SCA/13436/2005 1/42 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 13436 of 2005 WITH SPECIAL CIVIL APPLICATION No. 14336 of 2005 WITH SPECIAL CIVIL APPLICATION No. 14349 of 2005 WITH SPECIAL CIVIL APPLICATION No. 13659 of 2005 For Approval and Signature: HON'BLE MR JUSTICE DN PATEL ========================================= = 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================= = GSF MEDICAL & PARA MEDICAL ASSOCIATION - Petitioner(s) Versus STATE OF GUAJRAT THR' SECRETARY & 1 - Respondent(s) ========================================= = Appearance : LEARNED SENIOR ADVOCATE MR N.D.NANAVATI WITH MR MITUL K SHELAT for Petitioner No(s).: 1. LEARNED GOVERNMENT PLEADER for Respondent No(s).: 1. MR BHASKAR P. TANNA, SR.ADVOCATE ASSISTED BY MS.MAHROOK KERRAVALA, ADV.FOR TANNA ASSOCIATES for Respondent No:2. ========================================================= CORAM : HON'BLE MR JUSTICE DN PATEL Date : /08/2005 CAV JUDGMENT Rule. Learned Government Pleader Mr.A.D. Oza waives service of Rule on behalf of Respondent No.1 and Mr.Bhaskar P. Tanna waives service of Rule on behalf of SCA/13436/2005 2/42 JUDGMENT respondent No.2 In all the aforesaid petitions a common question has been raised, which is pertaining to fixation of management quota and government quota in the medical and paramedical courses at the colleges run by the petitioners. 2. It is submitted by the learned senior advocate Mr.N.D. Nanavati that the respondents have not considered the relevant facts and factors while fixing the management quota and government quota seats. It is submitted by the learned senior advocate that in the year 2003-04, a management quota fixed by the respondents was 20%. There was a challenge against the said quota and the Hon'ble Supreme Court was pleased to allow the very same petitioner in Special Civil Application No.14346/2005 to give admission upto 50% as management quota seats. This has been decided in the case of GSF Medical and Paramedical Association V/s. Association of Management of Self Financing Technical Institutes and another reported in AIR 2004 SC 1177. The petitioner in the aforesaid Special Leave Petition is a petitioner in the present Special Civil Application No.13436/2005. This was for the SCA/13436/2005 3/42 JUDGMENT academic year 2003-04. Learned Senior Advocate appearing for the petitioners has also submitted that for the next year i.e. 2004-05, the respondents fixed management quota and government quota 50:50. This formula of 50:50 worked smoothly for the entire last year. For no reason, the respondents have now fixed initially 20% as management quota and in an appeal before respondent Committee, it was fixed as 33% as management quota, against the demand of petitioners for minimum 50% vide order dated 2nd July,2005. No valid reasons have been assigned in the impugned order dated 2nd July,2005 as to why 33% is fixed as management quota. It is also submitted by the learned senior advocate for the petitioners that it is not necessary for the respondents to change the percentage of management quota every year. Respondents cannot reshuffle percentages every year and petitioners cannot be left at the mercy and whims of respondents. Every year cannot be an year of uncertainty so far as quota is concern. It is excellent to have giant's strength; but it is tyrannous to use it like a giant. Respondents should not use their power “to produce” uncertainty. In fact, it ought to be decided once for all at least for few years or at least for three years. The need of the members of the petitioner ought to have been SCA/13436/2005 4/42 JUDGMENT kept in mind by respondents as per para-19 of the Islamic Academy's case (reported in (2003) 6 SCC 697) and also as per the judgment delivered by the Hon'ble Supreme Court in the case of P.A. Inamdar and others V/s. State of Maharashtra and others reported in (2004)8 SCC 139. The phrase “their need” used in para-19 of the Islamic Academy's case judgment has been explained. It is also submitted by the learned advocate for the petitioners that at the time of recognition, the management quota and the government quota should be fixed. Once it is already fixed, it ought not to be reshuffled every year. As stated hereinabove, for the Academic Year 2003-04 and 2004-05, it was 50:50. Nothing is referred in the impugned order as to what has made change in the local need and the need of the institution. The guiding factors have already been given in the aforesaid two judgments. Since last two years, the management quota was 50%. This formula also worked very smoothly but as stated in para-2 of the TMA Pai Judgment reported in (2002)8 SCC 481, bureaucracy for its own self importance is reshuffling the ratio in the present case. The Hon'ble Supreme Court has fixed the 50% as per judgment delivered in the case of GSF Medical and Paramedical Association V/s. Association of Management of Self Financing Technical SCA/13436/2005 5/42 JUDGMENT Institutes and another reported in AIR 2004 SC 1177. 3. It is also contended by learned advocate for the petitioners that the basic reason for creating a government quota is that the reservation can be provided only in governmental institutions. The members of the petitioner association are self finance institutions and, therefore, the government quota is required to be fixed as per aforesaid two judgments namely T.M.A. Pai case and Islamic Academy's Case judgments. The government quota has to be fixed but in no case, it can be more than 50%. If the government quota exceeds 50% then the reservation, will be much more and it affects or impairs the right to establish and administer the college which includes right to admit the students. If the output of the students is to be maintained as excellent, the input (admission in a first year course) ought to be selected by the management and if more percentage of government quota is fixed, the Private Unaided Professional Colleges' output will be disturbed and it also tantamounts to violation of rights to establish and administer the college(s). Much more percentage of government quota affects the very working (like learning process, teaching process, discipline, etc.) of the college(s). It is also submitted by the learned senior advocate appearing for the petitioner that SCA/13436/2005 6/42 JUDGMENT the guiding factors for fixing quota, have been given in T.M.A. Pai judgment as well as in the Islamic Academy's case judgment like local need, need of the institution, need of the community in a particular State, the nature of professional course and like. After T.M.A. Pai Foundation and others V/s. State of Karnataka and others, reported in (2002)8 SCC 481, the management quota in a different States prevailing have been mentioned in para- 189 of the Islamic Academy's judgment reported in (2003)6 SCC 697. In para-190 of the Islamic Academy's judgment, it has been held that unless there exists an exigency, normally the institutions will have the right to admit a higher percentage of students depending upon their need. However, all such students must be admitted only on merits and, therefore, 50:50 percentage of quota were fixed in a Islamic Academy's judgment. Thus, in several States, there were less than 50% of management quota seats barring State of Tamil Nadu but the Hon'ble Supreme Court as per para-21 of the Islamic Academy's case judgment has fixed a ratio 50:50. The impugned decision of the Committee has not considered the aforesaid factors, which are enumerated in the aforesaid two judgments, especially para-190 and 192 and para-6,7 & 8 of P.A. Inamdar's case reported in (2004)8 SCC 139. There SCA/13436/2005 7/42 JUDGMENT is not a whisper in the whole impugned order as to the need of the institution and, therefore, the impugned decision dated 2nd July,2005 deserves to be quashed and set aside and minimum 50% of the management quota may kindly be awarded. 4. Learned advocate Mr.N.D. Nanavati for the petitioners submitted that the basis upon which the impugned order dated 2nd July,2005 was passed is now no longer exists because of a decision given by the Full Bench of this Court vide order dated 15th July,2005 passed in Special Civil Application No.10583/2005. Out of two major reasons in the impugned order; one is to the effect that as Common Entrance Test is not allowed, to be held, by the management association. To give fair and equal opportunity, to the students of rural area, more percentage of government quota is fixed. But by the order of the Full Bench of this Court, Common Entrance Test is allowed, to be held, by the management association and, therefore, all the students are given equal opportunity to appear in the Common Entrance Test and, therefore, the major reason given in the impugned decision, which is running throughout in the order, as a golden thread, is no more in existence and, therefore, the impugned SCA/13436/2005 8/42 JUDGMENT decision deserves to be quashed. 5. I have also heard the learned advocate Mr.D.C.Dave appearing for the petitioners of Special Civil Application Nos. 13659/2005, 14336/2005 and 14349/2005. Learned advocate Mr.D.C.Dave has also canvassed, submissions, which are referred hereinabove and has further submitted that there is a sheer non-application of mind on the part of the respondents in fixing the management quota for the petitioners in the aforesaid three petitions. Reasons assigned in the impugned order dated 2nd July,2005 have nothing to do with the facts of the petitioners in the aforesaid three petitions. The main reason given in the impugned decision is that the Common Entrance Test, which may be held by the association of management of self finance institution has not been allowed to be taken by the respondents and to give equal opportunity to the students, who are residing in a rural area, the 33% of the management quota is fixed. These reasonings are not applicable to the facts of the petitioners. The petitioners have never demanded or insisted for holding, its own, Common Entrance Test nor have they opted, for Common Entrance Test, through management association. The petitioners in the aforesaid SCA/13436/2005 9/42 JUDGMENT three petitions are ready, to give admission, to students on the basis of merit list, prepared by the State of Gujarat, which is based upon the result of 12th Standard Science Stream examination. The petitioners of aforesaid three petitions are also accepting the fees standard whatever is fixed by the State of Gujarat. The base of the petitioners for giving admission in medical and paramedical courses is the same that of government medical colleges. Whatever merit list prepared by the Government, is acceptable and on that basis alone, the petitioners are ready and willing to give admissions to students. Whatever method for admission, the government medial/paramedical colleges are adopting, the same method the petitioners are following. There cannot be a better transparent method for admission available with the petitioners than what is stated hereinabove . In such a situation, government's interference is an unnecessary and unproductive load on the back of the petitioners in the form of governmental control. It thwarts, the process of education and is requires to be removed as per para-2 of the T.M.A. Pai's judgment reported in (2002)8 SCC 481. 6. It is vehementally submitted by the learned advocate Mr.D.C.Dave for the petitioners that petitioner of SCA/13436/2005 10/42 JUDGMENT Special Civil Application No.13659/2005 namely Charotar Arogya Mandal is admitting the students in its medical college on the basis of marks in Physics, Chemistry, Biology but excluding the marks in Mathematics in the 12th Standard Science Stream Examination, as per Medical Council of India Regulations, whereas, the government in it an old, typical, traditional style, is compeling the management to give admission, to students even adding the marks of Mathematics. This had, in past, become a subject matter of dispute and the matter has gone to the Hon'ble Supreme Court and the Hon'ble Supreme Court in Special Leave Petition (Civil) No.12294/2004 (against the order of Division Bench in L.P.A. No.1355/2004) had permitted the petitioner of Special Civil Application No.13659/2005 to fill up the management quota on the basis of methodology evolved by the said petitioner. The respondents in the case of the aforesaid three petitions ought to have fixed minimum 50% of the management quota seats. In fact, looking to the cause for fixing the government quota, as per the T.M.A. Pai's judgment and Islamic Academy's judgment, it appears that it was to create a reservation in the Private Unaided Institutions. Otherwise the reservation in a Private Institution is not permissible but such reservation can never exceed 50%. SCA/13436/2005 11/42 JUDGMENT 7. The learned advocate for the petitioners Mr.D.C.Dave has argued the case of the petitioners at a very high level and has submitted a theory that it is like fundamental rights. Citizens are not surrendering the fundamental rights but rest of the rights are surrendered to the State but the fundamental rights are so fundamental to the citizens that the citizens have retained them. Likewise, all the seats are belonging to the management quota in the Private Unaided Institution but looking to the local need and the need to uplift, down trodden class, some government quota has to be craved out. On the basis of this theory also, government quota can never exceeds 50%. In fact, in the institution like aforesaid three petitions, it ought to be not less than 75%. If the meritorious standard of output is to be maintained, the input (admission in the first year M.B.B.S. Course, BDS Course, etc.) ought to be kept as meritorious as possible. More the reservation, probability of getting meritorious students will be reduced. Even in the present petitioners' case, management quota is upto 50% in the last year. There is no change in the need of the society (local need) nor there is change in any other relevant factors. It has SCA/13436/2005 12/42 JUDGMENT become a fashion for the respondents to alter every year the management quota. Petitioners cannot be throne at the mercy, whims, caprice and sweet will of the respondents and that too every year. Every year petitions are bound to be filed by the petitioners. Before the previous year matters are decided, next year batch of litigations, come before the Court. There is no need to change every year the management quota. The change is required, whenever necessary. The bureaucracy ought not to be allowed to show their self importance, which is deprecated in para-2 of TMA Pai's case judgment. 8. It is also submitted by the learned advocate Mr.D.C. Dave appearing for the petitioners that the reasons given in the impugned decision dated 2nd July,2005 are not applicable to the present petitioners. The decision making process in arriving at impugned decision is legally not tenable and is vitiated by considering, the irrelevant facts which are not applicable to the petitioners. Adequate opportunity of being heard was also not given to the petitioners before Committee. Learned advocate for the petitioner has stated in various annexures of the petitions and pointed out that several letters were written by the petitioners, especially, in SCA/13436/2005 13/42 JUDGMENT Special Civil Application No.13659/2005 and has pointed out that on 2nd July,2005, it was practicably impossible for the petitioners because of heavy rain at Anand district, to reach to the Committee at Ahmedabad, and, therefore, further time was sought for vide letter dated 2nd July,2005 but without affording an opportunity of being heard, respondent Committee took a decision on 2nd July,2005. This decision was never conveyed to the petitioners upto 7th May,2005 and, therefore, a letter dated 5th July,2005 was also written for being given an opportunity of being heard. Similarly, letter dated 6th July,2005 was also written and thereafter decision dated 2nd July,2005 was came to be known from newspapers. All these letters are annexed in the memo of the petition and, therefore also, the impugned decision deserves to be quashed and set aside. 9. I have heard the learned counsel appearing for the Committee, who has mainly submitted that the Committee has taken decision on 2nd July,2005. Looking to the need of the locality and the need of the institution, on the basis of various factors, a detailed reasoned order dated 2nd July,2005 have been passed. It is also submitted by the learned advocate for the Committee that there is no SCA/13436/2005 14/42 JUDGMENT fix rigid formula for fixing management quota as per T.M.A. Pai and Islamic Academy's judgments. Later development of an order passed by Full Bench of this Court in Special Civil Application No.10583/2005 with Civil Application No.5779/2005 may not be considered for the change of the impugned order. It is also submitted by the learned advocate for the Committee that very little is the scope for the judicial review. This Court is not sitting in an Appeal against the order passed by the Committee. Learned advocate for the Committee has also relied upon several authorities for the scope of judicial review and they are as under:- (i) (2002)3 SCC 496 (ii) (1994)6 SCC 651 (iii) (1990)2 SCC 746 (iv) (1993)2 SCC 299 (v) (2002)10 SCC 226 (vi) (1996)3 SCC 709 (vii) (1997)7 SCC 251 (viii) (2002)6 SCC 252 10. I have also heard the Government Pleader, who has also submitted that looking to the local need and keeping in mind parameters referred in T.M.A. Pai and Islamic Academy's case, the government has fixed the management quota at 25%. In an appeal, as per para-19 of the Islamic Academy's judgment, the respondent Appellate Committee SCA/13436/2005 15/42 JUDGMENT has reshuffled the quota and has fixed at 33% as management quota. The same is true, correct and legal and, therefore, these petitions may not be entertained by this Court. 11. Having heard the counsels for both the sides at length and keeping in mind the facts and circumstances of the cases and the judicial pronouncements in various cases, which are cited by the learned advocates for both the sides, I hereby quash and set aside the order dated 2nd July,2005 passed by the respondent Committee, mainly for the following facts and reasons :- (i) The respondents have not considered the most important parameters for fixing the quota namely, the need of the institution itself. Para-192 of the judgment delivered in Islamic Academy of Education and another V/s. State of Karnataka and others, reported in (2003)6 SCC 697, reads as under :- “192. The percentage of seats will also depend upon the need of the community in a particular State as also the need of the institution itself. The nature of the professional course would also have relevance. All these factors must be taken into consideration by the appropriate committee or body so long a statutory regulation is not SCA/13436/2005 16/42 JUDGMENT framed in this behalf.” (Emphasis supplied) Similarly, as per para-19 of Islamic Academy's case judgment, the need of the Institution ought to be evaluated by the State. The relevant part of para-19, reads as under :- “19. ..... 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. .... “ (Emphasis supplied) There is not a whisper in the whole impugned order dated 2nd July,2005, which reveals the facts that while taking a decision or in the course of decision making process, the aforesaid vital aspect has ever been thought of. (ii) The relevant part of para-68 of judgment delivered in T.M.A. Pai Foundation and others V/s. State of Karnataka and others, reported in (2002)8 SCC 481, reads as under :- SCA/13436/2005 17/42 JUDGMENT “68. ... 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 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 aforesaid para-68 has been divided into seven parts for its analysis in the judgment delivered in Islamic Academy's case in para-12 thereof. The relevant part of para-12 of Islamic Academy of Education and another V/s. State of Karnataka and others, reported in (2003)6 SCC 697, reads as under:- “12. ...... Fourthly, it is permissible for the University or the Government at the time of granting recognition to require an unaided institution to provide for merit-based admission SCA/13436/2005 18/42 JUDGMENT while at the same time giving the management sufficient discretion in admitting students. Fifthly, for unaided non-minority professional colleges certain percentage of seats can be reserved for admission by the management out of those students who have passed the common test held by itself or by the State/University and for applying to the college/ University for admission, while the rest of the seats may be filled up on the basis of conselling by the State agency. Sixthly, the provisions for poorer and backward sections of the society in unaided professional colleges are also to be provided for. Seventhly, the prescription for percentage of seats in unaided professional colleges has to be done by the Government according to the local needs. A different percentage of seats for admission can be fixed for minority unaided and non-minority unaided professional collegs.” Thus, the aforesaid two paragraphs prescribes the need of government quota seats in the Private Unaided Professional Colleges. Generally, the reservation of seats will be in the government institution but to give benefit of reservation to the poorer and backward sections of the society or to uplift the socially and economically backward persons, the government quota has to be fixed for giving admissions in the medical and paramedical colleges. Looking to the aforesaid base for fixing the government quota and the need to preserve and maintain the autonomy of the institution, for achieving excellence in education and in fact for maintaining the right of the institution to establish and administer the SCA/13436/2005 19/42 JUDGMENT institution, such reservation normally cannot exceed 50% in Private Unaided Professional Colleges or Institutions. As per para-50 of the judgment delivered in T.M.A. Pai Foundation and others V/s. State of Karnataka and others, reported in (2002)8 SCC 481, right to establish and administer the institutions have been explained and has been interpreted to include, the right to admit the students. The said para, reads as under:- “50. The right to establish and administer broadly comprises the following rights: (a) to admit students; (b) to set up a reasonable fee structure; (c) to constitute a governing body; (d) to appoint staff (teaching and non- teaching); and (e) to take action if there is dereliction of duty on the part of any employees.” In paragraphs- 51 & 52 of the T.M.A. Pai's judgment, it has been clarified that the governmental domination on the educational process must be resisted. The “State aid”