Writ Petition Ld. No.1422 of 2004,Writ Petition Ld. No.1426 of 2004,Writ Petition Ld. No.1425 of 2004,Writ Petition Ld. No.1403 of 2004,Writ Petition Ld. No.1404 of 2004

7th May, 2004

Petitioner Counsel: Mr. C.J. SAWANT,Ms. S.T.SHAIKH,S. K. Srivastava & Co.
Respondent Counsel: Mr. A. KUMBHAKONI,Ms. A. KALYANRAM

Cases Cited:
Islamic Academy of Education Vs. State of Karnataka, (2003)6 SCC 697 [Para 2,3,8,15]
T.M.A. Pai Foundation Vs. State of Karnataka, (2002)8 SCC 481 [Para 3]

JUDGMENT

Dr. D. Y. CHANDRACHUD, J.:- Rule, returnable forthwith. Counsel for the Respondents waive service. By consent taken up for hearing and final disposal.

2. In this batch of matters under Article 226 of the Constitution of India, three questions of law arise for adjudication, based on the submissions which have been urged by Counsel for the Petitioners before the Court :

(1) Whether a separate Common Entrance Test can be permitted to be held for a professional course by an Association purporting to represent institutions conducted and managed by a religious or linguistic minority;

(2) Whether a separate Common Entrance Test can be permitted to be held in the state by an Association representing Unani Medical Colleges in the State;

(3) Whether the Committee constituted in pursuance of the judgment of the Supreme Court in Islamic Academy of Education Vs. State of Karnataka, (2003)6 SCC 697 is correct in holding that it has no jurisdiction to entertain a dispute raised before it in regard to the quota prescribed by the State for admissions to be made by minority-run educational institutions from amongst students of their own community.

3. Each of these questions which arises before the Court in this batch of matters turns upon the judgment of the Supreme Court in T.M.A. Pai Foundation Vs. State of Karnataka, (2002)8 SCC 481, which has been explained and construed by a judgment of a Constitution Bench in Islamic Academy of Education Vs. State of Karnataka, (2003)6 SCC 697. The Constitution Bench in Islamic Academy of Education (Supra) has set out in the opening paragraph of the judgment that after the decision that was rendered in T.M.A. Pai Foundation on 31st October, 2002, the Union of India, State Governments and educational institutions "understood the majority judgment in different perspectives". Various State Governments enacted their own regulations which led to litigation in several Courts. The Constitution Bench was constituted so that the doubt/anamolies, if any, could be clarified. We must, therefore, at the outset, begin this judgment with the basic premise that the judgment of the Supreme Court in T.M.A. Pai Foundation has now been duly considered and interpreted by the subsequent Constitution Bench in Islamic Academy of Education. The decision of the Constitution Bench resolves doubts and anomalies which had arisen out of conflicting interpretations sought to be placed by diverse State Governments, by educational institutions and by the Union of India, on the earlier decision. The answer which we must furnish to the issues which have been raised before this Court, must be consistent with the law which has been laid down by the Supreme Court. Moreover, the determination by this Court of the issues which have been framed earlier must be consistent with the perspective and the precepts which form the basis of the judgment of the Supreme Court in Islamic Academy of Education. Our endeavour must, therefore, be to formulate a solution which is consistent with the letter and spirit of the judgment of the Supreme Court in all respects. The institutions and, perhaps more importantly, the students must have a degree of certainty in respect of the academic year which is now close at hand.

4. In its decision in Islamic Academy of Education, the Supreme Court formulated four questions for determination; these being areas in which the interpretation of the earlier decision in T.M.A. Pai Foundation was in issue. The four questions were as follows :

"(1) Whether the educational institutions are entitled to fix their own fee structure;

(2) Whether minority and non-minority educational institutions stand on the same footing and have the same rights;

(3) Whether private unaided professional colleges are entitled to fill in their seats, to the extent of 100%, and if not, to what extent; and

(4) Whether private unaided professional colleges are entitled to admit students by evolving their own method of admission."

5. Of these issues, we are concerned primarily with the second, third and the fourth issue. In so far as the second issue is concerned, the judgment of the Supreme Court in Islamic Academy of Education specifically holds that the rights of minority educational institutions and those of non-minority institutions cannot be equated. Institutions established by religious or linguistic minorities are entitled to the protection of Article 30 of the Constitution, a protection which is not otherwise afforded to institutions that are conducted by non-minority managements. Construing its earlier judgments, the Supreme Court held thus :

"We do not read these paragraphs to mean that non-minority educational institutions would have the same rights as those conferred on minority educational institutions by Article 30 of the Constitution of India. Non-minority educational institutions do not have the protection of Article 30. Thus, in certain matters they cannot and do not stand on a similar footing as minority educational institutions. Even though the principle behind Article 30 is to ensure that the minorities are protected and are given an equal treatment yet the special right given under Article 30 does give them certain advantages. Just to take a few examples, the Government may decide to nationalise education. In that case it may be enacted that private educational institutions will not be permitted. Non-minority educational institutions may become bound by such an enactment. However, the right given under Article 30 to minorities cannot be done away with and the minorities will still have a fundamental right to establish and administer educational institutions of their choice. Similarly, even though the Government may have a right to take over management of a non-minority educational institution, the management of a minority educational institution cannot be taken over because of the protection given under Article 30. Of course, we must not be understood to mean that even in national interest a minority institute cannot be closed down. Further, minority educational institutions have preferential right to admit students of their own community/language. No such rights exist so far as non-minority educational institutions are concerned." (emphasis supplied)

In so far as the admission of students is concerned, the judgment of the Constitution Bench lays down that minority educational institutions have a preferential right to admit students of their own community/language. Such a right does not exist in so far as non-minority institutions are concerned. The right under Article 30 of the Constitution, therefore, extends to the admissions which an educational institution established and conducted by a religious or linguistic minority has to admit students, albeit to a certain extent, from its own community.

6. While answering the third and fourth issue, the Constitution Bench in Islamic Academy of Education considered the effect of paragraph 68 of the earlier judgment in T.M.A. Pai Foundation. The Constitution Bench reaffirmed the principle which was laid down in T.M.A. Pai Foundation that Private Unaided Professional Colleges include both minority and non-minority Colleges and that a distinction has been made between Private Unaided Professional Colleges and other Educational Institutions. That is because the judgment recognises that it is in the national interest to have good and efficient professionals. National interest, it has been held, would prevail even over minority rights. Consequently, both in minority and non-minority professional Colleges, merit has to be the criteria for admissions. However, a further distinction is made between minority and non-minority professional Colleges. In the case of non-minority professional Colleges, a certain percentage of seats can be reserved by the management while the rest have to be filled up on the basis of counselling by the State agencies. The prescription of percentage has to be done by the Government according to local needs. Provisions have to be made for the poorer and backward sections of the society. In non-minority professional Colleges, admissions of students other than the percentage given to the management can only be on the basis of merit in accordance with the Common Entrance Test conducted by Government agencies. On the other hand, in the case of unaided minority professional Colleges while fixing the percentage of students that the State may allow to be filled up by the management, the State must keep in mind, apart from the local needs, the interest/needs of that community in the State. The need of that community in the State would be paramount vis-a-vis local needs. This distinction between minority and non-minority professional Colleges is warranted having regard to the need to ensure full autonomy in the administration of minority institutions under Article 30 of the Constitution.

7. The decision of the Supreme court in Islamic Academy of Education considers and decides the question "as to how the management of both minority and non-minority professional Colleges can admit students in the quota allotted to them". The Court noted, at the outset, that the minority judgment in T.M.A. Pai Foundation has taken note of the stark reality that a large number of professional Colleges were resorting to profiteering and to capitation fees to the detriment of students. This is antithetical to the principle underlying the grant of admissions purely on the basis of merit. The Supreme Court considered whether it would be permissible for different institutions to hold their own entrance test. The judgment of the Supreme Court is categorical in answering that question in the negative. The Supreme Court held thus :

"As has been rightly submitted, it is impossible to control profiteering/charging of capitation fees unless it is ensured that admission is on the basis of merit. Also, as has been rightly pointed out, if a student is required to appear at more than one entrance test it would lead to great hardship. The application fees charged by each institute, even though they maybe only Rs.500 to Rs.1000 for each institute, would impose a heavy burden on the students who will necessarily have to apply to a number of colleges. Further, as has been rightly pointed out, students would have to arrange for transport from and to and stay at various places if they have to appear for individual tests conducted by each college. If a student has to go for test to each institute it is possible that he/she may not be able to reach, in time, the venue of a test of a particular institute. In our view what is necessary is a practical approach keeping in mind the need for a merit-based selection." Paragraph 68 provides that admission by the management can be by a common entrance test held by "itself or by the State/University". The words "Common entrance test" clearly indicate that each institute cannot hold a separate test. We thus hold that the management could select students, of their quota, either on the basis of the common entrance test conducted by the State or on the basis of a common entrance test to be conducted by an association of all colleges of a particular type in that State e.g. medical, engineering or technical etc. The common entrance test, held by the association, must be for admission to all colleges of that type in the State. The option of choosing, between either of these tests, must be exercised before issuing of prospectus and after intimation to the concerned authority and the Committee set up hereinafter. If any professional college chooses not to admit from the common entrace test conducted by the association then that college must necessarily admit from the common entrance test conducted by the State. After holding the common entrance test and declaration of results the merit list will immediately be placed on the notice board of all colleges which have chosen to admit as per this test. A copy of the merit list will also be forthwith sent to the concerned authority and the Committee. Selection of students must then be strictly on the basis of merit as per that merit list. Of course, as indicated earlier, minority colleges will be entitled to fill up their quota with their own students on the basis of inter se merit amongst those students." (emphasis supplied).

8. At this stage, it would be material to note that the only exception which has been made by the Supreme Court is in paragraph 17 of its judgment in Islamic Academy of Education (supra). That exception is in respect of institutions who have had their own admissions procedure for atleast 25 years and who have been found to admit students on the basis of fairness and transparency without complaint. The Supreme Court noted that the case of these institutions is based not only on the right flowing from Article 30(1) of the Constitution, but that in addition they have some special features requiring them to be permitted to grant admission in the same manner in which they have in the last several decades. Certain specific instances have been set out in the judgment of the Supreme Court and these are; Christian Medical College, Vellore, St. John's Hospital and Islamic Academy of Education.

9. The judgment of the Constitution Bench in Islamic Academy of Education directs the constitution of a permanent committee to ensure that the test which is conducted by an association of colleges is fair and transparent. The Committee is presided over by a retired Judge of the High Court and is to consist of another member to be nominated by the Judge. The other member of the Committee is either a doctor or an engineer depending upon the branch of education. The Committee is empowered to co-opt an independent person of repute in the field of education as well as a Vice Chancellor of a university in the State. The function of the Committee is to oversee the tests that are conducted by the association. The Committee is similarly empowered to permit an institution with an established admissions procedure of atleast 25 years to continue to do so subject to verification by the committee. One of the functions of the committee is to resolve disputes that may arise in regard to the fixation of the percentage that is allowed by the State Government in respect of the extent of admissions to be granted by managements of minority and non-minority unaided professional colleges. In that regard the Court held thus :

"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."

10. Now it is in the light of these observations and the law laid down by the Supreme Court that we proceed to deal with the issues which arise in the individual writ petitions before us. The first issue has been raised initially in Writ Petition (Lodg.) No.1422 of 2004 which has been instituted by the 'Forum of Minority Management Institutions'. This Forum has stated in its application of 2nd March, 2004 to the Committee that representatives of 'minority management institutions' affiliated to the University of Mumbai have formed the Forum. The State Government has placed before us material to indicate that there are 90 MBA/MMS colleges in the State, out of which 81 are unaided, 23 are affiliated to the University of Mumbai, out of which 21 are unaided. The Forum which has moved the Court states that it represents nine minority run colleges affiliated to the University of Mumbai. The Committee has rejected the application of the Forum for being permitted to hold a separate C.E.T. It is the correctness of this finding which has been impugned in the proceedings before the Court.

11. In our view, the application that was filed by the Forum (the Petitioner in Writ Petition (Lodg.) No.1422 of 2004) was liable to be rejected on the basis of the averments that were made in the application itself. The Forum, it must be emphasized does not represent all the colleges in the State of Maharashtra imparting education in management courses. For that matter, it does not even represent all the colleges which are affiliated to the University of Mumbai. The Forum purports to represent 9 minority run colleges affiliated to the University of Mumbai who are conducting the MMS course. In our view, it is impermissible, having regard to the law which has been laid down in paragraph 16 of the judgment of the Supreme Court in Islamic Academy of Education to allow an association which does not represent "all colleges of a particular type in that State" to conduct a Common Entrance Test. The fundamental basis which has weighed with the Supreme Court is the sheer hardship to which individual students would be put if they were burdened with having to pay the entrace fees of diverse institutions while applying for C.E.Ts. and of having to appear for tests conducted by several institutions or groups of institutions. This would result in a serious exploitation of students. It was in this background that the Supreme Court held that a C.E.T. can be permitted to be conducted by "an association of all colleges of a particular type in the State." The Supreme Court has held that the Common Entrance Test held by the association must be for admission to all colleges of that type in the State. That is evidently not the case in the aforesaid Petition. The Petition, therefore, must be rejected.

12. Writ Petition (Lodg.) No.1426 of 2004 has been instituted before the Court by an association which is styled as "the Association of Muslim Minorities Medical Educational Institutions of Maharashtra". This Association seeks to represent all the five medical colleges in the State which conduct Unani Medical Courses. In this case, the Committee constituted in pursuance of the direction of the Supreme Court has rejected the application of the Association. The association had sought to assert that (i) Unani Medical Education is of a different kind and cannot be clubbed with other medical education and (ii) the examination for these five medical colleges will be in Urdu whereas the C.E.T. which is conducted by the Government will not be in Urdu. On the other hand, it was pointed out before the Committee by the Competent Authority which conducts the C.E.T. of the State that the Government permits students to appear in the medium of Urdu also. The Committee has held that medical education must be considered as one composite category under the judgment of the Supreme Court and it would not be permissible to allow separate C.E.T.s to be held for different branches such as Modern Medicine, Dentistry, Ayurveda, Homeopathy and Unani. It is this decision which has been impugned in the proceedings before us.

13. Before we deal with the question which has been raised a few relevant facts must be set out at this stage. The Government of Maharashtra conducts one Common Entrance Test for various courses in the Health Sciences including MBBS, BDS, BAMS, BHMS, BUMS, BPTh and BOTh. A student who appears for the C.E.T is thus entitled to compete on the basis of one and the same examination for admission to all the Health Science courses. A student naturally aspires for admission to the best course, subject to his or her own preferences, and keeping with the position in the Merit List. The C.E.T. in the Health Science courses is conducted by the State Government in three languages - English, Marathi and Urdu. A student who seeks admission to the Unani course is not required necessarily to appear for the C.E.T. in Urdu. However, Clause 4.12 of the brochure published by the Government requires that a student desirous of seeking admission to the Unani course can qualify only if he or she has passed the S.S.C. or equivalent examination with Urdu as one of the subjects. The common merit list that is prepared by the Government is on the basis of the C.E.T. result irrespective of the language or medium in which the student has appeared. As a result, a student has the benefit of seeking a betterment of his own prospects in the course of counselling in the subsequent rounds of admission. For example, a student who in the first round obtains admission to the Unani course can aspire for obtaining admission even to the MBBS or BDS course against a vacant seat in subsequent rounds of admission depending upon his or her relative merit position. The State has in the circumstance one composite C.E.T. for all courses in Medical Health Sciences.

14. In so far as the unaided private dental and medical colleges in the State are concerned, the Committee which has been constituted in pursuance of the directions of the Supreme Court has permitted their Association to conduct a C.E.T. for the entire State. The Association of Management of Unaided Private Medical and Dental Colleges has thus announced that it would be conducting a C.E.T. in 2004 for admission to the MBBS, BDS, BAMS, BHMS, BPTh and BOTh courses.

15. The submission which has been urged before us is that the Association of Managements of Unaided Private Medical and Dental Colleges is not conducting a C.E.T. for admission to the Unani course and therefore, the Petitioner before the Court in Writ Petition (Lodg.) No.1426 of 2004 should be permitted to do so. We have considered the entitlement of the Petitioner to do so in the light of the law laid down by the Supreme Court in paragraph 16 of its judgment in Islamic Academy of Education (supra). The Constitution Bench of the Supreme Court has specifically ruled that the Common Entrance Test on the basis of which a management of an institution can select students should either be the Common Entrance Test conducted by the State or a Common Entrance Test "to be conducted by an association of all colleges of a particular type in that State Eg. medical, engineering or technical etc." The Supreme Court has then held that the Common Entrance Test "held by the association, must be for admission to all colleges of that type in the State". In our view, the decision of the Supreme Court clearly warrants the rejection of the plea that has been made by the Petitioner before the Court. The Association which according to the judgment of the Supreme Court may be permitted to hold a Common Entrance Test has to be an association of all colleges of a particular type in the State. The expression "particular type" is elaborated by the Supreme Court specifically by giving examples of medical, engineering and technical colleges etc. The Supreme Court has thus adverted to all colleges of a particular type and has clarified that by giving the illustration of medical, engineering and technical colleges. It would in our view be impermissible to construe the expression "medical colleges" narrowly or restrictively with reference to the education in the branch of medicine which each college will impart. If this were to be done, the entire scheme that is envisaged in the judgment of the Supreme Court, by allowing an association of all colleges of that type to hold a Common Entrance Test, will break down and be rendered nugatory. The acceptance of the submission of the Petitioner will necessarily lead to the consequence that colleges imparting education in conventional modern medicine (MBBS) may be allowed to hold a separate C.E.T through in association of such colleges; Dental Colleges, similarly, would be allowed to hold a separate C.E.T. through an association and colleges imparting medical education in other branches such as Ayurveda, Homeopathy and Unani would all be entitled to hold separate C.E.Ts. through their own associations. This would defeat the very basic purpose and object underlying the decision of the Supreme court to permit the holding of a C.E.T. by an association representing all colleges of that type in the State. A student in that case desirous of seeking admission to a medical college would have to appear for C.E.Ts. run by diverse associations representing colleges in the areas of MBBS, BDS, BAMS, BHMS, Unani etc. This will seriously prejudice the careers and lives of thousands of students and expose them to serious exploitation. On the other hand, if one association holds a composite medical entrance test for all the courses in Health Sciences, a student can aspire for competing for admission to any course depending upon his position in the merit list. The entrance test, it must be noted, is not tailor made for each different course, but is designed for admissions to Medical health sciences. Apart from this, we must have due regard to the circumstance that all the medical colleges in the State (save and except for the deemed universities) are affiliated to the Maharashtra University of Health Science, Nasik. The Unani colleges are also affiliated to MUHS. These colleges are governed by Indian Medicine Central Council Act, 1970 which defines Indian Medicine interalia to include Unani and other branches. If the argument which has been urged on behalf of the Petitioners were to be accepted then it would permit engineering colleges offering courses in a particular branch of engineering such as Electronic Engineering or Computers to hold separate C.E.Ts. in the State for admissions to that particular course through an association of such colleges. This would defeat not merely the letter, but the spirit as well, underlying the judgment of the Supreme Court. The emphasis of the Supreme Court is that an association of all medical colleges in the State imparting medical education must come together to hold a C.E.T. The interests of the students has to be paramount in regulating the procedure for admission. In so far as the managements are concerned, particularly those of the minority run professional colleges, their right extends to admitting a specified percentage of students belonging to their own community to the college. The procedure which must be adopted in effecting those admissions has to be consistent with the law laid down by the judgment of the Supreme Court in Islamic Academy of Education (supra). In the circumstances, we do not find the plea of the Petitioners in Writ Petition (Lodg.) No.1426 of 2004 to be acceptable. We reject the Petition.

16. The next Petition that we have before us is Writ Petition (Lodg.) No.1425 of 2004. The Petitioner before the Court is not an Association. The prayer in the Petition relates to M.A. Rengoonwala College of Dental Science and Research Central, which is stated to be the only minority run dental college in the State. The Committee has declined to grant permission to this College to conduct its own C.E.T.

17. In the present case, in addition to the submissions which have been urged by all the other counsel and which have already been dealt with earlier, it has been sought to be asserted that the C.E.T. which has been conducted by the Association of Managements of Unaided Private Medical and Dental Colleges is only in English. On behalf of the Petitioners, it has been sought to be contended that the Association does not conduct the C.E.T. in Urdu and therefore, the Petitioners may be allowed to do so. This submission cannot be accepted in view of the earlier discussion, and in view of the judgment of the Supreme Court in Islamic Academy of Education. However, while rejecting this Petition we wish to record that the C.E.T. which has been held by the State is also being conducted in the medium of Urdu. Therefore this is not a case where a student who has studied in the Urdu medium would be debarred from seeking admission to a dental course. We do not find any merit in the Petition which is accordingly reject.

18. Writ Petition (Ldg.) No.1403 of 2004 is instituted by a B.Ed. College, its Principal and the President. The relief which has been sought in the petition is interalia to the effect that the B.Ed. College should be permitted to hold a Common Entrance Test though "Muslim Minority B.Ed. Colleges Association in the State of Maharashtra". The Association is not before the Court. The application which was made before the Committee was not by the Association, but by the B.Ed. College. The Committee has rejected the plea holding that the Association that is contemplated in paragraph 16 of the Supreme Court's decision is an Association of all Colleges of that type in the State and that it would not therefore be permissible to allow a CET to be conducted by an Association which purports to represent minority B.Ed. Colleges. We have already dealt with this issue in the earlier part of this judgment. We no not find any infirmity in the decision of the Committee. The Association through whom the Petitioners seek permission of this Court for holding the CET is not an Association of all B.Ed. Colleges in the State. The learned Counsel appearing on behalf of the State Government has also stated before the Court that permission has been granted by the Committee to the Association of all the B.Ed. Colleges in the State i.e. Maharashtra Rajya Vinaanudan Adhyapak Mahavidyalaya Sanstha Chalak Association, Aurangabad, to hold the CET. We do not find any merit in the petition which is accordingly dismissed.

19. The third issue which has been set out at the commencement of this judgment arises in relation to a Government Resolution dated 16th February, 2002. This issue has been raised in W.P. Lodging No.1404 of 2004. By the said Government Resolution the management quota in Colleges of Education has been fixed at 20%. The Government Resolution also prescribes that 50% seats shall be reserved in private minority run Colleges of education for linguistic and religious minorities. Out of these 50% seats, 20% will be included as management quota. Aggrieved by the said Government Resolution dated 16th February, 2004, the Petitioners before the Court moved the Committee. The Committee has declined to entertain the dispute holding that it did not have jurisdiction to entertain an application for enhancement of the quota that has been fixed by the State Government for minority run professional Colleges. We are of the view that there is merit in the contention of the Petitioners that the Committee has erred in coming to the conclusion that it had no jurisdiction. The Supreme Court, in para 19 of its judgment which has been quoted in the earlier part of this judgment, has specifically ruled that in case of a dispute as regards the fixation of the percentage of the quota, it would be open to a management to approach the Committee. This includes the percentage of quota for students to be admitted by the managements in each minority or non-minority unaided professional college. In the circumstances, the Committee was clearly in error in holding that it has no jurisdiction. We are therefore of the view that the decision of the Committee (qua the Petitioners in W.P. Lodging No.1404 of 2004) will have to be set aside and the matter remanded back to the Committee for reconsidering the application/appeal filed by the Petitioners. However, while remanding the matter back to the Committee, we issue the following directions :

(i) The State Government shall produce before the Committee all the material on the basis of which it has fixed the quota for the minority community in the selection of students ;

(ii) The State Government shall in addition produce before the Committee all further material or information which may be sought by the Committee in order to arrive at its finding on the dispute;

(iii) The Committee shall furnish an opportunity of being heard to the Government as well as to the Petitioners before arriving at its conclusion on the basis of its appraisal of all the material produced before it;

(iv) The Petitioners would also be at liberty to supplement their own material in support of their plea before the Committee;

(v) In view of the fact that the next academic year is close at hand, it is necessary that the Committee disposes of the application/appeal filed by the petitioner as expeditiously as possible and in any event within a period of four weeks from today.

(vi) Writ petition Lodging No.1404 of 2004 is allowed to the extent aforesaid.

20. The Petitions are disposed of on these terms. There shall be no order as to costs.

Order accordingly.