IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:11-1-2008 CORAM: THE HON'BLE MR.JUSTICE P.JYOTHIMANI .. W.P.Nos.1900, 34300, 36710, 36857, 36920, 36921, 36922 to 36924, 36938 to 36940, 36955, 36956, 36967, 36968, 37233, 37236, 37767 to 37769, 37804, 38257 to 38259, 38297, 38311, 38314, 38338, 38662, 38677, 38680, 38688, 38703, 38704, 38717, 38742, 38827, 38835, 38873, 39314, 39333, 39395, 39448, 39521, 39630, 40027, 40070, 40141, 40142, 40294, 40991, 40993, 40994, 41046 to 41048, 41368, 41375, 41798, 42008, 45730, 45731, 45733 to 45741, 46988, 47103, 47188 to 47190, 47516, 49337, 50074, 50156, 50157, 50162 of 2006 and 1908, 6164, 6569, 6598 to 6600, 6642, 7116, 8137 to 8140, 18624, 18944 to 18947, 19086, 20599, 20722, 20723, 20768, 20979, 24067, 24457, 24749, 24981, 26349, 26455, 27180, 27871, 28443, 30950, 31020, 31091 and 34328 of 2007 and connected Miscellaneous Petitions ..... W.P.No.37804 of 2006: Ebenezer Teacher Training Institute for Women run by Ebenezer Educational Trust, No.48-A/1, Pon Nagaram Tuticorin 2 rep. By its Correspondent R.Emerson Udai Singh ... Petitioner vs. 1.The State of Tamil Nadu rep. By its Secretary School Education Department Fort St.George Chennai 600 009. 2.The Director of Teacher Education Research & Training College Road Chennai 600 006. 3.The Regional Director National Council for Teacher Education, C.S.D.Building H.M.T.Post Jalahalli, Bangalore 560 031. ... Respondents Writ petitions filed under Article 226 of the Constitution of India praying for issuance of a Writ of Certiorari to call for the records from the impugned order passed by the 1st respondent in G.O.(1D)No.226 School Education (U) Department dated 28.08.2006 and the consequential order of the 2nd respondent in Na.Ka.No.9468/E3/2006 dated 01.09.2006, quash the same as far as it relates to the petitioner Institution is concerned. For petitioners : Mr. N.R.Chandran,Senior Counsel Mr. R.Muthukumarasamy, Senior Counsel for Mr. R.Sureshkumar Mr. B.Rabu Manohar Mr. Chandrasekaran for M/s. Chandrasekaran & Associates Mr.K.Selvaraj Mr.Hidayathullah Khan Mr.A.Sivaji Mr.E.Vijayan Mr.G.L.Ramshankar Mr.S.James Mr.V.Ramajegadeesan Mr.K.Soundara Rajan Mr.P.Srinivas Mr.R.Natrajan For respondents : Mr.N.Kannadasan Additional Advocate General III assisted by Mr.G.Shankar Spl.Govt.Pleader (Education) and Ms.Dhakshayani Reddy Government Advocate (Education) Mr.K.Ramakrishna Reddy for NCTE Mr.P.R.Gopinathan for NCTE .. COMMON ORDER In all these writ petitions, the Self-financing Teacher Training Institutes as well as their Association have challenged the constitutional validity of the impugned Government Order in G.O.(1D)No.226 School Education (U1) Department, dated 28.08.2006, passed by the State Government and the consequential orders of the Director of Teacher Education, Research and Training, Chennai-6, in so far as they relate to the petitioner Institute as well as the members of the petitioner Association and for direction against the respondents not to insist on the member Institutes to follow the reservation policy of the State Government in admission under the Management quota for Diploma in Teacher Education course for the academic year 2006-2007. 2. The petitioner institutes which are Self Financing Teacher Training Institutes imparting Diploma in Teacher Education course have been functioning from the academic year 2004-2005 and some of the Institutes have started functioning from 2005-2006. As per the procedure in vogue, and as per the Government Order, the admission to be made for Diploma in Teacher Education course in these institutions is at the ratio of 50:50 between the Management and the Government in respect of non- minority Self Financing Teacher Training Institutions and 70:30 in respect of Minority Unaided Teacher Training institute, which means that in respect of Non-minority Unaided institutes 50% of intake are to be filled up by the Government through counselling following Single Window System and the remaining 50% are to be filled by the Management based on the inter-se merit among the applicants who have applied to the respective institutes, which is called, the Management quota. 3. Regarding the Minority institutions, 30% of the seats are to be filled up by the Government and 70% to be filled up by the Management. For admission to the First Year Diploma in Teacher Training course, marks obtained in +2 Examinations (Higher Secondary Examinations) is the eligibility criterion. It is the case of the petitioners that the said ratio in admission has been maintained and as far as the seats to be filled up by the State Government by way of counselling following Single Window System is concerned, the existing reservation policy of the State Government, viz., 69% reservation for Backward Class, Scheduled Castes and Scheduled Tribes is being followed and in respect of the seats to be filled by the Management under Management quota, no such reservation policy is followed and it is open to the Management to admit students based on merit. However, it is the case of the petitioners that more or less in all the Institutes, the said 69% reservation policy has been accomplished, except in few cases where the impossibility was due to the non-availability of students. 4. In the year 2006-2007, the said procedure of admission has been followed after the publication of the result of +2 Examinations and the admission to the Management quota for the said academic year has been completed by the third week of August, 2006. As far as the filling up of the Government seats by counselling, as per the Schedule of the Government, the said process was completed in the first week or second week of October. After completion of the admission to the Government quota, the Management started the classes for the First Year Diploma in Teacher Education. However, the Government has issued the impugned G.O.(1D)No.226 dated 28.08.2006, based on which the Director of Teacher Education, Research and Training has issued the consequential order in the first week of September, 2006, which was served on the institutes in the second or third week of September,2006. 5. In the impugned Government Order, the first respondent has stated that it was issued as per earlier G.O.Ms.No.212 Higher Education (J2) Department dated 18.07.2006, which was issued pursuant to the order of this Court in respect of Unaided Minority and Non-minority Engineering Colleges to fill-up the seats under Management quota, based on the Government's policy of reservation. It was based on the said Government Order, the impugned order was passed with respect to the Unaided Non-minority Teacher Training Institutes directing them to follow the reservation policy of the State Government in admission to Management quota from academic year 2006-2007 and also directing that such admission shall be completed by 30.09.2006 and list of students so admitted shall be sent to the Director of Teacher Education, Research and Training, Chennai, failing which, the National Council for Teacher Education (in short,"NCTE") will be informed to cancel the recognition granted to the Institutions. 6. It is the said impugned G.O.226 along with the consequential order of the Director of Teacher Training, Research and Training, Chennai which is challenged by the petitioners herein on various grounds, including that the orders are unlawful, arbitrary and against the law laid down by the Supreme court. Further, G.O.Ms.No.212 Higher Education (J2) Department dated 18.07.2006, which is referred to in the impugned Government Order itself was passed based on the common order of this Court in W.P.Nos.15701 and 16027 of 2006 dated 06.07.2006, wherein this Court has issued the said directions based on the consensus reached between the State Government and the Consortium of Engineering Colleges and that was only for that particular year in respect of Engineering Colleges, and therefore, according to the petitioners, the said order of this Court as well as the consequential G.O.Ms.No.212 Higher Education (J2) Department dated 18.07.2006 cannot be taken as precedent for the impugned Government Order, since that was based on the settlement arrived at for that particular year in respect of Private Engineering Colleges. 7. It is the further case of the petitioners that sharing of seats between the Government and the Institutes was held to be unconstitutional by a Constitution Bench of the Supreme Court (consisting of Eleven Judges) in T.M.A.Pai Foundation vs. State of Karnataka (2002 (8) SCC 481), which was subsequently clarified by a Five Judge Constitution Bench in Islamic Academy of Education vs. State of Karnataka (2003 (6) SCC 697) and again, a larger Bench consisting of Seven Judges in P.A.Inamdar vs. State of Maharashtra (2005 (3) MLJ 158) has considered the autonomy of private educational Institutions, fees structure as well as the percentage of seat sharing between the State Government and the Management, and held that the seat sharing constitutes a serious encroachment on the autonomy of private educational Institutions and the same cannot be held to be a regulatory measure. Therefore, according to the petitioners, when the latest Supreme Court judgement in P.A.Inamdar's case (cited supra) has clearly clarified the legal position and the review petition filed by the State Government is stated to have been dismissed, the State Government cannot impose the reservation policy in respect of the seats to be filled under the Management quota and inasmuch as the review petition filed by the State Government has been dismissed, it would be res judicata against the Government. 8. It is also the further case of the petitioners that the Management quota has been filled up even in July and August,2006 for the academic year 2006-2007, but the impugned order dated 28.08.2006, came to be issued only in the first week of September,2006, by which time, the admission under the Management quota has been completed. It is the further case of the petitioners that in G.O.Ms.No.212 Higher Education (J2) Department dated 18.07.2006, the main issue was relating to seat sharing between the Government and the private Managements and the principle of reservation was incidental. 9. The respondents 1 and 2 have filed a common counter affidavit in all these cases. According to the respondents, the rule of reservation is applied uniformly in the State in all educational Institutions as per the provisions of the Tamil Nadu Backward Classes, Scheduled Castes and Scheduled Tribes (Reservation of seats in Educational Institutions and of Appointments or posts in the Services) Act, 1993 (Tamil Nadu Act 45 of 1994) and the same is in force from 1994 and included in the IX Schedule of the Constitution of India to give protection to the State under Article 31-B of the Constitution of India. This inclusion was enabled by the 76th Constitutional Amendment and the same is under challenge and pending before the Supreme Court. According to the respondents, by insertion of Clause 5 to Article 15 of the Constitution, it enables the Government to make any special provision of law, for the advancement of any socially and educationally backward classes of citizens and for the Scheduled Castes and Scheduled Tribes in so far as the said provisions relate to their admission to educational Institutions, whether they are Aided or Unaided other than the Minority Educational Institutions referred to under Article 30(1) of the Constitution of India. 10. The definition of "Private Educational Institutions" includes both Aided or Unaided and only exemption is the Minority educational institutions as per Article 30(1) of the Constitution. As per the Amended Act No.12 of 2006, the Scheme of Reservation followed in the State under Section 3(2) is as follows: (i)Backward Class : 30% (ii)Most Backward Class and denotified communities : 20% (iii)Scheduled Castes : 18% (iv)Scheduled Tribes : 1% It is the case of the respondents that it is based on the same, G.O.(1D)No.111 School Education (U1) Department dated 17.07.2003 was passed providing rule of reservation to Diploma in Teacher Education course in Tamil Nadu, earmarking 69% for reserved category. The said norm was also prescribed in the impugned G.O.226 dated 28.08.2006 for the academic year 2006-2007 following the same rule of reservation as per G.O.111 dated 17.07.2003. It is the case of the respondents that it also emphasised to follow the same pattern of reservation as prescribed in G.O.Ms.No.212 Higher Education (J2) Department dated 18.07.2006. It is only based on the said Government Order, the second respondent, the Director, has issued instructions to all private Teacher Training Institutes to follow the rule of reservation. 11. It is the further case of the respondents that for the past two decades, all professional courses are uniformly adopting the rule of reservation. It is also the case of the respondents that while it is true that in P.A.Inamdar's case (cited supra), the Supreme Court has directed the reservation not to be followed in respect of Management quota, there is an observation to safeguard the merit of respective candidates for admission until statutorily regulation is framed and accordingly, the process was entrusted to the Permanent Committee for admission to the Engineering Colleges chaired by a retired Judge of this Court, which ensures the rule of reservation is to be followed apart from merit selection of students to the professional Colleges. When the constitution of the said Permanent Committee was challenged by the Consortium of Engineering Colleges in W.P.Nos.15701 and 16027 of 2006, it was brought to the notice of this Court the direction of the Hon'ble Supreme Court dated 12.06.2006 that, "the practice which was adopted for the previous academic year 2005-2006, will be adopted for the academic session 2006-2007". Thereafter, by consensus, a settlement was arrived at between the Self Financing Engineering Institutions and the Government for seat sharing formula. It is further denied in the counter affidavit that the impugned Government Order is violative of the fundamental rights guaranteed under the Constitution of India. 12. Mr.R.Muthukumarasamy and Mr.N.R.Chandran, learned senior counsel and other learned counsel appearing for the petitioners submitted that the law is well settled after the Seven Judge Bench judgement of the Supreme Court in P.A.Inamdar's case that there is no allocation or reservation of seats in respect of the Unaided Professional Colleges. It is their further contention that the impugned Government Order which relies on G.O.Ms.No.212 Higher Education (J2) Department dated 18.07.2006 is the result of total misconception of the entire issues. According to them, the said G.O.Ms.No.212 Higher Education (J2) Department dated 18.07.2006 was only for the year 2006-2007, that too, in respect of admission to Engineering Colleges and that was based on the consensus arrived at between the Consortium of Management of Engineering Colleges and the Government, which was reflected in the judgement in W.P.Nos.15701 and 16027 of 2006 and therefore, the said G.O.Ms.No.212 Higher Education (J2) Department dated 18.07.2006 cannot be the basis for the present impugned Government Order and the Management's of the present institutes were not parties to the said consortium of Management's which entered into the consensus with the Government. They also referred to the judgement of the learned single Judge in W.P.No.15701 and 16027 of 2006 dated 06.07.2006, which clearly refers to the agreement between the parties. Inasmuch as the Management of Teacher Training Institutions were not parties to the said consensus, it will not be binding upon the petitioner Institutions and therefore, G.O.Ms.No.212 Higher Education (J2) Department dated 18.07.2006, has no application at all. The learned senior counsel would also refer to the Division Bench judgement of this Court in Tamil Nadu Self Financing Colleges of Education Management Association vs. State of Tamil Nadu (2007 (6) MLJ 478), wherein the Division Bench has held that the judgement of the Supreme Court in P.A.Inamdar's case is holding the field and therefore, according to them, the impugned G.O.Ms.No.226 is not valid in the eye of law. 13. Mr.K.Selvaraj, learned counsel appearing for some of the petitioner Institutes, in addition, would submit that regarding the principle of reservation, the Division Bench of this Court in a batch of cases in W.P.No.10016 of 1993 etc., dated 26.07.1993, has directed that the reservation of the State Government has to be followed not only in respect of free seats otherwise called Government quota, but also in respect of Management quota and refused to interfere with the existing reservation policy of the Government even though the Supreme Court has held in Indra Sawhney vs. Union of India (AIR 1993 SC 477) that the reservation in excess of 50% is impermissible. The learned counsel has brought to the notice of the Court that the Supreme Court, in the appeal filed against the said judgement has granted stay of reservation in excess of 50% and also directed the Government to create 6% and 7% additional seats in medical and Engineering colleges respectively and allot the said seats exclusively to the open competition candidates, strictly on the basis of merit in Voice (Consumer Care) Council vs. State of Tamil Nadu (1995 (1) Supp. SCC 632). The learned counsel has also brought to the notice of this Court that when the State Government has filed a petition for modification of the said order dated 22.07.1996 to permit it to implement the provisions of Tamil Nadu Backward Classes,Scheduled Castes and Scheduled Tribes (Reservation of seats in Educational Institutions and of Appointments or posts in the Services) Act, 1993 (Tamil Nadu Act 45 of 1994), that petition was dismissed by the Supreme Court holding that additional seats were directed to be created only as an interim measure. Therefore, according to the learned counsel, when that was the position and the matter is still pending before the Supreme Court, there is no point in the respondents imposing the policy of reservation on the seats under Management quota. 14. Mr.N.Kannadasan, learned Additional Advocate General, while defending the impugned Government Order, would submit that inasmuch as the Tamil Nadu Act 45 of 1994 remains valid as on today, even though the issue is pending before the Supreme Court, the principle of reservation is in vogue in this State and therefore, it cannot be said that the Management is not bound to follow the same, which is the policy of the Government. He would further submit that even though G.O.Ms.No.212 Higher Education (J2) Department dated 18.07.2006 relates to the consortium of management of Engineering Colleges, there is a clear settlement between the Management and the Government, wherein the Management have agreed to follow the policy of reservation and therefore, according to him, the principle enunciated under G.O.Ms.No.212 Higher Education (J2) Department dated 18.07.2006, is applicable to the facts and circumstances of the present case. 15. I have heard both sides as well as perused the entire records. 16. The impugned G.O.(1D)No.226 School Education (U1) Department, dated 28.08.2006, which relates to the admission of students in the Teacher Training Institutions for the year 2006-2007, is applicable to both the Government as well as Private Institutions, including the Aided and Unaided and Minority and Non-minority Institutions. The said Government Order in effect is passed based on earlier G.O.Ms.No.212 Higher Education (J2) Department dated 18.07.2006, even though a reference has been made to G.O.(1D)No.111 School Education (U1) Department dated 17.07.2003, directing that Non-minority Unaided private Teacher Training Institutions shall follow the reservation policy of the State Government in admitting the students in respect of the seats to be filled up under Management quota, however, stating that in respect of Unaided Minority Institutions, the policy of reservation need not be followed. 17. G.O.Ms.No.212 Higher Education (J2) Department dated 18.07.2006, which is the basis for the impugned G.O.(1D)No.226 School Education (U1) Department, dated 28.08.2006, has been issued by the Government in respect of admission and apportionment of seats between the Government and the Management of Unaided Engineering Colleges. The said Government Order in its turn refers to the judgement of this Court in W.P.Nos.15701 and 16027 of 2006 dated 06.07.2006 wherein it was directed that the admission to the Unaided Engineering Colleges for the academic year 2006-2007 should be made on certain conditions. 18. The order of this Court, viz., W.P.No.15701 and 16027 of 2006 dated 06.07.2006, referred to in the said G.O.Ms.No.212 Higher Education (J2) Department dated 18.07.2006, shows that a consensus between the parties has been arrived at by the affidavit dated 23.06.2006 and 26.06.2006 filed by the petitioner in writ petition No.15701 of 2006 and likewise, on the side of the State Government, the Commissioner of Technical Education has filed an affidavit dated 26.06.2006 and the Secretary to Government, Higher Education has also filed an affidavit dated 27.06.2006 in W.P.No.16027 of 2006. Based on that, settlement has been arrived at between the parties and in those circumstances, without traversing into the legal merits, the following conditions have been issued: " 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 12.06.2006 in P.A.Inamdar and others vs. State of Maharashtra, the State Government shall adopt the 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 inter-se merit alone is the criterion, as declared by the Supreme Court in paragraph No.132 of Inamdar's 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 judgements referred to above." Therefore, it is clear from the judgement referred to above, that the condition to follow the rule of reservation by the Non-minority Unaided Engineering Colleges in respect of the Management quota was based on the agreement arrived at between the parties and it related to the admission in the Engineering Colleges for the year 2006-2007 and the Educational Institutions were not the parties to the said agreement. So, there is no difficulty to come to the conclusion that a reference to G.O.Ms.No.212 Higher Education (J2) Department dated 18.07.2006, which was based on the the settlement arrived at between the parties and the judgement stated above cannot be the basis for the impugned G.O.(1D)No.226 School Education (U1) Department, dated 28.08.2006, and therefore is not legal and proper. Therefore, it is open to the petitioners to challenge the validity of such direction to follow reservation policy in respect of Management quota in the Non-minority Self Financing Teacher Training Institutions irrespective of the reference of G.O.Ms.No.212 Higher Education (J2) Department dated 18.07.2006. 19. At this juncture, it is relevant to point out that in the case of Tamil Nadu Self Financing Colleges of Education, along with many other issues including the surrender of number of seats to the Government, the point relating to the principle of reservation was not insisted by the Association of Self Financing Colleges of Education, since the Management was willing to follow the rule of reservation for the year 2007-2008 and it