IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE NINTEENTH DAY OF APRIL TWO THOUSAND AND FIVE PRESENT THE HON'BLE MR JUSTICE C.Y.SOMAYAJULU WRIT PETITION NO : 5750 of 2005 Between: 1 Andhra Kesari College of Education, Ongole, Prakashm District, Rep. by its Correspondent Sri J.Prasad. 2 St. Paul's College of Education, Giddalur, Prakasham District, rep. by its Correspondent Sri. G.Ashirvadam. 3 Madina Educational Society's SNBTM College of Education, Repalle, Guntur District. Rep by its. Correspondent Sri Khader Sharif. ..... PETITIONERS AND 1 State of Andhra Pradesh, Rep. by its Principal Secretary, Education Department, Secretariat Buildings, Hyderabad. 2 Govt. of A.P., Minority Welfare Dept., rep. by its Principal Secretary, Secretariat Buildings, Hyderabad. 3 The Convener, Ed.CET 2004-05, O/o. Commissioner of School Education, Hyderabad. .....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances it is prayed that this Hon’ble High court may be pleased to issue an appropriate writ more in the nature of a writ of Mandamus declaring the provisions in G.O.Ms.No.57, School Education, dated 21-03-2005 as being arbitrary and illegal, unconstitutional and violative of Articles 14 and 30 (1) of the Constitution of India and contrary to the ruling of the Hon’ble Supreme Court in TMA Pai Foundation case and consequently permit the petitioner managements to make admissions in terms of g.O.Ms.No.55, School Education, dated 20-03-2005 by determining minority status of the candidates as prescribed in g.O.Rt.No.478 (Minority Welfare Dept.), dated 27-12-2004. Counsel for the Petitioner: MR.CH.SAMSON BABU Counsel for the Respondent No.: GP FOR EDUCATION FOR ADVOCATE GENERAL WRIT PETITION NO : 6162 of 2005 Between: 1 Indur College of ducation, Bodhan, Nizamabad District, rep. by its Scrtary D. Thomasaiah, S/o. Shouraiah, R/o. Atchanpally, Nizamabad District. 2 Rayalaseema Christain College of Edeucation, Kurnool, rep. by its Correspondent Theresamma. 3 Mother Theressa College of Education, Badwel, Kadapa District, rep. by Correspondent, R. Satyanandam. ... PETITIONERS AND 1 State of A.P., rep. by its Prl. Secretary, School Education Dept., Secretariat, Hyderabad. 2 The Prl. Secretary, Minority Welfare Dept., Secretariat Bldgs., Hyderabad. 3 Commissioner of Director of School Education, A.P. Hyderabad. ...RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court may be pleased to Issue an appropriate writ more in the nature of a writ of mandamus declaring the provisions in G.O.Ms.No.57 School Education, dated 21.3.2005 as being arbitrary and illegal, unconstitutional and violative of Articles 14 and 30 (1) of the Constitution of India and contrary to the ruling of the Hon'ble Supreme Court in TMA Pai Foundation case and consequently permit the petitioner managements to make admission in terms of G.O.ms.No.55 School Education, dt. 20.3.2005 by determining minority status of the candidates as prescribed in G.O.Rt.No.478 (Minority Welfare Dept.) dt. 27.12.2004. Counsel for the Petitioner: MR.CH.SAMSON BABU Counsel for the Respondents: GP FOR SCHOOL EDUCATION ON BEHALF OF ADVOCATE GENERAL WRIT PETITION NO : 8348 of 2005 Between: Jyothi College of Education, Siricilla Revenue Division, Thangallapalli Village, Siricilla, Karimnagar District Sponsored by St. Augustine Educational Society Flat No. 119, D4, Black Shanti Sikhara Apartmenets, Somajiguda, Hyderabad rep by President M.D. Samuel ..... PETITIONER AND 1 State of Andhra Pradesh rep by principal Secretary School Education Department, Secretariat, Hyderabad. 2 The Principal Secretary, Minority Welfare Department Secretariat Buildigns, Hyderabad 3 The Commission & Director of School Education, Andhra pradesh Hyderabad ...RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue an appropriate order, direction or a writ more particularly one in the nature of a Writ of Mandamus declaring that G.O.Ms. No. 55 School Education (Training-A1) Department dated 20-03-2005 and G.O.Ms. No. 57 School Education (Training-A1) Department dated 21-03-2005 in so far as they are against the interests of the petitioner is arbitrary, discriminatory, illegal, unconstitutional and violative of the rights conferred on the minorities under Article 30(1) of the Constitution of India and also anxious of fundamental principles of natural justice and in breach of the Articles 14 and 21 of the Constitution India. Counsel for the Petitioner: MR.KOKA RAGHAVA RAO Counsel for the Respondent No.: GP FOR SCHOOL EDUCATION ON BEHALF OF ADVOCATE GENERAL The Court made the following: THE HON’BLE SRI JUSTICE C.Y.SOMAYAJULU W.P.Nos.5750, 6162 and 8348 of 2005 COMMON ORDER: Since common questions of fact and law arise in these petitions, they are being disposed of by a common judgment. (2) Petitioners are the minority unaided colleges of education. W.P.No.5750 of 2005 is originally filed challenging Rule 6 (iii) of G.O.Ms.No.26 SE (Trg) Department, dated 03-02-2005 and Rule 8 (xii) and Rule 9, and, later, since the said G.O. was modified by G.O.Ms.No.57 School Education, dated 21-03-2005, the prayer is amended as challenging G.O.Ms.No.57, School Education, dated 21-03-2005. W.P.No.6162 of 2005 is filed questioning G.O.Ms.No.57 School Education, dated 21-03-2005 and for a direction to permit the petitioners- managements to make admissions in terms of G.O.Ms.No.55, School Education, dated 20-03-2005 by determining minority status of the candidates as prescribed in G.O.Rt.No.478 (Minority Welfare Department), dated 27-12-2004. Later W.P.No.8348 of 2005 is filed questioning G.O.Ms.No.57, School Education, dated 21-03-2005. (3). For admission of students into B.Ed., course in aided and unaided minority colleges of education in the State, Government passed adhoc Rules in G.O.Rt.No.169 Education (SE.Trg.I) Department, dated 05-02-2004 prescribing admission procedure for Convener seats and also management seats. Thereafter, the Government, in supercession of all the earlier G.Os, including the aforesaid G.O.Rt.No.169, dated 05-02-2004, had issued G.O.Ms.No.26, School Education (Trg.-A1), dated 03-02-2005 laying down the procedure for admission of students into B.Ed., course into the aided and unaided minority colleges in the State. (4). For better understanding, I feel it relevant to extract all the relevant portion of the three G.Os which are the subject matter of these petitions. Rule 6 of G.O.Ms.No.26, dated 03-02-2005, reads: “ 6. Un-aided Minority Colleges of Education i. 55% - Management Seats – to be filled with Minority candidates only The management of private un-aided Minority colleges of Education shall admit the candidates to the extent of 55% of intake belonging to concerned minority community who are eligible and qualified in Common Entrance Test conducted by Government (Ed.CET) or common entrance Test conducted by Association of Managements of Colleges of Education (Ed- CET-AC) as per the option already exercised by them with the Permanent Committee. (a) The admissions to the “55% Management seats” shall be methodology wise as per merit ranking among the Minority candidates applied to the college duly following the transparent method prescribed in the rules. (b) The exercising rules of reservation for special categories i.e. NCC/ Sports /CAP/PHC and Women are to be followed as prescribed in the rules. (c) If seats are vacant in any methodology due to non-availability of minority candidates in that methodology, such vacant seats shall be filled with the Minority candidates belonging to other methodology as per merit with prior permission of Regional Joint Director of School Education concerned duly producing all relevant records. (d) Still, if the management is unable to get sufficient number of concerned minority candidates, such seats can be filled with non-minority candidates whoa re qualified in the Ed.CET/EdCET-AC, (As per the option exercised already) duly following the merit and rules of reservation with prior approval of the Regional Joint Director of School Education concerned. However, the provisions of G.O.ms.No.1, Minorities Welfare (M& R), Department, dated 16.01.2004 has to be fulfilled if the minority status of the College is to be retained. (e) 85% of the seats covered under “55% Management seats” in each methodology shall be allocated to the local candidates and remaining 15% of the seats shall be un-reserved for which Andhra University, Osmania University, Sri Venkateswara University local candidates and non-local candidates of Andhra Pradesh can compete in combined merit order of concerned minority. ii. 15% - Management Seats – to be filled with Minority or Non-Minority candidates The management shall fill 15% of seats with eligible and qualified candidates as per merit in EdCET/EdCET-AC (As per the option exercised already) iii. 30% - Convener Seats – to be filled by the Convener The remaining 30% of seats shall be filled by the convener, EdCET from the common merit list of EdCET as per Rules.” In G.O.Ms.No.55, dated 20-03-2005, the relevant portion reads: “2. In the reference 2nd read above, the Treasurer of Minority B.Ed Colleges Association has submitted representationt o the Government for consideration on the following:- i. to delete the provisions in rule 6 (iii) and 7 in G.O.Ms.No.26 Education Department dated: 3-2-2005 and allow them to follow the rules issued in G.O.Ms.No.405 Education Department dated:6-11-1995 and G.O.Ms.No.570 Education Department dated:16-6- 2004 for academic year 2004-05; and ii. to delegate the powers for approving the list of candidates admitted in minority colleges to Regional Director concerned instead of State Council for Higher Education as ordered in G.O.Ms.No.26 Education Department dated: 3-2-2005. 3. Government examined the matter in detail, and hereby accept the demand No.(i) above duly exempting the provisions in Rules 6 (iii) and 7 of G.O. 1st read above for the academic year 2004-05 and reverting the quota to the extent of 85% and 15% of management quota with the concerned minority candidates and management quota respectively. Regarding determining the minority status of the candidate, SSC records may be taken into consideration while admitting the students in minority quota. In regard to demand No.(ii) above, Government after due consideration rejected the same.” In G.O.Ms.No.57, dated 21-03-2005, the relevant portion reads: “(i) Criteria for determining minority status of the candidates:- As there were reports of students/candidates obtaining religious conversion certificates overnight by exploiting the provisions contained in G.O.5th above, the following condition is prescribed. For the purpose of determining the minority status of candidates seeking admission into 85% management quota in the B.Ed., minority colleges, the Secondary School Certificates or Transfer certificates (T.C) from the school from which they have studied shall be the basis. In the absence of a T.C, the candidate should obtain a certificate from the Head of the Institution in which he/she studied in proforma prescribed (Annexure-I) to this order. Further, the students submitting bogus minority community certificates shall be dealt with under the relevant sections of the I.P.C. apart from losing their seats following the due procedure. (ii) Criteria for admission into minority Colleges of Education: It is clarified that only such of those candidates who have qualified at Ed.CET-2004 or Ed.CET-AC are eligible for admission into minority colleges of Education, and those candidates who have not qualified at Ed.CET-2004 or Ed.CET-AC shall not be admitted into the minority Colleges of Education and no deviation is permitted in this regard. This condition is stipulated herein in order to implement the orders issued by Supreme court of India and at the same time to ensure quality education to the students. (iii) Procedure for filling of unfilled seats in 85% management seats in minority colleges:- As the number of Ed.CET or Ed.CET-AC qualified minority candidates are lesser than the number of seats made available under 85% management seats in minority Colleges of Education, there is a distinct possibility of such seats remaining unfilled and to fill up such seats in the interest of students and managements, the following procedure is prescribed i.e., after admitting minority students duly following the procedure laid down in provisions (i) and (ii) of this order, if there are any unfilled seats, the same shall be notified and the Convenor, Ed.CET-2004 shall allot candidates following the due procedure. Under no circumstances the minority colleges shall admit students into 85% management quota, who do not satisfy the criteria laid down in the provisions (i) and (ii) of this G.O. If any violation is noticed, suitable action shall be taken to cancel the minority status of concerned College of Education apart from withdrawing No Objection Certificate issued by this Govt., and take action for de-recognition of the said college by National Council for Teacher Education, besides disallowing the irregularly admitted candidates from appearing at examinations by following the established procedure.” (5) The main contention of Sri L.Nageswara Rao, learned Senior Counsel for the petitioners, is that since unaided minority educational institutions are entitled to admit students without any interference from the Government or other agency, as held in T.M.A PAI FOUNDATION v. STATE OF KARNATAKA and in ISLAMIC ACADEMY OF EDUCATION v. STATE OF KARNATAKA and since the Supreme Court while hearing S.L.P.No.22667 of 2004 and batch, on an undertaking given by the petitioners therein that they would abide by the procedure prescribed in G.O.Rt.No.169, dated 05-02-2004 and had made admissions to the tune of sanctioned strength on their own, basing upon the merit ranking obtained by the candidates in the Ed.CET, it is clear that the Supreme Court had endorsed the procedure prescribed in G.O.Rt.No.169, dated 05-02-2004 wherein the managements of the unaided minority B.Ed., Colleges were empowered to make admissions to all the seats without reference to the Convener, and since the matter is still pending in the apex Court, the respondent, in fairness, ought not to have tinkered with the admission procedure during the pendency of the proceedings before the apex Court and should have awaited the judgment of the apex Court and was error in incorporating Clause 6(iii) in G.O.Ms.No.26, dated 03-02-2005, and, since it must have realized its mistake had rectified the same by issuing G.O.Ms.No.55, dated 20-03-2005 reverting to the earlier procedure, but was in error in issuing G.O.Ms.No.57, dated 21-03-2005 hardly before the ink on G.O.Ms.No.55, dated 20-03-2005 became dry, G.O.Ms.No.57 dated 21-03-2005 is liable to be set aside. It is his contention that when the petitioners are running their institutions with their own funds and are not collecting the money over and above the fees fixed by the Government, and when the petitioners have a right to admit the students of their choice as per the Rules prescribed by the Government, and since in T.M.A. Pai Foundation case (1 supra) while answering Question No.4, the apex court held that “the right to admit students being an essential facet of the right to administer educational institutions of their choice, as contemplated under Article 30 of the constitution, the State government or the university may not be entitled to interfere with that right, so long as the admission to the unaided educational institutions is on a transparent basis and the merit is adequately taken care of. The right to administer, not being absolute, there could be regulatory measures for ensuring educational standards and maintaining excellence thereof, and it is more so in the matter of admissions to professional institutions” and since petitioners would admit students who are qualified in Ed.CET only and would submit that list to the concerned authorities, the procedure for admission is but transparent, and so the Government proposing to allot students through Convener to the petitioners institutions by virtue of G.O.Ms.No.57, violates Article 30 of the Constitution of India, and so the impugned G.O. is liable to be struck down. (6) His next contention is that though there was no need for the Government to modify the existing procedure for determining the status of minorities, and when admission into other professional colleges was permitted to be done basing on the procedure prescribed in G.O.Rt.No.249, dated 18-06-2004, deviation from the procedure for determining the minority status of students for admission into the educational colleges, would be discriminatory, and so the clause prescribing a different procedure from the procedure adopted while admitting students into other profession colleges G.O.Ms.No.57 is liable to be set aside. (7) The contention of the learned Government Pleader, on behalf of the Advocate General, is that government having taken a policy decision relating to admission of students in B.Ed., course for the academic year 2004-2005, in the unaided minority educational colleges issued G.O.Ms.No.26, dated 03-02- 2005 earmarking 55% of the seats to the minority students and 15% to the management under management quota and 30% seats to the Convener of the Ed.CET on par with the admissions made into Engineering, M.B.A., and other professional courses, but on a representation by the minority B.Ed., Colleges Association, issued G.O.Ms.No.55, dated 20-03-2005 reverting to the old practice, and had, after review issued G.O.Ms.No.57 dated 21-03-2005, keeping in view the fact that there is an increase in the minority colleges. According to him, there were 38 minority B.Ed., colleges i.e., 26 Christian colleges and 12 Muslim colleges for the academic year 2002-2003 and during 2003-2004, there were 77 colleges i.e., 44 Christian colleges and 33 Muslim colleges and during 2004-2005, there are 109 minority colleges i.e., 71 Christian colleges and 38 Muslim colleges having an intake of 8045 in the Christian colleges and 4265 in Muslim colleges and besides those colleges, there are 195 non-minority colleges with an intake of 22007 and so all meritorious students will have to be taken care of and so in an attempt to arrest motivated conversion, simply with a view to obtain a seat in B.Ed., under the newly acquired garb of minority status, Government thought it fit to revert to the procedure of admitting the students only on the basis of the religion mentioned in the transfer certificate/school certificate, taking into consideration the complaints that in one college out of 120 admissions made by it, 118 students were taken on the basis of Conversion certificates. It is his contention that since in T.M.A. Pai Foundation case (1 supra), the apex Court held that certain percentage of seats can be reserved for admission by the management out of the students who have passed the test to take care of the poorer and backward sections of society, Government does have a right to allot some percentage of seats to the Convener and contends that in any event, petitioners cannot be said to be aggrieved by G.O.Ms.No.57, dated 21-03-2005, because question of the Convener allotting students to minority unaided colleges would arise only if there are any unfilled seats in the 85% of the management seats, and in case all the 85% seats are filled in by the managements, question of Convener allotting students to such colleges does not arise and so petitioners are not entitled to any relief. He also referred to Article 25 of the Constitution of India and certain decisions rendered by the apex Court thereunder. (8) In my considered opinion, reference to Article 25 of the Constitution of India and the decisions referred to and relied on by the learned Government Pleader, are not relevant for deciding these petitioners, and so I am not referring to those decisions and would not burden this judgment with them, because these petitions are not filed by any of the converted students, but are filed by the managements of the educational colleges. (9) In AHMEDABAD ST. XAVIER’S COLLEGE SOCIETY v. STATE OF GUJARAT the apex court held that right to administer contemplated by Article 30 of the Constitution of India means (1) right to choose ones own managing or governing body (2) right to choose teachers (3) right not to be compelled to refuse admission to students i.e., if the minority institutions want to have the right to admit the students of their choice, they can do so subject to reasonable regulations about academic qualifications prescribed by the Government (4) right to use its properties and assets for the benefits of its own institutions. The apex Court also held that the right conferred on the religious and linguistic minorities to administer educational institutions of their choice is not an absolute right and is not free from regulation. (10) In T.M.A. Pai Foundation case (1 supra), the majority judgment while answering question No.4 reading “whether the admission of students to minority educational institution, whether aided or unaided, can be regulated by the State Government or by the university to which the institution is affiliated?” held that admission of students to unaided minority educational institutions viz. schools and undergraduate colleges, where the scope for merit-based selection is practically nil, cannot be regulated by the State or university concerned, except for providing the qualifications and minimum conditions of eligibility in the interest of academic standards and since the right to admit students is an essential facet of the right to administer educational institutions of their choice (as contemplated under Article 30 of the constitution), the State Government or the university may not be entitled to interfere with that right, so long as the admission to the unaided educational institutions is on a transparent basis and the merit is adequately taken care of and as right to administer, is not absolute, there could be regulatory measures for ensuring educational standards and maintaining excellence thereof, and that it is more so in the matter of admissions to professional institutions. (11) In Islamic Academy of Education case (2 supra), para 14 and 15 read as follows: “14. Paragraph 68 provides that a different percentage can be prescribed for unaided minority institutions. That the same yardstick cannot be applied to both minority and non-minority professional colleges is also clear from the fact that paragraph 68 also falls under the main heading “In case of private institutions, can there be government regulations and, if so, to what extent?”. Paragraph 47, which is one of the first paragraphs under this heading, inter alia provides as follows: (SCC p.542) “It is appropriate to first deal with the case of private unaided institutions and private aided institutions that are not administered by linguistic or religious minorities. Regulations that can be framed relating to minority institutions will be considered while examining the merit and effect of Article 30 of the Constitution.” Whilst discussing Article 30 under the heading “To what extent can the rights of aided private minority institutions to administer be regulated” reliance has been placed, in the majority judgment, on previous judgments in the cases of Kerala Education Bill, 1957, Re, Sidhajabhai Sabhai V. State of Gujarat, Rev Father W. Proost v. State of Bihar, State of Kerala v. Very Rev. Mother Provincial and Ahmedabad St. Xavier’s College Society v. State of Gujarat. All these cases have recognized and upheld the rights of minorities under Article 30. These cases have held that in the guise of regulations, rights under Article 30 cannot be abrogated. It has been held, even in respect of aided minority institutions that they must have full autonomy in administration of that institution. It has been held that the right to administer includes the right to admit students of their own community/language. Thus an unaided minority professional college cannot be in a worse position than an aided minority professional college. It is for this reason that paragraph 68 provides that a different percentage can be fixed for unaided minority professional colleges. The expression “different percentage for minority professional institutions” carries a different meaning than the expression “certain percentage for unaided professional colleges”. In fixing the percentage for unaided minority professional colleges the State must keep in mind, apart from local needs, the interest/need of that community in the State. The need of that community, in the State, would be paramount vis-à-vis the local needs. 15. It must be clarified that minority professional colleges can admit, in their management quota, a student of their own community/language in preference to a student of another community even though that other student is more meritorious. However, whilst selecting/admitting students of their community/language the inter se merit of those students cannot be ignored. In other words, whilst selecting/admitting students of their own community/language they cannot ignore the inter se merit amongst students of their community/language. Admission, even of members of their community/language, must strictly be on the basis of merit except that in case of their own students it has to be merit inter se those students only. Further, if the seats cannot be filled up from members of their community/language, then the other students can be admitted only on the basis of merit based on a common entrance test conducted by government