Rajasthan High Court - Jaipur
Association Of Self Financing vs State Of Raj And Anr on 25 July, 2018
Author: Inderjeet Singh
Bench: Inderjeet Singh
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writs No. 7177/2018
Association of Self Financing Universities of Rajasthan, through
its authorised signatory Dr. Sandeep Bakshi S/o Sardar Malook
Singh, aged about 52 years, R/o A-18 Shanti Path Tilak Nagar
Jaipur.
----Petitioner
Versus
1. State Of Rajasthan through the Secretary, Department Of
Higher Education (Gr.IV), Government Of Rajasthan,
Secretariat, Jaipur.
2. Coordinator, JET/Pre PG Examination, Maharana Pratap
University of Agriculture and Technology, Udaipur.
----Respondents
For Petitioner(s) : Sh. Kamlakar Sharma Sr. Adv.,
assisted by Sh. Rishabh Khandelwal
Adv.
For Respondent(s) : Sh. Rajendra Prasad Addl. Adv. Gen.,
assisted by Sh. M. Shiromani Sharma
Adv. (for respondent no.1)
Sh. Harish Chandra Sharma ( for
respondent no.2)
HON'BLE MR. JUSTICE INDERJEET SINGH
JUDGMENT
25/07/2018
1. By way of this writ petition, the petitioner, Association of Self
Financing Universities of Rajasthan) (hereinafter to be referred as
the "Association") has challenged the order dated 18-1-2018
passed by the State Government framing certain guidelines for
granting admission to the students in the private universities
working under & attached with the Association, for the courses
relating to agriculture and has made the following prayers :-
(2 of 37) [CW-7177/2018]
"It is, therefore, humbly prayed that in the facts
and circumstances stated above, this Hon'ble
Court be pleased to kindly call for the relevant
record from the respondent State authorities,
examine the same and thereupon
(i) declare the conditions No.10, 11, 12 and 16
as has been imposed in the letter dt.18.1.2018
(Annexure-3) as nonest and offending the
autonomous character of the Universities
established under the various University Acts
thereby the same be also quashed and set aside.
(ii) The conduct of the examination for admission
of the students in the faculty of B.Sc. Hons.
(Agri) through a government agency namely
Maharana Pratap University be also declared as
void.
(iii) It be also declared that the petitioner
Association would is entitled to regulate the
matters of admission and the other matters allied
therein, in order to keep the parity.
(iv) Such other orders be also passed which are
found in the interest of justice including any other
directions which is found appropriate and in
favour of the petitioner Association and its
Members so as to keep intact the autonomous
character of the Universities in the maters of
floating the courses, in the maters of admission of
the students, in the maters of restricting the
number of students and the other things as are
envisaged under the law.
Any other relief which this Hon'ble Court
may deem just and proper in the facts and
circumstances of the case may also kindly be
granted in favour of the humble petitioner
Association and its Members."
(3 of 37) [CW-7177/2018]
2. Before parting with the submissions of the counsel for the
parties, it would be appropriate to deal with the issue of
maintainability of the writ petition which has been raised by the
counsel for the respondents.
3. Learned Senior Counsel appearing for the respondents submits that the writ petition filed by the petitioner Association is not maintainable as no resolution has been passed by the petitioner Association to challenge the order dated 18-1-2018. Learned Senior Counsel further submits that the petitioner Association has not submitted the details of aims & objects and no bye-laws/memorandum have been filed along with the writ petition as such the writ petition filed on behalf of the Association is not maintainable. Learned Senior Counsel further submits that no expert body has been created by the Association to conduct the entrance test and still they are admitting the students.
4. In support of the contentions, Learned Senior Counsel for the respondents relied upon the judgment of the Hon'ble Apex Court in the matter of Bennett Coleman & Co. & Ors. Vs. Union of India & Ors., reported in AIR 1973 SC 106, where in paras-10, 11, 20, 21 & 22 it has been held as under :-
"10. The Additional Solicitor General raised two pleas in demurrer. First, it was said that the petitioners were companies and therefore, they could not invoke fundamental rights. Secondly, it was said that Article 358 of the Constitution is a bar to any challenge by the petitioners of violation of fundamental rights.
(4 of 37) [CW-7177/2018]
11. This Court in State Trading Corporation of India Ltd. v. The Commercial Tax Officer, Visakhapatnam [1964]4SCR99 = (AIR 1963 SC 1811) and Tata Engineering & Locomotive Co. v. State of Bihar, [1964]6SCR885 = (AIR 1965 SC 40) expressed the view that a corporation was not a citizen within the meaning of Article 19, and, therefore, could not invoke that Article. The majority held that nationality and citizenship were distinct and separate concepts. The view of this Court was that the word "citizen" in Part II and in Article 19 of the Constitution meant the same thing. The result was that an incorporated company could not be a citizen so as to invoke fundamental rights. In the State Trading Corporation case [1964]4SCR99 = (AIR 1963 SC 1811) (supra) the Court was not invited to "tear the corporate veil". In the Tata Engineering & Locomotive Co. case [1964]6SCR885 = (AIR 1965 SC 40) (supra) this Court said that a company was a distinct and separate entity from shareholders. The corporate veil, it was said, could be lifted in cases where the company is charged with trading with the enemy or perpetrating fraud on the Revenue authorities. Mukherjea J., in Chiranjit Lal Choudhuri v. The Union of India and Ors. [1950]SCR869=(AIR 1951 SC 41) expressed the minority view that an incorporated company can come up to this Court for enforcement of fundamental rights.
20. In R. C. Cooper v. Union of India [1970]3SCR530 = (AIR 1970 SC 564) which is referred to as the Bank Nationalisation case Shah, J. speaking for the majority dealt with the contention raised about the maintainability of the petition. The petitioner there was a shareholder, a Director and holder of deposit of current accounts in the Bank.
(5 of 37) [CW-7177/2018] The locus standi of the petitioner was challenged on the ground that no fundamental right of the petitioner there was directly impaired by the enactment of the Ordinance and the Act or any action taken thereunder. The petitioner in the Bank Nationalisation case (1970)3 SCR 530 = (AIR 1970 SC 564) (supra) claimed that the rights guaranteed to him under Articles 14, 19 and 31 of the Constitution were impaired. The petitioner's grievances were these. The Act and the Ordinance were without legislative competence. The Act and the Ordinance interfered with the guarantee of freedom of trade. They were not made in public interest. The President had no power to promulgate the Ordinance. In consequence of hostile discrimination practised by the State the value of the petitioner's investment in the shares is reduced. His right to receive dividends ceased. He suffered financial loss. He was deprived of the right as a shareholder to carry on business through the agency of the company.
21. The ruling of this Court in Bank Nationalisation case, (1970) 3 SCR 530 = (AIR 1970 SC 564) (supra) was this:
A measure executive or legislative may impair the rights of the company alone, and not of its shareholders; it may impair the rights of the shareholders not of the Company; it may impair the rights of the shareholders as well as of the company. Jurisdiction of the Court to grant relief cannot be denied, when by State action the rights of the individual shareholder are impaired if that action impairs the rights of the Company as well. The test in determining whether the shareholder's right is impaired is not formal; it is essentially (6 of 37) [CW-7177/2018] qualitative; if the State action impairs the right of the shareholders as well as of the Company, the Court will not, concentrating merely upon the technical operation of the action, deny itself jurisdiction to grant relief.
22. In the Bank Nationalisation case (1970) 3 SCR 530 = (AIR 1970 SC 564) (supra) this Court held the statute to be void for infringing the rights under Articles 19(1)(f) and 19(1)(g) of the Constitution. In the Bank Nationalisation case (supra) the petitioner was a shareholder and a director of the company which was acquired under the statute. As a result of the Bank Nationalisation case (supra) it follows that the Court finds out whether the legislative measure directly touches the company of which the petitioner is a shareholder. A shareholder is entitled to protection of Article 19. That individual right is not lost by reason of the fact that he is a shareholder of the company. The Bank Nationalisation case (supra) has established the view that the fundamental rights of shareholders as citizens are not lost when they associate to form a company. When their fundamental rights as shareholders are impaired by State action their rights as shareholders are protected. The reason is that the shareholders' rights are equally and necessarily affected if the rights of the company are affected. The rights of shareholders with regard to Article 19(1)(a) are projected and manifested by the newspapers owned and controlled by the shareholders through the medium of the corporation. In the present case, the individual rights of freedom of speech and expression of editors, Directors and shareholders are all exercised through their newspapers through which they speak. The press (7 of 37) [CW-7177/2018] reaches the public through the Newspapers. The shareholders speak through their editors. The fact that the companies are the petitioners does not prevent this Court from giving relief to the shareholders, editors, printers who have asked for protection of their fundamental rights by reason of the effect of the law and of the action upon their rights. The locus standi of the shareholder petitioners is beyond challenge after the ruling of this Court in the Bank Nationalisation case (supra). The presence of the company is on the same ruling not a bar to the grant of relief."
5. In counter to the submission made by Learned Senior Counsel for the respondents, the Learned Senior Counsel appearing for the petitioner Association submitted that they have placed certificate of registration, resolution, the list of members & self financing universities, Constitution of petitioner Association and all other documents which are required for holding the petitioner Association competent to invoke the jurisdiction of this Court way of filing the present writ petition.
6. The objection raised by the Learned Senior appearing for the respondents regarding maintainability of the writ petition is not accepted in view of the fact that along with the rejoinder, constitution of the present Association has been filed by the petitioner Association along with which certain documents were also filed by the petitioner Association like, list of self financing universities and minutes of the meeting dated 22-3-2018 taking decision to challenge the guidelines of the order dated 18-1-2018.
7. After going through the documents submitted by the petitioner Association like certificate of registration, resolution, the list & Constitution of petitioner Association, in my considered view (8 of 37) [CW-7177/2018] the petitioner Association has a right to file the present writ petition and therefore the objection taken by the Learned Senior Counsel appearing for the respondents is waived and the writ petition is held maintainable.
8. Learned Senior Counsel appearing for the petitioner- Association, Sh. Kamlakar Sharma assisted by Sh. Rishabh Khandelwal Adv., submits that private universities have been established under the Act like Mewar University, Chittorgarh Act,2009 (hereinafter to be referred to as the "Act of 2009") for the purpose of providing education facility in the State of Rajasthan and the private universities after establishment started various courses approved by the State Government, as mentioned in the Schedule appended to the Act of 2009. Learned Senior Counsel further submitted that since the very inception all the private universities formed Association namely Self Financing Universities of Rajasthan under the Act of 2009, which is conducting Common Entrance Test (CET) for the purpose of giving admission to the students in agricultural as well as various other courses in all its fairness and at no point of time any complaint whatsoever has ever been made by any student with regard to irregularity being committed while granting admissions to the students. Learned Senior Counsel further submitted that while issuing the order dated 18-1-2018 the State Government has directly interfered in the functioning of the Self Financing Universities attached with the present Association.
9. In support of the contentions, Learned Senior Counsel appearing for the Association, relied upon certain provisions of the Act,2009 which read as under :-
(9 of 37) [CW-7177/2018] "5. Powers and functions of the University.- The University shall have the following powers and functions, namely :-
(a) to provide for instruction in the disciplines specified in Schedule II and to make provisions for research and for the advancement and dissemination of knowledge;
(b) to grant, subject to such conditions as the University may determine, diplomas or certificates, and confer degrees or other academic distinctions on the basis of examinations, evaluation or any other method of testing on persons, and to withdraw any such diplomas, certificates, degrees or other academic distinctions for good and sufficient cause;
(n) to determine standards for admission into the University, which may include examination, evaluation or any other method of testing;
(w) to establish examination centres;
(x) to ensure that the standard of degrees, diplomas, certificates and other academic distinctions are not lower than those laid down by AICTE, NCTE, UGC, MCI, PCI and other similar bodies established by or under any law for the time being in force for the regulation of the education;
6.- University to be self-financed.- The University shall be self-financed and shall not be entitled to receive any grant or other financial assistance from the State Government.
32.- Admissions.-(1) Admission in the University shall be made strictly on the basis of merit.
(2) Merit for admission in the University may be determined either on the basis of marks or grade obtained in the qualifying examination and achievements in co-curricular and extra-curricular activities or on the basis of marks or grade obtained in (10 of 37) [CW-7177/2018] the entrance test conducted at the State level either by an association of the universities conducting similar courses or by any agency of the State :
Provided that admission in professional and technical courses shall be made only through entrance test.
(3) Reservation in admission to the University for scheduled castes, scheduled tribes and other backward classes, women and handicapped persons shall be provided as per the policy of the State Government.
33. Fee Structure.- (1) The University may, from time to time, prepare its fees structure and sent it for approval of the committee for the purpose. (2) The committee shall consider the fees structure prepared by the University and if it is satisfied that the proposed fee is-
(a) sufficient for :-
(i) generating resources for meeting the recurring expenditure of the University; and
(ii) the savings required for the further development of the University; and
(b) not unreasonably excessive, it may approve the fees structure.
(3) The fees structure approved by the committee under sub-section (2) shall remain in force for three years and the University shall be entitled to charge fees in accordance with such fees structure. (4) The University shall not charge any fees, by whatever name called, other than that for which it is entitled under sub-section (3).
37.-Accreditation of the University.- The University shall obtain accreditation from the NAAC, as per the norms of the NAAC and inform the State Government and such other regulating bodies which are connected (11 of 37) [CW-7177/2018] with the courses taken up by the University about the grade provided by the NAAC to the University. The University shall get renewed such accreditation from time to time as per the norms of the NAAC.
38.- University to follow rules, regulations,
norms, etc. of the regulating bodies.-
Notwithstanding anything contained in this Act, the University shall be bound to comply with all the rules, regulations, norms etc. of the regulating bodies and provide all such facilities and assistance to such bodies as are required by them to discharge their duties and carry out their functions.
10. Learned Senior Counsel during the course of arguments also brought to the notice of the Court that agricultural course has been declared as professional course by the Indian Council of Agricultural Research (ICAR) after 6-10-2016 and also submitted that the UG courses in the agricultural & allied subjects have been declared as professional course by the Central Government vide order dated 26-10-2017.
11. Learned Senior Counsel further submitted that granting admission to the students is solely under the power & control of the private universities attached to the present Association in view of the provisions of the Act of 2009 and any order or instruction issued by the State Government contrary to the Statute is void ab initio. Learned Senior Counsel further submitted that the statute though includes the State Government but does not confer right to interfere in the powers of Self Financing Universities while granting admission to the students in various courses. Learned Senior Counsel further submits that the power of the State Government is very limited who can only inspect the universities (12 of 37) [CW-7177/2018] and in support of the contentions made a further reference of the provisions contained under Sections 41, 42, 43, 44 of the Act,2009 and submits that these sections no where deals about interference by the State Government in the admission process by the private universities.
12. The provisions of Sections 41, 42, 43 & 44 of the Act of 2009 are as under :-
"41. Powers of the State Government to inspect the University.(1) For the purpose of ascertaining the standards of teaching, examination and research or any other matter relating to the University, the State Government may cause an inspection, to be made in such manner as may be prescribed, by such person or persons as it may deem fit.
(2) The State Government shall communicate to the University its recommendations in regard to the result of such inspection for corrective action. The University shall adopt such corrective measures and make efforts so as to ensure the compliance of the recommendations.
(3) If the University has failed to comply with the recommendations made under sub-section(2) within a reasonable time, the State Government may give such directions as it may deem fit for such compliance."
42. Powers of the State Government to call for information.(1) The State Government may call for information from the University relating to its working, functions, achievements, standard of teaching, examination and research or any other matters as it may consider necessary to judge the (13 of 37) [CW-7177/2018] efficiency of the University in such form and within such time as may be prescribed by rules.
(2) The University shall be bound to furnish the information as required by the State Government under sub-section(1) within the prescribed time.
43. Dissolution of the University by the Sponsoring Body.-(1) The Sponsoring Body may dissolve the University by giving a notice to the effect in the prescribed manner to the State Government and the employees and the students of University at least one year in advance:
Provided that dissolution of the University shall have effect only after the approval of the State Government and the last batches of students of the regular courses have completed their courses and they have been awarded degrees, diplomas or awards, as the case may be.
(2) On the dissolution of the University all the assets and liabilities of the University shall vest in the Sponsoring Body.
44. Special powers of the State Government in certain circumstances.-(1) If it appears to the State Government that the University has contravened any of the provisions of this Act or the Rules, Statutes or Ordinances made thereunder or has violated any of the directions issued by it under this Act or has ceased to carryout any undertakings given by it to the State Government or a situation of financial mismanagement or mal-administration has arisen in the University, it shall issue notice requiring the University to show cause within forty-five days as to why an order of its liquidation should not be made.
(2) If the State Government, on receipt of reply of the University on the notice issued under sub-section (14 of 37) [CW-7177/2018] (1), is satisfied that there is a prima facie case of contravening any of the provisions of this Act or the Rules, Statutes or Ordinances made thereunder or of violating directions issued by it under this Act or of ceasing to carryout the undertakings given by it or of financial mismanagement or mal-administration, it shall make an order of such enquiry as it may consider necessary.
(3) The State Government shall, for the purposes of any enquiry under sub-section(2), appoint an inquiry officer or officers to inquire into any of the allegations and to make report thereon.
(4) The inquiry officer or officers appointed under sub-section (3) shall have the same powers as are vested in a civil court under the Code of Civil Procedure,1908 (Central Act No.5 of 1908) while trying a suit in respect of the following matters namely :-
(a) summoning and enforcing the attendance of any person and examining him on oath;
(b) requiring the discovery and production of any such document or any other material as may be predicable in evidence; and
(c) requisitioning any public record from any court or office.
(5) The inquiry officer or officers inquiring under this Act shall be deemed to be a civil court for the purposes of section 195 and Chapter 26 of the Code of Criminal Procedure, 1973 (Central Act No.2 of 1974).
(6) On receipt of the enquiry report from the officer or officers appointed under sub-section(3), if the State Government is satisfied that the University has contravened any of the provisions of this Act or the Rules, Statutes or Ordinances made thereunder or has violated any of the directions issued by it under this Act or has ceased to carryout the undertakings (15 of 37) [CW-7177/2018] given by it or a situation of financial mismanagement and mal-administration has arisen in the University which threatens the academic standard of the University, it shall make orders for liquidation of the University and appoint an administrator and thereupon the authorities and officers of the University shall be subject to the order and direction of the administrator. (7) The administrator appointed under sub-
section(6) shall have all the powers and be subject to all the duties of the Board of Management under this Act and shall administer the affairs of the University until the last batch of the students of the regular courses have completed their courses and they have been awarded degrees, diplomas or awards as the case may be.
(8) After having been awarded the degrees, diplomas or awards, as the case may be, to the last batches of the students of the regular courses, the administrator shall make a report to the effect to the State Government.;
(9) On receipt of the report under sub-section (8), the State Government shall, by a notification in the Official Gazette, issue an order dissolving the University and from the date of publication of such notification the University shall stand dissolved and all the assets and liabilities of the University shall vest in the Sponsoring Body from such date."
13. Learned Senior Counsel further submits that the order dated 18-1-2018 is only an administrative order and the same cannot be issued by the State Government contrary to the provisions of the Act,2009. Learned Senior Counsel further submits that there is no object sought to be achieved in passing of the order dated 18-1- 2018. Learned Senior Counsel further submits that the State (16 of 37) [CW-7177/2018] Government has also imposed the condition regarding the students seeking admission must be having domicile of the State of Rajasthan, which according to him is also not sustainable and in support of the contentions, Learned Senior Counsel relied upon the judgment of the Hon'ble Apex Court in the matter of Nikhil Himthani Vs. State of Uttarakhand & Ors, reported in 2013(10) SCC 237, where in paras-15, 16, 19 it has been held as under :-
"15. We are thus of the considered opinion that to exclude the Petitioner from consideration on the basis of his merit only on the ground that he was not admitted to the MBBS course through the Uttarakhand PMT would be to deny him equality of opportunity in matter of admission to the post- graduate medical course and to violate his right to equality under Article 14 of the Constitution as explained by this Court in the case of Dr. Pradeep Jain and Ors. v. Union of India and Ors. (supra).
16. We now come to clauses 2 and 3 of the Eligibility Criteria in the Information Bulletin. Under clauses 2 and 3, a domicile of Uttarakhand who has passed MBBS from a medical college of some other State having been admitted either through the 15% All India quota or through the pre-medical test conducted by the concerned State Government has been made eligible for admission to a post-graduate medical course in the State quota. Obviously, a candidate who is not a domicile of Uttarakhand State is not eligible for admission to post-graduate course under clauses 2 and 3 of the Eligibility Criteria. Preference, therefore is given only on the basis of residence or domicile in the State of Uttarakhand (17 of 37) [CW-7177/2018] under clauses 2 and 3 of the Eligibility Criteria and such preference on the basis of residence or domicile within a State has been held to be violative of Article
14 of the Constitution in the case of Dr. Pradeep Jain and Ors. v. Union of India and Ors. (supra) and Magan Mehrotra and Ors. v. Union of India and Ors. (supra).
19. Thus, it will be clear from what has been held by the three-Judge Bench of this Court in Magan Mehrotra and Ors. v. Union of India and Ors. (supra) that no preference can be given to candidates on the basis of domicile to compete for the institutional quota of the State if such candidates have done their MBBS course in colleges outside the State in view of the decisions of this Court in Dr. Pradeep Jain and Ors. v. Union of India and Ors. (supra). Hence, clauses 2 and 3 of the Eligibility Criteria in the Information Bulletin are also violative of Article 14 of the Constitution."
14. Learned Senior Counsel further submits that condition no.10 of the order dated 18-1-2018 imposed by the State Government is arbitrary whereby the State Government has restricted the admission maximum of only 120 students in one private university. Learned Senior Counsel further submits that the condition no.11 of the order dated 18-1-2018 is also arbitrary whereby the State Government has directed to admit the students in the agricultural courses by way of conducting the Joint Entrance Test (JET) for which the University needs to apply to related agency and further submits that condition no.12 is also arbitrary in nature by which the Universities were directed to inform the State Government about the various details including of the (18 of 37) [CW-7177/2018] admitted students. Learned Senior Counsel further submits that the condition no.16 imposed by the State Government in its order dated 18-1-2018 is also bad in the eye of law as the State Government has directed for depositing the excess 50% fee with the State Government for entire courses charged from the students exceeding the limit of 120 students who were admitted before passing of the order dated 18-1-2018 and also directed to limit the students only upto 120, which according to Learned Senior Counsel is not sustainable in the eye of law as the State Government cannot issue such directions from the retrospective date.
15. In support of the contentions, Learned Senior Counsel relied upon the judgment passed by the Hon'ble Apex Court in the matter of P.A. Inamdar & Ors. Vs. State of Maharashtra & Ors., reported in 2005(6) SCC 537, where in paras-133 to 137 it has been held as under :-
"133. So far as the minority unaided institutions are concerned to admit students being one of the components of "right to establish and administer an institution", the State cannot interfere therewith. Upto the level of undergraduate education, the minority unaided educational institutions enjoy total freedom.
134. However, different considerations would apply for graduate and postgraduate level of education, as also for technical and professional educational institutions. Such education cannot be imparted by any institution unless recognized by or affiliated with any competent authority created by law, such as a University, Board, Central or State Government or (19 of 37) [CW-7177/2018] the like. Excellence in education and maintenance of high standards at this level are a must. To fulfill these objectives, the State can and rather must, in national interest, step in. The education knowledge and learning at this level possessed by individuals collectively constitutes national wealth.
135. Pai Foundation has already held that the minority status of educational institutions is to be determined by treating the States as units. Students of that community residing in other States where they are not in minority, shall not be considered to be minority in that particular State and hence their admission would be at par with other non-minority students of that State. Such admissions will be only to a limited extent that is like a 'sprinkling' of such admissions, the term we have used earlier borrowing from Kerala Education Bill, 1957. In minority educational institutions, aided or unaided, admissions shall be at the State level. Transparency and merit shall have to be assured.
136. Whether minority or non-minority institutions there may be more than one similarly situated institutions imparting education in any one discipline, in any State. The same aspirant seeking admission to take education in any one discipline of education shall have to purchase admission forms from several institutions and appear at several admission tests conducted at different places on same or different dates and there may be a clash of dates. If the same candidate is required to appear in several tests, he would be subjected to unnecessary and avoidable expenditure and inconvenience. There is nothing wrong in an entrance test being held for one group of (20 of 37) [CW-7177/2018] institutions imparting same or similar education. Such institutions situated in one State or in more than one State may join together and hold a common entrance test or the State may itself or through an agency arrange for holding of such test. Out of such common merit list the successful candidates can be identified and chosen for being allotted to different institutions depending on the courses of study offered, the number of seats, the kind of minority to which the institution belongs and other relevant factors. Such an agency conducting Common Entrance Test (CET, for short) must be one enjoying utmost credibility and expertise in the matter. This would better ensure the fulfillment of twin objects of transparency and merit. CET is necessary in the interest of achieving the said objectives and also for saving the student community from harassment and exploitation. Holding of such common entrance test followed by centralized counseling or, in other words, single window system regulating admissions does not cause any dent in the right of minority unaided educational institutions to admit students of their choice. Such choice can be exercised from out of list of successful candidates prepared at the CET without altering the order of merit inter se of the students so chosen.
137. Pai Foundation has held that minority unaided institutions can legitimately claim unfettered fundamental right to choose the students to be allowed admissions and the procedure therefor subject to its being fair, transparent and non- exploitative. The same principle applies to non- minority unaided institutions. There may be a single institution imparting a particular type of education which is not being imparted by any other institution (21 of 37) [CW-7177/2018] and having its own admission procedure fulfilling the test of being fair, transparent and non-exploitative. All institutions imparting same or similar professional education can join together for holding a common entrance test satisfying the abovesaid triple tests. The State can also provide a procedure of holding a common entrance test in the interest of securing fair and merit based admissions and preventing maladministration. The admission procedure so adopted by private institution or group of institutions, if it fails to satisfy all or any of the triple tests, indicated hereinabove can be taken over by the State substituting its own procedure. The second question is answered accordingly."
16. Learned Senior Counsel further relied upon the judgment of the Hon'ble Supreme Court in the matter of Union of India & Anr. Vs. Ashok Kumar Agarwal, reported in 2013(16) SCC 147 where in para-59 it has been held as under :-
"59. The law laid down above has consistently been followed and it is a settled proposition of law that an authority cannot issue orders/office memorandum/ executive instructions in contravention of the statutory Rules. However, instructions can be issued only to supplement the statutory rules but not to supplant it. Such instructions should be subservient to the statutory provisions."
17. Leaned Senior Counsel further relied upon the judgment passed by the Hon'ble Apex Court in the matter of State of Punjab & Ors. Vs. Anita & Ors., reported in 2015(2) SCC 170, wherein in para-18 it has been held as under :-
(22 of 37) [CW-7177/2018] "18. Having given our thoughtful consideration to the submissions advanced at the hands of the learned Counsel for the private Respondents, based on the government instructions dated 20.12.1995, we are of the view, that the private Respondents do not satisfy the pre-condition of valid appointment expressed therein, inasmuch as, it was imperative for the Selection Committee, in the first instance, to consider only those candidates who possessed the qualification of JBT/ETT, and thereupon, posts that remained unfilled could be filled up with persons possessing higher qualifications, i.e., graduate/post graduate qualifications along with B. Ed.. That was not the procedure which came to be adopted in the present controversy. Therefore per se, no benefit can flow to the private Respondents, from the government instructions relied upon by the Learned Counsel. Be that as it may, it needs to be emphasised, that para 6 of the Government Instructions dated 20.12.1995, are in clear violation of the statutory process of selection and appointment postulated under the 1981 Rules. Even if the above Government Instructions would have bestowed validity on the selection process, through which the private Respondents came to be appointed, the same could not have been acceded to, since Government Instructions in violation of the statutory rules, are a nullity in law. In view of the foregoing reasons, it is not possible for us to bestow legitimacy/legality to the appointment of the Respondents as JBT/ETT teachers."
18. Learned Senior Counsel further submits that the National Assessment and Accreditation Council (NAAC) while grading the universities also takes into consideration the aspect as to how many admissions have been given to the students from outside (23 of 37) [CW-7177/2018] the State, therefore, the condition of domicile being the State of Rajasthan is also bad in the eye of law.
19. Learned Senior Counsel further relied upon the judgment passed by the Orissa High Court in the matter of Orissa Management Colleges Association & etc. Vs. State of Orissa & etc., reported in AIR 2007 Ori 120 where in para-46 & 47 it has been held as under :-
"46. In so far as imposition of fee structure is concerned, the same has been dealt with under Section 6 of the said Act by which Fee Structure Committee has been set up. It is clear from a perusal of the composition of the said Committee that same is completely controlled and dominated by the Government and anyone associated with the private professional educational institution cannot be even a member of the said Committee. Learned Counsel for the State submitted that same has been done with a view to prevent the private un-aided institutions from charging capitation fee or indulging in profit motive. But the AICTE Act, Section 10(j) deals with fixation of norms and guidelines for charging tuition and other fees and under Section 10(n) of the said Act the Council is specially authorized to take all necessary steps to prevent commercialization of technical education. In view of existence of such stipulation in the Central Law, the State Law cannot set up a Fee Structure Committee by encroaching upon the area which is occupied by the Central Law. It has already been held by the Supreme Court that in view of Entry 66 of the Central List, if the law is made pursuant to that entry, as has been done in the case of AICTE or under the Medical Council Act, the power of State to legislate in that field under Entry 25 of the Concurrent (24 of 37) [CW-7177/2018] List is necessarily excluded. Even if it is assumed that the State has the legislative competence to enact the said Act, (which it does not have) a law to the extent of completely restraining the management of the private institutions to impose any fee amounts to violation of fundamental rights of persons establishing such institutions under Article 19(1)(g) of the Constitution in view of decisions in T.M.A. Pai's Case MANU/SC/0905/2002 : (2002) 8 SCC 48.
47. In T.M.A. Pai's case, it has been held in paragraphs 38 to 45 at pages 540-42 of the report that the scheme in Unni Krishnan's case has the effect of nationalizing education. By framing the scheme in Unni Krishnan, the right of private unaided institutions to give admission and fix a fee was curtailed and as a result whereof private institutions became indistinguishable from Government institutions. Such scheme was held to be not valid and was overruled in paragraph 45, pages 541-42 of the report. But the same thing is sought to be introduced under the said Act. After overruling the scheme in Unni Krishnan's case, in T.M.A. Pai the Supreme Court came to hold that the right to establish and administer private educational institutions contains the following rights, namely, (a) to admit students, (b) to set up a reasonable fee structure, apart from other rights (see para-50). In para-54 of the said judgment it has been held that the right to establish an educational institution can be regulated, but such regulatory measures can be exercised to ensure maintenance of proper academic standards, infrastructure and atmosphere and prevention of mal-administration by those who are in management. But fixation of a rigid fee structure and nominating students for admission are unacceptable restrictions. (see para-54), In (25 of 37) [CW-7177/2018] paragraph 56 it has been clearly held that decision on the fee to be charged must necessarily be left to the private educational institutions as that does not depend on the funds of the Government. In paragraph 161 and at page 591 of the report, in answer to question No. 11 it has been held in T.M.A. Pai that the right to establish and administer educational institutions is guaranteed under the Constitution to all citizens under Articles 19(1)(g) and 26 and to minorities specifically under Article 30. The said right under Articles 19(1)(g) and 26 is subject to the provisions of Articles 19(6) and 26(a). That right can only be controlled and be made subject to reasonable restrictions under Article 19(6). The nature of restrictions which have been imposed under the said Act relating to admission of students by the Petitioners and charging of fee does not amount to reasonable restriction at all. Nor are those restrictions saved under Article 19(6) of the Constitution, assuming but not admitting that the State Government has the power to enact the said Act. Under the said Act, the entire thing is sought to be totally controlled by State Government. Under the said Act the right of the Petitioners to admit students and to charge fee has been totally extinguished. Thus the same is violative of the provisions contained in Article 19(1)(g) of the Constitution. Therefore, assuming that the State Government is competent to enact the said law, even then the said law purports to completely take away the fundamental right of the Petitioners under Article 19(1)
(g) and if violative on that score also. This has been argued by Mr. Bagchi for the Petitioner in W.P. (C) No. 3689 of 2007 and this Court upholds the same.
20. Learned Senior Counsel further relied upon the judgment passed by the Madras High Court in the matter of Madha (26 of 37) [CW-7177/2018] Engineering College Vs. State of Tamilnadu, reported in 2007(4) CTC 13, where in para-7, 8 & 30 it has been held as under :-
"7. It is necessary to mention at this stage that the self-financing medical colleges without prejudice to their rights recognized in T.M.A. Pai case and P.A. Inamdar case offered 50% of the total seats in their institutions for the academic year 2006-07 for allotment by the Government under single window system. It seems that thereafter the Managements of the Institutions agreed to enhance the said quota to 65% and the remaining 35% were to be filled up by the medical colleges on multiple window basis.
8. When the matters stood thus, the Tamil Nadu State Legislature enacted Tamil Nadu Act 3 of 2007 on 06.12.2006 and the assent of the President was received on 03.03.2007 and the Act was brought into force on 07.03.2007. It will be convenient to refer to some of the provisions of the Act as they are material for the purpose of this case. The Object of the Act, as stated in the short title and in the preamble, is to provide for "admission to professional degree courses such as Engineering, Medicine, Dental, Agriculture and other allied courses on the basis of the marks obtained in the qualifying examinations". Sections 2(c)(iii), 4 and 5(4) are the provisions which are impugned as unconstitutional and they are as follows:
2. In this Act, unless the context otherwise requires:
(a) ...
(b) ...
(c)Government seats mean:
(27 of 37) [CW-7177/2018]
(i) ...
(ii) ...
(iii) 65% of the seats in each
branch in non-minority unaided
professional educational institutions and 50% of the seats in each branch in minority unaided professional educational institutions in accordance with the consensus arrived at between such professional educational institutions and the Government.
Section 4:- Admission to unaided professional educational institutions:-
Notwithstanding anything contained in any relevant law or any rules, regulations or by laws made thereunder, admission to seats, excluding the seats referred to in item (iii) of Clause (c) of Section 2, in all unaided professional educational institutions shall be made by the consortium of unaided professional educational institutions approved by the Government or by any Authority authorized by the Government, on the basis of the marks obtained by a student in the relevant subjects, in the qualifying examination.
Section 5(4) :- The appropriate authority and the consortium of unaided professional educational institution shall prepare the rank lists for admission of students to the seats referred to in Section 3 and Section 4, respectively and allot students through centralized counseling.
Section 2(c)(iii) of the Act declares that 65% of the seats in each branch in non-minority un-aided (28 of 37) [CW-7177/2018] professional educational institutions and 50% of the seats in each branch in minority unaided professional educational institutions shall be Government seats in accordance with the consensus arrived at between such professional educational institutions and the Government. Section 4 of the Act provides that admission to seats, excluding the seats referred to in item (iii) of Clause (c) of Section 2, in all unaided professional educational institutions shall be made by the consortium of unaided professional educational institutions approved by the Government or by any authority authorized by the Government, on the basis of the marks obtained by a student in the relevant subjects, in the qualifying examinations. Then Section 5(4) of the Act provides that such admissions shall be through centralized counseling.
30. Coming then to the question of validity of Section 4 and 5(4) of the Act, it is necessary to mention that T.M.A. Pai case while recognizing the institution's right of selection, did not mandate any particular method of selection. In this regard, reference may be made to the majority judgment in T.M.A. Pai case in paragraph 40, 59 and 65:
40. Any system of student selection would be unreasonable if it deprives the private unaided institution of the right of rational selection, which it devised for itself, subject to the minimum qualification that may be prescribed and to some system of computing the equivalence between different kinds of qualifications, like a common entrance test.
59. Merit is usually determined, for admission to professional and higher education colleges, by either the marks that the student obtains at the qualifying examination or school-leaving certificate stage followed by the interview, or by a common (29 of 37) [CW-7177/2018] entrance test conducted by the institution, or in the case of professional colleges, by government agencies.
65... While an educational institution cannot grant admission on its whims and fancies, and must follow some identifiable or reasonable methodology of admitting the students, any scheme, rule or regulation that does not give the institution the right to reject candidates who might otherwise be qualified according to, say, their performance in an entrance test, would be an unreasonable restriction under Article 19(6), though appropriate guidelines/modalities can be prescribed for holding the entrance test in a fair manner....
Section 4(1) has the effect of compelling the unaided institutions to admit students solely on the basis of the marks obtained in the qualifying examination. It takes away the right of the institutions to hold the common entrance test either through the Consortium or by individual institutions, and make the selection to conform to the triple tests namely, merit, transparency and non-exploitative. Section 4 consists of two parts. First, it states that the management seats shall be filled up by the Consortium in unaided educational institutions, as approved by the State or by any authority appointed by the State. Secondly, it mandates that such selection shall be only on the basis of the marks obtained by the States in the qualifying examinations. We find merit in the argument of the learned Counsel appearing for the unaided engineering colleges that the provisions of Section 4 are unreasonable as they deprive the unaided institutions their right of rationale selection on the basis of various methods of selection as mentioned in T.M.A.Pai. It is not (30 of 37) [CW-7177/2018] permissible for the State to force unaided private institutions to follow a particular practice of admission. Similarly, the provision for grant of approval to the Consortium by the State Government or by the authority appointed by it would also amount to serious encroachment on the right and autonomy of the private educational institutions in selection of the students."
21. Learned Senior Counsel further submits that separate entrance test may be held and both the entrance test by the private universities as well as by the State may go simultaneously in view of Sec.32 of the Act of 2009.
22. Learned Senior Counsel appearing for the respondent submits that the respondents have rightly issued the order dated 18-1-2018 as the State Government is competent to issue directions with regard to admission in the private universities. Learned Senior Counsel for the respondent while relying upon the provisions of Sec.32(2) of the Act,2009 (quoted above) submits that the admission process can be regulated by an agency of the State Government.
23. Learned Senior Counsel further submits that according to Sec.38 of the Act,2009 the University has to follow the rules, regulations, norms etc of the regulating bodies. Counsel further submits that the regulatory body includes the State Government as contemplated under Section 2(r), which reads as under :-
2. Definitions (r) "regulating body" means a body established or constituted by or under any law for the time being in force laying down norms and conditions for ensuring academic standards of higher education, such as UGC, AICTE, NCTE, (31 of 37) [CW-7177/2018] MCI, PCI, NAAC, ICAR, DEC, CSIR etc. and includes the State Government;
24. Learned Senior Counsel further submits that the State Government is competent to issue the order dated 18-1-2018 in view of the provisions aforesaid of the Act of 2009. Learned Senior Counsel further submitted that the State Government received various complaints regarding lack of infrastructure as well irregularities being committed in the private universities, therefore the State Government has decided to conduct inquiry with regard to irregularities being committed in the private universities. Learned Senior Counsel further submits that the Principal Secretary (Agriculture), Govt. of Rajasthan, requested the Additional Chief Secretary, Department of Higher Education, with regard to the irregularity/illegality being committed by the private universities as they have not followed the guidelines issued by the ICAR in conducting the agricultural courses. Learned Senior Counsel further submits that inspection was carried out of various private universities and it was found that in some of the universities the land as per the norms of the ICAR was not available or certain universities were not having whole land at one place in terms of the guidelines issued by the ICAR and some of the universities were not having proper educated faculty to teach the students and such reports have been placed on record along with Annx.R/3 and taking into consideration the material came to the notice of the committee it was suggested to follow the required norms for running the agricultural courses in these private universities and also recommended that maximum 120 students be admitted in one private university. The Committee further recommended for common entrance test in the agricultural (32 of 37) [CW-7177/2018] courses in the private universities like NEET & others. The Committee further recommended that to better regulate the agricultural education a regulatory body be established by the State Government. Learned Senior Counsel further submits that after receiving the reports of the inspecting committee a meeting was held on 2-1-2018 in the Chairmanship of Minister, Higher Education, Government of Rajasthan wherein a policy decision was taken to hold a Joint Entrance Test to give admission to the students in the State of Rajasthan in the agricultural courses in various private universities as well as state universities and it was further decided that as per the Regulations of ICAR looking to the availability of the faculty & infrastructure a maximum of 120 students (60 students in one section) be admitted in one university and certain other norms were decided & the same were incorporated while passing the order dated 18-1-2018. The minutes of the meeting dated 2-1-2018 has also been placed on record as Annx.R/4. Learned Senior Counsel further submits that as per the policy decision taken by the State Government Maharana Pratap University of Agricultural and Technology was appointed as Coordinator to conduct the JET Pre PG Examination and the said agency has also conducted the examination in the month of May,2018.
25. Learned Senior Counsel for the respondents has also relied upon the judgment passed by the Hon'ble Apex Court in the matter of P. A. Inamdar's case (supra) and submits that the Hon'ble Supreme Court in the aforesaid case has observed that in the matters of education the larger interest and welfare of the student community has to be ensured and counsel submits that taking that into consideration decision was taken to conduct the (33 of 37) [CW-7177/2018] JET in the larger interest & welfare of the students and the State Government is having expert body to conduct the said examination whereas the private universities are not having any such expert body.
26. Learned Senior Counsel further submits that the universities failed to submit any material on record with regard to conducting the joint entrance test in the previous years and the policy decision taken by the State Government is based on the inspection carried out of the various universities where neither proper infrastructure nor proper faculty to teach the students were found and further submitted that earlier every university was admitting the students separately. Learned Senior Counsel further submits that condition no.10 in the order dated 18-1-2018 is also not arbitrary in view of the provisions of the Act of 2009 and the same has been imposed to maintain higher standards of education as per the guidelines of ICAR looking to the availability of infrastructure and faculty within the university. Learned Senior Counsel further submits that the condition no.11 regarding joint entrance test in the State of Rajasthan by private universities as well as by State universities is well within the power of the State Government in view of the provisions of Sections 32, 38 & 2(r) of the Act of 2009.
27. Learned Senior Counsel further submits that the condition no.12 is neither arbitrary nor unreasonable as the University has to give the details of the admitted students. Learned Senior Counsel further submits that the condition no.16 has also rightly been framed by the State Government in the order dated 18-1- 2018. Learned Senior Counsel further submits that so far as the condition of domicile being of the State of Rajasthan is concerned, (34 of 37) [CW-7177/2018] since no such prayer has been made by the petitioner Association in the writ petition the same cannot be challenged by the petitioner Association.
28. Heard learned counsel for the parties and perused the material on record.
29. A bare perusal of the prayer made in the writ petition clearly shows that the petitioner Association has challenged the conditions no.10, 11, 12 & 16 of the order dated 18-1-2018.
30. The argument raised by counsel for the petitioner regarding challenge to the condition no.11 of the order dated 18-1-2018 being arbitrary, issued by the State Government without having any authority of law is not accepted in view of the provisions contained under Section 32(2) of the Act,2009 which provides to regulate the admissions in the university, entrance test can be conducted at the State level either by an association of the universities conducting similar courses or by any agency of the State and in the present matter, JET has been conducted by the agency of the State I.e. Maharana Pratap University of Agriculture & Technology and the State Government is competent to impose condition no.11 also in view of Sec.38 of the Act,2009 which provides that the University has to follow the rules, regulations, norms etc of regulatory bodies and a bare reading of the definition of regulating body as provided under Section 2(r) clearly shows that it includes the State Government, therefore in view thereof the State Government while issuing the order dated 18-1-2018 is well within its competence regulating the process of admission etc. in the State/Private Universities by conducting JET.
31. The second argument raised by the Learned Senior Counsel for the petitioner regarding arbitrariness of the State Government (35 of 37) [CW-7177/2018] in imposing condition no.10 in the order dated 18-1-2018 is also not acceptable as the State Government has taken a policy decision considering the reports of the committee of experts who has conducted the inspection of various universities and the inspection reports are available as Annx.R/3. The said committee has recommended for limiting the students upto 120 in every university (including the State Universities) for the agricultural courses looking to the availability of the infrastructure, faculty etc., as per the ICAR guidelines.
32. The next challenge to the condition no.12 of the order dated 18-1-2018 has also no substance as the condition no.12 only directs the university to submit to the State Government the list of students which in my view is neither arbitrary nor illegal in any manner.
33. The next argument raised by the counsel for the petitioner regarding condition no.16 being incorporated without application of mind by the State authorities, in my view deserves acceptance for the reason that the State Government cannot impose such condition with retrospective effect as prior to passing of the order dated 18-1-2018 no such guidelines were framed by the State Government thus in my considered view the condition no.16 is arbitrary and bad in the eye of law and the same deserves to be quashed.
34. The last argument raised by the counsel for the petitioner regarding imposition of condition of having domicile of the State of Rajasthan being bad in the eye of law is also not acceptable simply for the reason that no such prayer has been made by the Association in the writ petition and that being so in my considered view no relief can be granted to the petitioner beyond the prayer (36 of 37) [CW-7177/2018] made in the writ petition in view of the judgment passed by the Hon'ble Supreme Court in the matter of Press Council of India Vs. Union of India & Anr, reported in 2012(12) SCC 329 wherein in para-6 it has been held as under :-
"6. Having gone through the prayers in the writ petition and the orders passed by the High Court, we are of the opinion that the High Court ought not to have issued the aforesaid direction for the sole and simple reason that the prayers in the writ petition were entirely different from the order passed by the High Court and the order passed by the High Court as aforesaid is also not in consonance with the prayers so made. On this short ground alone, the appeals are required to be allowed and they are allowed accordingly and the order passed by the High Court is set aside. We clarify that we have not gone into other issues raised by the appellants in these appeals. Ordered accordingly."
35. The another argument raised by the counsel for the petitioner regarding conducting two separate entrance test by private universities as well as by State Agency has also no substance in view of policy decision taken by the State Government and once order has been passed by the State Government to conduct JET in my considered view allowing two separate agencies to conduct the test will create a great difficulty and it will not be in the interest of the students.
36. No other condition except condition nos.10,11,12 & 16 of the order dated 18-1-2018 has been challenged by the petitioner Association.
(37 of 37) [CW-7177/2018]
37. No other argument has been raised by either of the counsel except the arguments discussed above.
38. The sum and substance of the above entire discussion is that the writ petition qua conditions no.10, 11 & 12 of the order impugned dated 18-1-2018 deserves dismissal and so far as the condition no.16 of the order impugned dated 18-1-2018 is concerned, to that extent the writ petition deserves acceptance and it is held that the respondents are not justified in imposing condition no.16 in the order dated 18-1-2018 demanding excess fee from retrospective date.
39. Consequently, the writ petition is partly allowed and the condition no.16 of the order dated 18-1-2018 qua petitioner Association is hereby quashed and as regards conditions no.10, 11 & 12 under challenge herein the same are upheld & the writ petition challenging such conditions stands dismissed.
(INDERJEET SINGH),J VS Shekhawat, PS/89 Powered by TCPDF (www.tcpdf.org)