1 r 309 1 CNvP No0091 of 2009 m1e c t2 INTHE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition N10091 of 2009 DateofDecisionlOl072010 Self Financed BEcl CollegesAssociation Punjaband another Oetitioners VERSUS 1 Stateof Punjaband another C espondents 0 CORAMl HONBLE MRJUSTICE PERMOD KOHLI CA Presentl Mr RajiveAtma Ram Sr Advocate with I Mr ArjunPartapAtma Ram Advocate C5 for the petitioners I MI PCoyal AddI A Punjab e Z Mr Lalit Rishi Advocatefor respondentNo2 11kk Q PERMOD KOHLIJ I Both the petitionersare as Societies under the 08 Societies Act Petitioner Nol is an Association of Self oo 7 Financed Ed CollegesPunjabwhereas petitioner No2 is an Association 7 Z of Self Financed CoIIegeof Education PunjabThis petition has been filed CL challenginga Government notification dated 19 May 2009 the advertisementpublishedin The Tribune an EnglishDailynewspaper dated 10 June 2009 and the prospectusissued by the Guru Nanak Dev University Amritsarfor State IevelB1 Entrance Test 2009 Ulnexure P C 71 Vide the Government notificationdated 19 May 2009 the State of Punjabhas authorized the respondent to hold and conduct common entrance test for admission to BEd course with effect from Session 2009201 0 onwards the respondentNo2 Universityhas issued advertisement publishedin The Tribune inviting applicationsfrom the eligiblecandidates for the participationin the common entrance test for admission to the B1 course in the collegesof Batra Amit 2014.03.29 13: 34 TRUE SCANNED COPY OF ORIGNAL PHHC CHANDIGARH JOYTI RANI 2016.03.28 10:50 I attest to the accuracy and integrity of this document 810 lJ WP No10091 of 2009 e2 9 situatedin Punjablaffiliated to Guru Nanak Dev University Amritsar PanjabUniversity PunjabiUniversityPatiala and Lovely Professional UniversityPhagwara for the academic Session 2009 10 The date for holding the test was notifiedas 12 July 2009from 900 AM to 500 PN The eligibility conditions were as per the prospectus Annexure P71 issued bythe This test was to be 1 conductedin respectof the collegesimpartingB1 course affiliatedwith 0 the specifiedUniversities Obviouslythe self Financed B l Colleges 0 affiliated with the specifiedUniversitiesare also included The Iist of such Ca3 collegesaffiliated to Guru Nanak Dev UniversityAmritsar Panjab C5 ChandigarlPunjabiUniversity Patiala and LoveiyProfessional UniversityPhagwaraIS also givenas Annexure 1 in the prospectus Z Petitioners claim to be Association of such having Q common interest This petitionhas been filed allegedlyseekingcommon I relieffor their member colleges 08 The short and onlypointinvolved requiringconsiderationin the Cn presentpetitionIS the rightof the Government or for that matter any of its 7 Z nominees includingan affiliatingUniversity to conduct the common V Il entrance test for admission to Ed course in the self Onancedlunaided The contentionof the petitioners is that the collegesof thepetitioners and their membersbeingself Onancedand unaidedcolleges have the rightto devise their own admission procedurefor admission of students This rightis beingclaimed on the basis of vanous judgments01 4me the Honble ApexCourt in case of PAInamdar 80thers Versus State of Maharashtra S Others 200516 SC 537 200218 SCC 481 200316 SCC 697 As also the judgmentdated 2082006 passedby this Court in CNV19547 of 2006 The No2 in its short reply has only 9 claimed its rightto conduct the Common Entrance Test on the strengthof Batra Amit 2014.03.29 13: 34 TRUE SCANNED COPY OF ORIGNAL PHHC CHANDIGARH JOYTI RANI 2016.03.28 10:50 I attest to the accuracy and integrity of this document 311 de 1 L J CVP No10091 of 2009 e3n 3 GovernmentnotiOcationdated 19 May 2009 It is stated thatin view of the authorizationof the State Government the University IS entitledto conduct the entrancetest for selection of studentsfor admission to Bd course for the Session 200910 in respectto all collegesamliated with Universitiesspecifiedin the above notiOcation In so far the State IS concerned it has pleadedthat State has the rightto hold a common 1 entrance test in any trade or disciplineto ensure equalopportunity to all eligiblestudents It is further pleadedthat at the time of grantof No 0 C40 Objection Certificate to all such collegestheywere bound down to obey I the rules of the Government The Government has also relied upon C5 judgmentof the Honble ApexCourt in case of TMA Pai Foundation S Others Versus State of Karnataka 8 Others 200261SLR 627 In Z response to the specificaverment of the petitioners that the judgmentof r Honble ApexCourt in PAInamdar supralobligates the Government to I aliow the minorityinstitutionsand self Onanced institutionsto devise their 08 own procedure for entrancetest and in view of the dictum of the aforesaid CQ judgmentthe petitioners are entitled to make admisslons by holdinga 7 Z common entrance test for the self Onancedlunaidedinstitutionsit IS C pleadedthat no prejudice is to be caused byholdingthe common entrance test by Governments nominee It is useful to brieOyrefer to the gistof thejudgments relied upon by the petitioners as the entire relief claimed in the petitionis based upon above referredjudgments 4 In TVlJl Pai Foundation 80thers Versus State of Karnataka 8 Others 200261SLR 627 a CosntitutionBench of the Honble Supreine Court was primarilyconsideringthe rightof the minorityinstitutionsto 1 establish and administereducationalinstitutionsby any It has been held that an unaided minorityinstitutionestablished has the rightto administer the institution rightto administer includes the rightto nlake 1 Batra Amit 2014.03.29 13: 34 TRUE SCANNED COPY OF ORIGNAL PHHC CHANDIGARH JOYTI RANI 2016.03.28 10:50 I attest to the accuracy and integrity of this document 812 5 lIVP10091 of2009 1 e4e bydevisingprocedureat its own Ievel and no interferenceis from the Government or the Universityexceptensuringthe meritbase selection and maintenance of the educationalstandardsand also to Iaydown the and mlntmum conditionsof eligibility for facultyThe issue relatingto the unaided selfeOnanced institutionsdid not directlyfall for consideration In the said judgment m howeverwhile consideringthe rightof unaidedinstitutionsin totalitythe HonbleSupremeCourt madefollowing observationsl 0 0 It would be unfair to apply the same rules and I regulating admission to both aided and unaided C5 I institutions It must be borne in mind that unaidod professional institutions are entitled to autonomyin thoir Z administrationwhile at the same time theydo not forgoor m discardtheprinciple of merit It would thereforebe for the or the at the time of granting 06 to requirea privateunaided instltutionto provide oo for meritoased selection while at the same time givingthe 7 Z sufficient discretionin admitting studentsThis can be done throughvanous method For instance a certain of the seats can be reserved for admission by tho out of those students who have passedthe common entrance test held by itself or by tho StalelUniversity and have appliedto the collegeconcerned for admission whiIe m the rest of the seats may be filled up on the basis of counselling by the state agency This will incidentallytakc carc of poorer and backward sections of the society The prescriptionof percentage for this purpose has to be done by the govemtnont accordingto the Iocal needs and differentpercentagcscan be fixed for minorityunaided and unaided and Batra Amit 2014.03.29 13: 34 TRUE SCANNED COPY OF ORIGNAL PHHC CHANDIGARH JOYTI RANI 2016.03.28 10:50 I attest to the accuracy and integrity of this document 813 No10091 of 2009 5m 1 69 colleges The same principles rnay be apPliedto other but unaidededucationalinstitutionsviz 1 and post norofessional collegesor institutes Il In PAnamdar 8 Others Versus State of Maharashtra 8 Others 200516 SC 537 while referringthe matterto a IargerBench m the Honble Court framedfollowingquestionsfor consideratione C 711 To what extent can the State regulateadmissions mado 0 byunaidecninorityor norninorityleducational institutions2 0 Can the State enforce its policy of reseNation andlor C5 to itself any quota in admissions to such I institutions2 Z 2 Whether unaided ninorityand educational e 0 institutionsare free to devise their own admission procedureor I whetherthe directionmade in IslamicAcademyfor 08 holding an entrance test by the State or association of CO institutions and to choose l17erefromthe students entitled to 7 Z admission in such institutions can be sustained in Iighlof tlle Om Iaw Iaiddown in Pai Foundation 31 Whether IslamicAcademycould have issued guidelinos In the matterof regulating the fee payableby the studentsto the educationalinstitutions2 41 Can the admission procedureand fee structuro be Ce regulatedor taken over by the Committeesordered lo be constitutedbyIslamicAcademy2 In the presentcase primarilyissues No2 and 4 are relevant these issues stand answered in the Iatterpart of the judgmeI Relevanl obseIvationsof the Court are contained in Paras 133 136 137 138 and 147 Batra Amit 2014.03.29 13: 34 TRUE SCANNED COPY OF ORIGNAL PHHC CHANDIGARH JOYTI RANI 2016.03.28 10:50 I attest to the accuracy and integrity of this document 814 4 Ao No0091 of 2009 n5 1 1 59 collegesThe same principles may be appliodlo other but unaided educational institutionsviz 1 and post collegosor institutes Il In PAlnamdar 8 Others Versus State of Maharashtra 8 Others 200516 SC 537 while referringthe matterto a IargerBench 1 theHonble Supreme CouIt framedfollowing questionsfor consideratione 0 711 To whatextent can the State regulateadmissions mode 0 byunaidecninorityor nonninorityleducational institiitions7 0 I Can the State enforce its policy of reservation andlor C9 to itself any quotain admissions to such I institutions2 Z 21 Whether unaidecninorityand educational r institutionsare free to devise their own admission procedureor I whetherthe directionmade in IslamicAcademyfor 08 holding an entrance test by the State or association of 00 institutions and to choose therefrom the students entitled to wn Z admission in such institutions can be sustained in Iightof tho Iaw Iaid down in Pai Foundation2 31 Whether IslamicAcademycould have issued guidelines Ill the matterof the fee payableby the students to the educationalinstitutions2 41 Can the admission procedureand fee stnictute be regulatedor taken over by the Commitle6sorderod to be constitutedby IslamicAcademy7 In the presentcase primarily issues No2 and 4 are relevant these issues stand answered in the Iatterpartof the judgmentRolevant observationsof the Court are contained in Paras 133 136 137 138 and 147 Batra Amit 2014.03.29 13: 34 TRUE SCANNED COPY OF ORIGNAL PHHC CHANDIGARH JOYTI RANI 2016.03.28 10:50 I attest to the accuracy and integrity of this document 815 CWP No10091 of2009 e6e The State has filed an additionalaffidavit wherein it is stated that the basic purpose for holdinga common entrancetest for B1 course in all Government colleges Private Aided Collegesand Private Unaided Collegesis to providean equalopportunity to all students to compete againsteach other and to ensure a rational procedurefor fair and merit basedadmission It is furtherstated that it is intended to save the students from inordinate burden of having to appear in rnultipleentrance examinationsand further to ensure equalopportunityto all the eligible 0 0 studentscomingfrom different States The State has aiso relied upon the I framed by the NCTE the eligibility C5 and other related factors to regulatethe institutionsimpartingthe B I course In so far admissions are concerned the following have Z been mad 2 Q 21Eligibility I IalCandidates withat Ieastfiftypercentmarks eithei in 08 the Bachelors Degreeandlor in the Masters degreeor any other qualificationequivalent thereto are eligiblefor admission to the e Z programme tl l101The resetvation in seats and relaxalion in the qualifying marks in favour of the reserved categories shallbe as perthe rules of the concerned Government 31Admission Procedure Admission shall be made on merit on the basis of e marks obtained in the qualifyingexamination andlor In the entrance examinationor any other selection process as per lhe policy of the State Govemmentlll T Administration and the Universityl Based upon the above regulationsit is soughtto be impressed uponthat these regulationsempower the State to conduct the common Batra Amit 2014.03.29 13: 34 TRUE SCANNED COPY OF ORIGNAL PHHC CHANDIGARH JOYTI RANI 2016.03.28 10:50 I attest to the accuracy and integrity of this document 816 7 r 0 1 No0091 of 2009 27m test I have carefullyperusedthese There is nothing Irl theseregulationswhich may in any manner confer a rightupon the 7 Government to make admissions to hold a common entrance test for admission to unaided self financed institutions It onlyprescribeseligibility criterionfor a student to seek admission to the BJ programme and also prescribesthat the admission procedurehas to be merit based either on m the basis of the qualifyingexaminationor the entranceexaminationor any other selection process as per the policyof the State GovernmentlllT 0 C Administration and the University Thus what is needed is to ensure fairness of the procedureas per the policyenvisagedunder Clause 3 C9 which has been framed bythe State GovernmentllT Government or the I University It is onlytothe extent of ensuringfairness of selectionlprocess Z of admission In the garbof such policythe Stateor amliating bodycannot 0 take over the entire admission process A Division Bench of this Court Ill CINP No547 of 2006 titied as The Association of Education Colloqes c6 1SelfFinancinql of Harvana Versus State of Harvanaand otherlas c10 held a siniilar view relyinguponin PAInamdar supral 7 Z In view of the ratio of the judgmentin TMA Pai Foundatn supral and PAnamdar cases supral am of the considered view that the Statedoes not have theauthority to conductentranceexaminationtest in respectto unaided self financed ninorityand It has to be Ieft to such institutionsto hold such common entrance test either at State Ievel or even jointlywith the other States What is to be 4vee ensured is that admissionsprocedureis meritbased transparentand nor exploitative and in consonance with the minimum standards prescribed under the regulationsframed by the NCTE or any other such rule or regulation that may be framed bytheaffiliating University onlyto the extent of ensuringmerit4oasedadmissions When this petitioncame to be filed the admissions for the academic Session 20091 0 were to take place 9eee Batra Amit 2014.03.29 13: 34 TRUE SCANNED COPY OF ORIGNAL PHHC CHANDIGARH JOYTI RANI 2016.03.28 10:50 I attest to the accuracy and integrity of this document 817 4 Cl No10091 of 2009 43 have been madeand the studentsmay be Iikely to completethe course Hence no intetferenceis warranted in the notice and the prospectusissued bythe for the said Session However the Governmentorder dated 19 May 2009shall not be enforced for the academic Session 2010201 1 nor the will hold a common entrance test for admission to B course in the selfefinancedunaided institutionsfor the academicSession r 2010m11The andlor the pelitionerswho claim to be associations 0 0 of such unaided self4inanced institutionsare at Iibertyto devise their own I of admissions of students to the B1 programme for the C5 academicSession 20104 1 however such procedure shall be merit based I transparent and in consonance with the educational Z standardsas prescribedby the NCTE the amliatingUniversityor Iohe tr Governmentif any There shall not be any dilution of the academic I standards in any rnannernor such institutionsshall be entitled to charge 08 any fee or fee more than prescribedby the committees constitutedfor the purpose wwo Z This petitionis allowed in the above manner 1 JulyOl 2010 IPERMODKOHLII 41 JUDGE Gagan l NOTE Whether to be referredto Reponeror not7YeslNo Batra Amit 2014.03.29 13: 34 TRUE SCANNED COPY OF ORIGNAL PHHC CHANDIGARH JOYTI RANI 2016.03.28 10:50 I attest to the accuracy and integrity of this document