Andhra HC (Pre-Telangana)
Darus Salam Educational Trust Rep. By ... vs The Government Of Andhra Pradesh, Rep. ... on 14 November, 2006
Equivalent citations: 2007(4)ALD73, AIR 2007 (NOC) 624 (A. P.)
Author: G.S. Singhvi
Bench: G.S. Singhvi
JUDGMENT G.V. Seethapathy, J.
1. W.P.No.14048 of 2006 is filed by Darus Salam Educational Trust seeking a writ of mandamus declaring the action of the respondents in issuing G.O.Ms.No.54, Higher Education (EC) Department dated 10.5.2006 and G.O.Ms.No.59, Higher Education (EC) Department, dated 26.5.2006 and the proceedings of the first respondent- Government of Andhra Pradesh in letter No. 2973/EC/2/2006-1 dated 20.6.2006 as arbitrary, illegal amounting to colourable exercise of power and violative of fundamental rights guaranteed under Articles 14, 29 and 30(1) of the Constitution of India apart from being contrary to the dicta laid down by the Supreme Court in T.M.A.Pai Foundation and Ors. v. State of Karnataka and Ors. and for consequentially setting aside the rules framed in the above said G.Os., particularly Rules 3, 5 and 6 and proceedings of the first respondent and for a direction to the respondents to permit the petitioner to manage and administer the educational institutions including admissions.
2. W.P.No.12470 of 2006 is a similar writ petition filed by Non-Minority Engineering and Professional Colleges Managements' Association also seeking a writ of mandamus declaring `A.P. Un-aided Non-Minority Professional Institutions (Regulation of Admissions into Under-Graduate Professional Courses through common Entrance Test) Rules, 2006' issued by the first respondent- Government of Andhra Pradesh vide G.O.Ms.No.53 dated 10.5.2006, more particularly Rules 3, 4 , 5 and 6 as being illegal, arbitrary and unconstitutional and for setting aside the same.
3. The averments of the affidavit filed by Sri Syed Shah Akbar Nizamuddin Hussaini, one of the trustees of Darus Salam Educational Trust (for short, `the petitioner trust') in support of Writ Petition No. 14048 of 2006 in brief are as follows:
The petitioner trust was established in the year 1974 to cater to the needs of educational institutions of Muslim minority community in the State of Andhra Pradesh and it was duly registered. The petitioner trust established colleges in various disciplines and all the colleges established by the petitioner trust are recognized by Government of Andhra Pradesh as Muslim Minority Educational Institutions. The educational institutions are being run by the petitioner trust without receiving any aid either from the State or the Central Government. They are all self-financing minority educational institutions. The petitioner is entitled to administer and manage the educational institutions in pursuance of the provisions of Article 30(1) of the Constitution of India. However, the first respondent- Government of Andhra Pradesh issued G.O.Ms.No.54 dated 10.5.2006 and G.O.Ms.No.59 dated 26.5.2006 regulating admission of students into professional courses in Unaided Minority Educational Institutions. Rule 3 speaks about the allotment of seats and classifies the seats in private Unaided Minority Professional Institutions as category A and category B seats. Rule 3(ii) says that 80% of the sanctioned intake of seats in each course in unaided minority professional institutions shall be filled with eligible candidates on the basis of rank obtained in EAMCET. Rule 3(ii) says that 20% of the total intake of seats in each course shall be open for admission to all the eligible candidates. The method of admission is governed by Rule 5 saying that all category `A' seats shall be filled in by respective institutions by admitting the candidates as allotted by the Convenor, EAMCET admissions. The procedure to be followed at the time of admission is prescribed in Rule 6. Rule 6(i) says that each institution, which opted for Engineering and Medical Common Entrance Test (for short, `EAMCET') shall indicate in writing to Admission and Fee Regulatory Committee (for short, `AFRC') by cut off date specified by it as to whether the institution would admit students through the Single Window System to be operated by the Convenor of EAMCET admissions or the Convenor of EAMCET-AC admissions. Clause (b) of Rule 6(1) divides the institutions into three groups, i.e., Single Window System 1, Single Window System II and Single Window System III. Rule 6(i)(A) deals with the admission into the institutions under Single Window System I. Rule 6(i)(B) deal with admissions under Single Window System II and Single Window System III. Rule 8(i) deals with the prescription of fees saying that fee payable per student per annum for each discipline in each institution shall be prescribed by AFRC. The above rules are contrary to the guarantees contained in Articles 14, 29 and 30(1) of the Constitution of India apart from being contrary to the dicta laid down by the Supreme court in T.M.A.Pai Foundation case and which is relied upon and explained in P.A.Inamdar's case. Hence, both the G.Os are unjust and illegal and are liable to be set aside.
4. G.O.Ms.No.59 dated 26.5.2006 deals with regulation of admission of students into MBA/MCA courses in Non-Minority and Minority Educational Institutions and they are pari materia to G.O.Ms.No.54. Rule 5 deals with method of allotment. Rule 6 deals with procedure for admission and Rule 8 deals with prescription of fees. The said procedure is also contrary to the guarantees contained in Articles 29 and 30(1) of the Constitution of India and to the dicta laid down by the Supreme Court. The third respondent-Member Secretary of the Committee to oversee conduct of Common Entrance Tests (`CET') by the Association of Private Unaided Professional Colleges invited options from the management of the petitioner institutions regarding the procedure and conduct of admissions by notification dated 8.2.2006. In response to the same, one of the trustees by letter dated 22.3.2006 informed the second respondent- A.P. State Council for Higher Education clearly mentioning that the petitioner trust intends to admit students on the basis of the test conducted by said agency in view of the dicta laid down by the Supreme Court. On 31.5.2006, a detailed representation was made to the Hon'ble Chief Minister by one of the trustees of the petitioner requesting the State to permit the petitioner to admit students based on the entrance test conducted by the Government according to the merit from among the minority students without reference to the impugned G.Os. The Principal of Deccan College of Engineering & Technology which is run by the petitioner trust addressed a letter dated 5.6.2006 to the third respondent-Member Secretary about the representation made to the Chief Minister and requested that the Single Window System for admission cannot be imposed on the petitioner institutions. The petitioner trust gave one more representation to the second respondent on 9.6.2006 requesting to issue instructions to the Convenors of admissions to defer allotment of candidates to the petitioner trust. On 20.6.2006, the petitioner trust received a letter from the first respondent-Government saying that the impugned G.Os do not require any change. The petitioner trust filed W.P (Civil) No. 299 of 2006 under Article 32 of the Constitution of India before the Supreme Court, which was disposed of with a direction to the petitioner to approach this Court by order dated 7.7.2006. In view of the same, the petitioner is constrained to approach this Court by way of filing the present writ petition. The petitioner trust did not opt for any of the Single Window Systems specified in the Rules. Hence, the procedure contemplated in the impugned G.Os cannot be applied to the institutions run by the petitioner trust. The second respondent-Council issued a notification dated 2.7.2006 published in newspapers on 3.7.2006 saying that counselling is scheduled to take place from 12.7.2006. If the respondents are allowed to continue the counseling and allotment of candidates against the 80% seats in pursuance of the impugned G.Os to the institutions which are being run by the petitioner trust and if the petitioner institutions are not permitted to admit students according to the merit among the minority students, the petitioner will suffer grave and irreparable loss and severe hardship. The balance of convenience lies in favour of the petitioner's institutions to permit them to admit students even against the 80% of sanctioned strength according to the merit from among the minority candidates in the entrance test conducted by the Government without reference to the impugned G.Os and to the proceedings of the first respondent dated 20.6.2006. The provision in the impugned G.O to fill the 80% seats in Category A by the Government is directly in conflict with the right to administer which is protected under Article 30(1) of the Constitution of India.
5. The respondents 1, 3 and 4 filed a counter contending in brief as follows:
The writ petition is not maintainable as Sri Syed Shah Akbar Nizamuddin Husaini is not authorized by the trust to file the writ petition. The minority status will be given only to the educational institutions that are created by a trust or society and not to the trust or society itself. No Minority Educational Institution is before this Court. It is not known as to whether the minority status certificate issued to the colleges established by the trust are in subsistence or not. As per the records available, there is only one college run by the petitioner trust by name Deccan College of Engineering & Technology in so far as the admissions to Engineering courses is concerned and Deccan School of Management in so far as M.B.A course is concerned. Through G.O.Ms.No.54, Higher Education (EC) Department, dated 10.5.2006, Government issued Rules, which govern admissions for Undergraduate Professional Courses in Engineering & Pharmacy in the State and G.O.Ms.No.59, Higher Education (EC) Department dated 26.5.2006 prescribes the admission rules for Post-Graduate Courses in M.B.A and M.C.A. The contention of the petitioner that the impugned G.Os are issued to administer and manage the affairs of the Minority Educational Institutions is not correct. Framing of rules for regulating admissions of students to the Unaided Minority Educational Institutions by the State Government and fixation of fees to be paid by the students, alone cannot be construed as administering and managing the affairs of the educational institutions. The Apex Court has upheld the ruling in T.M.A Pai Foundation case and has approved the constitution of committees in the absence of issuance of any suitable legislation or regulation framed by the State, as a stop-gap arrangement. The Apex Court has held that neither the policy of reservation can be enforced by the State nor any quota or percentage of admissions can be carved out to be appropriated by the State in a Minority or Non-Minority Unaided Educational Institution. The Supreme Court clearly held that professional education should be made accessible on the criterion of merit and non- exploitative terms to all the eligible students on an uniform basis. Hence, in view of the Supreme Court Judgment in P.A.Inamdar's case, the Government has passed orders, in compliance with the directives of Supreme Court and not in contrary thereof. The impugned G.Os are issued in exercise of powers conferred by Sections 3 and 15 of A.P. Educational Institutions (Regularization of Admissions and Prohibition of Capitation Fee) Act, 1983 in supercession of earlier rules framed in 2004 in G.O.Ms.No.34, Higher Education (EC) Department, dt.11.6.2003. The main object of Act 5 of 1983 is to curb the undesirable practice of collecting capitation fee at the time of admission of students into the Educational Institution and to avoid frustration among meritorious and indigent students and to maintain excellence in the education standards. The Apex Court in P.A.Inamdar's case held that common entrance test is necessary in the interest of achieving the said objectives and for saving the student community from harassment and exploitation. Holding of such common entrance test followed by centralized counselling or in other words, Single Window System regulating admissions does not cause any dent in the right of Minority Unaided Educational Institutions to admit students of their choice. Such choice can be exercised from out of a list of candidates prepared at the common entrance test without altering the order of merit inter se of the students so chosen (para 139).
6. The Supreme Court emphasized the above principle again in the following words:
It needs to be specifically stated that having regard to the larger interest of the student community to promote merit, achieve excellence and curb malpractices, it would be permissible to regulate admissions by providing a centralized and single window procedure. Such a procedure, to a large extent, can secure grant of merit-based admissions on a transparent basis. Till regulations are framed the admission committees can oversee admissions so as to ensure that merit is not the casualty.
7. In fact, the Apex Court has clearly stated that each and every educational institution is having a right to administer the college as imparting education is an occupation. It further stated that only some additional protection is given to the Minority Educational Institutions under Article 30, but no right can be absolute and the right cannot be exercised by any Institute whether Minority or Non-minority, which is detrimental to the national interest on the ground that their claim cannot be above the national interest. The national interest is to see that all the eligible meritorious students are provided with the seats on non-exploitative terms on an uniform basis and to maintain excellence in the educational standards. The Supreme Court observed that though every institution is free to devise its own fee structure but the same can be regulated in the interest of preventing profiteering. Thus, the fee structure is also fixed by the Government in the interest of the student community on the basis of the Judgment of the Apex Court. The Apex Court has come to a conclusion that though the Minority Educational Institutions are protected under Article 30 of the Constitution of India, a Minority institution does not become immune from the operation of regulating the matters as the right to administer does not include the right to mal-administration and had come to a conclusion that the State Government is empowered to frame rules for regulating admissions etc. The Supreme Court in P.A.Inamdar's case has upheld the guiding principles as enunciated by earlier judgment in T.M.A.Pai foundation with regard to observance of 'fairness', 'merit', 'transparency' and 'non exploitation' in the process of admissions to the Professional Educational Institutions. The Apex Court has unequivocally held that it is permissible to regulate admissions and fee structure for achieving these objectives (para 142). The admission rules framed through the impugned G.Os have been framed strictly keeping the above mentioned principles and observations of the Apex Court in mind. Rule 3 of G.O.Ms.No.54 prescribes the allotment of seats in each institution. The categorization of seats into category-A (80%) and category B (20%) is based on objective criterion. Admission to category `A' seats is based on merit in the Common Entrance Test conducted by the Government Agency or the Association of Private Professional Colleges, while admissions under Category `B' are earmarked for NRIs, candidates from outside the State and other eligible candidates. The order of preference among the three groups in category B is prescribed in Rule 6(ii). There is thus no sharing or apportionments of seats with the Government and this prescription cannot at any stretch of imagination be termed as administering and managing the affairs of the petitioner's college. Rule 5 prescribes the method of admission. According to this, category A seats are to be filled by the institution by candidates allotted by the Convenor of Common Entrance Test or CET-AC, as the case may be, as per the option exercised by the individual colleges. The Supreme Court further held that all the institutions imparting same or similar professional education can join together for holding a Common Entrance Test satisfying the above said triple test. The State can also provide a procedure of holding a Common Entrance Test in the interest of securing fair and merit based admissions and preventing mal-administration. Having regard to larger interests and welfare of the student community to promote merit, achieve excellence and curb malpractices, it would be permissible to regulate admissions by providing a centralized and single window procedure. Such a procedure, to a large extent, can secure grant of merit-based admissions on transparent basis. Till regulations are framed, the admission committees can oversee admissions so as to ensure that merit is not the casualty. The corresponding relevant provisions of G.O.Ms.No.59 are similar to the rules issued in G.O.Ms.No.54. The State Government constituted two committees one for admissions and fee structure by issuing G.O.Ms.Nos. 90 and 91, dated 22.12.2003 and the colleges are empowered to conduct their own Common Entrance Test and admit students on the basis of merit and rank obtained in EAMCET or Common Entrance Test AC, i.e., Associated Committee. The colleges can opt for allotment of students either through Common Entrance Test conducted by the State Government or allot students from EAMCET 2006, its agency or opt for admission of students from their own eligibility test conducted by the Association. The third respondent committee is constituted to oversee fair and transparent conduct of Common Entrance Test by Association of Colleges of Private & Un-aided Professional Education Institutions (Minority & Non-Minority). The Judges committee called for options from all the colleges on 8.2.2006 before issue of prospectus. EAMECT notification was issued by Jawaharlal Nehru Technological University, who is the convenor of EAMCET, 2006 on 4.2.2006 specifying the date of test as 4.5.2006. The notification specified that non-submission of option in writing would be construed as the willingness of the management of the college to admit students through Common Entrance Test conducted by the State and once an option is exercised, it cannot be changed. The college established by the petitioner trust also exercised its option and opted for allotment of the students by State Government from the rank holders of EAMCET by its letter dated 6.3.2006 addressed to third respondent. The petitioner's college did not choose to join the Single Window operated either by the Convener of EAMCET (SW-1) or EAMCET-AC (SW-II) as provided in the rules when a second option was called for by third respondent through its letter dated 20.5.2006. The Deccan College of Engineering run by the petitioner gave a reply dated 5.6.2006 stating that the imposition of admissions through Centralized Single Window System is in contravention of the judgment of the Apex Court. A representation was received by the Government on 31.5.2006 from Sri Asaduddin Owaisi, M.P stating that the counselling for admission into professional colleges should not be mandatorily through single window and requesting the Government to amend G.O.Ms.No.54 accordingly. A suitable reply was given by the first respondent on 16.6.2006 stating that the Supreme Court, in their clarificatory judgment have tried to strike a balance between the rights guaranteed in Article 30 of the Constitution and the need to maintain transparency and merit in the matter of admissions into Professional Colleges and the rules framed in G.O.Ms.No.54 are in consonance with the various observations in the judgment. The stipulation of option is made in pursuance of the Clause 11(4) of G.O.Ms.No.16, Education (EC) Department dated 25.2.2004. The last date for exercising the option was 10.3.2006. Had all the private unaided Non-Minority or Minority Institutions opted for conduction of their own common entrance test, there would not have been a necessity for conducting EAMCET 2006 by the State. But only few institutions have opted for conducting test of their own and other college managements are wiling to admit students who have got ranks in EAMCET 2006 conducted by the State. As such, there is no sharing of seats and there is no distinction of management quota or Convenor quota in G.O.Ms.No.54. When the colleges themselves have opted for admitting the students allotted by the Government from out of Common Entrance Test conducted by the Government, there is no compulsion as contended by the writ petitioner. The G.O has prescribed 20% of seats to be filled up by candidates belonging to other States and Union Territories and NRIs. 15% of seats out of 20% are to be filled up by NRI students on merit basis in view of the decision of the Apex Court in Inamdar's case. The ratio fixed is only for categorization of the seats for differentiation of the method of admission and not apportionment of fixation of seats or sharing of seats among management and State. In fact, there is no apportionment of seats by the State or fixing of quota of seats as contended by the petitioner. Consequent to the judgment in Unni Krishnan's case, the Government issued rules in G.O.Ms.No.184 (EC-II) Dept. dated 23.8.1993 for admission into the undergraduate courses into Engineering and Medical Education. The said rules were implemented till the academic year 2002-2003. Later, in the light of the 11 Judges constitution Bench judgment of the Supreme Court, dated 31.10.2002 in T.M.A Pai Foundation case followed by 5 member Judges of the Apex Court in Islamic Academy's case on 14.8.2003, Government issued admission rules in G.O.Ms.No.34, Higher Education (EC) Department dated 11.6.2003 superceding the rules issued in G.O.Ms.No.184. The contention of the petitioner that they will suffer irreparable loss and severe hardship if they are not permitted to admit students is far from truth. It is a bald statement without any explanation as to how the apprehended loss or hardship or wasting of academic year will be caused if the students are admitted from the EAMCET stream, as opted by the college itself. On the contrary, if admissions are not conducted through the Single Window and if all the Minority Institutions are permitted to conduct admissions at the level of their respective institutions by calling for applications from the candidates qualified in the common entrance test, then minority students will be put to greater loss than the college, as the student seeking admission to any discipline shall have to purchase admission forms from several Minority Institutions and appear at counselling in several institutions conducted at different locations, some of which may also be in different villages, on same or different dates and there may also be clash of dates. The admission process has to be completed in a time bound manner before the start of academic session. If each minority institution is allowed to conduct separate counselling as requested by the petitioner, minority candidates will be totally unsure and may not be able to even apply to all the colleges or appear for counselling and will not be sure of the chances of obtaining admission in any particular institution/course based on his merit/rank. Then, the very purpose of conducting EAMCET/EAMCET-AC and allotment of ranks will be defeated. Ultimately, it will result in utter confusion and chaos would prevail in such a scenario and attributes of fairness, merit and transparency in the admission process, so assiduously emphasized in the Apex Court's judgment, will be the casualties. A Non-transparent, non-merit based admission process will have all the potentialities of leading to exploitation of candidates by demanding capitation fees. This will defeat the very objective of the protection afforded under Article 30(1) of the Constitution. The admission rules framed through the impugned G.Os will in no way be detrimental to the rights of the Minority Institution to administer their institutions. Rule 6(i)(A)(6) in respect of SW-1 and Rule 6(i)(B)(6) in respect of SW-II/ W-III prescribe that only concerned minority candidates shall be called for counselling and allotment of institutions/courses shall be done on the basis of merit in the CET/CET-AC. Centralized Single Window counseling will ensure that all institutions/courses are available at one place to all qualified candidates on a transparent basis and admission can be done strictly on merit. As per Rule 6(c) sliding of candidates between SW-1 and SW-II is permissible since the rank list source of the candidates is the same (EAMCET). Thus, no candidate is likely to lose an opportunity to chose an institution/course based purely on his relative merit rank. Such a situation cannot be envisaged in case of individual institution level admission process as prayed by the petitioner. The present procedure envisaged in the impugned G.Os fulfills the triple test ensuring fairness, transparency and non-exploitation envisaged by the Supreme Court in the admission process. The procedure now prescribed is beneficial to the student community at large, which is in the public interest and national interest. The impugned G.Os do not interfere with the rights of the Minority Educational Institutions. Hence, they are not illegal, unjust and do not amount to colourable exercise of power and are not violative of fundamental rights guaranteed under Articles 14, 29 and 30(1) of the Constitution of India and they are not contrary to the dicta laid down by the Apex Court. Hence, they are not liable to be set aside. On the other hand, the relief sought for by the petitioner i.e., to permit them to manage and administer their educational institutions including admissions into those colleges is itself contrary to the Judgment of the Supreme Court in P.A.Inamdar's case. The relief sought for by the petitioner cannot be granted in the interest of student community. The writ petition, may, therefore be dismissed.
8. The second respondent filed a counter raising similar contentions as those contained in the counter affidavit filed by respondents 1, 3 and 4. The 5th respondent-Director of P.G Admissions, Osmania University filed a counter contending in brief as follows:
Osmania University is functioning under the ambit of A.P. Universities Act, 1991 and is a juristic person, which can be sued in the name of the Registrar. The Director, P.G Admissions is only a functionary of Osmania University and the university is not made a party and hence the writ petition is not maintainable against respondent No. 5. The petitioner has not filed any trust deed nor any resolution passed by the trust authorizing Syed Shah Akbar Nizamuddin Hussaini to file the writ petition. The contention of the petitioner that the government is not empowered to fix, regulate or control the admissions in Unaided Minority Institutions is not correct. Though, the Supreme Court held that the State Government cannot interfere with the day-to-day administration of Private Unaided Minority Educational Institutions which includes admission of students, recruitment of staff and fixation of quantum of fees. The ratio laid down in TMA Pai Foundation case was confirmed in the subsequent decision of the Supreme Court in P.A.Inamdar case. The State Government in exercise of powers under Section 3 and 15 of Andhra Pradesh Educational Institutions (Regulation of Admissions and Prohibition of Capitation Fee) Act, 1983 and in supercession of Andhra Pradesh Unaided Minority Professional Institutions (Regulation of Admissions into M.B.A/M.C.A Professional Courses through Common Entrance Test) Rules, 2003 issued rules for admission into graduate professional courses in Unaided Minority Colleges issued G.O.M.No.59 dated 26.5.2006. The counseling schedule shall be fixed by A.P.State Council for Higher Education, the second respondent herein.
9. Government issued G.O.Ms.No.59 dated 26.5.2006 making rules for admission into Professional Institutions imparting P.G professional courses in MBA and MCA in the State. The Supreme Court in their judgment in Inamdar's case tried to strike a balance between the rights guaranteed under Article 30 of the Constitution of India to Minority Educational Institutions and the need to maintain transparency and merit in the matter of admission to the professional colleges. The rules framed under the impugned G.O.Ms.No.54 dated 10.5.2006 and G.O.Ms.No.59 dated 26.5.2006 are in consonance with the various directions/observations of the Supreme Court in the said judgment. The rules in G.O.Ms.No.59 dated 26.5.2003 were framed and issued after deliberations and meetings organized by the State Government, taking into account the option exercised by the private managements and treating non-submission of option within the stipulated period as willingness of the management of the colleges to admit students through the Convener or respondent No. 5. There is every necessity to provide a Single Window System of admissions for the benefit of students to avoid multiple tests, unnecessary expenditure and inconvenience to the students. The rules under G.O.Ms.No.59 are neither beyond the permissive regulatory authority available to the Government under Act 5 of 1983 nor violating the law declared by the Apex Court in T.M.A Pai Foundation case or P.A.Inamdar's case.
10. The writ petitioner filed a reply affidavit reiterating the contentions raised in the original affidavit filed in support of the petition.
11. W.P.No.12470 of 2006 is filed by Non-Minority Engineering and Professional Colleges Managements' Association for a similar relief as prayed for in W.P.No.14048 of 2006 to suspend the impugned G.O.Ms.No.53 dated 10.5.2006 which was issued in respect of Non-Minority Professional Institutions. The averments of the affidavit filed by Sri A.Maheswar Reddy, General Secretary of the petitioner society filed in support of the petition are similar to those contained in the writ affidavit filed in W.P.No.14048 of 2006 and hence they are not repeated here.
12. The respondents filed a counter raising similar contentions as those advanced in their counter affidavit filed in W.P.NO.14048 of 2006.
13. Arguments of Sri S.Ramachandra Rao, learned senior counsel for the petitioners in W.P.No.14048 of 2006 and of Sri S.Niranjan Reddy, learned Counsel for petitioners in Writ Petition No. 12470 of 2006 and the learned Advocate General for the respondents are heard in both the petitions. Records are perused.
14. As both the writ petitions raise similar issues and the contentions of both parties in the two petitions are same, they are heard together and are being disposed of by this common order.
15. Sri S.Ramachandra Rao, learned senior counsel appearing for the petitioners contended that the institutions run by Darus Salam Educational Trust are all self-financing Minority Educational Institutions without receiving any aid either from the state or central government and they are entitled to administer and manage the educational institutions by virtue of Article 30(1) of the Constitution of India and the impugned G.O.Ms.No.54 dated 10.52006 and G.O.Ms.No.59 dated 26.5.2006 regulating admission of students into professional courses in Unaided Minority Educational Institutions are violative of Article 29 and 30(1) of the Constitution. He further contended that various provisions of the impugned G.Os contemplate sharing of seats by the Government and filling up the same is controlled by the Convenor appointed by the competent authority who is an instrumentality of the Government, thereby depriving the management of their right to admit students which right is part and parcel of fundamental right to establish and administer the educational institutions guaranteed under Article 30(1) which is a special benefit conferred on the minorities. He would further contend that under the guise of regulating admissions, the Government by the impugned G.Os has taken away the freedom of the managements in the matter of admission of students and imposed unwarranted controls through the convenor and the competent authority, which is totally impermissible in the light of the judgments of the Apex Court in T.M.A.Pai Foundation case (1 supra) and P.A.Inamdar v. State of Maharashtra (2005) 6 Supreme Court 537. Sri S.Ramachandra Rao, learned senior counsel vehemently argued that the impugned G.O.Ms.No.54 and 59 are not only violative of the rights guaranteed under Articles 29 and 30(1) of the Constitution but also run contrary to the dicta of the Apex Court laid down in the above judgments and hence the impugned G.Os are totally unsustainable.
16. Sri S.Niranjan Reddy, learned Counsel for the petitioner Association in W.P.No.12470 of 2006 adopted the arguments of learned senior counsel Sri S.Ramachandra Rao and contended that the impugned G.O.Ms.No.53 dated 10.5.2006 relating to admission into Non-Minority Professional Educational Institutions is unconstitutional for the same reasons.
17. Learned Advocate General, on the other hand asserted that the impugned G.O.Ms.No.54 dated 10.5.2006 relating to admission to Unaided Minority Professional Colleges, G.O.Ms.No.59 dated 26.5.2006 relating to admission to courses in M.B.A/M.C.A and G.O.Ms.No.53 dated 10.5.2006 relating to admission into Unaided Non-Minority Professional Colleges were all issued only in the light of the judgments of the Apex Court in T.M.A.Pai Foundation and Inamdar's case (1 and 2 supra) duly safeguarding the interests of the managements and also the students in order to ensure that admissions are fair, transparent and non exploitative as extolled by the Apex Court in the above judgments and hence the impugned G.Os do not run contra to the dicta of the Apex Court and on the other hand they are abiding by the same. He further contended that the impugned G.Os do not in any way interfere with the rights of the managements of the Minority Educational Institutions to establish and administer the same. He further contended that the elaborate procedure prescribed in the impugned G.Os in the matter of admission offers an option to the managements at every stage either to join the process of admission relating to university colleges and other institutions run by or with the aid of the government or to have their own method of admission and such an option which the managements are free to exercise as per their volition can never be interpreted as imposition of fretters on their right to establish and administer institutions under Article 30(1).
18. In order to appreciate the rival contentions of the parties in their proper perspective, it is necessary to traverse the background scenario in which recurring process of admission to the professional institutions evolved itself from time to time culminating in the impugned G.Os pertaining to the year 2006.
19. Andhra Pradesh Educational Institutions regulation of admission and prohibition of capitation fee Act, 1983 (Act 5/83) is the enabling statute providing for the scheme of regulation of admission in the educational institutions (for short, `the Act') and in supercession of A.P. Educational Institutions Regulation of Admission into Undergraduate Professional Courses through Common Entrance Test Rules, 1989, G.O.Ms.No.184 dated 20.8.1983 was issued containing the rules for admission in to first year Under Graduate courses namely Engineering, Agricultural, Medical through common entrance test. The said rules which were published on 23rd August 1993 wee applicable to all the Professional Educational Institutions including those functioning under minority communities imparting the professional courses. The above rules contemplated admission to the first year of the professional courses through a common entrance test called EAMCET. The admission shall be made in the order of merit on the basis of the ranking assigned to the students in the EAMCET. A committee constituted under the rules was empowered to conduct common entrance test and prepare the list of candidates in the order of marks obtained. The Convenor appointed by the competent authority, i.e., Chairman of the State Council of Higher Education was to conduct Common Entrance Test and discharge other functions relating to the said examination. The competent authority would make admissions into all professional institutions based on the merit list prepared by the common entrance test committee and duly following the rule of reservation and also local area reservation in terms of the presidential order. Rule (7) prescribes the procedure for admission into professional colleges including private colleges. Sub-rule (5) of Rule 7 states that seats in all the private professional institutions shall be pooled up course-wise and distributed among the three local areas of the state, namely, Andhra University area (Andhra), Osmania University (Telangana) and Sri Venkateswara University area (Rayalaseema) in the ratio of 42:36:22 respectively and 50% of the pooled up seats shall be free seats and the balance of 50% shall be payment seats and 10% of the payment seats (5% total intake) in each branch shall be reserved for non resident Indians (NRIs). Sub-rule (8) of Rule 7 states that the competent authority shall select and allot candidates for admission into various courses among other colleges in respect of free seats in private professional colleges simultaneously on the basis of ranking assigned to them in the entrance test. Sub-rule (11) of Rule 7 states that the competent authority shall select and allot candidates for admission into various courses for payment seats in private professional institutions as per merit from among the applicants who have exercised their option prescribed in Sub-rule (10). It can be seen from the provisions of Rule 7 that it is the competent authority, i.e., the Chairman, A.P. State Council of Higher Education as defined in Section 2(e), who plays a key role and the entire process of admission both in the university professional colleges and also Private Professional Colleges by controlling and supervising the process of admission both in respect of free seats as well as the payment seats. The managements of the Unaided Private Professional Colleges have virtually no say in the matter except in the matter of filling up of NRI seats following the procedure prescribed by the Government. If any such NRI seats remain unfilled the management shall intimate the same to the competent authority to enable him to fill up such left over NRI seats treating them as payment seats under Sub-rule (9) of Rule 7. Rule 8 contemplates social reservation which says that the rule of reservation shall apply to all the institutions including private educational institutions both for free seats and for payment seats except of course in respect of NRI seats. Sub-rule (1) of Rule 8 contemplates local area reservation of seats in terms of A.P. Educational Institutions (Regulation of admission) Order 1974 as amended in G.O (P) No. 646 Education Department dated 10.7.1979. The above comprehensive rules issued in G.O.Ms.No.184 both in respect of conduct of common entrance test and also prescribing the procedure for admission to professional colleges including Private Unaided Colleges vesting the competent authority with all powers of control and supervision in the matter of conducting the test and making admission held the field for almost a decade.
20. Subsequent to the judgments of the Apex Court in T.M.A.Pai Foundation (1 supra) which was rendered on 31.10.2002, a new set of rules were issued in G.O.Ms.No.3 dated 7.2.2003 in supercesion of the earlier rules contained in G.O.Ms.No.184 dated 20.8.1993, providing for conduct of common entrance test. A separate set of rules were issued in G.O.Ms.No.33 dated 11.6.2003 again in supercession of the earlier rules in G.O.Ms.No.184 dated 20.8.1993 prescribing the procedure for admission into Unaided Non Minority Professional Institutions. Similarly G.O.Ms.No.34 dated 11.6.2003 was issued containing rules regulating admission into Unaided Minority Professional Institutions. Thus, for the first time in 2003, a departure was made from the past by issuing separate sets of rules, one for conducting the common entrance test and the other for regulating admission into Unaided Professional Institutions. Again separate sets of rules were issued for admission into Unaided Non-Minority Professional Institutions and Minority Professional Institutions. G.O.Ms.No.3 dated 7.2.2003 prescribes the procedure for conduct of common entrance test which is common to all the professional courses. Rule 4 mandates that EAMCET shall be conducted by the Convenor appointed by the competent authority on such date and at centers as may be specified by the State Council in consultation with the EAMCET committee. The competent authority as defined under Section 2(1)(iv) means the Chairman of the A.P.State Council of Higher Education. The Convenor appointed by the competent authority is entrusted with the task of conducting the test and preparation of merit list and assigning rankings. The managements of the Unaided Non-Minority or Minority Professional Institutions have virtually no role to play in conduct of the common entrance test under the provisions of G.O.Ms.No.3 dated 7.2.2003.
21. G.O.Ms.No.33 dated 11.6.2003 containing the rules for regulation of admission into Unaided Non Minority Professional Institutions and G.O.Ms.No.34 containing similar rules in respect of admission into Unaided Minority Professional Institutions both contemplate that the admissions shall be made through common entrance test held by the State or its agency as per A.P.Common Entrance Test for entry into engineering, architecture, Pharmacy, agricultural, medical and dental courses Rules, 2003 (ie., rules issued in G.O.Ms.No.3, Education dated 7.2.2003). The basis for admission to the Non-Minority or Minority Unaided Professional Institutions is the common entrance test conducted by the State or its agency i.e., the competent authority and the Convenor and the merit list prepared by them. Rule 3(a) of both the G.Os states that admission shall be in the order of merit on the basis of the ranking assigned in EAMCET. Sub-rule (6) of Rule 3 states that the institutions shall admit candidates as allotted by the Convenor of admissions. As per Sub-rule (d), the admission of candidates made in various Unaided Non-Minority or Minority Professional Institutions as the case may be shall be subject to the scrutiny by the inspecting authority appointed for the purpose. The Convenor of admissions under 2(1) is the Commissioner/Director of Technical Education or any other officer of such rank nominated by the competent authority for selection and allotment of candidates for admission. The competent authority is again Chairman, A.P. State Council of Higher Education as per Rule 2(1). The inspecting authority is defined under 2(1)(h) as the authority or officer appointed by the competent authority for inspecting and scrutinizing admission of candidates into unaided minority or non minority professional institutions as the case may be. Under Rule 5A of both the G.O.Ms.Nos. 33 and 34, the seats are classified as convenor seats and management seats. Sub-rule (6) of Rule 5 of G.O.Ms.No.33 states that the convenor seats shall be 85% of the sanctioned intake in each course and they shall be filled with eligible candidates on the basis of rank obtained in EAMCET and by following rule of reservation. Sub-rule(C) of Rule 5 states that the management seats shall be 15% of the total intake and they shall be open for admission to all the eligible candidates including candidates belonging to other states and union territories and NRIs. In respect of Minority Professional Institutions, Sub-rule (6) of Rule 5 of G.O.Ms.No.34 states that the convenor seats shall be 30% of the sanctioned intake and sub-rule(C) states that the management seats shall be 15% which are open for admission to all eligible candidates including candidates belonging to other states and union territories and NRIs and 55% of the total intake of seats in each course shall be filled with concerned religious/linguistic minority eligible candidates only on the basis of rank obtained at EAMCET by following merit order and transparency and eligibility condition and rule of reservation for women. The vacant seats if any remaining unfilled out of 55% shall be filled by management with eligible Non-Minority candidates who are qualified at EAMCET conducted by the State ensuring merit and transparency and by following rule of reservation. Rule 6 of both the G.Os lays down that all the convenor seats shall be filled by the Convenor of admissions and management seats shall be filled by the managements of the concerned professional college, minority or non-minority as the case may be ensuring merit and transparency. G.O.Ms.No.33 and 34 contemplate sharing of seats between the Convenor and managements though the percentage of the share varies. In case of Unaided Non-Minority Professional Institutions, the convenor seats are 85% and in respect of minority colleges it is only 30%. In G.O.Ms.No33, management seats are only 15% meant to be filled with NRIs and Ors. whereas in G.O.Ms.No.34, the management quota is 70% out of which 15% seats are meant for NRIs and Ors. and the remaining 55% shall be filled with concerned religious/linguistic minority eligible candidates. Under both the G.Os, the convenor seats are to be filled by the Convenor on the basis of rank obtained in EAMCET and by following rule of reservation. In G.O.Ms.No.34 relating to Unaided Minority Professional Institutions though 55% of the total intake of the seats are described as management seats and are required to be filled with concerned religious/linguistic minority candidates, the managements have to fill them only on the basis of he rank obtained at EAMCET. In other words, though certain percentage of seats are specifically earmarked for minority students, managements have no choice but to fill them with the candidates allotted by the Convenor as per the rank obtained at EAMCET. Rule 7 of both the G.Os prescribe the procedure for admission. Sub-rule (2) of Rule 7(a) states that the convenor of admission shall collect ranks of qualified candidates of EAMCET prepared by the convenor, EAMCET as per Sub-rule 3 of Rule 5 of A.P. Common Entrance Test Rules, 2003 (issued vide G.O.Ms.No.3 dated 7.2.2003). Sub-rule(3) of Rule 7 A enjoins upon the Convenor of admission to adopt on line computer system of counseling either by following the centralized or decentralized counselling at various centers for the convenience of the candidates and prepare the seat matrix of the professional institutions, non-minority or minority as the case may be. Su-rule (4) of Rule 7 A mandates that no management of the unaided minority professional institution shall call for applications for admissions separately or individually for the convenor seats. In respect of filling up of 55% of the management seats by the minority students, Rule 7(c) of G.O.Ms.No.34 states that the management of the Unaided Minority Professional Institutions shall decide the programme of admission and give vide publicity for the same. Under Clause (6) of Rule 7(c) of G.O.Ms.No.34, after completion of admission, each Unaided Minority Professional Institution shall submit to the competent authority a statement containing full particulars of the candidates admitted both in respect of 30% convenor seats and 15% management seats meant for NRIs and Ors. and the competent authority shall verify the correctness of admissions through the inspecting authority and if any irregularity is noticed, it shall call upon the professional institutions to rectify the same. Clause(C) further provides that if it is found that no steps were taken by the management to rectify the irregularities in admissions made by them, penal action shall be initiated against the management of the college. It can therefore be seen that though 55% of the sanctioned intake of seats were allotted to the management to be filled with candidates belonging to the concerned minority, still admissions have to be made based on the rank obtained in EAMCET and the list of the admitted candidates shall be communicated to the competent authority and Ors., Commissioner of Technical Education, Principal Secretary to Government, Minority Welfare Department and the competent authority is empowered to verify the correctness of admissions through the inspecting authority and in the event of non rectification of the irregularities if any pointed out, the management is liable for penal action also. Not only the private Unaided Professional Institutions, non-minority or minority had no choice except to go by the common entrance test conducted by the Government through its agencies, the allotment of candidates to fill the convenor seats in both the minority and non-minority colleges is done by the competent authority and though the managements of the non-minority institutions are permitted to fill up 55% management seats with candidates belonging to the concerned minority, still the same has to be filled only based on the merit list prepared by the Convenor of EAMCET on the basis of the rank obtained and such admission is subject to the scrutiny by the competent authority. Thus, the competent authority wielded effective control and supervision over the admissions made by the managements to fill up 55% managements seats as well. There is virtually no choice or option for the managements either in the matter of conducting the test or in the matter of making admissions.
22. Consequent to the directions contained in the judgment dated 14.8.2003 of the Apex Court in Islamic Academy of Education v. State of Karnataka (2003) 6 Supreme Court 697, the Government of Andhra Pradesh issued G.O.Ms.Nos. 90 and 91 dated 22.12.2003 appointing two committees, one for fixation of fee for the students who are admitted in the Unaided Professional Educational Institutions (minorities and non-minorities) and the other for overseeing fair and transparent conduct of common entrance test by the association of colleges of Private Unaided Professional Educational Institutions (minority and non minority) both committees headed by retired Judges of the High Court. Clause (4) of G.O.Ms.No.91 dated 22.12.2003 enumerates the functions of the committee and Sub-clause (1) states as follows:
(i) The Committee shall receive the option exercised by the individual institutions for conducting Common Entrance Test to be conducted by the Association of all Colleges of a particular type. The Association would hold the test corresponding to the test conducted by the State Agency like EAMCET, ICET, EdCET etc., for such of the colleges, who opt for the test to be conducted by the Association, as directed by the Hon'ble Supreme Court in the clarificatory judgment issued in W.P.No.350/1993 dated : 14.8.2003.
23. Management of each private un-aided institution shall exercise their option of choosing between either of these tests, i.e., the test conducted by the State Agency, or, the test to be conducted by the Association of the Private un-aided colleges as specified above, to the concerned authority and the Committee before issuing of prospectus.
24. Thus, for the first time, an option is given to the Un-aided Professional Institutions to hold a common entrance test by forming into association of colleges and such tests would correspond to the test conducted by the State Agency like EAMCET for such of those candidates who opt for the test to be conducted by the Association. The management of each private unaided institution is required to exercise option of choosing between the test conducted by the State Agency or the test to be conducted by the Association of the Private Unaided Colleges and such option shall be intimated to the concerned authority and the committee before issuing of the prospectus. The committee shall have powers to oversee the tests conducted by the Association to select candidates for management seats and to ensure that the test is conducted in a fair and transparent manner. Clause (5) of G.O.Ms.No.91 stipulates that if the committee comes to a conclusion that CET-AC was not conducted in a free and fair manner, it shall have the power to cancel the test and order for fresh test to be conducted without charging any extra fee for this purpose from the candidates. In earlier G.O.Ms.No.3 dated 7.2.2003 prescribing the procedure for conduct of the EAMCET, Rule 11 stipulates that in the event of any malpractice or any other circumstances leading to stoppage of EAMCET, the Government may direct reexamination to be conducted and in such an event, the A.P.State Council of Higher Education or any other agency so nominated by the Government shall cause reexamination conducted. Clause 5 of G.O.Ms.No.91 makes a departure that it is the committee constituted under the G.O that would have power to cancel the test and order for a fresh test. The various functions enumerated in Clause (4) of the G.O shows that the committee headed by retired judges of the High Court is entrusted with the responsibility of supervising the common entrance test to be conducted by the association of colleges for filling up the management seats. The A.P.State Council of Higher Education has only to provide secretarial assistance to the committees. It is not disputed that the said committees constituted under G.O.Ms.Nos. 90 and 91 are still continuing to function for the purpose of regulating admission and for fixing the fees to be charged from candidates seeking admission to Unaided Minority and Non-Minority Professional Institutions. Consequent upon the judgment of the Apex Court in T.M.A.Pai Foundation case (1 supra) and the clarificatory judgment in Islamic Academy's case (3 supra) permitting the private professional colleges to have a common entrance test of their own by forming into an association, it became imperative for the government to issue fresh rules providing for the conduct of the common entrance test by the competent authority called EAMCET and common entrance test by the association of private professional institutions called EAMCET-AC. Accordingly, G.O.Ms.No.16 dated 25.2.2004 was issued setting out the rules for conduct of two types of common entrance tests one by the Convenor appointed by the competent authority and the other by the association of colleges through committee of EAMCET-AC. Rule 2(1)(vi) defines "EAMCET" as meaning examination conducted by the government agency for assigning ranks on merit. Rule 2(1)(vii) defines "EAMCET-AC" as meaning examination conducted by association of all colleges for assigning merit rank to candidates which shall be basis for admission of candidates to the extent of seats provided for the management of colleges in the State. Rule 2(1)(viii) defines "Committee of EAMCET-AC" as meaning the committee empowered by the Association of Colleges to conduct EAMCET-AC and to prepare the merit list of the candidates as per the marks obtained in the above test for admission into Management seats subject to supervision of the permanent committee. 2(1)(ix) defines "Association of Colleges'' as meaning Association of Colleges formed for the purpose of conducting EAMCET-AC and recognized by the A.P.State Council of Higher Education. 2(1)(xii) defines "Permanent Committee" as meaning committee constituted in G.O.Ms.No.91, Higher Education (EC) Department dated 22.12.2003. The supervision of the test EAMCET AC to be conducted by the association of colleges is therefore entrusted to the permanent committee, which is an independent body and thereby taking it out of the supervisory control of the competent authority. 2(1)(x) defines "Convenor Seats" as meaning the seats earmarked from out of the sanctioned intake of seats in each institution to be filled by the Convenor. 2(1)(xi) defines "Management Seats" as the seats earmarked from out of the sanctioned intake of seats to be filled by the Management of the private unaided professional institutions. Rule 4 stipulates that EAMCET shall be conducted by a Convenor, appointed by the competent authority and shall be held on such date and centers as may be specified by State Council in consultation with the EAMCET committee. Rule 5 contemplates preparation of merit list and assigning of ranking by the convenor of EAMCET in accordance with the procedure prescribed therein. Rule 11 provides for a separate association of colleges. Sub-rule (3) of Rule 11 mandates that the competent authority shall issue a notification including options from the managements of all professional colleges for admitting the students either through EAMCET or EAMCET -AC. Sub-rule (4) states that option of choosing between EAMCET or EAMCET-AC shall be exercised by the managements of the colleges and shall be intimated before the stipulated dated to the competent authority and permanent committee. In case of failure to so intimate their option, it shall be construed that they shall admit candidates in their colleges for the management seats only on the basis of the ranking obtained at EAMCET. Rule 11(b) stipulates that the committee of EAMCET-AC shall be constituted by the association of colleges with members and academicians and a member of this committee shall be appointed as Convenor of the Committee of EAMCET-AC to discharge the functions as assigned by the Committee of EAMCET-AC. Rule 12 states that EAMCET-AC shall be conducted in a fair and transparent manner subject to supervision of the permanent committee. Sub-rule (7) of Rule 12 requires the committee of EAMCET-AC to prepare the merit list and assign ranking. Rule 14 states that in the event of any malpractice or in other circumstances leading to stopping of EAMCET, the Andhra Pradesh State Council of Higher Education or any other body so nominated by the Government shall cause the EAMCET re-examination conducted and Sub-rule (ii) of Rule 14 states that in respect of EAMCET-AC, the Permanent Committee may issue necessary directions to the Committee of EAMCET-AC to conduct re-examination.
25. The analysis of the above provisions contained in G.O.Ms.No.16 dated 25.2.2004 clearly shows that in the light of the judgments of the Apex Court in T.M.A.Pai Foundation (1 supra) as clarified in Islamic Academy (3 supra), the rules issued earlier in G.O.Ms.No3 dated 7.2.2003 were superceded and fresh rules wee issued specifically providing for a separate common entrance test to be conducted by association of Private Unaided Professional Colleges through a committee to be formed by them and to prepare a merit list of candidates as per the marks obtained in the said test called EAMCET-AC for the purpose of admission to the management seats. The rules issued in G.O.Ms.No.16 further show that it is only the Permanent Committee, which is an independent body headed by retired judges of the High Court and constituted in accordance with the directions of the Apex Court in the above cases that is entrusted with the power of supervision over the conduct of the said test EAMCET-AC by the association of colleges and thereby taking it out of the purview of the competent authority or any other government agency. It is only in respect of admission to convenor seats that the convenor appointed by the government authority is entrusted with the task of conducting the other common entrance test called EAMCET. The said Convenor has absolutely no role to play in so far as the test EAMCET-AC to be conducted by the association of colleges for the purpose of admission into management seats, is concerned. That apart, G.O.Ms.No.16 gives liberty to the managements of the colleges to opt for EAMCET conducted by the government agency or to have their own test EAMCET-AC. The provision for such an option only facilitates such of those colleges who either owing to their inability to conduct a test of their own or to join the association of colleges or for any other reason to opt for the test EAMCET conducted by the competent authority. It is not as though every private unaided professional college would be in a position to conduct a test of its own and some of the colleges may not be inclined to join the association for their own reasons. In such an event, it becomes difficult for those colleges to admit students to fill the management seats. In order to avert such a situation and to facilitate admission of students in to management seats in those colleges which do not join the association of colleges for their own reasons, an option is given to them to adopt the test EAMCET conducted by the competent authority.
26. Consequent upon the judgment of the Apex Court in P.A.Inamdar's case (2 supra) dated 12.8.2005 an amendment was issued to G.O.Ms.No.16 dated 25.2.2004 through G.O.Ms.No.8 dated 4.2.2006 among other things to redefine the expressions "EAMCET-AC", "Convenor Seats" and "Management Seats" so as to fall in line with the dicta of the Apex Court that there shall not be any seat sharing between the Government and management in Private Unaided Professional Institutions. It is pertinent to note that G.O.Ms.No.16 dated 25.2.2004 or G.O.Ms.No.8 dated 4.2.2006 are not under challenge in either of these two writ petitions. Rule 1(4) of G.O.Ms.No.16 states that Rules of Admission into the above courses shall be issued separately. Accordingly, the government issued G.O.Ms.No.53 dated 10.5.2006 relating to admission to unaided Non-Minority Professional Institutions in respect of engineering including Technology and Pharmacy courses and G.O.Ms.No.54 dated 10.5.2006 in respect of admission to Unaided Minority Professional Institutions offering courses in engineering including Technology and Pharmacy. G.O.Ms.No.59 dated 26.5.2006 was issued similarly in respect of admission to M.B.A and M.C.A courses in all professional institutions. G.O.Ms.Nos. 54 and 59 are subject matter of challenge in W.P.No.14048 of 2006 filed by Darus Salam Educational Trust, which is stated to be running educational institutions for the benefit of muslim minority community. Though the credentials of the petitioner trust as the protector of the interests of muslim minority community and its claim of establishing and administering number of educational institutions has been questioned by the respondents in their counter affidavits, none of those muslim minority educational institutions has chosen to get impleaded ventilating any grievance. The party aggrieved if any by the impugned G.Os will be the individual institution and not the trust which is a distinct legal entity. G.O.Ms.No.53 relating to non minority institutions is the subject matter of W.P.No.12470 of 2006 which is filed by Non-Minority Engineering and Professional Colleges Managements Association and not by any individual college or institution.
27. Be that as it may, considering the importance of the issue involved, it is to be seen whether the impugned G.O.Ms.Nos53 and 54 dated 10.5.2006 and G.O.Ms.No.59 dated 26.5.2006 setting out the rules for admission into Private Unaided Non-Minority and Minority Educational Institutions as the case may be stand the test of judicial scrutiny in the light of the dicta of the Apex Curt in the cases stated supra and whether they are in any way violative of the fundamental rights guaranteed under Article 29 and 30(1) of the Constitution of India.
28. G.O.Ms.No53 dated 10.5.2006 was issued in supercession of earlier G.O.Ms.No.33 dated 11.6.2003. Similarly , G.O.Ms.No54 was issued in supercesion of earlier G.O.Ms.No.34 dated 11.6.2003 and G.O.Ms.No59 was issued in supercession of earlier G.O.Ms.No.46 dated 5.7.2003. In G.O.Ms.No.53, 54 and 59 which contain similar provisions mutatis mutandis, the concept of sharing of seats by classifying them as convenor seats and management seats is given a go bye. Rule 2(1)(C) defines "Common Entrance Test" as meaning EAMCET/EAMCET-AC. Rule 2(1)(e) defines "Convenor of EAMCET Admissions" as meaning Commissioner/Director of Technical Education nominated by competent authority. 2(1)(f) defines "Convenor of EAMCET-AC admissions" as meaning a person nominated by the association of Unaided Private Professional Colleges for selection of qualified candidates for admission. 2(1)(1) defines "Qualified Candidates" as meaning candidate who has appeared for the common entrance test EAMCET/EAMCET-AC as the case may be and has been assigned a ranking in the common merit lit as per Rule 5(12) of the Test Rules, 2004 (vide G.O.Ms.No. 16, dated 25.2.2004). In so far as G.O.MsNo.59 is concerned, the common entrance test is ICET or ICET-AC as the case may be for admission to M.B.A/M.C.A courses. The impugned G.Os thus contemplate admission of candidates who are qualified either through EAMCET/ICET conducted by government agency or through EAMCET-AC/ICET-AC conducted by an association of private colleges under the supervision of the Permanent Committee without any interference by any government agency. Rule 3 of the impugned G.Os relate to allotment of seats. Rule 5 prescribes method of admission and Rule 6 details procedure of admission, which are under specific challenge in these writ petitions.
29. It is useful to extract Rule 3 of G.O.Ms.No.53, which reads thus:
3. Allotment of Seats:
(i) The seats to be allotted in each Un-aided Non-Minority Professional Institution under these Rules for Admission of Candidates be classified as:
(1) Category A seats (2) Category B seats
(ii) The category A seats shall be 80% of sanctioned intake of seats in each course in Un-Aided Non-Minority Professional Institutions which shall be filled with eligible candidates on the basis of rank obtain in EAMCET/EAMCET-AC, as the case may be, following the provision of Sub-rule (1) of Rule 6 of Reservation laid down in Rule 7.
(iii) The category B seats shall be 20% of the total intake of seats in each course in respect of Un-Aided Non-Minority Professional Institutions, which shall be open for admission to all the eligible candidates on merit basis including candidates belonging to other States and Union Territories of India and NRIs, following the provisions of Sub-rule (ii) of Rule 6. Within category B, seats not exceeding 15% of the total intake of seats may be filled, at the discretion of the Institution, with NRIs.
Rule 3 of G.O.Ms.No.54 and 59 are more or less couched in the same terms. As can be seen from the above extracted rule, 80% of the seats classified as category `A' are to be filled by the unaided non-minority or minority institutions as the case may be and the remaining 20% seats are to be filled again by the institutions themselves and out of them, seats not exceeding 15% may be filled at the discretion of the institution with NRIs. The remaining 5% of seats are meant to be filled by all eligible candidates on merit basis including candidates belonging to other states and Union Territories. Category `A' seats are to be filled with eligible candidates on the basis of rank obtained in EAMCET or EAMCET-AC as the case may be whereas category `B' seats are open for admission for all eligible candidates on merit basis.
30. When the above provision is examined in juxta position corresponding to the provisions in the earlier G.O.Ms.Nos. 33 and 34, it can be seen that classification of the seats into convenor seats and management seats is dispensed with and all the seats can be filled by the institutions themselves.
31. Learned Senior Counsel Sri S.Ramachandra Rao contended that mere change of nomenclature in the description of seats does not amount to complying with the dicta of the Apex Court in P.A.Inamdar's case (2 supra) wherein sharing of the seats by the State with the management is barred. The said contention though appears to be attractive at the first blush does not hold water on critical examination. In the earlier G.O.Ms.Nos. 53 and 54, convenor seats were defined as seats to be filled by the convenor of admissions. The Convenor of admissions is of course a governmental agency. Hence, the convenor was in control of admissions to the extent of 85% of the seats whereas the managements were free to admit students in respect of the remaining 15% of the seats meant to be filled by all eligible candidates including those from other states and union territories. In the impugned G.O.Ms.Nos. 53 and 54 which were issued subsequent to the Apex Court's judgment in P.A.Inamdar's case (3 supra) provided that 80% category `A' seats shall be filled with eligible candidates on the basis of the rank obtained in EAMCET or EAMCET-AC as the case may be. In the earlier G.Os prior to Inamdar's decision, there was no EAMCET-AC at all. The impugned G.Os contemplate EAMCET-AC which is a common entrance test that may be conducted by association of the private unaided professional institutions on their own for selection of candidates for admission without reference to State or its instrumentalities. The institutions are free to conduct a common entrance test of their own and they are at liberty to admit students to fill 85% category `A' seats with eligible candidates on the basis of the rank obtained in the said test EAMCET-AC. There is absolutely no compulsion to go by the common entrance test EAMCET conducted by the competent authority through convenor. In the event of the institutions being able to conduct a test of their own, i.e., EAMCET-AC and admit candidates to fill 85% category `A' seats on the basis of the rank obtained in such test, there is absolutely no role for the convenor of EAMCET, or the competent authority in the matter of admissions. However with a view to assist the unaided institutions who for their own reasons are unable to conduct a test of their own either individually or by joining into an association, an option is given to those institutions to adopt the EAMCET conducted by the competent authority. Simply because, such an option is provided, it cannot be said that the State or its instrumentality, the competent authority is trying to interfere with or exercise control over the process of admission into unaided professional institutions. It is left to the institutions either to conduct a test of their own and admit the students based on the ranks obtained in the said test EAMCET-AC or to join the test conducted by the State, i.e., EAMCET. When the institutions are given such absolute freedom of choice, it cannot be said that reference to EAMCET in Rule 3 amounts to bringing back the concept of Convenor seats through back door.
32. Rule 5 of G.O.Ms.No.53 prescribing the method of admission reads as follows:
The general guidelines for the admission of candidates into Private Un-Aided Non-Minority professional Institutions offering Engineering (including Technology) and Pharmacy shall be as follows:
(i)(1) All the Category A seats shall be filled by the respective Institutions by admitting candidates as allotted by the Convenor of EAMCET admissions/Convenor of EAMCET-AC admissions, as the case may be, depending upon the option exercised by the institution as per sub-clause(4) of Clause (a) in Rule 11 of the Andhra Pradesh Common Entrance Test for entry into Engineering, Pharmacy, Agriculture, Medical and Dental Courses Rules, 2004.
(2) All the category B seats shall be filled by the respective Institutions on merit basis following the procedure laid down in Rule 6(ii) hereunder.
(ii) The Convenor of EAMCET admissions/Convenor of EAMCET-AC admissions shall allot candidates to Institutions in terms of Rules laid down herein.
(iii) The admissions shall be made in the order of merit on the basis of the ranking assigned in EAMCET/EAMCET-AC as per Rule 5/Sub-rule (7) of Rule 12 of the Andhra Pradesh Common Entrance Test for entry into Engineering, Pharmacy, Agriculture, Medical and Dental Courses Rules, 2004.
(iv) The total number of candidates to be admitted in each course in the Unaided Non-Minority Professional Institutions shall not exceed the limits prescribed by the All India Council for Technical Education from time to time.
(v) The admission of the candidates made in various Un-aided Non-Minority Professional Institutions shall be subject to scrutiny by the inspecting Authority appointed for the purpose.
33. The above extracted rule makes it clear that all category `A' seats shall be filled by the respective institutions with students allotted by the convenor of EAMCET admissions or EAMCET-AC admissions, as the case may be depending upon the option exercised by the institutions. Sub-rule (3) mandates that admissions shall be made in the order of merit on the basis of the rank assigned in EAMCET/EAMCET-AC. The above provisions are clear departure from the earlier G.O.Ms.Nos. 33 and 34 wherein the convenor seats are to be filled by the convenor of admissions who is an instrumentality of the State. The Convenor of admissions is different from Convenor of EAMCET-AC admissions in the impugned Gos. The convenor, EAMCET-AC admissions is a person nominated by association of unaided professional colleges and is free from any control by the State or any of its instrumentalities. The category `B' seats are to be filled by the institutions themselves on merit basis by following the procedure prescribed in Rule 6(ii) without reference to the Convenor.
34. Rule 6 lays down the procedure of admission. Rule 6(i) of G.O.Ms.No.53 relating to non-minority institutions states that all the institutions shall be divided into two groups EAMCET/EAMCET-AC streams basing on the option exercised by them as per Sub-clause (4) of Clause (a) of Rule 11 of A.P.Common Entrance Test Rules, 2004 (G.O.Ms.No. 16) and there shall be separate counseling for admission in respect of each stream through Single Window System. Rule 6(i)(a) deals with constitution of a committee for admissions into institutions which opt for EAMCET and its composition. Sub-rule (2) requires the convenor of EAMCET admissions to collect the rank list of the qualified candidates of EAMCET prepared by the convenor of EAMCET examination. Sub-rule(3) requires him to prepare and notify the schedule of admissions. Sub-rule (4) mandates the convenor of EAMCET admissions to adopt computerized Single Window System of counseling by making all necessary arrangements. Under Sub-rule (10), the Convenor, EAMCET shall handover the vacant seats if any to the institutions concerned after conducting counseling till the last rank of EAMCET and Sub-rule (11) mandates the institutions to fill on merit basis such vacancies handed over by the Convenor of admissions duly conducting internal sliding.
35. It can therefore be seen that even though Rule 6 contemplates admission of students by the Convenor of EAMCET admissions by adopting the merit list as per ranking obtained in EAMCET examination, such procedure is only meant for those institutions which exercise option in favour of adopting the EAMCET examination instead of conducting their own test. The convenor, EAMCET (Admission) has to necessarily go by the merit list of the EAMCET in order to facilitate admission process in those institutions which did not choose to form into an association and will ultimately handover the vacant seats if any to the institutions concerned who shall fill those vacant seats on merit basis ensuring transparency.
36. Rule 6(1)(b) prescribes a similar procedure for admission of students into the institutions under EAMCET-AC streams. Clause (1) of Rule (6)(i)(b) contemplates formation of committee for EAMCET-AC by the association of the unaided professional colleges to advice the convenor of EAMCET-AC admissions in the matter relating to admissions. The convenor, EAMCET-AC admissions is separate and distinct from Convenor, EAMCET admissions and he is nominated by the association of the institutions. Clauses 2 to 9 of Rule 6(i)(b) prescribe similar procedure that is to be followed by Convenor, EAMCET admissions under Sub-rule (a). Clause (10) of Rule 6(i)(b) requires the Convenor , EAMCET-AC admissions to handover vacant seats if any to the institutions after conducting counseling till the last rank of EAMCET. Under Clause (11), the institutions shall fill on merit basis such vacant seats ensuring transparency. Thus, it can be seen that in the event of the unaided professional institutions which are desirous of having their own test, EAMCET-AC and of admitting students to fill 80% category `A' seats through their own committee of admissions and by a convenor appointed by them are free to do so without reference to the test conducted by the State or admissions made by the State through its convenor. When such liberty is given to the unaided professional institutions in the matter of conducting entrance test or admissions to their institutions, it cannot be said that the impugned Gos are contrary to or violative of the dicta of the Apex Court in P.A.Inamdar's case. Rule 6 (ii) lays down the procedure to fill up 20% category `B' seats by the institutions in a fair, transparent and non-exploitative manner.
37. Rule 6 of G.O.Ms.No.54 lays down the procedure of admission to unaided minority professional institutions. Sub-rule (i) deals with filling up 80% category `A' seats and Sub-rule (ii) 20% category `B' seats. Clause (a) of Sub-rule (i) requires each institution which has opted for EAMCET to indicate in writing to AFRC by a prescribed cut off date as to whether the institution would admit students through Single Window System to be operated by the Convenor of EAMCET admissions or the Convenor of EAMCET-AC admissions. AFRC is defined in Rule II(i)(b) as the committee established and constituted by the State for regulating admission and to fix the fee. The continuance of the committees which are constituted in G.O.Ms.Nos. 90 and 91 is permitted by Supreme Court in P.A.Inamdar's case wherein the Apex Court observed:
In our considered view, on the basis of the judgment in Pai Foundtion and various previous judgments of this Court which have been taken into consideration in that case, the scheme evolved out of setting up the two Committees for regulating admissions and determining fee structure by the judgment in Islamic Academy cannot be faulted either on the ground of alleged infringement of Article 19(1)(g) in case of unaided professional educational institutions of both categories and Article 19(1)(g) read with Article 30 in case of unaided professional institutions of minorities.
38. A fortiori, we do not see any impediment to the constitution of the Committees as a stopgap or ad hoc arrangement made in exercise of the power conferred on this Court by Article 142 of the Constitution until a suitable legislation or regulation framed by the State steps in. Such committees cannot be equated with Unni Krishnan Committees which were supposed to be permanent in nature.
39. Rule 9 of G.O.Ms.No.54 contains a transitory provision to the effect that the permanent committee and fee fixation committee constituted by the Government vide G.O.Ms.Nos. 90 ad 91 and existing at the commencement of these rules shall continue to discharge functions assigned to the AFRC under these rules till the Government constitutes AFRC. The said committees are independent bodies headed by former judges of the High Court chosen in consultation with the Chief Justice of the High Court.
40. The unaided professional institutions are at liberty to choose either of the single window systems that is to be operated by the Convenor, EAMCET admissions or Convenor EAMCET-AC admissions. Rule 6(i)(b) divides the institutions into three categories for the purpose of admissions, namely, SW1 institutions opting for Single Window System operated by the Convenor of EAMCET admissions, 2) SWII institutions opted for single window system operated by Convenor of EAMCET-AC admissions for EAMCET rank holders and 3) SWIII institutions opting for Single Window System operated by Convenor of EAMCET-AC admissions for EAMCET-AC rank holders. It contains a proviso, which makes it permissible for sliding of admitted candidates between SW1 and SW2. A detailed procedure is contemplated for admissions under SW.1 in Rule 6(i)A and for admissions under SW2 and SW3 in Rule 6(i)B. The composition of the committee for EAMCET admissions under SW1 includes among others three representatives from the private unaided professional educational institutions as nominated by the State Council. The convenor of EAMCET admissions is required to collect rank list of qualified candidates of EAMCET and prepare and notify the schedule for admissions and he shall adopt computerized Single Window System. The vacant seats if any will be handed over by him to the institutions concerned and institutions shall fill them ensuring merit and transparency. Sub-clause (1) of Rule 6(i)B contemplates a committee for EAMCET-AC admission for institutions, which opted for SW II and SWIII to be constituted by the association of the colleges to advise the convenor of EAMCET-AC admissions. The Convenor, EAMCET-AC admissions shall collect the rank list of qualified candidates prepared by the Convenor of EAMCET/EAMCET-AC and prepare and notify the schedule of admission for SWII AND SWIII. It is further stated in Sub-clause (3) that the decision of the committee for EAMCET/EAMCET-AC admission shall be final in issuing notification schedule and procedure of counseling. Under Sub-clause (4), Convenor, EAMCET-AC admission is required to adopt computerized Single Window System of counseling. The basis for selection of candidates and allotment to the institutions is merit as adjudged by the rank obtained in EAMCET/EAMCET-AC as the case may be. Under Sub-clause (10), the Convenor shall handover vacant seats if any to the institutions concerned and Sub-clause (11) enables the institutions to fill them on merit basis ensuring transparency. Sub-clause (13) states that the convenor, EAMCET-AC admission shall prepare final list of candidates admitted course wise and institution-wise and send the same to the concerned university/institution and AFRC.
41. It can therefore be seen from the above procedure contemplated in Rule 6(i)B of G.O.Ms.No.54 that in the event of the Unaided Minority Professional Institutions opting for a test of their own, the admission to fill 80% category `A' seats are to be made by a committee called EAMCET-AC admissions committee constituted by association of said colleges and through a convenor nominated by such association. The said convenor EAMCET-AC admissions is required to make necessary arrangements for counseling and for admission through Single Window, i.e., SW-III whereby admissions are made to institutions opting for Single Window System operated by the Convenor of EAMCET-AC admissions for EAMCET-AC rank holders. In the case of institutions opting for admission with EAMCET rank holders also the Convenor of EAMCET-AC admissions is required to follow the same procedure for SWII under 6(i)(b) which is applicable to SWIII as well. It is only in the case of institutions opting for Single Window System operated by Convenor EAMCET admissions, the procedure under 6(i)A is applicable.
42. Thus, Rule 6 of G.O.Ms.No.54 takes care of the interest of all the institutions whether they chose to have their own test and method of admission or they prefer to go by the test conducted by the State and the admission process operated by the convenor of EAMCET, admissions. In the matter of admission of the students by the Convenor of EAMCET-AC admissions either it be under SWII system for EAMCET rank holders or SWIII system for EAMCET-AC rank holders, there is absolutely no control by the state or its instrumentalities. The composition of the committee for EAMCET admissions is specified in the rules but not the composition of committee for EAMCET-AC admissions. The rules merely say that such committee shall be constituted by the association of unaided professional colleges to advise the convenor of EAMCET-AC admissions in matters relating to admission. The decision of the committee for EAMCET-AC admission in issuing notification or fixing schedule and procedure of counseling is accorded finality. Even final lists of candidates admitted coursewise or institutionwise are required to be sent by the Convenor of EAMCET-AC admission only to the concerned university/institution and AFRC. Category `B' seats of 20% are left to be filled by the institutions, of course, in a fair, transparent and non-exploitative manner. Sub-clause (5) of Rule 6(ii) requires the institution to obtain ratification from the competent authority for admissions made in respect of category `B' seats. Simply because the institutions are required under Sub-clause (12) of Rule 6(b) or Sub-clause (5) of Rule 6(ii) to obtain ratification from the competent authority for all the admissions including internal sliding conducted by the institution, it cannot be said that the admission process itself is subjected to any control or supervision by the competent authority. Such ratification is required only to ensure that the admissions are made by the institutions in a fair, transparent and non-exploitative manner, the three parameters repeatedly emphasized by the Apex Court in P.A.Inamdar's case. In fact, under the earlier G.O.Ms.No.34 relating to Un-aided Minority Professional Institutions, Rule 7(c)(b) contemplate that after completion of admissions, each Unaided Minority Professional Institutions shall submit to the competent authority the statement containing full particulars of the candidates admitted under Sub-rules A and B within two weeks from the date of completion and the competent authority shall verify the correctness of admissions through the inspecting authority and if any irregularity is noticed, it shall call upon such professional institutions to rectify the same. Sub-clause(c) further provided that if it found that no steps were taken by the management to rectify the irregularities in admissions made by them, penal action shall be initiated against the management of the college. Such was the extent of supervisory control exercised by the competent authority over the admissions made to fill up even the management seats in the Unaided Minority Professional Institutions previously. In the impugned G.O.Ms.Nos. 54 relating to Unaided Minority Institutions, no such control or power is vested with the competent authority. The admission of the candidates made in various Unaided Minority Educational Institutions is subject to scrutiny by the inspecting authority appointed for the purpose under Rule 5(i)(v). The inspecting authority is defined in Rule 2(i)(g) as the authority/officer appointed by AFRC for inspecting and scrutinizing the admissions of the candidates made in Unaided Minority Professional Institutions whereas in the earlier G.O.Ms.No.34, the inspecting authority was appointed by the competent authority for inspecting and scrutinizing the admission of the candidates made in Unaided Minority Professional Institutions. Thus, it can be seen that the power of inspection and scrutiny which was vested with the inspecting authority appointed by the competent authority who is State instrumentality is taken away and now entrusted with the inspecting authority appointed by AFRC in G.O.Ms.No.54.The imperative continuance of AFRC, an independent committee as already stated is approved by the Apex Court in P.A.Inamdar's case. In the above case, the Apex Court held:
144. The two Committees for monitoring admission procedure and determining fee structure in the judgment of Islamic Academy are in our view, permissible as regulatory measures aimed at protecting the interest of the student community as a whole as also the minorities themselves, in maintaining required standards of professional education on non-exploitative terms in their institutions. Legal provisions made by the State Legislatures or the scheme evolved by the Court for monitoring admission procedure and fee fixation do not violate the right of minorities under Article 30(1) or the right of minorities and non-minorities under Article 19(1)(g). They are reasonable restrictions in the interest of minority institutions permissible under Article 30(1) and in the interest of general public under Article 19(6) of the Constitution.
145. The suggestion made on behalf of minorities and non-minorities that the same purpose for which Committees have been set up can be achieved by post-audit or checks after the institutions have adopted their own admission procedure and fee structure, is unacceptable for the reasons shown by experience of the educational authorities of various States. Unless the admission procedure and fixation of fees is regulated and controlled at the initial stage, the evil of unfair practice of granting admission on available seats guided by the paying capacity of the candidates would be impossible to curb.
43. In T.M.A.Pai Foundation, in Para 135,136 and 137 the Apex Court held as follows:
We agree with the contention of the learned Solicitor General that the Constitution in Part III does not contain or give any absolute right. All rights conferred in Part III of the Constitution are subject to at least other provisions of the said Part. It is difficult to comprehend that the framers of the Constitution would have given such an absolute right to the religious or linguistic minorities, which would enable them to establish and administer educational institutions in a manner so as to be in conflict with the other Parts of the Constitution. We find it difficult to accept that in the establishment and administration of educational institutions by the religious and linguistic minorities, no law of the land, even the Constitution, is to apply to them.
Decisions of this Court have held that the right to administer does not include the right to mal-administer. It has also been held that the right to administer is not absolute, but must be subject to reasonable regulations for the benefit of the institutions as the vehicle of education, consistent with national interest. General laws of the land applicable to all persons have been held to be applicable to the minority institutions also- for example, laws relating to taxation, sanitation, social welfare, economic regulation, public order and morality.
It follows from the aforesaid decisions that even though the words of Article 30(1) are unqualified, this Court has held that at least certain other laws of the land pertaining to health, morality and standards of education apply. The right under Article 30(1) has, therefore, not been held to be absolute or above other provisions of the law, and we reiterate the same. By the same analogy, there is no reason why regulations or conditions concerning, generally, the welfare of the students and teachers should not be made applicable in order to provide a proper academic atmosphere, as such provisions do not in any way interfere with the right to administration or management under Article 30(1).
44. In T.M.A.Pai Foundation, the Apex Court held in Para 68 that:
It would be unfair to apply the same rules and regulation regulating admission to both aided and unaided professional institutions. It must be borne in mind that unaided professional institutions are entitled to autonomy in their decision while at the same time they do not forego or discard the principle of merit. It would therefore be permissible for the university or the Government at the time of granting recognition to require a private unaided institution to provide for merit based selection while at the same time giving the management sufficient discretion in admitting students. This can be done through various methods.
45. This part of the judgment is reiterated in P.A.Inamdar (para 10) to be the law laid down by the majority in T.M.A.Pai Foundation.
46. In Para 50 of T.M.A.Pai Foundation, it is held that:
The right to establish and administer broadly comprises of the following rights:
(a) to admit students
(b) to set up a reasonable fee structure
(c) to constitute a governing body
(d) to appoint staff (teaching and non-teaching); and
(e) to take action if there is dereliction of duty on the part of any employees The above elucidation is reiterated in para 118 of P.A.Inamdar. In para 55 of T.M.A.Pai foundation it is held that there cannot be interference in the day-to- day administration. The essential ingredients of the management including admission of students, recruitment of staff and quantum of fee to be charged cannot be regulated" and the same is reiterated in Para 121 of P.A.Inamdar's case.
47. In para 125 of P.A.Inamdar's case, it was held: " As per our understanding, neither in the judgment of Pai Foundation nor in the Constitution Bench decision in Kerala Education Bill which was approved by Pai Foundation is there anything which would allow the State to regulate or control admissions in the unaided professional educational institutions so as to compel them to give up a share of the available seats to the candidates chosen by the State, as if it was filling the seats available to be filled up at its discretion in such private institutions. This would amount to nationalization of seats, which has been specifically disapproved in Pai Foundation. Such imposition of quota of State seats or enforcing reservation policy of the State on available seats in unaided professional institutions are acts constituting serious encroachment on the right and autonomy of private professional educational institutions. Such appropriation of seats can also not be held to be a regulatory measure in the interest of the minority within the meaning of Article 30(1) or a reasonable restriction within the meaning of Article 19(6) of the Constitution".
48. It was further held in the same decision that Unaided Institutions as they are not deriving any state funds can have their own admission if fair, transparent and non-exploitative and based on merit.
49. In para 126 of P.A.Inamdar, it was held that:
The judgment nowhere lays down that unaided private educational institutions of minorities and non-minorities can be forced to submit to seat-sharing and reservation policy of the State. Reading relevant parts of the judgment on which learned Counsel have made comments and counter-comments and reading the whole judgment (in the light of previous judgments of this Court, which have been approved in Pai Foundation) in our considered opinion, observations made in para 68 merely permit unaided private institutions to maintain merit as the criterion of admission by voluntarily agreeing for seat-sharing with the State or adopting selection based on common entrance test of the State.
In para 128, 129 and 130 of P.A.Inamdar, it was held that: "We make it clear that the observations in Pai foundation in para 68 and other paragraphs mentioning fixation of percentage of quota are to be read and understood as possible consensual arrangements which can be reached between unaided private professional institutions and the State.
In pai Foundation, it has been very clearly held at several places that unaided professional institutions should be given greater autonomy in determination of admission procedure and fee structure. State regulation should be minimal and only with a view to maintain fairness and transparency in admission procedure and to check exploitation of the students by charging exorbitant money or capitation fees.
For the aforesaid reasons, we cannot approve of the scheme evolved in Islamic Academy to the extent it allows the States to fix quota for seat-sharing between the management and the States on the basis of local needs of each State, in the unaided private educational institutions of both minority and non- minority categories. That part of the judgment in Islamic Academy in our considered opinion, does not lay down the correct law and runs counter to Pai Foundation".
In para 124 of P.A.Inamdar, it was held that: "So far as appropriation of quota by the State and enforcement of its reservation policy is concerned, we do not see much of a difference between non- minority and minority unaided educational institutions. We find great force in the submission made on behalf of the petitioners that the States have no power to insist on seat-sharing in unaided private professional educational institutions by fixing a quota of seats between the management and the State. The State cannot insist on private educational institutions which receive no aid from the State to implement the State's policy on reservation for granting admission on lesser percentage of marks, i.e., on any criterion except merit.
50. In T.M.A.Pai Foundation, the Apex Court held as follows;
The right to establish an educational institution can be regulated; but such regulatory measures must, in general, be to ensure the maintenance of proper academic standards, atmosphere and infrastructure (including qualified staff) and the prevention of mal-administration by those in charge of management. The fixing of a rigid fee structure, dictating the formation and composition of a governing body, compulsory nomination of teachers and staff for appointment or nominating students for admissions would be unacceptable restrictions.
51. While answering Question No. 4 as to whether admission of students for minority educational institutions whether aided or unaided can be regulated by State Government or university to which the institution is affiliated, the Apex Court held as follows:
The right to admit students being an essential facet of the right to administer educational institutions of their choice, as contemplated under Article 30 of the Constitution, the state Government or the university may not be entitled to interfere with that right, so long as the admission to the unaided educational institutions is on a transparent basis and the merit is adequately taken care of. The right to administer, not being absolute, there could be regulatory measures for ensuring educational standards and maintaining excellence thereof, and it is more so in the matter of admissions to professional institutions.
52. While answering question No. 5A as to whether the minority institutions' right to establish and administer educational institutions of their choice will include the procedure and method of admission and selection of students, the Supreme Court held:
A minority institution may have its own procedure and method of admission as well as selection of students, but such a procedure must be fair and transparent, and the selection of students in professional and higher education colleges should be on the basis of merit. The procedure adopted or selection made should not be tantamount to mal-administration. Even an unaided minority institution ought not to ignore the merit of the students for admission, while exercising its right to admit students to the colleges aforesaid, as in that event, the institution will fail to achieve excellence.
53. While answering Question No. 5(C), the Supreme Court held:
In case of an unaided minority educational institution, the regulatory measure of control should be minimal and the conditions of recognition as well as the conditions of affiliation to an university or board have to be complied with, but in the matter of day-to-day management, like the appointment of staff teaching and non-teaching, and administrative control over them, the management should have the freedom and there should not be any external controlling agency.
54. It can be seen that a distinction is sought to be made in T.M.A.Pai Foundation between the educational institutions at lower strata like schools and undergraduate colleges where scope for merit-based admissions is practically nil and the institutions of higher learning where maintenance of excellent standards of education is in the national interest.
55. In para 134 of P.A.Inamdar's case, the Apex Court held: "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 b law, such as a university, Board, Central or State Government or the like. Excellence in education and maintenance of high standards at this level are a must. To fulfil these objectives, the State can and rather must, in national interest, step in. The education, knowledge and learning at this level possessed by individuals collectively constitutes national wealth".
56. The critical observation and dicta of the Apex Court in T.M.A.Pai Foundation and P.A.Inamdar extracted above clearly emphasize that merit shall never be allowed to become a causality in the matter of admission to courses of higher learning in professional institutions as maintenance of excellent standards of education is in the national interest and the education, knowledge and learning possessed by individuals at that level constitutes national wealth. Private Professional Institutions, whether Minority or Non-Minority are no exception when it comes to the question of maintaining excellent standards in professional education which can be ensured only by pursuing merit-based admissions. Though, Unaided professional Institutions are entitled to have greater autonomy in the matter of administering the institutions free from state control for the reason that they do not receive any aid from the State, still State regulation is permissible with a view to maintain fairness and transparency in admission procedure and to check exploitation of students, of course such regulation should be at a minimal level only to ensure the above triple objectives. The right to establish and administer an educational institution includes among other things the right to admit students and to set up a reasonable fee structure. But such a right to establish can be regulated to ensure maintenance of proper academic standards, atmosphere and infrastructure and preventing mal-administration. Right to administer is held not to include the right to mal-administration. The right to administer is held to be not absolute but is subject to reasonable regulations for the benefit of the institutions as the vehicle of education consistent with national interest.
57. The Apex Court held that the right under Article 30(1) is not absolute or above the other provisions of law and regulations or conditions concerning the welfare of the students can be made applicable in order to provide a proper academic atmosphere and such regulation do not in any way interfere with the right to administration or management under Article 30(1) of the Constitution. What is prohibited is interference by the State with day-to-day administration of a Private Unaided Professional Institution. Regulating the procedure for admission of students with a view to ensure merit and transparency and prevent any exploitation of the students can never be termed as interfering with the day- to-day administration of the institution. Though the right to admit students is an important facet of the right to administer the institution, such right being not an absolute one, regulatory measures at a minimal level to ensure merit and transparency to the maximum extent are permissible especially in the matter of admission to professional courses.
58. A comparative study and analysis of the G.Os issued prior to the judgments of the Apex Court in T.M.A.Pai Foundation and P.A.Inamdar and the latest G.Os issued subsequent to P.A.Inamdar clearly reveal the change in the perception in respect of the rights of the managements of Unaided Professional Institutions and systematic withdrawal of the State control in the matter of conducting common entrance test and also admission of the students in Unaided Professional Institutions, whether Minority or Non-Minority. Much water has flown under the bridge from the time of G.O.Ms.No.184 dated 20.8.1993 to the impugned G.O.Ms.Nos. 53, 54 and 59 of the year 2006. From a state of total control vested in the state and its instrumentalities obtaining in 1993, a stage has reached in 2006 where managements of Unaided Professional Institutions are at liberty to have their own common entrance test and also to admit students to fill category `A' 80% seats on the basis of the merit list of the common entrance test EAMCET-AC conducted by them. The entrance test is conducted by a Convenor who is their own nominee and the admissions are effected again by a Convenor who is again their nominee and supervised by a committee appointed by them. Thus, there is absolutely no interference or control by State or its agencies in the matter of conducting the test or admitting the students by Unaided Professional Institutions under the impugned G.Os. The option made available in the impugned G.Os to adopt the entrance test conducted by Government and to go by Single Window System operated by Convenor of EAMCET- admissions is only a facilitator to help such of those institutions which do not join the Association of the Colleges and such a measure can never be termed regulatory. In P.A.Inamdar's case, the Apex Court held that the observations made in para 68 of T.M.A.Pai Foundation permitted Unaided Private Institutions to maintain merit as the criterion of admission by voluntarily agreeing for seat sharing with the State or adopting selection based on common entrance test of the State. It was also observed that said observation in para 68 of T.M.A.Pai Foundation regarding fixation of percentage of quota are to be read and understood as possible consensual arrangement which can be reached between Unaided Professional Institutions and the State. When such consensual arrangements are permissible, any provision giving an option for the institutions to adopt common entrance test conducted by the State or the method of selection followed by State, cannot be faulted with especially when there is no compulsion to adopt or follow the same and it being only optional. The contention of the petitioners that prescribing a Single Window method of admission cuts at their right to administer the individual institutions by depriving them of their right to admit students of their choice is untenable. The Apex Court held in P.A.Inamdar's case that common entrance test is necessary in the interest of achieving the objectives of merit and transparency and to maintain excellence and also for saving the student community from harassment and exploitation. It was further held that 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 Institutions to admit the students of their choice. Such choice can be exercised from out of a list of candidates prepared at the common entrance test without altering the order of merit interse of the students so chosen. The advantages in having a Single Window method of admission and the protection it affords to the students against exploitation are too obvious and need no emphasis. It spares students from the trauma of appearing at multiple tests conducted by individual institutions on different dates some of which may be clashing and also the element of uncertainty over securing admission besides avoiding unnecessary expenditure and inconvenience. When the Unaided Professional Institutions are given the liberty to conduct a common entrance test of their own by forming into an association and also admit students based on the merit list of such an entrance test and when the admission process is operated by a Convenor appointed by the association of colleges and supervised by committee constituted by such association without any reference to the competent authority or the Convenor appointed by him, the question of interference by the State in the matter of administration of Institutions does not simply arise. If each and every individual institution is permitted to conduct a test of its own and have a method of its own to admit the students the disastrous consequences that follow are not difficult to visualize. What results from such an unbridled permissive course is utter chaos and confusion that can never be allowed to happen in the interest of preserving excellence in the matter of higher learning.
59. The stipulation contained in the impugned G.Os that no management of the Unaided Professional Institution shall issue a notification and call for applications for admission separately or individually except for filling the vacant seats after counseling, does not therefore amount to interfering with the right to administer institutions, which right in fact is held to be not absolute one, but can be regulated in such a way as to ensure merit, transparency and non- exploitation.
60. The further stipulation in Rule 8(1) of G.O.Ms.No.54 that the fee payable per student per annum for each discipline in each institution shall be as prescribed by the AFRC is also in accordance with the dicta of the Apex Court that the State regulation is permissible to check exploitation of students by charging exorbitant money or capitation fee and the committees for monitoring admission procedure and determining fee structure are permissible as regulatory measure aimed at protecting the interest of the student community as a whole as also the minorities themselves and such a regulation does not violate the right under Article 30(1) of the Minorities or under Article 19(1)(g) of minorities or non-minorities and they are reasonable restrictions in the interest of minority institutions under Article 30(1) and in the interest of general public under Article 19(1)(g) of the Constitution.
61. It can also be seen that the impugned G.Os do not contemplate sharing of seats at all by the State from out of sanctioned intake. There is no carving out of any percentage of seats to be filled by the state through its instrumentality as was done in the earlier G.Os which were in force prior to the decision in P.A.Inamdar's case. All the seats whether 80% category A, 20% category B seats are permitted to be filled by institutions. Categorizing the seats as 80% to be filled through a common entrance test and 20% by all eligible candidates including NRIs and those from other States and Union Territories does not amount to sharing of seats by the State. The impugned G.Os which are issued subsequent to the decision of the Apex Court in P.A.Inamdar's case set out the rules which are qualitatively different from the rules existing previously and the impugned rules do not in any way violate the dicta of the Apex Court in the decision in T.M.A.Pai Foundation and P.A.Inamdar and on the other hand, they are in conformity therewith. The impugned rules do not infringe in any manner the rights of the minorities to establish and administer institutions under Article 30(1) which right is held to be not an absolute one, but an additional protection. The impugned G.Os do not also violate the rights of the minorities or non-minorities under Article 19(1)(g) of the Constitution.
62. In the circumstances and for the reasons stated above, it is held that challenge to the impugned G.O.Ms.Nos. 53 and 54 dated 10.5.2006 and G.O.Ms.No.59 dated 26.5.2006 based on the ground that they are violative of Article 19(1)(g) and 30(1) of the Constitution and also the dicta laid down by the Apex Court, must necessarily fail.
63. The writ petitions are accordingly dismissed.