Madras High Court
Sree Narayana Educational Guidance ... vs The Permanent Admission Committee, ... on 25 November, 2004
Author: R. Banumathi
Bench: R. Banumathi
ORDER N.V. Balasubramanian, J.
1. W.P. No. 21019 of 2004 is filed by Sree Narayana Educational Guidance Society at Tellichery, Pondicherry for the issue of a writ of Certiorari to quash the order of the Permanent Admission Committee dated 15.6.2004 in regard to Clauses 7, 8, 9, 10(5), 10(12), 10(16), 10(17), 10(20), 10(21) and 10(27) in so far as they affect the rights of the petitioner Institution.
2. W.P. No. 21020 of 2004 is filed by Immaculate Heart of Mary Society, Pondicherry to quash the same order of the Permanent Admission Committee, Pondicherry in regard to same Clauses in so far as they affect the rights of the petitioner Institution.
3. W.P. No. 22189 of 2004 is filed by Acharya College of Education, Villianur, Pondicherry to quash the same order of the Permanent Admission Committee, Pondicherry in regard to almost all Clauses in so far as they affect the rights of the petitioner Institution.
4. The petitioner in W.P. No. 21019 of 2004 Sree Narayana Educational Guidance Society, which is registered under the Societies Registration Act, 1860, is running Sri Narayana College of Education at Mahe, a non-aided linguistic minority institution and has obtained recognition and affiliation for Teacher Training courses with the National Council for Teacher Education. The petitioner offers degree in Bachelor of Education to students in the institution. According to the petitioner, it is a minority institution and the petitioner has fundamental rights under Article 30 of the Constitution of India to establish and administer its own educational institution which right has been time and again confirmed and reiterated in various judgments of this Court as well as by the Supreme Court. According to the petitioner, it has the right to prescribe its own procedure for admission. The petitioner has referred to the decision of the Supreme Court in T.M.A. Pai Foundation case (2002(8) SCC 481) as well the judgment of the Supreme Court in Islamic Academy of Education case and has pleaded that the right to administer and the admission of students on the basis of merit is a right vested in the minority institution and the same cannot be taken away by the Government of Union Territory of Pondicherry under the guise of regulatory measures and supervisory procedures. It is stated that the Government of Union Territory of Pondicherry can scrutinize only the standard of merit to be followed in the procedure of admission of students and the Government of Union Territory of Pondicherry cannot overstep the limits by laying down procedures which would amount to conducting examination and selection of students thereby affecting the rights of the minority institution to administer the institution. It is also stated that affiliation has been granted by the second respondent subject to the norms and standards prescribed by the National Council for Teacher Education (N.C.T.E.) and therefore the petitioner institution has the right to select candidates on the basis of merit pursuant to the common entrance examination to be conducted by the Association of Colleges or through the Central Admission Committee appointed for the conduct of the common entrance examination by the Government of Union Territory of Pondicherry. It is also stated that in so far as Teacher Training Colleges in the Union Territory of Pondicherry are concerned, they formed an Association, called, 'The Union Territory of Pondicherry Unaided B.Ed. Colleges Welfare Association (hereinafter referred to as 'the Association') pursuant to the directions of the Supreme Court in Islamic Academy of Education case and the Association has been registered as a Society under the Societies Registration Act, 1860. It is stated that the Association has agreed to conduct a common entrance examination to fill up 50% management quota. It is also stated that a proposal for conducting common entrance examination was submitted to the Committee headed by Mr.Justice A.Ramamurthi to oversee the common entrance examination as per the directions of the Supreme Court. It is the case of the petitioner that the Committee by its order dated 15.6.2004 which is impugned in the writ petition, has imposed several restrictions and serious inroads have been made in the selection procedure to be followed by the petitioner and other colleges through the Association which are directly in conflict with the directions of the Supreme Court in Islamic Academy Education case. It is stated that various directions issued by the Committee are in the nature of absolute restrictions in the method of selection adopted by the petitioner in the colleges forming the Association. Hence, the writ petition has been filed challenging some of the directions issued with reference to the conduct of common entrance examination.
5. The petitioner in W.P. No. 21020 of 2004, Immaculate Heart of Mary Society, is also a Society registered under the provisions of Societies Registration Act running the Teacher Training College in the name, 'Immaculate College of Education' at Pakkam Udayanpet, Pondicherry and it is a non-aided religious minority institution. The institution has also obtained recognition and affiliation for teacher training courses from N.C.T.E. The averments raised in the writ petition, W.P. No. 21020 of 2004 are almost similar to the averments and allegations raised in W.P. No. 21019 of 2004.
6. The petitioner in W.P. No. 22189 of 2004, Acharya College of Education, is also conducting B.Ed. course from the year 2000-01 and it falls under the category of unaided college. The averments raised in the writ petition, W.P. No. 22189 of 2004 are similar to the averments made in other two writ petitions, W.P.Nos. 21019 & 21020 of 2004 except in one aspect, namely, the petitioner in W.P. No. 22189 of 2004 is also challenging the clause 10(15) of the impugned order, apart from challenging other clauses which are challenged in other two writ petitions.
7. The second respondent, namely, the Union Territory of Pondicherry, has filed a common counter affidavit stating that in the Union Territory of Pondicherry there are four unaided B.Ed. Colleges and they are as under:-
1. Pope John Paul II College of Education, Pondicherry (petitioner in W.P. No. 22779 of 2004, which we deal with separately).
2. Immaculate College of Education, Pondicherry (petitioner in W.P. No. 21020 of 2004).
3. Achariya College of Education, Pondicherry (petitioner in W.P. No. 22189 of 2004)
4. Sri Narayana College of education, Mahe (petitioner in W.P. No. 21019 of 2004).
It is stated in the counter affidavit that Immaculate College of Education, Pondicherry and Sri Narayana College of Education, Mahe are conferred with minority linguistic status and other two institutions are non-minority institutions. In the counter affidavit, the decision of the Supreme Court in Islamic Academy Education case was referred to. In the counter affidavit there is also a reference to the order of the Government of Union Territory of Pondicherry in G.O.Ms. No. 41, dated 29.3.2004 under which the Permanent Admission Committee has been constituted. There is also a reference to the formation of the Committee called, Centralized Admission Committee for conducting common entrance examination including counselling for allotment of seats to different unaided professional colleges and institutions. It is further stated that the Government of Pondicherry has already conducted the common entrance examination through the Centralised Admission Committee and filled up 50% of its quota through counselling. In the counter affidavit there is also a reference to the option exercised by the Association to conduct common entrance examination to fill up the management quota of 50% and the permission granted subject to certain conditions by the Permanent Admission Committee. In the counter affidavit it is stated that the Committee framed certain guidelines and incorporated the same in its order to see that the selection of students is made on the basis of merit and the common entrance examination is conducted in a fair and transparent manner. It is stated that the conditions stipulated in the said order are in conformity with the decisions of the Supreme Court and the conditions are made to ensure that the entrance examination is conducted in a proper manner. In the counter affidavit the various averments made in the affidavits filed in support of the writ petitions are denied. It is stated that the directions found in Clauses 7, 8, 9, 10(5), 10(12), 10(15), 10(16), 10(17), 10(20), 10(21) and 10(27) of the order of the Permanent Admission Committee are strictly in accordance with the directions of the Supreme Court and they are not detrimental to the interest of the petitioner/societies.
8. We are of the view that before considering the submissions made by the learned counsel for the petitioners it would be profitable to refer to the decision of the Supreme Court in ISLAMIC ACADEMY OF EDUCATION v. STATE OF KARNATAKA wherein the Supreme Court has directed the respective State Governments to appoint a Permanent Committee to ensure that the tests are conducted by the association of colleges in a fair and transparent manner. The relevant passage of the judgment in Islamic Academy of Education case reads as under:-
" 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 filed of education as well as one of the Vice-Chancellors of the University in that State so that the total number of persons on the Committee do not exceed 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 institute 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 heard 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 Government 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.:"
It is on the basis of the directions of the Supreme Court in Islamic Academy Education case, the Permanent Admission Committee (hereinafter referred to as 'the Committee') has been constituted for the Union Territory of Pondicherry.
9. The submission of Mr. T.R. Rajagopalan, learned senior counsel appearing for the petitioners in W.P.Nos. 21019 and 21020 of 2004 is that the approach of the Committee is against the decision of the Supreme Court in Islamic Academy of Education case and the powers of the Committee are restricted and according to him, the Committee exceeded its jurisdiction by framing the rules in the matter of conduct of entrance examinations. He referred to the proposals submitted by the Association for the conduct of the examination by the Association and submitted that no objection has been raised either by the Government of Pondicherry or by the Committee regarding the proposals submitted by the Association and the Committee has not found that the proposals are not in any way fair and he submits that so long as the Committee did not find that the proposals submitted by the Association are not fair, it has no jurisdiction to frame its rules and hence he submits that the approach of the Committee is entirely wrong. He also submitted that there was no lis before the Committee and the Committee has proceeded on the basis that it has the power to frame regulations. He submitted that the Committee has no power to frame regulations. According to him, the Committee has not independently applied its mind as the Committee has merely accepted the regulations framed by the Permanent Committee constituted for the Government of Tamil Nadu in the matter of professional courses overlooking the differences that prevail in the matter of admission in B.Ed. Course in particular.
10. The above arguments have been reiterated by Mr. G. Masilamani, learned senior counsel appearing for the petitioner in W.P. No. 22189 of 2004. Mr. T. Murugesan, learned senior counsel and Government Pleader of Pondicherry, on the other hand, submitted that the Committee has the power to frame regulations and the regulations are equivalent to rules and it is not the case of the petitioners that the regulations do not ensure the transparency and merit in the conduct of the examination which is insisted upon by the Supreme Court in Islamic Academy of Education case. He also submitted that no prejudice has been established.
11. We have carefully considered the submissions of learned senior counsel for the petitioners and the respondent. We are of the view that the submission of Mr. T. Murugesan, learned Government Pleader, Pondicherry is well-founded. A close reading of the order of the Committee shows that the Committee has taken into account the representations made by the Association and there was an elaborate discussion between the Members of the Committee and the Office bearers of the Association and only after considering the matter in great detail, the Committee was of the opinion that the permission can be granted to the Association to fill up the management quota subject to the conditions which are found in its order dated 15.6.2004. Though the Committee has not discussed either the merits or demerits of the proposal submitted by the Association, which was given in the form of Manual for conducting common entrance examination, the Committee felt that the directions given for conducting common entrance examination should ensure fairness and transparency in the conduct of examination by the Association and it is only on that basis, the Committee has issued the directions which are found in the order challenged in the writ petitions. The Committee is not a Court and it is not expected to write a detailed judgment for not accepting the proposals put forward by the Association in the Manual for conducting common entrance examination giving detailed reasons for rejection of the same. A reading of the order clearly shows that the Committee has discussed on various dates with the Office bearers of the Association and only after giving opportunity, the order has been passed. The order further indicates that the Committee has applied its mind and then only framed the regulations for the conduct of common entrance examination by the Association. We are of the view, the mere fact that the Committee has not stated, in so many words, that it has rejected the proposals submitted by the Association would not by itself vitiate the order and what has to be seen and what is relevant is, whether the directions given by the Committee in its order are in conformity with the directions given by the Supreme Court in Islamic Academy of Education case and whether the directions would ensure that the tests conducted by the Association are in a fair and transparent manner. The Supreme Court in Islamic Academy of Education case has emphasized in more than one place that the Committee should supervise and ensure that the tests are conducted in a fair and transparent manner, and when that power is entrusted by the Supreme Court of India to the Committee headed by a retired Judge of this Court, we are of the view that the directions given by the Committee cannot be lightly interfered with on the ground that the Committee has not discussed either merits or demerits of the proposals given by the Association. Further, the proposals submitted by the Association are only in the nature of suggestions of the Association and that suggestions do not bind the Committee in any manner as it is for the Committee to frame regulations for the conduct of common entrance examination to be held by the Association with the object that the tests are conducted in a fair and transparent manner and as directed by the Supreme Court in Islamic Academy of Education case.
12. Further, it is not the case of the petitioners that there is violation of the principles of natural justice. On the other hand, the order clearly shows that the Committee heard the views of the members and Office bearers of the Association and then, applied its mind and framed the necessary regulations which are contained in the order. We do not find any infirmity in the procedure adopted by the Committee and the order cannot be interfered only on the ground that the Committee has not rejected the proposals submitted by the Association. We are of the view, the Committee is also not required to give reasons for rejecting the proposals given by the Association and the absence of reasons for not preferring the views of the Association would not by itself, in our view, vitiate the order.
13. Moreover, it is seen from the order that the Committee, wherever the contingency required, has considered the suggestions of the Association and rejected the same. We refer to the suggestion made by the Association for holding interview for selection of candidates and awarding 20% of marks in the interview and the Committee has rejected the same, which clearly shows that the Committee has considered the proposals given by the Association and rejected the same. It is axiomatic that the Committee is not expected to act as a rubber stamp to the proposals submitted by the Association and in our view, on the facts of the case, we find that the Committee has applied its mind and formed a reasonable belief that the rules should be framed which would ensure fairness and transparency in the conduct of common entrance examination by the Association and issued certain directions found in the order impugned after rejecting the proposals given by the Association. We therefore hold that the Committee has not in any way exceeded its jurisdiction in its order and we are not inclined to quash the order and remit the matter to the Committee once again to consider the proposals given by the Association. Hence, the submission of Mr. T.R. Rajagopalan, learned senior counsel in this regard is not acceptable and rejected.
14. The next submission is with reference to Clause-9 of the impugned order and the Clause reads as under:-
" The association suggested that the Management seats can be filled up based on the performance of the candidates in the common Entrance Examination conducted by them plus personal interview. They also suggested that the examination will be for a total of 80% of marks and 20% of the marks will be allotted for personal interview. There was difference of opinion relating to the personal interview. It was stated by the Association that the personal interview is necessary to avoid pregnant women, stammering candidate, etc. They further stated that in order to find out whether a candidate is interested in teaching, to examine the communicating power, expression, subject depth, logical thinking, effective presentation, attitude of candidates, personal interview is necessary. Considering these facts and considering the entire material, the Committee views that personal interview is not necessary as it will give room for manipulation and subjectivity."
Mr. G. Masilamani, learned senior counsel referred to the decision of the Supreme Court in UNNIKRISHNAN,J.P. v. STATE OF A.P. , particularly paragraph-169 of the judgment which reads as under:-
"The idea behind the scheme is to eliminate discretion in the management altogether in the matter of admission. It is the discretion in the matter of admission that is at the root of the several ills complained of. It is the discretion that has mainly led to the commercialization of education."
He submitted that in T.M.A. PAI FOUNDATION v. STATE OF KARNATAKA (2002) 8 SCC 481) this discretion has been taken away and there is maximum autonomy of management in the matter of administration including the right of appointment, admission of students and fees to be charged. He relied upon paragraph-40 of the judgment in T.M.A. Pai Foundation case which reads as under:-
" Any system of student selection would be unreasonable if it deprives the private unaided institution of the right of rational selection, which it devised for itself, subject to the minimum qualification that may be prescribed and to some system of computing the equivalence between different kinds of qualifications, like a common entrance test. Such a system of selection can invoke both written and oral tests for selection, based on principle of fairness."
He also referred to certain passages in ST. STEPHEN'S COLLEGE v. UNIVERSITY OF DELHI and submitted that on the basis of the decision in St. Stephen's college case, the right to select students is a part of administration and it is an important facet of administration. He submitted that the method of interview is a legalized form of selection in Union Public Service Commission and the Tamil Nadu Public Service Commission and in the matter of selection of various officers in the Union and the State and when the method of interview is permissible, there are no reasons at all for the Committee, on the basis of mere suspicion, to say that there need not be any interview for the selection of B.Ed. candidates and the direction of the Committee that the interview need not be conducted to assess the performance of the candidates for selection to the B.Ed. Course is not legally sustainable and directly interferes with the discretion of the management, in admitting the students. He also submitted that the order of the Committee has interfered with the power of management of minority institutions and the various directions framed by the Committee indicate that the Committee is omnipotent in the matter of conducting entrance examination. He submitted that the Committee cannot compel the Association to conduct the entrance examination for admission to B.Ed. Course in a particular manner and the power of the Committee is only to see that the entrance examination is conducted by the Association in a fair and transparent manner. His submission was that by allotting 20% marks for oral interview, the Association would be in a position to evaluate the merit of students in a fair manner and the interview cannot be termed as antithesis to equality and justice. He submitted that it cannot be stated that the management of institutions has no power to conduct interview in the matter of selection of students and the mere suspicion of the Committee is not sufficient to dispense with the interview. He also submitted that the purpose of conducting oral interview is to test the capacity of students to be admitted in teacher training course and according to him, oral test is essential to assess the performance of students for admission particularly for conducting the Teacher Training Course. He submitted that the decision of the Supreme Court in T.M.A. Pai Foundation case clearly indicates that there can be oral interview and the Norms and Standards for Teacher Education Institutions prescribed by N.C.T.E. has also provided for interview by the institutions for admission of students in B.Ed. course.
15. Mr. T.R. Rajagopalan, learned senior counsel also supported the arguments of Mr.G.Masilamani, learned senior counsel and submitted that the statute permits the conduct of interview in the matter of admission of students to B.Ed. Course and since the students are admitted in teacher training institutions, to assess their capacity and capability to perform the functions of a teacher, the oral interview is necessary. He submitted that only by holding oral interview, it would be possible to select the best among the students. He also submitted that the Supreme Court has also held that interview is essential. His further submission was that the norms prescribed by the N.C.T.E. in the year 2002 are not in conformity with the decision of the Supreme Court in T.M.A.Pai Foundation case. He also referred to the decision of the Supreme Court in Islamic Academy of Education case and St.Stephen's College case and submitted that the interview is the best method of selection and the interview is one of the methods for assessing the merits of students for admission. He therefore submitted that on the basis of mere suspicion, the Committee has no power to hold that the institutions should not hold any interview at all.
16. Mr.T.Murugesan, learned Government Pleader of Pondicherry, on the other hand, referred to the unreported decision of this Court in W.P. No. 22388 and 23146 of 2004 dated 23.9.2004 and submitted that this Court has upheld the validity of a clause, namely, clause-11 framed for engineering courses which is similar to the clause 10(4) found in the order impugned and according to him, the clause-9 and the clause-10(4) challenged here would go together and since a Bench of this Court has upheld the validity of a similar clause, the petitioners are not entitled to challenge the clause-10(4) framed for B.Ed. course also. He referred to the N.C.T.E. (Form of Application for Recognition, the time limit of submission of application, determination of norms and standards for recognition of Teacher Education programmes and permission to start new course or training) Regulations, 2002 and submitted that regulations framed by the Committee are in accordance with the N.C.T.E. Regulations and the Norms and Standards for Teacher Education Institutions, 1998 which have been relied upon by the petitioners have been superseded by the N.C.T.E. Regulations, 2002 and the Committee has framed the regulations in accordance with the N.C.T.E. Regulations, 2002. He also submitted that so far as 50% of seats to be sponsored by the Government are concerned, written test has been conducted and seats have been filled up on that basis to fill up the management quota, the Association cannot be allowed to conduct interview. He further submitted to prevent manipulation in awarding marks in interview and to ensure that there is fairness and transparency in the matter of admission of students, the Committee has held that the admission should be made only on the basis of marks obtained in the qualifying test as well as in the common written examination.
17. We find that the issue raised by learned senior counsel for the petitioners is no longer res integra. The Supreme Court in T.M.A.Pai Foundation case as well as in Islamic Academy of Education case has considered the question to what extent the regulatory measures can be made regarding the educational institutions. The Supreme Court in T.M.A. Pai Foundation case, in paragraph-54 of the judgment held as under:-
" The right to establish an educational institution can be regulated; but such regulatory measures must, in general, be to ensure the maintenance of proper academic standards, atmosphere and infrastructure (including qualified staff) and the prevention of maladministration by those in charge of management. The fixing of a rigid fee structure, dictating the formation and composition of a governing body, compulsory nomination of teachers and staff for appointment or nominating students for admissions would be unacceptable restrictions".
In the same judgment, in paragraphs 58, 59 and 68, the Supreme Court also held as under:-
" 58. For admission into any professional institution, merit must play an important role. While it may not be normally possible to judge the merit of the applicant who seeks admission into a school, while seeking admission to a professional institution and to become a competent professional, it is necessary that meritorious candidates are not unfairly treated or put at a disadvantage by preferences shown to less meritorious but more influential applicants. Excellence in professional education would require that greater emphasis be laid on the merit of a student seeking admission. Appropriate regulations for this purpose may be made keeping in view the other observations made in this judgment in the context of admissions to unaided institutions."
"59. Merit is usually determined, for admission to professional and higher education colleges, by either the marks that the student obtains at the qualifying examination or school-leaving certificate stage followed by the interview, or by a common entrance test conducted by the institution, or in the case of professional colleges, by government agencies."
"60. 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 institution to provide for merit-based selection while, at the same time, giving the management sufficient discretion in admitting students. This can be done through various methods. 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 counseling 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."
18. In Islamic Academy of Education case, in paragraph-13, the Supreme Court held as follows:-
" It appears to us that this distinction has been made (between private unaided professional colleges and other educational institutions) as the judgment recognizes that it is in national interest to have good and efficient professionals. The judgment provides that national interest would prevail, even over minority rights. It is for this reason that in professional colleges, both minority and non-minority, merit has been made the criterion for admission. A reading of paragraphs 59 and 68 shows that in non-minority professional colleges admission of students, other than the percentage given to the management, can only be on the basis of merit as per the common entrance tests conducted by Government agencies. The manner in which the percentage given to the management can be filled in is set out hereinafter."
19. This Court in ALL INDIA MEDICAL AND ENGINEERING COLLEGES ASSOCIATION v. PERMANENT COMMITTEE FOR THE CONDUCT OF COMMON ENTRANCE TEST, CHENNAI (2004) 4 M.L.J.1 again considered the question of power of management in the matter of admission of students. P.K.Misra,J., in the same judgment, after referring to T.M.A. Pai Foundation case and Islamic Academy of Education case, has held as under:-
" The ratio of the decision seems to be that in case the Minority Institution has opted for the 'Merit Test' held by the State after admitting minority students on the basis of such State Test, the minority institution is to fill up other vacant seats from its quota with other students on the basis of such State Test. On the other hand, if the minority institution has opted for any 'Association Test' as envisaged under para.16 of Islamic Academy case, it can admit minority students first on the basis of such Association Test and the residuary from among the other students on the basis of such Association Test. However, there is no question of reversion of seats in respect of unfilled quota."
"It is of course that as observed by the Supreme Court in Islamic Academy case, , the right of administration includes the right to admit a student of his own choice, but as emphasized by the Supreme Court, the college in question cannot ignore merit and the selection has to be on the basis of merit alone. It may be that in a given case the college in question may refuse admission to a particular student of higher merit on some relevant grounds such as previous misconduct of such student, but any such refusal has to be on some reasonable basis and cannot be arbitrary or capricious."
" First of all, a reading of the judgment in T.M.A. Pai case (2002)8 SCC 697 leaves no room for doubt that the so called discretion of the Management of a private unaided institution to admit the students of its own choice, has been curtailed and channalized. So far as the minority institutions are concerned, of course, they have got a right to give preference to students of a particular minority for whose benefit such minority institution has been set up. But, even then, it has been repeatedly observed by the Supreme Court that a rational selection process must be devised and the admission must be on the basis of merit alone. Similarly, the Supreme Court also emphasized that admission to non-minority unaided institution has to be on the basis of merit alone. The discretion left to such institution is only to the effect that instead of following the method of selection devised by the Government, the Association of such colleges can hold their own entrance test for the purpose of finding out the relative merit of the students. Once such a merit is found in the manner and the process contemplated by the Supreme Court, the College has no discretion except to admit the students on the basis of merit."
" The right of the management to adopt their own method of finding out merit is reflected in permitting them to hold their common entrance test. After the test is held and results are published, they do not have any right to select a candidate on any basis, save and except on the basis of merit. As a matter of fact, in view of the decisions of the Supreme Court, they have a duty to admit students only on the basis of merit."
A.K. Rajan, J., after referring to the decisions of the Supreme Court in T.M.A.Pai Foundation case and Islamic Academy of Education case, held as under:-
" At the same time, this does not mean that the management has got unlimited power to admit any student of its choice. The literal meaning of 'management quota' would mean 'discretion of the management to admit or not to admit any student. But, the Supreme Court both in T.M.A. Pai Foundation case (2002)8 SCC 481 and Islamic Academy case has held that, 'merit cannot be ignored, by the management while admitting the students. That is the management can admit the students only according to merit. Therefore, the power of the management to admit any student is controlled by the judgments of the Supreme Court in the two cases, i.e., the power is conferred on the management to admit students, but it has to admit students only according to their inter se merit. According to the Supreme Court, 'merit' is nothing but the marks obtained in the examination. Therefore, students shall be admitted only on the basis of the marks obtained in the test (C.E.T.) or examination."
20. We are in respectful agreement with the views expressed by the learned Judges and hold that the management has no unlimited power to admit students and the power of the management to admit students is controlled by the judgments of the Supreme Court in T.M.A. Pai Foundation case and Islamic Academy case and the admission of students can be made only according to merit. In other words, the power of management to admit students is controlled by the judgments of the Supreme Court in the above two cases, though the management is conferred with the power to admit students but the management has to admit the students in accordance with merit.
21. The admission on the basis of merit in teacher training institutions like professional colleges is all the more important as the role of teachers than any other profession is greater as the teachers have an important role in shaping the minds of young pupils in their formative years in a proper manner and the teachers should shoulder a great responsibility than any other professionals as they are to train the students from primary school level to higher secondary school level and unless the candidates for teacher training institutes are chosen for admission on the basis of merit, the result would be that it would affect not only the teachers selected but also the pupils who are to be trained in the hands of teachers and it will have great impact in the development of the country as it is in the hands of young students, the future of our country depends. It is trite that there must be a proper trainer and if there is a proper trainer, there will be proper trainees also. Hence, merit should be the sole criterion for admission of candidates to teacher training institutions. Hence we hold that in view of the above decisions of the Supreme Court and the decision of this Court, we are unable to accept the submission of Mr.G.Masilamani, learned senior counsel that unaided minority institutions have uncontrolled power to admit students of their own choice.
22. As far as holding of interview is concerned, it is no doubt true that the Supreme Court has held in T.M.A. Pai Foundation case that the system of selection would involve both oral and written examinations with a view to ensure fairness. The Supreme Court in St. Stephen's College case also held that it would be permissible to hold oral test. However, it is seen from the affidavit filed by the petitioners in W.P.Nos. 21019 and 21020 of 2004 that affiliation has been granted to the institutions subject to the norms and standards prescribed by the N.C.T.E. At the time when the institutions were issued affiliation, it is no doubt true that the selection procedure prescribed by N.C.T.E. provided for oral interview apart from the marks secured in the qualifying examinations. However, that procedure has been modified from the year 2002 when N.C.T.E. framed new set of regulations, namely, The N.C.T.E. Regulations, 2002 by which the old regulation of the year 1998 were repealed. In the undertaking given by the institutions it is specifically provided that admission of students should be made either on the basis of marks obtained in the qualifying examinations or on the basis of entrance examination conducted by the State Government or University. A reading of the Regulations, 2002 clearly shows that the earlier system of conducting interview for admission of students has been dispensed with in the Regulations, 2002 and hence, it would be futile to rely upon the repealed regulations of the year 1998. It is also not open to the petitioners to contend that the Regulations, 2002 have no effect or force in view of the decision of the Supreme court in T.M.A.Pai Foundation case.
23. Moreover, the decision of the Committee cannot be said to be in any way unreasonable or arbitrary when it held that there is scope for manipulation and subjectivity in the matter of awarding marks at the time of interview for admitting students. We are of the view, it cannot be stated that the view of the Committee is based merely on suspicion and a learned Judge of this Court as the Chairman of the Committee has formed an opinion that there is possibility of manipulation and subjectivity if the members of Association are permitted to hold interview as part of admission process. Moreover, while exercising the power of judicial review, we are not inclined to interfere with the decision of the Committee as unreasonable or arbitrary, when it is pointed out that the regulations framed by the Committee are in accordance with the statutory rules. Further, we have already observed that in the matter of engineering courses in the state of Pondicherry a clause similar to clause 10(4) has been upheld by a Division Bench of this Court in W.P.Nos. 22388 and 23146 of 2004 dated 23.9.2004 wherein the Bench of this Court after referring to the decisions of the Supreme Court in T.M.A.Pai Foundation case and Islamic Academy of Education case, held that in view of the decisions of the Supreme Court, the petitioner could not sustain its challenge with respect to the direction given in the clause which is similar to clause-10(4). Though the decision of the Division Bench is sought to be distinguished on the ground that there is no process of interview provided for the selection in engineering courses and the admission is made only on the basis of marks obtained in qualifying test, we are of the view, when the same clause has been upheld by the Division Bench of this Court, we are bound to follow the said judgment. Moreover, the Division Bench in that case, after following the decisions of the Supreme Court, upheld the validity of a clause similar to the clause-10(4) of the order of the Committee after giving cogent reasons for the same.
24. One other submission was made that in the case of teacher training course, admission is sought not only by the students at graduate level, but also by the students at post-graduate level and if the directions of the Committee are followed, it would amount to treating the unequal as equal which is not warranted and violative of Article 14 of the Constitution of India. We are unable to accept the said submission as we are of the view that if there is some advantage in one examination, there will be some disadvantage in the other, and hence the level of inequality would be levelled evenly.
25. In so far as other clauses that are challenged in the writ petitions are concerned, they are clauses 7, 8, 10(5), 10(12), 10(15), 10(16), 10(17), 10(20), 10(21) and 10(27). As regards Clause-7 it would depend upon the result in the other writ petition filed by Pope John Paul II College of Education in W.P. No. 21771 of 2004. Further, the said college has not challenged the order of the Government reserving 50% of seats for unaided institutions in so far as admission to first year B. Ed. course is concerned. Hence, we uphold the clause-7 of the order impugned. Clause-8 is a consequential clause to clause-7. Since we uphold the clause-7, we also uphold the clause-8.
26. As far as clause 10(5) is concerned, it deals with the conduct of examination. We find that the clause is in conformity with the principles laid down by the Supreme Court in T.M.A. Pai Foundation case and Islamic Academy of Education case. Clause-10(12) deals with the publication of notification. This Court in ALL INDIA MEDICAL AND ENGINEERING COLLEGES ASSOCIATION v. PERMANENT COMMITTEE FOR THE CONDUCT OF COMMON ENTRANCE TEST, CHENNAI (2004) 4 M.L.J. 1 has directed the State Government to bear the expenditure and learned Government Pleader, Pondicherry has also submitted that the Government of Pondicherry would bear the expenditure. Therefore, the petitioners cannot be stated to be aggrieved by the clause 10(12) of the order impugned and therefore it is upheld.
27. As far as clause 10(15) is concerned, it is stated that instead of the Principal, Pope John Paul-II College of Education, Pondicherry, the Principal of Acharya College of Education, Pondicherry shall be the convenor to conduct the entrance test and for declaration of result and submission of merit list. It is not seriously objected to by the learned Government Pleader, Pondicherry. Therefore, instead of the Principal, Pope John Paul-II College of Education, Pondicherry, the Principal of Acharya College of Education, Pondicherry shall be the convenor.
28. As far as clauses 10(16), 10(17), 10(20), 10(21)and 10(27) are concerned, the validity of similar clauses with reference to the admission to professional colleges in the State of Tamil Nadu have been considered and upheld by D. Murugesan, J. in CONSORTIUM OF PROESSIONAL ARTS AND SCIENCE COLLEGES, T.N. v. PERMANENT COMMITTEE FOR THE CONDUCT OF COMMON ENTRANCE TEST and the judgment of the learned Judge has been affirmed by the Division Bench of this Court in ALL INDIA MEDICAL AND ENGINEERING COLLEGES ASSOCIATION v. PERMANENT COMMITTEE FOR THE CONDUCT OF COMMON ENTRANCE TEST, CHENNAI (2004) 4 M.L.J. 1). We have gone through both the judgments and the learned Judges after giving reasons held that the clauses are in conformity with the principles laid down by the Supreme Court in Islamic Academy of Education case. We find that the abovesaid clauses relate to the conduct of examination and the clauses are so framed to ensure that there is fairness and transparency in the conduct of examination. We hold that the Committee has not over stepped its limits in framing the abovesaid clauses.
29. One other submission was made with regard to the clause-10(18) which deals with the use of Optical Magnetic Reader sheet for answer sheet and the computer valuation. It is stated that Optical Magnetic Reader sheet is provided as answer sheet so that it would be easy to evaluate the answer sheet and it is also easy for students for answering the questions by shading. It is also stated that computer is used for evaluation which cannot be stated to be in any way objectionable in the modern age of computer. Hence, we uphold the clause-10(18) also incidentally challenged in the writ petitions.
30. Mr.G.Masilamani, learned senior counsel submitted that apart from Chairman there are two other members in the Committee and hence, secrecy should be maintained in the conduct of examination. We appreciate the apprehension of learned senior counsel and there can be no quarrel that secrecy should be maintained in the conduct of examination and in our view, the Committee has framed the regulations only to ensure that there will be secrecy in setting up of question papers as well as in the conduct of examination. Moreover, the members of the Committee are selected on the basis of the directions of the Supreme Court in Islamic Academy of Education case and the Chairman has been nominated by the Chief Justice of this Court and the Chairman, in turn, has co-opted two members in accordance with the directions of the Supreme Court and therefore it cannot be stated that the members are appointed by any outside agency. The Committee has issued the directions only to ensure fairness and transparency in the conduct of examination and to maintain secrecy in the setting up of question papers and in the conduct of examination. There are no materials to hold that secrecy would not be maintained in the conduct of examination. Hence, we are of the view that on the basis of mere apprehension of the petitioners, the regulations cannot be assailed as unreasonable.
31. In view of the judgment of Full Bench of this Court in ALL INDIA MEDICAL AND ENGINEERING COLLEGES ASSOCIATION v. PERMANENT COMMITTEE FOR THE CONDUCT OF COMMON ENTRANCE TEST, CHENNAI (2004) 4 M.L.J. 1), we make it clear that there shall be no counselling in the admission of students so far as management quota is concerned to which learned Government Pleader, Pondicherry submits that he has no serious objection.
32. In so far as WP.M.P. No. 27508 of 2004 is concerned, the petition has been filed to amend the prayer in W.P. No. 21019 of 2004. By that amendment, the petitioner seeks to challenge also the clauses 10(3), 10(4) and 10(4a) of the impugned order. The petitioner also seeks amendment of the prayer by deleting the clauses 7, 8 and 9 of the order impugned. Though the petitioner in W.P. No. 21019 of 2004 has sought for deletion of clauses 7, 8 and 9 of the impugned order, the petitioners in the other writ petitions have challenged those clauses and we have already upheld those clauses in the earlier part of this judgment. In so far as clause 10(4) of the order impugned is concerned, we have already held that a Division Bench of this Court in the matter of engineering courses in the State Pondicherry upheld the validity of a clause which is similar to clause 10(4) in W.P.Nos. 22388 and 23146 of 2004 by judgment dated 23.9.2004. In so far as clauses 10(3) and 10(4a) of the impugned order are concerned, as already observed by us, the validity of similar clauses in respect of other professional courses in the State of Tamil Nadu was upheld by a learned Judge of this Court which was also affirmed by a Division Bench of this Court as mentioned above. We therefore uphold the validity of the clauses 10(3), 10(4) and 10(4a) of the order impugned. In that view of the matter, WP.M.P. No. 27508 of 2004 is ordered.
33. In so far as WP.M.P.Nos. 28821 to 28823 of 2004 are concerned, they are filed by the third party, namely, Pope John Paul II College of Education to implead it as a party/respondent. It is stated that the petitioner/third party is necessary to decide the clause-8 of the impugned order. We have already observed that in so far as the clause-8 is concerned, it would depend upon the result of the other writ petition in W.P. No. 21771 of 2004, which we have decided by judgment of even date. However, to avoid multiplicity of proceedings the petitions are ordered impleading the third party/petitioner as a respondent in all the writ petitions.
34. In the result, we uphold all the clauses which are challenged in the various writ petitions and we do not find any justifiable reason to interfere with the order of the Committee. Consequently, all the writ petitions fail and they are dismissed. WP.M.P.Nos. 25316, 25317, 26869 and 1445 to 1447 are closed. WP.M.P.Nos. 28821 to 28823 and 27508 of 2004 are ordered. In the circumstances, the respondents would be entitled to costs of Rs. 2,500/- one set.