Ebenezer Teacher Training Institute for Women vs The State of Tamil Nadu

P. Jyothimani, J.—In all these writ petitions, the Self-financing Teacher Training Institutes as well as their Association have challenged the

constitutional validity of the impugned Government Order in G.O.(1D) No. 226 School Education (U1) Department, dated 28.08.2006, passed

by the State Government and the consequential orders of the Director of Teacher Education, Research and Training, Chennai-6, in so far as they

relate to the petitioner Institute as well as the members of the petitioner Association and for direction against the respondents not to insist on the

member Institutes to follow the reservation policy of the State Government in admission under the Management quota for Diploma in Teacher

Education course for the academic year 2006-2007.

The petitioner institutes which are Self Financing Teacher Training Institutes imparting Diploma in Teacher Education course have been

functioning from the academic year 2004-2005 and some of the Institutes have started functioning from 2005-2006. As per the procedure in

vogue, and as per the Government Order, the admission to be made for Diploma in Teacher Education course in these institutions is at the ratio of

50:50 between the Management and the Government in respect of non-minority Self Financing Teacher Training Institutions and 70:30 in respect

of Minority Unaided Teacher Training institute, which means that in respect of Non-minority Unaided institutes 50% of intake are to be filled up by

the Government through counselling following Single Window System and the remaining 50% are to be filled by the Management based on the

inter-se merit among the applicants who have applied to the respective institutes, which is called, the Management quota.

Regarding the Minority institutions, 30% of the seats are to be filled up by the Government and 70% to be filled up by the Management. For

admission to the First Year Diploma in Teacher Training course, marks obtained in +2 Examinations (Higher Secondary Examinations) is the

eligibility criterion. It is the case of the petitioners that the said ratio in admission has been maintained and as far as the seats to be filled up by the

State Government by way of counselling following Single Window System is concerned, the existing reservation policy of the State Government,

viz., 69% reservation for Backward Class, Scheduled Castes and Scheduled Tribes is being followed and in respect of the seats to be filled by the

Management under Management quota, no such reservation policy is followed and it is open to the Management to admit students based on merit.

However, it is the case of the petitioners that more or less in all the Institutes, the said 69% reservation policy has been accomplished, except in

few cases where the impossibility was due to the non-availability of students.

In the year 2006-2007, the said procedure of admission has been followed after the publication of the result of +2 Examinations and the

admission to the Management quota for the said academic year has been completed by the third week of August, 2006. As far as the filling up of

the Government seats by counselling, as per the Schedule of the Government, the said process was completed in the first week or second week of

October. After completion of the admission to the Government quota, the Management started the classes for the First Year Diploma in Teacher

Education. However, the Government has issued the impugned G.O.(1D) No. 226 dated 28.08.2006, based on which the Director of Teacher

Education, Research and Training has issued the consequential order in the first week of September, 2006, which was served on the institutes in

the second or third week of September, 2006.

In the impugned Government Order, the first respondent has stated that it was issued as per earlier G.O.Ms. No. 212 Higher Education (J2)

Department dated 18.07.2006, which was issued pursuant to the order of this Court in respect of Unaided Minority and Non-minority Engineering

Colleges to fill-up the seats under Management quota, based on the Government''s policy of reservation. It was based on the said Government

Order, the impugned order was passed with respect to the Unaided Non-minority Teacher Training Institutes directing them to follow the

reservation policy of the State Government in admission to Management quota from academic year 2006-2007 and also directing that such

admission shall be completed by 30.09.2006 and list of students so admitted shall be sent to the Director of Teacher Education, Research and

Training, Chennai, failing which, the National Council for Teacher Education (in short, ""NCTE"") will be informed to cancel the recognition granted

to the Institutions.

It is the said impugned G.O.226 along with the consequential order of the Director of Teacher Training, Research and Training, Chennai which

is challenged by the petitioners herein on various grounds, including that the orders are unlawful, arbitrary and against the law laid down by the

Supreme court. Further, G.O.Ms. No. 212 Higher Education (J2) Department dated 18.07.2006, which is referred to in the impugned

Government Order itself was passed based on the common order of this Court in W.P. Nos. 15701 and 16027 of 2006 dated 06.07.2006,

wherein this Court has issued the said directions based on the consensus reached between the State Government and the Consortium of

Engineering Colleges and that was only for that particular year in respect of Engineering Colleges, and therefore, according to the petitioners, the

said order of this Court as well as the consequential G.O.Ms. No. 212 Higher Education (J2) Department dated 18.07.2006 cannot be taken as

precedent for the impugned Government Order, since that was based on the settlement arrived at for that particular year in respect of Private

Engineering Colleges.

It is the further case of the petitioners that sharing of seats between the Government and the Institutes was held to be unconstitutional by a

Constitution Bench of the Supreme Court (consisting of Eleven Judges) in T.M.A. Pai Foundation and Others Vs. State of Karnataka and Others,

, which was subsequently clarified by a Five Judge Constitution Bench in Islamic Academy of Education and Another Vs. State of Karnataka and

Others, and again, a larger Bench consisting of Seven Judges in P.A. Inamdar v. State of Maharashtra 2005 (3) MLJ 158 has considered the

autonomy of private educational Institutions, fees structure as well as the percentage of seat sharing between the State Government and the

Management, and held that the seat sharing constitutes a serious encroachment on the autonomy of private educational Institutions and the same

cannot be held to be a regulatory measure. Therefore, according to the petitioners, when the latest Supreme Court judgement in P.A. Inamdar''s

case (cited supra) has clearly clarified the legal position and the review petition filed by the State Government is stated to have been dismissed, the

State Government cannot impose the reservation policy in respect of the seats to be filled under the Management quota and inasmuch as the

review petition filed by the State Government has been dismissed, it would be res judicata against the Government.

It is also the further case of the petitioners that the Management quota has been filled up even in July and August, 2006 for the academic year

2006-2007, but the impugned order dated 28.08.2006, came to be issued only in the first week of September, 2006, by which time, the

admission under the Management quota has been completed. It is the further case of the petitioners that in G.O.Ms. No. 212 Higher Education

(J2) Department dated 18.07.2006, the main issue was relating to seat sharing between the Government and the private Managements and the

principle of reservation was incidental.

The respondents 1 and 2 have filed a common counter affidavit in all these cases. According to the respondents, the rule of reservation is

applied uniformly in the State in all educational Institutions as per the provisions of the Tamil Nadu Backward Classes, Scheduled Castes and

Scheduled Tribes (Reservation of seats in Educational Institutions and of Appointments or posts in the Services) Act, 1993 (Tamil Nadu Act 45 of

1994) and the same is in force from 1994 and included in the IX Schedule of the Constitution of India to give protection to the State under Article

31B of the Constitution of India. This inclusion was enabled by the 76th Constitutional Amendment and the same is under challenge and pending

before the Supreme Court. According to the respondents, by insertion of Clause 5 to Article 15 of the Constitution, it enables the Government to

make any special provision of law, for the advancement of any socially and educationally backward classes of citizens and for the Scheduled

Castes and Scheduled Tribes in so far as the said provisions relate to their admission to educational Institutions, whether they are Aided or

Unaided other than the Minority Educational Institutions referred to under Article 30(1) of the Constitution of India.

The definition of ""Private Educational Institutions"" includes both Aided or Unaided and only exemption is the Minority educational institutions

as per Article 30(1) of the Constitution. As per the Amended Act No. 12 of 2006, the Scheme of Reservation followed in the State u/s 3(2) is as

follows:

(i) Backward Class : 30%

(ii) Most Backward Class

and denotified communities : 20%

(iii) Scheduled Castes : 18%

(iv) Scheduled Tribes : 1%

It is the case of the respondents that it is based on the same, G.O.(1D) No. 111 School Education (U1) Department dated 17.07.2003 was

passed providing rule of reservation to Diploma in Teacher Education course in Tamil Nadu, earmarking 69% for reserved category. The said

norm was also prescribed in the impugned G.O.226 dated 28.08.2006 for the academic year 2006-2007 following the same rule of reservation as

per G.O.111 dated 17.07.2003. It is the case of the respondents that it also emphasised to follow the same pattern of reservation as prescribed in

G.O.Ms. No. 212 Higher Education (J2) Department dated 18.07.2006. It is only based on the said Government Order, the second respondent,

the Director, has issued instructions to all private Teacher Training Institutes to follow the rule of reservation.

It is the further case of the respondents that for the past two decades, all professional courses are uniformly adopting the rule of reservation. It

is also the case of the respondents that while it is true that in P.A. Inamdar''s case (cited supra), the Supreme Court has directed the reservation

not to be followed in respect of Management quota, there is an observation to safeguard the merit of respective candidates for admission until

statutorily regulation is framed and accordingly, the process was entrusted to the Permanent Committee for admission to the Engineering Colleges

chaired by a retired Judge of this Court, which ensures the rule of reservation is to be followed apart from merit selection of students to the

professional Colleges. When the constitution of the said Permanent Committee was challenged by the Consortium of Engineering Colleges in W.P.

Nos. 15701 and 16027 of 2006, it was brought to the notice of this Court the direction of the Hon''ble Supreme Court dated 12.06.2006 that,

the practice which was adopted for the previous academic year 2005-2006, will be adopted for the academic session 2006-2007"". Thereafter,

by consensus, a settlement was arrived at between the Self Financing Engineering Institutions and the Government for seat sharing formula. It is

further denied in the counter affidavit that the impugned Government Order is violative of the fundamental rights guaranteed under the Constitution

of India.

Mr. R. Muthukumarasamy and Mr. N.R. Chandran, learned senior counsel and other learned Counsel appearing for the petitioners submitted

that the law is well settled after the Seven Judge Bench judgement of the Supreme Court in P.A. Inamdar''s case that there is no allocation or

reservation of seats in respect of the Unaided Professional Colleges. It is their further contention that the impugned Government Order which relies

on G.O.Ms. No. 212 Higher Education (J2) Department dated 18.07.2006 is the result of total misconception of the entire issues. According to

them, the said G.O.Ms. No. 212 Higher Education (J2) Department dated 18.07.2006 was only for the year 2006-2007, that too, in respect of

admission to Engineering Colleges and that was based on the consensus arrived at between the Consortium of Management of Engineering

Colleges and the Government, which was reflected in the judgement in W.P. Nos. 15701 and 16027 of 2006 and therefore, the said G.O.Ms.

No. 212 Higher Education (J2) Department dated 18.07.2006 cannot be the basis for the present impugned Government Order and the

Management''s of the present institutes were not parties to the said consortium of Management''s which entered into the consensus with the

Government. They also referred to the judgement of the learned single Judge in W.P. No. 15701 and 16027 of 2006 dated 06.07.2006, which

clearly refers to the agreement between the parties. Inasmuch as the Management of Teacher Training Institutions were not parties to the said

consensus, it will not be binding upon the petitioner Institutions and therefore, G.O.Ms. No. 212 Higher Education (J2) Department dated

18.07.2006, has no application at all. The learned senior counsel would also refer to the Division Bench judgement of this Court in Tamil Nadu

Self Financing Colleges of Education Management Association (Regd.) Vs. The State of Tamil Nadu and The National Council for Teacher

Education, , wherein the Division Bench has held that the judgement of the Supreme Court in P.A. Inamdar''s case is holding the field and

therefore, according to them, the impugned G.O.Ms. No. 226 is not valid in the eye of law.

Mr. K. Selvaraj, learned Counsel appearing for some of the petitioner Institutes, in addition, would submit that regarding the principle of

reservation, the Division Bench of this Court in a batch of cases in W.P. No. 10016 of 1993 etc., dated 26.07.1993, has directed that the

reservation of the State Government has to be followed not only in respect of free seats otherwise called Government quota, but also in respect of

Management quota and refused to interfere with the existing reservation policy of the Government even though the Supreme Court has held in

Indra Sawhney etc. etc Vs. Union of India and others, etc. etc., that the reservation in excess of 50% is impermissible. The learned Counsel has

brought to the notice of the Court that the Supreme Court, in the appeal filed against the said judgement has granted stay of reservation in excess

of 50% and also directed the Government to create 6% and 7% additional seats in medical and Engineering colleges respectively and allot the said

seats exclusively to the open competition candidates, strictly on the basis of merit in Voice (Consumer Care) Council v. State of Tamil Nadu 1995

(1) Supp. SCC 632. The learned Counsel has also brought to the notice of this Court that when the State Government has filed a petition for

modification of the said order dated 22.07.1996 to permit it to implement the provisions of Tamil Nadu Backward Classes, Scheduled Castes and

Scheduled Tribes (Reservation of seats in Educational Institutions and of Appointments or posts in the Services) Act, 1993 (Tamil Nadu Act 45 of

1994), that petition was dismissed by the Supreme Court holding that additional seats were directed to be created only as an interim measure.

Therefore, according to the learned Counsel, when that was the position and the matter is still pending before the Supreme Court, there is no point

in the respondents imposing the policy of reservation on the seats under Management quota.

Mr. N. Kannadasan, learned Additional Advocate General, while defending the impugned Government Order, would submit that inasmuch as

the Tamil Nadu Act 45 of 1994 remains valid as on today, even though the issue is pending before the Supreme Court, the principle of reservation

is in vogue in this State and therefore, it cannot be said that the Management is not bound to follow the same, which is the policy of the

Government. He would further submit that even though G.O.Ms. No. 212 Higher Education (J2) Department dated 18.07.2006 relates to the

consortium of management of Engineering Colleges, there is a clear settlement between the Management and the Government, wherein the

Management have agreed to follow the policy of reservation and therefore, according to him, the principle enunciated under G.O.Ms. No. 212

Higher Education (J2) Department dated 18.07.2006, is applicable to the facts and circumstances of the present case.

I have heard both sides as well as perused the entire records.

The impugned G.O.(1D)No. 226 School Education (U1) Department, dated 28.08.2006, which relates to the admission of students in the

Teacher Training Institutions for the year 2006-2007, is applicable to both the Government as well as Private Institutions, including the Aided and

Unaided and Minority and Non-minority Institutions. The said Government Order in effect is passed based on earlier G.O.Ms. No. 212 Higher

Education (J2) Department dated 18.07.2006, even though a reference has been made to G.O.(1D)No. 111 School Education (U1) Department

dated 17.07.2003, directing that Non-minority Unaided private Teacher Training Institutions shall follow the reservation policy of the State

Government in admitting the students in respect of the seats to be filled up under Management quota, however, stating that in respect of Unaided

Minority Institutions, the policy of reservation need not be followed.

G.O.Ms. No. 212 Higher Education (J2) Department dated 18.07.2006, which is the basis for the impugned G.O.(1D) No. 226 School

Education (U1) Department, dated 28.08.2006, has been issued by the Government in respect of admission and apportionment of seats between

the Government and the Management of Unaided Engineering Colleges. The said Government Order in its turn refers to the judgement of this

Court in W.P. Nos. 15701 and 16027 of 2006 dated 06.07.2006 wherein it was directed that the admission to the Unaided Engineering Colleges

for the academic year 2006-2007 should be made on certain conditions.

The order of this Court, viz., W.P. No. 15701 and 16027 of 2006 dated 06.07.2006, referred to in the said G.O.Ms. No. 212 Higher

Education (J2) Department dated 18.07.2006, shows that a consensus between the parties has been arrived at by the affidavit dated 23.06.2006

and 26.06.2006 filed by the petitioner in writ petition No. 15701 of 2006 and likewise, on the side of the State Government, the Commissioner of

Technical Education has filed an affidavit dated 26.06.2006 and the Secretary to Government, Higher Education has also filed an affidavit dated

27.06.2006 in W.P. No. 16027 of 2006. Based on that, settlement has been arrived at between the parties and in those circumstances, without

traversing into the legal merits, the following conditions have been issued:

The affidavits placed by the respective parties are taken on record. In terms of the settlement arrived at between the parties and as placed on

record in the respective affidavits, the following conditions are issued on the basis thereof, without the need for traversing into the legal merits as set

out hereunder:

(a) The non-minority unaided Engineering Colleges shall surrender 65 percent of the seats to the State Government;

(b) The minority unaided Engineering Colleges shall surrender 50 percent of the seats to the State Government;

(c) The State Government shall be entitled to fill up the seats surrendered as mentioned above by following the single window system based on

ranking done by the Anna University and the rule of reservation of the State Government;

(d) In the light of the order passed by the Supreme Court in SLP Nos. 9652, 9743 and 9744 of 2006, dated 12.06.2006 in P.A. Inamdar and

Ors. v. State of Maharashtra, the State Government shall adopt the procedure followed during the previous academic year 2005-2006 and

accordingly the State Government shall not insist upon the petitioners to make admission against the seats retained or held by them by following the

single window system;

(e) The admission to the Seats available to the unaided Engineering Colleges, both minority and non-minority shall be made on the basis of the

marks obtained in the common entrance test (CET) and the marks obtained in the +2 Examination;

(f) The marks obtained in the Common Entrance Test shall be from any one of the following tests conducted by:

(i)CET conducted by the Consortium

(ii)CET conducted by Anna University and

(iii)CET conducted by the AEEE or any other CET conducted by the Government or the Government agencies of the other States;

(g) The rule of reservation shall be followed in admission to management seats retained by the non-minority unaided Engineering College after

setting apart 15 percent quota of seats to NRI; and

(h) The rule of reservation shall not be applicable to minority unaided Engineering College and the procedure for admission of students as followed

in the previous year shall be followed and inter-se merit alone is the criterion, as declared by the Supreme Court in paragraph No. 132 of

Inamdar''s case.

The above directions, though based on the consensus reached between the parties, in my opinion, are nevertheless in conformity with the principle

enunciated by the Supreme Court and modulated in terms of the principles and observations contained in the judgements referred to above.

Therefore, it is clear from the judgement referred to above, that the condition to follow the rule of reservation by the Non-minority Unaided

Engineering Colleges in respect of the Management quota was based on the agreement arrived at between the parties and it related to the

admission in the Engineering Colleges for the year 2006-2007 and the Educational Institutions were not the parties to the said agreement. So, there

is no difficulty to come to the conclusion that a reference to G.O.Ms. No. 212 Higher Education (J2) Department dated 18.07.2006, which was

based on the settlement arrived at between the parties and the judgement stated above cannot be the basis for the impugned G.O.(1D) No. 226

School Education (U1) Department, dated 28.08.2006, and therefore is not legal and proper. Therefore, it is open to the petitioners to challenge

the validity of such direction to follow reservation policy in respect of Management quota in the Non-minority Self Financing Teacher Training

Institutions irrespective of the reference of G.O.Ms. No. 212 Higher Education (J2) Department dated 18.07.2006.

At this juncture, it is relevant to point out that in the case of Tamil Nadu Self Financing Colleges of Education, along with many other issues

including the surrender of number of seats to the Government, the point relating to the principle of reservation was not insisted by the Association

of Self Financing Colleges of Education, since the Management was willing to follow the rule of reservation for the year 2007-2008 and it was in

those circumstances, the issue relating to the reservation was left open. That was in Tamil Nadu Self Financing Colleges of Education Management

Association (Regd.) Vs. The State of Tamil Nadu and The National Council for Teacher Education, . The relevant provision in G.O.Ms. No. 214

dated 04.07.2007 in respect of Self Financing Colleges is as follows:

III. Reservation of seats:

(1) Reservation of seats for candidates belonging to BC, MBC/DNC, SC and ST communities will be made as per the rules and regulations of the

government i.e. SC 18%, ST 1%, MBC/DNC 20%, BC 30%, OC 31%. Admission into every College of Education shall be made strictly by

following the rule of reservation as per law in force including for the Management quota seats of Non-minority Aided Colleges and Non-minority

Self-financing Colleges.

(2) For the wards of Ex-Servicemen of Tamil Nadu origin, one seat will be reserved in each College Education.

(3) 3% of the sanctioned strength will be reserved for physically and visually challenged students in each College of Education.

The impugned order in effect implements the earlier Government Order in G.O.(1D) No. 111 School Education (U1) Department dated

17.07.2003, by which the Government has issued guidelines for admission of students for the year 2003-2004 in the Teacher Training Institutions,

including the Government Aided or Unaided, both Minority and Non-minority Institutions. In that Government Order, while including the condition

relating to the admission of students under Single Window System, it is stated that in respect of the Government Institutions, the entire seats,

regarding Aided Non-minority Teacher Training Institutions 60% of seats, regarding Aided Minority Institutions 50% of seats; regarding Unaided

Minority Institutions 30% of seats, regarding Unaided Non-minority Institutions 50% of seats must be filled up under Single Window System by

the Government by counselling method. It is further stated that the selection in that regard must be based on the marks obtained in the +2

Examinations, subject to the policy of reservation.

Further, in the said Government Order, it is stated that in respect of Management quota, in Government Aided Non-minority Institutions 40%

of seats, in Aided Minority Institutions 50% of seats, in Unaided Non-minority Institutions 50% of seats and in Unaided Minority Institutions 70%

of seats are to be filled up by the Management by making due advertisement and issuing applications in a transparent manner based on merit and

such list of admission must be approved by the Director of Teacher Education, Research and Training, Chennai. Clause 2(vii) of G.O.(1D) No.

111 School Education (U1) Department dated 17.07.2003 which is in Tamil is as follows:

Even though in Clause 2(4) of the said Government Order the reservation is stated as,

(i) Scheduled Caste : 18%

(ii) Scheduled Tribe : 1%

(iii) Most Backward Class : 20%

(iv) Backward Class : 30%

(v) Open Competition : 31%

it is relevant to point out that while mentioning about the method of admission under Single Window System in Clause 2(vii) of the Government

Order relating to the Management quota, there is no reference about the applicability of reservation and only method stated is transparency in

admission based on merit. In respect of admission of the seats under the Government quota, the same is stated to be made subject to the rule of

reservation and it is based on the said G.O.(1D) No. 111 School Education (U1) Department dated 17.07.2003, which is referred to in the

impugned G.O.(1D) No. 226 School Education (U1) Department, dated 28.08.2006, the policy of reservation is directed to be followed by the

Self Financing Institutions in respect of admission of students under the Management quota. It is also relevant to point out that the impugned

Government Order relates to the admission of students for the academic year 2006-2007 and was issued in August, 2006 and according to the

petitioners the same was communicated in the first week of September, 2006 and as per the Scheme of admission regarding the Management

quota, the petitioners have already completed the admission of students in July and August, 2006 without following the policy of reservation that

was in existence at that time. It is also not in dispute that for the students admitted for the year 2006-2007 in the first year D.T.Ed. course, the first

year examinations are yet to be conducted by the respondents.

In the above said background it is relevant to consider the issue involved in this case, viz., whether the impugned order as well as the

consequential order of the Director of Teacher Education, Research and Training, Chennai, directing the Self Financing Non-minority Institutions to

follow the Government policy of reservation in admitting the students under the Management quota, viz., 50% of the total number of seats is valid

or not?

In T.M.A. Pai Foundation and Others Vs. State of Karnataka and Others, , the Supreme Court has held that the scheme framed in Unni

Krishnan, J.P. and others Vs. State of Andhra Pradesh and others etc. etc., is unconstitutional by holding that such scheme has resulted in a

situation that the private institutions and Government institutions are indistinguishable, which would curtail all the essential features of right of

administration of a private unaided educational institution and therefore, the scheme cannot be held to be reasonable. The relevant portion of the

Eleven Judge Bench judgement of the Supreme Court is as follows:

The private unaided educational institutions impart education, and that cannot be the reason to take away their choice in matters, inter alia, of

selection of students and fixation of fees. Affiliation and recognition has to be available to every institution that fulfils the conditions for grant of such

affiliation and recognition. The private institutions are right in submitting that it is not open to the Court to insist that statutory authorities should

impose the terms of the scheme as a condition for grant of affiliation or recognition; this completely destroys the institutional autonomy and the very

objective of establishment of the institution.

The scheme in Unni Krishnan case has the effect of nationalising education in respect of important features viz., the right of a private unaided

institution to give admission and to fix the fee. By framing this scheme which has led to the State Governments legislating in conformity with the

scheme, the private institutions are indistinguishable from the government institutions; curtailing all the essential features of the right of administration

of a private unaided educational institution can neither be called fair nor reasonable. Even in the decision in Unni Krishnan case it has been

observed by Jeevan Reddy, J. At p.749, para 194, as follows:

The hard reality that emerges is that private educational institutions are a necessity in the present day context. It is not possible to do without

them because the governments are in no position to meet the demand - particularly in the sector of medical and technical education which call for

substantial outlays. While education is one of the most important functions of the Indian State it has no monopoly therein. Private educational

institutions - including minority educational institutions - too have a role to play.

It was held that the decision in Unni Krishnan case in so far as it relates to the framing of the scheme for admission and the fixing of fees was not

correct and therefore, the consequential directions given by the other authorities like UGC, AICTE, Medical Council of India were overruled.

While dealing with the right of the Government in regulating admission in private unaided professional colleges, the Supreme Court has held as

follows:

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 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 postgraduation non-professional

colleges or institutes.

The Eleven Judge Bench decision of the Supreme Court in T.M.A. Pai Foundation case, particularly paragraph 68 came to be clarified by the

subsequent Five Judge Bench in Islamic Academy of Education and Another Vs. State of Karnataka and Others, . The Supreme Court has held

that the non-minority professional colleges can be given certain percentage of seats for admission other than the percentage of seats given to the

Management for admission to be made on the basis of merit as per the Common Entrance Test conducted by the Government Agencies, thereby

holding that the yardstick applicable cannot be and need not be the same between minority and non-minority professional colleges in fixing the

percentage of seats. It was further held that in respect of the said seats allotted to the non-minority Management, if the seats could not be filled up,

the selection is not to be made among the very students of that community, but other students can be admitted, which can be based only on merit

on the basis of a Common Entrance Test. The relevant portion of the judgement of the Supreme Court is as follows:

Undoubtedly, the majority judgement makes a distinction between private unaided professional colleges and other educational institutions i.e.

schools and undergraduate colleges. The sub-heading ""Private unaided professional colleges "" includes both minority as well as non-minority

professional colleges. This is also clear from a reading of paragraph 68. It appears to us that this distinction has been made (between private

unaided professional colleges and other educational institutions) as the judgement recognises that it is in national interest to have good and efficient

professionals. The judgement 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. However, a proper reading of paragraph 68, indicates

that a further distinction has been made between minority and non-minority professional colleges. It is provided that in cases of non-minority

professional colleges "" a certain percentage of seats "" can be reserved for admission by the management. The rest have to be filled up on the basis

of counselling by State agencies. The prescription of percentage has to be done by the Government according to local needs. Keeping this in mind

provisions have to be made for the poorer and backward sections of the society. It must be remembered that, so far as medical colleges are

concerned, an essentiality certificate has to be obtained before the college can be set up. It cannot be denied that whilst issuing the essentiality

certificate the respective State Governments take into consideration the local needs. These aspects have been highlighted in a recent decision of

this Court in State of Maharashtra v. Indian Medical Assn. Whilst granting the essentiality certificate the State Government undertakes to take over

the obligations of the private educational institution in the event of that institution becoming incapable of setting of the institution or imparting

education therein. 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.

In the later judgement, viz., in P.A. Inamdar and Ors. v. State of Maharashtra 2005 (6) SCC 537, while dealing with the specific question as

to whether the Unaided Educational Institutions can be compelled by the State Government to enforce the policy of reservation, the Supreme

Court has categorically held that the State cannot insist on private educational institutions which receive no aid from the State to implement the

State''s policy of reservation or any other criterion except merit. The Supreme Court has also held that the second part of para 68 of T.M.A. Pai

Foundation judgement cannot be stated to be the law laid down by the Bench and it is only an observation or illustration. The Supreme Court has

raised a question of appropriation of quota by State on enforcement of reservation in respect of Unaided Educational Institutions. The Supreme

Court has also disapproved the Scheme evolved in Islamic Academy case to the extent it allowed the States to fix quota for seat sharing between

the Management and the States on the basis of local needs of each State. The Supreme Court has also held that in respect of enforcement of

reservation policy of the State, there is no much difference between the Non-minority and Minority Educational Institutions. The relevant portions

of the judgement of the Supreme Court are as follows:

So far as appropriation of quota by the State and enforcement of its reservation policy is concerned, we do not see much of a difference

between non-minority and minority unaided educational institutions. We find great force in the submission made on behalf of the petitioners that the

States have no power to insist on seat-sharing in unaided private professional educational institutions by fixing a quota of seats between the

management and the State. The State cannot insist on private educational institutions which receive no aid from the State to implement the State''s

policy on reservation for granting admission on lesser percentage of marks i.e. on any criterion except merit.

As per our understanding, neither in the judgement of Pai Foundation ( T.M.A. Pai Foundation and Others Vs. State of Karnataka and

Others, , nor in the Constitution Bench decision in Kerala Education Bill ( Baldeo Singh and Others Vs. The State of Bihar and Others, which was

approved by Pai Foundation ( T.M.A. Pai Foundation and Others Vs. State of Karnataka and Others, ) is there anything which would allow the

State to regulate or control admissions in the unaided professional educational institutions so as to compel them to give up a share of the available

seats to the candidates chosen by the State, as if it was filling the seats available to be filled up at its discretion in such private institutions. This

would amount to nationalisation of seats which has been specifically disapproved in Pai Foundation ( T.M.A. Pai Foundation and Others Vs. State

of Karnataka and Others, ). Such imposition of quota of State seats or enforcing reservation policy of the State on available seats in unaided

professional institutions are acts constituting serious encroachment on the right and autonomy of private professional educational institutions. Such

appropriation of seats can also not be held to be a regulatory measure in the interest of the minority within the meaning of Article 30(1) or a

reasonable restriction within the meaning of Article 19(6) of the Constitution. Merely because the resources of the State in providing professional

education are limited, private educational institutions, which intend to provide better professional education, cannot be forced by the State to make

admissions available on the basis of reservation policy to less meritorious candidates. Unaided institutions, as they are not deriving any aid from

State funds, can have their own admissions if fair, transparent, non-exploitative and based on merit.

The observations in para 68 of the majority opinion in Pai Foundation ( T.M.A. Pai Foundation and Others Vs. State of Karnataka and

Others, ) on which the learned Counsel for the parties have been much at variance in their submissions, according to us, are not to be read

disjointly from other parts of the main judgement. A few observations contained in certain paragraphs of the judgement in Pai Foundation ( T.M.A.

Pai Foundation and Others Vs. State of Karnataka and Others, ) if read in isolation, appear conflicting or inconsistent with each other. But if the

observations made and the conclusions derived are read as a whole, the judgement nowhere lays down that unaided private educational institutions

of minorities and non-minorities can be forced to submit to seat-sharing and reservation policy of the State. Reading relevant parts of the

judgement on which learned Counsel have made comments and counter-comments and reading the whole judgement [in the light of previous

judgements of this Court, which have been approved in Pai Foundation( T.M.A. Pai Foundation and Others Vs. State of Karnataka and Others, )]

in our considered opinion, observations in para 68 merely permit unaided private institutions to maintain merit as the criterion of admission by

voluntarily agreeing for seat-sharing with the State or adopting selection based on common entrance test of the State. There are also observations

saying that they may frame their own policy to give freeships and scholarships to the needy and poor students or adopt a policy in line with the

reservation policy of the State to cater to the educational needs of the weaker and poorer sections of the society.

Nowhere in Pai Foundation ( T.M.A. Pai Foundation and Others Vs. State of Karnataka and Others, ) either in the majority or in the

minority opinion, have we found any justification for imposing seat-sharing quota by the State on unaided private professional educational

institutions and reservation policy of the State or State quota seats or management seats.

We make it clear that the observations in Pai Foundation ( T.M.A. Pai Foundation and Others Vs. State of Karnataka and Others, ) in para

68 and other paragraphs mentioning fixation of percentage of quota are to be read and understood as possible consensual arrangements which can

be reached between unaided private professional institutions and the State.

...

...

...

Our answer to the first question is that neither the policy of reservation can be enforced by the State nor any quota or percentage of

admissions can be carved out to be appropriated by the State in a minority or non-minority unaided educational institution. Minority institutions are

free to admit students of their own choice including students of non-minority community as also members of their own community from other

States, both to a limited extent only and not in a manner and to such an extent that their minority educational institution status is lost. If they do so,

they lose the protection of Article 30(1).

Therefore, it is clear that the words, ""certain percentage of seats"" coined by the Supreme Court in Islamic Academy case have been clearly held

not to mean the imposing of the policy of reservation by the State Government on the Unaided Minority and Non-minority Educational Institutions.

Therefore, as per the law declared by the Supreme Court as on date, it is abundantly clear that the State Government insisting on the private

Unaided Minority or Non-minority Educational Institutions to follow the policy of reservation in respect of admission of students under the

Management quota of seats is totally arbitrary and illegal and the admission shall be made only based on merit. In view of the above said legal

position, the impugned Government Order in so far as it compels the Unaided Non-minority and Minority Institutions imparting Teacher Education

course to follow the reservation policy of the State Government in the matter of admission of students is arbitrary and unconstitutional. However,

as observed by the Supreme Court in P.A. Inamdar''s case, in the event of such Institutions voluntarily agreeing for certain seat sharing process

based on the reservation policy of the State Government to take care of weaker and poorer sections of the Society, but subject to the merit as the

main criterion of admission, the same is permissible.

The writ petitions stand allowed with the above observations. No costs. Consequently, connected miscellaneous petitions are closed.