-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 1970 OF 2007 1. Shri Vile Parle Kelavani Mandal, ) a Society registered under the Societies ) Registration Act, having its office at Shri Bhaidas ) Maganlal Sabhagriha Bldg., Bhaktivedanta Swami ) Marg, Juhu Scheme,Vile Parle (West), ) Mumbai-400 056 ) 2. SVKM's Dwarkadas J. Sanghvi College of ) Engineering, having its office at Plot No. U-15 ) Juhu Scheme, Bhakti-Vedanta Swami Marg, ) Vile Parle (West), Mumbai-400 056 ) 3. SVKM's Dr. Bhanuben Nanavati College of ) Pharmacy, having its office at Gate No. 1, ) Mithibai College Campus, 1st floor, V.M. Road, ) Vile Parle (West), Mumbai-400 056. ) 4. Dr. Shrihari, I/c Principal, ) SVKM's Dwarkadas J. Sanghvi College of ) Engineering, having its office at Plot No. U-15 ) Juhu Scheme, Bhakti-Vedanta Swami Marg, ) Vile Parle (West), Mumbai-400 056 ) 5. Dr. (Smt.) N.D. Grampurohit, ) SVKM's Dr. Bhanuben Nanavati College of ) Pharmacy, having its office at Gate No. 1, ) Mithibai College Campus, 1st floor, V.M. Road, ) Vile Parle (West), Mumbai-400 056. )..Petitioners versus 1. State of Maharashtra ) to be served through the Government Pleader, ) having its office at Ground Floor, PWD Building, ) High Court, Mumbai-400 023. ) -2- 2. Pravesh Niyantran Samiti, having its office ) at 305, 3rd floor, Government Polytechnic Building ) 49, Kherwadi, AliYavar Jung Marg, ) Bandra (East), Mumbai-400 051 ) 3. Director of Technical Education, ) Maharashtra State, having his office at ) 3, Mahapalika Marg, Post Box No. 1967, ) Mumbai-400 001 ) 4. University of Bombay, Fort, ) Mumbai-400 023. )..Respondents Mr. V.A.Thorat with Mr. G.S. Kulkarni and Mr. R. Sahu, instructed by M/s. S.K. Srivastava for the petitioners. Mr. A.A. Kumbhakoni, Associate Advocate General, with Ms. Geeta Shastri, Assistant Government Pleader, for the State. Mrs. Deepa Chavan for respondent No.2. Mr. B.V. Phadnis for respondent No.2. CORAM: SWATANTER KUMAR, C.J. & J.P. DEVADHAR, J. Judgment reserved on : March 04, 2008 Judgment delivered on: March 13 , 2008 JUDGMENT (Per Swatanter Kumar, C.J.): Rule. Rule made returnable forthwith. Heard parties. 2. Petitioner No.1, a society registered under the Societies Registration Act, 1960, and also a public charitable trust registered -3- under the Bombay Public Trust Act, 1950, is running the managements of SVKM's Dwarkadas J.Sahghvi College of Engineering and SVKM's Dr.Bhanuben Nanavati College of Pharmacy at Mumbai, petitioner Nos. 2 and 3. Both these educational institutions are affiliated to the University of Mumbai, respondent No.4. These educational institutions are being run after obtaining approval from Respondent No.3 Director of Technical Education. Both these institutions claim that they are Gujarati Linguistic Minority unaided educational institutions and in terms of the judgment of the Supreme Court in the cases of (i) T.M.A. Pai Foundation vs. State of Karnataka, 2002 (8) SCC 481, (ii) Islamic Academic Education vs. State of Karnataka, 2003 (6) SCC 697, and (iii) P.A. Inamdar vs. State of Maharashtra, 2005 (6) SCC 537, they have a right to admit students of their choice by adopting a fair admission process. Vide their letter dated 12th June, 2006, petitioner No.2 had informed the official respondents that their institute will not be joining the Common Admission Process (CAP) for the First Year Engineering (FE) admission for the academic year 2006-2007. They published an advertisement inviting applications from eligible candidates for admission to First Year Engineering courses. This was also informed by the first petitioner to the third respondent vide letter dated 29th June, 2006. On 3rd July, 2006, the third petitioner college informed -4- respondent No.3 that they will be filling 100 per cent of the seats and that the students will be selected who have undertaken MH-CET 2006- 07 and would be releasing advertisements inviting applications for admission to the first Year B. Pharma Degree Course. Similar intimation was also sent vide letter dated 6th July, 2006, by the second petitioner about filling up of the first year seats in the Engineering course. On 4th July, 2006, an advertisement was published by the third petitioner inviting applications for admission to the first year Bachelor in Pharmacy and that the College is Gujarati linguistic minority institute claimed to have authority to fill all 100 per cent seats in the manner indicated in their advertisement. Vide letters dated 20th November, 2006 and 21st November,2006, the third and second petitioners sent the list of the candidates admitted to the first year B. Pharma and the first year Engineering courses respectively to the respondents. 3. The second respondent in its meeting dated 24th September, 2006 had decided to verify and check the list of admitted students in the Academic Year 2006-2007 for the higher and technical education courses in all private and unaided institutions. It is only after the approval of second respondent that the admission would be treated as proper admissions. Vide their letter dated 6th February, 2007, the third -5- petitioner again had informed the respondents that they would be admitting students in terms of the judgments of the Supreme Court and they would not join the Central Admission Process (“CAP” for short) for the first year B. Pharma Courses for the Academic year 2007-2008 and all 100 per cent seats will be filled as permitted to fill by unaided minority institutions. 4. It is averred by the petitioners that the original documents were verified by the Samiti as well as by the Directorate of Technical Education and they were requested to give acknowledgments of the records and finalise the admission of the students. According to the respondents, the admission process conducted by the petitioners was not proper and not in accordance with law. The Samiti in their meeting held on 12th October, 2006, had decided to penalise the Colleges for not participating in the CAP rounds of the admission of B. Pharma for the Academic Year 2006-2007 and after rejecting the contentions raised by the College, had decided to penalise the petitioners. This decision was communicated for compliance to the petitioners on 28th February, 2007. By way of penalty, the Samiti decided to charge 50 per cent of the total collected fees from the students admitted to the first year of Engineering and B. Pharma in both these Colleges and for not participating in the -6- MH-CET for the same year. The petitioners were directed to deposit the amount within one month. Approval to the admission of the students was not granted till the Samiti receive the amount of penalty imposed by them upon these colleges. 5. On 11th June, 2007, the petitioners filed a representation requesting for review of the order dated 28th February, 2007 on various grounds stated in that representation. Admittedly, hearing was granted to the petitioners. Before the Samiti it was contended that they had granted admissions in a transparent manner and strictly on merits and no complaints had been received. Whereafter the Samiti reviewed its decision and in its meeting held on 16th June,2007, reduced the penalty to 10 per cent of the total fee paid by the students for the purposes of admission. It will be useful to refer to the relevant part of the said report at this stage itself. “It is inter alia contended and pointed out that both the institutions are maintained under the Gujarathi linguistic minority and the students admitted in the said courses have been admitted from the CET conducted by the State Government and all the admissions granted to the students are purely on the merit basis and in the transparent manner. The reliance is placed on certain decisions of the Hon'ble Supreme Court viz. P.A. Inamdar vs. State of Maharashtra, Islamic Academy of Education vs. State of Karnataka and T. M.A. Pai Foundation vs. State of Karnataka,e tc. Based on the said decisions, a contention is raised that it will not be open to insist that minority -7- institution should grant admission on the basis of CET conducted by either by the State Government or Association. It is further contended that the present institutions have granted admissions on the basis of CET conducted by the State Govt. It is further pointed out that the students who have been granted admission are the ones who have passed the CET conducted by the State Govt. The said admissions are granted in transparent manner and strictly on merit and no complaints have been made or received in that behalf. The penalties, which have been imposed on the aforesaid institutions, are on the ground that they have not joined or participated in Common Admission Process (CAP). Though this is the case, the students who have been granted the admissions are ones who have been selected by the CET conducted by the State Govt. In the circumstance, the imposition of a penalty of 50% of the total fees collected from the students cannot be justified. Having considered the aforesaid submissions advanced, the Samiti is of the view that since these admissions are granted in a transparent manner and strictly on the merit and no complaints have been made or received in that behalf. The only lacuna, which can be found against the institutions, is the non-observance of the CAP system and the procedure adopted for the grant of the admissions was not intimated by the institutions to the Samiti well in advance. It is further pointed out that these institutions have submitted the list of the students admitted after following the aforesaid admission process. On consideration of the aforesaid submissions advanced by Shri S.K. Srivastav, learned counsel, appearing on behalf of the institutions, is of the view that the penalty of 50% of the total fees collected for the purpose of grant of admissions is heavy and same deserves to be reduced. The same is, accordingly, reduced to 10% of the total fees paid by the students for the purpose of admissions.” This decision was communicated to the petitioners. The petitioners -8- have taken exception to the above order, at Exhibit-N to the petition, on the ground that the order is erroneous on the face of it and causes grave injustice to the petitioners. In terms of the judgment of the Supreme Court in Inamdar's case (supra), the State cannot enforce percentage of admission and the minority institutions are free to admit students of their own including the students of non-minority community. This amounts to interference in the internal management of the educational institutions belonging to the linguistic minority. It is also stated that penalty is otherwise harsh, illegal and bad in law. In fact, according to the petitioners, this even violates Articles 14, 19 (1) (g), and 21 of the Constitution of India. 6. We heard the learned counsel appearing for the respective parties at some length. Both parties are relying upon different paragraphs of the judgments referred above. It is commonly accepted by both sides that there was no specific or special power vested in the Samiti or the respondents empowering them to impose penalty for breach of any of the conditions stated in the judgment. In terms of the Supreme Court in the case of Islamic Academy (supra) State is expected to frame Rules and Regulations for regulating the admissions to these courses. Admittedly, no Rules, Regulations or even for that matter -9- guidelines have been framed and circulated by the State Government. Absence of such directives/regulations being issued by the State has in fact resulted in filing of the present petition. 7. According to the learned counsel appearing for the petitioners, the respondents have no authority or power to impose such a penalty, while according to the respondents, the directions of the Supreme Court that the Samiti/Committee shall be constituted to act as regulatory body for admission to these professional courses would ipso facto include the power to impose penalty in the event of default or non-compliance to the requirements of the scheme. In Islamic Academy (supra) the Supreme Court, while explaining the law stated in T.M.A. Pai Foundation' s case (supra) dealt with the question “to what extent can the rights of aided private minority institutions to administer being regulated?. This was answered in paragraph 15 of the judgment where the Court stated that minority professional colleges can admit in their management quota students of their own linguistic community in preference to a student of another community, even though the other student is more meritorious. However, while selecting/admitting students of their community, the inter se merits of those students cannot be ignored. Admission must strictly be on the basis of merit -10- except that in cases where the admission seats of such students cannot be filled up by the members of the community/language, then other students can be admitted only on the basis of merit based on CET conducted by the Government agencies. This regulatory control over the admissions and holding of common entrance test was further discussed in great detail in the same judgment. The Supreme Court in paragraph 19 of the judgment issued directions to the respective State Governments to appoint a permanent Committee which will ensure that the test conducted by the Association of Colleges is fair and transparent and for each State there shall be a separate Committee headed by a retired Judge of the High Court. 8. Learned counsel appearing for the official respondents, while referring to paragraphs 136, 142 and 143 of Inamdar's judgment argued that no right of the petitioners was violated in any manner whatsoever and the Samiti was ensuring that a fair and transparent method of admission was adopted by the petitioners while admitting students against the seats available with them. The petitioner- institutions are bound by the directive contained in these judgments and despite the fact that State might not have issued specific Rules, Regulations or directives, still they have to be part of the CET/CAP or -11- the minority institutions imparting similar education are expected to hold their own entrance test and then accord admission to the students from the merit list so prepared. The students, whether appearing through the CET or the test conducted by the minority institutions, are free to have college and subject preference choice as per their merit. This right of the students cannot be taken away as it is squarely covered by the dictum of the Supreme Court. This nowhere violates either right of management or the protection available to these institutions under the constitutional mandate. As already noticed, even in the case of Inamdar (supra), the Supreme Court has clearly stated that even for admission of the minority linguistic or minority institutions inter se merit between such candidates would be the sole criteria for admission but for such procedure the admissions would neither be fair nor there would be any method of examining the transparency in the admission process. 9. Learned counsel appearing for the petitioners relied upon paragraphs 137 and 144 of the Inamdar's case to contend that the admissions given by them in their minority institutions cannot be controlled by the Samiti. In paragraph 136 of that judgment, the Supreme Court clearly noticed that there was nothing wrong in an -12- entrance test being held for one group of institutions imparting same and similar education. Such institutions situated in one State or in more than one State may join together for holding such an entrance test. Out of such common merit list, the successful candidates can be identified and chosen for being allotted to different institutions depending on the courses of study offered, the number of seats, the kind of minority to which the institution belongs and other relevant factors. Such an agency conducting the CET must be one enjoying utmost credibility and expertise in the matter. Such approach, according to the Supreme Court, would ensure the fulfilment of twin objects of transparency and merit. This would not cause any dent in the right of minority unaided educational institutions to admit students of their choice. Such choice can be exercised from out of the list of successful candidates prepared at CET without altering the order of merit inter se of the students so chosen. In paragraph 137 of the said judgment, while referring to judgment of Pai Foundation case, it was noticed that unaided minority institutions could legitimately claim unfettered fundamental right to choose the students to be allowed admission and the procedure therefor subject to its being fair, transparent and non-exploitative. It was noticed that State can always provide a procedure of holding a CET in the interest of securing fair and merit based admissions and -13- preventing maladministration and if the admission process adopted by private institutions fails to satisfy all or any of the triple tests indicated above, then it can be taken over by the State substituting its own procedure. In paragraph 138 of the said judgment, the Supreme Court also emphasised the need and necessity for such institutions to regulate admissions by providing centralised and single-window procedure as it will help in grant of merit based admissions on a transparent basis. We may usefully notice here the observations and decisions of the Supreme Court in paragraphs 143 and 144 of the said judgment which read as under: “The learned Senior Counsel appearing for different private professional institutions, who have questioned the scheme of permanent Committees set up in the judgment of Islamic Academy very fairly do not dispute that even unaided minority institutions can be subjected to regulatory measures with a view to curb commercialisation of education, profiteering in it and exploitation of students. Policing ism permissible but not nationalisation or total takeover, submitted Shri Harish Salve, the learned Senior Counsel. Regulatory measures to ensure fairness and transparency in admission procedures to be based on merit have not been opposed as objectionable though a mechanism other than formation of Committees in terms of Islamic Academy was insisted on and pressed for. Similarly, it was urged that regulatory measures, to the extent permissible, may form part of conditions of recognition and affiliation by the university concerned and/or MCI and AICTE for maintaining standards of excellence in professional education. Such measures have also not been questioned as violative of the educational rights of either minorities or non-minorities. -14- 144. The two Committees for monitoring admission procedure and determining fee structure in the judgment of Islamic Academy are in our view, permissible as regulatory measures aimed at protecting the interest of the student community as a whole as also the minorities themselves, in maintaining required standards of professional education on non-exploitative terms in their institutions. Legal provisions made by the State Legislatures or the scheme evolved by the Court for monitoring admission procedure and fee fixation do not violate the right of minorities under Article 30 (1) or the right of minorities and non-minorities under Article 19 (1) (g). They are reasonable restrictions in the interest of minority institutions permissible under Article 30 (1) and in the interest of general public under Article 19 (6) of the Constitution.” 10. From a plain analysis of the above decisions, which are noticeable in all the judgments of the Supreme Court right from T.M. A. Pai Foundation case, clearly show that the private minority institutions are expected to follow an admission process which is fair, transparent and does not defeat the merit, whether for admission of internal or external candidates. The contention raised on behalf of the petitioners that Committee's regulatory power impinges upon their freedom is thus without any substance and merit. In the present case, it cannot be disputed that both the institutions had specifically written to the Committee and other official authorities that they would not be part of the CET and thus did not furnish details of their seats prior to issuance -15- of the prospectus for admission to the courses. In other words, the candidates from the CET were not aware of the availability of the course or the seats in the institution of the petitioners. They, for reasons best known to them, neither became part of the general admission nor CET held by the minority institutions. They stood outside the process of admission contemplated under the judgments of the Supreme Court. Of course, later they have taken up the stand that they gave admission to the students from the merit list declared by the State from its own entrance test and these admissions have been found to be fair by the Committee itself and as such there was no occasion for imposition of any penalty. 11. Firstly, we will proceed on the basis that there is no apparent irregularity in the admission granted by the petitioners as claimed, even if the petitioner colleges are at fault. It is an admitted fact in the petition and even before us that these institutions stood outside the regular procedure of admission through CET. They had specifically written to the respondents that they would not be part of the common admission process for 2006-2007 and that all 100 per cent seats, 50 per cent of which would be reserved for Gujarati community would be done by the College. Also, it is not in dispute that these Colleges did not conduct -16- any entrance test. Even if they have adopted the selected list prepared by the State and have taken candidates in order of merit, still they denied the fair opportunity not only to the general candidates but even the candidates belonging to the linguistic minority of taking admission to these institutions on their own merit obviously for the reason that their names were not reflected in the prospectus issued by the State Government and for that matter even in the prospectus issued by the CET conducted by the minority institutions. Deprivation of availability of seats and institutions to the students obviously results in defeating the concept of “admission strictly on merit”. This process adopted by these institutions is contrary to the judgments of the Supreme Court and patently was at the relevant time neither transparent nor fair so as to attain the third object of merit. The samiti noticed that there was a lacunae in the process of admission by these institutions being non- observance of the CAP system and the procedure adopted for grant of admission was not intimated by the institutions to the Samiti well in advance. The stand taken by the institutions that they were minority institutions and thus were free to admit students of their own choice was rightly rejected by the Samiti. 12. The appointment of the committee is not only to oversee the -17- process of admission but also to ensure, by taking such measures as may be necessary, that the admission process is fair, transparent and is in conformity with the basic requirement of admission on merits. As already noticed, even for the reserved seats, the management of the college is expected to maintain interse merit list of the candidates reserved in the minority institutions or linguistic minority institutions. In the case of `Islaimc Academy of Education', while directing the State Government to constitute permanent committees, the dictum of the Supreme Court clearly state that these permanent committees ought to ensure that the test conducted by the Association of Colleges is fair and transparent. The committee was given specific powers to oversee the test to be conducted by the Association and this included the power to call for the proposed test question papers to know the names of paper- setters any other details about the examination, checking method adopted to ensure that papers are not leaked and to supervise and ensure that the test is conducted in a transparent manner. These directions were to remain in force till the time approporiate legislation was enacted. This object was re-emphasised by the Supreme Court even in the case of `P.A. Inamdar', where the court stated that twin objects of transparency and merit are to be satisfied in the process of admission to the minority institutions during the common entrance test. -18- In paragraph 137 of the judgment, the court unambiguously stated that if the admission process so adopted