*THE HONOURABLE SIR JUSTICE V.V.S.RAO +W.P.NO.24437 OF 2002 % 7-2-2002 # M/s. Vignan Educational Foundation ..Petitioner. 5/3, Hosur Road, Bangalore. v. $ NTR University of Health Sciences Vijayawada, Andhra Pradesh, and another. ..Respondents. ! Counsel for the petitioner .. Sri V.R.Reddy, Senior Advocate ^ Counsel for the respondents .. Sri Ramesh Ranganadhan, Addl. Advocate General < Gist : > Head Note : ? CITATIONS : 1. (2002) 8 SCC 481 2. AIR 1993 SC 2178 3. (2002) 2 SCC 333 4. 2000 (3) ALD 715 (DB) 5. 2002 (2) ALD 609 6. 2001 (4) ALD 704 (FB) 7. AIR 1954 SC 561 8. AIR 1958 SC 956 9. AIR 1963 SC 540 10. AIR 1970 SC 2079 11. AIR 1980 SC 1042 12. AIR 1974 SC 1389 13. AIR 1979 SC 52 14. (1992) 1 SCC 558 = AIR 1992 SC 1630 15. AIR 1992 SC 1858 16. 1992 (3) ALT 99 17. (1989) 4 SCC 155 18. AIR 1984 SC 1420 19. AIR 1984 SC 1569 20. AIR 1989 SC 44 21. (1987) 1 SCC 13 22. (1994) 2 SCC 718 THE HON’BLE SRI JUSTICE V.V.S.RAO WRIT PETITION NO.24437 OF 2002 ORDER: This writ petition raises an important question as to the right of a private, professional, non-minority educational institution in the State of Andhra Pradesh to admit students in first year MBBS course by its own admission programme without being compelled to admit students from out of the merit list prepared by the State agency after conducting common entrance test. Needless to point out that the question assumes importance having regard to the landmark decision of Constitution Bench of eleven Judges of the Supreme Court of India in T.M.A.PAI Foundation v. State of Karnataka[1] (hereinafter called, TMA Pai Foundation). The question also assumes importance because of peculiar and unique position of the State, having regard to special provisions in Article 371-D of the Constitution of India with respect of State of Andhra Pradesh. BACKGROUND FACTS The fact of the matter is not in dispute. The petitioner is a registered educational trust. It identified Chinakondrupadu village in Guntur District for starting a medical college. It invested an amount of Rs.26 crores to purchase land, and construction of buildings – library, laboratory and auditorium. The Government of Andhra Pradesh issued Essentiality Certificate for establishment of medical college at Chinakondrupadu Village on 28.1.2002 to enable the petitioner to establish medical college with one hundred (100) seats. The petitioner then approached the Government of India in Ministry of Health and Family Welfare Department, who gave a letter of intent on 30.9.2002. In accordance with the scheme prepared by Medical Council of India the petitioner applied for permission to Government of India for establishing a new medical college. By letter dt.23.10.1992 the under Secretary to Government of India communicated the approval of the Central Government for establishing medical college in the name and style of Katuri Medical College and Hospital with annual intake of one hundred (100) students from the academic year 2002-03 under Section 10(A) of the Indian Medical Council Act, 1956. The said approval was given subject to condition that 85% of the students are admitted in the college through the competent authority of the State Government. The petitioner thereupon approached the NTR University of Health Sciences, Vijayawada for affiliation. The University by proceedings dt.2.11.2002 accorded provisional affiliation and gave permission to the petitioner to make admissions into first year MBBS course for the academic year 2002-03 with intake of one hundred (100) students as per Rules. In State of Andhra Pradesh admission to Professional courses, including first year MBBS and first year BE/ B.Tech courses is by conducting common entrance test. The same known as Engineering Agricultural and Medical Common Entrance Test (EAMCET 2002) was held and a merit list was published. After inviting applications from the candidates seeking admission to first year MBBS course, a notification dt.26.11.2002 was published by NTR University of Health Sciences inter alia informing that counselling for admission of students to petitioner’s college will be held along with other colleges. The counselling which was to be held on 2.12.2002 was postponed to 11.12.2002. In the mean while, it appears, the petitioner issued admission notice in Times of India dt.9.11.2002 inviting applications for first year MBBS course for 2002-03. They contend that having regard to the decision of the Apex Court the Government has no power or authority to conduct any counselling for admission to petitioner’s college. This Court while admitting the writ petition passed interim orders on 10.12.2002 restraining any counselling for the purpose of allotment of students to the petitioner’s college. The petitioner’s college was also restrained from admitting any students to the college. Aggrieved by the same, the petitioner preferred a writ appeal. The same being W.A.No.64 of 2003 was disposed of on 9.1.2003 directing that the matter be heard finally and expeditiously. That is how the writ petition has been set down for hearing. In the counter-affidavit filed by the State, the second respondent herein, it is stated that having regard to the provisions of A.P.Educational Institutions (Regulation of Admissions & Prohibition of Capitation Fee) Act, 1983, (Act No.5 of 1983) (for short, the Act) and also having regard to the relevant Rules, admissions to all professional colleges are to be made by competent authority under the Act and the Rules after conducting counselling to the candidates who obtained ranks in EAMCET. The details of the counselling are also mentioned in the counter- affidavit. It is further stated that admission of students and fee structure are inter- linked and as the Act prohibits capitation fee, the petitioner cannot ignore the provisions of Section 7 of the Act and Rule 7(5) of the A.P. Professional Educational Institutions (Regulation of Admission into Under-Graduate Professional Course Through Common Entrance Test) Rules, 1993. It is also stated that pursuant to the judgment of the Supreme Court in TMA Pai Foundation, which was delivered on 31.10.2002, so as to frame Rules and Regulations the Government of Andhra Pradesh appointed a Committee to study various aspects of the judgment of the Supreme Court vide orders passed in G.O.Rt.No.947, Higher Education (EC.2) Department, dt.9.12.2002. The Government of Andhra Pradesh also appointed a Cabinet Sub-Committee vide G.O.Ms.No.2, Higher Education (EC) Department, dt.22.1.2003 to finalise and submit recommendations for admission into professional colleges for the academic year 2003-04. The Government of Andhra Pradesh held a meeting with all managements of private medical colleges on 3.12.2002 and all of them agreed to the proposal to continue the counselling and follow same procedure. Accordingly, during the first phase of counseling from 23.9.2002 to 3.10.2002 as well as second phase of counselling held from 11.12.2002 to 14.12.2002 seats were filled up in all medical colleges including private medical colleges and classes were also commenced. In view of the interim orders passed by this Court on 10.12.2002 admissions to petitioner’s college were not made. The counter affidavit filed by the University is also to the same effect. It is also stated by the University that all the private medical colleges are required to follow regulations framed by University. SUMMARY OF THE SUBMISSIONS BY THE PETITIONER’S COUNSEL Sri V.R.Reddy, learned Senior Counsel appearing for the petitioner, submits that Rules and Regulations which prescribe the method and manner of admission to students into unaided non-minority private medical colleges and the fees payable by the students admitted in such colleges were made pursuant to a scheme evolved by the Supreme Court in Unni Krishnan v. State of A.P.[2] (for short, Unni Krishnan). The said scheme has been held unconstitutional by the Supreme Court in TMA Pai Foundation. That being so, the State cannot claim any right of sending students through counselling for admission to first year MBBS course in the petitioner’s college. The petitioner should be allowed to have its own admission programme and fee structure subject to limitations laid down by the Supreme Court in the recent judgment. In support of this submission, reliance is placed on various paragraphs from the majority judgment rendered by Hon’ble the Chief Justice of India. Secondly, it is the contention of the learned Senior Counsel that the petitioner has a fundamental right under Article 19(1)(g) of the Constitution to establish and administer private professional college. The enjoyment of the said right can only be subjected to reasonable restrictions under Article 19(6) of the Constitution. As the Supreme Court observed that two-tier fee structure – one fee for free seats and another fee for payment seats; the State or the University cannot have any say in the matter of fee structure, much less compelling the petitioner college to collect the prescribed fee for payment seats and free seats. The Supreme Court also held that admission of students to private college is necessary and incidental to the right of private management to administer its own institution. Therefore, any attempt by the State to impose and implement the earlier scheme would be contrary to the decision in TMA Pai Foundation. In the matter of admissions as well as fee structure the Supreme Court has already adverted to this matter and therefore any conditions or stipulations in relation to these would be unreasonable restrictions. Thirdly, it is submitted that the State is bound to reframe or re-promulgate new Rules and Regulations or a scheme to be in tune with the law declared by the Supreme Court in TMA Pai Foundation. The State already constituted two committees to look into these aspects. Pending such action, if admissions to petitioner’s college are stalled huge expenditure of about Rs.26 crores made by the petitioner would go waste. The petitioner’s college cannot be denied the fundamental right under Article 19(1)(g) of the Constitution while the State takes its own time to re-promulgate or reissue rules governing admissions and fee structure in private medical colleges. This submission is made as alternative submission praying this Court to mould the relief and issue directions for admission of students to first year MBBS course fixing reasonable quota for the management leaving other seats to be filled up by State agency. In this regard, the judgment of a Division Bench of Kerala High Court in Malankara Orthodox Syrian Church v. State of Kerala (passed in O.P.No.39333 of 2002, dt.20.1.2003) has been brought to my notice whereby and whereunder Kerala High Court allowed private minority medical colleges to fill up 75% of seats on their own and 25% to be filled by candidates recommended by the State. The Kerala High Court also directed that private colleges shall be entitled to charge fee at the rate of Rs.1.5 lakhs per student whether admitted to free seat or payment seat. SUMMARY OF THE SUBMISSIONS BY ADDL. ADVOCATE GENERAL Sri Ramesh Ranganadhan, learned Additional Advocate General for the State of Andhra Pradesh, submits that the scheme evolved in Unni Krishnan (supra) was not totally overruled in TMA Pai Foundation case. The Supreme Court only held that the percentage of seats left to the management depends on the need and local conditions and there cannot be a rigid formula of reserving 50% for management quota. The appropriate seats to be filled by management have to be decided by the State. Even after decision is taken, as per the decision in TMA Pai Foundation private medical college is bound to admit students from out of the list prepared after common entrance test by the State agency. Private medical college cannot be allowed to have its own entrance test or admission programme. He submits that there are special provisions in the Constitution for Andhra Pradesh and this cannot be ignored while making admissions to educational institutions. He relies on Article 371-D of the Constitution, and the Andhra Pradesh Educational Institutions (Regulation of Admissions) Order 1974 promulgated by President of India in exercise of powers conferred on him under Article 371-D(2) of the Constitution. He also relies on Act No.5 of 1983 which has overriding effect and prohibits capitation fee in any form. Further, reliance is placed on A.P. Professional Educational Institutions (Regulation of Admission into Undergraduate Professional Courses Through Common Entrance Test) Rules, 1993, which are made in exercise of powers conferred under Section 15 of Act No.5 of 1983, as well as the Regulations made by University of Health Sciences for admission to first year MBBS course 2002-03. It was the submission of the learned Additional Advocate General that while implementing and enforcing the law laid down by the Supreme Court in TMA Pai Foundation various Statutes cannot be ignored. The State is required to make rules within the framework of Statute law as well as the law declared by the Supreme Court. Pending such exercise it is not competent for the Court of judicial review to mould the relief in such a manner which amounts to legislation. The petitioner’s medical college was never excluded from admission programme for the academic year 2002-03. During the second phase of counselling pursuant to notification dt.4.12.2002 the petitioner’s college was also included as one of the colleges where admissions are made in the ratio of 85:15 for EAMCET candidates and Non-Resident Indian (NRI) candidates respectively. It is nextly submitted that in the matter of admissions, private medical college is not entitled to have its own test or for that matter no professional college can do so. They can only select candidates based on merit on the basis of common entrance test conducted by the Government agency. In the matter of fee structure also as per Section 7 of Act No.5 of 1983 it is for the Government to prescribe the fees to be collected by the Government and private college cannot have its own fee structure. These matters are essentially within the purview of the executive in the realm of policy and therefore Courts would not interfere in these matters. Reliance is placed on the decision of the Supreme Court in Balco Employees’ v. Union of India[3]. Decisions of this Court in Pennar Delta Ayacutdars Assn. v. Government of Andhra Pradesh[4], and Assn. of Drugs and Pharmaceuticals Manufacturers v. A.P.H.M. H.& I.D.C.[5] are also relied on for the same purpose. It is also the submission of the learned Additional Advocate General that the State cannot be compelled to make Rules in exercise of delegated powers under Statute. He relies on decision of Full Bench of this Court in A.P.Sarpanchas Assn. v. Government of Andhra Pradesh[6]. POINTS FOR CONSIDERATION The controversy in this case, in the background of the legal environment in the State of Andhra Pradesh as well as the decision of the Apex Court in TMA Pai Foundation gives rise to two main points for consideration. 1. After the decision of the Supreme Court in TMA Pai Foundation v. State of Karnataka (supra) whether private unaided non-minority professional medical college is entitled to have its own admission programme and fee structure? 2. Whether it is permissible for this Court exercising power of judicial review under Article 226 of the Constitution to give declaration enabling the petitioner to fill up all the seats as per their own admission programme and their own fee structure ignoring the State enactments and the Rules which are in force? IN RE POINT NO.1. This point requires consideration of questions – (i) What is the ratio in TMA Pai Foundation? (ii) To what extent Unni Krishnan v. State of A.P. (supra) was overruled by Larger Bench in TMA Pai Foundation ? (iii) What is the effect of Andhra Pradesh State enactment and Rules after judgment in TMA Pai Foundation? (iv)Whether private professional colleges have unbridled power of autonomy de hors the State law? (v) Whether unaided professional colleges can admit students by conducting their own entrance test ? and, (vi) Whether private professional colleges can have their own fee structure ? Ratio in TMA Pai Foundation For better appreciation of the decision of the Constitution Bench of eleven Judges, background of the case in brief may be noticed. Article 30 of the Constitution confers fundamental right on minorities to establish and administer educational institutions on their own choice. The enforcement of the fundamental right has given rise to a large volume of litigation in the Constitutional Courts since 1954. Judicial opinion has been largely unanimous that Article 30(1) of the Constitution does not confer an absolute right. The exercise of such right is subject to permissible State regulations with an eye on preventing mal- administration. Any State regulation on exercise or enjoyment of the right under Article 30(1) which deprives the minorities “to establish and ‘administer’” educational institutions would infringe the fundamental right and is impermissible. Since the decisions of the Supreme Court in State of Bombay v. Bombay Education Society[7] and In Re Kerala Education Bill, 1957[8] and in catena of decisions, “permissible regulations” and “impermissible regulations” (call them regulations if one wants) are almost well settled. Some of the permissible regulations/restrictions governing enjoyment of Article 30(1) of the Constitution are – (i) Guidelines for the efficiency and excellence of educational standards (See Sidhbajbhai v. State of Gujarat[9] State of Kerala v. Mother Provincial[10] All Saints High School v. Government of Andhra Pradesh[11]); (ii) Regulations ensuring the security of the services of the Teachers or other employees (See In Re Kerala Education Bill, and All Saints High School v. Government of A.P. (supra)); (iii) Introduction of an outside authority or controlling voice in the matter of service conditions of employees (See All Saints High School v. Government of A.P. (supra)); (iv) Framing Rules and Regulations governing the conditions of service of teachers and employees and their pay and allowances (See State of Kerala v. Mother Provincial (supra) and All Saints High School v. Government of A.P. (supra); (v) Appointing a high official with authority and guidance to oversee that Rules regarding conditions of service are not violated, but, however such an authority should not be given blanket and uncannalised and arbitrary powers (See All Saints High School v. Government of Andhra Pradesh (supra)); (vi) Prescribing courses of study or syllabi or the nature of books (See State of Kerala v. Mother Provincial (supra) and All Saints High School v. Government of A.P. (supra)); and (vii). Regulation in the interest of efficiency of instruction, discipline, health, sanitation, morality, public order and the like (See Sidhbajbhai v. State of Gujarat (supra)). Some of the impermissible regulations are (i) Refusal to affiliation without sufficient reasons (All Saints High School v. Government of A.P. (supra)); (ii) Such conditions as would completely destroy the autonomous administration of the educational institution (All Saints High School v. Government of A.P. (supra)); (iii) Introduction of an outside authority either directly or through its nominees in the governing body or the managing committee of minority institution to conduct the affairs of the institution (All Saints High School v. Government of A.P. (supra)). (iv) Provision of an appeal or revision against an order of dismissal or removal by an aggrieved member of staff or provisions for Arbitral Tribunal (See St. Xaviers College v. State of Gujarat[12], Lilly Kurian v. S.R. Lewina[13] and All Saints High School v. Government of A.P.(supra); and (v) The management of the minority institution must be free of control so that the founders or their nominee can mould the institution as they think fit, and no part of this management can be taken away and vested in another body without an encroachment upon the guaranteed right (See State of Kerala v. Mother Provincial (supra) and All Saints High School v. Government of A.P. (supra)). In St. Stephen’s College v. University of Delhi[14] a question arose as to whether in exercise of its right under Article 30(1) of the Constitution a minority educational institution is entitled to accord preference to reserve seats for students of their community and whether such preference or reservation would be invalid under Article 29(2) of the Constitution. A Constitution Bench of five learned Judges of the Supreme Court in St. Stephen’s College v. University of Delhi (supra) held that Article 30 did not clothe a minority educational institution with the power to adopt its own method of selection. It was held that allowing minority educational institution to adopt its own method of selection for admission of students to the extent of 50% of the seats would not impinge upon the right under Article 30 of the Constitution. It was also held that State can regulate intake of minority category with due regard to the language of community in the area which the institution is intended to serve. The correctness of the decision in St. Stephen’s College v. University of Delhi (supra) was doubted by another Constitution Bench of five Judges in Writ Petition No.350 of 1993 filed by Islamic Academy of Education. When the matter was placed before a Larger Bench of seven Judges, the matter was directed to be placed before Bench of at least eleven Judges for an authoritative pronouncement having regard to the Constitution (Forty-second) Amendment Act, 1975 whereby the subject ‘education’ was included in entry 25 of List-III of Seventh Schedule (concurrent list). The questions referred to Larger Bench were reframed by eleven Judges as under. 1. What is the meaning and content of the expression “minorities” in Article 30 of the Constitution of India ? 2. What is meant by the expression “religion” in Article 30(1) ? Can the followers of a sect or denomination of a particular religion claim protection under Article 30(1) on the basis that they constitute a minority in the State, even though the followers of that religion are in majority in that State ? 3.(a) What are the indicia for treating an educational institution as a minority education institution ? Would an institution be regarded as a minority educational institution because it was established by a person(s) belonging to a religious or linguistic minority or its being administered by a person(s) belonging to a religious or linguistic minority ? (b) To what extent can professional education be treated as a matter coming under minorities’ rights under Article 30 ? 4. 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 ? 5.(a) Whether the minorities’ rights to establish and administer educational institutions of their choice will include the procedure and method of admission and selection of students ? (b) Whether the minority institutions’ right of admission of students and to lay down procedure and method of admission, if any, would be affected in any way by the receipt of State aid? (c) Whether the statutory provisions which regulate the facets of administration like control over educational agencies, control over governing bodies, conditions of affiliation including recognition/withdrawal thereof, and appointment of staff, employees, teachers and principals including their service conditions and regulation of fees etc. would interfere with the right of administration of minorities ? 6.(a) Where can a minority institution be operationally located ? Where a religious or linguistic minority in State A establishes an educational institution in the said State, can such educational institution grant preferential admission/reservations and other benefits to members of the religious/linguistic group from other States where they are non-minorities ? (b) Whether it would be correct to say that only the members of that minority residing in State A will be treated as the members of the minority vis-à-vis such institution? 7. Whether the member of a linguistic non-minority in one State can establish a trust/society in another State and claim minority status in that State ? 8. Whether the ratio laid down by this Court in St.Stephen’s case (St.Stephen’s College v. University of Delhi) is correct ? If no, what order ? 9. Whether the decision of this Court in Unni Krishnan, J.P. v. State of A.P. (except where it holds that primary education is a fundamental right) and the scheme framed thereunder require reconsideration/modification and if yet, what ? 10. Whether the non-minorities have the right to establish and administer educational institution under Articles 21 and 29(1) read with Articles 14 and