IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 25/08/2004 CORAM THE HONOURABLE MR.JUSTICE P.K. MISRA AND THE HONOURABLE MR.JUSTICE A.K. RAJAN WRIT APPEAL No.2707 OF 2004 AND WRIT APPEAL NOS., 2856, 2920 & 3053 OF 2004 and W.A.M.P.NOs. 4991, 5285, 5399 & 5655 OF 2004 W.A.No.2707 of 2004 All India Medical and Engineering Colleges Association (Reg.No.128/2004) rep.by its President, Dr.T.D.Naidu. ... Appellant -vs- 1. Permanent Committee for the conduct of Common Entrance Test, Rep. by its Member-Secretary, Higher Education Department, Secretariat, Chennai 600 009. 2. The Government of Tamil Nadu rep. by its Secretary, Higher Education Department, Chennai 600 009. 3. Anna University, rep. by its Registrar, Chennai 600 025. ... Respondents Writ Appeal filed under Clause 15 of Letters Patent against the order of this Court dated 13.7.2004 in W.P.No.17383 of 2004. W.A.No.2856 of 2004 1. Permanent Committee for the conduct of Common Entrance Test, rep. by its Member Secretary, Higher Education Department, Fort St. George, Chennai 9. 2. The State of Tamil Nadu, Represented by Secretary to Government, Higher Education Department, Fort St. George, Chennai 9. .. Appellants Vs. 1. Consortium of Professional Arts & Science Colleges in Tamil Nadu, rep. by its Secretary, No.29,Old No.12, Ganapathy Street, Royapettah, Chennai 14. 2. Anna University, represented by its Registrar, Sardar Patel Road, Guindy, Chennai 600 025. .. Respondents Writ Appeal filed under Clause 15 of Letters Patent against the order of this Court dated 13.7.2004 in W.P.No.16034 of 2004. W.A.No.2920 of 2004 Forum of Tamil Nadu Minority Self Financing Engineering Colleges, rep.by its President, Mr.R.S.Munirathanam No.29, Old No.12, Ganapathy Street, Royapettah, Chennai  600 014. ... Appellant Vs. 1. Permanent Committee for the conduct of Common Entrance Test, rep. by its Member Secretary, Higher Education Department, Fort St. George, Chennai 9. 2. The State of Tamil Nadu, Represented by Secretary to Government, Higher Education Department, Fort St. George, Chennai 9. 3. Anna University, represented by its Registrar, Sardar Patel Road, Guindy, Chennai 600 025. ... Respondents Writ Appeal filed under Clause 15 of Letters Patent against the order of this Court dated 13.7.2004 in W.P.No.16068 of 2004. W.A.No.3053 of 2004 Consortium of Professional Arts & Science Colleges in Tamil Nadu, rep. by its Secretary, No.29,Old No.12, Ganapathy Street, Royapettah, Chennai 14. ... Appellant Vs. 1. Permanent Committee for the conduct of Common Entrance Test, rep. by its Member Secretary, Higher Education Department, Fort St. George, Chennai 9. 2. The State of Tamil Nadu, Represented by Secretary to Government, Higher Education Department, Fort St. George, Chennai 9. 3. Anna University, represented by its Registrar, Sardar Patel Road, Guindy, Chennai 600 025. ... Respondents Writ Appeal filed under Clause 15 of Letters Patent against the order of this Court dated 13.7.2004 in W.P.No.16034 of 2004. !For Appellants in WA.2856/2004: Mr.N.R. Chandran Respondents 1 & 2 in WA.2707, Advocate General 2920 & 3053 of 2004 assisted by Mr.D.Krishnakumar Special Govt. Pleader For Appellant in W.A.2707/2004: Mr.K.Selvaraj ^For 1st Respondent in WA.2856/04: Dr. Rajeev Dhavan Appellant in WA.2920/2004, Senior Counsel for & 3053/2004 Mr.V.Ayyadurai & Mr.R.S. Jeevarathanam --- :COMMON JUDGMENT P.K. MISRA, J These two sets of appeals have been directed against the common order dated 13.7.2004 passed by the Honble single Judge in W.P.Nos.16034 ,16068,16095,16444 to 16447, 16659 to 16662 and 17383 of 2004 and the connected miscellaneous petitions. W.A.No.2856 of 2004 has been filed by the Permanent Committee for the conduct of Common Entrance Test and the Government of Tamil Nadu and the other three appeals have been filed by All India Medical and Engineering Colleges Association, Forum of Tamil Nadu Minority Self Financing Engineering Colleges and the Consortium of Professional Arts & Science Colleges in Tamil Nadu respectively. 2. The contesting respondent in the appeal filed by the State Government and the Permanent Committee is the appellant in the connected W.A.No.3053 of 2004, wherein the State and the Permanent Committee are the contesting respondents. 3. We have heard the learned Advocate General on behalf of the Government of Tamil Nadu and the Permanent Committee and Dr.Rajeev Dhavan, Senior Counsel for the Consortium of Professional Arts & Science Colleges in Tamil Nadu and the Forum of Tamil Nadu Minority Self Financing Colleges. Even though some of the appeals have been filed through some other counsels, those counsels have not appeared at the time when the appeals were taken up for hearing, obviously because of the boycott-call given by various Bar Associations. Since the questions raised in those appeals are also raised in the appeals in which Dr. Rajeev Dhavan made submissions, we have not thought it fit to adjourn the hearing of those matters, particularly, keeping in view the urgency in the matter of admission into unaided engineering colleges. 4. The facts and circumstances giving rise to the filing of the appeals are as follows :- As a sequel to the decision of the Supreme Court in T.M.A. PAI FOUNDATION AND OTHERS v. STATE OF KARNATAKA AND OTHERS (2002 (8) SCC 481)  hereinafter referred to as T.M.A.Pai case - rendered by the Bench consisting of eleven Judges of the Supreme court, the Constitution Bench of five Judges in the subsequent decision ISLAMIC ACADEMY OF EDUCATION AND ANOTHER v. STATE OF KARNATAKA AND OTHERS (2003 (6) SCC 697) -hereinafter referred to as Islamic Academy case -, clarified certain observations and issued direction to the States to constitute permanent Committees. The relevant portion of the directions contained in para 19 are extracted below:-  19. We now direct that the respective State Governments do appoint a permanent Committee which will ensure that the tests conducted by the association of colleges is fair and transparent. . . . The Committee shall have powers to oversee the tests to be conducted by the association. This would include the power to call for the proposed question paper(s), to know the names of the paper-setters and examiners and to check the method adopted to ensure papers are not leaked. The Committee shall supervise and ensure that the test is conducted in a fair and transparent manner. The Committee shall have the power to permit an institution, which has been established and which has been permitted to adopt its own admission procedure for the last, at least, 25 years, to adopt its own admission procedure and if the Committee feels that the needs of such an institute are genuine, to admit, students of their community, in excess of the quota allotted to them by the State Government. Before exempting any institute or varying in percentage of quota fixed by the State, the State Government must be heard before the Committee. It is clarified that different percentage of quota for students to be admitted by the management in each minority or non-minority unaided professional college(s) shall be separately fixed on the basis of their need by the respective State Governments and in case of any dispute as regards fixation of percentage of quota, it will be open to the management to approach the Committee. It is also clarified that no institute, which has not been established and which has not followed its own admission procedure for the last, at least, 25 years, shall be permitted to apply for or be granted exemption from admitting students in the manner set out hereinabove. 5. In the light of above direction, the Government of Tamil Nadu established a Permanent Committee under the Chairmanship of a retired Judge of this Court in G.O.Ms.No.69, Higher Education (J2) Department, dated 19.3.2004. In paragraph-4 of the said G.O., the functions of the Committee had been indicated. It is convenient to extract the aforesaid paragraph 4 of the said G.O., which is as follows :-  4. FUNCTIONS (i) The Committee shall have powers to oversee the tests to be conducted by the association of Colleges if any. This would include the power to call for the proposed question papers, to know the names of the paper setters and examiners and to check the method adopted to ensure papers are not leaked. (ii) The Committee shall supervise and ensure that the test is conducted in a fair and transparent manner. (iii) The Committee shall have power to permit an institution, which has been established and which has been permitted to adopt its own admission procedure for the last, at least 25 years, to adopt its own admission procedure and if the Committee feels that the needs of such an institute are genuine, to admit, students of their community, in excess of the quota allotted to them by the State Government. (iv) Before exemption any institute or varying in percentage of quota fixed by the State, the State Government must be heard before the Committee. (v) Different percentage of quota for students to be admitted by the management in each minority or non-minority unaided professional college/s shall be separately fixed on the basis of their need by the respective State Governments and in case of any dispute as regards fixation of percentage of quota, it will be open to the management to approach the Committee. No institute, which has not been established and which has not followed its own admission procedure for the last, at least 25 years, shall be permitted to apply or be granted exemption from admitting students in the manner set out hereinabove. 6. The Committee gave opportunity of hearing to various Associations of Engineering Colleges, including the representatives of the Consortium of Professional Arts & Science Colleges in Tamil Nadu, the appellant in some of the appeals and ultimately, by Proceeding No:SFPC/ PC/00014, dated 1.6.2004, gave certain directions. The Consortium of Professional Arts & Science Colleges in Tamil Nadu, other private Engineering colleges and other Associations filed several writ petitions challenging various directions issued by the Committee. It is necessary to extract only those directions, which had been specifically impugned in the various writ petitions. A. IN THE COURSE OF CONDUCTING THE ENTRANCE TEST (1) Consortium of self-finance professional, Arts and Science Colleges in Tamilnadu is permitted to conduct the entrance test for admission to undergraduate engineering courses for the entire Tamilnadu to fill up vacancies in management quota 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 its own experts also. (b) Number of questions and papers should be same as TNPCEE and the syllabus will be of Tamilnadu (Plus 2). (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. (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. B. AFTER THE EXAMINATION AND WHILE STUDENTS ARE BEING ADMITTED. 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 the 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 admissions of candidates shall be strictly according to Government of Tamilnadu norms, regarding eligibility and policy of reservation also shall be followed. 7. Learned single Judge disposed of the writ petitions with several directions. It is necessary to extract only the relevant directions which have nexus with the present appeals.  44. In fine and subject to the findings in the order, all the writ petitions are disposed of with the following directions :- (1) ....... (2) ....... (3) The directions in Clause A(1)(b) and (e) are beyond the power conferred on the Permanent Committee and, accordingly, they are set aside. (4) The direction contained in Clause A(1)(d) is in accordance with the power conferred on the Permanent Committee by the judgment in Islamic Academy case. (5) The direction contained in Clause A(1)(n) in directing the Consortium to bear the expenses of the experts is beyond the power of the Permanent Committee and, accordingly, the same is set aside and the State is directed to bear the expenses. (6) ........ (7) The unaided Minority institutions are entitled to fill 70% of the seats from among the candidates of their community and applied to their institution, but strictly on the basis of merit and the unfilled seat/seats shall be surrendered to the State for being filled by following Single Window System of admission. The unaided minority institutions need not follow the rule of reservation while admitting the students under management quota and to the above extent the direction of the Permanent Committee contained in Clause B(b)(c) is set aside. (8) The unaided non-minority institutions are entitled to fill 50% of the seats from among the students applied to each of the institutions, but strictly on the basis of merit and to this extent the direction of the Permanent Committee contained in Clause B(b) is set aside. (9) The unaided non-minority educational institutions shall follow communal rule of reservation while making admissions to the seats earmarked under the management quota and to this extent the direction of the Permanent Committee contained in Clause B(c) is sustained. (10) ........... 8. In the appeal filed on behalf of the Government of Tamil Nadu and the Permanent Committee, adverse directions of the learned single Judge, particularly the directions contained in sub-paras (3),(5) and (8) have been challenged. In the appeals filed by the Consortium of Professional Arts & Science Colleges in Tamilnadu and others, the directions contained in sub-paras (4),(7) and (9) have been challenged. 9. Before dealing with the contentions raised by the learned Advocate General in the appeal filed by the State and the learned Senior Counsel in the appeals filed on behalf of the Engineering Colleges, it is appropriate to keep in view the principles in the light of which the matter is required to be examined by the High Court under Article 226 of the Constitution. As already noticed, the Committee has been established pursuant to a direction issued by the Supreme Court in Islamic Academic case. The basic parameters of jurisdiction of such Committee have been broadly delineated by the Supreme Court. A mere examination of the constitution of such a Committee makes it clear that the Committee which is to be headed by a retired Judge of the High Court is to consist of experts in the field of education. The opinion of such a high-power Committee obviously cannot be lightly brushed aside. The decision taken by such a Committee would obviously command great respect not only from the State Government or private engineering colleges, but also from the High Court while considering the matter under Article 226 of the Constitution. Challenge made in the High Court against such a decision of the Committee must be held to be akin to a writ of Certiorari and ordinarily the High Court should not decide the matter as if it is sitting in appeal over the decision of the Committee. Of course, if the decision of the Committee is demonstrated to be beyond its purview or contrary to the guidelines indicated by the Supreme Court or arbitrary and capricious, the judiciary can step in. Ordinarily the High Court should not interfere with such decision merely because the High Court is inclined to take a different view of the matter. 10. Learned senior counsel appearing for the appellants in the appeals filed on behalf of the Engineering Colleges has challenged to the directions contained in A(1)(a) and A(1)(d). No serious objection can be raised regarding the direction in para A(1)(a) to the effect that the question papers and evaluation have to be done by the experts approved by the Committee. Even though the learned Senior Counsel has submitted that such direction takes away the discretion of the Consortium, we do not see any reason to interfere on this aspect. As a matter of fact, the learned single Judge while referring to this, has observed:-  There is no controversy on this issue. The controversy now raised should therefore be allowed to rest as such. 11. So far as direction of the committee as contained in para A(1)(d) is concerned, the effect of such direction is to ensure that some persons nominated by the Consortium should remain in charge and responsible and they may be required to act under the guidance of the nominee of the Committee. We also do not find any plausible reason to interfere with the conclusion of the Committee, which has been approved by the learned single Judge. Challenge of the Consortium on this score is unacceptable. 12. The Consortium and other appellants, who were the writ petitioners, have seriously challenged the direction of the committee as contained in B(c) to the effect that the institutions are required to follow the policy of reservation while making admission in respect of seats earmarked for the management. It is the contention of the learned Senior Counsel that in view of the observation of the Supreme Court in T.M.A.Pai case, particularly as contained in paragraphs 68 and 71, it must be taken that once the State Government carves out its own quota of 50%, which would obviously cater to the requirement regarding reservation, there is no further scope for directing the Engineering colleges to follow the principle of reservation in respect of balance 50% left to their share. 13. Learned single Judge has repelled such contention made on behalf of such writ petitioners by observing :-  Neither in T.M.A. Pai case nor in Islamic Academy case, it is held that non-minority institution need not follow rule of reservation. 14. Learned single Judge has also referred to Article 15(4) and had observed that it should be read as an exception to Article 15(1) and has also opined that the right to establish educational institutions under Article 19(1)(g) is subject to imposition of reasonable restrictions. 15. Learned senior counsel has submitted that in view of the decision of the Supreme Court in A.I.R. 1993 SC 477 (INDRA SAWHNEY etc. etc., v. UNION OF INDIA AND OTHERS, etc.etc.,), the observation in the earlier Supreme Court decision to the effect that Article 15(4) is to be read as an exception to Article 15(1), no longer holds the field. He has further submitted that various decisions of the Supreme Court relied upon by the learned single Judge such as AIR 1972 SC 1375( STATE OF A.P. v. BALARAM U.S.V), AIR 1971 SC 1762 (D.N. CHANCHALA v. STATE OF MYSORE) and AIR 1964 SC 1823 (R. CHITRALEKHA v. STATE OF MYSORE) relate to either Government colleges or aided colleges, and therefore, the provisions regarding reservation in respect of such colleges cannot be held applicable to unaided colleges. 16. Even though Article 15(4) may not be considered as an exception to Article 15(1) and may be construed as a provision meant for maintaining the right to equality, the basic fact remains that the statutory provisions have been made laying down the rules of reservation in the matter relating to admission into educational institutions. In this connection, reference can be made to the provisions contained in Tamil Nadu Backward Classes, Scheduled Castes and Scheduled Tribes ( Reservation of seats in Educational Institutions and of appointments or posts in the services under the State) Act, 1993 (Act No.45 of 1994), hereinafter referred to as the Act. Section 3(b), the definition clause under the Act defining educational institution, clearly includes any affiliated institution. The unaided educational institutions are also affiliated institutions. In Section 4 of the Act, provisions have been made for reservation relating to admission to all educational institutions. As a matter of fact, the Government had also issued G.O.Ms.Nos.22 and 23, Higher Education (J.1) Department, dated 13.2.2003. Neither the provisions contained in the said Act nor the G. Os. had been challenged. The Act has been included as Entry No.257A of the Ninth Schedule by Seventy Sixth Amendment to the Constitution of India. Once the Act is included in the Ninth Schedule, the challenge to the Act on the ground of violation of Part III of the Constitution is out of bounds for the Courts. Even though there can be possible challenge on the ground that the Amendment by which the Act is included in the Ninth Schedule is impermissible on the plea that the basic structure of the Constitution has been altered, in the absence of any such specific challenge and in the absence of Union of India as a party, we are not called upon to examine such aspect. The directions issued by the Permanent Committee are mainly on the basis of the provisions contained in the Tamil Nadu Act 45 of 1994 and the G.Os. and consequential in nature. In the absence of challenge to the provisions contained in the Act and the G.Os., it would be difficult to accept the contention of the learned counsel for the appellants / writ petitioners on this score. May be, if the provisions contained in the Act and the G.Os. would not have been there, legality of the direction issued by the Committee could be examined in the light of observations made in T.M.A.Pai case. In the face of specific statutory provisions and the G.Os. which remained unchallenged, it is very difficult to accept the contention in the form raised by the counsel for the appellants / writ petitioners. 17. The residuary contention raised by the learned Senior Counsel for the Engineering Colleges and the Consortium relates to the observation of the learned single Judge vis-a-vis the right of the minority institution. It is to be noted that so far as the minority institutions are concerned, the Government had fixed 70% as the quota available to such colleges. In respect of this also, the Government had directed that the policy of reservation should be followed. In course of hearing before the learned single Judge, the learned Advocate General has made a submission that so far as the seats to be filled up by the minority institutions are concerned, the G.O. regarding observance of quota shall not be followed, but if such institution fills up only part of the permitted seats with the concerned minority students, the balance would be reverted back to the State for the purpose of being filled by the State in accordance with their own admission system. 18. Learned single Judge observed :- . . . While referring to G.O.Ms.No.23, Higher Education (J1) Department, dated 13.2.2003 relating to direction for unaided minority professional colleges to follow rule of reservation of the State Government, the learned Advocate General would also fairly submit that the application of communal reservation would not be insisted in the case of minority institutions. He would also submit that the said statement could be recorded. Hence, I hold that the minority institutions are entitled to fill