Punjab-Haryana High Court
Thapar Institute Of Engineering And ... vs State Of Punjab And Another on 2 September, 1994
Equivalent citations: AIR1995P&H185, (1995)109PLR562, AIR 1995 PUNJAB AND HARYANA 185, (1995) 1 SERVLR 612, (1995) 2 SCT 26, (1995) 109 PUN LR 562
Author: R.P. Sethi
Bench: R.P. Sethi
ORDER
R.P. Sethi, Actg. C.J.
1. As the common question of law are involved in Civil Writ Petitions Nos. 1745, 1744, 906 of 1992 and 9296, 1852 and 7003 of 1993 the same are being disposed of by a common judgment.
2. In Civil Writ Petition No. 1745 of 1992 the petitioner has prayed for quashing of Annexure P/2 issued by the respondents- State addressed to respondent No. 2 on the subject of reservation in admission for wards of employees working in the Department/ Institution. It is stated in the said communication that reservations in favour of children of the employees of the Department/Institution being run by the Government/Private aided/ Private un-aided institutions was discriminatory and unconstitutional in view of the judgments of this Court delivered in Civil Writ Petition No. 13799 of 1989 and Civil Writ Petition No. 16459 of 1990. It is further stated that such reservation cannot be justified on the plea of being a measure of welfare. It was, therefore, decided that with effect from the Session 1991-92 onwards, there shall be no reservation in admissions for wards of employees of the Department/ Institution and that such a reservation wherever stipulated in the diploma level courses in Government/ Private aided/Private un-aided institutions affiliated with the State Board of Technical Education and Certificate Level Courses in all such like institutions under the purview of the Industrial Training Wing of the Department shall stand cancelled with immediate effect. As regards degree level courses, it was stated that the aforesaid decision would be applicable with effect from the next academic session, that is, 1992-93. It is submitted by petitioner that seven eminent industrialists, social workers and educationists had joined hands to form a trust named. The Patiaia Technical Education Trust, which was registered at Patiaia on 9-4-1956. As per the -decision of the Settlors Thapar Institution of Engineering and Technology was set up with Thapar Polytechnic established in 1956 as one of its wings. It is contended that the sajd Institute was subseqently declared a Deemed University under the name of Thapar Institute of Engineering and Technology and had its own independent arrangements to conduct studies, hold examinations and issue degrees and post-degree certificates of the successful candidates. Besides, reservations in the case of Scheduled Castes/Tribes, Backward Classes, Sportsmen, Ex-Servicemen, 2% seats are reserved for the children of employees of Thapar Institute of Engineering and Technology and Patiaia Technical Education Trust and 5% seats of the children of the employees of Thapar Group of Companies. Such a reservation is claimed 16 have been examined by the Punjab GoveYiiment who vide their memo No. 32/44/78-7.E.II dated 22-7-1983 intimated the Government that reservations were based on precedents and were in order. It is submitted that as the petitioner was not a party to the judgments referred to in Annexure P/2, they were not b'ound by the dictum of the Court and the Annexure p/2 could not be applied to them. As thapar Institute of Engineering and Technology is, an institution which is Deemed University under the supervision and management of Board of Governors appointed under the Rules of Institute approved by the Board of Trustees the directions are binding on them. They have their own arrangements to prescribe courses of study, make admissions, arrange setting up and marking of papers, declaration of results and grant of Degrees and Certificates. The respondents have no jurisdiction or authority to interfere in their internal working or to issue instructions/directions incorporated in Annexure P/2. The petitioner-Institute is claimed to be run under the management of a minority community. The respondents have no valid jurisdiction to interfere in the internal arrangement with regard to reservation etc. As the Thapar Institute of Engineering Technology, Patiaia is not affiliated with the State Board of Technical Education but is a Deemed University no directions can be issued to them in the matter of admission and reservations.
3. Civil Writ Petition No. 1852 of 1993 has been filed by the selected candidates of the Thapar Polytechnic in the Patiaia Technical Education Trust and have prayed for registration of their names for the session 1992-93 in the three year diploma course with permission to take up provisional examination. At the time of admission of this writ petition, the respondents were directed to permit the petitioners to take examination subject to the result of the writ petition at their own risk and responsibility.
4. Civil Writ Petition No. 906 of 1992 has been filed by the students of 1st Year Diploma Course in the Thapar Polytechnic, Patiala and have prayed quashing the aforesaid communication and issuance of directions to the respondents to allow the petitioners therein continue with their studies and appear in the examination.
At the time of notice of motion on 21-1-1992, the petitioners were allowed to continue their studies and to appear in the examinations. The writ petition was admitted on 4-8-1992 and operation of Annexure P/6 therein, which has been noticed as Annexure P/2 in Civil Writ Petition No. 1745 of 1992, was directed to be stayed.
5. In Civil Writ Petition No. 9296 of 1993, the order dated 15-7-1993 issued by the Maharishi Dayanand University has been prayed to be quashed on the ground of being unconstitutional. Vide the impugned order the petitioners in that writ petition were informed that their request for reservation of seats for the wards of T.I.T.S. employees in B.Tech. courses was considered and not accepted in view of the judgment of the Hon'ble Supreme Court. They were requested to make no admission in the category of reservation for the wards of T.l.T.S. employees. It is submitted that as the petitioner-institution was not granted any aid or financial aid either from the Central Government or from the State Government, the impugned directions could not be issued to them. It is submitted that as the petitioner-institution constitute a class in itself and is situated in a remote and backward area of Harayana the promoter were justified to make reservation of seats for the purpose of giving incentive to their staff. It is contended that the admission in the aforesaid category was being made strictly in accordance with the the rules framed for the purpose which were not arbitrary as inter se merit in the category is maintained, no one can have any grievance.
6. Civil Writ Petition No. 7003 of 1993 has been filed by Nankana Sahib Education Trust with the prayer of quashing the order of the Punjab Government referred to earlier, on the ground that the judgments of this Court delivered in Civil Writ Petition No. 16459 of 1990 were not applicable in their case. The petitioners have submitted that they were Trust created by the Shiromini Gurdwara Parbandhak Committee the purpose of which was to provide facilities for Civil Mechanic, Electrical, Technical, Agricultural, Industrial and all other types of Engineering and Scientific Education and Training to the weaker and backward sections of the Society in general and the people of rural areas in particular. Guru Nanak Engineering College was established with the purpose of achieving the objects referred to herein above. The funds for managing the said College are primarily provided by the Shiromini Gurdwara Parbandhak Committee and the College has been established on the land donated by the Estate Owners of Gill Village Six percent seats are reserved for the children of persons associated with the Nankana Sahib Education on Trust, Management of College/Polytechnic; four percent for donors of College site (Gill Village) and two per cent seats for children lof College/Polytechnic Employees with not less than five years of service.
7. In the identical objections filed by the above respondents, it is submitted that the admission to various courses in the institutions affiliated with the State Board of Technical Education is governed by the. provisions as contained in notification No. 32/12/89/2 TE-II-92/Spl. dated 13-5-1992 issued by the Government of Punjab providing that admission would be made on the basis of joint entrance test in the subjects of Science, Mathematics and English. It is submitted that the petitioner Institute is included in the notification and cannot act contrary to it. The Thapar Polytechnic Institute, Patiala, issued prospectus inviting applications for admission and under the head of eligibility for admission it was provided that admission shall be made on the basis of the relative merits of candidates in the Joint Entrance Test conducted in the year of admission. In the case of reserved seats, relative merit of the candidates shall be determined within each category of reservation. It is submitted that in view of the law laid down by the Constitution Bench" of the Hon'ble Supreme Court in Unni Krishnan. J.P. v. State of Andhra Pradcsh, (1993) 1JT (SC) 474 : (AIR 1993 SC 217S) admission on the basis of descent, caste, creed or sex has been prohibited. It has been held that there shall be no quota reserved for the management or for any family, caste or community which may have established the College.
8. The fact that Thapar Institute of Engineering and Technology being a Deemed University has been admitted but it is submitted that reservation of wards of the employees of the Department/Institute are directed to be cancelled by the State Government in view of the judicial pronoucements of this Court and the Hon'ble Supreme Court.
9. We have heard the arguments of the learned counsel for the parties at length and perused the relevant record and the judgments relied upon by the counsel appearing for the petitioner.
10. The learned counsel appearing for the petitioners justified the reservation made by the institution and submitted that the dictum of the Supreme Court in Unni Krishnan case (AIR 1993 SC 2178) (supra) is not applicable in their cases. It is further submitted that the petitioner has no jurisdiction to formulate any Scheme or give any directions so far as the petitioner "Deemed University" is concerned. In reply it is submitted that all Polytechnic institutions are receiving 95 percent grant-in-aid from the Stale and that the reservations made are in violation of the judgments of this Court and of the Supreme Court. It is contended that as the law laid down by the Hon'ble Supreme Court is bindig upon all Courts without any exception in terms of Articles 141 and 144 of the Constitution, the writ petitions being misconceived are liable to be dismissed.
11. The fate of these writ peiitions is dependent upon the applicability of Unni Krishnaan's case (AIR 1993 SC 2178) (supra) in the State of Punjab and other States who were not formal parties in the aforesaid case. The counsel for the petitioner has submitted that as neither the petitioner nor the State of Punjab was a party in Unni Krishanan's case (supra), the judgment delivered therein is judgment in rcm and not in personam and is not applicable in the case of the petitioner and no action can be taken by the respondents to implement the said judgment. It is true that the Hon'ble Supreme Court had considered the factual position prevailing in the States of Andhra Pradesh, Maharashtra and Tamil Nadu but it is equally true that notices in these matters were, however, directed to all the States in the Country. After dealing with various aspects of the admission in professional colleges the Hon'ble Supreme Court evolved a scheme in the nature of guidelines which the1 appropriate Governments and recognising and affiliating authorities shall impose and implement in addition to such other conditions and stipulation's as they may think appropriate as conditions for grant of permission, grant of recognition or grant of affiliation, as the case may be. It was made clear that only those institutions which seek permission to establish and/or recognition and/or affiliation from the appropriate authority shall alone be made bound by this Scheme. The Scheme was, however, declared to be not applicable to the colleges run by the Government or the University Colleges. It was further held." In short, the scheme hereinafter mentioned shall be made a condition of permission, recognition or affiliation, these conditions shall necessarily be imposed in additional to such other conditions as the appropriate authority may think appropriate. No private educational institution shall be allowed to send its students to appear for an examination held by any Government or other body constituted by it or under any law or to any examination held by any University unless the concerned institution and the relevant course of study is recognised by the appropriate authority and/or is affiliated to the appropriate University, as the case may be." The Scheme formulated by the Hon'ble Supreme Court is as under (Para 170 of AIR);-
"(1) A professional college shall be permitted to be established and/or administered only by a Society registered under the Societies registered under the Societies Registration Act, 1860 (or the corresponding Act, if any, in force in a given State), or by a Public Trust, 'religious or charitable, registered under 'the Trusts Act, Wakfs Act (or the corresponding legislation, if any, e.g., Tamil Nadu Religious and Charitable Endowments Act and, A. P. Religious and Charitable Endowments Act). No individual, firm, company or other body of individuals, by whatever appellation called-excepl those mentioned above-will be permitted to establish and/ or administer a professional college. All the existing professional colleges which do not conform to the above norm shall be directed to take appropriate steps to comply with the same within a period of six months from today. In default whereof, recognition/affiliation accorded shall stand withdrawn. (In this connection reference may be had to Rule 86(2) of Maharashtra Grant-in-aid Code (referred to in State of Maharashtra v. Lok Shikshan Sanstha, 1971 Supply SCR 879 : (AIR 1973 SC 588) which provided that schools which are not registered under the Societies Registration Act, shall not be eligible for grant. Grant of recognition and affiliation is no less significance.
(2) At least, 50% of the scats in every professional college shall be filled by the nominees of the Government or University, as the case may be, hereinafter referred to as "free seats". These students shall be selected on the basis of merit determined on the basis of common entrance examination where it is held or in the absence of an entrance examination, by such criteria as may be determined by the competent authority or the appropriate authority, as the case may be. It is however, desirable and appropriate to have a common entrance exam for regulating admission to these colleges/institutions, as is done in the State of Andra Pradesh. The remaining 50% seals (payment seats) shall be filled by those candidates who are prepared to pay the fee prescribed therefor and who have complied with the instructions regarding deposit and furnishing of cash security/bank guarantee for the balance of the amount. The allotment of students against payment seats shall also be done on the basis of inter se merit determined on the same basis as in the case of free seats. There shall be no quota reserved for the management or for any family, caste or community which may have established such college. The criteria of eligibility and all other conditions shall be the same in respect of both free seats and payment seats. The only distinction shall be the requirement of higher fee by the "payment students." The management of a professional college shall not be entitled to impose or prescribe any other and further eligibility criteria or condition for admission either to free seats or to payment seats. It shall, however, be open to a professional college to provide for reservation of seats for constitutionally permissible classed with the approval of the affiliating University. Such reservations, if any, shall be made and notified to the competent authority and the appropriate authority at least one month prior to the issuance of notification calling for applications for admission to such category of colleges. In such a case, the competent authority shall allot students keeping in view the reservations provided by a College. The rule of merit shall be followed even in such reserved categories.
(3) The number of seats available in the professional colleges (to which this scheme is made applicable) shall be fixed by the appropriate authority. No professional college shall be permitted to increase its strength except under the permission or authority granted by the appropriate authority, (4) No professional college shall call for applications for admission separately or individually. All the applications for admission to all the seats available in such colleges shall be called for by the competent authority alone, along with applications for admission to Government/ University colleges of similar nature. For example, there shall be only one notification by the competent authority calling for applications for all the medical colleges in the State and one notification for all the engineering colleges in the State and so on. The application forms for admission shall be issued by the competent authority (from such offices, centres and places as he may direct). The application form shall contain a column or a separate part wherein an applicant can indicate whether he wishes to be admitted against a payment seat and the order of preference, upto three professional colleges.
(5) Each professional college shall intimate the competent authority the State Government and the concerned University in advance the fees chargeable for the entire course commencing that academic year. The total fees shall be divided into the number of years/ semesters of study in that course. In the first instance, fees only for the first year/ semester shall be collected. The payment students will be, however, required to furnish either cash security or bank guarantee for the fees payable for the remaining years/ semese-ters. The fees chargeable in each professional college shall be subject to the ceiling prescribed by the appropriate authority or by a competent Court. The competent authority shall issue a brochure, on payment of appropriate charges, along with the application form for admission, giving full particulars of the courses and the number of seats available, the names of the colleges, their location and also the fees chargeable by each professional college. The brochure will also specify the minimum eligibility conditions, the method of admission (whether by entrance test or otherwise) and other relevant particulars.
(6)(a) Every State Government shall forthwith constitute a Committee to fix the ceiling on the fees chargeable by a professional college or class of professional colleges, as the case may be. The Committee shall consist of a Vice-Chancellor, Secretary for Education )or such Joint Secretary, as he may nominate) and Director, Medical Education /Director Technical Education. The Committee shall make such enquiry as it thinks appropriate. It shall, however, give opportunity to the professional colleges (or their association (s), if any) to place such material, as they think fit. It shall, however, not be bound to give any personal hearing to anyone or follow any technical rules of law. The Committee shall fix the fee once every three years or at such longer intervals, as it may think appropriate.
(b) It would be appropriate if the U.G.C. frames regulations under Section 12A(3) of the U.G.C. Act, regulating the fees which the affiliated colleges, operating on no-grant-in-aid basis, are entitled to charge. The Council for Teachnical Education may also consider the advisability of issuing directions under Section 10 of the A.I.C.T.E. Act regulating the fees that may be charged in private unaided educational institutions imparting technical education. The Indian 'Medical Council and the Central Government may also consider the advisability of such regulation as a condition for grant of permission to new medical colleges under Section 10A and to impose such a condition on existing colleges under Section 10C.
(c) The several authorities mentioned in sub-paras (a) and (b) shall decide whether a private" educational institution'is entitled to charge only that fee as is required to run the college or whether the capital cost involved in established a college can also be passed on to the students and if so, in what manner. Keeping in view the need, the interest of general public and of the nation, a policy decision may be taken. It would be more appropriate if the Central Government and these several authorities (U.G.C., I.M.C. and A.I.C.T.E.) co-ordinate their efforts and evolve a broadly uniform criteria in this behalf. Until the Central Government, U.G.C., I.M.C. and A.I.C.T.E., issue orders/regulations in this behalf, the committee referred to in the sub-para (a) of this para shall be operative. In Other words, the working and orders of the committee shall be subject to the orders/regulations, issued by Central Government, U.G.C., I.M.C. or A.I.C.T.E., as the case may be.
(d) We have hasten to add that what we have said in this clause is merely a reiteration of the duty-nay, obligation-placed upon the Governments of Andhra Pradesh, Mahara-shtra, Karnataka and Tamil Nadu by their respective legislatures to wit, Section 7 of Andhra Pradesh Act 5 of 1983, Section 4 Maharashtra Act 6 of 1988, Section 5 of Karnataka Act of 1984 and Section 4 of Tamil Nadu Act 57 of 1992. Other State too may have to have Similar provisions, carrying statutory force.
(7) Any candidate who fulfils the etigibilily conditions would be entitled to apply for admission. After the free seats in professional colleges are filled up, at least 10 days' time will be given to the candidates (students) to opt to be admitted against payment seats. The candidates shall be entitled to indicate their choice for any three colleges (if available). In such a case, he shall comply with the deposit and cash security/bank guarantee -- taking the institution charging the highest fees as the basis -- within the said period often days. If he is admitted in an institution, charging less fee, 'the difference amount shall be refunded to him. (The cash security or bank guarantee shall be in favour of the competent authority, who shall transfer the same in favour of the appropriate college if that student is admitted).
(8) The results of the entrance examination, if any, held should be published at least in two leading newspapers, one in English and the other in vernacular. The payment candidates shall be allotted to different professional colleges on the basis of merit-cum-choice. The allotment shall be made by the competent authority. A professional college shall be bound to admit the students so allotted. The casual vacancies or unfilled vacancies, if any, shall also be filled in the same manner. The management of professional college shall not be permitted to admit any student other than the one allotted by the competent authority -- whether against free seat or payment seat, as the case may be. It is made clear that even in the matter of reserved categories, if any, the principle of inter se merit shall be followed. All allotments made shall be published in two leading newspapers as aforesaid and on the notice boards of the respective colleges and at such other places as the competent authority may direct, along with the marks obtained by each candidate in the relevant entrance test or qualifying examination, as the case may be. No professional college shall be entitled to ask for any other or further payment or amount, under whatever name it may be called, from any student allotted to it -- whether against the free seat or payment seat.
(9) After making the allotments, the competent authority shall also prepare and publish a waiting list of the candidates along with the marks obtained by them in the relevant test/examination. The said list shall be followed for filling up any casual vacancies or 'drop-out' vacancies arising after the admissions are finalised. These vacancies shall be filled until such date as may be prescribed by the competent authority. Any vacancies still remaining after such date can be filled by the management."
This scheme was made applicable from the academic session commencing from 1993-94.
12. Similarly, this Court had earlier held in Parveen Hans v. Registrar, Punjab Uni-versity, Chandigarh (1990) 1 Serv LR 808: (AIR 1990 NOC 107) that reservation for children of the employees of the University had no nexus with the object sought to be achieved and that the preferential treatment to such children amounted to favouritim and patronage. To the same effect are the judgments of this Court in Ajay Kumar v. Chandigarh Administration, AIR 1983 Punj & Har 8 and Ashwinder Kaur v. Punjab University, AIR 1989 Punj & Har 190.
13. Article 141 of the Constitution of India provides that the law declared by the Supreme Court shall be binding on all courts within the territory of India.
This article empowers the Supreme Court to declare the law while.in the course of its function's to interpret a legislation. Under Art. 142 the Supreme Court has the jurisdiction to pass such decree or order as is necessary for doing complete justice in any cause or matter pending before it and such powers are contemplated to bring law in harmony and social changes. It was held in Amritsar Municipality v. Hazara Singh, AIR 1975 SC 1087 that every; statement contained in the judgment of the Supreme Court would not attract the provisions of Art. 141 of the Constitution. Though the obiterdictum is not a precedent, yet, being the observations of the Apex Court in the country is worthy of respect and considerable weightage. The Supreme Court in Assistant Collector of Central Excise v. Dunlop India Ltd., (1985) 1 SCC 260: (AIR 1985 SC 330), referred to the system of dispensing justice in the country and hoped that in the hierarchical system of courts in the country, it was necessary for each lower tier including the High Court to accept loyally the decision of the higher tiers. Referring to Cassell & Co. v. Broome, 1972. AC 1027 : (1972) 1 All ER 801, their Lordships observed (at pp. 334-335 of AIR):-
"We desire to add and as was said in Cassell & Co. Ltd. v. Broome (1972 AC 1027), we hope it will never be necessary for us to say so again that "in the hierarchical system of courts" which exists in our country, it is necessary for each lower tier", including the High Court", to accept loyally the decisions of the higher tiers". It is inevitable in hierarchical system of courts that there are decisions of the Supreme Appellate Tribunal which do not attract the unanimous approval of all members of the judiciary ..... But the judicial system only works if someone is allowed to have the last word and that last word, once spoken, is loyally accepted". The better wisdom of the court below must yield to the higher wisdom of the court above. That is the strength of the hierarchical judicial system. In Cassell & Co. Ltd. v. Broome (1972 (1) All ER 801) commenting on the Court of Appeal's comment that Rookes v. Barnard (1964 AC 1129) who rendered per incuriam, Lord Diplock observed: --
"The Court of Appeal found themselves able to disregard the decision of this House in Rookes v. Barnard by applying to it the label per incuriam. That label is relevant only to the right of an appellate court to decline to follow one of its own previous decisions, not to its right to disregard a decision of a higher appellate court or to the right of a Judge of the High Court to disregard a decision of the Court of Appeal. It is needless to add that in India under Art. 141 of the Constitution the law declared by the Supreme Court shall be binding on all courts within the territory of India and under Art. 144 all authorities, civil and judicial in the territory of India shall act in aid to the Supreme Court."
14. In Shama Rao v. Union Territory, AIR 967 SC 1480, it was held that, "it is trite to say that the decision is binding in case of its conclusion but in regard to its ratio and the principle laid down therein". In Shenoy & Co. v. Commercial Tax Officer, (1985) 2 SCC 512 : (AIR 1985 SC 621), the Supreme Court held that no one can be permitted to urge that the judgment of the Apex Court would not be applicable in case of a person who was not a party before that Court. Their Lordships held that in a case where numerous petitions are disposed of by a common judgment, aggrieved party can file one appeal and the other parties cannot be heard to say that the decision was taken by the Court behind their back or profess ignorance of the fact that the appeal had been filed by the State against the common judgment. The Supreme Court found it as an economism procedure and declared", to contend that this conclusion applied only to the party before this Court is to destroy efficacy and integrity of the judgment and to make the mandate of Art. 141 illusory". Their Lordships further held that declaration of law is binding on every one and it was futile to contend that the mandamus would survive in favour of those parties against whom appeals were filed.
15. So far as the scope of the applicability of the Unnikrishnan's case (AIR 1993 SC 2178) (supra) is concerned, the Supreme Court itself in State of Gujarat v. Meghji Pethraj Shah Charitable Trust, (1994) 3 JT (SC) 96 : (1994 AIR SCW 2584), after dealing with such an argument held (at pp. 2594-2596 of AIR):
"Sri G. Ramaswamy, learned counsel for the respondent-trust is not right in saying that the decision in Unnikrishnan (AIR 1993 SC 2178) was not relevant to the decision of the Government of Gujarat to terminate the aforesaid arrangenemt. In our opinion, it was perfectly relevant and the Government of Bala Gujarat was right in terminating the arrangement following the said decision. It has been held in Unnikrishnan (AIR 1993 SC 2178) that while a person may have a right to establish an educational institution, it can certainly not be treated or operated as a trade or business. The following extract from the judgment brings out the essence of the holding on this aspect.
. . . While we do not wish to express any opinion on the question whether the right to establish an educational institution can be said to be carrying on any "occupation" within the meaning of Art. 19(1)(g), -- perhaps, it is -- we are certainly of the opinion that such activity can neither be a trade or business nor can it be a profession within the meaning of Art, 19(1)(g). Trade or business normally connotes an activity carried on with a profit motive. Education has never been commerce in this country. Making it one is opposed to the ethos, tradition and sensibilities of this nation. The argument to the contrary has been unholy ring to it. Imparting of education has never been treated as a trade or business in this country since time immemorial. It has been treated as a religious duty. It has been treated as a charitable activity. But never as trade or business. We agree with Gajendragadkar, J. that "education in its true aspect is more a mission and a vocation rather than a profession or trade or business, however wide may be the denotation of the two latter words . . . ." (See University of Delhi (AIR 1963 SC 1873).) The Parliament too has manifested its intention repeatedly (by enacting the UGC Act. IMC Act and AICTE Act) that commercialisation of education is not permissible and that no person shall be allowed to steal a march over a more meritorious candidate because of his economic power. The very same intention is expression by the Legislatures of Andhra Pradesh, Karnataka, Maharashtra and Tamil Nadu in the Preamble to their respective enactments prohibiting charging of capitation fee.
We are, therefore, of the opinion, adopting the line of reasoning in State of Bombay v. R.M.D. Chamarbaugwala, (1957) SCR 874: (AIR 1957 SC 699) that imparting education cannot be treated as a trade or business. Education cannot be allowed to be converted into commerce nor can the petitioners seek to obtain the said result by relying upon the wider meaning of "occupation". The contest of the expression "occupation" has to be. ascertained keeping in mind the fact that clause (g) employs all the four expressions viz., profession, occupation, trade and business. Their fields may overlap, but each of them does certainly have a content of its own, distinct from the others. Be that as it may, one thing is clear imparting of education is not and cannot be allowed to become commefce. A law, existing or future, ensuring against it would be a valid measure within the meaning of clause (6) of Art. 19, We cannot, therefore, agree with the contrary proposition enunciated in Sakharkherda Education Society v. State of Maharashtra (AIR 1968 Bom 91), Andhra Kesari Education Society v. Govt. of A.P. (AIR 1984 Andh Pra 25!) and Bapuji Educational Assn. v. State of Karnataka (AIR 1986 Kant 119).
In the scheme evolved in the said judgment, it is expressly directed that all students admitted to a private professional college shall be selected exclusively on the basis of merit, both in the category of merit (free) seats as well as payment seats. In the case of such private professional colleges, an exception. was made to the extent of 5% of the seats for accommodating the N.R.Is./foreign students in view of the orders and policy of the Government of India to encourage such students. It has also been directed expressly [hat "there shall be no quota reserved for the management or for any family, caste or community, which may have established such college". If this is the position in the case of professional colleges established and administered by private bodies, it is inconceivable that in the case of a college established and run by the government, any admissions can be made otherwise than on merit or any quota can be reserved for any person, family or trust, which may have assisted monetarily in establishing the college. The government is not precluded from accepting donations from charitable-minded individuals or organisations but it cannot certainly enter into an arrangement or a venture of the kind concerned herein. In this case, the payment was more in the nature of a deal whereunder Sri M. P. Shah obtained in return an enduring benefit till the college lasts. It was not even a case, where the government unilaterally offered something out of gratitude for such "donations" -- not that we are saying that such a think would be legal. Now, where an individual or an organisation which establishes and runs a medical college (recognised by State or affiliated to a University) is not entitled, according to Unnikrishnan (AIR 1993 SC 2178) to admit students on its own, or in its discretion, it is inconceivable that a person or a body which has assisted in setting up of a government medical college would be permitted to have a quota of its own to which it can nominate students of its own choice. There is no room for such an arrangement in law. We are, therefore, of the opinion that the reason given by the Government of Gujarat in its, communication dated June, 22, 1993 for germinating the said arrangement is a perfectly relevant, legitimate and valid reason. It was bound to do so in law and it has done so. No exception can be taken to the said laction."
16. In view of the position of law, stated hereinabove, it is crystal clear that the directions given by the Supreme Court in Unnikrishnan's case (AIR. 1993 SC 2178) (supra) were binding on all the States including the State of Punjab and respondents were under a legal obligation to implement it in letter and spirit. The petitioners could, therefore, have no objection to the legality of the orders impugned which apparently appears to have been issued on the basis of the judgments of this Court and of the Apex Court in Unnikrishnan's case (supra). The respondents have only discharged their duty cast upon them under the provisions of the Consti-tution, as noted herein above, and the petitioners are not justified to submit that the directions, guidelines or the scheme formulated by the Supreme Court was not binding upon them.
17. Learned counsel appearing for the petitioners have, however, tried to justify the impugned reservations on various grounds as detailed in the grounds of the writ petitions. It was submitted that the impugned quota was valid, legal and did not suffer from any vice of unconstitutionality. However, in view of the judgments of this Court and of the Apex Court their arguments have no significance and suffer from inherent infirmities requiring no fresh adjudication.
18. The Supreme Court had earlier disapproved the reservations on the ground of descent only holding it to be in contravention of Art. 16 of the Constitution of India in Gazula Dasaratha Rama Rao v. State of Andhra Pradesh, AIR 1961 SC 564.
19. In Chairman/Director Combined Entrance Examination (CEE) 1990 v. Osiris Das, (1992) 3 SCC 543, the Supreme Court held that any instrumentality of the State cannot give preferential treatment to a class of persons without their being any justification for the same, Reservation of seats for admission in favour of son and wards of the University or of Institution is violative of doctrine of equality enshrined under Art. 14 of the Constitution. The Supreme Court held, "that there is no rationale for the reservation of the seats in favour of the sons and wards of j the employees of the University nor any, such reservation has any reasonable nexus with the object which is sought to be achieved by the University. The State Government, in our opinion rightly insisted on the University to do away with the reservations in favour of the sons and wards of its employees".
20. Education is held to be a special manifestation of man and is a treasure which can be preserved without the fear or loss. Education secures material pleasure, happiness and fame which secures honour al the hands of the State, not money. A man without education is equal to animal. In the welfare State, it is the paramount duty of the executive to take such action which ensures the imparting of education to a section of the; society on the basis of equality. It is also important to formulate policies and schemes for imparting of professional trading and helping the citizens to settle in life and adjust normally in the environment of the society. The field of education cannot be left to the private persons without restraint or reside-tions. Private institutions can be permitted, to impart education under the guidelines prepared by the State. The Hon'ble Supreme Court in Unnikrishnan's case (AIR 1993 SC 2178) (supra) has taken care of all these aspects while providing guidelines and the policy. Every citizen has a right to call upon the State to provide educational facilities to him in accordance with the provisions of the law and the mandate of the Constitution, The respondents cannot have an absolute eight of establishing educational institution which has rightly been held to be not a trade or business within the meaning of Art. 19(1)(g) of the Constitution. The orders impugned in these petitions do not suffer from any illegality or unconstitutionality. The writ petitions are, therefore, liable to be dismissed.
21. It has, however, been submitted by the learned counsel appearing for the petitioner that even if the writ petitions are dismissed the students who were admitted on the basis of the Court orders and are undergoing their studies should not be directed to be ousted and may be allowed to continue with their studies. This submission has vehe-mentally been opposed by the learned Advocate General and has prayed for the cancellation of the interim admissions. However, keeping in view the judgment of the Supreme Court in Osiris Das case (1992 (3) SCC 543) (supra) we are not inclined to issue such a harsh direction depriving the such students from continuing with their studies. This Court in Parveen Hans's case (AIR 1990 NOC 107) (supra) had also taken such a view holding that cancellation of admission of such students would be unfair as it would be too late for them to seek admissions elsewhere. In these circumstances and the larger interest of justice the admissions already made were not interfered with and the Institution/University was directed to create additional seats to accommodate the petitioners in that writ petition. Permitting the students already admitted would, however, was not deemed to be precedent in future.
22. In view of what has beery stated here-inbbove, all the writ petitions are dismissed with costs. It is, however, observed that the students who were admitted on the basis of Court orders shall be permitted to continue with their studies, and their admission shall be regularised.
23. Petition dismissed.