IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :17.08.2007 C O R A M : THE HONOURABLE MR.A.P.SHAH, THE CHIEF JUSTICE AND THE HONOURABLE MR.JUSTICE P.JYOTHIMANI WRIT PETITION Nos.24910, 25177, 25187 and 24159 of 2007 and connected miscellaneous petitions Tamil Nadu Self Financing Colleges of Education Management Association (Regd.) rep. By its President Mr. R. Tamil Mani Old No.7, New No.11, 3rd Cross Street West C.I.T. Nagar Chennai 600 035. ... Petitioner in WP.24910/07 St. Charles College of Education (Women) rep. By its Secretary Sr.Amali Thannakkankulam P.O Thirunagar Madurai District. ... Petitioner in WP.25177/07 Tamil Nadu Self Finance B.Ed. And Teacher Training Institutes Society rep. By its President V. Ganeshan No.78 Seetharam Nagar Cuddalore 607 001, Tamil Nadu. ... Petitioner in WP.25187/07 Stella Mary's B.Ed. College rep. By its Chairman G. David Raja Singh Devi Pattnama Vilakku Sivagiri Tirunelveli District 627 757. ... Petitioner in WP.24159/07 -vs- 1.The State of Tamil Nadu rep. By its Secretary to Government Higher Education Department Fort St. George Chennai 600 009. https://hcservices.ecourts.gov.in/hcservices/ 2.The Director of Collegiate Education Government of Tamil Nadu D.P.I. Campus, Chennai 600 006. 3.The National Council for Teacher Education rep. By its Member Secretary Hans Bhavan, New Delhi. 4.The Regional Director National Council for Teacher Education Southern Regional Committee First Floor, C.S.D. Complex H.M.T. Township, Bangalore 31. ... Respondents in WP.24910/07 1. The State of Tamil Nadu rep. By its Secretary to Government Higher Education (G1) Department Fort St. George Chennai 600 009. 2. The Director of Collegiate Education Government of Tamil Nadu D.P.I. Campus, Chennai 600 006. ... Respondents in WP.25177,25187 & 24159/07 Writ petitions filed under Article 226 of the Constitution of India praying to issue Writ of Certiorarified Mandamus and certiorari as stated therein. For petitioner :: Mr.R. Muthukumarasamy,Sr.Counsel in WP.24910/07 for Mr. R. Sureshkumar For petitioners .. Mr. K. Selvaraj in WPs.24159,25177& 25187 of 2007 For respondents :: Mr. M. Sekar Spl. Govt. Pleader (Education) COMMON ORDER ( MADE BY P.JYOTHIMANI,J.) The common question involved in all these cases relate to the challenge to G.O.Ms.No.214 High Education (G1) Department dated 04.07.2007, filed by the Management Association of Self Financing Colleges of Education as well as some of the Self Financing Institutions imparting instructions on B.Ed., course relating to three clauses in the said Government Order, viz., https://hcservices.ecourts.gov.in/hcservices/ (i)Reservation of Seats; (ii)Selection and Counselling by Single Window System; and (iii)Government quota in the Colleges of Education. 2. Presently there are 200 B.Ed., Colleges throughout the State of Tamil Nadu, which are granted recognition by the National Council for Teacher Education (in short, "NCTE"), Southern Regional Committee, Bangalore, and these institutions are imparting UG level and P.G. degree programme, viz., B.Ed., and M.Ed., courses and they are fulfilling the norms and standards as prescribed by the NCTE. 3. B.Ed., programme is one year course, wherein students after having completed the respective UG degrees like B.A., B.Sc., etc. are admitted based on the minimum eligibility marks as prescribed by the NCTE under its norms and standards. Each College is permitted to have the annual intake of 100 students. The said Self Financing Colleges are not aided by the Government, but whose courses are recognised by the State Government as well as NCTE and are hitherto filling up the seats every academic year based on the marks obtained by the candidates in the UG degree programme and in some cases based on their PG degree programme, from among the eligible applicants in accordance with inter- se merits strictly following the minimum eligibility criteria as prescribed by the NCTE. 4. The State Government passed G.O.No.185 Higher Education (G1) Department dated 13.06.2005, giving certain guidelines to be followed for admission to B.Ed., M.Ed., M.Phil. and Ph.D. (Education) courses for the academic year 2005-2006. Accordingly, the selection was directed to be made based on the entrance examination to be conducted by a Nodal Agency, viz., Lady Wellington Institute of Advanced Studies in Education, Chennai-5. Certain exhaustive procedures and guidelines have been given in the said Government Order in respect of conducting entrance examination, preparation of rank list etc, to be followed by the said Nodal agency, for making admissions in the Government B.Ed., Colleges as well as in the Government quota in respect of aided minority and non-minority B.Ed., Colleges. It is the case of the petitioners that entrance examination stated in the said Government Order specifically restricted to the admission in the Government Colleges and it is also stated that in respect of candidates seeking admission under the Management quota in Government aided Colleges of Education and Self Financing Colleges of Education, there was no necessity for appearing for the entrance examination. Therefore, hitherto all the Self Financing Colleges, which are unaided have been admitting 100% of students based on the minimum eligibility criteria and depending upon the inter se merit. Even the students who have written entrance examination in the Government and Government Aided Colleges were admitted in these Self Financing Colleges not based on their performance in the entrance examination, but based on the degree qualifications and the said admissions have been approved by the respective Universities and the students have also passed out the B.Ed., degree examination from these Colleges atleast in two sets. 5. However, the first respondent - State Government has recently come out with the impugned G.O.(Ms)No.214 Higher Education (G1) https://hcservices.ecourts.gov.in/hcservices/ Department, dated 04.07.2007, prescribing new set of procedure to be followed for B.Ed., Colleges, making it applicable to Self Financing Colleges regarding admission procedure. According to the said Order, the Government have stated that the number of B.Ed., Colleges which were originally 22 in the year 2003-04 have been increased to 139 in 2006-07 and due to the said increase, the Government felt that the present procedure for admission followed as per G.O.No.185 dated 13.06.2005 results in hardship and therefore, the impugned Government Order came to be issued by introducing the Government quota in the Government Aided and Self Financing Colleges from the academic year 2007-08 and consequently it has also provided for Single Window System in Government Aided and Self Financing Colleges of Education from the academic year 2007-08. 6. The three conditions regarding the Government quota in the Self Financing Colleges, prescription of single Window System and the application of reservation policy in respect of the Self Financing Colleges provided under the impugned Government Order are challenged by the writ petitioners on various grounds including that the said restrictions affects the right guaranteed under Article 19(1)(g) and Article 30(1) of the Constitution of India. The imposition of reservation policy of following 69% of reservation to the non-minority Self Financing Private B.Ed., Colleges are not permissible as per the law laid down by the Supreme Court in T.M.A. Pai Foundation case (2002 (8) SCC 481). It is also the case of the petitioners that prescription of quota is also not permissible as per the decision of the Supreme Court in P.A. Inamdar's case (2005 (6) SCC 537). It is the further case of the petitioners that the degree in Education being a professional course and admission is only to the candidates those who have completed the basic UG Degree course, who come from different stream of education with different curriculum, subject pattern and assessment, evaluation etc. and therefore, there cannot be any fool proof method of standardisation of marks for the purpose of applying the Single Window System. 7. The Director of Collegiate Education has filed counter affidavit on behalf of the State Government also. It is the case of the respondents that even in G.O.Ms.No.185 Higher Education (G1) Department dated 13.06.2005 it was stated in respect of unaided private self financing colleges, both minority and non-minority, the reservation applies in respect of 50% of the seats and it was only the remaining 50%, which was the Management quota, to which reservation was not insisted upon and according to the respondents even in the impugned Government Order also it is only 50% of the Government quota, which was ordered as it was in the previous Government Order. Therefore, according to the respondents it is not correct to state that all these years the self-financing colleges are permitted to admit students according to the merits of the candidates. According to the respondents, 50% of the seats in Government quota even in the self- financing colleges will be filled up in the Self-Financing Colleges by following the Rule of Reservation and other 50% of the seats under Government quota will be filled by Single Window System by following the rule of reservation and merit from the academic year 2007-2008, in order to make the admission fair and reasonable. 8. In respect of the institutions which have filed W.P.Nos.24159 https://hcservices.ecourts.gov.in/hcservices/ and 25177 of 2007, it is the specific case of the first and second respondents that they have not applied to treat them as minority institutions as required under G.O.Ms.No.270 Higher Education (J1) Department dated 17.06.1998 and they cannot presume themselves to be minority. It is also stated that pursuant to the advertisement, applications have been issued and the last date for submitting the filled in application was 02.08.2007. The sale of applications have already begun on 26.07.2007 and the filing of the petition is to stall the admission proceedings. According to the first and second respondents the verdict of the Supreme Court relied upon by the petitioner do not rule out the State government's right in the matter of rule of reservation and conducting Counselling and it is not against the decision of the First Division Bench of this Court. The reservation policy of 69% in the State of Tamil Nadu was brought into force by Section4 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 under the State) Act, 1993 (Tamil Nadu Act 45 of 1994). 9. We have heard the learned counsel on either side and perused the entire records. 10. Mr.R. Muthukumarasamy, learned senior counsel appearing for the petitioner would fairly submit at the outset, as far as the reservation is concerned, the institutions which are the members of the Association of the Writ Petition in W.P.No.24910 of 2007, are agreeable to follow reservation in 2007-2008 and therefore, there is no need to decide about the constitutional validity of the said portion of the impugned Government Order relating to reservation. 11. In respect of the quota, which the Government has fixed relating to Self Financing Colleges, while he admits that some of the institutions have given in writing to the Government surrendering some percentage of seats, nevertheless fixing of such quota in respect of Self Financing Colleges is not permissible in law, especially after the 11 Judge Constitution Bench judgement of the Supreme court in T.M.A. Pai Foundation case ( 2002 (8) SCC 481). He would also fairly submit in so far as those institutions which have voluntarily submitted to the Government to surrender certain percentage of seats, certainly it is open to them and the same cannot be prevented. 12. In so far as the application of Single Window System is concerned, he would vehemently submit that the eligibility for a person to join in B.Ed., course is any basic degree and the degree may be obtained in various subjects like, Science, Arts, Maths, etc. Even a Post Graduate and person having M.Phil., Ph.D. is eligible to join B.Ed., course. In such circumstances, since the students are drawn from various streams of education with various curriculum of subjects and multi-farious concept of evaluation, they cannot be brought under one category so as to effectively implement the Single Window System. Making the Single Window System applicable, even to minority institutions is totally against the law laid down by the Supreme Court. He would also submit that as per the Division Bench decision of this court in W.A.No.876 of 2007 etc. batch dated 12.07.2007 relating to professional colleges, it was held that the centralised counselling is possible only in the context of common entrance examination and in the https://hcservices.ecourts.gov.in/hcservices/ ground reality of abolition of common entrance test there was no question of having a Single Window System. 13. On the other hand the learned Special Government Pleader (Education) would submit that majority of the self financing education colleges have given in writing surrendering the percentage of seats to the Government and that voluntary agreement cannot be prevented. 14. The Government has earlier issued G.O.Ms.No.185 dated 13.06.2005, giving Guidelines and Procedures for admission to B.Ed., and M.Ed., courses for the year 2005-2006, appointing Lady Wellington Institute of Advanced Studies in Education as a Nodal Agency for conducting entrance examination for the year 2005-2006. While narrating the procedures regarding reservation of seats for that year, it was stated in the said Government Order that the Rule of Reservation will apply to all seats in Government Colleges, 50% of seats in Aided Minority Colleges and 90% of seats in Aided Non-minority Colleges. It was also stated that in cases of Un-aided Private Self Financing Colleges, both minority and non-minority, it will apply to 50% of the seats. That apart, the procedure for entrance examination marks and the qualifying examination marks, etc. were mentioned for preparation of rank list. In the meantime, the Government has abolished the system of Common Entrance Examination by its statutory enactment (viz., Act 3 of 2007). 15. Under the present G.O.Ms.No.214 dated 04.07.2007, impugned in these writ petitions, the Government has issued orders in respect of admission to B.Ed., course for the year 2007-2008 under Single Window System. The Government appears to have taken the said decision on the basis of number of Colleges of Education which were 22 in number in 2003-2004 which has increased to 139 in 2006-2007 and many Self Financing B.Ed., Colleges have obtained permission directly from the NCTE during 2006-2007 and functioning under various Universities. Under the guidelines issued in the form of Annexure to the said Government Order, the petitioners have chosen to challenge three clauses, which are as follows: Annexure I.Subjects offered under B.Ed., Programme: ..... II.Eligibility and Educational Qualification: .... III.Reservation of seats: (1) Reservation of seats for candidates belonging to BC, MBC/DNC, SC and ST communities will be made as per the rules and regulations of the government i.e., SC 18%, ST 1%, MBC/DNC 20%, BC 30%, OC 31%. Admission into every College of Education shall be made strictly by following the rule of reservation as per law in force including for the Management quota seats of Non-minority Aided Colleges and Non-minority Self-financing Colleges. (2) For the wards of Ex-Servicemen of Tamil Nadu origin, one seat will be reserved in each College Education. (3) 3% of the sanctioned strength will be reserved https://hcservices.ecourts.gov.in/hcservices/ for Physically and Visually challenged students in each College of Education. IV.Selection and Admission Procedure: (a) Allocation of seats in the Colleges of Education. ..... (i).... (ii)..... (iii)Seats in Self-Financing Colleges of Education (50% of seats both in Minority and non-minority Colleges as Government quota) b. Method of Application: ... c. Last Date: .... d. Selection and Counselling under Single Window System. 1.The selection of candidates will be on the basis of the marks secured in the qualifying U.G./P.G. Degree examination. 2..... 3.... 4..... 5....." 16. As far as the III Clause in the Annexure to the impugned Government Order relating to the Reservation of seats, as it is stated earlier, the learned counsel appearing for the petitioners have agreed to follow the rule relating to the reservation stipulated in the impugned Government Order in the year 2007-2008 and therefore, there is no necessity to test the validity or otherwise of the said Clause in these writ petitions. 17. The next Clause which is impugned is in respect of Selection and Admission Procedure, wherein it is stated in Clause IV (a)(iii) that in respect of Self-Financing Colleges, whether they are minority or non- minority 50% of seats should be treated as Government quota. While holding that the scheme framed by the Supreme Court in respect of admission of students in Unnikrishnan J.P. vs. State of Andhra Pradesh (1993 (1) SCC 645) as not correct, the 11 Judge Bench of the Supreme Court in T.M.A. Pai Foundation vs. State of Karnataka (2002 (8) SCC 481) clearly held that any system that will deprive the private unaided institutions of the right of rational selection will be unreasonable and also held that direction surrendering the total process of selection to the State is unreasonable. The Supreme Court has observed in para 40 and 41 as follows: " 40. Any system of student selection would be unreasonable if it deprives the private unaided institution of the right of rational selection, which it devised for itself, subject to the minimum qualification that may be prescribed and to some system of computing the equivalence between different kinds of qualifications, like a common entrance test. Such a system of selection can involve both written and oral tests for selection, based on principle of fairness. https://hcservices.ecourts.gov.in/hcservices/ 41. Surrendering the total process of selection to the State is unreasonable, as was sought to be done in Unni Krishnan scheme. Apart from the decision in St. Stephen's College vs. University of Delhi (1992 (1) SCC 558) which recognised and upheld the right of a minority aided institution to have a rational admission procedure of its own, earlier Constitution Bench decisions of this Court have, in effect, upheld such a right of an institution devising a rational manner of selection and admitting students. " (Emphasis supplied) 18. Again, while holding that the private educational institutions have their right to grant admission, however with no whimsical or extraneous reasons, the Supreme Court further observed in para 65 as follows: “The reputation of an educational institution is established by the quality of its faculty and students, and the educational and other facilities that the college has to offer. The private educational institutions have a personality of their own, and in order to maintain their atmosphere and traditions, it is but necessary that they must have the right to choose and select the students who can be admitted to their courses of studies. It is for this reason that in St. Stephen’s College case this Court upheld the scheme whereby a cut-off percentage was fixed for admission, after which the students were interviewed and thereafter selected. While an educational institution cannot grant admission on its whims and fancies, and must follow some identifiable or reasonable methodology of admitting the students, any scheme, rule or regulation that does not give the institution the right to reject candidates who might otherwise be qualified according to, say, their performance in an entrance test, would be an unreasonable restriction under Article 19(6), though appropriate guidelines/modalities can be prescribed for holding the entrance test in a fair manner. Even when students are required to be selected on the basis of merit, the ultimate decision to grant admission to the students who have otherwise qualified for the grant of admission must be left with the educational institution concerned. However, when the institution rejects such students, such rejection must not be whimsical or for extraneous reasons." (Emphasis supplied) 19. While considering the validity or otherwise of quota of seats, in the subsequent judgement, viz., in P.A. Inamdar and others vs. State of Maharastra and others (2004 (8) SCC 139), the Supreme Court has observed not only about the seat sharing, but also reservation policy as follows: " 124. So far as appropriation of quota by the State https://hcservices.ecourts.gov.in/hcservices/ and enforcement of its reservation policy is concerned, we do not see much of a difference between non-minority and minority unaided educational institutions. We find great force in the submission made on behalf of the petitioners that the States have no power to insist on seat-sharing in unaided private professional educational institutions by fixing a quota of seats between the management and the State. The State cannot insist on private educational institutions which receive no aid from the State to implement the State’s policy on reservation for granting admission on lesser percentage of marks i.e. on any criterion except merit. 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 is there 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 nationalisation 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 the minority within the meaning of Article 30(1) or a reasonable restriction within the meaning of Article 19(6) of the 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 candidates. 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. 126. The observations in para. 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 https://hcservices.ecourts.gov.in/hcservices/ 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 para 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 freeships 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 the weaker and poorer sections of the society. 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. 128. We make it clear that the observations in Pai Foundation in para 68 and other paragraphs mentioning fixation of percentage of quota are to be read and understood as possible consensual arrangements which can be reached between unaided private professional institutions and the State." (Emphasis Supplied) Therefore, it is clear that in respect of the unaided Colleges of Education whether minority or non-minority, they cannot be compelled to surrender any number of seats to the Government. In view of the same, we have no hesitation to come to the conclusion that the said Clause IV (a)(iii) of the Annexure to G.O.Ms.No.214 dated 04.07.2007, which compels the Self Financing Colleges of Education to surrender 50% of their seats as a Government quota is clearly ultra vires. However, we make