1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CIVIL APPLICATION NO. 7197 OF 2009 IN WRIT PETITION NO. 4897 OF 2008 Pravara Rural Education Society At Pravara Nagar, Tq. Rahata, District Ahmednagar Through its Additional Secretary. .. Applicant ( Orig. Petitioner) Versus 1 The State of Maharashtra and others .. Respondents (Orig. Respondents) Shri V. D. Hon, Advocate for the Applicant. Shri N. B. Patil, A. G. P. for the Respondents. CORAM : B. R. GAVAI & N. D. DESHPANDE, JJ. DATE : 22nd July, 2009. ORAL ORDER [ Per B. R. Gavai, J.] : 1. By way of present application, the applicant is seeking direction to the respondent No. 3 not to fill in 20 per cent of the seats for M. Pharm course, in the college run by the petitioner and 2 for permission to the petitioner to fill in said 20 per cent seats for academic year 2009-2010. 2. The main petition has been filed in this Court praying for quashing and setting aside, Government notification dated 13th August, 2008 pertaining to the admission of the M. Pharm course, on the ground that the notification which does not prescribe for management quota was contrary to the law laid by the Apex Court in the case of TMA Pai Foundation Vs. State of Karnataka, reported in 2002 AIR SCW 4957 and another case Islamic Academy of Education Vs. The State of Karnataka, reported in 2003, AIR SCW 4240 and P. A. Inamdar Vs. State of Maharashtra reported in 2005, AIR SCW 3923. 3. In the present year also, the notification pertaining to the admission to M. Pharm course is published, wherein management quota is not described, which require the petitioner to file the present civil application. We have heard Shri Hon learned counsel for the petitioner and Shri N. B. Patil learned Assistant Government Pleader for the respondents. 4. Shri Hon learned counsel appearing for the petitioner submits that Apex Court in the case of TMA Pai Foundation Vs. State of Karnataka, reported in 2002 AIR SCW 4957 and in the case of Islamic Academy of Education Vs. The State of Karnataka, reported in 2003, AIR SCW 4240 has clearly held that, while majority of the seats had to be filled up by the State 3 Government or university, only on the basis of merit, some percentage of seats are required to be kept to be filled up by the management. He submits that in the notification for admission to M. Pharm issued by the State Government, no seats are kept for the management and as such, said notification is contrary to the law laid down by the Supreme Court in the judgments cited supra. He further submits that in so far as other professional courses other than the M. Pharm are concerned, management is given liberty to fill in 20 per cent quota of seats. 5. Shri N. B. Patil learned A. G. P. vehemently opposed the application. He submits that in pursuance to the directions issued by the Division Bench of this Court in the case of Forum Against Commercialisation of Education & 15 ors. Vs. State of Maharashtra & 2 ors. Public Interest Litigation No. 93 of 2006, the Division Bench of this Court had directed the Admission Monitoring Committee to decide the representations filed by the petitioners therein. It is submitted that in accordance with representations made, Admission Monitoring Committee has decided to either permit the private management to fill in the entire seats by holding their own Common Entrance Test or to opt for 100 per cent seats to be filled on the basis of merit in the Central Entrance Test conducted by the State Government. 6. We find that the issue is no more res-intigra. The Apex Court in the case of TMA Pai Foundation Vs. State of Karnataka has observed, thus : 4 "68. It would be unfair to apply the same rules and regulations regulating admission to both aided and unaided professional institutions. It must be borne in mind that unaided professional institutions are entitled to autonomy in their administration while, at the same time, they do not forgo 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 percentage 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." The Bench of learned Five Judges of Apex Court in the case of Islamic Academy of Education Vs. The State of Karnataka, reported in 2003, AIR SCW 4240 has by a majority view 5 reiterated this position in paragraph No. 12 of the Judgment. It is thus clear that Apex Court has held that, it will be permissible for the University/Government at the time of granting the permission to require that management, will provide for merit based selection, while at the same time giving management sufficient discretion for admitting students. It has further been held that this can be done by various methods. It has further been observed that certain percent of seats can be reserved to be filled in by management out of those students having passed common entrance test held by the institutions or by the State/University. It has further been observed that prescription of percentage has to be done by the Government according to the local needs and different percent can be reserved for minority unaided and non minority unaided professional colleges. 7. Undoubtedly the M. Pharm course is a professional course. In view of the aforesaid judgment of the Apex Court in the case of TMA Pai Foundation Vs. State of Karnataka and in the case of Islamic Academy of Education Vs. The State of Karnataka, it is incumbent upon the State Government to keep a certain percentage of seats which can be called as "management quota" to be filled in by the management, while rest of the seats are to be filled in directly on the basis of merit. It is however, necessary that the students who are to be admitted by the management must have passed the Common Entrance Test held by the management or by the State. 6 8. The reliance placed by the learned A. G. P. on the judgment of Division Bench of this Court in Public Interest Litigation No. 93 of 2006, is without substance. In the said case, the grievance of the petitioner was that in M. Pharm courses run by private management, the seats were being filled by the private management without merits, by taking huge donations and exorbitant fees. The stand taken in the said case before the Division Bench, by the State Government was that, in view of the judgment of the Apex Court in the case of TMA Pai Foundation Vs. State of Karnataka and Islamic Academy of Education Vs. The State of Karnataka, the non aided private education institutions have right to establish and administer education institutions of their choice and that right includes right to grant admission. However, Division Bench while accepting statement on behalf of the State Government, that in so far as the admissions to M. Pharm course in the Government and Government aided colleges concerned, would be made on single window basis, granted liberty to the petitioner therein to make representations before the Admission Monitoring Committee. The Admission Monitoring Committee was directed to decide such representations as expeditiously as possible. We are unable to accept the contention of the learned A. G. P. that in pursuance to the judgments cited supra, the Admission Monitoring Committee has decided either to permit management to fill the seats entirely on their own or to accept the 100 per cent admission by the State Government. We feel that the decision of the said Committee is totally in contravention to the law laid down by the Apex Court in 7 the cases cited supra. It is neither permissible for the management to fill in 100 per cent seats on their own or for the Government to fill in 100 per cent seats without providing management quota. We are constrained to say that the decision of the Admission Monitoring Committee is in total mis- interpretation of the law laid down by the Apex Court. 9. Though, we are aware that the interim relief claimed in the present application is almost of a mandator nature which can normally be granted only in exceptional cases. Since we find that the stand taken by the Government and the Admission Monitoring Committee is totally in contravention to the law laid down by the Supreme Court, we are inclined to grant the said relief. We are also conscious of the fact that, it is not permissible for us to fix as to how much per cent should be a management quota and as held by the Apex Court, it is for the State Government to decide taking into consideration the local needs. However taking into consideration that in all other professional courses 20 per cent of the seats have been earmarked as management quota, we find that it will be appropriate in the present case also to permit the present petitioner to fill 20 per cent of the seats as a management quota. However, it is clarified that only such of the students who have passed the minimum eligibility criteria i. e. Common Entrance Test conducted by the State Government would be entitled to be admitted against the management quota. 10. Civil application, therefore, is allowed as per prayer Clause 8 "A", with further directions that the seats will be filled in by the management in the management quota would be only from such candidates who have passed the Common Entrance Test conducted by the State Government. 11. Authenticated copy be supplied to the learned A.G.P. to act upon. [ N. D. DESHPANDE, J.] [ B. R. GAVAI, J.] bsb/July 09