Judgment:
Arun Tandon, J.
1. All these writ petitions raise common questions of facts and law and as such have been tagged together and are being decided by means of this common judgment. Writ Petition No. 36619 of 2004 shall be treated to be the leading case and the facts mentioned in this judgment are with reference to the facts as stated in the said writ petition, counter and rejoinder affidavits filed therein.
2. The petitioners in all these writ petitions claim to be the Management of unaided non-minority institutions imparting education in professional course of Bachelor of Education (hereinafter referred to as B.Ed.). All the institutions claim to have been granted approval/permission by the National Council for Teachers Education (hereinafter referred to as the Council) under National Council for Teachers Education Act, 1983 (hereinafter referred to as the NCTE Act). They further claim that they have been affiliated to respective Universities (examining bodies) established under the State Universities Act, 1973.
3. The controversy in all these writ petitions is confined to mode and manner of admission of students in B.Ed, course in non-minority un-aided institutions which have permission from the Council for imparting education for B.Ed. Course.
4. Teachers Education Course for secondary level, generally known as B.Ed. is a professional course having 3 major components; (a) theoretical orientation, (b) School experience, and (c) Practical work. All the three components are prerequisite for competence of a teacher at the secondary level- In order to provide for a planned development system throughout the country the Parliament enacted the National Council for Teachers Education Act, 1993 (being Act No. 73 of 1993). With the enforcement of the aforesaid Act the establishment of professional institutions for the purposes of imparting education of teachers training, namely B.Ed. ect, has been regulated under the provisions of the aforesaid Act. Section 14 of the said Act specifically provides that for the purposes of establishing an institution offering a course or training in teachers education a recognition under the said Act from the Regional Committee constituted, would be mandatory and an order to that effect passed by the Regional Committee shall be published in the Official Gazette and communicated in writing. Section 14(6) of the said Act further provides that on receipt of the information of grant of recognition by the Council as aforesaid the examining body for B.Ed, (the University) shall grant affiliation to the institution Section 16 of the said Act further declares that notwithstanding anything contained in any other law no examining body shall grant affiliation to an institution which has not obtained recognition from the Regional Committee under Sections 14 and 15 of the said Act. In exercise of powers under Sections 14 and 15 read with Section 32 of the Act 73 of 1993 the National Council for Teachers Education has framed norms and standards for carrying out the purposes of the Act known as Teachers Education Institution Regulations (Secondary), 2001. The schedule appended thereto provides for the method of admission to the B.Ed, course. Relevant Clause 3 of the Regulations reads as follows:--
^^3- ik=rk&d; nkf[kys ds fy, Lukrd Lrjij de ls de 2 Ldwy fo'k;ksa lfgr de ls de 45% vadksa ds lkFk chO,O@,eO,Oikl izR;klh nkf[kys ds fy, ik= gSaA
[k nkf[kys jkT; ljdkj@fo'ofo|ky; ftlds lkFklaLFkku lEc) gS mldh uhfr ds vuqlkj ;k rks vgZ ijh{kk esa izkIr vadksa ds vk/kkjij vFkok fo'fo|ky;@jkT; ljdkj }kjk vk;ksftr izos'k ijh{kk ds vk/kkj ij fd;k tkukpkfg,A
x lacaf/kr jkT; ljdkj ds fu;eksa ds vuqlkjvuqlwfpr tkfr;ksa@vuqlwfpr tutkfr;ksa@vU; fiNM+s oxksZa@fodykaxksa rFkkefgykvksa vkfn ds fy, LFkkuksa dk vkj{k.k gksxkA**
5. It is admitted between the parties that the examining body referred to under Section 14 of the Act for B.Ed, Course are the Universities to which the petitioners' institutions are affiliated. The said Universities have been established under the provisions of the U.P. State Universities Act, 1973. So far as admission to various professional courses including Degree in Education is concerned reference may be had to Sections 28(5) and (6) of the States Universities Act. The said Sections 28 (5) and (6) read as follows:--
'28. Admissions Committee.--(1) .......................................
(2)...................................,..,.
(3)........................................
(4).......................................
(5) Notwithstanding anything contained in any other provisions of this , Act,--
(a) reservation of seats for admission in any course of study in University, Institute, constituent college, affiliated college or associated college for the students belonging to the Scheduled Castes, Scheduled Tribes and Other Backward Classes of citizens may be made and regulated by such orders as the State Government may, by notification, make in that behalf: Provided that reservation Under this Clause shall not exceed fifty percent of the total number of seats in any course of study.
Provided further that reservation Under this Clause shall not apply in the case of an institution established and administered by minorities referred to in Clause (1) of Article 30 of the Constitution:
Provided also that the reservation under this clause shall not apply to the category of Other Backward Classes of citizens specified in Schedule-II to the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994--
(b) admission to medical and engineering colleges and ,to courses of instruction for degrees in education and Ayurvedic or Unani systems of medicine (including the number of students to be admitted), shall subject to Clause (a), be regulated by such orders (which if necessary may be with retrospective effect, but not effective prior to January 1, 1979) as the State Government may by notification, make in that behalf; Provided that no order regulating admission under this clause shall be inconsistent with the rights of minorities in the matter of establishing and administering education institutions of their choice;
(6) No student admitted to any college in contravention of the provisions of this section shall be permitted to take up any examination conducted by the University, and the Vice-Chancellor shall have the power to cancel and admissions made in such contravention.'
6. From a joint reading of the provisions of the Regulations framed by the National Council for Teachers Education regulating admissions of the students to B.Ed, course referred to above and the provisions of Section 28 (5) (b) of the State Universities Act it is established that power to determine the number of students to be admitted and the manner of admission of such students is to be regulated by such Orders/decisions as the State Government may make in that behalf.
7. Power under Section 28 (5) (b) of the State Universities Act for determining the number of students to be admitted and the manner of such, students for admission, can be exercised by the State Government only through Notification and such a notification has to be necessarily published in the Official Gazette as has been held by a Division Bench of this Court in its judgment in Writ Petition No. 482 of 1980, Dr. Shiv Prasad Tripathi and Ors. v. State of V.P, and Ors., decided by a Division Bench of this Court on 10.4.1980, the relevant paragraph whereof reads as follows:--
'It may be mentioned at this stage that prior to the substitution of Section 28 (5) there was a clear provision of making the order by the State Government by notification in the Gazette. By the Ordinance No. 1 of 1979, the words in the Gazette; were omitted and the only words used were 'by notification made in that behalf. The word 'notification' has been defined in Section 4 (29-A) of the U.P. General Clauses Act to mean a notification published in the Gazette of the State. It is thus clear that even after the substitution of Section 28 (5) by Ordinance No. 1 of 1979, there is a mandatory duty cast on the State Government to make a notification in the Gazette of the State and mere issuing of the Government Order will not make an effective order under Section 28 (5) of the U.P. State Universities Act, 1973.'
8. In exercise of powers under Section 28(5) of the State Universities Act the State Government had issued notifications framing regulations known as U.P. State Universities (Regulation of Admission to Courses of Instruction for Degree in Education in Affiliated, Associated and Constituent Colleges) Order, 1987 which has been amended from time to time, the notification was published in the Official Gazette (Extraordinary) dated 5.5.1987. It is also an admitted position between the parties that all the amendments which have been effected in the aforesaid order of 1987 are prior of the judgment of the Hon'ble Supreme Court in the case of T.M.A. Pai Foundation of Karnataka, 2002 (8) SCC 481: (2002) 3 UPLBEC 2817 (SC), and farther the said Order of 1987 and amendments made thereafter do not in any way contemplate or provide for admission to un-aided institutions nor they provide for any Management quota in respect of the seats. Further it is also an admitted position that subsequent to 1993, with the enforcement of the NCTE Act the number of students to be admitted in the B.Ed. course in a particular institution has been regulated under the orders issued by the Council while granting recognition to the institution concerned under Section 14 of the NCTE Act. To be specific the Council while granting recognition under Section 14 of the NCTE Act, in the order of recognition itself provides for the intake of the number of students in the course each year. As of date normally at the time of grant of first permission the intake of students permitted is 100 only.
9. Till date the State Government has not issued any notification under Section 28(5) of the State Universities Act which has been published in the Official Gazette regulating the percentage of the seats of Management quota in respect of un-aided majority or minority institutions. The State Government had, however, issued a Government Order on 2.7.2003 prescribing the percentage of Management quota scats both for majority and minority institutions as also the fees to be charged in respect of various categories of seats. This Court while considering the applicability of the said Government Order dated 2.7.2003 vide judgment and order dated 9.2.2004 passed in Writ Petition No. 49270 of 2003, Maa Sharda Maha Vidyalaya v. State of U.P. and Ors., reported in (2004) 1 UPLBEC 784, held that the Government Order dated 2.7.2003 would be applicable to all the unaided private institutions imparting education in professional courses (including B.Ed.) inasmuch as the said Government Order has been issued in pursuance of the directions of the Hon'ble Supreme Court in T.M.A. Pai's case (supra).
10. Chaudhary Charan Singh University, Meerut, in view of the aforesaid fact, issued a letter dated 10.8.2004 whercunder it has been provided that 85% of the total seats for B.Ed, course would be filled through the Councilling done by the University and 15% of the seats termed as Management quota shall be filled in accordance with the Rules framed by the University. It has been specified that the said order would be subject to the orders which may be passed by the State Government or by the Competent Court of Law. The petitioners at this stage filed the present writ petitions challenging the fixation of Management quota scats at 15%.
11. During the pendency of the present writ petitions Chaudhary Charan Singh University, Meerut issued another letter dated 10.9.2004 and by means of the said letter all the Principals and Directors of the B.Ed. Institutions were informed that the Admission Committee of the University, having regard to the orders passed by the Lucknow Bench of the Allahabad High Court in Writ Petition No. 3960 of 2004 and. other orders passed in that regard, has taken a decision to provide that the Management quota status would be 50%. However, the University introduced a new system of admission to the aforesaid course. It was provided that 50% seats shall be filled on the basis of the councilling done by the University and the remaining 50% seats (Management quota) shall be filled on the basis of the entrance examination conducted by the University. The merit list so prepared shall be communicated to the institutions who shall admit the students strictly on the basis of the merit list. The petitioners accordingly moved an amendment application and by means of the amendment the petitioners stated that the grievance raised by them with regard to fixation of Management quota seats at 15% under the earlier order dated 10.8.2004 has now become redundant in view of the subsequent letter dated 10.9.2004. However, the petition now challenge the letter of the University dated 10.9.2004 in so far as it directs that 50% Management quota seats shall be filled on the basis of entrance examination conducted by the University, the merit list whereof shall be forwarded by the University to the petitioners' institutions. According to the petitioners such restriction on the Management quota seats virtually amounts to filling up all the seats through the entrance examination conducted by the University itself and as such the fixation of Management quota seats is rendered a farce.
12. On behalf of the petitioners it is submitted that the controversy has narrowed down to the issue as to whether the University is justified in providing that the Management quota seats shall also be tiled on the basis of the entrance examination conducted by the University.
13. The University through its Counsel Sri Anurag Kharma has filed counter affidavit and has stated that the University is bound to follow the direction issued by the State Government which has competence to decide the quota of seats (Para 8 of the counter affidavit). It is further submitted that the Management quota scats have now been determined by the University as 50% only with reference to the orders of the Hon'ble High Court and such fixation is subject to final orders to be passed by this Court. However, since the Management of the unaided private institutions have not held any common entrance examination it was decided that the said 50% (Management quota) seats shall also be filled from the students who had appeared in the entrance examination conducted by the University. It has further been stated that having regard to the law laid down by the Hon'ble Supreme Court in the case of Islamic Academy (supra) the Management quota seats can be filled by the common entrance examination, to be conducted by all the unaided private institutions affiliated to the said University together and since it is not possible to conduct common entrance examination for the year 2004-05 at such a belated stage, the said method of admission of students against Management quota seats front amongst those who appeared in entrance examination conducted by the University, has been adopted.
14. On behalf of State authorities a counter affidavit has been filed and reliance has been placed on the Government Order issued on 29.9,2004. By means of the said Government Order the State Government has taken a decision to provide that so far as un-aided non-minority professional institutions are concerned the Management quota seats shall be 15% only. On behalf of the State it is submitted that by Sri S.M.A. Kazmi, Chief Standing Counsel, that the Government Order dated 29.9.2004 shall hold the field and the letters issued by the University on the basis of the recommendations made by the Admission Committee fixing the Management quota at 50% are of no consequence and the petitioners' institutions are under legal obligation to carry out and provide admissions strictly in accordance with the provisions of the Government Order dated 29.9.2004 in letter and spirit. It is further submitted that in respect of Management quota seats also the petitioners are under legal obligation to ensure that the admission are made strictly in accordance with the directions issued by the Hon'ble Supreme Court in the case of Islamic Academy (supra), through a common entrance examination conducted by the institutions or on the basis of the examination conducted by the agency of the State Government which in the facts of the case is the University. The directions issued under the Government Order dated 29.9.2004 in so far as they arc relevant are quoted below:--
^^la[;k&3355@lRrj&2&2004&2649@2004
izs'kd]
eqdqy flagy]
lfpo]
mRrj izns'k 'kkluA
lsok esa]
1&funs;'kd]
mPp f'k{kk] mOizO]
bykgkcknA
2& dqylfpo]
leLr jkT; fo'ofo|ky;]
mRrj izns'kA
mPp f'k{kk vuqHkkx&2 y[ku % fnukad 9 flrEcj] 2004
fo'k; % jkT; fo'ofo|ky;ksa ls leC)@lg;qDrvukuqnkfur f'k{k.k laLFkkvksa ,oa LofoRr iksf'kr ikB~;eksa esa l=2004&05 esa izcU/kdh; dksVs dk fu/kkZj.kA
egksn;]
mi;qZDr fo'k; ij eq>s ;g dgus dk funs'kgqvk gS fd dfri; fo'ofo/kky;ksa us 'kklukns'k la[;k&2851@lRrj&2&2003&1692@2004] fnukad 2&7&2003 ds vkyksd esa l=2004&05 gsrq futh izcU/ku }kjk fd;s tkus okys dksVs ds fu/kkZj.k ds lEcU/kesa Li'V vkns'k fuxZr djus dk vuqjks/k fd;k gSA
2 bl lEcU/k esa lwfpr djuk gS fd mifjlanfHkZr 'kklukns'kfnukad 2&7&2003 esa fuEuor~ O;oLFkk dh x;h gS%
1 vYila[;d f'k{k.k laLFkkvksa ls brjlaLFkkvksa ,oa LofoRr iskf'kr ikB~;eksa esa ,OvkbZOlhOVhObZO vf[kyHkkjrh; rduhdh f'k{kk ifj'kn rFkk ,OvkbZOlhOVhObZO ds ifj{ks= lsckgj vkus okys O;olkf;d ikB~;eksa esa jkT; ljdkj }kjk vf/kr ,tsUlh ls flaxyfoUMks&flLBe; ds ek/;e ls 85 izfr'kr lhVksa ij fo|kfFkZ;ksa dks f'k{k.k l=2003&04 ls izos'k fn;k tk;sxk rFkk 'sk'k 15 izfr'kr lhVksa ij Nk=ksa dkizos'k futh izcU/kd }kjk lEcfU/kr fo'ofo|ky;ksa ls vuqeksfnr] ikjn'khZ rFkkrdZlaxr izos'k izf;k ds ek/;e ls fd;k tk;sxk vkSj fdlh Hkh n'kk esa bldk fopyuugha fd;k tk;sxkA
2-------------------------------
3- bl lEcU/k esa lE;d~ fopkjksijkUr ;g fu.kZ;fy;k x;k gS fd iwoZ o'kZ dh Hkkafr 'kSf{kd l= 2004&05 ds fy, izcU/kudksVs dh O;Dr erO;oLFkk fuEuor~ gksxh&
1 vYila[;d f'k{k.k laLFkkvksa ls brjlaLFkkvksa ,oa LofoRr iksf'kr ikB~;eksa O;olkf;d ikB~;eksa ds fy,izcU/ku dksVk 15 izfr'kr gksxkA
2 vYila;d laLFkkvksa }kjk lapkfyrvukuqnkfur f'k{k.k laLFkkvksa ,oa LofoRr iksf'kr ikB~;eksa O;olkf;dikB~;eksa ds fy, izcU/ku dksVk 50 izfr'kr gksxkA
4- ;g vkns'k ;kfpdk la[;k&350@93 bLykfed ,sdMehvkQ ,twds'ku ,oa vU; cuke dukZVd jkT; ,oa vU; esa ekO mRrer U;k;ky; }kjk ikfjrvksn'k fnukad 14&8&2003 esa nh x;h O;oLFkk ds v/khu gksxkA
Hkonh;
eqdqy flagy]
lfpoA**
15. In view of the aforesaid contentions the controversy in the present writ petitions revolves around the following issues:--
(a) Who has the competence to determine the percentage of Management quota seats in private-unaided professional institutions--State Government or the University to which the institution is, affiliated?
(b) Whether the Government Order dated 9.9.2004 fixing the Management quota seats is binding upon the University and the petitioners' institutions which are affiliated thereto?
(c) Whether fixation of Management quota seats under the Government Order dated 9.9.2004 to the extent of 15% only is arbitrary and violativc of the judgment and orders of the Hon'ble Supreme Court in T.M.A. Pai's Case, as well as violativc of Article 14 of the Constitution of India.
(d) Whether the Committee constituted by the State Government under the Government Order dated 2.7.2003 in view of the directions of the Hon'ble Supreme Court in the case of Islamic Academy v. State of Karnataka, 2003 (6) SCC 97 : (2003) 3 UPLBEC 2424 (SC), having not recommended any percentage of Management quota seats for the academic year 2003-04 the quota of 50-50% should be applied for the year 2004-05 also? and
(e) Whether the petitioner-Management is entitled to fill in the Management quota seats on the basis of merit determined having regard to the marks acquired by the candidates in the qualifying examinations (B.A., B.Sc., B. Com etc. i.e. graduate courses)?
I have heard learned Counsel for the parties and gone through the record.
Issues (a) and (b):
It is admitted to the parties that all the petitioners institutions have been permitted the intake of maximum number of students mentioned in the letter of recognition granted by the National Council for Teachers Education and they are strictly abiding by the aforesaid maximum number fixed by the National Council for Teachers Education which is 100 as of date.
The issue now remains as to who is the competent authority to determine the percentage of the Management quota seats qua the said maximum intake permitted by the N.C.T.E.. In that regard it is also an admitted position that no Government notification has. been issued under Section 28 (5) (b) of the State Universities Act providing for the percentage of Management quota seats. As a matter of fact the State Government has not exercised its powers under Section 28 (5) (b) of the State Universities Act nor the Government Order dated 9.9.2004 has any reference to Section 28 (5) of the Act. Thus the issue which now survives is as to whether the Government Order dated 9.9.2004 issued by the State Government has any binding effect upon the petitioners institutions and the University or not. Having regard to the terms and conditions of the recognition granted by the National Council for Teachers Education read with Regulations framed thereunder , (referred to above) it is' apparently clear that all the institutions are under obligation to provide admission to the students in accordance with the policy decision of the State Government or of the University, as the case may be. Universities being the creature of Statute have to Act strictly within the fore comers of the Statute under which they have been created i.e. the State Universities Act, 1973. The Universities cannot pass order or frame policy in respect of the subject matter which are outside its competence under the State Universities Act. Since in respect of admissions to B.Ed. Course the University has no authority of law to frame any policy or to issue orders in view of Section 28 (5) (b) of the State Universities Act, the only competent authority for the said purpose is the State Government and it alone can formulate a policy in that regard. A combined reading of Section 28 (5) (b) of the State Universities Act and the Regulation framed under the N.C.T.E. Act would establish that admission to B.Ed, courses are to be granted in terms of the policy decision of the State Government subject to the maximum number fixed by the N.C.T.E. The State Government in fact has framed its policy as is borne out from the Government Order dated 9.9.2004. Under the provisions of the Regulations framed by the N.C.T.E. it is not necessary that the said policy decision of the State Government be published in the Official Gazette and therefore, issuance of the Government Order dated 9.9.2004 is sufficient compliance of the Regulations framed by the N.C.T.E. so far as it lays down in the quota of Management seats and the procedure for such admission. In the opinion of the Court the Government Order dated 9.9.2004 is directly referable to the Regulations framed under the NCTE Act and as such the Government Order dated 9.9.2004 is binding upon both--the petitioners as well as the examining body (the University). The State Government alone is competent to determine the Management quota seats and the manner of admission to B.Ed. Course of such students. Having determined the same vide Government Order dated 9.9.2004 the University and the petitioners are under . legal obligation to carry out the said policy decision of the State Government in letter and spirit. Simultaneous the State Government has also to ensure that necessary candidates (85%) are made available to the un-aided non-minority professional institutions on the basis of the entrance examination conducted by its agency (University) and in no case the State Government should permit the seats within 85% quota to go waste because of non-availability of suitable candidates. The State Government must necessarily make suitable provisions to guard against such a situation.
Issue (c) and (d):
The Government Order. dated 9.9.2004 is referable to the Regulations framed by the National Council for Teachers Education published in the Official Gazette dated 3.9.2001. For deciding the issue as to whether the fixation of 15% Management quota is violative of the judgments of the Hon'ble Supreme Court it would be appropriate to refer to the judgment and orders of the Hon'ble Supreme Court which have been relied upon by the petitioners in support of their contention. In para 12 of the writ petition the petitioner has reproduced Para 17 of the judgment of the Hon'ble Supreme Court in the case of Islamic Academy (supra) on the basis whereof it is stated that for each minority and non-minority un-aided professional college the quota for the students to be admitted by the Management shall be separately fixed on the basis of their need by the respective Government. It is submitted that the State Government has till date not separately fixed the quota for each minority and non-minority un-aided professional college and therefore, there has been non-compliance of the directions of the Hon'ble Supreme Court in Islamic Academy case (supra). It is further submitted that for current session 2004-05 the arrangement of 50% of Management quota seats be permitted to be continued and the same should not be disturbed inasmuch as the under the directions of the Hon'ble Supreme Court in the case of Islamic Academy (supra) the State Government has yet not determined the quota separately for each institution. The petitioners further placed reliance upon the judgment of this Court in the case of Maa Sharda Maha Vidyalaya v. State of U.P. and Ors. (supra) on the strength whereof it is stated that since the State Government has failed to carry out the directions issued in Para 27 of the said judgment and there being no change in the fact situation the same arrangement of 50-50% has to be continued for the academic session 2004-05 also.
Lastly the petitioners submitted that the Hon'ble Supreme Court in Writ Petition No. 26 of 2004, Modern Dental Collegte v. State of Madhya Pradesh and Ors., vide judgment and Order dated 10.8.2004 [Reported in (2005) 1 UPLBEC 251 (SC)] and vide Order dated 15.7.2004 passed in Special Leave Petition (C) 9935 of 2004, W.P. No. 276/2004, P.A.- Inamdar and Ors. v. State of Maharashtra and Ors., has interpreted the words 'their need' as mentioned in para 21 of the judgment in Islamic Academy case (supra) to mean the need of individual institution and not of the State. In such circumstances the Hon'ble Supreme Court itself has provided that the seats shall be filled up by the un-aided private institutions in the ratio of 50:50.
On behalf of the State authorities it is submitted that the aforesaid contention raised on behalf of the petitioners is based on misreading of the judgment of the Hon'ble Supreme Court as well as the directions issued by this Court in the case of Maa Sharda Maha Vidyalaya (supra) which have since been affirmed by a Division Bench of this Court in the case of U.P. B. Ed. Prashikshak Sangh v. State of U.P. and Ors. (Special Appeal No. 328 of 2004), reported in (2004) 1 UPLBEC 509. It is submitted that in view of the aforesaid judgments the power of the State Government to determine the quota of Management scats has been recognized and accepted by the Hon'ble Supreme Court, the only stipulation provided is that the aggrieved institutions may approach the Committee constituted under the judgment of the Supreme Court in Islamic Academy case (supra) in case the quota so fixed by the State Government is inadequate. It is submitted that the State Government has already constituted a Committee with retired Judge of the High Court as its Chairman vide Notification dated 20.2.2004 and in such circumstances the petitioners if aggrieved against the fixation of quota by the Government Order dated 9.9:2004, may approach the said Committee. To appreciate the contentions raised on behalf of the parties it would be necessary to reproduce the relevant paragraphs 13, 14 and 19 of the judgment in Islamic-Academy Case (supra), wherein the directions given by the Hon'ble Supreme Court in T.M.A. Pai's case (supra) have been interpreted. The relevant paragraphs 13, 14 and 19 of the aforesaid judgment (in Islamic Academy Case) read as follows:--
'13. Undoubtedly, the majority judgment makes a distinction between private unaided professional colleges and other educational institutions i.e. schools and undergraduate colleges. The sub-heading 'Private unaided professional colleges' includes both minority as well as non-minority professional colleges. This is also clear from a reading of paragraph 68. It appears to us that this distinction has been made (between private unaided professional colleges and other educational institutions) as the judgment recognizes that it is in national interest to have good and efficient professionals. The judgment provides that national interest would prevail, even over minority rights. It is for this reason that in professional colleges, both minority and non-minority, merit has been made the criterion for admission. However, a proper reading of paragraph 68 indicates that ,a further distinction has been made between minority and non-minority professional colleges. It is provided that in cases of non-minority professional colleges 'a certain percentage of seats' can be reserved for admission by the Management. The rest have to be filled up on the basis of counselling by State agencies. The prescription of percentage has to be done by the Government according to local needs. Keeping this in mind provisions have to made for the poorer and backward sections of the society. It must be remembered that, so far as medical colleges are concerned, an essentiality certificate has to be obtained before the college can be set up. It cannot be denied that whilst issuing the essentially certificate the respective State Governments take into consideration the local needs. These aspects have been highlighted in a recent decision of this Court in State of Maharashtra v. Indian Medical Assn., (2002) 1 SCC 589. Whilst granting the essentially certificate the State Government undertakes to take over the obligations of the private educational institutions in the event of that institution becoming incapable of setting of the institution or imparting education therein. A reading of paragraphs 59 and 68 shows that in non-minority professional colleges admission of students, other than the percentage given to the Management, can only be on the basis of merit as per the common entrance tests conducted by Government agencies. The manner in which the percentage given to the Management can be filled in is set out hereinafter.
14. Paragraph 68 provides that a different percentage can be prescribed for unaided minority institutions. That the same yardstick cannot be applied to both minority and non-minority professional colleges is also clear from the fact that paragraph 68 also falls under the main heading :'In case of' private institutions, can there be Government regulations and, if so, to what extent?' Paragraph 47, which is one of the first paragraphs under this heading, inter alia provides as follows : (SCC p. 542)
'It is appropriate to first deal with the case of private unaided institutions and private aided institutions that are not administered by linguistic or religious minorities. Regulations that can be framed relating to minority institutions will be considered while examining the merit and effect of Article 30 of the Constitution.' Whilst discussing Article 30 under the heading 'To what extent can the rights of aided private minority institutions to administer be regulated : reliance has been placed,. in the majority judgment, on previous judgments in the case of Kerala Education Bill, 1957, AIR 1958 SC 956 : 1959 SCR 995, Sidhajbhai v. State of Gujarat, (1963) 3 SCR 837 : AIR 1963 SC 540, Rev, Father W. Proost v. State of Bihar, AIR 1969 SC 465, State of Kerala v. Very Rev. Mother Provincial, (1970) 2 SCC 417 and Ahmedabadd St. Xavier's College Society v. Slate of Gujarat, (1974) 1 SCC 717 ; (1975) 1 SCR 173. All these cases have recognized and upheld the rights of minorities under Article 30. These cases have held that in the guise of regulations, rights under Article 30 cannot be abrogated. It has been held, even in respect of aided minority institutions that they must have full autonomy in administration of that institution. It has been held that the right to administer includes the right to admit students of their own community/language. Thus an unaided minority professional college cannot be in a worse position that an aided minority professional college. It is for this reason that Paragraph 68 provides that a different percentage can be fixed for unaided minority professional colleges. The expression 'different percentage for minority professional institutions' carries a different meaning than the expression 'certain percentage for unaided professional colleges'. In fixing the percentage for unaided minority professional colleges the State must keep in mind, apart from local needs, the interest/need of that community in the Slate. The need of that community in the State, would be paramount vis-a-vis the local needs.
'19. We now direct that the respective State Governments, do appoint a permanent Committee which will ensure that the tests conducted by the association of colleges is fair and transparent. For each State a separate Committee shall be formed. The Committee would be headed by a retired Judge of the High Court. The Judge is to be nominated by the Chief Justice of that State. The other member, to be nominated by the Judge, would be a doctor and an engineer of eminence (depending on whether the institution is Medical or Technical Education, as the case may be, shall also be a member and Act as the Secretary of the Committee. The Committee will be free to nominate-co-opt an independent person of repute in the field of education as well as one of the Vice-Chancellors of the University in that State so that the total number of persons on the Committee do not exceed five. The Committee shall have powers to oversee the tests to be conducted by the associatoin. This would include the power to fall for the proposed question paper(s), to know the names of paper-setters and examiners and to check the method adopted to ensure papers are not leaked. The Committee shall supervise and ensure that the test is conducted in a fair and transparent manner. The Committee shall have the power to permit an institution, which has been established and which has been permitted to adopt its own admission procedure for the last, at least, 25 years, to adopt its own admission procedure and if the Committee feels that the needs of such an institute are genuine, to admit, students of their community, in excess of the quota allotted to them by the State Government. Before exempting any institute or varying in percentage of quota fixed by the State, the State Government must be heard before the Committee. It is clarified that different percentage of quota for students to be admitted by the Management in each minority or non-minority unaided professional college(s) shall be separately fixed on the basis of their need by the respective State Governments and in case of any dispute as regards fixation of percentage of quota, it will be open to the Management to approach the Committee. It is also clarified that no institute, which has not been established and which has not followed its own admission procedure for the last, at least 25 years, shall be permitted to apply for or be granted exemption from admitting students in the manner set out hereinabove.'
The judgment of the Hon'ble Supreme Court in the case of Modern Dental College (supra) is only an interim direction and in the last paragraph it has been specifically mentioned as follows:--
'The view expressed by us are prima facie for making interim arrangements.'
The judgment in the case of Brahmo Samaj Education Society v. State of West. Bengal and Ors., 2004 (5) SCALE (sic), was in respect of the appointment of teachers and as such is clearly distinguishable on the facts of the case with regard to the issue which is under consideration before this Court. Similarly the judgment relied upon by the petitioner in Special Leave Petition No. 992 of 2004, dated 24.7.2004 is also an interim order passed on prima facie satisfaction of the Hon'ble Supreme Court- The relevant paragraph 27 of the judgment in the case of Maa Sharda Maha Vidyalaya (supra) which has since been confirmed by the Division Bench of this Court is being quoted below:--
'27. Before parting with this case, in view of the inaction of the State Government in the matter, certain further directions although not prayed for, are also required to be issued. As has already been mentioned above, the State Government has not filed a counter affidavit and as such it is not clear as to what is their progress with regard to the setting up of the Committee as directed by the Apex Court in Mamie Academy case. Learned Standing Counsel has also not been able to provide any information or assistance in this regard as he states that he has not received any instructions in this matter. This further directions are required to be issued to the State of U.P. to comply with the directions issued by the Apex Court in Islamic Academy case with regard to setting up of the two Committee for having control over the private educational institution with regard to fee charged by them and for regulating the procedure for filling up the seats of Management quota. As such, in order that for the Academic Session 2004-05 and thereafter, no such issues or disputes may come up, as has already been laid by the Supreme Court in the Islamic Academy Case, it is directed that the State of U.P. shall take immediate steps for setting up two Committees and also comply with the other directions given therein, as expeditiously as possible, preferably by 15th April, 2004.'
From the aforesaid judgments in the opinion of the Court it is settled that the power to determine the quota in respect of unaided non-minority professional colleges vests with the State Government exclusively. The State Government has constituted the Committee headed by a retired High Court Judge as has been directed in the judgment and order of the Hon'ble Supreme Court in the case of Islamic Academy (supra). However, the power conferred upon the said Committee to revise the quota of the Management seats is confined to the disputes which may be raised by the particular institution having regard to their peculiar needs by questioning the quota fixed by the State Government. Thus, in the opinion of the Court, if the petitioners are not satisfied with the quota fixed by the State Government vide order dated 9.9.2004 it is always open to the petitioners to approach the Committee constituted vide Government Order dated 20.2.2004 and the objections so filed by the particular institution would be adjudicated upon by the said Committee having regard to their peculiar needs. In view of the aforesaid the contention raised on behalf of the petitioners that the State Government has yet not determined the qutoa in respect of every institution separately is totally misconceived. The determination of the quota of Management seats under the aforesaid judgment of the Hon'ble Supreme Court is to be done by the State Government only having regard to the local requirements and other conditions. The State Government has fixed 15% quota for Management seats for private unaided majority institutions in respect of B.Ed, course, challenge to such fixation on the basis of individual needs of the institutions can only be made before the Committee constituted under the Government Order dated 20.2.2004.
At this stage reference may also be had to the fact that by Government Order dated 2.7.2003 that State Government has taken a decision that so long as the Committee of Justice P.K. Sareen (retired) does not determine the fees in respect of particular category of seats i.e the different categories of seats, namely paid seats, Management quota seats and N.R.I, seats, there shall be uniform rate of fees in respect of all the category of students. By the Government Order dated 2.7.2003 the State Government has also fixed the amount of uniform fees which an institution is entitled irrespective of the nature of the seat against which the student has been admitted till the fee payable in respect of different category of seat is fixed by the Committee with Justice P.K. Sharma (retired) as Chairman.
This as of date, is wholly immaterial (so far as collection of fees is concerned), whether the student is admitted through entrance examination conducted by the University or by the institution itself on the basis of marks obtained in the qualifying examinations. The State Government has fixed the Management quota vide Government Order dated 9.9.2004 and vide Government Order dated 20.2.2004, It has constituted the Committee as directed by the Hon'ble Supreme Court in the case of Islamic Academy (supra), and has, therefore, carried out the directions issued by this Court in the case of Maa Sharda Maha Vidyalaya (supra), (the operative portion whereof has already been reproduced above). The petitioners as such are not correct in stating that the factual situation has remained unchanged even after the directions of this Court in the case of Maa Sharda (supra) and therefore the petitioners cannot claim that the interim arrangement made for the year 2003-04 be permitted for the year 2004-05 also.
So far as the challenge made to the Government Order dated 9.9.2004 on the ground of violation of Article 14 is concerned no material facts have been placed on record of this petition for justifying the aforesaid contention. Even otherwise the Hon'ble Supreme Court in the case of Modern Dental College (supra) had accepted fixation of 15% Management quota seats in respect of Engineering Colleges by the State Government of Madhya Pradesh as fair. It is also worthwhile to keep in mind that the cost and expenditure incurred by an institution for establishing a Medical College or Engineering College is many more times than the cost and expenditure incurred by a body establishing a Teachers Training College (B.Ed.). The difference can be gauged by one factum only that for establishing an Engineering College a person is required to pleadge a sum of Rs. 50 lacs in the form of F.D.R. while in the case of a person establishing a College for Teachers Education (B.Ed.) the amount to be pleadged with the National Council for Teachers Education is only Rs. 5 lacs. The said difference is irrespective of the amount of other expenditure incurred with regard to building, labs and other infracture.
Issue (e):
So far as the last contention raised on behalf of the petitioners is concerned it revolves around the issue as to how the Management quota seats are to be filled. From the Regulations which have been framed by the National Council for Teachers Education referred to hereinabove it is apparently clear that the National Council for Teachers Education has recognized one of the mades of admission of the students on the basis of merit (i.e. to Judge on the basis of the marks secured in the qualifying examination i.e. B.A,, B.Sc., B.Com in the facts of this case). Further such a mode has also been recognized by the Hon'ble Supreme Court in T.M. Pai's case (supra) as one of the safe modes for judging the merit of the student. In support of the aforesaid, reference may be had to the judgment of this Court in Civil Misc. Writ Petition No, 32366 of 2004 (Welfare Association of Self Financed Institutes and Ors. v. State of Uttar Pradesh and Ors.) decided in September, 2004.
From paragraphs 58 and 59 of T.M.A. Pai's case it is apparently clear that the Hon'ble Supreme Court has specifically held that admission to professional courses should be strictly merit-based. Merit is usually determined, for admission to professional and higher education college;, by (a) marks that the student obtains at the qualifying examination or school leaving certificate stage followed by the interview, (b) by a common entrance test conducted by the institution and (c) in the case of professional colleges entrance examination conducted by Government agencies.
In Paragraph 68 of the said judgment the Hon'ble Supreme Court further held that it must be borne in mind that unaided professional institutions are entitled to autonomy in their administration while, at the same time, they do not forgo or discard the principle of merit. It would, therefore, be permissible for the University or the Government at the time of granting recognition, to require a private unaided institution to provide for merit-based selection while, at the same time, giving the Management sufficient discretion in admitting students and thereafter the Hon'ble Supreme Court proceeded to suggest that one of the mode, for judging the merit-based selection, would be the common entrance test held by institutions.
The Hon'ble Supreme Court in T.M.A. Pai's case has emphasized that the admission in professional courses should be on merit based selection, which has also been reiterated by the Hon'ble Supreme Court in the case of Islamic Academy, Thus, the basic principle underlying the method of admission to professional courses is that the admission must be on the basis of merit. The marks obtained by a candidate in the qualifying examination (B.A., B.Sc., B. Com/equivalent examination) is also one of the recognized and established mode for judging the merit of student for the purpose of admission to higher classes.
The said mode of admission (on the basis of marks obtained in the qualifying examination) has been accepted by the State of U.P, to be one of the valid modes for granting admission to the students in Private Unaided Professional Colleges. Reference--(i) Government Order dated 26th July, 2004 whereby the seats within the State quota (85%) which remains vacant even after councilling, have been permitted to be filled by Private Unaided Professional Institutions on the basis of the marks obtained in the qualifying examination (Class-XII/equivalent examination), (ii) Government Order dated 9th July, 2004 whereby unaided Medical Colleges have been permitted to admit students on the basis of merit in qualifying examination against Management quota seats.
The Hon'ble Supreme Court itself, in its order dated 10th August, 2004 passed in Modern Dental College and Ors. v. State of M.P. and Ors., reported in (2005) 1 UPLBEC 251 (SC), has observed that there is a serious issue involving interpretation of the judgment of Hon'ble Supreme Court in the cases of T.M.A. Pai and Islamic Academy, which required to be resolved by a Larger Bench and thereafter the Hon'ble Supreme Court has proceeded to grant an interim order providing for admission in unaided professional institutions on the basis of merit in qualifying examination. For ready reference-the observations made by the Hon'ble Supreme Court Writ Petition (Civil) No. 261/2004, Modern Dental College & Res. Inst. and Ors. v. State of M.P, and Anr., Reported in (2005) 1 UPLBEC 251 (SC), are being reproduced herein below:--
'Having regard to the totality of the circumstances and the law laid down by this Court in T.M.A. Pai Foundation case, we are of the view that the suggestion on behalf of the Colleges that the Management quota sets shall be allowed to be filled on the basis of marks obtained in CBSE/equivalent Board Exams deserves to be accepted. It will give a wider choice to the Management of the Colleges. We, however, make it clear that those who may have taken PMT/PET but are otherwise eligible to be admitted in Management quota on the basis of the marks obtained by them in CBSE/equivalent Board Exams would be granted admission in Management quota if otherwise they are so eligible. The respondents if so advised, may send the list of such candidates to the respective colleges,'
Having regard to the aforesaid settled legal position admission on the basis of merit secured in the entrance examination is also one of the safe criteria for admission. In view of the aforesaid the direction issued by the University vide letter dated 9.9.2004 providing for Management quota seats to be filled from students who have appeared in the entrance examination conducted by the University without reference to the marks secured in the same is patently arbitrary and has the effect of depriving the Management of its right to grant admission on the basis of a method validly recognized as one of the modes by the N.C.T.E. The order of the University dated 10.8.2004 is not justified nor the same is in accordance with the Regulations framed by the National Council for Teachers Education. Even otherwise if the aforesaid condition as imposed by the University is permitted, to stand it would necessarily mean that all the 100% seats shall be filled by the entrance examination conducted by the University. The very purpose of providing Management quota seats would be frustrated, if the seats of Management quota also, are directed to be filled through entrance examination conducted by the University alone. It takes away the right of the Management to admit students for maintaining its academic and financial discipline, which have been recognized as one of the rights guaranteed under Article 19(1)(g) of the Constitution of India in respect of establishment of unaided private non-minority institutions. Reference Paras 50 and 65 of T.M. Pai's case which are quoted below:---
'50. The right to establish and administer broadly comprises the following rights:
(a) to admit students'
(b) to set up a reasonable fee structure;
(c) to constitute a governing body;
(d) to appoint staff (teaching and non-teaching); and
(e) to take action if there is dereliction of duty on the part of any employees.
65. The reputation of an educational institution is established by the quality of its faculty and students, and the educational and other facilities that the college has to offer. The private educational institutions have a personality of their own, and in order to maintain their atmosphere and traditions, it is but necessary that they must have the right to choose and select the students who can be admitted to their courses of studies.'
16. In such circumstances the directions contained in the order of the University dated 10.9.2004 to the effect that the Management quota seats shall be filled on the basis of the entrance examination conducted by the University cannot be legally sustained and is quashed.
17. The writ petitions are disposed of with the following directions:--
(a) Management quota seats in respect of the petitioners institutions shall be strictly in accordance with the Government Order dated 9.9.2004 i.e. 15% only.
(b) The parties shall ensure that the Government Order dated 9.9.2004 determining the Management quota seats i.e. 15% is carried out by all affiliated colleges in letter and spirit and all contrary directions issued by any University in State of Uttar Pradesh are withdrawn and revoked in the light of the order of the State Government dated 9.9.2004 and correspondingly the State Government shall ensure that necessary number of students are made available to un-aided non-minority professional institutions on the basis of the entrance examination conducted by its agency (University) and in no case the institution should be made to suffer because of non-availability of suitable candidates within 85% quota in pursuance of the said entrance examination. The State Government must make necessary provisions to safeguard against such a situation.
(c) If any institution is aggrieved by fixation of the Management quota seats it may approach the Committee constituted under Government Order dated 20.2.2004 and it is hoped that the said Committee shall consider the grievances of the aggrieved institution and shall pass orders at the earliest possible.
(d) The Management quota seats to the extent of 15% shall be filled by the Management of the respective colleges on the basis of any of the three modes of admission as recognized by the Hon'ble Supreme Court in T.M. Pai's case (supra) including the manner of judging the merit on the basis of the marks secured in the qualifying examination.