Madras High Court
The Association Of Managements Of ... vs The State Of Tamil Nadu, Represented By ... on 24 June, 1997
Equivalent citations: (1998)2MLJ676, AIR 1998 MADRAS 34, (1997) 3 MAD LW 116, (1997) WRITLR 647, (1998) 2 MAD LJ 676, (1997) 3 CTC 76 (MAD)
Author: Shivaraj Patil
Bench: Shivaraj Patil
ORDER Shivaraj Patil, J.
1. In all these writ petitions except in W.P.Nos.7594 of 1997 and 8010 of 1997, the petitioners have challenged the G.O.Ms.No.245, Higher Education (E1) Department, dated 7.5.1997, and have sought for quashing the same. W.P.No.7594 of 1997 is filed by the Association of Managements of Private Colleges praying to issue a writ of certiorari to quash the proceedings No.Na.Ka.76222/R4/96, dated 9.4.1997 issued by the Director of Collegiate Education-respondent No. 2 in the said writ petition. W.P.No.8010 of 1997 is filed by Madurai Kamaraj and Manonmaniyam Sundaranar University Teachers' Association seeking a writ of mandamus directing the State Government to extend the said G.O.Ms.No.245, dated 7.5.1997 to all the educational institutions in Tamil Nadu whether aided or unaided self-financing colleges, in conformity with Unnikrishnan's case, viz., Unnikrishnan, J.P. and Ors. v. State of Andhra Pradesh and Ors. (1993)1 S.C.C. 645 : A.I.R. 1993 S.C. 2178. This writ petition was brought before us at the request of the learned Counsel for the petitioner when arguments in the batch of writ petitions challenging the said G.O. were going on.
2. Since the facts are not in dispute and they are also not debated before us, except relating to the allegation that the unaided private self financing institutions committed irregularities in admitting the students to the extent of 50% of the seats based on the rule of reservation, we think it is not necessary to state the facts pleaded by each one of the writ petitioners separately. Having regard to the nature of controversy raised in these writ petitions, we think it is enough to state briefly the facts which are considered necessary and relevant for the purpose of disposal of these writ petitions based on the statements made in the affidavits filed by the petitioners in support of their respective writ petitions, summarising them.
3. It appears prior to 1976 there were only two types of colleges, viz., Government and private colleges. All the private colleges were getting aid as per the Grant in Aid Code. The Tamil Nadu Private Colleges (Regulation) Act, 1976 (fort short, 'the Act') was enacted in 1976. As per Section 2(8) "private college" means a college maintained by an educational agency and approved by, or affiliated to, a university but does not include a college-
(a) established or administered or maintained by the Central Government or the Government or any local authority or any university; or
(b) giving, providing or imparting religious instruction alone, but not another instructions.
4. The Act made a further distinction as to a minority college. Section 3 of the Act states that save as otherwise expressly provided in the Act, no person shall establish any private college without the permission of the Government and except in accordance with the terms and conditions specified in such permission. Further it shall be also necessary to obtain affiliation of such colleges to University. Section 4 provides for making an application seeking permission to start a college by educational agency. Under Section 5 the Government may grant or refuse permission after considering the particulars for grant of permission and after giving opportunity to the applicant of making representation.
5. In this background the State Government issued G.O.Ms.No.858, Education, dated 15.7.1989 prescribing the procedure for giving permission for opening of unaided private Arts and Science Colleges. Before issuing of the said Government Order, admission to the private colleges, which were mostly aided colleges, was by the principals strictly applying the rule of reservation, and the admission of students was considered as a matter of internal administration in which even the Secretaries of the colleges could not interfere. Under Rule 9(5) of the Tamil Nadu Private Colleges (Regulation) Rules, (hereinafter referred to as 'the Rules') it was the exclusive responsibility of the principals concerned. The only condition in respect of admission laid down in G.O.Ms.No.858 was condition No. 9 which reads:
The private Management/Educational Agency which opens such a new unaided private college shall be allowed to admit candidates of their choice upto 50% of the number of intake of the college. The remaining 50% of the number of seats shall be filled up strictly according to the rule of reservation as prescribed by the Government from time to time.
Thus the unaided colleges from 1989 have been making admissions in accordance with the said condition and there were no problem or confusion. Wherever the Government had any doubt with regard to any particular college, the Government or the University, as the case may be, would require particulars for their verification. It is asserted that neither the Government nor the University faulted even a single college in so far as it related to admission of students.
6. All of a sudden G.O.Ms.No.245, Higher Education (E1) Department, dated 7.5.1997 (for short, the impugned G.O.) was issued wherein the State Government has directed that 50% of the seats in all the unaided colleges shall be filled from the academic year 1997-98 as per the procedure contemplated therein. In the impugned order 50% of the seats in the said colleges is made as Government quota; a selection committee is constituted consisting of;
(a) The Regional Joint Director of Collegiate Education of concerned Region ... Chairman (b) The Principal of the unaided college ... Member (c) One Principal or prescribed person belonging to Scheduled Caste/Scheduled Tribe to be nominated by the Director of Collegiate Education ... Member
The said committee shall monitor the admission procedure; the selection shall be finalised by the said committee; the committee shall prepare first list, second list, and third list; even after exhausting the three lists the colleges cannot make admission; all the additional seats, if any obtained, shall be filled up by the committee.
7. The impugned order is attacked on several grounds, viz.,
(i) The impugned order was issued very late and just prior to starting of the admissions for the academic year 1997-98 which has resulted in hardship and confusion to the students as well as the colleges even when the results of the Plus 2 examination were published on 23.5.1997;
(ii) There was no basis, reason or ground to issue the Government Order particularly when there were no complaints either generally or specific in regard to admissions in all the unaided colleges relating to 50% of the seats to be filled up applying the rule of reservation;
(iii) When a well organised machinery is available to monitor and regulate the admissions, the impugned order could not have been issued without taking the alternative steps available to the State Government as per the provisions of the Act, the Rules, and the conditions attached to the permission granted to start unaided colleges, and nothing is stated as to how alternative machinery is not available, and why the other provisions available to check on the irregularities in the matter of admissions relating to the 50% of the seats to be filled up on the basis of rule of reservation; is not spelt out.
(iv) The respondent are bound by the doctrine of promissory estoppel having regard to Rule 9(5), Condition No. 9 contained in the permission granted to start new colleges, and the agreement executed by the colleges. 50% of the seats were to be filled by the colleges of their choice, and the remaining 50% of the seats were to be filled up by applying the rule of reservation. But by the impugned order 50% of the seats are consider as Government quota and they are to be filled up by a committee constituted by the Government;
(v) The field relating to admission of students in private self-financing colleges is occupied by Rule 9(5), and condition No. 9 of G.O.Ms.No.858, dated 15.7.1989, according to which permissions were granted to start private colleges, as per Section 3 of the Act, and it was not open to issue the impugned Government Order exercising executive power;
(vi) The impugned order seriously affects the rights of the colleges in admitting needy students of the local area for whose benefit the colleges were established; it also damages the discipline, academic standards and other environmental aspects of students, as each college has got its own norms having regard to various aspects. Results of the private college students are good and distinguished because they maintain certain norms and standards unique or peculiar to their respective colleges in the -matter of admission.
(vii) When the unaided colleges were started with the laudable object of serving in the field of education by investing heavy amount, the impugned order cannot take away the very right of admission of students; the right to administer the private college includes right of admission also; when the right of admission of 50% of the seats, as per the impugned order, will be given as Government seats, to that extent it has become a Government college which cannot be permitted.
(viii) In the unaided colleges several courses are made available at great cost which courseware not available even in most of the Government colleges or aided colleges. Now by the impugned order, the Government want to take away 50% of the seats as Government quota for having done nothing.
(ix) The impugned order is arbitrary and discriminatory; it is not applied to the aided private colleges and even though they have some unaided courses in their colleges. The impugned order is violative of Article 14 of the Constitution of India for the reasons more than one. Even the unaided colleges were not heard or their views were sought before issuing the impugned order; (x) Unnikrishnan's case (1993)1 S.C.C. 645 : A.I.R. 1993 S.C. 2178, has no application to the unaided Arts and Science Colleges, and the impugned order consequently cannot be sustained; (xi) Even minority institutions are not spared; (xii) There appears to be conflict between the impugned order, the proceedings dated 9.4.1997, and G.O.Ms.No.363 dated 5.6.1996i giving rise to confusion and creating problems;
(xiii) The impugned order is unworkable it is difficult even to find out the relative merit of the student who has the choice to apply to any number of colleges within the State of Tamil Nadu, in the absence of any common entrance examination. Besides, the impugned Government Order creates enormous delay in the admission process.
(xiv) The impugned order has lost sight of several practical and pragmatic realities relating to admission. It was issued hurriedly. Even the advertisement calling for admission dated 26.5.1997 has failed to include all the courses for which the self-financing colleges were permitted to offer.
8. More or less the same ground are urged challenging the proceedings No.Na.Ka.No.76222/R4/96 dated 9.4.1997, challenged in W.P.No.7594 of 1997. W.P.No.8010 of 1997 broadly stated, supports the impugned order, and seeks to extend the application of the same to all the educational institutions.
9. Counter affidavit is filed on behalf of the State Government, stating that permissions were granted to start unaided private Arts and Science Colleges subject to fulfillment of conditions prescribed in G.O.Ms.No.875, Education, dated 24.6.1986 and subsequently some of the conditions have been modified and permissions were granted as per G.O.Ms.No.858, Education, dated 15.7.1989. One of the conditions was that the educational agencies have to enter into agreements, and as per paragraph 8 of the agreement the educational agencies have agreed to admit students of their choice upto 50% of the intake of the college and the remaining 50% of the seats shall be filled up according to the rules and regulations prescribed by the Government from time to time.
10. It is submitted that there were general complaints that the unaided private colleges are not following in the rules and instructions of the Government in admission matters, and they receive a large sum for admission of students. This was verified and found correct during the periodical inspections conducted by the various inspection officers of the directorate. A high level committee consisting of eminent educationists with Dr. Ananthakrishnan as the Chairman was constituted, vide G.O.No.803, Education, Science and Technology Department, dated 30.8.1996 to study the functioning of the unaided Arts and Science Colleges and find out the genuineness of the complaints received by the Government. The Committee found that the allegations made against the colleges were true. Hence it recommended to the Government to regulate the admission for filling up the 50% seats through governmental agency. Accordingly the Government have issued the impugned order to safeguard the interest of the students belonging to economically and socially weaker sections of the society as well as the students from rural areas who are deprived of career or oriented courses in spite of their academic excellence.
11. It is further stated that the Government have a duty to regulate the functioning of 114 unaided private colleges in the interest of the poor, economically and socially weaker sections of the society. Till today these 114 colleges, which offer hi-tech job oriented courses like B.Sc. (Bio-chemistry), B.Sc. (Computer Science), etc. which are not available in most of the Government Colleges, are outside the reach of poor and Scheduled Caste and Scheduled Tribe students. By selecting candidates in respect of 50% seats through regional committees these downtrodden can have access to these hi-tech courses at a nominal tuition fees of Rs. 4,750 only. Under Rule 9 (5) and condition No. 9 of G.O.Ms.No.858, dated 15.7.1989, it is open to the Government to prescribe the admission procedure for the remaining 50% of the seats. It is stated that post-admission verification actually will not serve any useful purpose. There are 114 unaided private colleges and with the limited staff it will take at least three months to verify, the selection list to find out whether they have followed communal reservation. By that time students would have completed three months course and any change will affect their term days. So it is necessary to enforce admission rules prior to finalisation of the process. A test verification in some six colleges around Chennai revealed that rules of reservation were not followed.
12. It is submitted that in the Judgment relating to Jawahar Arts and Science College, a Division Bench of this Court decided that the Act will be applicable to unaided private colleges too. Section 53(2)(i.) of the said Act empowers the Government to make rules with regard to admission of students in private colleges. As per Rule 7(3)(b) of the rules the educational agency shall carry out the instructions issued by the Government from time to time in the public interest. In G.O.Ms.No.363, dated 5.6.1996 the Government have issued guidelines and procedure for admission to U.G. and P.G. courses in the Government, Aided, and unaided colleges in the State. The Director of collegiate education has only reiterated the instructions already issued by the Government. Hence the instructions dated 9.4.1997 issued by him are not new. The petitioners have not considered the spirit of the impugned order. The Principal is one of the members of the committee. The Committee for selection is constituted under the impugned order only to safeguard public against-
(a) Non-issue of application/non-registration of application by a college;
(b) Non-registration; the college can claim sufficient number of applications have not been received;
(c) Demanding of money at the higher rates than prescribed by the Government.
13. It is also stated that there is no conflict between the instructions issued by the Director of Collegiate Education and the impugned Government Order. The earlier instructions issued by the Director of Collegiate Education will be superseded by the impugned Government Order so for it relates to the unaided private colleges. In short the stand of the State Government is that the rule of reservation was not followed in filling up of the 50% of the seats in private unaided colleges; there were complaints as to irregularities in admission in this category; in order to serve the real purpose for which 50% of the admission were sought to be filled on the basis of rule of reservation the impugned order was issued; and it is justified.
14. A reply affidavit is filed in W.P.No.7593 of 1997 elaborating the contentions raised in the writ petition, and giving some more particulars and details.
15. Shri R. Krishnamurthy, learned senior counsel for the petitioners in W.P.Nos.7935, 7849/7856, 7884 and 7885 of 1997 explained about the scheme of the Act, and drew our attention to Sections 2(8), 3, 4, 5, 11, 12, 15 and 53 of the Act and Rule 9 of the Rules. In particular he drew our attention to Section 53(2)(f) of the Act. He urged that-
(i) the impugned G.O. interferes with the right of admission of students to the colleges; right of administering the college includes the right to admission;
(ii) the impugned order issued in exercise of the executive power is illegal and cannot be sustained as the field relating to admission of students in the private colleges is occupied by the provisions contained in the Act, Rules, and the Government Orders issued;
(iii) neither the Act nor the Rules authorised or enabled the State Government to issue the impugned order;
(iv) Unnikrishnan's case (1993)1 S.C.C. 645 : A.I.R. 1993 S.C. 2178 cannot be a source for issuing the impugned order as sought to be made out by the Government, because in paragraph 170 of the judgment, it is clearly stated that the scheme is confined to only professional colleges; and
(v) the impugned Government Order offends Article 14 of the Constitution, it being arbitrary and unreasonable.
16. Shri A.L. Somayaji, learned senior counsel for the petitioners in W.P.Nos.7593 and 7594 of 1997 submitted that-
(i) there is contradiction between the proceedings of the Director of Collegiate Education, N0.76222/R4/96, dated 9.4.1997 and the impugned G.O. relating to the Constitution of the committee and selection of students for admission. He pointed out that the proceedings dated 9.4.1997 apply to Government colleges, Aided colleges, and unaided colleges also. The impugned order is issued governing the admissions to the extent of 50% of the seats in the unaided colleges. The impugned order has not superseded the proceedings dated 9.4.1997 so far it relates to the unaided colleges;
(ii) he placed reliance on the decision of the Division Bench of this Court in Writ Appeal No. 692 of 1983 disposed of on 31.8.1983 to contend that no executive order can be issued so as to interfere with the admissions by colleges;
(iii) He submitted that the same principle and the grounds urged to attack the impugned order equally apply to challenge the validity of the proceedings dated 9.4.1997;
(iv) While adopting the submissions made by the learned Counsel Shri R. Krishnamoorthy, he added that the impugned order and the proceedings dated 9.4.1997 cannot be sustained even on the basis of the promissory estoppel, inasmuch as the commitment made or condition imposed at the time of starting the college in the matter of admission was confined to admission to the 50% of the seats in the colleges based on rule of reservation to be prescribed by the State Government from time to time nothing more. Now taking over the very admission practically by the Government in respect of these seats is hit by the doctrine of principle of promissory estoppel; (v) Rule 7(3)(b) is meant for a different purpose, and it cannot be a course of power for issuing the impugned Government Order.
17. Shri N.R. Chandran, learned senior counsel for the petitioners in W.P.Nos.7622 to 7625 of 1997, out of which Writ Petition No. 7624 of 1997 is by a minority institution, submitted that right to admission cannot be interfered with in view of the decision in the case of G. Rajesh v. State of Tamil Nadu and Ors. 1995 W.L.R. 389.
(ii) the impugned order has not superseded G.O.Ms.No.363, dated 5.6.1996 and hence there is conflict between them, and consequently they are unworkable so far they relate to unaided colleges. Further the impugned G.O. cannot be applied to minority institutions at any rate;
(iii) no reasons are given for issuing the impugned order even the reasons given in the counter affidavit of the State are not based on facts; no material is placed to show that the colleges committed irregularities in the matter of admission to 50% of the seats based on the rule of reservation;
(iv) when there are other enough powers in the Act, Rules and the earlier Government Orders, there was no necessity to issue the impugned G.O.:
(v) In Unnikrishnan's case (1993)1 S.C.C. 645 : A.I.R. 1993 S.C. 2178 general questions relating to all types of colleges arose for consideration, but the Apex Court consciously framed and Confined the scheme only in respect of the professional colleges;
(vi) in respect of the courses started pursuant to the approval given by All India Council for Technical Education, the impugned order cannot be applied. In other respects, on the ground of discrimination and promissory estoppel he submitted that he adopted the arguments of the learned senior counsel Shri R. Krishnamoorthy and Shri A.L. Somayaji.
18. Shri Vijayan, learned senior counsel for the petitioners in W.P.Nos.7602 to 7610 and 7638 to 7640 of 1997, contended that-
(i) the State Government was wrong in applying Unnikrishnan's case (1993)1 S.C.C. 645 : A.I.R. 1993 S.C. 2178. in the matter of admission to Arts and Science Colleges. In this regard he drew our attention to paragraphs 160 to 164 and 170 of the Judgment in Unnikrishnan 's case aforementioned;
(ii) Clause (9) of the G.O.Ms.No.858, dated 1.5.7.1989 does not speak of the method or about the evaluation of merit of the candidates for selection. Different universities may have different standards, and there may be different standards in regard to awarding marks and securing marks in C.B.S.C., Matriculation, and State Board examinations. In the absence of centralised examination like common entrance test it is not possible to decide and evaluation the respective merits of the candidates. The impugned Government Order is unworkable. The private colleges must have their say in deciding the merit of a candidate. They may keep in view their own culture and traditions in order to maintain discipline and high standard of education;
(iii) He pointed out to Chapter III-A of the Act to state that there are enough powers vested with the State Government to take action against erring colleges in order to see that admission to the 50% of the seats are made on the basis of the rule of reservation;
(iv) Right of admission is given to colleges as per Rule 9(5). The impugned G.O. cannot take away that power;
(v) The terms of agreement given at the time of starting the college cannot be varied;
(vi) If some colleges are collecting capitation fee or higher fee, action can be taken as per Section 10 of the said Act. In the circumstances, when there are enough provisions otherwise available, the impugned order ought not have been issued;
(vii) He submitted that if records are verified, it could be seen that in almost all colleges large number of candidates belonging to Scheduled Castes and Backward Classes were admitted.
19. Smt. Nalini Chidambaram, learned senior counsel for the petitioner in W.P.Nos.7680 to 7682 of 1997 submitted that several unaided colleges were started in rural areas to meet the local needs when the Government failed or could not start such colleges. The directive principles contained in Articles 38, 39, 41 and 46 are to be kept in view while dealing with the impugned Government Order.
20. Shri. Mohan Parasaran, learned Counsel for the petitioners in W.P.Nos.7840 to 7843 of 1997 submitted that as can be seen from paragraph 146 in Unnikrishnan's case (1993)1 S.C.C. 645 : A.I.R. 1993 S.C. 2178, it excludes Private Arts and Science Colleges. He referred to Articles 29(2) and 15 of the Constitution of India to contend that the impugned order cannot be allowed to stand which interferes with the right of admission, particularly in respect of minority institutions.
21. Shri N. Jothi, learned Counsel for the petitioners in W.P.Nos. 7847 and 7848 of 1997 urged that,
(i) no reasons are given for issuing the impugned Government Order;
(ii) there has been clear discrimination inasmuch as the impugned Government Order is not applied to some unaided course in aided colleges;
(iii) there are absolutely no grounds and material to state that the colleges committed irregularities, and the statements made in the counter affidavit in this regard are vague and unsustainable; merely because a committee was constituted and they verified in respect of some six colleges near Chennai, it cannot be said that almost 114 unaided colleges are bad and they committed irregularities in the matter of giving admission in respect of 50% of the seats based on reservation. He drew our attentions to Sections 4, 14-A, 30 and 35, in support of his submissions that local needs are to be kept in view and that the State Government even otherwise has enough powers to take action in respect of erring colleges. He also adopted the submissions of the other learned senior counsel.
22. Shri A. Sankarasubramanian, learned Counsel for the petitioner in W.P.No.7960 of 1997 contended that before issuing the impugned order there was no proper consideration and application of mind. A candidate may apply for either of the categories i.e., 50% of the seats to be filled by the Management at its choice, and in the category of remaining 50% of seats to be filled up on the basis of rule of reservation; a candidate may apply to any number of colleges leading to difficulties in finalising the admissions. The Principal of the College is a saint and it is not convenient for her to go to the Joint Director's office for the purpose of selection of candidates.
23. Shri T. Promodkumar Chopda, learned Counsel for the petitioner in W.P.No.7888 of 1997 submitted that having regard to the procedures prescribed in the impugned G.O. there would be delay in admission and many seats may not be filled up and they may go waste in case the impugned order is applied.
24. Smt. Saraswathy Prasad, learned Counsel for the petitioner in W.P.No.8370 of 1997 submitted that-
(i) the Government Order is ultra vires of the Act;
(ii) Paragraph 8 of the counter affidavit states that only six colleges violated the condition in admitting the students on the rule of reservation, and hence there was no justification to issue the impugned G.O. in respect of all the colleges; and (iii) the petitioner college was started only last year and as such there was no question of it committing any irregularity.
25. Shri Sanjeevi, learned Counsel for the petitioners in W.P.Nos.7881 to 7883 of 1997 submitted that he is adopting the arguments of the other learned Counsel. In particular he drew our attention to paragraph 42 in the decision in the case of M R. Subramaniam and Ors. v. State of Tamil Nadu (1997)2 L.W. 8, in support of his submission.
26. Shri S.K. Gangulee, learned senior counsel on behalf of the respondents submitted that-
(i) de hors of the impugned order the scheme of the Act may be kept in view; Section 3 of the Act clearly states that no person shall establish a private college without permission of the State Government; there has been no material change in the impugned order having regard to the earlier G.O.Ms.Nos.873, dated 24.6.1986 and 858 dated 15.7.1989; the impugned G.O. is only intended to execute what is already available under the Scheme of the act and Rules, the earlier G.Os., and conditions imposed while granting permissions to start colleges;
(ii) the State Government cannot think of anything other than the merit in the matter of filling up of 50% of the seats on the basis of rule of reservation, and as such it cannot also allow the private Colleges to adopt any criteria other than merit in selection and admission of students in respect of the 50% of seats subject to rule of reservation;
(iii) if the irregularities committed by the colleges are found late, it will be difficult to remedy them, and in that process it may be difficult to disturb the candidates already selected who have undergone courses for some period; and
(iv) merit criteria may be decided by respective colleges but they should stand the objective test. He drew our attention to paragraphs 161 and 162 in the decision in Unnikrishnan's case (1993)1 S.C.C. 645 : A.I.R. 1993 S.C. 2178. aforementioned.
27. In reply, Shri R. Krishnamoorthy, learned senior counsel, based on the decision in the case of T.M.A. Pai Foundation v. State of Karnataka and Ors. (1994)2 S.C.C. 734 particularly referring to paragraph 2, submitted that merit need not be determined on the basis of the academic performance at the qualifying examination alone; it may be decided on the basis of any objective test that the institution might itself apply to determine such relative and competing merits.
28. Shri A.L. Somayaji, learned senior counsel pointed out to page 25 of the typed set of papers filed by the Government to show that rule of reservation was followed.
29. The other learned Counsel representing the other writ petitioners adopted the arguments advanced by the learned senior counsel for the petitioners in various writ petitions.
30. Shri R. Subramaniam, learned Counsel for the petitioner in W.P.No.8010 of 1997 argued in support of the impugned order and submitted that it must be extended to all other colleges also.
31. The learned Counsel on either side have relied on some decisions in support of their arguments. We will refer to them hereafter.
32. We have very carefully and anxiously considered the submissions made by the learned Counsel for the parties.
33. We think it appropriate and useful to extract the relevant provisions under the Act and the rules, the relevant Government Orders, and the agreements executed by private managements at the time of starting the colleges, in order to appreciate the rival submissions on their relative merits.
34. Save as otherwise provided in Section 55 of the Act, the provisions of the Act shall be deemed to have come into force on the 21st day of November, 1975. As per Section 2(7), "minority college" means a private college of its choice established and administered, or administered, by any such minority whether based on religion or language as has the right to do so under Clause (1) of Article 30 of the Constitution.
According to Section 2(6), "private college" means a college maintained by an educational agency and approved by, or affiliated to, a university but does not include a college -
(a) established or administered or maintained by the Central Government or the Government or any local authority or any university; or
(b) giving, providing or imparting religious instruction alone, but not any other instructions.
Section 3 deals with obtaining permission to start a new private college, which reads;
3. New private college to obtain permission : Save as otherwise expressly provided in this Act, no person shall, without the permission of the Government and except in accordance with the terms and conditions specified in such permission, establish, on or after the date of commencement of this Act, any private college:
Provided that it shall also be necessary to obtain affiliation of such college to a University.
35. Section 4 relates to application for permission and sending of statement. Section 4(2) to the extent it is relevant reads-
Every such application shall-
(a) be in the prescribed form;
(b)...
(c) contain the following particulars, namely,
(i) ...
(ii) the need for the private college in the locality;
(iii) ...
Section 5 deals with the grant of permission on receipt of the application under Section 4(l).
36. As per Section 11, every private college, not being a minority college, shall have a college committee which shall include the Principal of the private college and two senior professors employed in the private college. Every college committee shall have a Secretary who shall exercise such powers and perform such functions as may be prescribed, as is clear from Section 12. Section 14 enumerates the functions of the college committee and responsibility of the educational agency under the Act. One of the functions of the college committee is to carry on the general administration of the private college excluding the properties and funds of the private college.
37. Section 14-A provides for appointment of Special Officers in certain cases, of irregularities, mal-administration, lapses, negligence to discharge any of the duties imposed on or to perform any of the functions entrusted to such management by or under the Act or any Rule or Order made, or direction issued thereunder. Section 30 authorises taking over the management of the private colleges under similar circumstances. Under Section 35(l), the competent authority has power of inspection or inquiry, and to issue directions thereafter, to educational agency as deemed fit. As per Section 36 every educational agency is bound to furnish to the competent authority such returns, statistics and other information as the competent authority may from time to time require.
38. As per Rule 3, every application for permission to establish a college under Section 4 shall be submitted in Form I. Rule 7 reads:
7. Payment ofgrant : (1)...
(2)...
(3) (a)...
(b) The educational agency shall carry out the instructions issued by the Government from time to time in the public interest to ensure that the interest of students belonging to the socially and educationally backward classes and the linguistic minorities are safeguarded;
(c) ...
Rule 9 reads:
9. Secretary of the Committee : (1) ...
(2)...
(3) ...
(4) ...
(5) The Secretary shall not interfere in the internal administration of the college such as admission, examination, promotion of student and other academic matters as also the administration of special fee funds, which shall be made the exclusive responsibility of the Principal.
(b) ...
Section 53 (2) (f) reads:
53. Power to make rules : (1) the Government may make rules to carry out the purposes of this Act.
(2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely-
(a)-...
(b)...
(c)...
(d)...
(e)...
(f) the admission of students in private colleges including special provision for the advancement of socially and educationally Backward Classes of citizens and the Scheduled Castes and the Scheduled Tribes.
39. Form 1 application for permission to establish a college, reads-
(1)...
(2)...
(3)...
(4) Names of other colleges in the district in which the proposed college is to be established and the distance between them and the proposed college Name Distance Students strength (1) (2) (3) (5) Names of High Schools within a radius of 15 K.M. from the proposed college with details of strength of Standard XI.
Name of High Distance No. of students studying in School Std. XI.
(1) (2) (3) (6) ... (7)... 40. Paragraph 7 of G.O.Ms.No.873, dated 24.6.1986 reads
7. The private management/Educational Trusts which open such new unaided self-financing colleges shall be allowed to admit candidates of their choice up to 50% of the approved in take of the college under management quota. Candidates to the remaining 50% of the seats shall be admitted strictly following the rules of reservation, as prescribed by Government from time to time.
Paragraphs 9 and 10 of the said order prohibit collection of capitation fee/donations by self-financing colleges and also collection of tuition fees and special fees at the rate not other than fixed by the Collegiate Education Department/University. Paragraph 12 reads;
If these conditions are not fulfilled by the Private management concerned, the permission granted to set up the self-financing college is liable to be withdrawn at any time. The Government will have the right to take over the Arts college in question at any time with all its movable and immovable properties including endowment and cash balances without paying any compensation.
As per Paragraph 13, the management of the self financing college shall execute an agreement agreeing to abide by all the conditions specified in the said Government Order.
41. Under G.O.Ms.No.858, dated 15.7.1989, referring to G.O.Ms.No.873 aforementioned, the Government issued revised guidelines for grant of permission. Paragraph 9 of the said order reads:
The Private Management/Educational Agency which opens such a new unaided private college shall be allowed to admit candidates of their choice upto 50% of the number of intake of the college. The remaining 50% of the seats shall be filled up strictly according to the rule of reservation as prescribed by the government from time to time.
Even in this order the Management of unaided colleges are prohibited from collecting the capitation fee/donation, and they are permitted only to collect tuition fees and other fees as prescribed for Government colleges. Paragraph 12 of the said G.O. reads:
Unaided Private Colleges will function under the control of the Director of Collegiate Education. The Director of Collegiate Education or his nominee shall have the power to inspect the college at any time. Irregularities if any noticed shall entail forfeiture of the permission granted to start the College and the Government shall have the right to take over the college in question at any time with all its movable/immovable properties including endowments and cash balance without paying any compensation.
42. Clauses 8 to 11 of the agreement executed by the management of the private colleges in terms of paragraph 13 of G.O.Ms.No.858 dated 15.7.1989 read thus:
8. We undertake to admit candidates of our choice upto 50% of the number of intake of the college. The remaining 50% of the seats be filled up according to the rules and regulations as prescribed by the Government from time to time.
9. We undertake not to collect capitation fee/donation from the students or their parents who seek admission to the college.
10. We shall collect tuition fees and other fees from the student at the rates as prescribed for Government College.
11. We agree to function under the control of the Director of Collegiate Education. The Director of Collegiate Education or nominee shall have the power to inspect the college at any time. Irregularities, if any, notices shall entail forfeiture of the permission granted to start the college, and the Government shall have the right to take over the college in question at any time with all its movable/cash balance etc., without paying any compensation.
43. G.O.Ms.No.363, dated 5.6.1996 was issued revising the guidelines annexed to the said order to be followed for admission of students in Government/ Aided/self-fihancing Arts and Science Colleges from 1996-97. As per the proceedings No. 76222/R4/96, dated 9.4.1997 a selection committee consisting of the Principal, two senior most members of the faculty and one co-opted member representing Scheduled Caste/Scheduled Tribe, must be constituted for each college. Each selection list should be sighed by the members of the committee and displayed in the notice board.
44. G.O.Ms.No.603, dated 30.8.1996 was issued constituting a high level committee to go into the aspect of infrastructural facilities, qualification and adequacy of staff in them, financial soundness of the institutions etc. Terms of reference as appended read:
The Committee would look into the following aspects and make appropriate recommendations to the Government:
1. Whether the self-financing Engineering Colleges, Polytechnics, Medical, Dental Colleges and Para Medical institutions have adequate infrastructural facilities, including land, building for laboratory, library, workshop, class rooms, hostel and other amenities like canteen, stores etc. are as per All India Council for Technical Education/State Government/Universities/Medical Council of India/Dental Council of India and Indian Nursing Council norms.
2. Whether qualifications of the teaching faculties and adequacy are as per All India Council for Technical Education/State Government/Universities/Medical Council of India/Dental Council of India/Indian Nursing Council norms.
3. Soundness of the managements of those institutions.
4. Whether sufficient books in Library and required equipments in Laboratory suiting to various branches are available.
45. The self-financing colleges were started after obtaining permission from the Government in accordance with the terms and conditions specified in such permission after making application under Section 4 in Form No. 1 specifying the need for the private college in the locality. Section 4(2)(c)(ii) and columns (4) and (5) of Form No. 1 seeking permission to establish a college clearly indicate that the need for the private college in the locality is one of the considerations. Permissions were granted as per G.O.Ms.No.873 dated 24.6.1986 as revised by G.O.Ms.No.858, dated 15.7.1989.
46. As can be seen from paragraph 7 of G.O.Ms.No.873, paragraph 9 of G.O.Ms.No.858, and Clause 8 of the agreement relating to the admissions in the private unaided colleges, permission was granted on condition that the private management/ educational agency which establish a new unaided private college should be allowed to admit candidates of their choice upto 50% of the number of intake of the college; and the remaining 50% of the seats shall be filled up strictly according to the rule of reservation as prescribed by the Government from time to time.
47. Section 53 of the Act provides for making rules. Under Section 53(2)(f), Rules could be made in regard to admission of students in private colleges including special provision for the advancement of socially and educationally backward classes of citizens and the scheduled Caste and Scheduled Tribes. Under Rule 9(5) relating to admission of students it is specifically stated that besides other things, admission is the exclusive responsibility of the Principal. The Government Order No. 873, dated 24.6.1986 and G.O.Ms.No.858, dated 15.7.1989 aforementioned were issued as per Section 3 of the Act containing specific paragraphs, as already stated above, relating to admission, as per which the management/educational agency shall be allowed to admit candidates of their choice up to 50% of the number of intake of the college, and the remaining 50% of the seats shall be filled up strictly according to the rule of reservation as prescribed by the Government from time to time. Thus it is clear, when revised guidelines were issued in G.O.Ms.No.858 also, it was not indicated that 50% of the seats shall be Government seats as Government quota and that a selection committee shall be constituted for that purpose, and the managements have also executed agreements accordingly.
48. A Division Bench of this Court in S. Arunachalam and Ors. v. State of Tamil Nadu I.L.R. (1996)3 Mad, 1508 was considering the validity of G.O.Ms.No.542, dated 29.4.1986 under which the respective Commissioners of Panchayat, Town Panchayat, Municipality, and the Corporations concerned Were to inform about their objections or no objections within 45 days to the Sub-Registrar from the date on which the Sub-Registrar's notice was received to that effect, and the Registration Department was advised to await for the objection from them for a period of 45 days and then register the documents. The said order was issued stating there was need to bring an amendment so as to collect the development charges from the plot owners for the purpose of providing street roads, street lights, and drainage facilities etc. Noticing that the registration of documents is governed by Registration Act and Rules framed thereunder, the Division Bench held that the G.O. could not be issued in exercise of the power under Article 162 of Constitution. The Division Bench is paragraph 3 of the judgment, referring to various judgments including the judgments of the Apex Court, held that the State Government overstepped their power in issuing the impugned Government Order under Article 162 of the Constitution, as such power cannot be exercised over the subject occupied by law passed by the competent legislature, which is otherwise known as 'theory of occupied field."
49. In V. Chandra and Ors. v. Government of Tamil Nadu I.L.R. (1996)1 Mad. 1007, a Division Bench of this Court, having regard to the decisions of the Apex Court, in paragraph 5, has stated thus:
We have adverted to these provisions contained in these aforesaid three enactments and also the rules framed under the Tamil Nadu Panchayats Act, only to show that the subject with which the impugned Government Orders have dealt with is covered by the statutes passed by the State legislature. It is the settled position of law that the execution power under Article 162 of the Constitution is not available, in respect of the subject which is already covered by the legislation. In other words, a field covered by the enactment which is known as covered field cannot be meddled with by the executive in the purported exercise of their power under Article 162 of the Constitution. This has been specifically provided for with a view to ensure that the State also is not above the Rule of law and above the provisions contained in the Constitution.
50. In the case of G. Rajesh v. The State of Tamil Nadu and Ors. 1995 W.L.R. 389, the writ petitioner sought for a writ of mandamus to implement G.O.Ms.No.466, Education, dated 8.6.1994 and to admit him to the first year M.B.A. course in sports quota. Under Section 6(3) of the Anna University Act, the State Government could direct the University to reserve certain percentage of seats for students belonging to the Scheduled Castes and Scheduled Tribes and Backward Classes, but the Government issued G.O.No.466, dated 8.6.1994 to reserve certain percentage of seats to sportsmen. The Division Bench of this Court held that though the executive power under Article 162 of the Constitution extends to all matters to which legislative power extends, the executive power cannot be exercised contrary to those provisions contained in the law. Even in paragraph 9 of the counter affidavit filed by the State it is stated that the Act applies to unaided private colleges also. Section 53(2)(i) of the said Act empowers the Government to make rules with regard to admission of students in private colleges. This being the position, Rule 9(5), as already noticed above, relates to admission of students, stating that admission of students to private colleges is the exclusive responsibility of the Principals.
51. The decision of the Division Bench dated in The Association of Management of Private Colleges, represented by its Secretary, P. Haridas v. The Government of Tamil Nadu, W.A,No.692 of 1983 dated 31.8.1983, supports the case of the petitioner as it is a case relating to the right of admission to the affiliated colleges of the University by the managements, and which power the University wanted to take away by resolution. The Division Bench of this Court, referring to various decisions of other Courts including Chitraleka v. State of Mysore A.I.R. 1964 S.C. 1823 : (1964)6 S.C.R. 368, held that the University had no power to make admission to affiliated colleges although the University could prescribe necessary eligibility conditions for admission. In that decision it is held that the Syndicate of the University could not interfere with the internal administration of the private college such as admission of students, by taking over the power from them.
52. Having regard to the fact that the field is already occupied relating to admission of students in the private unaided self-finance colleges, the impugned Government Order issued invoking executive power under Article 162 of the Constitution cannot be sustained.
53. The, impugned order does not give the background reasons or the necessity for issuing it. It also does not disclose the course of power. Neither the Act nor the Rules authorised or enabled the Government to issue the impugned order. The Government appear to have relied on Unnikrishnan's case (1993)1 S.C.C. 645 : A.I.R. 1993 S.C. 2178. In the impugned order the Government direct that 50% of seats in the unaided Arts and Science Colleges shall be allowed as Government quota as in the case of self-financing engineering colleges, and the seats thus allotted shall be filled up by the Director of Collegiate Education or any other person/committee authorised by him from the academic year 1997-98 by following the procedure prescribed in the annexure to the said order.
54. Unnikrishnan's case A.I.R. 1993 S.C. 2178 has no application to Private Arts and Science Colleges. Although general questions relating to all self-financing colleges came up for consideration, the Apex Court consciously confined the scheme framed only to professional colleges as is clear from paragraph 170 of the said judgment. Even in paragraph 146 of the said Judgment the Apex Court has stated "In this judgment, however, we do not wish to say anything about such schools or for that matter other private educational institutions except 'professional colleges'. In paragraph 170 of the said judgment it is clearly stated that the scheme is confined only to 'professional colleges'. The learned senior counsel for the respondent in his arguments also did not take support for the impugned order from Unnikrishnan's case (1993)1 S.C.C. 645 : A.I.R. 1993 S.C. 2178.
55. Added to this, in the absence of any centralised examination, it is not possible to make selection for admission to various unaided colleges based on merit. Even the applications by the students in the absence of any such centralised examination or centralised scheme may be made to various colleges independently. It was also submitted by the learned senior counsel for the respondents that 50% of the seats were to be filled up as per the impugned G.O. by the colleges following the rule of reservation, but it must be oh merits and that each college may adopt its own criteria is determining the merit so long as such criteria meets the objective test. Hence we have no hesitation to take a view that the scheme framed in Unnikrishnan's case (1993)1 S.C.C. 645 : A.I.R. 1993 S.C. 2178. has no application to the private unaided self-financing Arts and Science Colleges in the State.
56. We find that there is alternative machinery and mechanism provided to see, besides other things, that admissions are made to the extent of 50% of the seats in private colleges applying the rule of reservation. It is not on record that the respondents made efforts or took action to correct any erring college in the matter of admissions deviating or defeating the provision of filling up 50% of the seats by applying the rules of reservation. Similarly no specific instances of specific colleges are pointed out so as to say that such colleges committed irregularities. On the other hand the petitioners assert that there have been no complaints so far and assuming that even there were few cases, they cannot justify in painting all the colleges with the same brush that all the colleges committed irregularities. The respondents have enough provisions, power and machinery to take action against colleges who do not follow the rule of reservation in filling up the 50% of seats. In the counter-affidavit also no details or particulars are forthcoming specifically as to the irregularities committed by particular college or colleges except saying that a test verificatiori in some six colleges around Chennai revealed that the rule of reservation was not followed.
57. If we look to G.O.Ms.No.873, dated 24.6.1986 and G.O.Ms.No.858, dated 15.7.1989, it is clear that permissions to establish private unaided colleges were granted with specific conditions that 50% of the seats could be filled up by the Management with the candidates of their choice, and the remaining 50% of the seats shall be filled up strictly according to the rule of reservation as prescribed by the Government from time to time.
58. It is better to clarify here itself that prescription by the Government from time to time in condition No.9 relates to the reservation which may change from time to time. Paragraphs 10 and 11 of G.O.Ms.No.858 imposes conditions that the managements of unaided private colleges shall not collect capitation fee/donation and that they shall collect tuition fees and other fees as prescribed. Paragraph 12 states that unaided private colleges shall function under the control of the Direct of Collegiate Education. The Director or his nominee shall have the power to inspect the college at any time. Irregularities if any noticed shall entail forfeiture of the permission granted to start the college in question at any time with all its movable/immovable properties including endowments and cash balances without paying any compensation. Para 13 states that the managements shall execute an agreement agreeing to abide by the conditions stated in the said G.O.Ms.No.858. Similar clauses are found even in the earlier G.O.Ms.No.873. The managements have also executed agreements in that regard accordingly.
59. Under Section 14-A of the Act, Special Officer may be appointed by the Government on receipt of a report from the Director of Collegiate Education or otherwise, that the management of any private college is responsible for mal-administration, lapses, or irregularities of such private college, or that the college has neglected to discharge any of the duties imposed on, or to perform any of the functions entrusted to such management by or under this Act, or any rule or order made or direction issued thereunder. But such a Special Officer could be appointed after giving to such management an opportunity to make representation, and for the reasons to be stated in writing, by an order, suspend the management and appoint a special officer for a period not exceeding one year or till the reconstitution of the management whichever is later.
60. Under Section 30 of the Act the management of a private college can be taken over under similar circumstances. Private colleges shall maintain accounts as may be prescribed as per Section 33, and the accounts of every private college receiving grant shall be audited at the end of every academic year. Section 35 empowers the competent authority for inspection or enquiry in respect of affairs of private colleges. The competent authority may also issue directions to educational agencies to comply with such directions which are given as a result of inspection and enquiry in the event the educational agency does not take action within a reasonable time. Every educational agency shall, within such time as may be fixed by the competent authority, furnish such returns, statistics, and other information as the competent authority may, from time to time, require. Thus the provisions give ample power to the competent authorities to see that the admissions in regard to the remaining 50% of the seats are filled up applying the rule of reservation strictly.
61. It is not the case of the respondents that on noticing irregularities the respondents gave directions to the private colleges pointing out the irregularities in admission, and the colleges failed to comply with such directions. It is also not the case of the respondents that action was taken under the available provisions, and the terms of the Government Order, and the agreement executed by the private colleges without any success, and there were compelling reasons to issue the impugned Government Order. The statement in the counter affidavit is that it would take at least three months to verify the admissions made by the private colleges in order to find out irregularities, and by that time the students would have undergone three months course and that it may not be possible to take any action at that stage. The learned Counsel for the petitioners pointed out that when a selection committee and the Government machinery could verify the rank list and make selection for admission to various colleges within a short period, it is strange why the Government machinery with six zones and sufficient men and material should take three months to verify the admissions made.
62. A Division Bench of this Court in M.R.Subramanian and Ors. v. State of Tamil Nadu and Ors. (1997)2 M.L.J. 151 : (1997)2 L.W.8 dealing with the validity of the Tamil Nadu Hindu Religious and Charitable Endowments (Special Provisions) Act (23 of 1996) and Ordinance 3 of 1996, in paragraph 42, has stated thus:
We have already seen that there are sufficient safeguards available even under the Act for removal of non-hereditary trustees under Section 47 read with Section 53 of the Act, which empowers the appropriate authority to suspend, remove or dismiss the trustees on various grounds mentioned therein, which would very much include mismanagement or misappropriation or neglect of duty; When such is the position, the Act itself will be sufficient enough to take action against erring trustees. The fact that the Ordinance in this regard is arbitrary and discriminatory is further evident from the provisions of the said Ordinance. In terms of Section 2(1) of the Ordinance, every non-hereditary trustee of every religious institution appointed under the provisions of the Act and holding office as on the date of the Ordinance are ceased to hold such office on such date. However, under Section 3 of the Ordinance, nothwithstanding anything contained in the Tamil Nadu H.R. & C.E. (Amendment) Act, 1991, any existing vacancy and every vacancy occurring in the office of non-hereditary trustee under Section 2, shall be filled up in accordance with the provisions of the Act within a period of one year from the date of commencement of the Ordinance, or with in such further period not exceeding six months as the State Government by notification may specify in this behalf. The non-hereditary trustees appointed afresh will have to be dealt with in accordance with the provisions of the Act, if they are to be removed. The non-hereditary trustees who have been removed by the Ordinance and Act 23 of 1996 were appointed under the Act and the fresh non-hereditary trustees also will be appointed under the Act, as such, there will be no difference between the two, nevertheless they are subjected to hostile discrimination, inasmuch as one is removed by the legislative action and the other one has to be removed or dealt with as per the provisions of the Act. Thus, the Act 23 of 1996 makes invidious distinction and there by operative discriminately.
If that can be the position with regard to the Ordinance, the petitioners in these cases have a stronger case in challenging the impugned order on the ground that alternative machinery and provisions are available to take action against erring colleges, and to enforce admission in respect of 50% of seats in private unaided colleges on the basis of rule of reservation. Hence issuing the impugned G.O. in these circumstances is arbitrary.
63. Further in the Tamil Nadu Educational Institutions (Prohibition of Collection of Capitation Fee) Act, 1992, there are provisions for prohibition of collection of capitation fees and for regulation of fees. There are also provisions for prosecution and punishment in case of contravention of the provisions of that Act or the Rules. Affiliations were given to the colleges by the respective universities subject to certain conditions which also command obedience to follow rules relating to admissions including following the rules of reservation. It is not the case of the respondents that there was any violation of any provisions of the Tamil Nadu Education Institutions (Prohibition of Collection of Capitation Fee) Act, 1992, or the following of conditions of affiliation by the University, and that any action was taken by the competent authorities in that regard.
64. Permissions to start private colleges were granted under Section 3 of the Act imposing certain conditions. Several private colleges were established making efforts and investing huge amount, relying on those conditions, one of the conditions relating to admission being that 50% of the seats shall be filled up by the management of their choice, and the remaining 50% of the seats shall be filled up strictly applying the rule of reservation as may be prescribed from time to time by the Government. Rule 9(5) clearly states that the admission of students in colleges shall be the exclusive responsibility of the Principals. Neither Government Orders including G.O.Ms.No.858 nor the agreements executed, made any provision giving the right of admission to the State Government, or to take the 50% of the seats in every private unaided college as Government quota.
65. When the colleges were started on the basis of the permission granted subject to conditions mentioned in such permissions based on Government Order, and the managements have started the colleges by investing huge amounts and putting lot of efforts on the basis of such permissions, as rightly contended by the learned Counsel for the petitioners, the respondents cannot either make the 50% of the seats as Government seats in private unaided colleges or take away the right of admission of students to that extent, particularly so when as per Section 14 of the Act, to carry on the general administration of the private college excluding the properties and funds of the private college, is one of the functions assigned to the college committee, and under Rule 9(5) the Principal is given the exclusive responsibility in the matters such as admission, examination, promotion of students and other academic matters. Hence the doctrine of promissory estoppel, in our view, comes to the aid of the petitioners.
66. The Supreme Court in Motilal Padampat Sugar Mills Co. Ltd. v. The State of U.P. and Ors. A.I.R. 1979 S.C. 621, in paragraph 8, has stated thus:
The true principle of promissory estoppel, therefore, seems to be that where one party has by his words or conduct made to the other a clear and unequivocal promise which is intended to create legal relations or affect a legal relationship or arise in the future, knowing or intending that it would be acted upon by the other party to whom the promise is made and it is in fact so acted upon by the Other party, the promise would be binding on the party making it and he would not be entitled to go back upon it, if it would be inequitable to allow him to do so having regard to the dealings which have taken place between the parties.. :
The Apex Court went on to state that the doctrine of promissory estoppel has also been applied against the Government. Paragraph 19 of the said judgment reads:
When we turn to the Indian law on the subject it is heartening to find that in India not only has the doctrine of promissory estoppel been adopted in its fullness but it has been recognized as affording a cause of action to the person to whom the promise is made. The requirement of consideration has not been allowed to stand in the way of enforcement of such promise. The doctrine of promissory estoppel has also been applied against the Government and the defence based on executive necessity has been categorically negatived. It is remarkable that as far back as 1880, long before the doctrine of promissory estoppel was formulated by Denning, J., in England, a Division Bench of two English Judges in the Calcutta High Court applied the doctrine of promissory estoppel and recognised a cause of action founded upon it in the Ganges Mfs.Co. v. Sourujmull, (1880) I.L.R. 5 Cal. 669. The doctrine of promissory estoppel was also applied against the Government in a case subsequently decided by the Bombay High Court in Municipal Corporation of Bombay v. Secretary of State (1905) I.L.R. 29 Bom. 580.
67. The Apex Court yet again in the case of Union of India and Ors. v. Godfrey Philips India Ltd. A.I.R. 1986 S.C. 806, reiterated that the doctrine of promissory estoppel is applicable against the Government in exercise of its Governmental, public, or executive functions, and the doctrine of executive necessity, or freedom of future executive action, cannot be invoked to defeat the applicability of the doctrine of promissory estoppel. Of course there can be no promissory estoppel against the legislature in the exercise of its legislative functions, nor can the Government or public authority be debarred by promissory estoppel from enforcing a statutory prohibition.
68. Though few more decisions are cited in this regard, we do not think it necessary to refer to them as this principle is well-settled.
69. The learned Counsel for the petitioners vehemently contended that the impugned order is arbitrary, discriminatory, unreasonable, and unfair, and it offends the principles embodied in Article 14 of the Constitution and it offends the said Article very much. The impugned order and annexure to it read thus:
Government of Tamil Nadu Abstract Collegiate Education - Unaided College Admission Procedure - Orders issued.
_________________ Higher Education (E1) Department.
G.O.Ms.No. 245 Dated 7.5.1997. Read :
1. From the Director of Collegiate Education, Lr.No.23178/R5/97, dated 10.4.97.
ORDER :
The Government direct that 50% of seats in the Unaided Arts and Science Colleges of this State in all branches of Undergraaduate and Post Graduate courses shall be allotted as Government quota as in the cases of Self-financing Engineering Colleges and the seatsthus allotted shall be filled up by the Director of Collegiate Education or any other person/committee authorised by him from the academic year 1997-98 by following the procedure prescribed in the annexure to this order.
2. The Government also constitute a selection committee for this purpose as follows:
1. The Regional Joint Director of Collegiate Education of concerned Region. ...Chairman
2. The Principal of the Unaided college concerned. ...Member
3. One principal or Selection Grade Lecturer as the case may be belonging to SC/ST community from Government/Government Aided College (To be nominated by the Director of Collegiate Education) ...Member The committee constituted in para 2 above shall monitor the admission procedure and report direct to the Director of Collegiate Education on implementation of this order.
(By order of the Governor) S.P. Elangovan, Secretary to Government.
To The Director of Collegiate Education, and others.
ANNEXURE.
Procedure for selection of candidates for admission to 50% of the seats in Self-financing Arts and Science Colleges in Tamil Nadu.
1. The application for admission to the 50% of the seats of Self-Financing Arts and Science Colleges shall be made to the concerned college with a copy marked to the Regional Joint Directors of all the regions. (The Self-Financing Colleges shall issue the application form in duplicate).
2. The receipt of application should be acknowledged by the college in a tear off acknowledgment form.
3. After the last date for receipt of application is over, the Principal of the Self-Financing College shall tabulate the applications and prepare a rank list.
4. The above rank list shall be placed before the selection Committee.
5. The Selection Committee shall meet at the headquarters of the Regional Joint Director immediately after the last date for receipt of application is over and finalise selection list based on the reservation policy of the Government for the above 50% seats and release the selection list within one week. The list shall be published simultaneously both at the Regional Joint Director's office and also at the college and students intimated by post individually.
6. The Principal shall admit the students as per the selection list. If there is any vacancy after the last date for admission is over, then the Selection Committee shall meet again and release the second selection list, and if necessary 3rd list. And even after 3rd list if there is any vacancy, the committee alone can fill up the remaining seats.
7. The Principal or the Management of the Self-Financing Colleges under no circumstances shall admit any student for 50% seats reserved for Government.
8. Proposal to increase seats in any group shall be submitted to the University concerned and written orders should be obtained before making admission over and above the sanctioned strength.
9. Such additional seats shall also be filled up by the Selection Committee only following the above procedure and the Colleges or Management of Self-Financing Colleges will not have any right over the admission of the additional seats.
(Sd)...
Section Officer.
70. No reasons are given, and no source of power is indicated in the impugned order. As per the impugned G.O. 50% of the seats in the unaided Arts and Science Colleges in all branches of Under Graduate and Post Graduate courses shall be allotted as government quota, as in the cases of Self-Financing Engineering Colleges. 50% of the seats in the private unaided colleges could not be treated as Government quota as there is absolutely no basis or legal authority for the same. In the absence of any centralised tests in order to decide the merits of the candidates for allotment of seats, the seats cannot be filled up as in the case of self-financing engineering colleges.
71. The students may apply to different private unaided colleges in the State; one student may apply to any number of colleges; there may be over-concentration of applications to few leading colleges and there may be few applications to some other colleges; even so there may be lesser number of applications than the seats available; there is also no criteria or basis in evaluating the merits of the candidates with reference to each college; each college may have its own criteria in deciding the merit; if large number of applications are filed by students to one college from all over the State, the colleges which were started to meet the local need may not be in a position to admit the students of the local area. The process of selection and consequent admission to colleges shall be delayed if the method of selection as indicated in the impugned order is followed.
72. Constitution of a selection committee for admissions in order to select the students for admission with the Regional Joint Director of Collegiate Education of the concerned region, the Principal of the concerned college, and one Government nominee, would show that the Principal of the college will be in minority," and the exclusive responsibility of the Principal in the matter of admission is taken away, as opposed to Rule 9(5). We are told, in each region, there may be 20 to 50 colleges and all the colleges in the region have to meet in the office of the Regional Joint Director of the concerned region, every time to issue a first list, second list and third list. The position in respect of a student who gets admission in more than one college will not be clear unless the third list is issued. Even after the third list, if there is any vacancy, the Committee alone can fill up the remaining seats.
73. No guidelines are given for the selection of students. The marks secured in the Board or University examination may not alone be the criteria in deciding the merit of a candidate in each college. Even a student has to send copy of his application for admission to all the Regional Joint Directors which would lead to difficulty. Why should be sent copy of his application to the Regional Directors of all the regions, if he has applied to a college in a particular region and when that Regional Director has to consider his application. How there could be inter communication between different selection committees of different regions? Added to this, the standards of the Boards and Universities may very in the matter of conducting examinations and awarding marks for various subjects. In this situation, in the absence of any rational basis or a method evolved to decide the merit of a candidate, it may lead to difficulties.
74. Further, every time every college has to go to the Regional Joint Director for preparation of lists of selected candidates for filling up the remaining seats. The management of the self-financing colleges under no circumstances shall admit any student for 50% seats reserved for Government, without indicating what happens if, in few colleges, applications in that category are less than the seats available. Additional seats if created shall also be filled up by the selection committee. As far as this Clause (9) in the annexure is concerned, the State Government has issued amendment G.O.No.320, dated 16.6.1997 making 50% of such additional seats alone shall be filled up by the selection committee.
75. In the counter affidavit it is stated that a high level, commiittee was constituted as complaints were received that the unaided private colleges were not following the rules of the Government in admission matters, and they collect huge sum for admission; based on the High level committee report, the impugned order was issued. G.O.Ms.No.603, dated 30.8.1996 was issued constituting high level committee. If we look into it, we see it deals with the aspect of the infrastructural facilities, qualification and adequacy of staff in them, financial soundness of the institution etc. But in the said order there is no reference to complaints as regards the private unaided colleges not following the rules of the Government in admission of students and collection of huge sum for admission. Even the terms of reference appended to the said order do not include admission matter, and do not include Arts and Science Colleges. Hence, the reasons given for issuing the impugned order is untenable. As already stated earlier, no particulars of complaints in respect of particular colleges are given in the counter affidavit. Even the impugned order is applied to Minority Institutions without realising the protecting available to minority institutions. All these show non-application of mind before issuing the impugned order leading to arbitrary and unreasonable action.
76. Rule 7(3)(b) is relied on by the respondents to say that educational agency shall carry out the instructions issued by the Government from time to time in the public interest to ensure that the interest of the students belonging to the socially and educationally backward classes and linguistic minorities are safeguarded. Caption of Rule 7 is 'Payment of Grant.' Rule 7(3) states that the Government may withhold permanently or for any specified period, the whole or part of any grant, if any of the conditions specified in that rule or directions or orders issued by the Government, or the Director or his Subordinate Officers from time to time, are contravened, or not complied with. Thus when the instructions given are not carried out by educational agency, under Rule 7(3)(b), the Government may withhold grant. Hence, Rule 7(3)(b) neither provides the source nor the authority for issuing the impugned order.
77. In some aided colleges, unaided courses are existing. The impugned Government Order has not been made applicable to them, which is discriminatory.
78. It is also pointed out that the total number of students admitted belonging to Scheduled Castes, Scheduled Tribes and Backward classes, in the unaided private colleges, are more than 50%. The respondents though have given figures in respect of these categories for the year 1995-96 in the typed set, they have not given for other years. It was pointed out that looking to the figure given by the respondents at pages 25 to 28 in the typed set in respect of each college, the rule of reservation is substantially complied with in the matter of admission. In some cases more students are admitted in that category.
79. The impugned order was issued on 7.5.1997 just on the even of commencement of the academic year 1997-98 without there being sufficient time either for the private colleges or to the students to understand where they stand. There are no guidelines in the process of selection also.
80. The proceedings No. Na.Ka.76222/R4/96, dated 9.4.1997 issued pursuant to G.O.Ms.No.363, dated 5.6.1996 are applicable to Government/Aided/un-aided colleges of Arts and Science functioning in Tamil Nadu. The impugned Government Order does not supersede or modify G.O.Ms.No.363, dated 5.6.1996 or the said proceedings dated 9.4.1997. In paragraph 11 of the counter affidavit it is stated that in G.O.Ms.No.363, dated 5.6.1996 the Government have issued guidelines and procedure for admission of students to U.G./RG. courses in the Government, Aided and Unaided private colleges in the State. There is conflict between G.O.Ms.No.363, dated 5.6.1996 and the proceedings No. Na.Ka.76222/R4/ 96, dated 9.4.1997 on the one hand, and the impugned order as to the Constitution of selection committee and the procedure to be followed in selection and admission of students.
81. Having regard to what is stated above, we have no hesitation to hold that the impugned order offends Article 14 of the Constitution of India, it being arbitrary, discriminatory, and for non-application of mind.
82. In W.P.No.7594 of 1997, the petitioner has challenged the guidelines issued by the Director of Collegiate Education in proceedings No.76222/R4/96, dated 9.4.1997. During the course of arguments it was submitted that these guidelines were issued on the basis of G.O.Ms.No.363, dated 5.6.1996. G.O.Ms.No.363 is not challenged in the writ petition. It is stated that the Government Order was only for the academic year 1996-97. However, as regards constitution of selection committee is concerned, even in respect of Private Aided Colleges, the same will be the position as in the case of selection committee in respect of unaided colleges. In other words the State Government cannot constitute selection committee to make admissions to the extent of 50% of the seats based on the rule of reservation in the Aided Colleges. W.P.No.7594 of 1997 is to be disposed of accordingly. However, we make it clear that this order should not be understood that the private unaided self-financing colleges are relieved from the obligation of filling up 50% of the seats in their respective colleges strictly following the rule of reservation.
83. In view of the discussions made and reasons stated above, these batch of writ petitions except W.P.Nos.7594 of 1997 and 8010 of 1997 are allowed, and the impugned G.O.Ms.No.245, Higher Education (E1) Department, dated 7.5.1997 is quashed. W.P.No.7594 of 1997 is disposed of as indicated above. W.P.No.8010 of 1997 is dismissed in view of quashing of the impugned G.O. No costs.
84. W.RNos.7593, 7594, 7935 of 1977, etc. batch : Shivaraj Patil, J and P.D.Dinakaran, J. Immediately after we pronounced the order, the learned Special Government Pleader made an oral application seeking 'certificate for appeal to the Supreme Court'. In our opinion, these cases do not involve any substantial question of law of general importance that needs to be decided by the Supreme Court, as our order is based on the judgments of the Apex Court and the settled principles of law. Hence the oral application made is rejected.
85. After pronouncement of our order in these batch of writ petitions, the learned Special Government Pleader further prayed to suspend our order for some time as the respondents intend to take the matter to the Supreme Court. These writ petitions relate or, and have bearing on admission of students to fill up 50% seats in about 114 private unaided colleges; may be about 20,000 students are to be admitted is this category; the impugned order is issued on 7th May, 1997 just before the admissions were to start for the academic year 1997-98, the impugned Government Order was stayed on 3.6.1997; we modified the said order on 16.6.1997 restraining the private unaided colleges from making admission to the 50% of seats in their colleges until the disposal of these writ petitions; on the same day itself it was submitted that admissions were made in view of the interim stay granted by the learned single Judge to a substantial extent; some admissions were made and the admissions for the remaining seats were in progress; classes in respect of various courses have to commence in these colleges in this month itself, but may be on different dates in respect of different courses. It was submitted that there was already confusion as to the admission in the minds of the students and their parents, and any delay would cause difficulty and even may lead to shortage of attendance in meeting the requirements of the University relating to attendance for about 20,000 students.
86. Having considered all aspects, we have disposed of the writ petitions. Thus having regard to all aspects relating to the admission of large number of students in the unaided self-financing Arts and Science Colleges, we do not find any good ground to suspend our order. Hence the request to suspend the order made by the learned Special Government Pleader in these circumstances is rejected.