HIGH COURT OF UTTARANCHAL AT NAINITAL (Court’s order whether the case is or not approved for reporting.) (Chapter VIII Rule 32 (2)(b) Description of the case. W.P. No. 478/06 (M/S) Smt. Rita Sharma and others. Vs State of others Approved for reporting. Not approved for reporting Date of decision 10.08.2006 Initial of Judge IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL WRIT PETITION NO.478 (MS) OF 2006 1. Smt. Rita Sharma, D/o late Shri S.R. Sharma, R/o 88/85, Mohalla, Nilkhudana, Jwalapur, Haridwar, District-Haridwar. 2. Kamal Nayan Semwal, S/o Shri Rameshwar Prasad Semwal, R/o Village Shirwa, Post Office Parkandi, District-Redraprayag. 3. Umesh Chandra Bhatt, S/o Shri Krishna Ballabh Bhatt, R/I Vilalge Bhatwari, Post Office Bhatwari, District-Rudraprayag. 4. Dikshant Kumar, S/o Shri Ajit Prasad, R/o Village & Post Rohalki Kishanpur, Near Bahadarabad, District-Haridwar. 5. Gopal Singh Bhandari, S/o Shri Darban Singh Bhandari, R/o Sarvapriya Viha, Behind Divyayog Mandir, Kankhal, District-Haridwar. 6. Manoj Pratap Singh, S/o Shri Kirat Singh, R/o C/o Master Sushil Kumar, Peeth Bazar, Bahadarabad, District-Haridwar. 7. Kishore Ram, S/o Shri Kishan Ram, R/o New Subhash Nagar, Haridwar. District-Haridwar. ………….Petitioners. Vs. 1. State of Uttaranchal, through Secretary, Education, Civil Secretariat, Uttaranchal, Dehradun. 2. H.N.B. Garhwal, Unviersity, Srinagar, Garhwal, through its Registrar. 3. Sita Devi Memorial Institute of Education & Technology, Idgah Road, Jwalapur, Haridwar, through its Managing Director. ………..Respondents. Date: 10.08.2006 Hon’ble Rajesh Tandon, J. Heard Sri Alok Singh, Sr. Advocate, assisted by Sri Shailendra Singh Chauhan, Advocate for the petitioners, Sri L.P. Naithani, Sr. Advocate, appearing on behalf of University, Sri N.B. Tiwari, Additional Advocate General, assisted by Sri J.P. Joshi, Advocate for the respondents no. 1 and Sri Ramji Srivastava, counsel for the respondent no.3. By the present writ petition the petitioners have prayed for a writ of certiorari quashing the press note dated 30th September, 2005 (Annexure –9 to the writ petition) issued by the Secretary Higher Education, Govt. of Uttaranchal, Dehradun respondent no.1 by which Dr. V.C. Upreti was appointed as a nominee for counseling as well as for a writ of mandamus directing the respondents to appoint the counseller, who will conduct the counseling of petitioners for B.Ed. course in Sita Devi Memorial Institute of Education and Technology, Haridwar forthwith. FACTUAL MATIX OF THE CASE. Briefly stated, according to the case of the petitioners, they are graduate from the recognized University and are qualified to get admission in the B.Ed. courses after passing the Entrace Examination. As will appear from the record of the case that Sita Devi Memorial Institute of Education and Technology, was established in the year, 2005 and the same was affiliated with H.N.B. Garhwal University, Srinagar, Garhwal. The Institute is also approved by the National Council For Teacher Education Jaipur (NCTE Jaipur). The petitioners have submitted that according to the policy of the State Government 50% of the seats will be reserved for the State Government Quota and remaining 50% will be filed up by the Committee of Management. The Institution was allotted hundred seats for B.Ed courses in accordance with the government policy. Accordingly the University got published an advertisement in the newspaper inviting applications for admission in B.Ed course, 2005 through Common B.Ed Entrance Examination. In pursuance of the aforesaid advertisement, all the petitioners appeared in the Common B.Ed. Entrance Examination, 2005 conducted by the University and subsequently the result was declared on Internet. According to the case of the petitioners, they obtained the marks and were qualified in the merit list conducted by the Common Entrance Test known as C.E.T. On 23rd August, 2005, according to the case of the petitioners, the institution/respondent no. 3 issued an advertisement in Hindi daily newspaper “Amar Ujala”, inviting application forms for admission of management quota in B.Ed. Course in the institution/respondent no. 3 among the candidates, who had appeared and passed the Common Entrance Examination, 2005 conducted by the University. Petitioners obtained the prospectus and application form and deposited requisite fee and submitted their application forms within the prescribed period and merit list of the candidates was prepared. The names of the petitioners were shown in the merit list. However, thereafter, the petitioners approached the office of the respondent no. 3 with regard to the commencing of the classes, then the petitioners were informed that the same will be done only after the counseling of the petitioners by the counseller appointed by the State Government and the petitioners will be ensured about the counseling later on. He has requested for the appointment of the counseller on 21.10.2005. The letter given by Smt. Anju Sharma is quoted below:- “fo"k;%& ch0,M0 ikB~;dze esa izcU/kdh; dksBs dh lhVksa dh dkmalfyax gksrq izfrfuf/k ukfer djus ds fy;sA Ik=koyh 20-709/XXIV (7) 2005. egksn;] vkidks voxr djkuk gS fd lhrk nsoh eseksfj;y bafLVV~;wV vkWQ ,twds’ku ,.M VSDuksykSth Tokykiqj gfj}kj esa ch0,M0 ikB~;dze gsrq izcU/kdh; dksVs dh lhVksa dh dkmalfyax gsrq 'kklu }kjk viuk izfrfuf/k ukfer djuk vko’;d gSA vr% Jheku th ls vuqjks/k gS fd dkmalfyxa gsrq viuk izfrfuf/k 'kh?kz ukfer djus dh d`ik djsaA Hkonh; Jhefr vatw 'kekZ” Later, on 30th April, 2006, Secretary Higher Education. Government of Uttaranchal, Dehradun issued a press note in Amar Ujala inviting applications from management quota for counseling. Press not was issued to the following effect:- “izcU/kdh; dksVs dh 50 izfr’kr lhVksa ij izos’k izfdz;k izkjEHk u gksus ds dkj.k f’k{k.k dk;Z izkjEHk ugha gks ik jgk gS A vr% Nk= fgr dks /;ku esa j[krs gq, gseorh uUnu cgqxq.kk x<+oky fo’ofo|ky; ds lEc) laLFkkvksa esa izcU/kdh; dksVs dh lhVksa ij izos’k ds fy, ftu vH;fFkZ;ksa }kjk iwoZ esa fofHkUu LofoRr iksf"kr laLFkkvksa esa vkosnu fd;k x;k gS] mudkS bl foKkiu ds ek/;e ls lwfpr fd;k tkrk gS fd os laLFkkvksa ds uke] ftuesa muds }kjk iwoZ esa vkosnu fd;k x;k gS] ojh;rk dze ds vuqlkj fuEukafdr izk:Ik esa O;fDrxr @ jftLVMZ @ LihM iksLV ls fnukad 07 ebZ] 2006 rd dqylfpo] gseorh uUnu cgqxq.kk x<+oky fo’ofo|ky;] Jhuxj ¼x<+oky½] mRrjkapy dks miyC/k djk nsa%& 1& vH;FkhZ dk uke%& 2& vH;Fkh dk ch0,M0izos’k ijh{kk dk vuqdzekad%& 3& vH;FkhZ dk ch0,M0 izos’k ijh{kk dk izkIrkad%& 4& oxZ ¼dyk@okf.kT;@foKku½ 5& laLFkkvksa ds uke] ojh;rk dze esa ¼ojh;rk dze esa 1 ls ysdj ftruh laLFkkvksa esa futh laLFkkvksa dh ,lksfl;s’ku }kjk izdkf’kr foKkiu ds vuqdze esa iwoZ esa vkosnu fd;k gS½A 6& izos’k izfdz;k LofoRr iskf"kr laLFkkvksa }kjk gh lEikfnr dh tkuh gSA fo’ofo|ky; }kjk ukfer izfrfuf/k;ksa ds }kjk vuqeksfnr gksus ds mijkUr Nk=ksa dks izos’k ds fy, lwpuk laLFkkvksa dh ,lksfl;s’ku }kjk lewfgd :Ik ls lekpkj&Ik=ksa esa izdkf’kr dh tkuh gksxh] ftlesa Nk=ksa dks izos’k ds fy, mfpr le; fn;k tk;sxkA” uksV& fu/kkZfjr frfFk ds mijkUr fodYi&i= izkIr gksus ij Lohdk;Z ugha gksxkA bl lEcU/k esa tkudkjh gsrq nwjHkk"k la[;k 0&1346&252143 ,oa 252391 ij Hkh lEidZ fd;k tk ldrk gSA” It may be pointed out that the Hon’ble High Court has framed a Committee headed by Justice V.N. Mehrotra. While filing the writ petition, interim order was passed on 6th May, 2006 permitting the petitioners to appear in the counseling scheduled to be held subject to the final result of the writ petition. While passing the interim order reference of the committee was also given, which was appointed by the Hon’ble the Chief Justice. Reference of Special Appeal Against the order dated 6th May, 2006, the respondents have filed a Special Appeal. The Special was disposed of by the Division Bench with the following directions:- “8. Sri Naithani, the learned Senior Counsel for the appellants submits that the direction contained in the interim order runs counter to the dictum of the apex Court in the case of Islamic Academy of Education and another Vs. State of Karnataka and others reported in (2003) 6 SCC 697. 9. Sri Alok Singh, the learned, Senior Counsel for the respondents 1 to 7 and Sri Ramji Srivastaca, the learned counsel for respondent no. 8 could not dispute that the admissions to the colleges have to be in accordance with the directions of the apex Court in the case of Inslamic Academy of Education and another Vs. State of Karnataka which was explained in the case of P.A. Inamdar and others Vs. State of Maharashtra and others reported in (2005) 6 SCC 537. 10. In this view of the matter, the impugned interim order dated 06.05.2006 is substituted by the following order: “The petitioners shall be provisionally permitted to appear in the counseling. The entire exercise for their admission shall be strictly in accordance with the dicta of the Apex Court in the case of Islamic Academy of Education and another Vs. State of Karnataka and other reported in (2003) 6 SCC 697, P.A. Inamdar and others Vs. State of Maharashtra and others reported in (2005) 6 SCC 537 and State of Maharashtra Vs. Sant Dnyaneshwar Shikshan Shstra Mahavidyalaya and others reported in 2006 AIR SCW 2048. The admission of the petitioners, if any, shall be subject to the final decision of the writ petition.” 11. As the writ petitioners, who are students are running against time, we deem it proper to direct an out of turn hearing of the writ petition. 12. Sri Naithani, the learned Senior Counsel for the University and Sri Subhash Upadhyaya, the learned Sanding Counsel for the State undertake to file counter affidavit on behalf of the University and the State within three days. 13. We, therefore, direct the writ petition the posted for final hearing before the learned Single Judge on 16.06.2006. 14. With the above order, the Special Appeal stands disposed of. 15. Consequently, CLMA No. 6857 of 2006 also stands disposed of.” The Division Bench in special appeal has directed for deciding the matter in accordance with the judgment of the Apex Court in State of Maharashtra Vs. Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya and others 2006 AIR SCW 2048 , P.A. Inamdar and others Vs. State of Maharashtra and others (2005) 6 SCC 537, Islamic Academy of Education and another Vs. State of Karnataka and others reported in (2003) 6 SCC 697, Brahmo Samaj Education Society Vs. State of West Bengal and others, T.M.A. Pai Foundation Vs. State of Karnataka. About Right to Education Right to education has been recognized by the Apex Court from the time when the Apex Court has pronounced the judgment of Uni Krishanan Vs. State of A.P. (1993) 1 SCC 645 to the following effect:- “166. In Bandhu Mukti Morcha (1984) 3 SCC 161 this Court held that the right to life guaranteed by Article 21 does taken in “education facilities”. (The relevant portion has been quoted hereinbefore.) Having regard to the fundamental significance of education to the life of an individual and the nation, and adopting the reasoning and logic adopted in the earlier decisions of this Court referred to hereinbefore, we hold, agreeing with the statement in Bandhua Mukti Morcha that right to education is implicit in and flows from the right to life guaranteed by Article 21. That the right to education has been treated as one of transcendental importance in the life of an individual has been recognized not only in this country since thousands of yeas, but all over the would. In Mohini Jain (1992) 3 SCC 666the importance of education has been duly and rightly stressed. The relevant observations have already been set out in para 7 hereinbefore. In particular, we agree with the observation that without education being provided to the citizens of this country, the objectives set forth in the Preamble to the Constitution cannot be achieved. The Constitution would fail. We do not think that the importance of education could have been better emphasized that in the above words. The importance of education was emphasized in the ‘Neethishatakam’ by Bhartruhari (First Century B.C.) in the following words: “Translation: Education is the special manifestation of man: Education is the treasure which can be preserved without the fear of loss; Education secures material pleasure, happiness and fame; Education is the teacher of the teacher; Education is God incarnate; Education secures honour at the hands of the State, not money. A man without education is equal to animal.” Constitutional Mandate Education has been included in List No. 1 Entry 66 and List 1 Entry 25 of the 7th Schedule. The same is quoted below:- “25. Maritime shipping and navigation, including shipping and navigation on tidal waters; provisions of education and training for the mercantile mariner and regulation 0f such education and training provided by States and other agencies. 66. Co-ordinance and determination of standards in institutions for higher education or research and scientific and technical institutions”. Article 41 deals with the education, the same is quoted below:- “41. Right to work, to educate and to public assistance in certain cases.—The State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want.” Background from T.M.A. Pai Foundation In T.M.A. Pai Foundation Vs. Sate of Karnataka (2002) 8 SCC 481, it has been held as under:- “27. In the case of Mohini Jain Vs. State of Karnataka (1992) 3 SCC 666 the challenge was to a notification of June, 1989, which provided for a fee structure, whereby for government seats, the tuition fee was Rs. 2000 per annum and for students from Karnataka, the fee was Rs. 25,000 per annum, while the fee for Indian students from outside Karnataka, under the payment category, was Rs. 60,000 per annum. It has been contended that charging such a discriminatory and high fee violated constitutional guarantees and rights. This attack was sustained, and it was held that there was a fundamental right to education in every citizen, and that the State was duty-bound to provide education, and that the private institutions that discharge the State’s duties were equally bound not to charge a higher fee than the government institutions. The Court then held that any capitation fee and would, therefore, be illegal. The correctness of this decision was challenged in Unni Krishnan case, where it was contended that if Mohini Jain ratio was applied, the educational institutions would have to be closed down, as they would be wholly unviable without appropriate funds, by way of tuition fees, from their students. 28. We will examine the decision un Unni Krishnan case. In this case, this Court considered the conditions and regulations, if any, which the State could impose in the running of private unaided/aided, recognized or affiliated educational institutions conducting professional courses such as Medicine, Engineering etc. The extent to which the fee could be charged by such an institution, and the manner in which admissions could be granted was also considered. This Court held that private unaided recognized/affiliated educational institutions running professional courses were entitled to charge a fee higher than that charged by to government institutions for similar courses, but that such a fee could not exceed the maximum limit fixed by the State. It held that commercialization of education was not permissible, and “was opposed to public policy and Indian tradition and therefore charging capitation fee was illegal”. With regard to private aided recognized/affiliated educational institutions, the Court upheld the power of the Government to frame rules and regulations in matters of admission and fees, as well as in matters such as recruitment and conditions of service of teachers and staff. Though a question was raised as to whether the setting up of an educational institution could be regarded as a business, profession or vocation under Article 19 (1) (g), this question was not answered. Jeevan Reddy, J., however, at p. 751, para 197, observed as follows:- “While we do not wish to express any opinion on thue question whether the right to establish an educational institution can be said to be carrying on any ‘occupation’ within the meaning of Article 19(1)(g),--perhaps, it is –we are certainly of the opinon that such activity can neither be a trade or business nor can it be a profession within the meaning of Article 19 (1) (g). Trade or business normally connotes an activity carried on with a profit motive. Education has never been commerce in this country.” 31. Counsel for the institutions, as well as the Solicitor-General submitted that the decision in Unni Krishnan case insofar as it had framed the scheme relating to the grant of admission and the fixing of the fee, was unreasonable and invalid. However, its conclusion that children below the age of 14 had a fundamental right to free education did not call for any interference. 37. Unni Krishnan judgment has created certain problems, and raised thorny issues. In its anxiety to check the commercialization of education, a scheme of “free” and “payment” seats was evolved on the assumption that the economic capacity of the first 50% of admitted students would be greater than the remaining 50%, whereas the converse has proved to be the reality, In this scheme, the “Payment seat” student would not only pay for his own seat, but also finance the cost of a “free seat” classmate. When one considers the Constitution Bench’s earlier statement that higher education is not a fundamental right, it seems unreasonable to compel a citizen to pay for the education of another, more so in the unrealistic would of competitive examinations which assess the merit for the purpose of admission solely on the basis of the marks obtained, where the urban students always have an edge over the rural students. In practice, it has been the case of the marginally less merited rural or poor student bearing the burden of a rich and well-exposed urban student. 54. The right to establish an educational institution can be regulated; but such regulatory measure 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. Criteria regarding merit in T.M.A. Pai (supra) 58. For admission into any professional institution, merit must pay a 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 sown to less meritorious but more influential applicants. Excellence in professional education would require that grater 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. 67. We now come to the regulations that can be framed relating to private unaided professional institutions. 68. It would be unfair to apply the same rules and regulations regulating admission to both aided and unaided professional institutions. It must be borne in mind that unaided professional institutions are entitled to autonomy in their administration while, at the same time, they do not forego or discard the principle of merit. It would, therefore, be permissible for the university or the Government, at the time of granting recognition, to require a private unaided 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 postgraduation non-professional colleges or institutes. 69. In such professional unaided institutions, the management will have the right to select teachers as per the qualifications and eligibility conditions laid down by the State/university subject to adoption of a rational procedure of selection. A rational fee structure should be adopted by the management, which would not be entitled to charge a capitation fee. Appropriate machinery can be devised by the State or university to ensure that no capitation fee is charged and that there is no profiteering, though a reasonable surplus for the furtherance of education is permissible. Conditions granting recognition or affiliation can broadly cover academic and educational matters including the welfare of students and teachers.” Background form Islamic Academy Education In Islamic Academy Education Vs. State of Karnataka and others (2003) 6 SCC Page 697, their Lordships of the Apex Court at the preamble of the judgment have referred to the following effect:- “2. Most of the petitioners/applicants before us are unaided professional educational institutions (both minority and non-minority). On behalf of the petitioners/applicants it was submitted that the answers given to the questions, as set out at the end of the majority judgment, lay down the true ratio of the judgment. It was submitted that any observations made in the body of the judgment had to be read in the context of the answers given. We are unable to accept this submission. The answers to the question, in the majority judgment in Pai case are merely a brief summation of the ratio laid down in the judgment. The ratio decidendi of a judgment has to be found out only on reading the entire judgment. In fact, the ratio of the judgment is what is set out in the judgment itself. The answer to the question would necessarily have to be read in the context of what is set out in the judgment and not in isolation. In case of any doubt as regards any observations, reasons and principles, the other part of the judgment has to be looked into. By reading a line here and there from the judgment, one cannot find out the entire ratio decidendi of the judgment. We, therefore, while giving our clarifications, are disposed to look into other parts of the judgment other than those portions which may be relied upon. 3. Very briefly stated, the other submissions were as follows: On behalf of the petitioners/applicants it was also submitted that fixation of percentage of seats that could be filled in the unaided professional colleges, both minority and non-minority by the management, as done by various State Governments, was impermissible. It is further submitted that the private unaided professional educational institutions had been given complete autonomy not only as regards the admission of students but also as regards the determination of their own fee structure. It was submitted that these institutions could fix their own fee structure, which could include a reasonable revenue surplus for purposes of development of education and expansion of the institution, and that so long as there was no profiteering or charging of capitation fees, there could be no interference by the Government. It was submitted that the right to admit students is an essential facet of the right to administer, and so long as admission to the unaided educational institutions is on a fair and transparent basis and on the basis of merit, the Government cannot interfere. It was submitted that these institutions are entitled to fill