Allahabad High Court
Dr. Bheem Rao Ambedkar Degree College vs State Of U.P. And Ors. on 25 February, 2005
Equivalent citations: 2005(3)ESC2162
Author: Devi Prasad Singh
Bench: Devi Prasad Singh
JUDGMENT Devi Prasad Singh, J.
1. In these bunch of writ petitions a common question of law and facts are involved, hence, I proceed to decide finally by present common judgment.
These bunch of writ petitions have been filed against the impugned Government order dated 9.9.2004, a copy of which has been filed as Annexure-1 to the writ petition by which the State Government has taken a decision that 85 per cent seats of the professional courses shall be filled up by "Single Window System" appointed by an agency authorised by State Government. Rest of 15 per cent seats have been left over to be filled up by the Committee of Management in accordance with the provision which has been duly approved by the University concerned to whom the said College has been affiliated. This system has been made applicable to the un-aided professional Colleges. So far as minorities institutions are concerned, the quota of management has been extended to 50 per cent subject to fulfilment of other conditions provided by the impugned order. The Government order has been made applicable for the session 2003-2004 and 2004-2005.
2. It is the admitted fact on record that all the petitioners Committee of Management who had approached this Court against the impugned order are the registered societies under Societies Registration Act (in short referred as Society Act). Since, they are affiliated to various Universities they are covered by the provision contained in U.P. State Universities Act, 1973 and Rules framed thereunder.
3. From the arguments advanced by parties' Counsel it appears that the petitioners who have filed these bunch of writ petitions were established in last few years and some of them had started their professional teaching from the session 2003-2004.
4. It is the common ground taken by all the petitioner Committee of Management that they do not receive any grant-in-aid from the State Government and they are running the professional course of B.Ed. as "self finance institutions". The allocation of only 15 per cent seats is violative of various apex Court judgments including the judgment of T.M.A. Pai Foundation and Ors. v. State of Karnataka and Ors., .
It has been submitted by petitioner's Counsel that all the Colleges in question have been recognised by NCTE which has been constituted in pursuance to Central Act. It is the NCTE which has got right to pass appropriate order to regulate the admissions. According to petitioner's Counsel, earlier the State Government has issued an order dated 11.11.1997 by which the State Government had provided that 50 per cent seats shall be reserved as normal seat i.e. to be admitted on merit, 35 per cent seats under the category of "self financing" may be termed as Management. Quota and 15 per cent seats under NRI quota. It was provided by the Government order that all the admissions shall be done by Joint Entrance Examination. The standard of education should have been supervised by State Higher Education Board. The Government Order dated 11.11.1997 has been filed as Annexure-4 to the Writ Petition No. 121 (M/S) of 2005. By subsequent impugned Government Order dated 2.11.2003, the earlier Government Order dated 11.11.1997 was rescinded. Thereafter, by another impugned Government Order dated 9.11.2004, 85 per cent seats were earmarked as open seat, admission by single window system through authorised agency from session 2003-04 and rest of the 15 per cent seats were provided to the Management for admission of students through a procedure adopted by transparent method with the approval of University to whom the said College is affiliated. So far as minority institutions are concerned 50 per cent seats were provided to be filled up by agency notified by the State Government and the remaining 50 per cent seats were earmarked to be filled up under Management Quota through a procedure adopted with the approval of University to whom the college is affiliated. Keeping in view the interim order passed by this Court at Allahabad the State Government had issued another Government order dated 4.1.2005 and provided that in the Colleges where candidates were already admitted in pursuance to interim order passed by this Court their admission shall not be disturbed and they shall be permitted to continue with their studies. The order dated 4.1.2005 seems to be passed on account of fact that this Court while considering similar controversy at Allahabad had dismissed the Writ Petition No. 36619 of 2004, Association of Professional Colleges and Ors. v. State of Uttar Pradesh and Anr. connected petitions on 21.12.2004.
These bunch of writ petitions contains three sets of cases firstly, those cases where the admissions were done for the professional courses and on account of lapse of sufficient time the examination is going to be held in respective Universities. The second set like some Colleges of Meerut University as well as Agra University, and in some other writ petitions, the controversy relates to colleges where admissions were done and candidates are pursuing their studies either in pursuance to order passed by this Court or on own motion of Committee of Management. Another set of writ petitions relates to those cases where no admission has been done till date but the list have been prepared of candidates for admission in pursuance to interim order passed by this Court for their admission.
5. While assailing the impugned Government Orders the submission of the learned Counsel for the petitioner is that the impugned order is highly arbitrary, unjust and improper hence violative of Article 14 of the Constitution of India. Secondly, the submission of the learned Counsel for the petitioner is that the impugned order has been passed in violation of Article 19G(6) as well as Article 144 of the Constitution of India. Petitioner's Counsel submits that not only 50 per cent but the petitioner Committee of Management have got right to admit candidates more than 50 per cent. It has been further submitted by petitioner's Counsel that in view of Supreme Court judgment it is for the Government to take a decision relating to the number of seats and not the Committee constituted by the State Government. The further submission of the learned Counsel for the petitioner is that only NCTE has got power to regulate the admission and not the Government or its Committee. According to petitioner's Counsel the judgment of Allahabad High Court in Writ Petition No. 36619 of 2004, Association of Professional Colleges and Ors. v. State of Uttar Pradesh and Anr. and other connected petitions decided on 21.12.2004 is per-incuriam to apex Court judgment and sub-silentio illegal.
Petitioner's Counsel submits that they have admitted candidates under 50 per cent quota after advertising the respective seats in the newspaper on the basis of merit list prepared from the academic record of the candidates. However, it has not been disputed by petitioner's Counsel that admission done or the list prepared for admission against 50 per cent seats is the result of a decision taken at their own level after inviting application from open market. There is neither involvement of State Government nor the respective University to whom they are affiliated. However, in some Colleges affiliated to Meerut and Agra University it has been submitted that admissions were done in pursuance to merit list prepared by the University.
6. The sole question raised for adjudication by the parties is that what should be the percentage of Management quota in filling the seats of B.Ed, courses. Whether without holding any entrance test or without adhering the rules and regulations of the respective Universities regulating admission to the professional courses the Committee of Management has got power to fill up the seats. Whether the impugned Government order is violative of judgment of apex Court which provides only 15 per cent quota for the Management and 85 per cent by Single Window System through authorised Government Agency. It has been also argued by the petitioner's Counsel that the Government has got no power to interfere with the admission matter in petitioner's institutions as all of them are unaided recognised institutions.
7. The Societies Registration Act, 1860 was promulgated with the statement and object to improve the legal condition of societies established for promotion of literature, science or the fine arts or for the diffusion of useful knowledge or for charitable purpose; the preamble of the Act is reproduced as under :
"Preamble Whereas it is expedient that provision should be. made for improving the legal condition of societies established for the promotion of literature, science, or the fine arts, or for the diffusion of useful knowledge, the diffusion of political education, or for charitable purposes, it is enacted as follows :
It has been settled by Calcutta High Court in a case Harinarayan Shaw and Anr. v. Bobardhan-das Shroff and Ors., , that the Act is not applicable only to societies of public and charitable nature but it is also applicable to private societies established for the purpose defined in the Act."
8. The preamble of the Act distinguishes a society registered under Societies Registration Act with a co-operative society constituted for commercial purposes. A society registered under Societies Registration Act shall (be) deemed to act for the furtherance of object provided under the Act and to facilitate the promotion of literature, science, fine arts and alike charitable purposes. Accordingly, the Committee of Management constituted under Societies Registration Act cannot equate their activities with others who have been indulged into commercial activities as the profit making bodies. The earning of the society must be used for the development of the institution and to fulfil its object and not to use the society as the source of livelihood for its members or office bearer.
9. Keeping in view the social responsibility of a society registered under the Society Act, Section 5 provides that all properties of a society shall be vested in its trustees or in the governing body of the society. Section 5-A provides restriction on the transfer of property. Section 6 provides that every society can be sued in the name of its president, Chairman or Principal Secretary or may file a suit by its respective office bearer. Section 12 imposes restriction and regulate the alteration or abrogation of its purpose. Sections 13, 13-A and 13-B relates to procedure for dissolution of a society. Sections 14, 14-A has got significance on account of the fact that under the said provision after dissolution of a society the properties of society cannot be given to its members. For convenience Sections 5, 5-A, 6, 14 and 14-A are reproduced as under :
"5. Property of Society how vested.--The property, movable and immovable, belonging to a society registered under this Act, if not vested in trustees, shall be deemed to be vested, for the time being, in the governing body of such society, and in all proceedings, civil and criminal, may be described as the property of the governing body of such society but their proper title.
5-A. Restriction on transfer of property.--(1) Notwithstanding anything contained in any law, contract or other instrument to the contrary, it shall not be lawful for the governing body of a society registered under this Act or any of its members to transfer, without the previous approval of the Court, any immovable property belonging to any such society.
6. Suits by and against societies.--Every society registered under this Act may sue or be sued in the name of the president, chairman, or principal secretary, or trustees, as shall be determined by the rules and regulations of the society and, in default of such determination, in the name of such person as shall be appointed by the governing body for the occasion :
Provided that it shall be competent for any person having a claim or demand against the society, to sue the president or chairman, or principal secretary, or the trustees thereof, if on application to the governing body some other officer or person be not nominated to be the defendant.
14. Upon a dissolution no member to receive profit.--If upon the dissolution of any society registered under this Act there shall remain, after the satisfaction of all its debts and liabilities, any property whatsoever, the same shall not be paid to or distributed among the members of the said society or any of them, but shall be given to some other society, to be determined by the votes of not less than three-fifths of the members present personally or by proxy at the time of dissolution, or in default thereof, by such Court as aforesaid.
Clause not to apply to joint-stock companies.-- Provided, however, that this clause shall not apply to any society which shall have been founded or established by the contributions of shareholders in the nature of a joint-stock company.
14-A. Disposal of property of a dissolved society.--Notwithstanding anything contained in Section 14, it shall be lawful for the members of any society dissolved under Section 13 to determine, by a majority of the votes of the members present personally or by proxy at the time of the dissolution of such society, that any property whatsoever remaining after the satisfaction of all the debts and liabilities shall be given to the Government to be utilised for any of the purposes referred to in Section 1."
10. A society is constituted for a particular purpose by joining of several persons for a common object. The aims, object of a society registered under the Society Act should always fall within the ambit provided by the Society Act itself.
The Black's Law Dictionary, 7th Edition defines "society" as under :
Society.-- 1. A community of people, as of a State, Nation, or locality, with common cultures, traditions and interests.
Civil Society.--The political body of a State or Nation ; the body politic.
2. An association or company of persons (usu) unincorporated) united by mutual consent, to deliberate, determine, and act jointly for a common purpose.
3. The general love, affection, and companionship that family members share with on another."
11. A plain reading of Society Act shows that the legislature has taken necessary care to keep a society registered under the State Act within its boundary so that it cannot loose its public utility purpose and may be able to serve the peoples in accordance to its aim and object. At no stretch of imagination it can be said that society may covert itself into a profit making body to serve its members. Each and every society created under the Act, in one or other form are being established for public benefit and any violation of provision contained in the Act or bye-laws of the society will endanger public interest. A Division Bench of this Court in a case of Ram Charan Agarwala and Ors. v. Shridhar Misra and Ors., , has considered this aspect of the matter that property and asset of a society cannot be utilised by its member and it shall not be dissolved with oblique motive. The Division Bench has given much emphasis to preserve the object and purpose of a society for which it was constituted. For convenience relevant portion from Ram Charan's case (supra) is reproduced as under :
"14. The same view was taken by their Lordships in the case of Drigraj Kuer v. A.K. Narain Singh, and Hari Vishnu Kamath v. Ahmad Ishaque (s), . Section 13 of the Act provides that the concurrence of three-fifth of its members is required for the dissolution of a society registered under the Act and if the Government happened to be a member of the society, its consent has also got to be obtained. Section 14 provides that in case of dissolution of the society its funds are not to be distributed between its members but are to be given to some other society to be determined by the votes of not less than three-fifth of the members present personally or by proxy at the time of the dissolution or, in default thereof, by a Court. These provisions indicate that once a society is formed it should continue and neither its dissolution nor the change of its purpose can be lightly made. Section 17 of the Act. provides that even in case of societies which were established before the Act came into force assent of three-fifth of its members has got to be given for purpose of its being registered under the Act. This would show that there is an insistence on the part of the legislature on a majority of three-fifth in respect of all fundamental changes with regard to a society. These provisions, it appears to us, have been framed for public benefit and it is obvious that their contravention is likely to endanger public interest.
For these reasons we are of the opinion that the provisions of Section 12 of the Act are mandatory and not. merely directory."
16...The following societies may be registered under this Act:
Charitable societies, the military orphan fund as or societies established at the several presidencies of India, societies established for the promotion of science, literature, or the fine arts, for instruction, the diffusion of useful knowledge, the diffusion of political education, the foundation or maintenance of libraries or reading-rooms for general use among the members or open to the public, or public museums and galleries of paintings and other works of art, collections of natural history, mechanical and philosophical inventions, instruments, or designs."
This section would also show that the word "purpose" used therein has been used in a wide or comprehensive sense, that is in the sense of the main object or the central aim of the society as distinguished from its detailed activities which will naturally be directed towards the attainment of that object. If a society is founded for purposes of promotion of literature, it may, in its rules, provide for variety of activities, as for example, for giving scholarships to deserving students, having a press and a publicity department, having an organisational wing, or for holding essay competitions, or awarding prizes for best books, or for holding annual sessions and conferences or for popularising Hindi language in foreign countries and so on and so forth. These are all the activities or the Programme of the society and should not be confused with its purpose. Purpose means the fundamental principles upon which the association was formed and the trust created (see Milligan v. Mitchell, (1837) 40 ER 852).
In the Oxford Shorter dictionary the word purpose has been given the following meaning : .
"The object which one has in view; intention, resolution, determination; the object for which anything is done or made, or for which it exists; end, aim."
In Ramanatha Iyer's Law Lexicon it. has been stated :
"The word purpose means that which a person sets before himself as an object to be reached or accomplished; the aim or end to which the view is directed in any plan, manner or execution; end or the view itself, design, intention."
12. If, certain property is vesting into a member or its trustee before registration under the Act, ft shall become the property of a society after its registration. Meaning thereby in case a society is formed by contributing certain funds or property by its members on their personal end, it shall become the property of a society immediately after its registration. A Division Bench of Calcutta High Court while considering such controversy in a case in Harinarayan Shaw and Anr. v. Bobardhandas Shroff and Ors., , held as under :
"It must, therefore, be held that the disputed property which was vested in the trustees before registration of the society, become, as from after the registration of the Society, a property "belonging to the society" and be deemed to be the property of the society. As a matter of fact, and strictly speaking, there is no transfer of ownership. That which belonged to an unregistered society continues after the change in status of that society on being registered, as being belonging to the registered society. The first point raised on behalf of the appellants must, therefore, be overruled."
U.P. State Universities Act :
13. The U.P. State Universities Act was enacted by the State Assembly with a view to toning up the academic and financial administration of higher education in the State of U.P. the prefatory note appended with the Act. The relevant portion is reproduced as under :
"Prefatory Note--Reasons for the Enactment.--With a view to toning up the academic and financial administration of higher education in State of U.P. a comprehensive Bill applicable to all the State Universities (except the Roorkee University and Govind Ballabh Pant Agricultural University), was prepared in the light of the recommendations made by various commissions and Committees appointed by the Government of India and the State Government and also the views of the Vice-Chancellors and other educationists.
2. The bill, inter alia, provides for the reorganisation of the Court, the executive council, the Academic Council, the Finance Committee and the Selection Committees for the appointment of teachers in the Universities with a view to making them more effective and compact bodies. It also provides for the constitution of Examination and Admission Committees. The Bill also provides for the appointment of Pro-Vice-Chancellors in certain Universities and a whole-time Finance Officer in place of Honorary Treasurer in all Universities."
14. Petitioners Colleges have been affiliated with various Universities. Accordingly, they falls within the supervisory control of various Universities so far as maintenance of standard of education is concerned which includes the admission of students in the College.
15. Under Section 13 of the Uttar Pradesh State Universities Act, 1973 (in short referred as an Act), the Vice-Chancellor of University has got general power to supervise and control over the affairs of the University including the constituent colleges and the institutes maintained by the University and its affiliated and associated Colleges. For convenience, Sub-sections (1), (2) and (9) of Section 13 of the Uttar Pradesh State Universities Act, 1973 is reproduced as under :
"13. Powers and duties of the Vice-Chancellor.--(1) The Vice-Chancellor shall be the principal executive and academic officer of the University and shall--
(a) exercise general supervision and control over the affairs of the University including the constituent Colleges and the Institutes maintained by the University and its affiliated and associated colleges ;
(b) given effect to the decisions of the authorities of the University;
(c) in the absence of the Chancellor, preside at meetings of the Court and at any convocation of the University ;
(d) be responsible for the maintenance of discipline in the University;
(e) be responsible for holding and conducting the University examinations properly and at due times and for ensuring that the results of such examinations are published expeditiously and that the academic session of the University starts and ends on proper dates.
(2) He shall be an ex officio member and Chairman of the Executive Council, Academic Council, and the Finance Committee.
(9) The Vice-Chancellor shall exercise such other powers as may be laid down by the Statutes and the Ordinances."
16. Under Section 21 of the Act, Executive Council of the University has got power to regulate and determine all other matters concerning the University as well as Institutes, constituent, affiliated and associated Colleges in accordance with this Act, the Statutes and the Ordinance. For convenience, Section 21 of the Uttar Pradesh State Universities Act, 1973 is reproduced as under :
"(xvii) to regulate and determine all other matters concerning the University as well as institutes, constituent, affiliated and associated Colleges in accordance with this Act ; the Statutes and the Ordinance."
17. Under Section 37 of the Act, it has been provided that the Executive Council of the University shall cause every affiliated College to be inspected from time to time at intervals not exceeding five years. Various provisions contained in the U.P. State Universities Act reflects that all the affiliated or constituent Colleges shall function under the supervisory control of the University and in accordance to the orders passed by the State Government.
18. Section 45 of the Universities Act provides that the minimum qualification on the basis of which student can be admitted for higher education. It also empowers the University to provide further qualification, curriculum through its Ordinance. For convenience, Section 45 of the Universities Act is reproduced as under :
"45. Admission of Students.--(1) No student shall be eligible for admission to the course of study for a degree unless--
(a) he has passed--
(i) the Intermediate Examination of the Board of High School and Intermediate Education, Uttar Pradesh, or of any University or Board incorporated by any law for the time being in force; or
(ii) any examination, or any degree conferred by any other University being an examination or degree recognised by the University equivalent to the Intermediate Examination or to a degree of the University ; and
(b) he possesses such qualifications, if any, as may be specified in the Ordinances :
Provided that the University may prescribe by Ordinances any lower qualifications for admission to a degree.
(2) The conditions under which students may be admitted to the diploma courses of the University shall be prescribed by the Ordinances.
(3) The University shall have the power to recognise (for the purposes of admission to a course of study for a degree), as equivalent to its own degree, any degree conferred by any other University or, as equivalent to the Intermediate Examination of any Indian University, any examination conducted by any other authority.
(4) Any student whose work or conduct is unsatisfactory may be removed from the University or an Institute or a constituent College or an affiliated or associated College in accordance with the provisions of the Ordinances."
19. Section 28 of the U.P. State Universities Act, 1973 governs the procedure for admission to various courses. Under Sub-section (3) of Section 28, the Academic Council can lay down the procedures for admission of students in the University as well as institute or a constituent college as well as affiliated or associated Colleges.
20. Sub-section (5) of Section 28 deals with the procedure for admission to the medical and engineering Colleges. Clause (a) of Sub-section (5) of Section 28 deals with the provision for regulation of admissions. For convenience, Section 28 of the U.P. State Universities Act, 1973 is reproduced as under :
"28. Admission Committee.--
(1) There shall be an Admission Committee of the University, the constitution of which shall be such as may be provided for in the Ordinances, (2) The Admission Committee shall have the power to appoint such number of sub-Committee as it thinks fit.
(3) Subject to the superintendence of the Academic Council and to the provisions of sub section (5), the Admission Committee shall lay down the principles or norms governing the policy of admission to various courses of studies in the University and may also nominate a person or a sub-Committee as the admitting authority in respect of any course of study in an Institute or a constituent College maintained by the University.
(4) Subject to the provisions of Sub-section (5), the Committee may issue any direction as respects criteria or methods of admissions (including the number of students to be admitted) to constituent Colleges maintained by the State Government and affiliated or associated Colleges, and such directions shall be binding on such colleges.
(5) Notwithstanding anything contained in any other provision of this Act--
(a) reservation of seats of admission in any course of study in University, Institute, constituent College, affiliated College or associated College for the students belonging to the Scheduled Castes, Scheduled Tribes and Other Backward Classes of citizens may be made and regulated by such orders as the State Government may, by notification, make in that behalf:
Provided that reservation under this clause shall not exceed fifty per cent of the total number of seats in any course of study :
Provided further that reservation under this clause shall not apply in the case of an institution established and administered by minorities referred in Clause (1) of Article 30 of the Constitution :
Provided also that the reservation under this clause shall not apply the category of Other Backward Classes of citizen specified in Schedule II to the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994--
(b) admission to the medical and engineering colleges and to course of instruction for degrees in education and Ayurvedic or Unani systems of medicine (including the number of students to be admitted) shall subject to Clause (a), be regulated by such orders) which if necessary may be with retrospective effect, but not effective prior to January 1, 1979) as the State Government may, by notification, make in that behalf :
Provided that no order regulating admission under this clause shall be inconsistent with the rights of minorities in the matter of establishing and administering educational institutions of their choice;
(c) in making an order under Clause (a), the State Government may direct that any person who willfully acted in a manner intended to contravene, or defeat the purposes of the order shall be punishable with imprisonment for a term not exceeding three months or with the fine not exceeding one thousand rupees, or with both, as may be specified in the order.
(5-A) Every order made under Clause (a) of Sub-section (5) shall be laid, as soon as may be, before both. Houses of the State Legislature and the provisions of Sub-section (1) of Section 23-A of the Uttar Pradesh General Clauses Act, 1904 shall apply as they apply in respect of rules made by the State Government under any Uttar Pradesh Act.
(6) No student admitted to any College in contravention of the provisions of this section shall be permitted to take up any examination conducted by the University and the Vice-Chancellor shall have the power to cancel any admission made in such contravention."
21. Under Section 49 of the Act various items have been given for which statute can be made. Under Section 50 the procedure for making of statute has been provided. It provides that the first statute shall be made by the State Government by notification in official Gazette. Sections 51 and 52 of the Act provides for issuance of ordinance to regulate the various matters enumerated therein which includes admission of students. Section 53 provides the creation of regulations.
For convenience Section 50 is reproduced as under :
"Statutes how made--The first statutes of the University shall be made; by the State Government by notification in the Gazette and in the case of any existing University, for so long as the First Statutes are not so made, the statutes as in force immediately before the commencement of this Act, insofar as they are not inconsistent with the provision of this Act, shall, subject to such adaptations and modifications whether by way of repeal, amendment or addition as may be necessary or expedient, as the State Government may, by modification shall not be called in question.
(1-A) The State Government may, by notification in the Gazette amend whether by way of addition, substitution or omission, the First Statutes at any time [up to December 31, 1990] and any such amendment may be retrospective to a date not earlier than the date of such commencement.
(1-B) Until the First Statutes of the Purvanchal University are made under this section, the statutes of the University of Gorakhpur, as in force immediately before the establishment of the said University shall apply to it subject to such adaptations and modifications as the State Government may, by notification provide.
(2) The Executive Council may, at any time [after December 31, 1990] make new or additional statutes or may amend or repeal the statutes referred to in Subsection (1) or Sub-section (1 A).
(3) The Executive Council shall not propose the draft to any statute affecting the status, power or constitution of any authority of the University until such authority has been given an opportunity of expressing its opinion upon the proposal and any opinion so expressed shall be in writing and shall be submitted to the Chancellor.
(4) Every new Statute or addition to a Statute or any amendment or repeal of Statute shall be submitted to the Chancellor who may assent to it or withhold his assent therefrom or remit it to the Executive Council for further consideration.
(5) A statute passed by the Executive Council shall have effect from the date it is assented to by the Chancellor or from such later date as may be specified by him.
(6) Notwithstanding anything contained in the foregoing sub-section the State Government, may in order to implement any decision taken by it in the interest of learning, teaching or research or for the benefit of teachers, student or other staff or on the basis of any suggestion or recommendation of the University Grants Commission or the State or National Education Policy with regard to the qualifications of the teachers, require the Executive Council to make new or additional statutes or amend or repeal the statutes referred to in Sub-section (1) or Sub-section (1-A) within a specified time and if the Executive Council fails to comply with such requirement the State Government may, with the assent of the Chancellor. Make new or additional statutes or amend or repeal the statutes referred to in Sub-section (1) or Sub-section (1-A).
(7) The Executive Council shall have no power to amend or repeal the statutes made by the State Government under subsection (6) or to make new or additional statute inconsistent with such statutes."
22. The degree Colleges are regulated in pursuance to provision contained in Chapter 11 of the Act.
A perusal of Chapter 11 shows that Government possess effective power to control or to check the malpractices if any Committee of Management does not discharge its duty properly and for the purpose regulations can be framed. State Government has got right to issue notices under Section 57 of the Act to the Committee of Management or appoint authorised controller under Section 58. However, Section 58 does not applied to minority Colleges.
Section 57 is reproduced as under :
"57. Power of the State Government to issue notice.--If the State Government receives information in respect of any affiliated or associated college (other than a College maintained exclusively by the State Government or a local authority),
(i) that its Management has persistently committed wilful default in paying the salary of the teachers or other employees of the college by the twentieth day of the month next following the month in respect of which or any part of which it is payable ; or
(ii) that its Management had failed to appoint teaching staff possessing such qualifications as are necessary for the purpose of ensuring the maintenance of academic standards in relation to the College or has appointed or retained in service any teacher in contravention of the Statute or Ordinances [or has failed to comply with the orders of the Director of Education (Higher Education) made on the basis of the recommendation of the Uttar Pradesh Higher Education Services Commission under the Uttar Pradesh Higher Education Services Commissions Act, 1980]; or
(iii) that any dispute with respect to the right claimed by different persons to be lawful office-bearers of its Management has affected the smooth and orderly administration of the College; or
(iv) that its Management has persistently failed to provide the College with such adequate and proper accommodation, library, furniture, stationery, laboratory, equipment, and other facilities, as are necessary for efficient administration of the College; or
(v) that its Management has substantially diverted, misapplied or misappropriate the property of the college to the determent of the College;
It may call upon the Management to show cause why an order under Section 58 should not be made :
Provided that where it is in dispute as to who are the office-bearers of the Management, such notice shall be issued to all persons claiming to be so."
23. Under Chapter 11-A of the U.P. State Universities Act various measures have been provided for payment of salary to aided Colleges coupled with power of inspection by the Deputy Director. A complete reading of the U.P. State Universities Act shows that for various purpose provided by the Act the Government/Universities have got power to regulate the functioning of affiliated, associated and other Colleges.
24. Shri Manik Sinha, learned Counsel for the respondents University had invited attention toward "Rules for admissions to courses of instruction for degrees in Education in Affiliated or Associated Colleges of State Universities, 1983" (in short hereinafter referred as the Rule) and proceeded to submit that the Universities have got power to regulate the admission in associated or affiliated colleges including earmarking the maximum number for admission in B.Ed, classes.
For convenience Rules 3, 4, 6, 7 10 and 11 of the Rule are reproduced as under :
"3. Qualifications for admission.--The minimum educational qualification requisite for the admission of a candidate to B.Ed, classes shall be the graduate degree with at least two school-teaching subjects, of a University established by law.
4. Maximum number approved for admissions to B.Ed, classes.--(1) The maximum number of students to be admitted in every college shall be such as may be prescribed by the Vice-Chancellor of the University and no person shall be admitted in excess of such number in any case. In prescribing the maximum number of students to be admitted the Vice-Chancellor shall take into account the teachers available in the College concerned for B.Ed. instructions, so as to maintain the teacher-pupil ratio 1 :15.
(2) In a College having Science classes also the number of seats for candidates holding a B.Sc. Degree shall be prescribed by the Vice-Chancellor. In prescribing such number of seats, the Vice-Chancellor shall take into account the number of Science teachers available in the B.Ed. Department of the College so as to maintain in respect of such candidates the teacher-pupil ratio at 1 : 15.
6. Application for admission.--
(1) Every candidate for admission to B.Ed, classes shall apply in the manner hereinafter provided in the prescribed form to be obtained from the office of the Registrar of the University concerned on payment of Rs. 3 for each form. The last date for applying for admission shall ordinarily be the 31st day of May or such date in the month of June as the University may prescribe.
(2) The candidate shall send by registered post one copy of the application to the Registrar of the University.
(3) Another copy of such application containing the number and date of the postal registration receipt shall be sent to the College by registered post.
(4) No such application received in the office of Registrar or the College after such date as may be prescribed by the University in this behalf shall be entertained.
7. Basis of selection. -- In respect of every candidate for admission to a course of instructions in B.Ed, classes a statement of marks allotted to him shall be prepared in the manner hereinafter provided and the candidates shall subject to the other provisions of these rules be admitted to such course of instruction strictly on the basis of such marks in order of merit.
10. Selection Committee.--(1) For selection of candidates for admission to the B.Ed. Classes there shall be a Selection Committee consisting of the following three members for every College, namely--
(i) A nominee of the Vice-Chancellor of the University (who shall also be convenor of the Committee).
(ii) A nominee of the Director of Education (Higher Education).
(iii) Principal of the College or in his absence the senior most teacher of the BEd Department of the College.
(2) The Selection Committee shall hold its sitting at the headquarters of the University or with prior approval of the Vice-Chancellor, in the College.
(3) All the applications for admission received in the College as well as the lists of candidates forwarded to the University under Rule 9 shall after comparison with the application received in such University and due verification be placed before the Selection Committee.
(4) The Selection Committee shall on a consideration of the applications and lists referred to in Sub-rule (3) prepare in order of merit list of candidates fit for admission.
(5) The list prepared under Sub-rule (4) shall contain the names of candidates selected for admission to the reserved and the unreserved seats available in the College as well as the marks allotted to each such candidate under these Rules.
(6) The Selection Committee shall also prepare a waiting list of such candidates as may be admitted in a college in accordance with these Rules in the event of the failure of a candidate included in the list under Sub-rule (5) to join the college.
(7) The Selection Committee shall prepare the lists under Sub-rule (5) or Sub-rule (6) ordinarily by the end of June and shall forthwith furnish one copy thereof to the University and another copy thereof to the College.
(8) In the event of any one member of Selection Committee being absent, the proceedings of selection shall not be rendered illegal.
11. Admission of selected candidates.--(1) The Principal of the College shall send intimation by registered post at the earliest to every candidate whose name is included in the list prepared under Sub-rule (5) of Rule 10 and that candidate shall within fifteen days of the date of registration of intimation in the post office, take admission in that college and on his failure to do so he shall forfeit his claim to admission.
(2) Where any seat falls vacant under Sub-rule (1) it may be filled by the admission of a candidate out of the candidates in serial order included in the list prepared under Sub-rule (6) of Rule 10."
Accordingly, the submission of respondent's Counsel is that the University to whom these Colleges are affiliated have got ample power to regulate the admission of students for the courses in question.
25. Under above facts and circumstances of the case it is evident that in view of provision contained in U.P. State Universities Act, the Universities as well as the State Government in the manner provided in the Act possess supervisory control over the Colleges affiliated to various Universities to maintain the standard of education. The executive council of the Universities may provide guidelines for admission, entrance test and other measures with intention to maintain the standard of education.
26. In our country higher education is being imparted either by the Universities or by degree Colleges, autonomous or associate or affiliated to the Universities. However, right of conferring or granting of a degree has been retained with the Universities in pursuance to provision contained in University Grant Commission Act, 1956, i.e. it is necessary that every institutions of Colleges must be affiliated with a University constituted under the Act. Hon'ble Supreme Court had considered this aspect of the matter in the case of Azeez Basha and Anr. v. Union of India, etc., , and held as under :
"Para 21 .--The position with respect to the establishment of Universities before the re-constitution came into force in 1950 was this. There was no law in India which prohibited any private individual or body from establishing a University and it was, therefore, open to a private individual or body to establish a University. There is a good deal in common between, educational institution which are not Universities and those which are Universities. Both teach students and both have teachers for the purpose. But what distinguished a University from any other educational institution is that a University grants degrees of its own while other educational institutions cannot. It is this granting of degrees by a University which distinguished it from the ordinary run of educational institutions. [See St. David's College, Lampeter v. Ministry of Education, 1951-1 All ER 559]. Thus in law in India there was no prohibition against establishment of University by private individuals or bodies and if any University was so established it must of necessity be granting degrees before it could be called a University. But. though such a University might be granting degree it did not follows that the Government of the Country was bound to recognise those degrees. As a matter of fact as the law stood upto the time the Constitution came into force, the Government was not bound to recognise degrees of Universities established by private individuals or bodies and generally speaking the Government only recognised degrees of Universities established by it by law. No private individual or body could before ] 950 insist that the degrees of any University established by him or it must be recognised by Government. Such recognition depended upon the will of Government generally expressed through statute. The importance of the recognition of Government in matters of this kind cannot be minimised. This position continued even after the Constitution came into force. It was only in 1956 that by Sub-section (1) of Section 22 of the University Grants Commission Act (No. 3 of 1956). It was laid down that--
"the right of conferring or granting degrees shall be exercised only by a University established or incorporated by or under a Central Act, a provincial Act or a State Act or an institution deemed to be a University under Section 3 or an institution specially empowered by an Act of Parliament to confer or grant-degrees."
Sub-section (2) thereof further provided that--
"save as provided in Subsection (1), no person or authority shall confer, or grant, or hold himself or itself as entitled to confer or grant, any degree."
Section 23 further prohibited the use of the word "University" by an educational institution unless it is established by law. It was only thereafter that, no private individual or body could grant a degree in India...."
National Council For Teachers Education Act, 1993
27. Now coming to third Act relevant for the purpose of present controversy relates to National Council for Teachers Education Act, 1993 by which National Council for Teachers Education has been constituted (in short hereinafter referred as NCTE Act). The statement of object and reasons of the NCTE Act promulgated by Parliament, shows that it was enacted to maintain the standards of teachers education uniformly on national level. It cover the various fields with the object of determination, maintenance and co-ordination of standards in teachers education.
For convenience the statement of objects., and reasons of the Act is reproduced as under :
Statement Of Objects And Reasons The National Council for Teachers Education (NCTE) was set up in 1973 by a Government resolution as a National expert body to advise Central and State Governments on all matters pertaining to teacher's education. NCTE's status and role have so far been purely advisory and mainly due to this reason, it has had very little impact on the standards of teacher training institutions in the country and on their unplanned growth.
2. To maintain the standards of teacher education, the National Policy on Education (NPE) stated that the NCTE would be provided with necessary resources and capability to accredit institutions of teacher education and provide guidance regarding curricula and methods. The Programme of Action prepared for implementation of the NPE in 1986, realising the inherent difficulties in the constitution of the NCTE to be able to guide the system of teacher education, envisaged conferring it with statutory status.
3. The present bill seeks to provide statutory powers to the NCTE with the objective of determination, maintenance and co-ordination of standards in teacher education, laying down norms and guidelines for various courses, promotion of innovation in this field and establishment of a suitable system of continuing education of teachers.
4. The bill seeks to empower the council to make qualitative improvement in the system of teacher education by phasing out sub-standard institutions and courses for teacher education. The NCTE would also be empowered to grant recognition to institutions for teacher education and permission to recognised institutions for new course or training in teacher education. The bill also provides for delegation of various powers to Regional Committees and other Committee for effective implementation of the function of the Council....
5. The notes on clauses appended to the Bill explain the various provisions of the Bill.
6. The Bill seeks to achieve the above objects."
28. Section 3 of the NCTE Act, provides for the establishment of NCTE for the purpose of implementation, of provisions of the Act. Section 12 provides the sphere of the functioning of the NCTE.
For convenience Section 12 of the NCTE Act is reproduced as under :
"Functions of the council.--It shall be the duty of the council to take all such steps as it may think fit for ensuring planned and coordinated development of teacher education and for the determination and maintenance of standards for teacher education and for the purpose of performing its functions under this Act, the council may--
(a) undertake surveys and studies relating to various aspects of teacher education and publish the result thereof ;
(b) make recommendations to the Central and State Governments, Universities, University Grants Commission and recognised institutions in the matter of preparation of suitable plans and programmes in the field of teacher education;
(c) co-ordinate and monitor teacher education and its development in the country;
(d) lay down guidelines in respect of minimum qualifications for a person to be employed as a teacher in schools or in recognised institutions ;
(e) lay down norms for any specified category of courses or training in teacher education, including the minimum eligibility criteria for admission thereof and the method of selection of candidates, duration of the course, course contents and mode of curriculum ;
(f) lay down guidelines for compliance by recognised institutions, for starting new courses, training and for providing physical and instructional facilities, staffing pattern and staff qualifications;
(g) lay down standards in respect of examinations leading to teacher education qualifications, criteria for admission to such examinations and schemes of course of training ;
(h) lay down guidelines regarding tuition fees and other fees chargeable by recognised institutions;
(i) promote and conduct innovation and research in various areas of teacher education and disseminate the results thereof ;
(j) examine and review periodically the implementation of the norms, guidelines and standards laid down by the council and to suitably advise the recognised institutions ;
(k) evolve suitable performance appraisal system, norms and mechanisms for enforcing accountability on recognised institutions;
(l) formulate schemes for various levels of teachers education and identify recognised institutions and set up new institutions for teacher development programmes ;
(m) take all necessary steps to prevent commercialisation of teacher education ; and
(n) perform such other functions as may be entrusted to it by the Central Government."
29. Under Section 13, the NCTE has got right to inspect any institution to check its infrastructure for toning up its functioning within the purview of NCTE Act. Under Section 14, it is mandatory for the Colleges to get a recognition from the Regional Council of NCTE. Section 18 places embargo on the functioning of Universities not to grant affiliation to degree Colleges unless they are duly recognised by the NCTE. In case a College is established and functioning in contravention of the provision of the Act, and it is being de-recognised by NCTE than the respective University to whom it is affiliated shall de-affiliate the said College and any degree or certificate granted by such institution shall be a waste paper. Under Section 20 Regional Committees are to be constituted which shall be authorised to recognise an institution imparting teachers education. Under Section 29 the Central Government has got power to issue appropriate direction as a measure of policy which shall be binding on the NCTE. Under Section 30 the Government of India has got power to supersede NCTE Rules can be framed by Government of India in pursuance to power conferred by Section 31 of the NCTE Act. Power of framing regulation vest in NCTE, in view of provision contained in Section 32 of the NCTE Act.
For convenience Section 14, Section 16 and Section 17 relevant for the present controversy are reproduced as under :
"14. Recognition of institutions offering course or training in teacher education.--(1) Every institution offering or intending to offer a course or training in teacher education on or after the appointed day may, for grant of recognition under this Act, make an application to the regional Committee concerned in such form and in such manner as may be determined by regulations :
Provided that an institution offering a course or training in teacher education immediately before the appointed day, shall be entitled to continue such course or training for a period of six months, if it has made an application for recognition within the said period and until the disposal of the application by the Regional Committee.
(2) The fee to be paid along with the application under subsection (1) shall be such as may be prescribed.
(3) On receipt of an application by the Regional Committee from any institution under Sub-section (1) and after obtaining from the institution concerned such other particulars as it may consider necessary, it. shall--
(a) if it is satisfied that such institution has adequate financial resources, accommodation, library, qualified staff, laboratory and that it fulfils such other conditions required for proper functioning of the institution for a course or training in teacher education, as may be determined by regulation, pass an order granting recognition to such institution, subject to such conditions as may be determined by regulations; or
(b) if it is of the opinion that such recognition to such institution for reasons to be recorded in writing.
Section 14.--(1) Sections 14 and 16 make it clear that the institution offering or intending to offer a course of training in teacher education (i.e. B.Ed. Course) cannot be granted sanction/ affiliation to University, unless it secures recognition in terms of Section 14 of the Act. (AIR 1997 Kant 44 (47)1 Provided that before passing an order under Sub-clause (b), the Regional Committee shall provide a reasonable opportunity to the concerned institution for making a written representation.
(4) Every order granting or refusing recognition to an institution for a course or training in teacher education under Subsection (3) shall be published in the official Gazette and communicated in writing for appropriate action to such institution and to the concerned examining body, the local authority or the State Government and the Central Government.
(5) Every institution, in respect of which recognition has been refused shall discontinue the course or training in teacher education from the end of the academic session next following the date of receipt of the order refusing recognition passed under Clause (b) of Sub-section (3).
(6) Every examining body shall on receipt of the order under Subsection (4) --
(a) grant affiliation to the institution, where recognition has been granted ; or
(b) cancel the affiliation of the institution, where recognition has been refused."
Section 16--Affiliating body to grant affiliation after recognition or permission by the council.--(1] Notwithstanding anything contained in any other law for the time being in force no examining body shall on or after the appointed day--
Section 16.--(1) Teachers Training Institute--Sanction affiliation to University--Prior recognition under Section 14 is condition precedent. AIR 1997 Kant 44 (47).
(2) Provision of Section 5 of Karnataka Prohibition of Admission of students to the Unrecognised and Unaffiliated Educational Institution Act, 1993 being repayment to provision of Act has to be held as void and cannot be resorted to by the State Government for permitting the students of recognised or unrecognised institutions to sit at the examinations conducted by the examining bodies except on fulfilment of requirements under Sections 14 and 16 of Central Act of 1993, AIR 1997 Kant 44 (48).
(a) grant affiliation whether provisional or otherwise to any institution, or (b) hold examination whether provisional or otherwise for a course or training conducted by a recognised institution.
Unless the institution concerned has obtained recognition from the Regional Committee concerned under Section 14 or permission for a course or training under Section 15.
Section 17--Contravention of provisions of the Act and consequences thereof.--(1) Where the Regional Committee is, on its own motion or on any representation received from any person satisfied that a recognised institution has contravened any of the provisions of this Act or the rules, regulations and orders made or issued thereunder or any condition subject to which recognition under Sub-section (3) of Section 14 or permission under Sub-section (3) of Section 15 was granted, it may withdraw recognition of such institution for reasons to be record in writing :
Provided that no such order against the recognised institution shall be passed unless a reasonable opportunity of making representation against the proposed order has been given to such recognised institution :
Provided further that the order withdrawing or refusing recognition passed by the Regional Committee shall come into force only with effect from the end of the academic session next following the date of communication of such order.
(2) A copy of every order passed by the Regional Committee under Sub-section (1)--
(a) shall be communicated to the recognised institution concerned and a copy thereof shall also be forwarded simultaneously to the University or the examining body to which such institution was affiliated for cancelling affiliation, and
(b) shall be published in the official Gazette for general information.
(3) Once the recognition of a recognised institution is withdrawn under Sub-section (1) such institution shall discontinue the course or training in teacher education and the concerned University or the examining body shall cancel affiliation of the. institution in accordance with the order passed under Sub-section (1) with effect from the end of the academic session next following the date of communication of the said order.
(4) If an institution offers any course or training in teacher education after the coming into force of the order withdrawing recognition under Sub-section (1) or where an institution offering a course or training in teacher education immediately before the appointed clay fails or neglects to obtain recognition or permission under this Act. The qualification of teacher education obtained pursuant to such course or training or after undertaking a course or training in such institution, shall not be treated as a valid qualification or purposes of employment under the Central Government and State Government or University, or in any School, College or other educational body aided by the Central Government or any State Government."
30. From the discussion made hereinabove it is evident that a society registered under the Societies Registration Act constituted to establish a college has to confined its activity in such a manner so that it may fulfil the object of the society. The letter and spirit of provisions contained in Societies Registration Act referred hereinabove as well as the case laws discussed reveals that the societies constituted under the Societies, Registration Act cannot works in such a manner which may result into financial gain to its member. The assets and income or earning of a society through its Committee of Management must be invested only for the purpose for which a society has been established or constituted. Any decision or action of a society which may result into extension of any personal benefit or to fulfil the vested interest of its member or its associates shall be an act done in violation of provisions contained in Societies Registration Act. Such action may be dealt with by the competent authority provided under Societies Registration Act in accordance with law. The various powers have been conferred on the Registrar of the Societies to check the unwarranted practice of the Committee of Management constituted under the Societies Registration Act which can be invoked in case the office bearers or the members of the Committee of Management works for extraneous purpose or considerations with intention to get undue advantage, for their own vested interest. The provisions contained in U.P. State Universities Act referred hereinabove read with Rules for Admissions to courses of instruction for Degrees in Education in Affiliated or Associated Colleges of State Universities, 1983 also empowers the respective Universities and the State Government to interfere with the Committee of Management and its functionaries including the admission process. Under Sub-section (5) of Section 28 of the U.P. State Universities Act the Government has got power to regulate the admission of student to institutions imparting course of instructions for degree in education. The regulatory power vesting in the Government includes to lay down the procedure for admission to these courses subject to judgment of Hon'ble Supreme Court and the provisions contained in NCTE Act. The State Government may regulate the admission to these professional institutions imparting degree in education subject to rider placed by the NCTE. The judgment, which shall be discussed in preceding paras rendered by Hon'ble Supreme Court have got binding effect in view of Articles 141 and 142 of the Constitution of India. Even if, judgment of apex Court goes contrary to the provisions contained in NCTE Act or the other case referred in the preceding paras, the authorities have to follow the judgment of apex Court in letter and spirit unless the same is modified by Hon'ble Supreme Court itself or by an Act of Parliament, legislating a contrary provision.
31. Learned Counsel for the parties had placed reliance of cases of TMA Pai Foundation v. State of Karnataka, ; Mamie Academy of Education v. State of Karnataka, ; Maa Sharda Mahavidyalaya v. State of U.P., 2004 (1) UPLBEC 784; PA Inamdar v. State of Maharasthra, ; Pushpagiri Medical Society v. State of Kerala, ; Modern Dental College and Research Institute v. State of M.P., 2005 (1) UPLBEC 251 ; Association of Professional Colleges v. State of U.P., C.M. Writ Petition No. 36619 of 2004; Mittal Engg. Works v. CCE, ; State of U.P. v. Synthetics and Chemicals Ltd., ; Bhikaji Narain Dhakras v. State of M.P. ; Modern School v. Union of India and Ors., ; Harbanslal Sahnia and Anr. v. Indian Oil Corporation Ltd. and Ors., ; and U.P.B.Ed. Prashikshan Sangh, Azamgarh v. High Court of Judicature at Allahabad, 2004 All. LJ 3765.
32. In T.M.A, Pai's case (supra) Hon'ble Supreme Court while discussing the jurisdiction of State Government as well as the power of private unaided non-minority institutions as under :
"Q. 10. Whether the non-minorities have the right to establish and administer educational institution under Articles 21 and 29(1) read with Articles 14 and 15(1), in the same manner and to the same extent as minority institutions ?
And Q. 11. What is the meaning of the expressions 'education' and 'educational institutions' in various provisions of the Constitution ? Is the right to establish and administer educational institutions guaranteed under the Constitution?
A. The expression 'education' in the Articles of the Constitution means and includes education at all levels from the primary school level up to the postgraduate level. It includes professional education. The expression 'educational institutions' means institutions that impart education, where 'education' is as understood hereinabove.
The right to establish and administer educational institutions is guaranteed under the Constitution to all citizens under Articles 19(1)(g) and 26, and to minorities specifically under Article 30.
All citizens have a right to establish and administer educational institutions under Articles 19(1)(g) and 26, but this right is subject to the provisions of Article 19(6) and 26(a). However, minority group, in the manner as discussed in this judgment."
Para 68. It would be unfair to apply the same rules and regulations 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 administration 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 institutions 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. For instance, a certain percentage of the seats can be reserved for admission by the Management out of those students who have passed the common entrance test held by itself or by the State/University and have applied to the College concerned for admission, while the rest of the seats may be filled up on the basis of counselling by the State agency. This will incidentally take care of poorer and backward sections of the society. The prescription of percentage for this purpose has to be done by the Government according to the local needs and different percentages can be fixed for minority unaided and non-minority unaided and professional colleges, the same principles may be applied to other non-professional but unaided educational institutions viz. graduation and post graduation non-professional Colleges or institutes.
69. In such professional unaided institutions, the Management will have the right to select teachers as per the qualifications and eligibility conditions laid down by the State University subject adoption of a rational procedure of selection. A rational fee structure should be adopted by the management, which would not be entitled to charge a capitation fee. Appropriate machinery can be devised by the State or University to ensure that no capitation fee is charged and that there is no profiteering, though a reasonable surplus for the furtherance of education is permissible. Conditions granting recognition or affiliation can broadly cover academic and educational matters including the welfare of students and teachers."
33. In the case of Islamic Academy (supra) Hon'ble Supreme Court itself had considered the case of TMA Pat (supra) to interpret for the purpose of its enforcement. While considering the TMA Pai's case, Hon'ble Supreme Court had observed the arguments advanced by the parties as under :
''As against this, on behalf of the Union of India, various State Government and some students, who sought to intervene. It was submitted that the right to set up and administer an educational institution was not an absolute right, and this right is subject to reasonable restrictions and that this right is subject (even in respect of minority institutions) to national interest. It was submitted that imparting education was a State function but, due to resources crunch, the States were not in a position to establish sufficient number of educational institutions. It was submitted that because of such reserved crunch, the States were permitting private educational institutions to perform State Functions. It was submitted that the Union of India, the States and Universities had statutory rights to fix the fees and to regulate admission of students in order to ensure (a) that there was no profiteering; (b) capitation fees were not charged; (c) admissions were based on principles of merit ; and (d) to ensure that persons from the backward classes and poorer sections of society also had an opportunity to receive education, particularly professional education. It was submitted that if these educational institutions were permitted to have their own tests for admission. The students would be put to undue harassment and hardship inasmuch as they would have to pay for application forms in various Colleges and appear for tests in various Colleges. It was pointed out that even if each institution charged Rs. 500 to Rs. 1000, a student would ultimately have to pay a large amount by way of application fees as. in the absence of a common entrance test and admission procedure the students would have to apply to a number of Colleges. It is submitted that the students would also have to spend for transport from and to each College and may find it difficult, if not impossible to travel, from one College to another, to appear in all the tests. It was submitted that unless it was ensured that Colleges admit students strictly on the basis of merit at a common entrance test, it would be impossible to ensure that capitation fees were not charged and that there was no profiteering. It was pointed out that some Colleges do not even issue admission forms unless and until the student agrees to pay a hefty sum, It was submitted that the majority judgment clarified that Article 30 had been enacted not for the purposes of giving any special right or privileges to the minority educational institutions, but to ensure that the minorities had equal rights with the majority. It was submitted that minority educational institutions cannot claim any higher or better rights than those enjoyed by the non-minority educational institutions."
34. After hearing the parties' Counsel Hon'ble Supreme Court had framed four questions as under :
"In view of the rival submissions the following questions arise for consideration :
(1) whether the educational institutions are entitled to fix their own fee structure ;
(2) whether minority and non-minority educational institutions stand on the same footing and have the same rights ;
(3) whether private unaided professional Colleges are entitled to fill in their seats, to the extent of 100 per cent, and if not, to what extent; and (4) whether private unaided professional Colleges are entitled to admit students by evolving their own method of admission."
35. While considering Question Nos, 3 and 4, Hon'ble Supreme Court had considered para 68 of the TMA Pai's case (supra) and proceeded to held as under :
"...In our view what is necessary is a practical approach keeping in mind the need for a merit-based selection, Paragraph 68 provides that admission by the Management can be by common entrance test held by "itself or by the State/University". The words "common entrance test" clearly indicate that each institute cannot hold a separate test. We thus hold that the Management could select students, of their quota, either on the basis of the common entrance test to be conducted by the State or on the basis of a common entrance test to be conducted by an association of all Colleges of a particular type in that State e.g. medical, engineering or technical etc. The common entrance test, held by the association, must be for admission to ail Colleges of that type in the State, The option of choosing, between neither of these tests, must be exercised before issuing of prospectus and after intimation to the concerned authority and the Committee set up hereinafter. If any professional College chooses not to admit form the common entrance test conducted by the association then that College must necessary admit form the common entrance test conducted by the State. After holding the common entrance test and declaration of results the merit list will immediately be placed on the notice board of all Colleges which have chosen to admit as per this test. A copy of the merit list will also be forthwith sent to the concerned authority and the Committee. Selection of students must then be strictly on the basis of merit as per that merit list. Of course, as indicated earlier. Minority colleges will be entitled to fill up their quota with their own students on the basis of inter se merit amongst those students. The list of students admitted. Along with the rank number obtained by the students, the fees collected and all such particulars and details as may be required by the concerned authority or the Committee must be submitted to them forthwith. The question paper and the answer papers must be preserved for such period as the concerned authority or Committee may indicate. If it is found that any student has been admitted de hors merit, penalty can be imposed on that institute and in appropriate cases recognition/affiliation may also be withdrawn.
18. Lastly, it must be mentioned that it was urged by the learned Counsel for the appellant that paragraph 68 of the majority judgment only permits that University/State to provide format-based selection at the time of granting recognition/affiliation. It was also submitted that once recognition/affiliation is granted to unaided professional Colleges, such a stipulation cannot be provided subsequently. We are unable to accept this submission. Such a provision can be made at the time of granting recognition/ affiliation as well as subsequently after the grant of such recognition/affiliation.
19. We now direct that the respective State Governments do appoint a permanent Committee which will ensure that the tests conducted by the association of Colleges is fair and transparent. For each State a separate Committee shall be formed. The Committee would be headed by a retired Judge of the High Court. The Judge is to be nominated by the Chief Justice of that State. The other member, to be nominated by the Judge, would be a doctor or an engineer of eminence (depending on whether the institution is medical or engineering/technical). The Secretary of the State in charge of Medical or Technical education, as the case may be, shall also be a member and act as the Secretary of the Committee. The Committee will be free to nominate/co-opt an independent person of repute in the field of education as well as one of the Vice-Chancellors of the University in that State so that the total number of persons in the Committee do not succeed five. The Committee shall have powers to oversee the tests to be conducted by the association. This would include the power to call for the proposed question paper(s), to know the names of the paper-setters and examiners and to check the method adopted to ensure papers are not leaked. The Committee shall supervise and ensure that the test is conducted in a fair and transparent manner. The Committee shall have the power to permit an institution, which has been established and which has been permitted to adopt its own admission procedure for the last, at least, 25 years, to adopt its own admission procedure and if the Committee feels that the needs of such an institution are genuine, to admit, students of their community, in excess of the quota allotted to them by the State Government. Before exempting any institute or varying in percentage of quota fixed by the State, the State Government must be head before the Committee. It is clarified that different percentage of quota for students to be admitted by the management in each minority or non-minority unaided professional college(s) shall be separately fixed on the basis of their need by the respective State Governments and in case of any dispute as regards fixation of percentage of quota, it will be open to the Management to approach the Committee. It is also clarified that no institute, which has not been established and which has not followed its own admission procedure for the last, at least, 25 years, shall be permitted to apply for or be granted exemption from admitting students in the manner set out hereinabove.
20. Our direction for setting up two sets of Committees in the States has been passed under Article 142 of the Constitution of India which shall remain in force till appropriate legislation is enacted by Parliament. The expenses incurred on the setting up of such Committees shall be borne by each State. The infrastructural needs and provision for allowance and remuneration of the chairman and other members of the Committee shall also be borne by the respective State Government.
36. Thereafter again in Islamic Academy's case (supra) Hon'ble Supreme Court while considering the question relating to quota or right to provide unaided institutions held that such institutions may be provided higher percentage of students depending upon their need. Before the apex Court on behalf of State of U.P. it was mentioned that in the State of U.P. 85 per cent seats have been reserved as open seat through admission by Government Institutions or the Universities and 15 per cent seats were left under Management quota. For convenience para 189, 190, 191 and 192 of the judgment of Islamic Academy's case are reproduced as under :
"189. Several States like the States of Tamil Nadu, Karnataka and Kerala have permitted the educational institutions to hold their own examination for the purpose of admitting students within their quota. Some of the States like Maharashtra and Gujarat insist on admitting the students through a common entrance test. The following chart gives a glimpse as to how different States understood the judgment of this Court differently.
State Government Admissions Manage-
ment
Andhra Pradesh 85% 15%
Delhi 95% 15% max
Gujarat 85% 15%
Haryana 15% AIEEE 15%
70% CEET 2003
Karnataka 75% 25%
Kerala 50% 50%
Orissa 85% 15%
Tamil Nadu 50% 50%
Uttar Pradesh 85% 15%
Chhattisgarh 60% 40%
Maharashtra 85% 15%
(These seats must also be filled from the State common entrance test list)
190. Unless there exists an exigency, normally the institutions will have right to admit a higher percentage of students depending upon their need. However, all such students must be admitted only on merit. In the event, some seats remain vacant, they must be filled by general category students strictly on merit.
191. As noticed hereinabove, different States and different High Courts have laid down different percentage of seats for the Management and the State. The learned Counsel appearing on behalf of the parties have submitted that this Court may, with a view to avoid any future controversy, fix a definite percentage for the said purpose. We are afraid that is not possible. Different institutions may be established by different minority communities. The need of the minority community may differ from State to State. The need of the minority community may have a nexus with the population belonging to that community in that State. It will further depend upon various other relevant factors. By way of example, we may say that in a State where the percentage of a particular religion may be 30 or 35, the minority institution established by members of that religion but the population of which is negligible. Similar may be the case with minority institutions based on language.
192. The percentage of seats will also depend upon the need of the community in a particular State as also the need of the institution itself. The nature of the professional course would also have relevance. All these factors must be taken into consideration by the appropriate Committee or body so long a statutory regulation is not framed in this behalf."
37. In the same case of Islamic Academy (supra) while considering the earlier judgment Hon'ble Supreme Court held that the door of Court should not be knocked for each and every issue to avoid complication. Hon'ble Supreme Court had directed to constitute a Committee to decide such controversies. Accordingly, Hon'ble Supreme Court had directed the State Government to evolve a sound policy decision on one hand and also directed the statutory bodies like NCTE to hear the State Government while granting permission for establishment of professional educational institutions. For convenience para 223, 224 and 225 of the Islamic Academy's case (supra) are reproduced as under :
"The superior Courts in India exist for interpretation of the Constitution or interpretation of statutes. They cannot evolve a foolproof system on the basis of affidavits filed by the parties or upon hearing their Counsel. Certain details of vexing problems on the basis of the interpretation given by this Court must be undertaken by the statutory bodies which have the requisite expertise. It is expected that statutory bodies would be able to perform their duties for which they have been established. The doors of the Court should not be knocked every time, if a problem arises in implementation of the judgment, however, slight it may be. The Court has its own limitation. The problems which can be sorted of the ground level by holding consultations should not be allowed to be brought to the Court. It is, in that view of the matter, we have thought it fit to direct setting up of Committees for the aforementioned purposes.
224. In the present constitutional set-up, having regard to Entry 66 List 1 of the Constitution of India, the legislative power of the State may be very limited, the extent whereof may have to be determined in appropriate cases. But the stake of the State in such matters is also not minimal. The State has to evolve its own policies generating the sources of employment.
225. We have come across several schemes framed by the States in terms whereof incentive are being given to the private industries for generating employment or reduction in taxes is being proposed if graduate are employed. The respective States, therefore, must apply the mind while granting essentiality certificate inasmuch as the human resources development problems will have to be faced by them. In evolving a sound policy decision in this behalf, the statutory bodies shall also have to lend their ears to the respective State Governments while granting permission for establishment of the professional educational institutions. The Human Resource Development Ministry of the Central Government should also play its role."
38. The law laid down, by Hon'ble Supreme Court in the case of Islamic Academy (supra) shows that the respective Committee in the various States have been constituted to consider the disputed fact which is connected with need of educational institutions which includes the quota of Management for admission of students as well as needs of the peoples or society of respective State. Hon'ble Supreme Court had constituted the Committee to decide the rival claim of the private Management vis-a-vis State Government, relating to the management seat as well as open seat and this aspect of the matter has been relegated to the respective Committees of the various States. The apex Court had constituted the Committee in pursuance to power conferred by Article 142 of the Constitution of India. Unless a different law is enacted, by Parliament or some statutory provisions is framed laying down the procedure to resolve such controversy, the law laid down by apex Court is binding and it is the respective Committee constituted in a State has got power to decide the quota of Management and not for this Court while exercising extraordinary jurisdiction under Article 226 of the Constitution of India.
39. From the apex Court judgment. in Islamic Academy case (supra) it is clear that the quota of Management and State in the ratio of 50-50 per cent was fixed by Hon'ble Supreme Court only for academic year 2002-2003 keeping in view the urgency in the matter. The fixation of quota by apex Court in the said academic year was passed for the institution who had approached the Hon'ble Supreme Court. While fixing the quota of 50 per cent in the said academic year Hon'ble Supreme Court had not passed any order that benefit of said order providing quota of 50% shall be applicable to all institutions throughout the country including the newly established institutions. It is evident from the fact that Hon'ble Supreme Court had itself relegated the matter to a Committee constituted in view of direction contained in Paras 19 and 223 of the Mamie Academy's case (supra).
40. In the case of Maa Sharda (supra) the finding of Hon'ble Supreme Court as contained in paras 223, 224 and 225 of the Islamic Academy (supra) seems to be not considered.
41. Shri S.P. Srivastava, learned Additional Chief Standing Counsel had vehemently argued that the Committee has been notified and it is discharging its duties. In case, petitioner have got any grievance they have to approach the Committee which can look into the matter after considering rival claim of the parties. Argument advanced by learned Additional Chief Standing Counsel has got force.
42. In a case of P.A. Inamdar and others the apex Court had considered the applicability of TMA Pai's case and decided to refer the matter to a larger bench. The controversy relates to College of the State of Karnataka. The State of Karnataka has earmarked 75 per cent seats for admission through Government Channel and 25 per cent seats under Management quota. The non-minority institutions have filed complaint to Committee constituted in view of Islamic Academy's case (supra) and the Committee had rejected the complaint of private unaided Government Institutions as evident from para 4 of the P.A. Inamdar's judgment. Feeling aggrieved, the parties had approached the Hon'ble Supreme Court. A prayer was made before Hon'ble Supreme Court by the Management of Karnataka Institutions for 50 : 50 per cent quota. While declaring the 75 per cent and 25 per cent seats the Committee constituted under Supreme Court judgment had considered the case of rival parties and application was rejected. As an interim measure, Hon'ble Supreme Court had permitted the institution concerned to admit the students in the ratio of 50 : 50 per cent. While permitting the 50 : 50 per cent seats, Hon'ble Supreme Court had taken note of the fact that the association of the private unaided institutions of the Karnataka State was duly recognised by the State Government and had already held a common entrance examination. For convenience paras 8 and 9 of the P.A. Inamdar's case (supra) are reproduced as under :
"8. In the circumstances, we are of the view that the interim measure as stated in paragraph 21 of the Islamic Academy namely that the seats should be filled up by the institutions concerned in the ratio of 50 : 50 will be continued for this academic year purely as a temporary measure and without prejudice to the contentions of the parties for the purpose of the final disposal.
9. The next issue relates to the question as to who should hold the entrance examination for admission into these institutions. As far as the non-minority institutions are concerned, their association which has been recognised by the State Government has already held an entrance examination and there is no dispute that admissions to the members of the association will be made on the basis of such entrance examination."
43. The judgment of apex Court in P.A. Inamdar's case does not extend any assistance to the petitioner for the reason that in the State of U.P. there is no recognised association of private unaided institutions nor any entrance test has been held jointly by these institutions to fill up the vacancies. Moreover, the Committee constituted in the State of Karnataka had considered the needs of the parties keeping in view the grounds raised by State of Karnataka In the State of U.P. till date no decision has been taken by the Committee by earmarking quota for open seat as well as Management seat. It is also evident from judgment of apex Court that admission even in the private unaided institutions cannot be done by compromising the merit of the candidates. One more fact came into light that several new institutions were established in the State of U.P. in last three and Jour years and who had approached this Court by filing writ petition to claim 50 per cent seats within management quota. These new Colleges opened in recent few years may not claim 50% quota unless their demand is accepted by the Committee. They have to follow the Government Order as was existing at the time when they have started to function. A plain reading of apex Court judgment shows that the College who have approached the Hon'ble Supreme Court for 50 per cent quota were functioning since last several years with their own mode and procedure subject to limitation provided by the Government. Under these facts and circumstances of the case, the case of P.A. Inamdar is not applicable.
44. In the case of Pushpagiri Medical Society (supra) the controversy relates to State of Kerala, Hon'ble Supreme Court directed that the Government quota should be 25 per cent and total annual fee of the students were fixed to the tune of Rs. 1,13,000/-. For convenience Paras 7 and 8 of the apex Court judgment in Pushpagiri Medical Society (supra) are reproduced as under :
"7. Having regard to the totality of the circumstances, we do not think that it would be expedient to stay the operation of Section 3 of the Act and to direct that the Government quota should be 25 per cent.
8. The other question is regarding the fee structure. In terms of the decision in Islamic Academy case the Government of Kerala appointed a Committee headed by Justice K.T. Thomas, a former Judge of this Court. The said Committee has fixed the fee at Rs. 1.13 Lakh as the maximum annual fee to be collected from each student of the private self-financing medical colleges. The Committee in its order dated 28.5.2004 has observed that the cross-subsidy has been disfavoured by this Court in T.M.A. Pai Foundation case."
The order passed by Hon'ble Supreme Court in Pushpagiri Medical Society (supra) was after considering the relevant facts and circumstances State of Kerala and respective colleges.
45. The controversy in Modern Dental College (supra) before the apex Court relates to professional Colleges, engineering colleges of the Madhya Pradesh. The Committee constituted under the judgment of apex Court had fixed the management quota to the tune of 50 per cent. However, Government had taken decision to reduce the Management quota by providing reservation, which was stayed by apex Court. The facts and circumstances of the Modern Dental College's case (supra) seems to be not applicable to decide the present controversy.
46. The case of Association of Professional Colleges (Writ Petition No. 36619 of 2004), decided on 21.12.2004 relates to similar controversy decided by this Court. While finally deciding the writ petition, Hon'ble single Judge of this Court had passed the following order :
"The writ petitions are disposed of with the following directions :
(a) Management quota seats in respect of the petitioners institutions shall be strictly in accordance with the Government Order dated 9.9.2004 i.e. 15% only.
(b) The parties shall ensure that the Government Order dated 9.9.2004 determining the Management quota seats i.e. 15% is carried out by all affiliated Colleges in letter and spirit and all contrary directions issued by any University in State of Uttar Pradesh are withdrawn and revoked in the light of the order of the State Government dated 9.9.2004 and correspondingly the State Government shall ensure that necessary number of students are made available to un-aided non-minority professional institutions on the basis of the entrance examination conducted by its agency (Universities) and in no case the institution should be made to suffer because of nonavailability of suitable candidates within 85% quota in pursuance of the said entrance examination. The State Government must make necessary provisions to safeguard against such situation.
(c) If any institution is aggrieved by fixation of the Management quota seats it may approach the Committee constituted under Government Order dated 20.2.2004 and it is hoped that the said committee shall consider the grievances of the aggrieved institutions and shall pass orders at the earliest possible.
(d) The Management quota seats to the extent of 15% shall be filled by the management of the respective Colleges on the basis of any of the three modes of admission as recognised by the Hon'ble Supreme Court in T.M.A. Pai's case (supra) including the manner of judging the merit on the basis of the marks secured in the qualifying examination."
47. The judgment of Hon'ble single Judge of this Court in Association of Professional Colleges case (supra) the operative portion of which has been reproduced hereinabove is seems to have been passed within the parameter of Islamic Academy's case (supra) and does not seems to be suffer from any substantial illegality or impropriety. Accordingly, as argued by petitioner's Counsel, I am not inclined to refer the present controversy to a larger bench. Parties' Counsel agreed that the said judgment has not been set aside by a larger bench or the apex Court.
48. Learned Counsel for the petitioner Shri Anupam Mehrotra and Shri Manish Kumar submits that the judgment shall not be a precedent as it does not decide the proposition argued in this case specifically.
49. While assailing the impugned Government Order, learned Counsel for the petitioner had relied upon in the case of Mittal Engg. Works (supra); State of U.P. v. Synthetics and Chemicals Ltd. (supra) and Bhikaji Narain Dhakras (supra) the judgments of the apex Court. Learned Counsel for the petitioner submits that the judgment rendered by Hon'ble single Judge in the case of Association of Professional Colleges is not a precedent, sub-silentio illegal and also on account of fact that question raised in the present writ petition has not been considered.
The further submission of the learned Counsel for the petitioner is that in view of law settled by Hon'ble Supreme Court in Harbans Lal's case (supra) even if alternative remedy to represent the Committee constituted under apex Court judgment is available the present writ petition is not barred.
50. I have given my anxious consideration to the arguments advanced by the petitioner's Counsel relating to the binding precedent as well as availability of alternative remedy. The arguments advanced by petitioner's Counsel seems to extend no assistance. In view of the facts and circumstances and law discussed hereinabove it is clear that Hon'ble Supreme Court had exercised power under Article 142 of the Constitution of India. For convenience Article 142 is reproduced as under :
"Enforcement of decrees and orders of Supreme Court and orders as to discovery, etc.-- (1) The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or order so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe.
(2) Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court shall, as respects the whole of the territory of India, have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself."
The Constitution of India further commands that all authorities, civil and judicial shall act in aid of the Supreme Court. For convenience Article 144 of the Constitution of India is reproduced as under :
"Civil and judicial authorities to act in aid of the Supreme Court.--All authorities, civil and judicial, in the territory of India shall act in aid of the Supreme Court."
51. Any law declared or direction issued by Hon'ble Supreme Court in pursuance to provision contained in Article 142 of the Constitution of India shall have binding effect and it cannot be ignored even by applying the principle of "per incuriam" to any statutory provision. Act or Rules. Once the Hon'ble Supreme Court itself had constituted a Committee to decide disputed question of facts and permitted the aggrieved party to represent the Committee, this Court has got no jurisdiction to interfere with the impugned Government Order. It is for the Committee to take a decision, after considering the needs of the institutions vis-a-vis the public in general. In a welfare State like India heavy burden lies on the State Government to secure the public interest by taking appropriate action in accordance with law. The statutory provisions contained in the U.P. State Universities Act, Rules and Societies Registration Act, the State Government has got say in all such matters where right to life, right to livelihood or right to education etc. are involved. However, the right of the State Government is subject to orders passed by NCTE, which is a Central Act.
52. Under above facts and circumstances of the case, since the Hon'ble Supreme Court has constituted a Committee to decide identical controversies in pursuance to power conferred by Article 142 of the Constitution of India, the argument advanced by petitioner's Counsel Shri Anupam Mehrotra and Shri Manish Kumar to the effect that alternative remedy is not a bar and instead of relegating the matter to the Committee this Court should exercise jurisdiction under Article 226 of the Constitution of India does not extend any help for interference by this Court. Hon'ble Supreme Court under our constitutional scheme has got full power to pass appropriate order for complete justice or substantial justice. Any statutory provision even if it: is contrary to the order passed by Hon'ble Supreme Court shall not create a ground for interference by this Court. In a case, In re : Vinay Chandra Mishra, , while considering constitutional mandate of Article 142 of the Constitution of India Hon'ble Supreme Court had proceeded to held as under :
"46. Apart from the fact that these observations are made with reference to the powers of this Court under Article 142 which are in the nature of supplementary powers and not with reference to this Court's power under Article 129, the said observations have been explained by this Court in its later decisions in Delhi Judicial Service Assn.. v. State of Gujarat and Union Carbide Corporation v. Union of India. In para 51 of the former decision, it has been, with respect, rightly pointed out that the said observations were made with regard to the extent of this Court's power under Article 142(1) in the context of fundamental rights. Those observations have no bearing on the present issue. No doubt, it was further observed there that those observations have no bearing on the question in issue in that cases as there was no provision in any substantive law restricting this Court's power to quash proceedings pending before subordinate Courts. But it was also added there that this Court's power under Article 142(1) to do complete justice was entirely of a different level and of a different quality. Any prohibition or restriction contained in ordinary laws cannot act as a limitation on the constitutional power of this Court. Once this Court is in seisin of a matter before it, it has power to issue any order or direction to do complete justice in the matter. A reference was made in that connection to the concurring opinion of Justice A.N. Sen in Harbans Singh v. State of U.P., where the learned Judge observed as follows : (SCC pp. 107-08, para 20).
"Very wide powers have been conferred on this Court for due and proper administration of justice. Apart from the jurisdiction and powers conferred on this Court under Articles 32 and 136 of the Constitution. I am of the opinion that this Court retains and must retain, an inherent power and jurisdiction for dealing with any extraordinary situation in the larger interest of administration of justice and for preventing manifest injustice being done. This power must necessarily be sparingly used only in exceptional circumstances for furthering the ends of justice."
The Court has then gone on to observe there that no enactment made by Central or State Legislature can limit or restrict the power of this Court under Article 142 of the Constitution, though the Court must take into consideration the statutory provisions, regulating the matter in dispute. What would be the need of complete justice in a cause or matter would depend upon the facts and circumstances of each case."
53. The aforementioned principle and power of the Hon'ble Supreme Court has been again affirmed in a case of Delhi Development Authority v. Skipper Construction Co. (P.) Ltd. and Anr., . Since, in the case of Islamic Academy (supra) Hon'ble Supreme Court had constituted the Committee to decide the similar controversies in the various States while exercising power under Article 142 of the Constitution of India, it shall not be open to petitioner's Counsel to assail the impugned order on the ground that it has been passed in violation of certain statutory provisions, rules and regulations or alternative remedy available to petitioners to approach the Committee constituted in pursuance to judgment of apex Court may be bye-passed and petitioners may not be compelled to approach the said Committee. Since, the Committee has been constituted in pursuance to direction of Hon'ble Supreme Court in Islamic Academy (supra), in pursuance to power conferred by Article 142 of the Constitution of India, the present writ petition is not maintainable on account of availability of alternative remedy. The benefit of settled law that alternative remedy does not create a bar to exercise jurisdiction under Article 226/227 of the Constitution of India shall not be available to the petitioner as the Committee has been constituted in pursuance to judgment of apex Court in the manner discussed hereinabove and on account of fact that in the case of Islamic Academy (supra) Hon'ble Supreme Court itself had observed that before approaching the higher Court such controversy should be heard and decided by the said Committee. The needs of the society, management and States vary from one place to other. The needs and requirement of one State of the Country may be different than other State. Similarly, keeping in view the cosmopolitan nature of our society the cultural and financial constraints even in one State or a College may vary from other States or Colleges. These disputed question of fact should be firstly adjudicated by the Committee constituted by the State Government in pursuance to case of Islamic Academy (supra). What is the need of a Committee or College and the peoples of the locality is a disputed question of fact which can be very well considered by the Committee after providing opportunity of hearing to the parties which includes the State Government.
54. Under Directive Principles of the State Policy (Part-IV of the Constitution of India), the Constitution commands the State to discharge certain duties of course, for the peoples of their own territorial jurisdiction. Article 38(2) of the Constitution of India commands the State strikes to minimise the inequalities in status, facilities and opportunities not only amongst individuals but also amongst group of people. Article 39(1) of the Constitution of India commands the State, frame policies for securing equal rights to adequate means of livelihood. Article 41 of the Constitution of India further provides that the State shall make effective provisions for securing the right to work, right to education so what. Article 46 of the Constitution of India further provides that the State shall take special care of educational and economical interest of the weaker section of the societies. For convenience Articles 38, 39(a) and Article 41 of the Constitution of India are reproduced as under :
"State to secure a social order for the promotion of welfare of the people.--The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life.
(2) The State shall in particular, strive to minimise the inequalities in income, and endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations.
39. Certain principles of policy to be followed by the State :
The State shall, in particular, direct its policy towards securing--
(a) That the citizens, men and women equally, have the right to an adequate means of livelihood ;
(b) That the ownership and control of the material resources of the community are so distributed as best to subserve the common good ;
(c) That the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment;
(d) That there is equal pay for equal work for both men and women ;
(e) That the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength ;
(f) That children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment.
39-A. Equal justice and free legal aid.--The State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.
41. Right to work, to education and to public assistance in certain cases.--The State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want."
55. The State has got constitutional duty to provide equal opportunity of education, opportunity of livelihood, opportunity to employment and special care to poor class. State cannot deprive directly or indirectly a person residing permanently or otherwise within its own territorial jurisdiction to be benefited from the educational facilities.
The State has got legislative competence to legislate law within its territory. Accordingly while enforcing the Directive Principles the State Government legislates law to serve the people.
56. The apex Court in a case of M.H. Qureshi v. State of Bihar, , while considering the directive principles of State policy held as under :
"Before we actually take up and deal with the alleged infraction of the petitioners' fundamental rights, it is necessary to dispose of a preliminary question raised by Pandit Thakurdas Bhargava. It will be recalled that the impugned Acts were made by the States in discharge of the obligations laid on them by Article 48 to endeavour to organise agriculture and animal husbandry and in particular to take steps for preserving and improving the breeds and prohibiting the slaughter of certain specified animals. These directive principles, it is true, are not enforceable by any Court of law but nevertheless they are fundamental in the governance of the Country and it is the duty of the State to give effect to them. These laws having thus been made in discharge of that fundamental obligations imposed on the State, the fundamental rights conferred on the citizens and others by Chapter III of the Constitution must be regarded as subordinate to these laws. The directive principles, says learned Counsel, are equally, if not more, fundamental and must prevail. We are unable to accept this argument as sound. Article 13(2) expressly says that the State shall not make any law which takes away or abridges the rights conferred by Chapter III of our Constitution which enshrines the fundamental rights. The directive principles cannot over-ride this categorical restriction imposed on the legislative power of the State. A harmonious interpretation has to be placed upon the Constitution and so interpreted it means that the State should certainly implement the directive principles but it must do so in such a way that its laws do not take away or abridge the fundamental rights, for otherwise the protecting provisions of Chapter III will be "a mere rope of sand". As this Court has said in the State of Madras v. Smt. Champakam Dorairajan, 1951 SCR 525 at p. 531 : at p. 228 (A) : "the directive principles of State Policy have to conform to and run as subsidiary to the Chapter on fundamental rights."
57. In one another case in State of Maharashtra v. Manubhai Pragji Vashi, , matter relating to grant-in-aid for Colleges by the Government, the apex Court proceeded to hold as under :
"A plea was taken in the High Court that the petitioner has no right to seek a writ of mandamus under Article 226 of the Constitution basing his relief on a directive principle contained in the Constitution. The High Court, rightly in our opinion, repelled this plea relying on the decision of this Court in State of H.P. v. Umed Ram Sharma. The High Court referred to the dictum laid down in the aforesaid decision to the effect (a) the Court can in a fit case direct the executive to carry out the directive principles of the Constitution, and (b) when there is inaction or slow action by the executive the judiciary must intervene. We have no doubt that the above conclusion of the Court below is also justified.
18. Before closing, we may observe that the content of Article 21 read with Article 30A did not (in terms) arise for consideration in this Court on any previous occasion. Even in the recent Constitution Bench decision of Unni Krishnan case Article 21 read with Articles 41, 45 and 46 alone came up for consideration. The scope of Article 21 in the light of Article 39A never arose for consideration nor was it considered in the said decision."
58. In State of Punjab v. Dayanand Medical College and Hospital, 2001 (8) SCC 684, the apex Court held that it shall be the duty of State to secure reservation for socially and educationally. For convenience Para 12 of the said judgment reproduced as under :
"Insofar as the provision for reservation add by the State of Punjab in respect of socially and educationally backward classes, no exception can be taken because, as we have explained earlier, it is a prerogative and duty of the State to indulge in such an exercise in carrying out and implementing the constitutional policy declared in Article 46 of the Constitution armed with the enabling power under Article 15(4) of the Constitution and there has been no decision on the point including the decision in Dr. Preeti Srivastava case to the effect that the Medical Council of India can alone or shall do so. If in a given case, the prescription of reservation for weaker sections by the State is to such an enormous extent as to reduce the candidates to be selected on the basis of merit performance in an examination from the general category to a very small number, then perhaps the Medical Council of India may have to take appropriate steps by stipulating specific standards for such reserved category candidates also and not otherwise. The observation of enabling the Medical Council of India in setting the standards in medical education includes the extent of reservation for socially and educationally backward classes in Dr. Preeti Srivastava case should be understood in this background. Thus, proper balance will have to be struck both by the Medical Council of India and by the Government, Central and State, in exercise of their respective powers. The Medical Council of India, a creature of a statute, cannot be ascribed with such powers to reduce the State Governments to nothing on and in respect of areas over which the States have constitutional mandate and goal assigned to them to be performed. The Medical Council of India cannot also purport: to arm itself with powers to prescribe a standard, which is impossible of attainment by a candidate belonging to a reserved category or for that matter even general candidates and whatever is fixed, must be realistic and within attainable limits. In conclusion, the finding of the High Court that the notification issued by the appellant State is invalid to the extent of making reservation in terms of Article 15(4) of the Constitution is set aside."
59. The preamble of the Constitution of India shows that the vision of the framers of our Constitution was that India shall be a socialist, secular, democratic, republic to secure justice social economic and political. The objectives enumerated in the preamble of our Constitution contains the basic structure of our Constitution us held by apex Court in the cases of Keshavanand Bharati v. State of Kerala, and Minerva Mitts Ltd. v. Union of India, .
60. Under above facts and circumstances and provision of law discussed, State is bound to play major role in allocation of seats or fixation of quota for the Management as well as for the agency appointed by the State. That is why Hon'ble Supreme Court had constituted a Committee in Islamic Academy case (supra) making it mandatory for the said committee to provide opportunity of hearing to the State also. Similar direction has been issued by Hon'ble Supreme Court to the NCTE to provide opportunity of hearing to respective States before taking any decision relating to the fixation of Management, quota or for the fee structure or other related matters.
61. The other submission of the learned Counsel for the petitioner is that the Committee constituted in pursuance to judgment of Hon'ble Supreme Court is only to supervise or hold an entrance test and petitioner will have got no remedy to approach the Committee for redressal of their grievance raised before this Court by filing the present writ petitions seem to be misconceived. As discussed hereinabove while in the judgment: of Islamic Academy case (supra) Hon'ble Supreme Court had categorically held that all disputes relating to the quota of Management or fee structure are liable to be adjudicated by the Committee. In these petitions disputed questions of fact are involved which may be decided only after considering the needs of a Committee of Management/Institutions as well as the respective State. The State Government should also be heard before the decision is taken by the Committee. The Committee so constituted shall function till a statutory procedure is provided by the Parliament or by exercising related statutory powers.
62. So far as the other submission of petitioner's Counsel that the Government had not applied its mind while fixing the Management quota and other quota and judgment of this Court in Association of Professional Colleges is not a precedent does not come into a way to relegate the present controversy to the Committee constituted in pursuance to the judgment of Hon'ble Supreme Court. In case, the Government has not applied its mind while issuing the impugned Government Order or the needs of the petitioners institution are much higher than the 15 per cent quota by provided by the impugned Government Order, as evident from the judgment of Hon'ble Supreme Court the committee can look into all such matter and if it founds that the needs of the society or the petitioners are much higher than the quota of 15 per cent it has got right to pass appropriate order by increasing the Management quota. While doing so committee can set aside the impugned Government Order or may modify the same in appropriate manner after providing opportunity of hearing to the interested parties including Government.
63. Under the above facts and circumstances of the case and provision of law discussed hereinabove the finding is being summarised as under :
1. Since, in Islamic Academy case (supra) Hon'ble Supreme Court had exercised power under Article 142 of the Constitution of India and appointed the Committee to decide similar controversies, any statutory provisions or Government orders will not create a ground for interference by this Court even if such statutory provisions or Government Orders have been violated by the authorities. It is only the Committee constituted by the Government in pursuance to direction of Hon'ble Supreme Court in Islamic Academy case (supra) has got right to decide the claim of parties relating to the quota of Management after providing opportunity of hearing to the Slate Government as well as the Committee of Management. Writ Petition under Article 226 of the Constitution of India shall not be maintainable in view of apex Court judgment.
2. The facts, circumstances and grounds reality of each and every State of the country vis-a-vis the needs of the Committee of Management or institutions may vary. It is the Committee in pursuance to judgment of apex Court has got power to determine such factual dispute keeping in view the law laid down by the apex Court referred in the present judgment. Of course a decision taken by the Committee shall be subject to judicial review by the higher Courts.
3. The Committee of Management constituted either by scheme of administration or in pursuance to provision contained in Societies Registration Act cannot deviate from the purpose of which it was constituted. The office bearers and members of the Committee of Management have got no right to act in a manner which may result into extension of any benefit monetary or otherwise to its office bearers or the members.
4. Under the NCTE Act, the NCTE has go power to regulate the admission including fee structure. However, as held by Hon'ble Supreme Court while doing so it shall be incumbent upon the NCTE to consider or provide opportunity of hearing to the representatives of the State Government.
5. Since, NCTE has not taken any decision relating to present controversy, the State Government has got power to pass the impugned order which can very well be challenged before the Committee constituted in pursuance to judgment of apex Court in the case of Islamic Academy (supra). Since, the Committee is functional and discharging its duties as stated by Shri S.P. Srivastava, learned Chief Standing Counsel the alternative remedy is available to the petitioners to approach the Committee.
6. The needs of the Society or the Committee vis-a-vis the public of the locality involves disputed question of fact. Accordingly, at initial stage such disputed question of fact may not be considered under extraordinary jurisdiction of High Court.
7. It is the duty of NCTE to maintain the standard of education in professional Colleges imparting teacher's education but the State Government or the Universities may provide additional measures to give strength to the guidelines or rules framed by the NCTE while exercising power under the provisions contained in U.P. State Universities Act and Rules framed thereunder.
64. Under the above facts and circumstances of the case, the writ petition is not maintainable on account of availability of alternative remedy to approach the Committee constituted by the State Government in pursuance to order passed by Hon'ble Supreme Court in the case of Islamic Academy case (supra). However, it is provided that all those candidates who have been already granted admission in the session 2003-2004 or 2004-2005 on merit from the select list of the respective Universities to whom the College concerned has been affiliated, shall be permitted to pursue their studies keeping in view the letter and spirit of Government Order dated 4.1.2005 referred hereinabove, unless the Committee decides otherwise. It is further provided that in case, petitioner submits a representation to the Committee constituted by the State Government in pursuance to judgment of Hon'ble Supreme Court within ten days from today, then the said committee may decide the issue expeditiously and preferably within a period of six weeks so that the career of eligible students may not be adversely affected.
Subject to above, writ petition is dismissed in limine on account of availability of alternative remedy to approach the committee constituted in pursuance to judgment of Hon'ble Supreme Court. No order as to costs.