N.V. Dabholkar, J.
1. All three writ petitions were heard together, since the petitioners in all three writ petitions are similarly placed and they claim identical relief.
2. All the petitioners are the Managements and educational institutions. They claim to be minority unaided institutions and to have been recognized as such, by the State Government. All of them are running colleges for two years diploma in teaching education (D.Ed.) course. They have approached this Court, because rules framed by the Maharashtra State Educational Research and Training Council for admissions to the said course in the academic year 2006-2007, prescribe quota of only 50 per cent seats to be filled in by the Management and 50 per cent to be filled in by the Government. Such a provision is contained more particularly in Clause 3(A)(4) of the Rules in question and hence, all the petitioners have prayed as follows:
B. Issue writ of Certiorari or any other writ in the nature of writ of Certiorari to quash and set aside the Clause No. 3(A)(4) of the Regulations for the admission to D.Ed. Course framed by the respondent No. 2 for the academic year 2006-2007 to the extent of providing 50% seats as Government quota for the admission with the petitioners institutions.
C. Issue writ of prohibition or writ in the nature of prohibition prohibiting the respondents from inviting applications, granting admissions to 50% seats of the intake of the petitioners as Government seats for the D.Ed. course as per the Clause 3(A)(4) of the Regulations framed by the respondent No. 2 for the academic year 2006-2007. D. Issue writ of mandamus or writ in the nature of mandamus to the respondents to issue necessary directions, orders permitting the petitioners to fill in all the seats as per their intake without keeping any Government quota seats for the academic year 2006-2007.
As can be seen from the prayer clauses, the claim of the petitioners can be stated in one sentence. According to them, being private unaided and recognized as minority institutions, they have a right to admit students to their 100 per cent intake capacity without reservation/sharing of any quota with the Government.
3. All five petitioners in three writ petitions, have intake capacity of 50 students each. Respondent No. 2 had published rules for admissions for earlier academic year for 2005-2006. In the said rules. Rule 14(1) specifically provided 50 per cent Management quota and balance 50 per cent seats to be filled in by Government, so far as unaided D.Ed. course is concerned.
Those rules were challenged by writ petition No. 5200 of 2005. On 10-8-2005, this Court had issued rule and passed interim order, permitting petitioners to carry out admission by quota of 75 per cent students as Management quota and only 25 per cent students as Government quota. The said writ petition is still pending in the High Court. Even for ensuing academic year 2006-2007, rules published by 2nd respondent for admission to D.Ed. course again provide 50-50 quota for Management and the Government, even in case of private unaided minority institutions. This is in spite of the fact that the respondents are aware of the interim orders passed by the Court in Writ Petition No. 5200 of 2005. According to the petitioners, these interim orders, probably, were following suit of orders passed by this High Court in the matter of P. A. Inamdar v. State of Maharashtra : 2005(5)BomCR52 .
According to the petitioners, a Bench of seven Judges of the Hon'ble the Supreme Court, in the case of P. A. Inamdar v. State of Maharashtra AIR 2005 SCW 3923, was pleased to overrule the scheme that was evolved in Islamic-Academy of Education v. State of Karnataka AIR 2003 SCW 4240, to the extent it allowed the State to fix the quota for seats sharing between the Management and the State in the unaided private educational institutions of both, minority as well as non-minority categories and to the extent the same runs counter to the judgment of the Hon'ble Apex Court in the matter of T.M.A. Pai Foundation v. State of Karnataka AIR 2002 SCW 4957. It is submitted that the Hon'ble the Apex Court has held that private unaided educational institutions, and more particularly minority institutions, cannot be forced to have seat sharing arrangement with the State Government and, therefore, Clause 3(A)(4) of the rules framed by the 2nd respondent for admissions to D.Ed. course for academic year 2006-2007 runs counter to the judgment rendered by the Hon'ble the Apex Court and, therefore, is bad in law.
4. During the course of arguments, learned Counsel for the petitioners have submitted for an interim order of 75 per cent quota to be filled in by the Management and only 25 per cent quota to be shared by the Government, in case this Court is pleased only to issue rule, by relying upon such interim orders passed by this Court in various writ petitions, either at this Bench or Bombay seat. In Writ Petition Nos. 5200, 5214 and 5242 of 2005, this Court, on 10-8-2005. had passed order as follows:
2. Rule.
3.xxxxx
4. As far as interim relief is concerned, the learned Counsel for the parties stated that since the issue has been referred to 7 Judge Bench, the minority quota for the academic year 2005-2006 may be fixed by this Court as a temporary measure without prejudice to the rights and contents (contentions) of the parties.
(emphasis added)
5. Having considered the submissions of the learned Counsel for the parties and bearing in mind the decision of this Court in Writ Petition No. 4091 of 2005 along with some other petitions delivered on 13-7-2005 at Bombay, the decision to reduce the Management quota for the academic year 2005-2006 from 75% to 50% is stayed and the respective institutions are held (shall be) entitled to the Management quota of 75% for the ensuing year.
While passing interim order as above, this Court had granted liberty to the petitioners to apply for fixing date for hearing after decision of reference by a Bench of 7 Judges of the Hon'ble the Apex Court. It must be taken a note that reference is decided by the Hon'ble Supreme Court on 12-8-2005 and the decision is reported at AIR 2005 SCW 3923, P. A. Inamdar v. State of Maharashtra.
As can be seen from the interlocutory order passed in earlier group of writ petitions and as a stop gap arrangement for the academic year 2005-2006, the interim order was in line with the order passed by this Court at its Bombay seat at the conclusion of the matter of P. A. Inamdar v. State of Maharashtra : 2005(5)BomCR52 , because the matter was pending before the Hon'ble the Supreme Court for decision. Now that the decision of the Supreme Court is available, we feel it undesirable to proceed with ad hoc arrangement for this year also. (In fact, admissions for the academic year 2006-2007 having commenced, we are of the view that all those writ petitions, which challenge the rules for admissions to academic year 2005-2006 and which are pending by issuance of rule and directions regarding interim arrangement of sharing 75-25 quota by the Management and the State, have now become infructuous.)
The decision by Division Bench at Bombay, dated 13-7-2005, in a group of petitions, including one between P. A. Inamdar v. State of Maharashtra 2005(3) Mh.L.J. 1067, was in response to a challenge posed to decision arrived at by Pravesh Niyantran Samiti (i.e. Admissions Regulation Committee) on 10-6-2005, declining to enhance Management quota for admissions at professional institutions, established and administered by minorities, from 50 per cent to 100 per cent of total intake. The Committee was set up by the Government of Maharashtra in pursuance to the decision of the Supreme Court in Islamic Academy's case. Institutions before the Division Bench at Bombay, provided instructions in Architecture, Pharmacy and Management and all were unaided religious minority institutions. Percentage of 75-25, although fixed at the conclusion of the writ petition, was also an interim arrangement, as can be seen from para 10 of the said judgment. The observation that there was merit in the submission on behalf of the petitioners therein, that the Committee, not having furnished indication of any reasons in its decision, should be requested to reconsider its decision, was in the light of the principles of law which have been laid down by the Supreme Court. The Court, therefore, held that the data submitted by each of the institutions before the Court, in support of their applications for enhancement of the percentage in the Management quota will have to be considered by the Committee, in the light of principles laid down by the Supreme Court.
All the decisions/orders relied upon by the petitioners seeking interim orders for sharing of seats between Management and State, 75:25, were before the decision in P. A. Inamdar (supra) on 13-8-2005 by the Hon'ble the Supreme Court. In case, the petitioners, who are Managements of private unaided minority institutions imparting instructions in 'teaching education' for a diploma, are covered by the law laid down in the judgment of the Apex Court, we are duty bound to apply the same and decide the matter finally, instead of going for another ad hoc arrangement.
5. Advocate Sarvashree Hon and Bhore for respective petitioners urged that all the petitioners are minority institutions, unaided and all of them run D.Ed. colleges. So far as admissions to D.Ed. course are concerned, there is no Common Entrance Test (CET), even for admissions to Government or non-Government aided colleges, as in the matter of other professional courses. It is, therefore, claimed that, the institutions imparting education for diploma in teaching science, are not colleges for professional course and hence, in the light of law laid down by the Hon'ble Apex Court in the last judgment in the matter of P. A. Inamdar and Ors. v. State of Maharashtra AIR 2005 SCW 3923, no restrictions can be imposed upon them by the State, much less compulsion of sharing seats with the State Government.
In order to support the argument that the course for D.Ed. is not a professional course, a short note is submitted by the learned Counsel for the petitioners. It is pointed out that the D.Ed. course is an undergraduate course, covered by School Education Department; that the same is not regulated by Pravesh Niyantran Samiti (Admissions Regulation Committee) and Shikshan Shulk Samiti (i.e. Fee Structure Committee), constituted in obedience of the directions issued by the Supreme Court in the case of Islamic Academy. Colleges imparting professional education are covered by the Department of higher, technical and medical education, of the Government. There is no higher qualification, which can be acquired on the basis of D.Ed. qualification itself. Non application of CET is an indicator of the fact that the D.Ed. course is not a professional course, since admissions to this course are done on the basis of marks secured at H.S.C. examination. The Supreme Court has drawn distinction between unaided minority educational institutions, such as, schools and under graduate colleges on one side, and institutions imparting higher education/professional education on the other, observing that in the former, scope for merit based selection is practically nil and, therefore, may not be called for regulation, but in the latter, transparency and merit have to be unavoidably taken care of.
6. Main argument on behalf of the State was advanced by Shri Dilip Patil (Bankar), learned AGP, who claimed that rules/regulations/guidelines, by whatever nomenclature those may be called, for admissions to D.Ed. course, are framed by Director of Technical Education, by order and in the name of the Governor. The parameters for recognition of the colleges imparting teacher training programme, were promulgated by National Council for Teacher Education (NCTE), a statutory body established under National Council for Teacher Education Act, 1993. Thus, according to learned A.G.P., D.Ed. course is higher/professional education. According to him, only school and undergraduate courses are free from control, and anything above HSC, is higher education. Thus, according to him, the petitioners cannot escape the directions laid down by the Hon'ble Supreme Court and till legislation takes field, admissions can be controlled by the Government through two Committees as per the directions in the case of Islamic Academy. In any case, all unaided minority educational institutions imparting education of similar type, are required to hold their own CET and without that, they cannot fill in 100 per cent quota on their own.
7. From the tenor of the arguments of the two sides, we feel, the controversy against sharing of seats and whether directions to that effect, as contained in the rules/regulations/guidelines, are in breach of the law laid down by the Apex Court, is not merely because the petitioners are private unaided minority institutions. But, there is also controversy raised by the State that the D.Ed. colleges are the colleges imparting higher/professional education and, therefore, liable to certain controls by the State. From the submissions, impliedly it can be inferred that both the sides seem to be in agreement that, so far as private unaided minority institutions are concerned, they have complete autonomy even in the region of admissions, so far as school and undergraduate education is concerned, and there are restrictions imposed by the Supreme Court on imparting higher/professional education. The writ petition, therefore, will have to be considered as follows:
(i) Whether, colleges imparting education in teacher training programme, are institutions of higher/professional education?
(ii) Are petitioners, private unaided minority institutions, free from any control of Government in the region of admissions of students to the said course?
If not, what are the restrictions?
8. Whether the D.Ed. colleges are imparting professional education.
In the arguments and brief note submitted by Shri Hon, learned Counsel for the petitioners, he has applied three tests for claiming that the D.Ed. is not higher/professional education.
In saying that D.Ed. is not a course of graduation, he is justified. But this argument was replied by Shri Dilip Patil, learned AGP, by pointing out that eligibility for admission to D.Ed. course is 12th H.S.C. and hence, it is not school education, either. The institutions imparting education in 'teacher training' are called 'colleges' and not 'schools'. The course is termed as 'Diploma' and, hence, it cannot be equated with degree course and, therefore, in any case, according to Shri Hon, this is an undergraduate course. The course is really so positioned that, apparently it is neither school education nor a graduation course. Like a mezzanine floor, it is neither ground floor nor first floor.
From the submissions advanced, the controversy hinges, not on the issue whether the D.Ed. course is higher education, but on the issue whether the same is professional course. It was pointed out by Advocate Shri Hon that higher, technical and medical education is regulated by different department of the Government, than the course of D.Ed. We are unable to agree that this can be sure test to determine whether D.Ed. course is professional education or not. D.Ed. course might be being regulated by school education department for two reasons. Firstly, because the course is a diploma course and not degree course. Secondly, diploma holders in teacher training mainly serve as school teachers. The fact that this course is regulated by some other department (i.e. school education department) also may not be sufficient to say that it is not professional education.
As a third test, Advocate Shri Hon pointed out that admissions to other professional courses are only after competitive examination and merit achieved therein by aspirants. Since there is no competitive examination CET for admissions to D.Ed. course, the same is not a professional course. We are afraid, even this may not be the correct test. So far as branches, such as, medicine, engineering or Management, are concerned, probably, CET is prescribed, because the students all over the State acquire eligibility, by appearing for examinations through different universities. In contra distinction, students desirous of seeking admission for D.Ed. course, appear for same HSC examination all over the State. Therefore, merit earned at HSC level by any student from any corner of the State, is comparable with the merit earned by any other student in the State. This is because, they have answered the same question paper for eligibility qualification. This is not the case for those, who acquired eligibility qualification through different universities and by passing examinations conducted by different universities. That may be the cause for prescribing CET, so that merits of all the students in response to common test or question paper would be available for comparison. For the sake of arguments, if the State dispenses with CET for medical, engineering or Management courses, still one will not be in a position to say that those are not professional courses. Therefore, non-prescription of CET for admissions to D.Ed. course, cannot be sufficient to say that it is not a professional course. To our belief, there is no CET even for law course in the State (although there is said to be such a test for elite law schools recently established at Banglore, Bhopal etc.). Yet, nobody would say that law course is not a professional course.
Lastly, it is said that, for higher education, universities, All India Council for Technical Education (AICTE) and others are regulating the admission process, which is not so in case of D.Ed. course. As is evident from brochure itself, Maharashtra State Educational Research and Training Council seems to be regulating admissions for D.Ed. course. Even in the literature provided by AGP, there are regulations titled as 'National Council for Teacher Education (RecognitionNorms and Procedure) Regulations, 2005. Thus, a statutory Council of national level is regulating the procedure for grant of recognition, together with norms and standards for various teachers training programmes. From the brochure Clause 4, it is evident that, admissions to D.Ed. course are regulated by Niwad, Nirnaya va Niyantran Samiti (selection, decision and control committee) along with Director, Maharashtra State Educational Research and Training Council. We are unable to appreciate, much less accept, the argument of learned Counsel Shri Hon that, 'who regulates institutions?', can be a factor determining whether the course is professional or not.
9. In order to guide ourselves whether teacher training programmes are professional education or not, we have referred to Full Bench decision of this High Court in the matter of Jayshree Sunil v. State of Maharashtra 2000(3) Mh.L.J. 605. This is a Full Bench decision of the High Court upon reference due to divergence of views by two different Division Benches. The question involved was whether the qualification B.Ed. is a requisite qualification for teaching the students in the primary schools. It may be stated here itself that in the State, the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977, and Rules framed thereunder by the State in exercise of the powers conferred by Section 16 of the said Act, regulate the conditions of service of the school teachers. Under the Rules, D.Ed. is requisite qualification for primary teachers, whereas B.Ed. is requisite qualification for secondary teachers. Consequently, it was the contention of secondary teachers that trained graduates (B.A., B.Ed.) could not be refused appointment as primary teachers. In fact, it was contended that B.Ed. was a higher qualification than D.Ed. We are not concerned with the controversy therein. Suffice it to say that the question was answered in the negative by Full Bench. We have referred to this judgment, because the provisions of the said Act and Rules thereunder were considered by the Full Bench to quite a considerable depth, which details are useful for arriving at conclusion whether 'teacher training' is 'professional education'.
As observed in para 8 of the judgment, Section 3 of the MEPS Act mandated that the Act shall be applicable to all private schools in the State of Maharashtra, whether receiving any grant in aid from the State Government or not. In para 11 of the judgment, Full Bench has referred to the definition of 'trained teacher' as contained in the Rules and the same reads as follows:
'Trained teacher' means a teacher who has secured a professional certificate, a diploma or a degree recognised by the department, which qualifies him for a teaching post in school.
In the said matter, the State had filed a detailed reply affidavit formulating therein reasons as to why D.Ed. was prescribed as 'professional qualification' for the post of primary teachers. According to the State, D.Ed. syllabus was specifically designed to meet the requirements of teaching the students of primary schools and the precise reasons are enumerated in para 20 as follows:
(1) In primary education integrated teaching approach has been accepted by the Government. The contents of the D.Ed. syllabus have been framed in such a way that a teacher holding this qualification is in a position to teach all subjects that are taught in primary standards suitable for the students falling in the age group upto 14 years especially considering their hostile attitude towards school.
(2) The syllabus also contains special training programme on Early Childhood Education and non-formal Education, Tribal Education, Girls Education, Population Education, Multi grade teaching, Educational Technology and Moral Education. This training course specially covers the contents data in primary schools pertaining to school subjects and gives insight in methodology to be adopted in teaching these subjects in primary schools.
(3) The D.Ed. teachers are taken to primary schools for practical sessions.
It was further affirmed that the State Education Board has specifically prepared and designed the D.Ed. syllabus to meet the requirement of teaching in primary schools and the Government of Maharashtra has accorded sanction to the said syllabus.
In fact, the Full Bench also compared the syllabi of D.Ed. and B.Ed. courses in para 22, and details of D.Ed. course quoted in the tabular form can usefully be reproduced:
1) Regd. qualification Candidate passing exam.for admission for 12th Std. or any U.G.C.recognised similar exam.equivalent to H.S.C.2) Period 2 years.3) Total periods 2400 clock hours.4) Teaching level Primary Age Group 6 to 145) Teaching method Emphasis on practicals,use of child centered, multiclasses, playful, joyful methods.6) Syllabus 1. Subject knowledge andteaching methods in respectof all subjects in schooleducation 3 languages(first, second and third)Mathematics,Science, Social Scienceand work experience.2. Physical Education health,drawing and modern arts,work experience,music etc. subjectsfrom school educationcan be successfullytaught tothe classes of Std.1 to 7.3. Two years trainingis given tosolve the problemsand to fulfil theneeds of the studentson primary level.The problems ofstudents on primarylevel are very complicated.A thoroughstudy in respectthereof is made.The details of the curriculum available indicate that the same is not for limited purpose of enriching mind and shaping the personality, but the syllabus is aimed at making the individual fully equipped for teaching profession. In that sense, it is 'specialised education'.
10. In the judgment of P.A. Inamdar 2005 AIR SCW 3923, para 92, the Hon'ble Apex Court observed thus:
Education, accepted as a useful activity, whether for charity or for private, is an occupation. Nonetheless, it does not cease to be a service to the society and even though an occupation, it cannot be equated to a trade or business.
(emphasis added)
We have tried to find out simpler solution for determination of the issue, whether diploma in teacher training, is professional education.
As per Concise Oxford Dictionary (9th Edition), 'profession' means a vocation or calling, especially one that involves some branch of advanced learning or science. The word 'professional' is interpreted as 'of or belonging to or connected with a profession, engaged in a specified activity as one's main paid occupation.
As per the Law Lexicon by P. Ramanatha Ayar, a profession involves an idea of the occupation requiring either purely intellectual skill or any manual skill, as in painting, sculpture or surgery skill controlled by intellectual skill of the operator, as distinct from an occupation, which is substantially the production or sale or arrangement for the production or sale of commodities. The words 'profession', or 'occupation', or 'business' are of wide import and whether or not, gain is made by educational institution, it cannot be cease to be a business. Sakharkheda Education Society v. State of Maharashtra : AIR1968Bom91 . In the same Law Lexicon, 'professional institution' is defined as an organization, which imparts Advanced learning in a particular field of profession, such as law, medicine or engineering for attainment of special knowledge as distinct from mere skill. Kannamal Educational Trust v. University of Madras AIR 1966 Mad 303.
Applying practical test in the light of term 'profession' or 'professional institute', as explained by the Dictionary or the Law Lexicon, education can be a profession or occupation, and such institute can be termed as professional institute. Taking into consideration nature of training imparted (read para 9 supra), we find no reason why course of teachers training should not be treated as 'professional education'. Having passed diploma, one can take a job as a teacher, which he otherwise cannot and engage in the said activity as his main paid occupation. Private tuitions/classes, is an institute, which has come to perpetuate in the society and a person who is qualified with a diploma in teachers education, shall be in a position to run one such coaching class of his own.
11. In the matter of P. A. Inamdar (supra), under the caption ' A few concepts ', the Apex Court has discussed certain terms, and 'difference between professional and non-professional education institutions' is discussed in paragraphs 108 to 110. This is because, according to the Hon'ble the Supreme Court:
Dealing with unaided minority institutions'. Pai foundation holds that Article 30 does not come in the way of the State stepping in for the purpose of seeking transparency and recognition of merits in the matter of admissions. Regulatory measures for ensuring educational standards and maintaining excellence thereof are no anathema to the protection conferred by Article 30(1). However, a distinction is to be drawn between unaided minority educational institution of the level of schools and undergraduate colleges on one side and the institutions of higher education, in particular, those imparting professional education on the other side. In the former, the scope for merit based selection is practically nil and hence may not call for regulation. But in the case of latter, transparency and merit have to be unavoidably taken care of and cannot be compromised.
(emphasis added)
It is observed in paragraph 110 that:
Educational institutions imparting higher education i.e. graduate level and above and in particular specialized education such as technical or professional, constitutes a separate class. Regarding difference between professional and non-professional education, it is observed in paragraph 110 as follows:
Education upto undergraduate level aims at imparting knowledge just to enrich mind and shape the personality of a student. Graduate level study is a doorway to admissions in educational institutions imparting professional or technical or other higher education and, therefore, at that level, the considerations akin to those relevant for professional or technical educational institutions step in and become relevant.
(emphasis added)
By these observations, graduate level study appears to have been placed in the 'separate class' to some extent. In further part of the said paragraph, it is said:
Education upto undergraduate level on one hand and education at graduate and post-graduate levels and in professional and technical institutions on the other are to be treated on different levels inviting not identical considerations, is a proposition not open to any more debate after Pai Foundation. If the test as laid down in the quotation hereinabove is to be applied, course of D.Ed., which trains an individual for the profession of teaching, cannot be said to be education aimed at imparting knowledge just to enrich mind and shape personality.
In the concluding part of para 110 of the judgment, the Hon'ble the Apex Court has observed:while recognition or affiliation may not be a must for education up to undergraduate level or, even if required, may be granted as a matter of routine, recognition or affiliation is a must and subject to rigourous scrutiny when it comes to educational institutions awarding degrees, graduate or post-graduate, post-graduate diplomas and degrees in technical or professional disciplines.
No doubt, case of D.Ed. course does not pass the test of affiliation but the same requires recognition by a statutory body of National level, namely. National Council for Teacher Education.
Considering the course of D.Ed. on the basis of all tests discussed hereinabove, we are of the view that the course of D.Ed. although ultimately confers a diploma, will have to be considered as professional education. This answers the first issue required to be considered.
12. It is contended by the petitioners that the D.Ed. course is neither 'higher' nor 'professional' education and, therefore, private unaided minority institutions have complete autonomy free from any regulation or control by the State. In any case, they are not bound to share seats with the State. As against this, it was urged on behalf of the State that the D.Ed. course is 'professional' education and, therefore, admissions, even in cases of private unaided minority institutions, are subject to regulation and control by the State, to the extent prescribed by P. A. Inamdar's case 2005 AIR SCW 3923. In fact, learned AGP also advanced an argument that, the petitioners, either will have to take the candidates from the common entrance procedure started by the State in accordance with the rules, or, as observed in P. A. Inamdar's case, they will have to introduce common entrance procedure for all private unaided minority institutions, which impart education in the same discipline. In other words, it is suggested that, there ought to be C.E.T. for admissions to all private unaided minority colleges conducting two years course for diploma in education.
Having arrived at a conclusion that the course for diploma in education is 'professional education', we proceed to find out controls, if any, prescribed by Pai Foundation, 2002 AIR SCW 4957, as finally interpreted by the Supreme Court in P. A. Inamdar. In undertaking such an exercise, both sides have placed reliance on the latest judgment except for reference, to Pai Foundation and Islamic Academy, when required. This was obviously because, the law laid down by Pai Foundation is interpreted by later two judgments and the judgment in P. A. Inamdar also considered aspect, if certain observations by the Constitution Bench in Islamic Academy, ran counter to the ratio laid down in Pai Foundation, which is a decision of the Supreme Court by a Bench of eleven Honourable Judges. We find no reason to dissent from the method adopted by the learned Counsel for the exercise.
13. In paragraph 106 of the judgment in P. A. Inamdar's case, minority education institutions are classified in 3 classes, (i) those which do not seek either aid or recognition from the State, (ii) those which want aid; and (iii) those which want only recognition but not aid. Our petitioners, according to them, fall in third category. While considering answer to first, out of the four questions formulated, which pertains to appropriation of quota for State and enforcement of reservation policy, the position of private unaided minority educational institutions asking for affiliation or recognition, is discussed in paragraph 120 at serial No. (ii) and we intend to reproduce certain portions from this part, which read as follows:. However, the urge or need for affiliation or recognition brings in the concept of regulation by way of laying down conditions consistent with the requirement of ensuring merit, excellence of education and preventing mal-administration. For example, provisions can be made indicating the quality of the teachers by prescribing the minimum qualifications that they must possess and the courses of studies and curricula. The existence of infrastructure sufficient for its growth can be stipulated as a pre-requisite to the grant of recognition or affiliation. However, there cannot be interference in the day-to-day administration. The essential ingredients of the Management, including admission of students, recruiting of staff and the quantum of fee to be charged, cannot be regulated.
(emphasis added)
Balance has to be struck between the two objectives; (i) that of ensuring the standard of excellence of the institution, and (ii) that of preserving the right of the minority to establish and administer its educational institution. Subject to reconciliation of the two objectives, any regulation accompanying affiliation or recognition must satisfy the triple tests; (i) the test of reasonableness and rationality, (ii) the test that the regulation would be conducive to making the institution an effective vehicle of education for the minority community or other persons who resort to it, and (iii) that there is no in-road on the protection conferred by Article 30(1) of the Constitution....
The conclusion on the issue can be gathered from the contents from paragraphs 121, 122, 124 and 126 and we intend to reproduce those.
121. So far as appropriation of quota by the State and enforcement of its reservation policy is concerned, we do not see much of difference between non-minority and minority unaided educational institutions. We find great force in the submission made on behalf of the petitioners that the States have no power to insist on seat sharing in the unaided private professional educational institutions by fixing a quota of seats between the Management and the State. The State cannot insist on private educational institutions which receive no aid from the State to implement State's policy on reservation for granting admission on lesser percentage of marks, i.e. on any criterion except merit.
(emphasis added)
That the State cannot impose its reservation policy as also seat sharing upon private unaided professional educational institutions, stands confirmed by further observations from paragraphs 122, 124 and 125.
122. As per our understanding, neither in the judgment of Pai Foundation, nor in the Constitution Bench decision in Kerala Education Bill, which was approved by Pai Foundation, there is anything which would allow the State to regulate or control admissions in the unaided professional educational institutions so as to compel them to give up a share of the available seats to the candidates chosen by the State, as if it was filling the seats available to be filled up at its discretion in such private institutions. This would amount to nationalization of seats which has been specifically disapproved in Pai Foundation. Such imposition of quota of State seats or enforcing reservation policy of the State on available seats in unaided professional institutions are acts constituting serious encroachment on the right and autonomy of private professional educational institutions. Paragraph 122 is concluded by the Hon'ble Apex Court as follows:
Unaided institutions, as they are not deriving any aid from State funds, can have their own admissions if fair, transparent, non-exploitative and based on merits.
124. No where in Pai Foundation, either in the majority or in the minority opinion, have we found any justification for imposing seat sharing quota by the State on unaided private professional educational institutions and reservation policy of the State or State quota seats or Management seats.
126. In Pai Foundation, it has been very clearly held at several places that unaided professional institutions should be given greater autonomy in determination of admission procedure and fee structure. State regulation should be minimal and only with a view to maintain fairness and transparency in admission procedure and to check exploitation of the students by charging exorbitant money or capitation fees.
In paragraph 127, the Hon'ble Apex Court has recorded disapproval of the scheme evolved in Islamic Academy, to the extent it allowed the State to fix quota for seat sharing between Management and the States and that part of the Islamic Academy judgment is observed to be not laying down the correct law and running counter to Pai Foundation. In paragraph 129, the judgment records finding on first question clearly against the application of policy of reservation or enforcement of quota sharing, so far as minority unaided educational institutions are concerned. While recording such conclusion in paragraph 129, the Hon'ble Apex Court has made no distinction between professional and non-professional courses, conducted by unaided minority institutions.
14. So far as paragraph 68 of the judgment of Pai Foundation is concerned, the same is quoted in two parts i.e. in paragraph 112 of the judgment in P. A. Inamdar explaining the purpose, as also para 68 from Pai Foundation case, in following words.
113... A reading of the majority judgment in Pai Foundation in its entirety supports the conclusion that while the first part of para 68 is law laid down by the majority, the second part is only by way of illustration, tantamounting to just a suggestion or observation, as to how the State may devise a possible mechanism so as to take care of poor and backward sections of the society. The second part of para 68 cannot be read as law laid down by the Bench. It is only an observation in passing or an illustrative situation which may be reached by consent or agreement or persuasion.
(emphasis added)
These reasons are further backed by the contents in paragraph 123 and conclusion as recorded in paragraph 125, We quote:
123...A few observations contained in certain paragraphs of the judgment in Pai Foundation, if read in isolation, appear conflicting or inconsistent with each other. But if the observations made and the conclusions derived are read as a whole, the judgment nowhere lays down that unaided private educational institutions of minorities and non-minorities can be forced to submit to seat sharing and reservation policy of the State. Reading relevant parts of the judgment on which learned Counsel have made comments and counter comments and reading the whole judgment (in the light of previous judgments of this Court, which have been approved in Pai Foundation) in our considered opinion, observations in paragraph 68 merely permit unaided private institutions to maintain merit as the criterion of admission by voluntarily agreeing for seat sharing with the State or adopting selection based on common entrance test of the State. There are also observations saying that they may frame their own policy to give freeship and scholarships to the needy and poor students or adopt a policy in line with the reservation policy of the State to cater to the educational needs of weaker and poorer sections of the society.
(emphasis added).
The observations confirm that seat sharing with the State, in cases of private unaided educational institutions, or adopting selection based on common entrance test held by the State is possible, only if private unaided minority education institutions volunteer to do so. The discussion about the issue of seat sharing is concluded thus, in paragraph 125:
We make it clear that the observations in Pai Foundation in paragraph 68 and other paragraphs mentioning fixation of percentage of quota are to be read and understood as possible consensual arrangements which can be reached between unaided private professional institutions and the State.
Taking into consideration the discussion and the conclusion as drawn by the Supreme Court, as in the extracts quoted hereinabove, rule laying down seat sharing, so far as private unaided educational institutions, and more particularly minority educational institutions, are concerned the same is required to be struck down and the writ petition succeeds to that extent.
15. Learned Government Pleaders have laid emphasis upon observations as contained in paragraphs 131, 133, 134 and 135 of the judgment, in their submissions that the petitioners must draw their candidates from common selection process carried out by the State, or they should evolve their own method of C.E.T. for all colleges in same discipline, which are run by all private unaided minority institutions in the State. In spite of absence of any distinction between 'professional' and 'non-professional' educational institutions on the issue of seat sharing, while dealing with issue of admissions, paragraphs 131 and 133, according to learned Government Pleaders, prescribe C.E.T. Relevant contents in paragraph 131 reads as follows:
131. However, different considerations would apply for graduate and post-graduate level of education, as also for technical and professional educational institutions. Such education cannot be imparted by any institution unless recognized by or affiliated with any competent authority created by law, such as a University, Board, Central or State Government or the like. Excellence in education and maintenance of high standards at this level are a must. To fulfil these objectives, the State can and rather must, in national interest, step in.
(emphasis added).
Rigour, if any, in these observations in paragraph 131, stands diluted by observations in paragraph 133, which read as follows:
133...There is nothing wrong in an entrance test being held for one group of institutions imparting same or similar education. Such institutions situated in one State or in more than one State may join together and hold a common entrance test or the State may itself or through an agency arrange for holding of such test. Out of such-common merit list, the successful candidates can be identified and chosen for being allotted to different institutions depending on the courses of study offered, the number of seats, the kind of minority to which the institution belongs and other relevant factors....
This would better ensure the fulfilment of twin objects of transparency and merit. CET is necessary in the interest of achieving the said objectives and also for saving the student community from harassment and exploitation. Holding of such common entrance test followed by centralized counselling or, in other words, single window system regulating admissions does not cause any dent in the right of minority unaided educational institutions to admit students of their choice.
(emphasis added)
The conclusion on second question regarding admission procedure of unaided educational institutions can be found in paragraph 134, as follows:
134. Pai Foundation has held that minority unaided educational institutions can legitimately claim unfettered fundamental right to choose the students to be allowed admissions and the procedure therefor subject to its being fair, transparent and non-exploitative....
There may be a single institution imparting a particular type of education which is not being imparted by any other institution and having its own admission procedure fulfilling the test of being fair, transparent and non-exploitative. All institutions imparting same or similar professional education can join together for holding a common entrance test satisfying the abovesaid triple tests. The State can also provide a procedure of holding a common entrance test in the interest of securing fair and merit-based admissions and preventing mal-dministration.
Ultimately, it is observed in paragraph 135:135. Till regulations are framed, the admission committees can oversee admissions so as to ensure that merit is not the casualty.
Taking into consideration observations relied upon by learned Government Pleaders, it can be seen that the liberty of unaided private minority educational institution to choose is although unfettered, the institution has to ensure that selection process passes triple tests of fairness, transparency and non-exploitation. For that purpose, they can resort to borrow candidates from CET arranged by the State, or they can choose to arrange their own CET of all similarly placed institutions conducting course in the same/similar discipline. In either case, they must observe that triple test is not ignored.
16. The position stands further clarified in the discussion on the issue of 2 committees dealing with admission and fee structure. After considering the submissions of learned Counsel for private professional institutions, to the effect that Islamic Academy has once again restored such committees, which were done away with by Pai Foundation and yet learned Senior Counsel appearing for different private professional institutions having not disputed that even unaided minority institutions can be subjected to regulatory measures with a view to curb commercialization of education, profiteering in it and exploitation of students, it was observed thus in paragraph 141 of the judgment:
The two committees for monitoring admission procedure and determining fee structure in the judgment of Islamic Academy, are in our view, permissive as regulatory measures aimed at protecting the interest of the student community as a whole as also the minorities themselves, in maintaining required standards of professional education on no-exploitative terms in their institutions. Legal provisions made by the State Legislatures or the scheme evolved by Court for monitoring admission procedure and fee fixation do not violate the right of minorities under Article 30(1) or the right of minorities and non-minorities under Article 19(1)(g).
The Court did not agree with the submission that purpose of the committees could be achieved by post-audit or checks after the institutions have adopted their own admission procedure and fee structure. For the observations recorded in paragraphs 144 and 145 and observing that the decision of the committees being quasi-judicial in nature, would always be subject to judicial review, challenge to the committees formation pursuant to Islamic Academy judgment was answered in paragraph 148 thus:
The judgment in Islamic Academy, insofar as it evolves the scheme of two Committees, one each for admission and fee structure, does not go beyond the law laid down in Pai Foundation and earlier decisions of this Court, which have been approved in that case.
17. As a result of discussion hereinabove, we have arrived at a conclusion that the course of Diploma in Teaching Education (D.Ed.) is professional education. In spite of this, the petitioners being private unaided minority institutions, they are not liable to share seats with the State Government. The rule under challenge i.e. Clause 3(A)(4) from the rules framed by Maharashtra State Educational Research and Training Council is, therefore, quashed.
18. The constitution of the admission and fee structure committees is approved by the Supreme Court, those being a temporary measure, and an inevitable passing phase until Central Government or State Governments are able to devise a suitable mechanism and appoint competent authority in consonance with the observations of the Supreme Court.
19. We are delivering this judgment at the end of July-2006 and the admission process for this academic year might have advanced to some extent. We make it clear that our judgment would not disturb that admission process or the students who are already declared selected and admitted for this academic year, by the private unaided minority institutions (PUMIs for short) having agreed to join the State admission system in totality or by modification through interlocutory Court orders or mutual agreement and if they still desire to continue with the same.
However, for PUMIs for which admission process this year is still at zero point and for all private, unaided minority institutions (PUMIs) for future academic years, it will be open for such institutions (including petitioners herein) at their choice, to borrow the candidates from the State level selection process devised by the State, of the minority community to which the petitioners or such institutions belong, OR to devise their own admission mechanism by all PUMIs imparting education in the same discipline, co-ordinating for the purpose of admission by common admission mechanism and if there is single PUMI imparting education in particular discipline in the State, it shall also have liberty to devise its own mechanism for admission.
Of course, in either of the methods of admission process for this year and always in future, selection shall be fair (merit-based), transparent and non-exploitative.
20. Rule made absolute in terms of para 17 above accordingly.