IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:02.07.2007 CORAM: THE HONOURABLE MR. JUSTICE V. DHANAPALAN W.P. Nos.20212 & 20213, 20259, 20346, 20266, 21026 of 2007 & M.P. Nos.1,1,1,1,2,2,2,2,3 to 11 of 2007 W.P. Nos.20212 & 20213 of 2007 Consortium of Self Financing Professional, Arts & Science Colleges, Tamil Nadu represented by its Secretary Dr. P. Selvaraj 12, Ganapathy Street Royapettah, Chennai – 600 104 Petitioner in WP No.20212/07 Sakthi Mariamman Engineering College represented by its Chairman Mr. K.N. Ramachandran 55, Narayanaswamy Nagar Thandalam, Chennai – 602 105 Petitioner in WP No.20213/07 vs. 1 The State of Tamil Nadu represented by its Secretary to Government Higher Education Department Secretariat, Chennai – 600 009 2 The Director of Technical Education Chennai – 600 025 Respondents in WP Nos. 20212 & 20213 of 2007 W.P. No.20259 of 2007 All India Islamic Foundation represented by its Joint Secretary Seethakathi Chambers Old No.688, New No.272 Anna Salai, Chennai – 600 006 Petitioner vs. https://hcservices.ecourts.gov.in/hcservices/ 1 The State of Tamil Nadu represented by its Secretary to Government Law Department Secretariat, Chennai – 600 009 2 The State of Tamil Nadu represented by its Secretary to Government Higher Education Department Secretariat, Chennai – 600 009 3 The Director of Technical Education Chennai – 600 025 4 Anna University represented by its Registrar Sardar Patel Road Guindy, Chennai – 600 025 Respondents W.P. No.20346 of 2007 Sri Nandhanam College of Engineering and Technology represented by its Secretary Molakarampatti Village Thirupathur, Vellore District Petitioner vs. 1 The State of Tamil Nadu represented by its Secretary to Government Higher Education Department Secretariat, Chennai – 600 009 2 Anna University represented by its Registrar Sardar Patel Road Guindy, Chennai – 600 025 Respondents W.P. No.20266 of 2007 Madha Engineering College represented by its Chairman Kunrathur, Chennai Petitioner vs. https://hcservices.ecourts.gov.in/hcservices/ 1 The State of Tamil Nadu represented by its Secretary to Government Higher Education Department Secretariat, Chennai – 600 009 2 The Director of Technical Education Chennai – 600 025 Respondents W.P. No.21026 of 2007 Dr. Rajah Muthiah Chettiar Charitable and Educational Trust represented by its Trustee K. Chidambaram Rani Seethai Hall V Floor 603, Anna Salai, Chennai – 600 002 Petitioner vs. 1 State of Tamil Nadu represented by the Secretary to Government Health & Family Welfare Department Secretariat, Fort St. George, Chennai – 600 009 2 The Director of Medical Educational Kilpauk, Chennai – 600 009 3 The Selection Committee Directorate of Medical Education Kilpauk, Chennai – 600 010 represented by the Additional Director of Medical Education Respondents Common Prayer in W.P. Nos.20212 & 20213, 20259, 20346 and 20266/2007 Writ Petitions filed under Article 226 of the Constitution of India for issuance of a writ of declaration declaring the provisions contained in Sections 2(c)(iii), 4(1) and 5(4) of the Tamil Nadu Admission in Professional Educational Institutions Act 2006 (Tamil Nadu Act 3 of 2007) and also the consequential Government Order issued in G.O. Ms.No.115, Higher Education (J2) Department dated 25.05.2007 insofar as it provides admission of students through single window system as unconstitutional. Prayer in W.P. No.21026 of 2007 Writ Petition filed under Article 226 of the Constitution of India praying for a writ of declaration declaring that Section 2(c)(iii), 4(1) and 5(4) of the Tamil Nadu Admission in Professional Educational Institutions Act, 2006 (Act 3 of 2007) and the consequent G.O. Ms.No.87, https://hcservices.ecourts.gov.in/hcservices/ Health and Family Welfare Department dated 16.03.2007 insofar as it takes away the petitioner's right of admission in respect of 65% of the seats in MBBS course in its institution and also insofar as it provides for admission of students to the balance 35% of the seats through a centralised counselling is unconstitutional and violative of the law laid down by the Supreme Court. For petitioner in Mr. R. Krishnamurthy, Sr. Counsel W.P. Nos.20346 & 20259 of 2007 for Mr. V. Ayyadurai For petitioner in Mr. Rajeev Dhavan, Sr. Counsel W.P. No.20212 of 2007 for Mr. R. Natarajan For petitioner in Mr. N.R. Chandran, Sr. Counsel W.P. No.20213 of 2007 for Mr. R. Natarajan For petitioner in Mr. R. Muthukumaraswamy W.P. No.20266 of 2007 Senior Counsel for Mr. R. Natarajan For petitioner in W.P. No.21026 of 2007 Mr. Satish Parasaran For petitioners in M.P. Nos.3 to 11Mr. R. Shanmugasundaram in W.P. No.20212 of 2007 for Mr. U. Karunakaran For respondents in Mr. R. Vidudalai all writ petitions Advocate General for Tamil Nadu assisted by Mr. M. Sekar, Special Govt. Pleader (Education) COMMON ORDER Since the issue involved in this batch of six writ petitions is one and the same, these writ petitions are decided by a common order. 2 What are challenged by the un-aided minority and non-minority professional colleges and the Consortium of Self Financing Professional, Arts & Science Colleges, in this batch of six writ petitions, are, Sections 2(c)(iii), 4(1) and 5(4) of the Tamil Nadu Admission in Professional Educational Institutions Act, 2006 (Act No.3 of 2007) ("the Act" for short) and the consequential Government Order Nos.115 and 87 dated 25.05.2007 and 16.03.2007 respectively insofar as the former one provideing for admission of students through single window system in case of five writ petitions and the latter one, in W.P. No. 21026 of 2007. taking away the petitioner's right of admission in respect of 65% of the seats in M.B.B.S. course in its institution and also insofar as providing for admission of students to the balance 35% of the seats through a centralised counselling. https://hcservices.ecourts.gov.in/hcservices/ 3 The common and main ground of attack in this batch of writ petitions is that Sections 2(c)(iii), 4(1) and 5(4) of the Act are in violation of the rights guaranteed under Article 19(1)(g) of the Constitution of India in respect of non-minority educational institutions and Article 30 in respect of minority educational institutions. 4 The brief facts leading to the filing of these writ petitions are as below: i From the year 1993-94 and upto the year 2002-2003, admissions to self-financing Engineering Colleges were made on the basis of the scheme framed by the Supreme Court in its judgment reported in (1993) 4 SCC 111 in the matter of Unni Krishnan vs. State of Andhra Pradesh (in short "Unni Krishnan case"). Subsequently, the correctness of the Supreme Court's verdict in the said Unni Krishnan case, in respect of rights of minorities to establish and administer educational institutions and the rights of the non-minority un-aided institutions to administer their institutions and further, several issues fell for consideration of the Supreme Court in the case of T.M.A. Pai Foundation vs. State of Karnataka (in short "Pai Foundation case") before a 11 Judge Bench, the judgment of which is reported in (2002) 8 SCC 481 wherein it was ruled that the decision in Unni Krishnan case insofar as it framed the scheme regarding admission and fixation of fee was incorrect. In the result, the decision rendered in Unni Krishnan case and consequential directions issued by various authorities were over-ruled. In its judgment in the Pai Foundation case delivered on 31.10.2002, the Supreme Court held that the minorities as well as non-minorities had the right to establish and administer educational institutions in relation to the right guaranteed under Articles 30, 19 and 26 of the Constitution of India and that the said right to establish and administer comprises (i) right to admit students, (ii) right to set up a reasonable fee structure, (iii) right to constitute a governing body, (iv) to appoint staff and (v) and to take action if there is dereliction of duty on the part of the employee. In addition, the Supreme Court did not fail to recognise the autonomy of the unaided private institutions in the matter of governing admissions and further held that such institutions cannot be deprived of their right to select students, subject to adhering to the merit-based selection. ii As there were different statutes and regulations by the State and Central Government and some of the educational institutions understood the majority judgment of the Pai Foundation case in different perspectives and further, since the courts were passing interim orders in a number of litigations, these orders were taken before the Supreme Court which referred all these matters to a Constitution Bench so as to clarify the doubts and anomaly, if any, arising out of the judgment in Pai Foundation case. Thus, a batch of cases known as Islamic Academy of Education vs. State of Karnataka was https://hcservices.ecourts.gov.in/hcservices/ taken up to the Supreme Court and the Constitution Bench of the Supreme Court sought to clarify the judgment in Pai Foundation case under four important questions, which are as under: "a. whether educational institutions are entitled to fix their own fee structure? b. whether the minority and non-minority educational institutions stand on the same footing and have the same rights? c. whether the private unaided professional colleges are entitled to fill in their seats to the extent of 100% and, if not, to what extent? and d. whether private unaided professional colleges are entitled to admit students by evolving their own method of admission?" iii As seen from the above, Question Nos.1 and 2 relate to fixation of fee structure and the rights of minority and non-minority educational institutions. Certain private un-aided professional colleges contended before the Supreme Court that they were entitled to fill up all the seats by themselves, evolving their own method of admission while the respondents/State Governments contended that the judgment in Pai Foundation case enabled them to fill up a percentage of the seats in private institutions and that the admission of students under the Management quota should be based on merit through a Common Entrance Test conducted by them. These issues were covered by Question Nos.3 and 4 raised in Islamic Academy case and it was answered by the Supreme Court that the Government was entitled to fill up a certain percentage of seats in the private un-aided professional colleges which would vary from State to State, depending upon the exigencies and that different percentages can be fixed for minority institutions and that the Managements were entitled to fill up only the remaining seats. It was further held that the Management of both minority and non-minority professional colleges can admit students in the quota allotted to them either on the basis of the Common Entrance Test conducted by the State or on the basis of a Common Entrance Test conducted by an Association of all Colleges of a particular type in that State, namely Medical, Engineering, etc. The Supreme Court further went on to hold that after the declaration of results in the Common Entrance Test, the merit list would be placed on the notice-board of all the Colleges and selection of students by the respective Colleges be made strictly on the basis of merit. As for the minority institutions, it was held by the Supreme Court that they will be entitled to fill up their quota with their own students on the basis of inter se merit among those students. This list of students so admitted was directed to be communicated to the authorities concerned. Also, there was a direction by the Supreme Court to the State Governments to appoint a permanent committee to https://hcservices.ecourts.gov.in/hcservices/ ensure that the test conducted by the association of colleges is fair and transparent. iv Pursuant to the judgment of the Supreme Court in Islamic Academy case, the Government of Tamil Nadu issued orders fixing 50% of seats in non-minority engineering colleges to be filled in by it through the Common Entrance Test conducted by it and permitting the private self-financing non-minority institutions to fill up the remaining 50% of the seats. In minority institutions, 30% of the seats was to be filled up by the State as above leaving the minority institutions to fill up the remaining 70% seats and both minority and non-minority institutions were permitted to conduct a common entrance examination through the petitioner consortium and they were also permitted to admit students pertaining to Management quota based on the merit resulting from the entrance examination and marks obtained in the qualifying examinations. v In deference to the judgment of the Supreme Court, a permanent Committee was appointed with a retired Madras High Court Judge as its Head and in the academic year 2004-2005, the petitioner consortium sought permission to conduct Common Entrance Test for admission of students. The Committee, on 01.06.2004, granted permission to the petitioner consortium, imposing various conditions which were contrary to the judgment of the Supreme Court. One such condition was that the private self-financing institutions should admit students under the Management quota through single window system and this condition was challenged before a Division Bench of this Court which gave two differing views and ultimately, when the matter was referred to a third Judge, it was held by the third Judge that the direction of the Committee to the private self-financing institutions to follow the single window system to admit students under the Management quota was illegal. A Special Leave Petition has been filed by the State against the said judgment of the third Judge and the same is pending before the Supreme Court. vi Meanwhile, several petitions came to be filed in various courts across the country raising several issues which were not resolved in Pai Foundation case as also the contentions to the effect that the judgment in Islamic Academy case was contrary to the judgment in Pai Foundation case. The said matters were referred to a 7 Judge Bench of the Supreme Court which rendered its judgment reported in (2005) 6 SCC 537 in the matter of P.A. Inamdar & others vs. State of Maharashtra. The said 7 Judge Bench, on consideration of four important issues posed before it, held that the States have no power to insist on seat sharing in un-aided private professional institutions by fixing a quota of seats between the Management and State. While reiterating the decision of the Pai Foundation case, the Supreme Court held that neither in the judgment in the Pai Foundation case nor in the decision in Kerala Education Bill, there is anything https://hcservices.ecourts.gov.in/hcservices/ which would allow the State to regulate or control admissions in un- aided professional educational institutions so as to compel them to give up a share of the available seats to the candidates chosen by the State. Accordingly, the Supreme Court was of the view that such sharing would amount to nationalisation of seats which was specifically dis-approved in Pai Foundation case. It was further held by the Supreme Court that such imposition of quota or enforcing reservation policy of the available seats in un-aided professional colleges is an act constituting encroachments on the right of the private institutions which cannot be held to be regulatory within the meaning of Article 19(6) of the Constitution of India. vii Therefore, in the Inamdar case, the Supreme Court held that they are unable to approve the scheme evolved in Islamic Academy case to the extent that it allows the State to fix quota for seat sharing between the Management and the State on the basis of local needs of each State in un-aided institutions of both minority and non-minority categories and that part of the judgment in Islamic Academy case was declared as not laying down the correct law and running counter to the judgment rendered in Pai Foundation case. The Supreme Court also clarified that paragraph 68 of the majority opinion in Pai Foundation case could be construed only to mean that unaided institutions could voluntarily agree for seat sharing with the State Government and not otherwise. It was further held that the State could not take over or fill up any percentage of seats under State quota unless the institutions themselves voluntarily give up any part of the seats to the Government to be filled up by it. This ruling was delivered by the Supreme Court on 12.08.2005 by which time, admissions had already been made following the principle laid down by the Supreme Court in Islamic Academy case and hence, the Supreme Court, while delivering the judgment in Inamdar case, held that the said judgment shall not affect or disturb admissions already made. viii In terms of the ruling of the Supreme Court in Inamdar case, the private self-financing professional colleges were entitled to admit students in their institutions on their own without the Government claiming any quota of the seats available with them. When there was a request by the petitioner Consortium to conduct Common Entrance Test, the Permanent Committee passed an order on 09.05.2006 with several directions, one of which stipulated that admissions are to be made only on the basis of a rank list prepared by a centralised counselling following single window system and also to follow the rule of reservation by the non-minority private engineering colleges. This direction was challenged by the petitioner Consortium and private institutions as well. During the pendency of these matters before the Supreme Court, a consensus was arrived at between the Government and the petitioner Consortium in the matter of admissions for the year 2006-2007. In view of the said consensus, an affidavit was filed before this Court whereby and whereunder the petitioner Consortium https://hcservices.ecourts.gov.in/hcservices/ agreed for seat-sharing between the Government and the private self- financing institutions for the academic year 2006-2007. It was further agreed that in respect of non-minority colleges, 65% of the seats in their institutions could be filled by the Government while the remaining 35% could be filled by the respective colleges. It was also agreed that as for minority colleges, 50% of the seats could be filled by the Government while the remaining 50% could be filled by the respective Colleges and 15% of the seats within the Management quota was permitted to be filled up with non-resident Indians (NRIs). The admissions were agreed to be made based on the marks obtained in the Common Entrance Test conducted by the petitioner Consortium taken along with the marks scored in the qualifying examinations. The State Government also filed an affidavit consenting to follow the practice which was adopted for the previous academic year in the matter of admission of students by private colleges and making it clear that they do not insist that the self-financing colleges should follow the single window system. These agreements were taken on record and in terms of the settlement arrived at between the parties, the writ petitions were disposed of by this Court vide its judgment reported in 2006 (3) MLJ 648. This Court, thus, while doing so, by recording the affidavit and issuing directions thereof, observed that its directions, though based on consensus reached between the parties, were nevertheless in conformity with the principles enunciated by the Supreme Court. ix In the academic year 2006-2007, the private self-financing Engineering Colleges, both minority as well as non-minority, had agreed to share the seats with the Government only for the academic year 2006-2007 and accordingly, filled up the seats in terms of the consensus arrived at and this being the scenario, the State has now enacted the Act to provide for admissions to professional degree courses such as engineering, medicine, dental, agriculture, etc. on the basis of marks scored in the qualifying examinations. In the said Act, the Common Entrance Test which was one of the basis of selection of students for admission to professional institutions has been done away with and admissions to every Government seat in every professional educational institution as well as admissions to seats to be filled up by the Management in professional educational institutions were to be done only on the basis of the marks obtained by the students in the relevant subjects in the qualifying examinations. 5 The main grounds of attack in this batch of writ petitions are that: a. as per the judgment of the Supreme Court in Inamdar case, the Government have no right either to appropriate any quota of seats or to compel the unaided professional institutions to give up a share of the available seats to the candidates chosen by the State; https://hcservices.ecourts.gov.in/hcservices/ b. the consensus arrived at between the Government and the private engineering colleges during the year 2006 was specifically for the academic year 2006-2007 and as such, the reference in Section 2(c)(iii) of the Act to the consensus is a mis-conception and a non-existing fact; c. Section 4(1) of the Act directing admission in unaided private educational institutions to be made on the basis of the marks obtained in the qualifying examinations, is violative of Article 30(1) in the case of minorities and Articles 19(1)(g) and 26 in case of non-minorities since the right of the unaided private educational institutions to admit students has been traced to the provisions of the Constitution and as such, the State have no jurisdiction to interfere with the said right, as held by the Supreme Court in Pai Foundation case and clarified in Inamdar case; d. Section 5(4) of the Act insofar as directing the unaided professional institutions to admit students through centralized counselling is opposed to the judgment of this Court reported in (2004) 4 MLJ 1 in and by which it was held that the direction of the permanent committee to private self-financing institutions to admit students under the Management quota through a single window system, is illegal; and e. since the process of Common Entrance Test has been done away with in view of Sections 3 and 4 of the Act, the question of centralized counselling would only be a misnomer besides constituting serious inroad into the rights of private self- financing professional colleges in the matter of admission. 6 On the other hand, the respondent State has filed its counter and it is contended that the order of a learned Single Judge of this Court, passed in a batch of writ petitions with regard to engineering admissions for the year 2004-2005, dispensing with the single window system for selection of candidates to management quota was referred to a Division Bench and in view of divergent views of the Bench expressed in the order dated 25.08.2004, when the matter was referred to a third Judge, the third Judge confirmed the finding of one of the Judges of the Bench that the individual institutions shall have their own counselling and the order dated 25.08.2004 has been taken on appeal in S.L.P. before the Supreme Court and the same is pending for final adjudication and as such, the order dated 25.08.2004 of this Court is not final and conclusive, more particularly when the Supreme Court, in paragraphs 133 and 135 of its judgment in Inamdar case, has stood by centralized counselling taking into account the larger interest and welfare of the student community. https://hcservices.ecourts.gov.in/hcservices/ 7 In response to the case of the petitioners that the consensus arrived at between the Consortium and the Government in respect of seat sharing is only for the academic year 2006-2007, it is contended by the State that when the Consortium did not protest at the time of passing of the Bill in theAssembly in December 2006 after the assent by the President of India, the petitioners are now estopped from challenging Section 2(c) (iii) of the Act. In this context, it is further submitted by the State that seat-sharing cannot be reviewed every year unless there is a material change warranting modification of the terms of agreement. 8 As far as the case of the petitioners that Section 4(1) of the Act compels the rule of reservation to be followed by minority institutions, it is submitted by the respondent State that since Section 6 of the Act is clear to the effect that admission into every professional educational institution other than minority professional educational institutions shall be made following the reservation as per law in force, it is incorrect on the part of the petitioners to say that the minority institutions are compelled to make the admissions following the rule of reservation. Pointing out that the number of applications has increased to 95,181 this year when compared to 66,384 applications received for the year 2006-2007,