IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 06.07.2006 Coram: THE HONURABLE MR.JUSTICE K.RAVIRAJA PANDIAN Writ Petition Nos.15701 and 16027 of 2006 and WMP.Nos.15469, 15470, 15726 and 16309 of 2006 W.P.No.15701 of 2006: Consortium of Self Financing Professional Arts and Science Colleges in Tamil Nadu Rep.by its Secretary Dr.P.Selvaraj Office at No.12, Ganapathy Street Royapeetah, Chennai – 600 014. ... Petitioner v. 1.The Permanent Committee for the Conduct of Common Entrance Test, 7-A, P.s.Kumarasamy Raja Salai, (Greenways Road) Raja Annamalaipuram, Chennai-600 028 (constituted as per G.O.Ms.No.69, Higher Education (A2) Department Dated 19.3.2004 2.The Commissioner of Technical Education, Chennai – 600 025. ... Respondents 1 & 2 W.P.No.16027 of 2006: Association of Minority Unaided Christian Institution (AMUCI) represented by Secretary, No.1-A, Chari Street T.nagar, Chennai – 600 017. .. Petitioner Vs. 1. Permanent Committee constituted for the conduct of Common Entrance Test rep.by its Member Secretary/Secretary to Government Greenways Road, R.A.Puram Chennai – 600 028 2. The State of Tamil Nadu rep.by Secretary Higher Education Department St.George Fort, Chennai – 600 009 https://hcservices.ecourts.gov.in/hcservices/ 3. Anna University represented by its Registrar, Sardar Patel Road Guindy, Chennai – 600 025. .. Respondents. W.P.No.15701 of 2006 Petition presented to this Court under Article 226 of the Constitution of India to issue a writ of Certiorarified Mandamus or any other Writ, order or direction in the nature of a Writ, calling for the records of the first respondent in Proc.No.SFPC/Engg/001/2006 dated 9.5.2006 and quash the direction in so far as it relates to the direction to follow single window system and to follow Rule of Reservation and the consequential terms and conditions 3, 13, 15, 19, 20 and 21 and consequently direct the Committ/first respondent to grant approval to the Petitioner to conduct common entrance test as per the norms stipulated during the academic year 2005-2006 for the present academic year 2006-2007. W.P.No.16027 of 2006 Petition presented to this Court under Article 226 of the Constitution of India to issue a writ of Certiorarified Mandamus or any other appropriate Writ or order or direction in the nature of a Writ, of Certiorarified Mandamus calling for the records comprised proceedings No.SFPC/ENGG/001/2006 on the file of the first respondent/ Committee dated 9.5.2006 and to quash the same to the extent in so far as insisting the counselling process through single Window system as compulsory for filing up the seats in Self Financing Minority, Colleges and Condition Nos. 3,5,9,12,19,20 and 21 and consequently direct the Committee/first respondent to grant approval to the Petitioner to conduct common entrance test as epr the norms stipulated during the academic year 2005-2006 for the present academic year 2006-2007. For Petitioner : Mr.N.R.Chandran for in WP.No.15701/06 Mr.R.Natarajan For Petitioner : Mr.R.Krishnamurthi,Sr.Cunsel in W.P.No.16027/06 for Mr.V.Ayyadurai For Respondents : Mr.R.Vidudalai,Advocate Geneal in both W.Ps assisted by Mr.M.Sekar, Spl.G.P.,Edn. For petitioner : Mr.K.Selvaraj in WPMP.No.16309/06 (R-3 in W.P.No. 15701 of 2006) https://hcservices.ecourts.gov.in/hcservices/ ORDER The above two writ petitions had come knocking at the doors of this Court invariably involving yet another controversy of annual phenomenon in respect of the procedure for admission in private unaided professional educational institutions, both minority and non-minority. 2. As a prelude, an exposition in brevity of the law as it stands at present needs to be mentioned. The entire gamut of the issue comprised of divergent and intricate factual and legal facets respecting the establishment and administration of private educational institutions in general has been more or less set at rest in all its larger constitutional perspective by the Supreme Court in the judgment handed over by a coram of 11 judges in the case of T.M.A.Pai Foundation and others Vs. State of Karnataka reported in (2002) 8 SCC 481 (for brevity, hereinafter referred to as "Pai Foundation case"). This judgment of the Supreme Court was referred to a Constitution Bench in the case of ISLAMIC ACADEMY OF EDUCATION VS. STATE OF KARNATAKA reported in (2003) 6 SCC 697, (hereinafter called as "Islamic Academy case") for the specific purpose of clarification of doubts/anomalies, if any in the judgment of T.M.A.Pai Foundation case, as Pai Foundation case was interpreted in different ways by different institutions to suit their convenience. 3. The Constitution Bench in Islamic Academy case, after completing the task of interpretation, has issued directions in terms of Article 142 of the Constitution of India for appointment of permanent committee by each State to ensure that the test conducted by the Association of Colleges is fair and transparent. By virtue of the said direction, a permanent committee came to be appointed by the State of Tamil Nadu as an adhoc measure until appropriate legislation or law is enacted with power to oversee the tests to be conducted by the association/Consortium of Colleges. 4. With this brief legal and factual backdrop, let me turn to the facts in controversy before this Court. The Consortium of Self Financing Professional Arts and Science Colleges in Tamil Nadu, the petitioner in W.P.No.15701 of 2006 filed writ petition for issuance of a writ of certiorarified mandamus calling for the records of the first respondent in proceedings No.SFPC/Engg/001/2006, dated 9.5.2006 and quash the direction in so far as it relates to the direction to follow single window system and to follow Rule of reservation and the consequential terms and conditions 3, 13, 15, 19, 20 and 21 and consequently direct the Committee/first respondent to grant approval to the petitioner to conduct common entrance test as per the norms stipulated during the academic year 2005-2006 for the present academic year 2006-2007. 5. The other writ petition in W.P.No.16027 of 2006 is https://hcservices.ecourts.gov.in/hcservices/ filed by the Association of Minority Unaided Christian Institution (AMUCI), which is also a constituent member of the Consortium of Self Financing Professional Arts and Science Colleges in Tamil Nadu, the petitioner in W.P.No.15701 of 2006 praying for issuance of writ of certiorarified mandamus calling for the records of the first respondent/Committee dated 9.5.2006 and quash the same to the extent in so far as insisting upon the counselling process through single window system as compulsory for filling up the seats in self financing minority colleges and conditions 3, 5, 9, 12, 19, 20 and 21 and consequently direct the Committee/first respondent to grant approval to the petitioner to conduct common entrance test as per the norms stipulated during the academic year 2005-2006 for the present academic year 2006- 2007. 6. Both the writ petitioners have approached this Court with almost identical grievances arising out of the proceedings of the first respondent/permanent committee dated 9.5.2006. The directions contained in the impugned proceedings and those amongst which are assailed specifically in both the writ petitions are substantially identical and the petitioners rest their case on the ratio decidendi of Pai Foundation case and the subsequent clarifications in Islamic Academy case and further elucidation made in the case of P.A.INAMDAR AND OTHERS VS. STATE OF MAHARASHTRA AND OTHERS reported in (2005) 6 SCC 537 (for brevity, hereinafter referred to as "Inamdar's case"). 7. Before proceeding further, the relevant directions, which are found to be obnoxious according to the petitioners in both the writ petitions need to be extracted in brief for the sake of appreciation in the course of discussion. They are as follows: "1. making available application forms in the office of Permanent Committee and such other places as it may direct; 2. Setting up of question papers and evaluation by experts approved by the Committee, which reserves the right to nominate its own expert also; 3. Conduct of examination in various District headquarters in Tamil Nadu and also in one centre at Kerala and Andhra Pradesh and prior intimation to candidates any centre outside the Tamil Nadu, both individually and through wide publicity in local dailies; 4. Nomination of one person by the Permanent Committee to be responsible for all activities connected with the examination i.e., setting, printing and transporting of question papers, supervising, etc.; 5. Option to adopt the test conducted by the https://hcservices.ecourts.gov.in/hcservices/ Consortium or the test conducted by the State through Anna University within the time stipulated by the Committee, failing which admission will be made only from the list prepared by the Anna University on the basis of interse merit and following single window system of admission; 6. The manner of preparation of the merit list by the Consortium; 7. Admission to be made only on the basis of rank list prepared by Centralised Counselling by following single window system of counselling; 8. Rule of reservation to be followed by Non- minority private engineering colleges and also the direction issued by this Court in W.P.No.16054 of 2004; and 9. Forwarding of documents submitted by the students admitted in minority institutions." 8. From the various directions impugned by the petitioners in these writ petitions, the directions, which are highly obnoxious according to the petitioners, are the one relating to the single window system of counselling and observation of rule of reservation. 9. The sum and substance of the tirade on behalf of both the petitioners is that the directions impugned in the writ petitions, particularly, the direction respecting centralised counselling through single window system and rule of reservation directly entrenched upon the autonomy conferred and upheld by the Supreme Court in T.M.A.Pai Foundation Case and are affirmed in the latter two judgments in the cases of Islamic Academy and P.A.Inamdar. In other words, these directions in effect tend to inroad into the fundamental right of the petitioners and that in the absence of any legislation introduced by the State, the first respondent cannot be permitted to regulate the procedure of admission voluntarily donning the role of a statutory body or Tribunal with full-fledged, unconferred and pervasive powers. According to the petitioners, the directions as couched in the judgments of the Supreme Court do not bestow upon the first respondent in greater role than that of a mere overseer. 10. It is pertinent here to indicate that in the previous academic year, the very same petitioner in W.P.No.15067 of 2006 happened to challenge the directions issued by the Permanent Committee, which are more or less similar in tenor and effect as involved in the present writ petition. Learned Single Judge of this Court in the case of CONSORTIUM OF PROFESSIONAL ARTS AND SCIENCE COLLEGES, TAMIL NADU AND OTHERS VS. PERMANENT COMMITTEE FOR THE CONDUCT OF COMMON ENTRANCE TEST AND OTHERS reported in 2004(3) CTC 721, struck down the validity in respect of part of https://hcservices.ecourts.gov.in/hcservices/ the conditions, which tend to pierce into the autonomy of the institution and upheld those which are merely supervisory in character as being to ensure fairness and transparency in the admission procedure. The said judgment of the learned Single Judge came to be affirmed by the Division Bench, but however as of now, the same is the subject matter of appeal before the Supreme Court. 11. As the matter stood thus, another Bench consisting of 7 judges of the Supreme Court was constituted in the case of P.A.Inamdar to under take the exercise of culling out the ratio decidendi of Pai Foundation case and examine if the explanation or clarification given in the case of Islamic Academy ran counter to the Pai Foundation case, if so, to what extent. 12. The Bench of the 7 Judges while upholding the scheme evolved for setting up Committees for regulating admission and determining the fee structure as aimed at protecting the interest of the students community as a whole, as also the minorities themselves in maintaining the required standards of professional education on non-exploitative terms in their institution, disapproved the scheme evolved in Islamic Academy case to the extent it allowed States to fix quota for seat sharing between the Management and the States on the basis of the local needs of each State in the unaided private educational institutions of both minority and non-minority categories. In the opinion of their Lordships, the above scheme in Islamic Academy case ran counter to Pai Foundation case(See Para 130). Further, in regard to the rule of reservation and seat-sharing, the said Bench has dealt with and discussed in paragraph No.125 of the judgment as hereunder: 125. As per our understanding, neither in the judgment of Pai Foundation nor in the Constitution Bench decision in Kerala Education Bill, which was approved by Pai Foundation, there is anything which would allow the State to regulate or control admissions in the unaided professional educational institutions so as to compel them to give up a share of the available seats to the candidates chosen by the State, as if it was filling the seats available to be filled up at its discretion in such private institutions. This would amount to nationalization of seats which has been specifically disapproved in Pai Foundation. Such imposition of quota of State seats or enforcing reservation policy of the State on available seats in unaided professional institutions are acts constituting serious encroachment on the right and autonomy of private professional educational institutions. Such appropriation of seats can also not be held to be a regulatory measure in the interest of minority within the meaning of Article 30(1) or a reasonable restriction within the meaning of Article 19(6) of the https://hcservices.ecourts.gov.in/hcservices/ Constitution. Merely because the resources of the State in providing professional education are limited, private educational institutions, which intend to provide better professional education, cannot be forced by the State to make admissions available on the basis of reservation policy to less meritorious candidate. Unaided institutions, as they are not deriving any aid from State funds, can have their own admissions if fair, transparent, non-exploitative and based on merit. 13. Elaborating further, the Bench in interpretation of paragraph No.68 of the majority opinion in Pai Foundation case observed in paragraph No.126 of the judgment as follows: "126. The observations in paragraph 68 of the majority opinion in Pai Foundation, on which the learned counsel for the parties have been much at variance in their submissions, according to us, are not to be read disjointly from other parts of the main judgment. A few observations contained in certain paragraphs of the judgment in Pai Foundation, if read in isolation, appear conflicting or inconsistent with each other. But if the observations made and the conclusions derived are read as a whole, the judgment nowhere lays down that unaided private educational institutions of minorities and non-minorities can be forced to submit to seat sharing and reservation policy of the State. Reading relevant parts of the judgment on which learned counsel have made comments and counter comments and reading the whole judgment (in the light of previous judgments of this Court, which have been approved in Pai Foundation) in our considered opinion, observations in paragraph 68 merely permit unaided private institutions to maintain merit as the criterion of admission by voluntarily agreeing for seat sharing with the State or adopting selection based on common entrance test of the State. There are also observations saying that they may frame their own policy to give free-ships and scholarships to the needy and poor students or adopt a policy in line with the reservation policy of the state to cater to the educational needs of weaker and poorer sections of the society. and the Bench proceeds to conclude its opinion in no ambiguous terms in paragraph No.127 as follows: "127. Nowhere in Pai Foundation, either in the majority or in the minority opinion, have we found any justification for imposing seat sharing quota by the State on unaided private professional educational institutions and reservation policy of the State or State quota seats or management seats." https://hcservices.ecourts.gov.in/hcservices/ 14. Keeping in tune with the binding precedents as referred to, and also the order of the Supreme Court in S.L.P.Nos.9652, 9743 and 9744 of 2006, dated 12.6.2006 permitting the P.A.Inamdar to follow the practice which was adopted for the previous academic year 2005-2006 for the academic session 2006- 2007, in the course of submission made by the learned counsel appearing for the respective parties, a glimmer of an amicable settlement between the petitioner and the State Government streaked through, in respect of sharing of seats between the parties, applicability of rule of reservation and the mode of admission. These, being the major area of controversies arising in these writ petitions, this Court directed the parties to work out the modality of the settlements through consensus. 15. Accordingly and perhaps also, the parties taking the cue from the observation made in paragraph No.126 of the judgment of P.A.Inamdar case, wherein the Supreme Court has not precluded a resolution through consensus between the parties put in separate affidavits containing the terms of consensus arrived between them in their own words. The affidavits dated 23.6.2006 and 26.6.2006 both filed by the petitioner in W.P.No.15701 of 2006 and likewise, on the side of the State Government, the Commissioner of Technical Education, the second respondent in W.P.No.15701 of 2006 has filed an affidavit on 26.6.2006 and the Secretary to Government, Higher Education Department has also submitted an affidavit dated 27.6.2006 in W.P.No.16027 of 2006. 16. The affidavits placed by the respective parties are taken on record. In terms of the settlement arrived at between the parties and as placed on record in the respective affidavits, the following conditions are issued on the basis thereof, without the need for traversing into the legal merits as set out hereunder: "(a) The non-minority unaided Engineering Colleges shall surrender 65 percent of the seats to the State Government; (b) The minority unaided Engineering Colleges shall surrender 50 percent of the seats to the State Government; (c) The State Government shall be entitled to fill up the seats surrendered as mentioned above by following the single window system based on ranking done by the Anna University and the rule of reservation of the State Government; (d) In the light of the order passed by the Supreme Court in S.L.P.Nos.9652, 9743 and 9744 of 2006, dated 12.6.2006 in P.A.Inamdar and others VS. State of Maharashtra, the State Government shall adopt the https://hcservices.ecourts.gov.in/hcservices/ procedure followed during the previous academic year 2005-2006 and accordingly the State Government shall not insist upon the petitioners to make admission against the seats retained or held by them by following the single window system; (e) The admission to the seats available to the unaided Engineering Colleges, both minority and non- minority shall be made on the basis of the marks obtained in the common entrance test (CET) and the marks obtained in the +2 Examination; (f) The marks obtained in the Common Entrance Test shall be from any one of the following tests conducted by: (i) CET conducted by the Consortium (ii) CET conducted by Anna University and (iii) CET conducted by the AEEE or any other CET conducted by the Government or the Government agencies of the other States; (g) The rule of reservation shall be followed in admission to management seats retained by the non- minority unaided Engineering College after setting apart 15 percent quota of seats to NRI; and (h) The rule of reservation shall not be applicable to minority unaided Engineering College and the procedure for admission of students as followed in the previous year shall be followed and interese merit alone is the criterion, as declared by the Supreme Court in paragraph No.132 of Inamdar case." The above directions, though based on the consensus reached between the parties, in my opinion, are nevertheless in conformity with the principle enunciated by the Supreme Court and modulated in terms of the principles and observations contained in the judgments referred to above. 17. The major area in controversy has been thus resolved. The other directions issued by the first respondent, as impugned in the writ petitions only appears to be peripheral in nature. But the petitioners having chosen to question its validity, the same requires consideration on merits and therefore cannot be left unanswered. 18. As a matter of fact, in P.A.Inamdar case, the Supreme Court, even while upholding the Constitution of the Permanent Committee, has not deviated in its view insofar as the ambit of powers granted to the Permanent Committee to regulate the https://hcservices.ecourts.gov.in/hcservices/ admission procedure is concerned, as indicated in the majority opinion expressed in paragraph No.19 of the judgment in Islamic Academy, the relevant portion of which is usefully extracted here: "19. ...... 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. ...." 19. Further, the province of the role of the Permanent Committee has also been reiterated in elucidation in paragraph No.144 of the Judgment in Inamdar case as being regulatory measures aimed at protecting the interests of students community as a whole, as also the minorities themselves in maintaining required standards of professional education on non-exploitative terms in their institution. Thereafter, in paragraph No.150 of the same Judgment, the Supreme Court has observed as follows: "150. We make it clear that in case of any individual institution, if any of the Committees is found to have exceeded its powers by unduly interfering in the administrative and financial matters of the unaided private professional institutions, the decision of the Committee being quasi-judicial in nature, would always be subject to judicial review." 20. Now, it is in the light of the powers to the extent demarcated in the observation of the Supreme Court, this Court has to test the validity of the conditions imposed by the first respondent/Permanent Committee and as impugned in these writ petitions. 21. Condition No.3 of the impugned proceedings relates to making available application forms in the office of the permanent committee and such other places as the Committee may direct. Though the same is challenged, no submission has been put forth in that regard as to the manner in which the said condition impose a fetter upon the autonomy conferred in the matter of having their own admission procedure. There cannot be any dispute about the fact that the institutions are entitled to have their own admission procedure, but this Court finds that the requirement of making available the application forms in the office of the Permanent Committee and any such other place as the Committee would direct, is well within the regulative measures, as contemplated in the Judgment of the Supreme Court. This condition is more of an additional requirement in nature so as to ensure fairness and transparency in admission procedure. There is nothing on record to substantiate that the said condition is in fact worked hardship to the extent of it being unreasonable https://hcservices.ecourts.gov.in/hcservices/ and as being direct entrenchment upon the administrative autonomy of the institution. 22. Similarly, condition Nos.5, 12 and 15 of the impugned proceedings of the first respondent are only supplementary in nature with a view to ensure that the triple test of fairness, transparency and non-exploitation is scrupulously observed, which would in turn sustain and ensure merit as being paramount in the process of admission. In my opinion, these conditions are sufficiently within the power of the first respondent, as clothed by the judgments of the Supreme Court and this view of mine finds ample support from the decision rendered in the case of CONSORTIUM OF PROFESSIONAL ARTS AND SCIENCE COLLEGES, TAMIL NADU AND OTHERS VS. PERMANENT COMMITTEE FOR the CONDUCT OFCOMMON ENTRANCE TEST AND OTHERS reported in 2004(3) CTC 721, which stands confirmed and not set aside by the Supreme Court as on date. 23. Insofar as condition NO.9 of the impugned proceedings, it has been argued that it restricts the conduct of the examination at Kerala and Andhra Pradesh only apart from the District Headquarters of Tamil Nadu. That restriction to Kerala and Andhra Pradesh should be removed by including other States also. As the restriction is unwarranted and uncalled for, having regard to the exposition of law made in