IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 13/07/2004 CORAM THE HONOURABLE MR.JUSTICE D.MURUGESAN W.P.No.16034 of 2004 and W.P.Nos., 16068, 16095, 16444 to 16447, 16659 to 16662, 17383 of 2004 and W.P.M.P.Nos.19009, 19041, 19061, 19430, 19432, 19434, 19436, 19707, 19709, 19711, 19713 and 20644 of 2004 Consortium of Professional Arts and Science Colleges in Tamil Nadu represented by its Secretary No.29, Old No.12, Ganapathy Street, Royapettah, Petitioner in Chennai-14 .. W.P.No.16034 of 2004 Forum of Tamil Nadu Minority Self- Financing Engineering Colleges represented by its President Mr.R.S. Munirathinam, No.29, Old No.12, Ganapathy Street Petitioner in Royapettah, Chennai-14 .. W.P.No.16068 of 2004 Tamil Nadu College of Engineering represented by its Secretary and Correspondent, Dr.P.V. Ravi Karumathapatti, Avinashi Road, Petitioner in Coimbatore .. W.P.No.16095 of 2004 Mohammed Sathak Trust represented by its Chairman Dr.S.M.Hamid Abdul Quader 144/1, Nungambakkam High Road Petitioner in Chennai-34 .. W.P.No.16444 of 2004 The Gulf Returnees Educational Society represented by its General Secretary Dr. G. George, H.22, East Court Petitioner in Anna Nagar East, Chennai-102 .. W.P.No.16445 of 2004 Erode Sengunthar Engineering College represented by its Correspondent J.Sudhanandhen, Thudupathi Petitioner in Perundurai Taluk, Erode District .. W.P.No.16446 of 2004 M.P.Nachimuthu M.Jagannathan Engineering College represented by its Correspondent J. Sudhanandhen, Chennimalai Petitioner in Perundurai Taluk, Erode District .. W.P.No.16447 of 2004 Deen Dayal Education and Health Trust represented by its Chairman D.T.D.Naidu 61, Deen Dayal Nagar Kunnavalam Post, Chennai to Tirupathy N.H Petitioner in Tiruvallur Taluk and District .. W.P.No.16659 of 2004 Arulmigu Kalasalingam College of Engineering represented by its Chairman, T. Kalasalingam 14, Sriman Srinivasan Road Petitioner in Alwarpet, Chennai-18 .. W.P.No.16660 of 2004 SKR Engineering College represented by its Chairman A.M. Srinivasan Nazarethpet, Poonamallee Petitioner in Chennai-103 .. W.P.No.16661 of 2004 Anand Institute of Higher Technology represented by its Chairman T.Kalasalingam Kalasalingam Nagar, Old Mahabalipuram Road Kazhipattur Tiruporur Taluk, Petitioner in Kancheepuram District .. W.P.No.16662 of 2004 All India Medical and Engineering Colleges Association (Reg.No.128/2004) represented by its President Dr.T.D. Naidu, 5110, H Block, I Street 12th Main Road, Anna Nagar Petitioner in Chennai-40 .. W.P.No.17383 of 2004 -Vs- 1. Permanent Committee for the conduct of Common Entrance Test represented by its Member-Secretary Higher Education Department Secretariat, Chennai-9 2. The Government of Tamil Nadu represented by its Secretary Higher Education Department Chennai-9 3. Anna University Respondents 1 to 3 represented by its Registrar in all the writ Chennai-25 .. petitions 4. All India Council for Technical Education represented by its Director Southern Regional Office Sastri Bhavan, No.26, Haddows Road 4th respondent in Chennai-6 .. W.P.No.16095 of 2004 Writ Petitions filed under Article 226 of The Constitution of India, praying this Court to issue a Writ of Certiorarified Mandamus, as stated therein. !For petitioner in Mr. R. Krishnamoorthy W.P.No.16034/2004 .. Senior Counsel for Mr.V.Ayyathurai For petitioner in Dr. Rajeev Dhavan W.P.No.16068/2004 .. Senior Counsel for Mr.R.S.Jeevarathinam For petitioner in Mrs. Nalini Chidambaram W.P.No.16095/2004 .. for Mr.L.S.Hasan Fizal For petitioners in Mr.K.Doraiswami W.P.Nos.16444 to Senior Counsel for 16447/2004 .. M/s Muthumani Doraiswami For petitioners in W.P.Nos.16659 to 16662 & 17383/2004 .. Mr. K.Selvaraj ^For respondents 1 to 3 Mr.N.R. Chandran in all W.Ps. .. Advocate General assisted by Mr.V.R.Rajasekaran Spl. Government Pleader For 4th respondent in W.P.No.16095/2004 .. Mr.Vijay Narayan :COMMON ORDER The petitioners in all these writ petitions have challenged the proceedings in SFPC/PC/00014 dated 1.6.2004 of the Permanent Committee constituted to ensure the fair conduct of Common Entrance Test for admission of students by Association/Consortium of various unaided professional engineering and Arts and Science colleges. 2. As the challenge made to the impugned order is almost on the similar grounds and common issues are involved in all these writ petitions, they are taken up together for hearing and disposal. This order shall govern all the writ petitions. 3. The petitioner in W.P.No.16034 of 2004 is Consortium of Professional Arts and Science Colleges in Tamil Nadu and formed by the following associations viz., (1) Association of Self Financing Private Engineering Colleges of Tamil Nadu; (2) Tamil Nadu Self Financing Engineering Colleges Association; (3) Tamil Nadu Unaided Colleges Management Association (TUCMA); (4) Association of Self Financing Arts, Science and Management Colleges of Tamil Nadu; (5) Association of Muslim Colleges of Tamil Nadu; (6) Association of Minority Unaided Christian Institutions (AMUCI); (7) Forum of Tamil Nadu Minority Self Financing Engineering Colleges. 4. The Consortium was formed for the purpose of conducting Common Entrance Test for admission to B.E., B.Tech., M.E., M.Tech., M.B.A., and M.C.A. Courses in respect of the seats allocated to be filled by the Managements, who are the member of colleges of the petitioner forum. The Consortium represents both self-financing minority and nonminority educational institutions established in the State of Tamil Nadu. 5. W.P.No.16068 of 2004 is filed by the 7th member of the Consortium i.e., Forum of Tamil Nadu Minority Self-Financing Engineering Colleges, as the members of the petitioner forum constitute the minority unaided private engineering colleges. 6. The petitioner in W.P.No.16095 of 2004 is the Tamil Nadu College of Engineering, a private unaided engineering college. The petitioner college is also a member of the Consortium. 7. The petitioners in W.P.Nos.16444 to 16447 and 16659 to 16662 of 2 004 are individual unaided private engineering colleges. Though the petitioners in W.P.Nos.16559 to 16662 of 2004 are not the members of Consortium, Mr.K.Selvaraj, learned counsel appearing for those petitioners would submit that the petitioners undertake to become members of Consortium and the order in the writ petitions shall govern the petitioner colleges also. 8. The petitioner in W.P.No.17383 of 2004 is the All India Medical and Engineering Colleges Association and have also questioned the same order. 9. In order to appreciate the submissions of the counsel for the petitioners and the respondents, certain facts leading to the present dispute require a mention. In the judgment reported in "UNNI KRISHNAN J.P. v. STATE OF A.P.(1993 (1) SCC 645)", the Apex Court in order to curb the commercialization of education, framed a scheme relating to admission and fixing of fee in private unaided educational institutions both for unaided minority and non-minority private educational institutions. As we are concerned with only the admission of students by unaided private educational institutions, the scheme as to the percentage of seats for the State to be filled under Single Widow System and the percentage of seats to be filled by the private unaided educational institutions under the management quota is alone referable. Under the Scheme, the Apex Court fixed 50% of seats to be filled by the State under Single Window System and the remaining 50% of the seats to be filled by the management and those seats are known as " Management Quota" with further entitlement to charge higher fee. 10. The judgment in Unni Krishnan's case came up for consideration before a Constitutional Bench of the Apex Court consisting of 11 Judges in "T.M.A.PAI FOUNDATION AND OTHERS v. STATE OF KARNATAKA AND OTHERS (2002 (8) SCC 481)." The Apex Court found that the scheme in Unni Krishnan's case has the effect of nationalizing education in respect of the right of private unaided institution, to give admission and to fix the fee. The Apex Court also held that the decision in Unni Krishnan's case insofar as it framed the scheme relating to the grant of admission and the fixing of the fee, was not correct and to that extent the said decision and the consequent directions given to UGC, AICTE, the Medical Council of India, the Central and State Governments etc., were held to be overruled. The judgment in T.M.A. Pai Foundation case came up for clarification before the Apex Court in "ISLAMIC ACADEMY OF EDUCATION AND ANOTHER v. STATE OF KARNATAKA AND OTHERS (2003 (6) SCC 697)". The Apex Court again formulated the following questions for its consideration. (1) Whether the educational institutions are entitled to fix their own fee structure; (2) Whether minority and non-minority educational institutions stand on the same footing and have the same rights; (3) Whether private unaided professional colleges are entitled to fill in their seats, to the extent of 100% and if not, to what extent; and (4) Whether private unaided professional colleges are entitled to admit students by evolving their own method of admission. 11. Question Nos.2, 3 and 4 are relevant for the disposal of these writ petitions. Their Lordships directed the State Governments to fix the percentage of seats to be filled under Management quota depending upon the local needs. Their Lordships also permitted the private unaided educational institutions to opt for conduct of Common Entrance Test by the Association of Colleges or to admit the students on the basis of Single Window System of admissions made from among the candidates appeared for TNPCEE or the Examination conducted by the State. The option shall be exercised before the prospectus is issued. Their Lordships further also directed the respective State Governments to appoint Permanent Committee, which will ensure the fairness and transparency of the Common Entrance Test conducted by the Association of Colleges. The Constitution of the Committee also was indicated in the judgment. Pursuant to the above directions, the Government of Tamil Nadu constituted a Permanent Committee in G.O.Ms.No.69, Higher Education (J2) Department dated 19.3.2004 under the Chairmanship of the Hon' ble Mr.Justice S.S.Subramani, a retired Judge of this Court. The Permanent Committee also consists of Dr.E.Balagurusamy, Vice Chancellor, Anna University, Dr.M.S.Palanichamy, person of repute in the field of education, Dr.V.Sankaranarayan, Engineer of Eminence as members and Thiru K.Gnanadesikan, I.A.S., Secretary to Government, Higher Education Department, Chennai as Member Secretary. The said Permanent Committee after hearing the representatives of the Consortium of Self Financing Professional, Arts and Science Colleges in Tamil Nadu and other individual institutions has passed the impugned proceedings. It is also relevant to note that pursuant to the directions of the Apex Court, the Government of Tamil Nadu allocated 50% of seats for unaided non-minority professional colleges and 70% for unaided minority professional colleges to be filled as management quota. 12. The directions of the Permanent Committee in the impugned proceedings are as follows:- A.IN THE COURSE OF CONDUCTING THE ENTRANCE TEST (1) Consortium of self-finance professional, Arts and Science colleges in Tamil Nadu is permitted to conduct the entrance test for admission to under-graduate engineering courses for the entire Tamil Nadu to fill up vacancies in management on the following conditions/directions. a)Setting up of question papers and evaluation should be given to experts approved by the Committee, which reserves its right to nominate it own experts also. b)Number of questions and papers should be same as TNPCEE and the syllabus will be of Tamil Nadu (Plus 2). c)Question papers should be printed in any security press approved by the Committee-wherein also the nominee of the Committee will be present and the Committee also reserves its rights to get the question papers printed in a press of its choice. d)One person nominated by the Consortium should be made totally responsible for all activities connected with the examination, i.e. setting, printing, transporting etc., who should also see that there is no leakage or other malpractice. The Committee also reserves its right to give necessary direction in this regard and also appoint such persons of its choice to supervise the activities and the person made responsible should act according to the direction given by the person so appointed by the Committee. We make it clear that the test is conducted by the management to fill up their quota and the Committee is only to supervise their work. In such case, if for any reason the paper is leaked, the entire test will be cancelled and the management takes the risk of admitting students on the basis of test conducted already by Anna University. e)Conduct of examination should be as per procedure of TNPCEE. f)Question should be of objective type and the answer should be scanned for valuation only by machine. Manual work is totally prohibited. g)Examinations should be conducted only in the various District Head Quarters in Tamil Nadu and also at Ernakulam in Kerala and at Vijayawada in Andhra Pradesh. The examinations should be conducted in Government colleges as far as possible. h)The Consortium should co-operate with the representative (who will be appointed by the Committee) at each examination centre. i)The answer papers when collected should be separately packed and sealed by the representatives of Consortium and Committee. j)The question papers while it is being dispatched to various centers must also sealed and signed by both representatives of Consortium and Committee and opening the packet at examination Centre must also be done in the presence of both representatives. k)There will be separate squad appointed by the Committee for each coordinating centre. l)Application and examination fees should be reasonable, which may be fixed by the Consortium and approved by the Committee. m)The examination should be completed before 15th July, 2004 with notice to the Committee and the results of the examination should be published without any delay-at any rate within ten days from the date of completion of examination. n)All expenses for the supervisory work should be met by the Consortium and one half of the estimated costs should be deposited with the Director of the Technical Education. The estimated cost will be informed to the Consortium on getting information about the schedule of the examination. o)All correspondence in this regard, should be absolutely confidential. p)Due publicity should be given intimating candidates about the necessity of writing this examination along with details about the last date for the receipt of application, the fees and the date of the examination along with time-table. q)The demand by the Consortium that it should be allowed to conduct the test on two occasions, cannot be accepted for reason already stated. r)The Committee reserves the right to give further directions and it is made clear that the directions or conditions mentioned above are not exhaustive "Consortium" is bound to obey the same as well. B. AFTER THE EXAMINATION AND WHILE STUDENTS ARE BEING ADMITTED. a)All private professional engineering colleges, (Whether they are members of Consortium or not) should exercise their option to choose whether it adopts the test conducted by the Association of Colleges (i.e. Consortium) or the test conducted by the State through Anna University. The option should be exercised within seven days after the conduct of examination by the Consortium. If any College (which is a member of the Consortium) fails to exercise any option it will be deemed to have exercised its option for the State level test conducted by Anna University. Likewise if any college which fails to exercise its option (and which is not a member of Consortium) shall be deemed to have opted for the test conducted by the State through Anna University. The option exercised should be informed to the Committee in writing by Registered Post/Acknowledgment due. b)The admission should be made only on the basis of the merit list opted and deemed to have opted and should be by counselling by following single window system as followed by Anna University under supervision of the Committee. The venue for counselling under Single Window System will be decided after the results are published and as directed by the Committee. c)The admission of candidates shall be strictly according to Government of Tamil Nadu norms, regarding eligibility and policy of reservation also shall be followed. d)The minority institutions also shall be bound to admit students only on merit, but they are entitled to admit their own minority students on merits as amongst them. Documents to support the claim of such students (i.e. minority students) shall be submitted at the time of counselling. The copy of such documents shall also be forwarded to the Committee along with the list of admitted students. e)The list of students admitted, their rank number, fees collected and all particulars and details as may be required by the Committee also should be furnished forthwith. f)The question papers and answer sheets should be preserved in such places as directed by the Committee for a period of six months from the date of publication of results. g)The Committee further reserves its rights to give further directions to the private colleges or Consortium which shall also be fully complied with. 13. Mr.R.Krishnamoorthy, learned Senior Counsel assisted by Mr.V. Ayyathurai, appearing for the Consortium would submit that the directions of the Permanent Committee in Clause A(1)(b)(d)(e) and (n) would deprive the valuable right of the self-financing professional and Arts and Science colleges to conduct common entrance test and admit students of their choice from among the merit listed candidates. He would draw my attention to the constitution of Committee consisting of experts to set the question papers, conduct exams under the supervision of invigilators, to value the answer scripts and to ensure the method proposed to be adopted is foolproof and fair. Hence, directions even to get the approval for number of question papers, syllabi to be followed, sending officials to supervise the conduct of test would undermine the bona fides of the Consortium. He would also submit that it is impracticable to follow the procedure being adopted by TNPCEE, as the said examination is restricted only to the candidates from Tamil Nadu whereas Consortium is entitled to conduct Common Entrance Test for the candidates from other States also. He would further submit that admission would be made strictly on the basis of merit but from among the candidates applied to each institution. Lastly he would submit that even in Single Window System of admission, there were about 2 1666 vacancies out of the total number of 42350 seats in the academic year 2003-2004. That being the factual position, insistence of Single Window System even for management seats is unwarranted. 14. Insofar as the directions in Clause B(b), the learned Senior Counsel would submit that in view of the dictum in T.M.A. Pai Foundation case, the unaided professional institutions are entitled to autonomy in the matter of administration. Autonomy in administration includes admission of the students of their choice, but of course not at the cost of merit. When the State has prescribed 50% of the seats to be filled by the Management of unaided non-minority professional institutions and 70% of the seats to be filled up by the Management of unaided minority professional institutions, the directions of the Permanent Committee for admission through Single Window System is contrary to the judgment in T.M.A. Pai Foundation case. He would also submit that as per the judgment in Islamic Academy case, there cannot be any distinction in the manner of admission by both minority and non minority professional colleges. Insofar as the directions in Clause B(c), he would submit that once the merit-based system of admission is accepted to be followed, directing the petitioner Consortium to admit students by following communal reservation is bad in law. In support of the above submission, he relied upon the judgment of a Division Bench of this Court in "KONGU ENGINEERING COLLEGE AND OTHERS v. THE STATE OF TAMIL NADU AND OTHERS (2002 (3) L.W. 151)". 15. Dr.Rajeev Dhavan, learned senior Counsel appearing for the petitioner in W.P.No.16068 of 2004 viz., Forum of Tamil Nadu Minority Self Financing Engineering Colleges would submit that the right to administer the minority institutions is a constitutional right guaranteed under Article 30 of the Constitution of India and such a right cannot be taken away by a Committee constituted only to oversee the Common Entrance Test conducted by Consortium. The Permanent Committee has exceeded and over stepped its power in directing the admissions to be made only under Single Window System, as the right to administer the educational institutions includes the right to admit students also. Following the directions in T.M.A. Pai Foundation case, 70% of the seats are allocated for the management to be filled from among the meritorious candidates on the basis of Common Entrance Test conducted by Consortium. When once certain percentage of seats are allocated, no further restriction is permissible and the directions of the Permanent Committee to follow communal reservation in the management quota and that too in the institutions established by minorities are bad. He has also advanced arguments in challenging the various directions of the Permanent Committee more or less on the same line of submissions made by Mr.R.Krishnamoorthy, learned Senior Counsel appearing for the petitioner in W.P.No.16034 of 2004. He would add that the process of admission in respect of the seats reserved for management can only be regulated by the State and there cannot be any restriction which would amount to prohibition imposed in the process of admission. 16. Insofar as the direction of the Permanent Committee as to the expenses to be borne by Consortium, he would submit that the directions in Paragaraph 20 of Islamic Academy case are very clear whereby the Apex Court had directed that the expenses incurred on the setting up of Permanent Committee, the infrastructural needs, the provision for allowance and remuneration of the Cha irman and other members of the Committee shall also be borne by the State Government. Even in case the power of the Permanent Committee to appoint persons by its choice to supervise the Common Entrance Test is upheld, the Permanent Committee could only direct the State Government to bear all the expenses for supervisory work. Hence direction in Clause (A)(1)(n) is bad. 17. Mrs. Nalini Chidambaram, learned Senior Counsel appearing for the Tamil Nadu College of Engineering, petitioner in W.P.No.16095 of 20 04, though would adopt the arguments of Mr.R.Krishnamoorthy and Dr. Rajeev Dhavan, has further submitted that the petitioner college does not have any objection for the admissions to be made to the college under Single Window System. 18. Mr.K.Selvaraj and Mr.Kandavadivel Doraiswami, the learned counsel for other petitioners adopted the arguments of Mr.R.Krishnamoorthy, learned Senior Counsel. 19. In response to the above arguments, Mr.N.R.Chandran, learned Advocate General assisted by Mr.V.R.Rajasekaran, learned Special Government Pleader would submit that the petitioners having agreed before the Permanent Committee to abide by the directions that may be issued, cannot maintain the writ petitions questioning the directions of the Permanent Committee. On this ground alone the writ petition filed by Consortium is liable to be rejected. He would place reliance on ground No.20(C) of the affidavit filed by petitioner in support of the W. P.No.16095 of 2004 and contended that the petitioner had infact agreed that Single Window System followed by Anna University would be followed by the Consortium constituted by the Association of Colleges, as the same will be foolproof. He would submit that even in the application form made on 17.5.2004 and in the subsequent application dated 2 1.5.2004, the Consortium have submitted to the jurisdiction of the Permanent Committee by seeking permission to conduct Common Entrance Test on the conditions that may be imposed. Having sought and obtained such permission, it is not now open to the petitioners to question the jurisdiction of the Permanent Committee in imposing conditions. He would rely upon the judgment in Pannalal Binjraj case and contended that once the petitioners acquiesce themselves to the jurisdiction, they are estopped from questioning the power of the Committee to issue directions. He would draw my attention to certain paragraphs in the impugned order to sustain the plea of acquiescence and contended that the petitioners have agreed to conduct the Common Entrance Test on the same pattern of Tamil Nadu Professional Courses Entrance Examination. On merits, the learned Advocate General would submit that the power of the Committee to oversee and supervise the Common Entrance Test includes the power to appoint persons for the said purpose. The directions in Clause A(1)(b)(d)(e) and (n) are intended only to ensure a fair Common Entrance Test conducted by Consortium. He would further submit that as the judgment in T.M.A. Pai Foundation case was reconsidered in Islamic Academy case, in respect of the issues involved in these writ petitions, the law laid down by the Apex Court in Islamic Academy case alone should be taken into consideration and the petitioners are not entitled to place any reliance on T.M.A. Pai Foundation case. 20. Insofar