   68%   recommended  by<\/p>\n
W.P.(C) No.17873\/2006 etc.                    – 275 –<\/span><\/p>\n
                    the   Nagan   Gowda   Committee   would   not   be   in<\/p>\n
                    the larger interest of the State”.<\/p>\n<\/blockquote>\n
      In  Indra  Sahwney’s  case,  the  majority held  that  rule of   50%<\/p>\n
      laid down in Balaji’s case was a binding rule and not a mere rule<\/p>\n
      of   prudence.     It   was   also   held   that   Article   16(4)   speaks   of<\/p>\n
      adequate   representation   and   not   proportionate   representation,<\/p>\n
      although   proportion   of   population   of   backward   classes   to   the<\/p>\n
      total population would certainly be relevant   and that Article 16<\/p>\n
      (4) which protects the interest of certain sections of society has<\/p>\n
      to be balanced against Article 15(1) which protects the interest<\/p>\n
      of  every  citizen of the entire society.   It  should be  harmonious<\/p>\n
      because   they   are   resettlement   of   principles   of   equality   under<\/p>\n
      Article 14.\n<\/p>\n<\/p>\n
                    79.     A   special   provision   to   provide   for   reservation<\/p>\n
      must not go beyond 50% as in that situation, it would be against<\/p>\n
      the   interest   of   the   nation.     Surely,   in   that   event,   it   will   be   a<\/p>\n
      discrimination   to   non-reserved   category   and   that   is   what   is<\/p>\n
      adversely commented upon   as reverse discrimination. This has<\/p>\n
      been   the   law   all-through   till   date.     It   will   be   absolutely<\/p>\n
W.P.(C) No.17873\/2006 etc.                   – 276 –<\/span><\/p>\n
      unnecessary  to refer to other  judicial precedents as that would<\/p>\n
      burden  this  judgment which in the peculiar facts of the case is<\/p>\n
      to be in any case voluminous.   We are also not referring to any<\/p>\n
      other case law   on the point as it has  remained undisputed that<\/p>\n
      a   total   reservation,   be   it   in   the   matter   of   education   or<\/p>\n
      employment,   cannot   go   beyond   50%.     The   discordant   view,<\/p>\n
      however, in the present case is that, it is not a case of more than<\/p>\n
      50%   compulsory   reservation.     The   compulsory   reservation,   as<\/p>\n
      submitted   by   Mr.Vaidyanathan,   would   not   go   beyond     50%.<\/p>\n
      What Mr.Vaidyanathan contends may be correct if options given<\/p>\n
      to   the   managements   are   not   exercised.     However,   once   the<\/p>\n
      options are available and can well be exercised, what shall then<\/p>\n
      happen.    It is  that  situation  which is permissible  and may  take<\/p>\n
      place   in   a   particular   year,   or   year   after   year,   which   has   to   be<\/p>\n
      taken into consideration in the context of Section 10.   It is too<\/p>\n
      well   known   that   constitutionality   of   a   provision   can   be   tested<\/p>\n
      even   on   hypothetical   situation.     In   the   present   case,   as<\/p>\n
      mentioned above, the reservation to the extent of 82% is not a<\/p>\n
      myth.       It  is a reality and as mentioned above may take place<\/p>\n
W.P.(C) No.17873\/2006 etc.                   – 277 –<\/span><\/p>\n
      every   year   and   for   all   times   to   come.     Where   shall   go   in   that<\/p>\n
      situation, the merit,  for which alone it is urged on behalf of the<\/p>\n
      State that Act of 2006 has been enacted.   Considering thus, the<\/p>\n
      contention raised by the learned counsel for the petitioners  that<\/p>\n
      it   is   a   case   of   reservation   far   beyond   permissible   limits   in   a<\/p>\n
      situation which is likely to happen, the court has no choice, but<\/p>\n
      to   hold     that   extent   of   reservation     is   wholly   impermissible,<\/p>\n
      illegal and unconstitutional.   It is also against the law settled by<\/p>\n
      the Supreme Court which holds the field till date.<\/p>\n
                    80.   It        is also urged by the counsel appearing for<\/p>\n
      the   petitioners   that   if   the   college   may   consent   to   give<\/p>\n
      reservations which  are optional  as  detailed above, the students<\/p>\n
      who may find selection by way of merit would be well within their<\/p>\n
      rights to challenge such option exercised by the management by<\/p>\n
      asserting that circumstances   never existed for such a consent,<\/p>\n
      the converse shall also be true.     In case, thus, the institutions<\/p>\n
      may not consent to  optional reservations, candidates  in the said<\/p>\n
W.P.(C) No.17873\/2006 etc.                 – 278 –<\/span><\/p>\n
      reserve   category   may   challenge   the   same   by   pleading   that<\/p>\n
      circumstances did exist that would justify their admission in such<\/p>\n
      reservation.     This   would   open   floodgates   of   litigation     for   the<\/p>\n
      management   and   the   admission   process   shall   never     be<\/p>\n
      complete.     There   appears   to   be   considerable   merit   in   the<\/p>\n
      aforesaid   contention   of   the   learned   counsel   as   well.     Indeed   a<\/p>\n
      piquant   situation   has   been   created   where   the   institutions   may<\/p>\n
      not be able to work out their affairs in either of two situations,<\/p>\n
      when they may  exercise an  option  of  reservation or  when  they<\/p>\n
      may not choose to do so.\n<\/p>\n<\/p>\n
                   81.  Counsel for the petitioners would further contend<\/p>\n
      that the non-obstante clause in Article 15(5) would be limited to<\/p>\n
      Articles 15 and 19(1)(g).  Articles 14, 21, 26 and 30  have been<\/p>\n
      left   untouched   and   would   thus   apply.     It   is   further   urged   that<\/p>\n
      special provisions contained in Article 15(5) must be reasonable<\/p>\n
      and proportionate, and that the term ‘special provision’ must be<\/p>\n
      subject   to   reasonableness.     Article   15(5)   cannot   be   used   to<\/p>\n
      nationalise   admission   grids,   it   is   further   the   contention   of   the<\/p>\n
W.P.(C) No.17873\/2006 etc.                  – 279 –<\/span><\/p>\n
      learned counsel appearing for the petitioners.<\/p>\n
                   82.     We   have   seriously   considered   the   contention   of<\/p>\n
      the learned counsel and are of the view that the same too  has<\/p>\n
      merit.        The   provisions   contained   in   Article   15(5)   are<\/p>\n
      notwithstanding anything contained in Article 15 itself and Article<\/p>\n
      19(1)(g).    Article  15   prohibits  discrimination   on  the  grounds   of<\/p>\n
      religion,   race,   caste,   sex   or   place   of   birth.       Article   19(1)(g)<\/p>\n
      pertains to protection of the right of the citizens to practice any<\/p>\n
      profession, or to carry on any occupation, trade or business.  The<\/p>\n
      provisions   of   Article   15(5)   would   apply   irrespective   of   the<\/p>\n
      provisions   contained   in   Article   15   prohibiting   discrimination   on<\/p>\n
      the grounds of religion, race, caste, sex or place of birth and also<\/p>\n
      the   fundamental   right   of   citizens     under   Article   19(1)(g)   to<\/p>\n
      practice   any   profession.     The   running   of   an   educational<\/p>\n
      institution   has   already   been   held   to   be   a   profession   within   the<\/p>\n
      meaning of Article 19(1)(g). Despite the provisions contained in<\/p>\n
      Article   15   and   19(1)(g),   the   State   would   have   competence   to<\/p>\n
      legislate by special provision for advancement of any socially and<\/p>\n
W.P.(C) No.17873\/2006 etc.                  – 280 –<\/span><\/p>\n
      educationally   backward   classes   or   Scheduled   Castes   and<\/p>\n
      Scheduled   Tribes   in   the   matter   of   education   to   educational<\/p>\n
      institutions.       The special laws that may thus be made,   would<\/p>\n
      not   be   subject   to   Articles   15   and           19(1)(g),   but   the   same<\/p>\n
      would be certainly subject to the provisions contained in Articles<\/p>\n
      14, 21, 26 and 30 of the Constitution.  If the special laws in the<\/p>\n
      matter of admission would thus be subject to Article 14, it shall<\/p>\n
      have to be seen  whether the provisions of Section 10 of the Act<\/p>\n
      of   2006   are   reasonable   and   proportionate.     The   special<\/p>\n
      provisions   would   be   subject   to   reasonableness.   What   is<\/p>\n
      reasonable   and   proportionate   has   been   the   subject   matter   of<\/p>\n
      debate and decision by the Supreme Court from 1956   to 2006.<\/p>\n
      In  State   of   Madras    v.    V.G.   Row,  (AIR<\/a>   1956   SC   196),   the<\/p>\n
      Supreme Court held as follows:\n<\/p>\n<\/p>\n
                          “The   test   of   reasonableness,   wherever<\/p>\n
                   prescribed,   should   be   applied   to   each<\/p>\n
                   individual   statute   impugned,   and   no   abstract<\/p>\n
                   standard, or general pattern of reasonableness<\/p>\n
                   can   be   laid   down   as   applicable   to   all   cases.<\/p>\n
                   The   nature   of   the   right   alleged   to   have   been<\/p>\n
                   infringed,   the   underlying   purpose   of   the<\/p>\n
W.P.(C) No.17873\/2006 etc.              – 281 –<\/span><\/p>\n
                restrictions   imposed,   the   extent   and   urgency<\/p>\n
                of the evil sought to be remedied thereby, the<\/p>\n
                disproportion  of  the imposition,  the  prevailing<\/p>\n
                conditions at the time, should all enter into the<\/p>\n
                judicial   verdict.       In     evaluating   such   elusive<\/p>\n
                factors   and   forming   their   own   conception   of<\/p>\n
                what is reasonable, in all the circumstances of<\/p>\n
                a   given   case,   it   is   inevitable   that   the   social<\/p>\n
                philosophy   and   the   scale   of   values   of   the<\/p>\n
                judges participating in the decision should play<\/p>\n
                an   important   part,   and   limit   to   their<\/p>\n
                interference   with   legislative   judgment   in   such<\/p>\n
                cases   can   only   be   dictated   by   their   sense   of<\/p>\n
                responsibility   and   self-restraint   and   the<\/p>\n
                sobering   reflection   that   the   Constitution   is<\/p>\n
                meant   not   only   for   people   of   their   way   of<\/p>\n
                thinking   but   for   all,   and   that   the   majority   of<\/p>\n
                the elected representatives of the people have,<\/p>\n
                in   authorizing   the   imposition   of   the<\/p>\n
                restrictions,   considered   them   to   be<\/p>\n
                reasonable.”.\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
      In Teri Oat Estates (P) Ltd.,   v.   U.T. Chandigarh,<\/a> (2004) 2<\/p>\n
      SCC 130,  it was held thus:\n<\/p>\n
\nW.P.(C) No.17873\/2006 etc.               – 282 –<\/span><\/p>\n
                               “By proportionality, it is meant that<\/p>\n
                 the question whether while regulating exercise<\/p>\n
                 of fundamental rights, the appropriate or least<\/p>\n
                 restrictive   choice  of   measures  has  been  made<\/p>\n
                 by the legislature or the administrator so as to<\/p>\n
                 achieve   the   object   of   the   legislation   or   the<\/p>\n
                 purpose   of   the   administrative   order,   as   the<\/p>\n
                 case  may   be.      Under  the   principle,   the  court<\/p>\n
                 will see that legislature and the administrative<\/p>\n
                 authority   maintain     a   proper  balance  between<\/p>\n
                 the adverse effects which the legislation or the<\/p>\n
                 administrative   order   may   have   on   the   rights,<\/p>\n
                 liberties   or   interests   of   persons   keeping   in<\/p>\n
                 mind the purpose which they were intended to<\/p>\n
                 serve”.\n<\/p><\/blockquote>\n
<\/blockquote>\n
      It was further held that,<\/p>\n
                        “Ever   since   1952,   the   principle   of<\/p>\n
                 proportionality   has   been   applied   vigorously   to<\/p>\n
                 legislative   and   administrative   action   in   India.<\/p>\n
                 While   dealing   with   the   validity   of   legislation<\/p>\n
                 infringing fundamental freedoms enumerated in<\/p>\n
                 Article   19(1)   of   the   Constitution   of   India,   this<\/p>\n
                 Court   has   occasion   to   consider   whether   the<\/p>\n
                 restrictions   imposed   by   legislation   were<\/p>\n
                 disproportionate  to   the  situation   and  were  not<\/p>\n
                 the   least   restrictive   of   the   choices.     In   cases<\/p>\n
                 where   such   legislation   is   made   and   the<\/p>\n
                 restrictions   are   reasonable;   yet,   if   the   statute<\/p>\n
                 concerned   permitted   administrative   authorities<\/p>\n
W.P.(C) No.17873\/2006 etc.                 – 283 –<\/span><\/p>\n
                   to  exercise  power  or  discretion while imposing<\/p>\n
                   restrictions   in   individual   situations,   question<\/p>\n
                   frequently   arises   whether   a   wrong   choice   is<\/p>\n
                   made   by   the   administrator   for   imposing   the<\/p>\n
                   restriction or whether the administrator has not<\/p>\n
                   properly   balanced   the   fundamental   right   and<\/p>\n
                   the need  for the restriction or whether he has<\/p>\n
                   imposed   the   least   of   the   restrictions   or   the<\/p>\n
                   reasonable quantum of restrictions etc.  In such<\/p>\n
                   cases, the administrative action in our country<\/p>\n
                   has   to   be   tested   on   the   principle   of<\/p>\n
                   proportionality, just as it is done in the case of<\/p>\n
                   main legislation.  This, in fact, is being done by<\/p>\n
                   the   courts.     Administrative   action   in   India<\/p>\n
                   affecting   the   fundamental   freedom   has   always<\/p>\n
                   been tested on the anvil  of  the proportionality<\/p>\n
                   in   the   last   50   years   even   though   it   has   not<\/p>\n
                   been expressly stated  that the principle that is<\/p>\n
                   applied is the proportionality principle.”.\n<\/p>\n
\n      As   recently   as   on   19th  October,   2006   and   during   the   course   of<\/p>\n
      arguments in this case, the Constitution Bench in  N.Nagraj    v.<\/p>\n
      Union of India,  (2006) 8 SCC 212 held that,<\/p>\n
                            “The   point   which   is   important   to   be<\/p>\n
                   noted   is   that   principles   of   federalism,<\/p>\n
                   secularism, reasonableness  and  socialism  etc.,<\/p>\n
                   are beyond the words of a particular statute”.\n<\/p>\n
      It was further held that,<\/p>\n
                                 “Therefore,   axioms   like   secularism,<\/p>\n
                   democracy,  reasonableness, social justice etc.,<\/p>\n
W.P.(C) No.17873\/2006 etc.                 – 284 –<\/span><\/p>\n
                   are   overarching   principles   which   provide   a<\/p>\n
                   linking factor for principle of fundamental rights<\/p>\n
                   like   Articles   14,   19   and   21.     These   principles<\/p>\n
                   are beyond the amending power of Parliament.\n<\/p>\n
                   They pervade all  enacted  laws  and they stand<\/p>\n
                   at   the   pinnacle   of   the   hierarchy   of<\/p>\n
                   constitutional values.”.\n<\/p>\n
      The   Supreme   Court   in  N.Nagraj’s  case   touched   on   variety   of<\/p>\n
      factors, some of which are applicable to the facts of the present<\/p>\n
      case.  Before we may cull out the principles laid down in Nagraj’s<\/p>\n
      case, it will be appropriate to find out even though in brevity the<\/p>\n
      facts   of   the   said   case   and   the   propositions   of   law   that   were<\/p>\n
      mooted and commented upon.\n<\/p>\n<\/p>\n
                   83.   A writ under Article 32 of the Constitution came<\/p>\n
      to   be   filed   before   the   Supreme   Court     seeking   a   writ   in   the<\/p>\n
      nature of certiorari to quash the Constitution (85th  Amendment)<\/p>\n
      Act, 2001 inserting Article 16(4A) retrospectively from 17.6.1995<\/p>\n
      providing   for   reservation   in   promotion   with   consequential<\/p>\n
      seniority   as   being   unconstitutional   and   violative   of   the   basic<\/p>\n
      structure.   One  of  the arguments raised  in challenging the said<\/p>\n
W.P.(C) No.17873\/2006 etc.                 – 285 –<\/span><\/p>\n
      amendment   was   that   the   same   would   seek   to   alter   the     the<\/p>\n
      fundamental   right   of   equality   which   is   a   part   of   the   basic<\/p>\n
      structure of the Constitution.   It was urged that equality in the<\/p>\n
      context   of   Article  16(1)   connotes   ‘accelerated  promotion’  which<\/p>\n
      was     not   to   include   consequential   seniority,   and   thereby<\/p>\n
      attaching of consequential seniority to the accelerated promotion<\/p>\n
      would violate the equality in Article 14   read with Article 16(1).<\/p>\n
      It   was   also   urged   that   the   same   would   impair   efficiency.     The<\/p>\n
      challenge   was   also   to   Constitution   (77th  Amendment)   Act   of<\/p>\n
      1995.   It was urged that if accelerated seniority is given to the<\/p>\n
      roster-point  promotees,   the   consequences   would  be   disastrous.<\/p>\n
      The   consequences   of   the   impugned   85th  Amendment   which<\/p>\n
      provides   for   reservation   in   promotion   with   consequential<\/p>\n
      seniority,   would   result   in   reverse   discrimination   in   the<\/p>\n
      percentage of representation of the reserved category officers  in<\/p>\n
      the higher cadre.  .\n<\/p>\n<\/p>\n
                   84.     While   considering  the  contentions   as   mentioned<\/p>\n
      above   on   the   basis   of   Articles   16(1),   16(4)   and   335   of   the<\/p>\n
      Constitution   of   India,   in   the   context   of   challenge   to   the   85th<\/p>\n
W.P.(C) No.17873\/2006 etc.                   – 286 –<\/span><\/p>\n
      amendment   of   the   Constitution   and   in   view   of   the   provisions<\/p>\n
      contained in Article 14, it was observed that, enabling provisions<\/p>\n
      are permissive in nature.  These are enacted to balance equality<\/p>\n
      with positive discrimination.   The constitutional law is the law of<\/p>\n
      evolving concepts.  Some of them are generic, others have to be<\/p>\n
      identified   and   valued.     The   enabling   provisions   deal   with   the<\/p>\n
      concept, which has to be identified and valued as in the case of<\/p>\n
      access   vis-a-vis   efficiency,   which   depends   on   the   fact-situation<\/p>\n
      only and not abstract principle of equality in Article 14 as spelt<\/p>\n
      out   in   detail   in   Articles   15   and   16.     Equality   before   the     law,<\/p>\n
      guaranteed by the first part of Article 14, is a negative concept<\/p>\n
      while   the   second   part   is   a   positive   concept   which  is   enough   to<\/p>\n
      validate equalizing measures depending upon the fact-situation.<\/p>\n
      While dealing with the test to judge the validity of the impugned<\/p>\n
      State Acts, it was observed as follows:\n<\/p>\n<\/p>\n
                                  “As stated above, the boundaries of<\/p>\n
                    the width of the power, namely the ceiling limit<\/p>\n
                    of   50%   (the   numerical   benchmark),   the<\/p>\n
                    principle   of   creamy   layer,   the   compelling<\/p>\n
                    reasons, namely, backwardness, inadequacy of<\/p>\n
W.P.(C) No.17873\/2006 etc.             – 287 –<\/span><\/p>\n
                representation   and   the   overall   administrative<\/p>\n
                efficiency are not obliterated by the impugned<\/p>\n
                amendments”.\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
      The other pertinent observations read as follows:<\/p>\n
                             “Therefore, in our view, equality as a<\/p>\n
                concept   is   retained   even   under   Article   16(4A)<\/p>\n
                which is carved out of Article 16(4).<\/p>\n<\/blockquote>\n
                                    xxx   xxx   xxx<\/p>\n
                The test for judging the width of the power and<\/p>\n
                the test for adjudicating the exercise of power<\/p>\n
                by the  concerned State are two different tests<\/p>\n
                which      warrant          two         different         judicial<\/p>\n
                approaches.     In   the   present   case,   as   stated<\/p>\n
                above, we are required to test the width of the<\/p>\n
                power   under   the   impugned   amendments.<\/p>\n
                Therefore,   we   have   to   apply   “the   width   test”.<\/p>\n
                In applying the  “the width test” we have to see<\/p>\n
                whether   the   impugned   amendments   obliterate<\/p>\n
                the   constitutional   limitations   mentioned   in<\/p>\n
                Article   16(4),   namely,   backwardness   and<\/p>\n
                inadequacy of representation.  As stated above,<\/p>\n
                these   limitations   are   not   obliterated   by   the<\/p>\n
                impugned   amendments.                      However,   the<\/p>\n
                question   still   remains   whether   the   concerned<\/p>\n
W.P.(C) No.17873\/2006 etc.             – 288 –<\/span><\/p>\n
               States   has   identified   and   valued   the<\/p>\n
               circumstances justifying it to make reservation.<\/p>\n
               This   question   has   to   be   decided   case-wise.<\/p>\n
               There   are   numerous   petitions   pending   in   this<\/p>\n
               Court   in   which   reservations   made   under  State<\/p>\n
               enactments have been challenged as excessive.<\/p>\n
               The extent of reservation has to be decided on<\/p>\n
               facts   of   each   case.     The   judgment   in   Indra<\/p>\n
               Sawhney   does   not   deal   with   constitutional<\/p>\n
               amendments.  In our present judgment, we are<\/p>\n
               upholding   the   validity   of   the   constitutional<\/p>\n
               amendments   subject   to   the   limitations.<\/p>\n
               Therefore, in each case, the Court has got to be<\/p>\n
               satisfied   that   the   State   has   exercised   its<\/p>\n
               opinion   in   making   reservations   in   promotions<\/p>\n
               for SCs and  STs   and for which the  concerned<\/p>\n
               State   will   have   to   place   before   the   Court   the<\/p>\n
               requisite   quantifiable   data   in   each   case   and<\/p>\n
               satisfy the Court that such reservations became<\/p>\n
               necessary   on   account   of   inadequacy   of<\/p>\n
               representation of SCs\/STs   in a particular class<\/p>\n
               or   classes   of   posts   without   affecting   general<\/p>\n
               efficiency of service as mandated under Article<\/p>\n
               335 of the Constitution.\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
                            xxx      xxx      xxx<\/p>\n
W.P.(C) No.17873\/2006 etc.                    – 289 –<\/span><\/p>\n
                Reservation is not in issue.   What is in issue is<\/p>\n
                the   extent   of   reservation.     If   the   extent   of<\/p>\n
                reservation   is   excessive,   then   it   makes   an<\/p>\n
                inroad   into   the   principles   of   equality   in   Article<\/p>\n
                16(1).   Extent of reservation, as stated above,<\/p>\n
                will   depend   on   the   facts   of   each   case.<\/p>\n<\/blockquote>\n
                Backwardness                   and                inadequacy             of<\/p>\n
                representation   are   compelling   reasons   for   the<\/p>\n
                State Governments to provide representation in<\/p>\n
                public   employment.       Therefore,   if   in   a   given<\/p>\n
                case,   the   court   finds   excessive   reservation<\/p>\n
                under   the   State   enactment,   then   such   an<\/p>\n
                enactment   would   be   liable   to   be   struck   down<\/p>\n
                since   it   would   amount   to   derogation   of   the<\/p>\n
                above constitutional requirements”.<\/p>\n<\/blockquote>\n
      While concluding the judgment, it was observed thus:<\/p>\n
                              “The   impugned   constitutional<\/p>\n
                amendments   by   which   Articles   16(4A)   and<\/p>\n
                16(4B) have been inserted flow from Article<\/p>\n
                16(4).     They   do   not   alter   the   structure   of<\/p>\n
                Article   16(4).     They   retain   the   controlling<\/p>\n
                factors   or   the   compelling   reasons,   namely,<\/p>\n
                backwardness                  and               inadequacy         of<\/p>\n
W.P.(C) No.17873\/2006 etc.              – 290 –<\/span><\/p>\n
               representation   which  enables   the   States   to<\/p>\n
               provide for reservation keeping in mind the<\/p>\n
               overall efficiency of the State administration<\/p>\n
               under   Article   335.           These   impugned<\/p>\n
               amendments   are   confined   only   to   SCs   and<\/p>\n
               STs.     They   do   not   obliterate   any   of   the<\/p>\n
               constitutional requirements, namely, ceiling<\/p>\n
               limit   of   50%   (quantitative   limitation),   the<\/p>\n
               concept   of   creamy   layer   (qualitative<\/p>\n
               exclusion),   the   sub-classification   between<\/p>\n
               OBC on one hand and SCs and STs on the<\/p>\n
               other   hand   as   held   in   Indra   Sawhney,   the<\/p>\n
               concept   of   post-based   Roster   with   in-built<\/p>\n
               concept   of   replacement   as   held   in<\/p>\n
               R.K.Sabharwal.\n<\/p><\/blockquote>\n
                     We   reiterate   that   the   ceiling   limit   of<\/p>\n
               50%,   the   concept   of   creamy   layer   and   the<\/p>\n
               compelling reasons, namely, backwardness,<\/p>\n
               inadequacy   of   representation   and   overall<\/p>\n
               administrative           efficiency         are         all<\/p>\n
               constitutional   requirements   without   which<\/p>\n
               the   structure   of   equality   of   opportunity   in<\/p>\n
               Article 16 would collapse.   However, in this<\/p>\n
               case,   as     stated,   the   main   issue   concerns<\/p>\n
               the “extent of reservation”.   In this regard,<\/p>\n
W.P.(C) No.17873\/2006 etc.                 – 291 –<\/span><\/p>\n
                   the   concerned   State   will   have   to   show   in<\/p>\n
                   each   case   the   existence   of   the   compelling<\/p>\n
                   reasons,  namely  backwardness,  inadequacy<\/p>\n
                   of representation and overall administrative<\/p>\n
                   efficiency   before   making   provision   for<\/p>\n
                   reservation.”.<\/p><\/blockquote>\n
                   85.     Mr.Rajeev   Dhavan,   learned   counsel   for   the<\/p>\n
      petitioners contends  that Article 15(5) permits special provisions<\/p>\n
      but   the   same   have   to   be   reasonable   and   proportionate.     The<\/p>\n
      judgment   of   the   Supreme   Court   in  Nagraj’s  case   would   apply<\/p>\n
      irrespective   of   the   fact   that   whereas   reservation   has   been<\/p>\n
      provided for Scheduled Castes\/Scheduled Tribes and socially and<\/p>\n
      educationally   backward   classes   in   the   matter   of   education,<\/p>\n
      whereas   the   challenge   in  Nagraj’s  case   was   to   Article   16(4A)<\/p>\n
      inserted by 85th  amendment. The provisions   for reservation, be<\/p>\n
      it   in   admission   to   educational   institutions   or   in   service   matters<\/p>\n
      shall   have   to           be   reasonable   and   proportionate.<\/p>\n
      Mr.Vaidyanathan, learned Senior Counsel representing the State<\/p>\n
      has   not   endeavoured   to   make   any   distinction   between   Articles<\/p>\n
      dealing   with   reservation   in   service   or   accelerated   promotion   in<\/p>\n
W.P.(C) No.17873\/2006 etc.                 – 292 –<\/span><\/p>\n
      service   or   reservation   in   admission   to   educational   institutions<\/p>\n
      when tested on reasonableness and proportionality.<\/p>\n
                   86.   In  Indra Sawhney v. Union of India, (Mandal<\/p>\n
      Case),<\/a>   1992   Supp   (3)   SCC   217,   while   dealing   with   the<\/p>\n
      identification   of   other   backward   classes   it   was   observed   that<\/p>\n
      there should be a permanent body, in the nature of Commission<\/p>\n
      Tribunal, to which complaints of wrong inclusion or non-inclusion<\/p>\n
      of   groups,   classes   and   sections   in   the   lists   of   Other   Backward<\/p>\n
      Classes can be made.  It was further observed that,<\/p>\n
                                 “It is equally desirable that each State<\/p>\n
                   constitutes   such a body which step would go a<\/p>\n
                   long way in redressing genuine grievances.  Such<\/p>\n
                   a body can be created under clause (4) of Article<\/p>\n
                   16 itself – or under Article 16(4) read with Article<\/p>\n
                   340 – as a concomitant of the power to identify<\/p>\n
                   and specify backward class of citizens, in whose<\/p>\n
                   favour   reservations   are   to   be   provided.     We<\/p>\n
                   direct   that   such   a   body   be   constituted   both   at<\/p>\n
                   Central level and at the level of the States within<\/p>\n
                   four   months   from   today.     They   should   become<\/p>\n
                   immediately  operational and  be in  a  position to<\/p>\n
                   entertain and examine forthwith complaints and<\/p>\n
                   matters   of   the   nature   aforementioned,   if   any<\/p>\n
                   received.   It should be open to the Government<\/p>\n
                   of   India   and   the   respective   State   Governments<\/p>\n
                   to   devise  the   procedure  to   be  followed  by  such<\/p>\n
                   body.  The body or bodies so created can also be<\/p>\n
                   consulted   in   the   matter   of   periodic   revision   of<\/p>\n
                   lists   of   OBCs.     As   suggested   by   Chandrachud,<\/p>\n
W.P.(C) No.17873\/2006 etc.              – 293 –<\/span><\/p>\n
                  CJ.,   in   Vasanth   Kumar   (1985   Supp   SCC   714),<\/p>\n
                  there should be a periodic revision of these lists<\/p>\n
                  to   exclude   those   who   have   ceased   to   be<\/p>\n
                  backward or for inclusion of new classes, as the<\/p>\n
                  case may be.”.\n<\/p>\n
      In  Atyant   Pichhare   Barg   Chhatra   Sangh    v.  Jharkhand<\/p>\n
      State Vaishya Federation,<\/a> 2006 (7) SCALE 579, the challenge<\/p>\n
      was in amalgamating two classes, namely, Backward Classes and<\/p>\n
      Extremely   Backward   Classes     and   the   reduction   of   reservation<\/p>\n
      from 12% and 9% respectively to 14% only for the purpose of<\/p>\n
      admission in professional educational institutions.   The question<\/p>\n
      that   was   raised   pertained   to   reservation   in   professional<\/p>\n
      educational   institutions   for   extremely   backward   classes   in   the<\/p>\n
      State of Jharkhand.   The State of Jharkhand had provided 73%<\/p>\n
      reservation   for   appointments   in   Government   Services   adopting<\/p>\n
      the   Bihar   (Scheduled   castes,   Scheduled   Tribes   and   Backward<\/p>\n
      Classes)   Reservation   Act,   with   certain   modifications   vide<\/p>\n
      notification dated 3.10.2001.   While considering the question as<\/p>\n
      mentioned above, the Supreme Court observed as follows:<\/p>\n
                               “It   was   argued   by   the   learned<\/p>\n
                  counsel  appearing for  the  respondents  that   the<\/p>\n
                  Central   Government   is   following   the   policy   of<\/p>\n
W.P.(C) No.17873\/2006 etc.                 – 294 –<\/span><\/p>\n
                   clubbing   the   Extremely   Backward   Classes   with<\/p>\n
                   the   Backward   Classes.     In   our   opinion,   it   does<\/p>\n
                   not justify Jharkhand following the same policy.<\/p>\n
                   Jharkhand   Government   will   look   into   the   facts<\/p>\n
                   and   circumstances   that   are   peculiar   to   it   by<\/p>\n
                   appointing  an Expert  Commission or a  Body  as<\/p>\n
                   has   been   provided   for   in   the   Mandal<\/p>\n
                   Commission’s   case   which   can   inquire   into   the<\/p>\n
                   representations\/complaints                made          over<\/p>\n
                   under-inclusion   and   over-inclusion   and   make<\/p>\n
                   binding   recommendations.     As   rightly   pointed<\/p>\n
                   out by the learned senior counsel appearing for<\/p>\n
                   the   appellants,   the   Division   Bench   failed   to<\/p>\n
                   notice that the Government did not provide any<\/p>\n
                   material   on   record   which   have   justified<\/p>\n
                   amalgamation  of   the two  classes of   people  nor<\/p>\n
                   were any documents, relevant materials or any<\/p>\n
                   reports   as   produced   to   show   a   change   in<\/p>\n
                   circumstances   as   was   alleged   by   the<\/p>\n
                   Government.     Before   taking   the   decision   to<\/p>\n
                   amalgamate   two   classes,   the   relevant   factors<\/p>\n
                   were not taken into account.”.<\/p><\/blockquote>\n
                   87.  From the judicial precedents mentioned above, it<\/p>\n
      will be clear  that the non-obstante clause in Article 15(5) would<\/p>\n
      be   limited   to   that   Article   and   Article   19(1)(g)   whereas   Articles<\/p>\n
      14, 21, 26 and 30 have specifically been excluded.  The rights of<\/p>\n
      minorities have been specifically excluded.     Article 15(5) is for<\/p>\n
      the   benefit   of   Scheduled   Castes\/Scheduled   Tribes     and   socially<\/p>\n
      and   educationally   backward   classes   only   and   no   one   else,   and<\/p>\n
W.P.(C) No.17873\/2006 etc.                 – 295 –<\/span><\/p>\n
      that   the   Article   15(5)   is   a   special   provision     which   must   be<\/p>\n
      reasonable and proportionate.  The special provisions are always<\/p>\n
      subject to reasonableness.   In the context of the law laid down<\/p>\n
      by the Honourable Supreme Court  in  the  judicial precedents as<\/p>\n
      mentioned above, it can well be said   in the context of the Act<\/p>\n
      under challenge that it   provides for a grid of 100% to regulate<\/p>\n
      all   admissions   by   creating   eight   categories   leaving       the   pure<\/p>\n
      merit   candidates   with   clear     and   open   chance     to   an   extent   of<\/p>\n
      18% and not more.   The allocation of seats under Section 10(1)<\/p>\n
      (a)   and   (b)   relating   to   SC\/ST   and     socially   and   educationally<\/p>\n
      backward   classes   are   fixed   at   10%   and   25%   respectively,<\/p>\n
      without taking into consideration any data or determining factors<\/p>\n
      for determining the percentage of reservation. The creamy layer<\/p>\n
      has   not   been   excluded.     There   is   indeed   allocation   of   15%   of<\/p>\n
      seats in NRI category and 15% of  students  can  be  admitted in<\/p>\n
      the   privilege   seats   as   per   Section   10 (2)   and   10(3),   but<\/p>\n
      cumulatively   these   reservations\/allocation   would   cut   into   merit<\/p>\n
      quota.     We   have   already   referred   to   some     reservations   which<\/p>\n
      are   wholly   impermissible   under   Article   15(5).     The   cumulative<\/p>\n
W.P.(C) No.17873\/2006 etc.                  – 296 –<\/span><\/p>\n
      effect   of   the   factors   mentioned   would   make   Section   10   illegal<\/p>\n
      and unconstitutional; the same would be neither reasonable nor<\/p>\n
      proportionate.\n<\/p>\n<\/p>\n
                    88.  Before we may part with the challenge to Section<\/p>\n
      10, we may mention the  defence  sought to be projected by the<\/p>\n
      State,  even  though in view of   the  law  laid down  as  above,  the<\/p>\n
      same   may   not   be   of   much   meaning   and   consequence.     It   is<\/p>\n
      urged   by   Mr.Vaidyanathan   that   in   so   far   as   non-minority<\/p>\n
      institutions   are   concerned,   the   challenge   to   Sections   10(1)(a)<\/p>\n
      and   10(1)(b)   are   unsustainable   in   view   of   the   express   power<\/p>\n
      conferred   by   Article   15(5)   of   the   Constitution   which   to   that<\/p>\n
      extent   would   prevail   over   the   prior   declaration   of   law   made   in<\/p>\n
      Inamdar’s   case.     There   cannot   be   any   exception   to   the<\/p>\n
      contention   raised   by   Mr.Vaidyanathan,   but   the   challenge   is   to<\/p>\n
      Section  10   as   a  whole.       In  fact,   the   case  of   the  petitioners  is<\/p>\n
      that if other provisions of Section 10 may not sustain, the whole<\/p>\n
      of Section 10 shall have to be declared as invalid.   We will deal<\/p>\n
      with   that   part   hereinafter.     Suffice   it   to   say   that   challenge   to<\/p>\n
      Section 10 as a whole is primarily on the ground that it is neither<\/p>\n
W.P.(C) No.17873\/2006 etc.                – 297 –<\/span><\/p>\n
      reasonable   nor   proportionate,   and   on   this   contention   raised   by<\/p>\n
      the   learned   counsel   for   the   petitioners,   there   is   hardly   any<\/p>\n
      defence.   It is then  urged by Mr.Vaidyanathan that provisions in<\/p>\n
      Section 10(2)   in respect of  reservation for NRI  seats is in line<\/p>\n
      with the decision of the Supreme Court in Inamdar’s case.   That<\/p>\n
      may be so, and may be the institutions would like to have this<\/p>\n
      quota   to   an   extent   the   students   may   be   available   in   that<\/p>\n
      category, but then again as mentioned above, the challenge is to<\/p>\n
      Section 10 in its entirety.  It is then urged on behalf of the State<\/p>\n
      that Section 10(2) read with Section 2(q) is an option given to<\/p>\n
      both minority and non-minority institutions for filling up  15% of<\/p>\n
      seats under the category of privilege seats.  It is purely optional<\/p>\n
      and there is no compulsion.   If the institutions do not desire to<\/p>\n
      fill   up   these   categories   with   their   choice   of   candidates   as<\/p>\n
      prescribed, the said seats will be filled up from the general merit<\/p>\n
      seats.     This contention is countered by the learned counsel for<\/p>\n
      the   petitioners   by   stating   that   even   though   such   a   quota   is<\/p>\n
      optional, but if opted it will cut upon   merit seats, which will be<\/p>\n
      reduced   to   18   out   of   the   grid   of   100.     Mr.Vaidyanathan   also<\/p>\n
W.P.(C) No.17873\/2006 etc.                 – 298 –<\/span><\/p>\n
      contends   that   assumption   that   only   18%   seats   are   to   be   filled<\/p>\n
      from   general   merit   seats   relying   on   Section   10(4)   is   incorrect<\/p>\n
      and that is a mandatory minimum.   The mandatory reservation<\/p>\n
      is only in respect of 10% for Scheduled Castes\/Scheduled Tribes,<\/p>\n
      25% for other socially and economically weaker sections and 2%<\/p>\n
      for students who have made outstanding contribution in the field<\/p>\n
      of culture and sports.   It is open to the institutions to fill up the<\/p>\n
      entire balance of 63% of the seats from the general merit list of<\/p>\n
      Common Entrance Test.       The question as mentioned above is<\/p>\n
      not,     if   the   management   may   not   opt   for   such   a   quota.     The<\/p>\n
      question is if they opt for such a quota, which they can and may<\/p>\n
      in all probability do, then merit seats would be only 18% and not<\/p>\n
      more.   The options contained in Sections 10(1)(c) and 10(1)(d)<\/p>\n
      have already  been dealt  by us.  It is also the contention of the<\/p>\n
      State that in so far as  unaided minority professional colleges or<\/p>\n
      institutions are concerned, they can fill the entirety of seats (i.e.<\/p>\n
      100%   of   seats)   from   out   of   the   students   belonging   to   the<\/p>\n
      minority   community   to   which   the   colleges\/institutions   belong.<\/p>\n
      That is,  however, not  the question  that has been posed by the<\/p>\n
W.P.(C) No.17873\/2006 etc.                   – 299 –<\/span><\/p>\n
      petitioners.   The question we repeat is what shall happen when<\/p>\n
      options are exercised and to that question there is no plausible<\/p>\n
      answer coming from the State.\n<\/p>\n<\/p>\n
                                      SEVERABILITY<\/p>\n
                    89.   The   last   limb   of   argument   pertains   to<\/p>\n
      non-severability  of  valid  and  invalid  provisions of the Act  19  of<\/p>\n
      2006.   It is urged on behalf of the petitioners that the provisions<\/p>\n
      of the Act  are so intermixed and connected with each other that<\/p>\n
      when   invalid   clauses   may   be   struck   down,   the   remaining<\/p>\n
      provision shall not be severable and therefore, shall also have to<\/p>\n
      be set aside.   For the proposition that if the invalid parts of the<\/p>\n
      statute   are   not   severable,   the   whole   of   the   Act   is   to   be   struck<\/p>\n
      down,   reliance     is   placed   upon     the   decision   of   the   Supreme<\/p>\n
      Court in  R.M.D.Chamarbaugwalla   v.   Union of India,      AIR<\/a><\/p>\n
      1957 SC 628.  The doctrine of severability is not in dispute, but<\/p>\n
      it is urged on behalf of the State that even if the court may find<\/p>\n
      some   provisions   to   be   offending   the   provisions   of   the<\/p>\n
      Constitution   and   therefore   not   sustainable,   the   rest   of   the<\/p>\n
      provisions   would   be   severable   and   there   is   no   need   to   strike<\/p>\n
W.P.(C) No.17873\/2006 etc.                – 300 –<\/span><\/p>\n
      down the entire Act.  We accept this contention.  The provisions<\/p>\n
      of  the Act can be divided into two main categories.     Whereas,<\/p>\n
      one category would be with  regard to  procedure for admission,<\/p>\n
      fixation   of   fee   structure,     determining   factors   of   minority   and<\/p>\n
      quota; the other an entirely separable part  would be with regard<\/p>\n
      to   constitution   of   the   Admission   Supervisory   Committee   as   per<\/p>\n
      Section 4, and Fee Regulatory Committee as per Section 6 of the<\/p>\n
      Act.       The   Admission   Supervisory   Committee   would   consist   of<\/p>\n
      members   as   mentioned   above,   which   may   adopt   its   own<\/p>\n
      procedure   for   conduct   of   its   business.       The   Committee   can<\/p>\n
      supervise   and   guide   the   process   of   admission   of   students   to<\/p>\n
      unaided   professional   colleges   or   institutions   with   a   view   to<\/p>\n
      ensure  that   the   entire   process   is   fair,   transparent,   merit   based<\/p>\n
      and   non-exploitative.     It   would   have   the   power   to   hear<\/p>\n
      complaints     with   regard   to   admission   in   contravention   of   the<\/p>\n
      provisions of the Act, it would have the power to impose fine, or<\/p>\n
      even   recommend   for   withdrawal   of   recognition\/affiliation.     The<\/p>\n
      Fee   Regulatory   Committee   shall   consist   of   members   as<\/p>\n
      mentioned above.   The Committee shall adopt its own procedure<\/p>\n
W.P.(C) No.17873\/2006 etc.                 – 301 –<\/span><\/p>\n
      for the conduct of its business.   There cannot be any exception<\/p>\n
      to the constitution of these Committees and the power given to<\/p>\n
      them.   Such Committees have indeed been envisaged and even<\/p>\n
      ordered temporarily till such time law is enacted, even as per the<\/p>\n
      decisions   relied   on   by   the   learned   counsel   for   the   parties   as<\/p>\n
      mentioned   above.       These   provisions   are   wholly   unconnected<\/p>\n
      with the other part of the provisions as referred to above.  There<\/p>\n
      is no occasion at all thus, to set aside the whole Act as urged by<\/p>\n
      the   counsel   representing   the   petitioners.     Sections   4   and   6<\/p>\n
      constituting two Committees   are valid, constitutional and have<\/p>\n
      the sanction of law as determined by the Supreme Court.  These<\/p>\n
      Committees,   indeed,   need   to   be   constituted   to   supervise   the<\/p>\n
      admission procedure which has to satisfy the triple test of   fair,<\/p>\n
      transparent   and   non-exploitative     procedure   for   admission   as<\/p>\n
      also   fix   the   fee   which   cannot   have   the   element   of   profiteering<\/p>\n
      and in fact has to be determined   considering various factors as<\/p>\n
      mentioned above, keeping in view the future development of the<\/p>\n
      institution.     The   Committees   would   ensure   transparency   in<\/p>\n
      admission and fixation of fee.   These provisions are wholesome<\/p>\n
W.P.(C) No.17873\/2006 etc.                – 302 –<\/span><\/p>\n
      and the need of the hour.\n<\/p>\n<\/p>\n
                   90.   In so far as, however,  Section 10 is concerned,<\/p>\n
      the same has valid and invalid provisions and the valid provisions<\/p>\n
      are such which cannot be separated from the invalid provisions,<\/p>\n
      and   therefore,   the   whole   of   Section   10   has   to   be   set   aside.<\/p>\n
      The provisions of Section 10(1)(a) and 10(1)(b) are  permissible<\/p>\n
      and have the sanction of Article 15(5) of the Constitution.     We<\/p>\n
      may only mention here that vires of  Article 15(5) are not under<\/p>\n
      challenge   in   these   petitions.     There   are   certain   petitions   which<\/p>\n
      we   have   separated   in   which   Article   15(5)   is   also   challenged.<\/p>\n
      Subject to such challenge, the provisions of Section 10(1)(a) and<\/p>\n
      10(1)(b)   are   valid,   but   the   same   are   so   intermixed   with   other<\/p>\n
      provisions   that   the   same   have   to   be    set   aside   even   though<\/p>\n
      reluctantly.     We   have   already   referred   to   impermissible   quotas<\/p>\n
      which   cannot   be   protected   under   Article   15(5)   of   the<\/p>\n
      Constitution.     The   said   impermissible   quotas   are   3%   of   seats<\/p>\n
      meant for physically challenged persons, 12% of seats for other<\/p>\n
      sections of  Society  not  covered  under items (a), (b)  and (c)  of<\/p>\n
      Section   10(1),   2%   of   students   who   might   have   made<\/p>\n
W.P.(C) No.17873\/2006 etc.                  – 303 –<\/span><\/p>\n
      outstanding   contribution   in   the   field   of   culture   and   sports.     If<\/p>\n
      impermissible   categories   of   reservation   are   set   set   aside,   how<\/p>\n
      shall   these   seats   be   worked   out.     There   may   be   provision   for<\/p>\n
      interchangeability in the case of non-availability of students, but<\/p>\n
      not in the event of provisions providing reservation to specified<\/p>\n
      categories becoming invalid and no admission being made from<\/p>\n
      the said categories.   Further, if    merit seats are only 18 out of<\/p>\n
      100, to  make  it  more  than  50  which category  shall   have  to  be<\/p>\n
      deleted would not be known. It will not be possible for the court<\/p>\n
      to reduce the option of the managements under the NRI seats or<\/p>\n
      privilege   seats   so   as   to   enhance   merit   seats   to   50%   or   more.<\/p>\n
      The   institutions   have   been   given   the   option   and   as   mentioned<\/p>\n
      above, they can exercise it.   The court cannot in any case order<\/p>\n
      reduction   of   any  such   seats.     Still   further,   there  are   provisions<\/p>\n
      for surrender and rotation of seats.  The court can also not order<\/p>\n
      the institution to surrender the seats as that is their option.   The<\/p>\n
      increase of merit seats to 50% or more by surrender cannot be<\/p>\n
      enforced by court.  If some of the quotas may be impermissible,<\/p>\n
      how   shall   rotation   take   place   is   again   difficult   to   guess.     That<\/p>\n
W.P.(C) No.17873\/2006 etc.                    – 304 –<\/span><\/p>\n
      apart,  the  scheme  of  the  Section  is  such  that  whereas freeship<\/p>\n
      are envisaged particularly with regard to Section 10(1)(a) and 10<\/p>\n
      (1)(b), the provision for NRI and Privilege seats are envisaged in<\/p>\n
      Sections 10(2) and 10(3).       These provisions are related to the<\/p>\n
      structure of fee, as mentioned above, the fees paid by the NRI<\/p>\n
      and   privilege   seats   would   appear   to   balance   the   budget   of   the<\/p>\n
      institutions.     If   NRI   or   privilege   seats   are   reduced   or   set   at<\/p>\n
      naught, it will not be possible for the institutions to manage their<\/p>\n
      budget,   they   shall   not   at   all   be   able   to   run   the   affairs   of   the<\/p>\n
      institution and might have to be closed down.  At this stage, it is<\/p>\n
      necessary to refer to second part of Section 10(8) which enjoins<\/p>\n
      the  minority  community institutions  to  provide  freeship to  50%<\/p>\n
      of   seats   as   mentioned   in   the   first   part   of   Section   10(8).     The<\/p>\n
      institutions have thus to provide free or partly free seats not only<\/p>\n
      to the categories mentioned in Section 10(1), but also to 50% of<\/p>\n
      the 50% students of its   community.   It would take freeship or<\/p>\n
      partly freeship to almost 75% and in that situation, if the profit<\/p>\n
      seats like NRI and\/or Privilege seats  are reduced, so as to raise<\/p>\n
      the merit seats, it will be a complete shut down or closure of the<\/p>\n
W.P.(C) No.17873\/2006 etc.                    – 305 –<\/span><\/p>\n
      institution.     The   provisions   of   Section   10   are   so  inextricably<\/p>\n
      interwoven   that they are not separable.   It is not a case of   ironing<\/p>\n
      out   the   creases.     If   perhaps,   the   court   could   protect   the   provisions<\/p>\n
      contained   in   sub-sections   1(a)   and   (b)  of   Section   10,   it   would   have<\/p>\n
      done  so,  but that  would amount to  rewriting  or  enacting  the  law  by<\/p>\n
      the Court, which is  not permissible.   The reservation for SC\/ST   and<\/p>\n
      other   backward   classes   is   permissible.     As   mentioned   above,   there<\/p>\n
      cannot be any exception to the same, subject to the validity of Article<\/p>\n
      15(5).     The   Government   would   be   well   within   its   rights   to   provide<\/p>\n
      reservation for classes as mentioned above and may do even now but<\/p>\n
      the same has to be done after taking into consideration the factors as<\/p>\n
      enumerated   above.     The   Government   may   even   now   take   steps   to<\/p>\n
      redraft the Section, provide for such reservation even by an Ordinance<\/p>\n
      or such other measures as may be permissible till such time Section<\/p>\n
      10 is suitably substituted keeping in view the parameters of providing<\/p>\n
      quotas as determined by the Supreme Court from time to time as also<\/p>\n
      keeping in view the upper limit of reservation.<\/p>\n
                    91.     Before   we   may   draw   our   conclusions   on<\/p>\n
      the basis  of    the    discussion   mentioned above,   we     would<\/p>\n
W.P.(C) No.17873\/2006 etc.                   – 306 –<\/span><\/p>\n
      like   to   mention   that   the   Government   appeared   to   be   in   an<\/p>\n
      extreme   hurry   in   bringing   about   the   Act   of   2006.     This<\/p>\n
      observation,   we   are   making,   on   the   basis   of   counter   affidavit<\/p>\n
      filed   by   the   State   itself,   wherein   it   is   stated   that   the   present<\/p>\n
      Government  of the State assumed office on 18.5.2006.   One of<\/p>\n
      the prime initiatives of the Government was to fulfil the promise<\/p>\n
      given to the people in regard to bringing in legislation to regulate<\/p>\n
      unaided   colleges.     Specific   promises   were   made   in   respect   of<\/p>\n
      regulating   unaided   educational   institutions.     Immediately   after<\/p>\n
      assuming office the Government took steps to bring in proposed<\/p>\n
      legislation.     The   Bill   was   introduced   on   22nd  June,   2006   in   the<\/p>\n
      very first session of the  Legislative Assembly.  It was examined<\/p>\n
      by   the   Subject   Committee   and   unanimously   passed   by   the<\/p>\n
      Assembly  in the  early  hours  of  30th  June,  2006.   The Governor<\/p>\n
      gave assent to the Bill on 2nd July, 2006.  It appears to this Court<\/p>\n
      that the Government hurried  in  passing  the Act  without  much<\/p>\n
      deliberations   simply   with   a   view   to  fulfil  its   electoral   promises.<\/p>\n
      We   are   so   observing   as   almost   the   entire   Preamble   of   the   Act<\/p>\n
      makes   statements   of   law   supposedly   culled   out   from   three<\/p>\n
W.P.(C) No.17873\/2006 etc.                  – 307 –<\/span><\/p>\n
      leading   judgments   referred   to   above.     It   appears   that   in     its<\/p>\n
      anxiety   to   fulfil   the   promise   to   the   electorate   only   stray<\/p>\n
      sentences   were   picked   up   from   the   three   judicial   precedents<\/p>\n
      without   taking   into   consideration   the   reference  and   context     in<\/p>\n
      which they were made.   It may be recalled that   a Constitution<\/p>\n
      Bench   of   seven   Judges     was   constituted   in   Inamdar’s   case,<\/p>\n
      primarily with a view to clarify the law laid down in T.M.A.Pai’s<\/p>\n
      case   and   Islamic   Academy’s   case.     The   educational   institutions<\/p>\n
      and the Government were interpreting these  judgments in their<\/p>\n
      favour.     They   were   so   interpreting   these   judgments   in   their<\/p>\n
      favour as some observations were made in favour of both.  It is<\/p>\n
      interesting to note that even at this stage, when the Constitution<\/p>\n
      Bench   has   rendered   the   judgment   in   Inamdar’s   case,   both<\/p>\n
      parties   are   relying   upon   the   same   judgment.       It   is   thus   clear<\/p>\n
      that  there  are  some  sentences  which may go in  favour of the<\/p>\n
      petitioners and others  in favour of the State.  The State appears<\/p>\n
      to have picked up only such sentences or observations which go<\/p>\n
      in their favour, be it T.M.A.Pai’s case, Islamic Academy’s case or<\/p>\n
      Inamdar’s   case.     However,   while   doing   so,   the   State   ought   to<\/p>\n
W.P.(C) No.17873\/2006 etc.                   – 308 –<\/span><\/p>\n
      have seen the reference and context in which such observations<\/p>\n
      were   made.     It   is   for   that   reason   that   at   the   very   outset   the<\/p>\n
      Constitution   Bench     in   Inamdar’s   case   mentioned   that      “it   is<\/p>\n
      dangerous   to   take   one   or   two   observations   out   of   a   long<\/p>\n
      judgment   and   to   treat   the   same   as   if   they   give   the   ratio<\/p>\n
      decidendi of the said case”.   The statements of law made in the<\/p>\n
      Preamble around which the Act of 2006 has been hedged appear<\/p>\n
      to   be   by   making   a   vital   mistake   of   taking   one   or   two<\/p>\n
      observations out of the long judgment and treating the same to<\/p>\n
      be the ratio decidendi of the case.\n<\/p>\n<\/p>\n
                    92.     We   may   also   mention   that   Self   Financing<\/p>\n
      Educational Institutions which are imparting quality education or<\/p>\n
      which   may   by   regulations     impart   such   education   need   to   be<\/p>\n
      encouraged.   The State for variety of reasons and in particular,<\/p>\n
      paucity of resources and funds, is unable to cater for the need of<\/p>\n
      the   Society.   It   is   unable   to   provide   quality   education   to   all<\/p>\n
      commensurate to the need of the Society.  It is unable to provide<\/p>\n
      quantitative   and   qualitative   education   to   all.     The   students<\/p>\n
      clamouring  for   education   are   far   more   commensurate   to   the<\/p>\n
W.P.(C) No.17873\/2006 etc.                – 309 –<\/span><\/p>\n
      educational     institutions   established   by   the   Government.<\/p>\n
      Unnecessary   and   unproductive   regulations   which   may   virtually<\/p>\n
      amount   to   take   over   of   such   reputed   institutions   would   be<\/p>\n
      counter   productive.       The   day   to   day   monitoring   of   the<\/p>\n
      institutions   and   choking   them   financially   may   result   in   their<\/p>\n
      closure.  Such regulatory measures would do far more harm than<\/p>\n
      the good they might be intended to  do.    Would closure of such<\/p>\n
      institutions   which   are   sharing   the   responsibility   of   the<\/p>\n
      Government in imparting education in the Society not defeat the<\/p>\n
      very   requirement     of   education   in   the   country   is   the   question<\/p>\n
      which has to be seriously pondered over.   It is equally true that<\/p>\n
      such  strata   of   the   society  who  may  be   socially   or   economically<\/p>\n
      weak also deserves quality education.  A balance has thus to be<\/p>\n
      struck.      Far from striving to strike a balance, whereas it is the<\/p>\n
      endeavour   of   the   Government   to   virtually   take   over   these<\/p>\n
      institutions,   the   institutions   may   also   be   finding   all   ways   and<\/p>\n
      means   to   breathe   free,   thus   resulting   into   continuous   litigation<\/p>\n
      which  has  brought  no tangible  results.    A time  has  come  when<\/p>\n
      this   complex   problem   needs   to   be   resolved   amicably.     The<\/p>\n
W.P.(C) No.17873\/2006 etc.               – 310 –<\/span><\/p>\n
      Government   and   Managements   of   the   private   educational<\/p>\n
      institutions   need   to   work   in   tandem     both   aiming   to   take<\/p>\n
      education  to its pinnacle.  Whereas, it  should be the endeavour<\/p>\n
      of the Government to encourage Self Financing Institutions and<\/p>\n
      yet  control imparting of quality education   and non-exploitation<\/p>\n
      of   students,   the   institutions   must   also   endeavour   to<\/p>\n
      accommodate   as   many   students   as   may   be  possible,   who  may<\/p>\n
      not be as fortunate as their counter-parts coming from affluent<\/p>\n
      strata of the Society.  As long as this is  not sincerely felt by the<\/p>\n
      Government and the institutions, it appears to us that there will<\/p>\n
      be no end of litigation in this country.   The court can only hope<\/p>\n
      that   everyone   would   understand   its   responsibility   and   work   for<\/p>\n
      the   common   goal   to   uplift   the   standard   of   education   and   to<\/p>\n
      ensure quality education to all, rich and poor.<\/p>\n
                      93.   At the end, we place on record our appreciation<\/p>\n
      of     able   assistance   given   to   the     Court   by  Mr.Andyarujina,<\/p>\n
      Mr.Rajeev Dhavan, Mr.Vivek Tanka, Senior Advocates and other<\/p>\n
      counsel   appearing   for   the   petitioners   as   also   Mr.Vaidyanathan,<\/p>\n
      Senior   Advocate   and   Sri.C.P.Sudhakara   Prasad,   Advocate<\/p>\n
W.P.(C) No.17873\/2006 etc.                 – 311 –<\/span><\/p>\n
      General, Kerala.\n<\/p>\n<\/p>\n
                   94.   In view of the discussions made above, we hold<\/p>\n
      the provisions contained in Section 3, 7, 8(b) and (c), and 10 of<\/p>\n
      the Act of 2006  and Rules 10 and 11 of the Rules  to be invalid<\/p>\n
      and   ultra   vires     the   Constitution   and   thus   set   aside   the   same.<\/p>\n
      The   provisions   mentioned   above   are   opposed   to   Article   14   and<\/p>\n
      would   also   violate   the   fundamental   rights   of   the<\/p>\n
      petitioner-institutions   under   Articles   19(1)(g),   26(a)   and   30   of<\/p>\n
      the   Constitution   of   India.   The   Writ   Petitions   are   allowed  to   the<\/p>\n
      above extent. In view of the peculiar facts and circumstances of<\/p>\n
      the case, the costs are made easy.\n<\/p>\n<\/p>\n
                                                                      Sd\/-\n<\/p>\n
                                                                 V.K. BALI,<\/p>\n
                                                                 CHIEF JUSTICE.\n<\/p>\n
                                                                     Sd\/-\n<\/p>\n
                                                                P.R. RAMAN,<\/p>\n
                                                                   JUDGE.\n<\/p>\n
\n      DK<\/p>\n
                                  (True copy)<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Chief Executive Trustee vs State Of Kerala on 4 January, 2007 IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C) No. 17873 of 2006(C) 1. CHIEF EXECUTIVE TRUSTEE, … Petitioner 2. THE SECRETARY (FR.FRANCIS XAVIER), 3. LEENA JINCY CORREYA, (MINOR), 4. LISHA P.THOMAS, (MINOR), 5. RAYSON CHACKO, 6. MINU JOHN, NERIAKKAL HOUSE, […]<\/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":[8,21],"tags":[],"class_list":["post-229612","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nChief Executive Trustee vs State Of Kerala on 4 January, 2007 - 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\/chief-executive-trustee-vs-state-of-kerala-on-4-january-2007-2\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Chief Executive Trustee vs State Of Kerala on 4 January, 2007 - 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