Dr. D.Y. CHANDRACHUD, J.
On 31st October, 2002 a Bench of eleven Judges of the Supreme Court delivered judgment in T.M.A. Pai Foundation v. State of Karnataka 2002 (8) S.C.C. 481. The judgment of the Supreme Court considered issues and laid down constitutional principles of vital importance to the dispensation of education, particularly educational instruction in institutions of professional and higher learning. Eleven questions were formulated by the bench covering a wide spectrum relating to the extent of autonomy enjoyed by privately managed institutions, many of them not being recipients of aid from the State; the extent to which that autonomy would include within its purview the selection of students and the determination of fees; the permissible domain of the regulatory power of the State and the ambit of the rights conferred by the Constitution on religious and linguistic minorities to establish and administer educational institutions of their choice. Since 1993, admissions to a wide range of educational institutions including those imparting education that leads to the conferment of professional degree in Medicine had been governed by the principles which were enunciated by the Supreme Court in J.P. Unnikrishnan v. State of Andhra Pradesh, 1993 (1) S.C.C. 645. The validity of the scheme formulated by the Supreme Court in Unnikrishnan was considered by the Supreme Court in T.MA. Pai Foundation. That scheme was held to be unconstitutional principally because the concept of "payment seats" and "free seats" had failed to achieve the object which it was intended to sub-serve and was found to have operated as a cross-subsidization of the affluent by other students not possessed of comparable economic resources.
2.The judgment of the Supreme Court in T.M.A. Pai Foundation was interpreted by regulatory authorities in various States, often without a degree of consistency. The Government in the State of Maharashtra issued Government Resolutions inter alia on 5th April, 2003 and 24th April, 2003 designating the constitution of an authority for determining the fee structure in medical colleges and prescribing a methodology for carrying out admissions. These Government Resolutions came to be questioned before this Court in a batch of writ petitions principally by private unaided colleges who contended that the action taken by the State Government, trenched upon their autonomy which was recognized by the judgment of the Supreme Court. In the meantime, a Constitution Bench of five Judges of the Supreme Court was constituted in order to set at rest litigation which had taken place in several High Courts in regard to the interpretation of the judgment in T.MA. Pai Foundation. The Constitution Bench delivered its judgment in Islamic Academic of Education v. State of Karnataka, on 14th August, 2003. The judgment is reported in 2003 (6) SCALE 325. The batch of matters placed before this Court was then finally heard and disposed of on 23rd August, 2003 following the principles enunciated in T.M.A. Pai Foundation and Islamic Academy of Education (supra) .
THE DEEMED UNIVERSITIES AND THIS BATCH OF PETITIONS
3.The batch of petitions which is before the Court in these proceedings under Article 226 of the Constitution has been heard separately. This batch relates to Deemed Universities recognised under section 3 of the University Grants Commission Act, 1956. There is before the Court on the one hand the case of the Bharati Vidyapeeth Deemed University which inter alia conducts a Medical and Dental College at Pune. Then there is the Dr. D.Y. Patil Vidyapeeth which conducts Medical and Dental Colleges leading up to the conferment of the M.B.B.S. and B.D.S. degrees at Navi Mumbai and a Medical College at Pune. The Dr. D.Y. Patil Vidyapeeth, Pimpri, Pune has been recognized as a Deemed University on 11th January, 2003 whereas the institution at Navi Mumbai was so recognized on 20th June, 2002.
4.Writ Petition No.4165 of 2003 has been instituted by the Akhil Bharatiya Grahak Panchayat. The principal contention of the petitioner is that though Bharati Vidyapeeth and Dr. D.Y. Patil Vidyapeeth have been recognised as Deemed Universities, the State of Maharashtra is the only authority competent to conduct a Common Entrance Test ("CET") for granting admissions to Medical, Dental, Homoeopathic, Ayurveda and Unani Colleges situated within the State. In the alternative, it has been submitted that even if these Deemed Universities are not to be brought within the purview of the C.E.T. conducted by the first respondent State, Deemed Universities cannot grant admissions to students on their own and such admissions must be granted on merit determined by a C.E.T. conducted either by the University Grants Commission ("UGC") or by an agency authorized by the U.G.C. other than the Deemed Universities themselves. The petitioner contends that the Deemed Universities and the other unaided private medical and dental Colleges in the State of Maharashtra have misinterpreted the judgment of the Supreme Court in T.M.A. Pai Foundation to suit their convenience. These colleges, it is alleged, claim complete freedom and the discretion to decide the qualifications for admission and the nature of the admissions process. Deemed Universities have conducted their own entrance examinations for admissions to medical and dental courses. The petitioner submits before the Court that though the Supreme Court recognized the right of private unaided professional colleges to admit students to a certain extent, the judgment lays down safeguards to prevent an abuse of the right conferred upon these colleges.
The contention of the petitioner is that the Supreme Court recognized the prerogative of agencies of the State to determine the qualifications for admission to professional courses and recognized that the State Government can hold a C.E.T. for admission to professional courses. The State Government, it is asserted, is empowered to ensure that transparency is maintained in the admissions process, that merit is the basis for the grant of admissions and commercialization in the field of education does not ensue. In the present case, it has been stated that the colleges managed by Bharati Vidyapeeth were excluded from the scope of the C.E.T. conducted by the State without any intelligible reason. The suggestion is that this happened because the head of Bharati Vidyapeeth is a Cabinet Minister in the State Government. The petitioner has adverted to guidelines issued by U.G.C. to govern Deemed Universities and it is submitted that admissions to courses of instruction in these Universities have to be granted on the basis of merit determined through a C.E.T. conducted either by U.G.C. or an agency approved or authorized by it and not on the basis of a C.E.T. conducted by the Deemed University itself. In the petition, it has been pleaded that the Deemed Universities claim to have granted admissions on the basis of a so called entrance test which they had no right to conduct and there is reason to believe that admissions will be granted in clear disregard of the principles laid down by the Supreme Court. The principal relief which has been sought is a direction to the State Government to include the colleges conducted by Bharati Vidyapeeth in the process of centralized admissions to medical and other courses and to grant admissions to those institutions strictly on the basis of the marks obtained in the C.E.T. conducted by the State. In the alternative, a direction has been sought to the effect that U.G.C. should conduct an All India C.E.T. either by itself or through any other agency approved and endorsed by it, other than the Deemed Universities themselves, to medical and professional colleges managed by and affiliated to these universities.
5.Writ petition No. 3829 of 2003 has been instituted before this Court by Akhil Bharatiya Vidyarthi Parishad. The petitioner therein has questioned the legality and validity of a notification dated 20th June, 2002 issued by the University Grants Commission conferring the status of a Deemed University on Dr. D.Y. Patil Vidyapeeth. Moreover, it has been urged that even assuming that the Vidyapeeth is a Deemed University, it was not entitled to hold and conduct its own entrance test for admission to its Medical and Dental Colleges at Navi Mumbai. A direction has been prayed to the effect that the entrance test conducted by the said Deemed University should be declared null and void and admissions to medical and dental colleges of the university should be granted only through the centralised admissions process conducted by the State Government.
6.Writ Petition No.3062 of 2003 is instituted by the Dr. D.Y. Patil Vidyapeeth to challenge inter alia the legality and validity of Government Resolutions dated 5th April, 2003, 17th April, 2003 and 24th April, 2003 the effect of which was to include the petitioner within the fold of the Centralized admissions process conducted by the State. Writ Petition No.3865 of 2003 has been instituted by the Dr. D.Y. Patil Vidyapeeth in relation to its Medical & Dental Colleges at Nerul, Navi Mumbai, for the same relief.
THE INTERIM DIRECTION ON DISCLOSURE
7.When the petitions were initially heard, a serious grievance was made before the Court that there were serious irregularities in the conduct of the All India Entrance Examinations by Dr. D.Y. Patil Vidyapeeth and by Bharati Vidyapeeth. Similarly, submissions were urged to the effect that there were rampant irregularities in the admissions granted by these universities in a quota which they had earmarked to themselves as the "NRI/ Foreign Nationals/ Revenue Compensation" category. It was alleged that the number of seats was not disclosed, fees were not disclosed in the advertisement and exorbitant amounts were charged upon individual negotiation. On 11th July, 2003, an order was passed by the Division Bench directing these deemed universities to file affidavits disclosing the following information in regard to their medical and dental colleges:
(1) The number of applications received against the management quota;
(2) The lists of students admitted in the management quota, together with their marks and the basis on which selections were made to the management quota.
In response to these directions affidavits have been filed before the Court in regard to the manner in which the admissions process has been conducted by the Deemed Universities.
DEEMED UNIVERSITIES UNDER THE U.G.C. ACT
8.Deemed Universities in India are governed by the University Grants Commission Act, 1956. The Act has been enacted by Parliament "to make provision for the co-ordination and determination of standards in Universities and for that purpose, to establish a University Grants Commission". The expression "university" is defined by section 2(f) to mean a University established or incorporated by or under a Central Act, a Provincial Act or a State Act, and to include any such institution as may, in consultation with the University concerned, be recognized by the Commission in accordance with the regulations made in this behalf under the Act. By virtue of the provisions of section 3, the Central Government is empowered on the advice of the Commission to declare that any institution for higher education, other than a University, shall be deemed to be a University for the purposes of the Act. On such a declaration being made, all the provisions of the Act are to apply to such institutions, as if it were a University within the meaning of Clause (f) of section 2.
THE U.G.C. GUIDELINES OF 2000
9.In the year 2000, the University Grants Commission formulated guidelines for considering proposals for declaring an institution as a Deemed University under section 3 of the Act. The guidelines explain that provision has been made in the Act to bring under the purview of the U.G.C. "institutions which for historical reasons or for any other circumstances are not universities and yet are doing work of a high standard in specialized academic fields comparable to a university The grant of the status of a university, it has been stated "would enable them to further contribute to the cause of higher education which would mutually enrich the institution and the university system". These norms laid down by U.G.C. stipulate that for the purpose of such recognition, a university should generally (i) be engaged in teaching programmes and research in fields of specialisation which are innovative and of a very high academic standard at the Master's level or in research; (ii) make in its area of specialisation, a distinct contribution to the objectives of the system of University education through innovative programmed (iii) be competent to undertake application oriented programmes in emerging area relevant to development and to society and (iv) an institution with viability and possessing a management capable of contributing to the ideals and traditions of university education. Clauses 13 and 14 of the guidelines are relevant to the admissions process and provide thus:
"13. Admissions shall be made on an All-India basis to the identical courses in all the deemed to be universities through a common entrance test conducted either by the University Grants Commission or by an Institution/ Agency identified and approved by the UGC. This shall apply also to those institutions which have already been given the deemed to be university status."
"14. Admission to the various professional courses, such as, Medical, Dental, Nursing, Engineering, Pharmacy, Management and Legal Education etc. shall be made on the basis of regulations framed by the UGC in consultation with the respective statutory Councils. The fee structure will also be the same as laid down in the respective regulations." (Emphasis supplied).
Clause 15(iii) lays down that the admissions procedure and fee fixation for students shall be in accordance with the norms and Rules prescribed by U.G.C.
THE 1997 REGULATIONS
10.In 1997, U.G.C. formulated certain regulations called the University Grants Commission (Regulation of Admission and Fees in Private Non-aided Professional Institutions) Regulation, 1997. Clause 2 of the Regulations stipulates that the regulations shall inter alia apply to institutions deemed to be universities under section 3 of the Act, if such institutions operate on a self-financing basis without receiving maintenance grants from the Central Government, State Government or any statutory body under their control. The expression "Competent Authority" is defined in section 3(e) of the Regulations as follows:
"(e) "Competent Authority" means the University Grants Commission, the Central Government, a State Government or a University or any other authority, as may be designated by the Commission, to determine the fees or scales of fees payable by students and the allotment of students for admission to various professional institutions."
These Regulations inter alia provide that the competent authority shall conduct the process of admission by calling for applications, advertising in the newspapers, issuing brochures containing the forms for admission and other relevant processes. Regulation 4(8) stipulates that in case admissions to a course of study are given on the basis of the results of a common entrance examination, the Competent Authority shall prepare a merit list of candidates from amongst the successful candidates based on their merit position. The Regulations of 1997 were undoubtedly formulated at a stage when the judgment of Unnikrishanan held the field. Therefore, those regulations provided for the distribution of seats between payment and free seats.
U.G.CS. INTERIM POLICY REGULATIONS 2003
11. After the judgment of the Supreme Court was delivered in T.M.A. Pai Foundation, U.G.C. issued on 10th June, 2003 interim policy regulations in exercise of its statutory powers conferred by section 26(1)(i) and section 12A(2) of the Act. These Regulations prescribe that they shall inter alia apply to deemed universities recognized under section 3. Clause 1 of the Regulations stipulates inter alia that in accordance with Clause 13 of the guidelines for Deemed Universities, these institutions shall join the common entrance examination as notified by the U.G.C. All the Deemed Universities offering technical and professional programmes were directed to join the A.I.E.E.E. Examination conducted by the Central Board of Secondary Education for the purpose of admission.
THE ENTRANCE TESTS OF THE DEEMED UNIVERSITIES
12. In the present case, both sets of Deemed Universities conducted their own All India Entrance tests. The Pune based institute of the D.Y. Patil Vidyapeeth held its own entrance test on 29th May, 2003 and results were declared on 12th June, 2003. The Navi Mumbai based institutions held its entrance test on 11th May, 2003 and declared results on 31st May, 2003. The submission of the Deemed Universities was that a Common Entrance Test was neither conducted by U.G.C. nor was any institution or agency identified and approved by U.G.C. as contemplated in guideline 13. In response to a specific query, Counsel appearing on behalf of Bharati Vidyapeeth fairly stated that no enquiry was made with U.G.C. in regard to whether U.G.C. had identified or approved any agency to conduct the All India Entrance Test. The submission was that Bharati Vidyapeeth was not bound to wait indefinitely if the U.G.C. did not designate any agency. In so far as the admissions that were conducted by the Bharati Vidyapeeth are concerned, the Court is informed that 102 students were admitted to the M.B.B.S. degree course conducted at Pune, while 18 seats were set apart as "NRI/ Foreign Nationals/ Revenue Compensation Seats. The Common Entrance Test was conducted on 5th May, 2003, a merit list of candidates was announced on 12th May, 2003 and after counselling between 23rd and 30th June, 2003, admissions were granted. Out of 102 students admitted in the open merit category, 5 seats remained to be filled up, by the time this Court passed an ad interim order of stay. In so far as the NRI/ Foreign Nationals/ Revenue Compensation Seats are concerned, a statement was made before this Court on 11th July, 2003 that 18 vacant seats in the Medical College at Pune shall not be filled up without the permission of the Court. Thereafter an affidavit was filed before the Court by the Registrar of the University on 16th July, 2003 stating that the statement which was made before the Court on 11th July, 2003 was incorrect and that actually out of 18 seats,15 had already been filled up even before 10th July, 2003 and that the correct position was that only 3 seats were vacant.
Admissions to the "NRI/ Foreign National/Revenue Compensation" Seats 13. In so far as the process of admission is concerned, the material which has been placed on the records shows that neither in the advertisement that was issued by Bharati Vidyapeeth nor in the brochure was there any reference to the number of seats that would be filled up as NRI/ Foreign National/ Revenue Compensation Seats. The admissions brochure stated that a few seats in each of the courses were reserved for this category, that candidates seeking admissions to these seats need not appear for the common entrance test, but that they should "contact the Registrar on or before 15th May, 2003". Bharati Vidyapeeth has disclosed before the Court a chart containing details of the students to whom the admissions have been granted in the NRI/ Foreign Nationals/Revenue Compensation Category. The chart shows that varying amounts have been charged to students. For instance a student by the name of Ms. Shilpa Srivastava has paid an amount of Rs. 26.49 lacs, while another student, Ms.Shweta Gupta has paid an amount of Rs.18.49 lacs. Various other students have been charged, for instance, amounts of Rs.11.49 lacs, Rs.11.99 lacs, Rs.7.49 lacs, Rs.1.49 lacs, Rs.74,900/- and Rs.59,300/ -. In the case of one NRI student, the total amount which has been recovered is US $ 40,000 plus Rs.1.49 lacs, whereas in the case of another, an amount of US $ 28,000/- has been paid.
14. We were seriously concerned about the question as to how, in the so-called NRI/Foreign Nationals/ Revenue Commission Category varying amounts have been charged to different students. In order to explain this, an affidavit has been filed on behalf of Bharati Vidyapeeth by its Registrar. In the affidavit it has been stated that 27 applications were received and on 9th May, 2003, the Vice Chancellor of the University constituted a committee for scrutinizing the applications. Upon scrutiny, the Committee found that 5 foreign nationals and 5 Indian students were eligible. The Standing Committee accepted the report of the Scrutiny Committee and decided to charge five times the normal fees for the aforesaid category, "as permitted in the resolution of the Government of Maharashtra". Since this failed to evoke the desired response from students in general and from foreign students in particular, the Standing Committee appointed another Committee to finalise the payment of fees in respect of candidates recommended for admission to the M.B.B.S. and B.D.S. courses and for professional courses under the NRI/ Foreign National/ Revenue Compensation Seats by holding discussions with individual candidates and guardians. The Committee was given the discretion to reduce the quantum of fees in respect of individual candidates, and it has been stated that after discussions with students and their guardians and after an appraisal of their capacity to pay, in some cases, the Committee permitted the student to pay only Rs.1.49 lacs for one year. It has been stated that variation in the fees charged was on the ground that some of the students from affluent families chose to pay the fees in advance. In the case of others a facility for payment in instalments was granted.
15. These facts, reveal indeed a startling position and a disturbing state of affairs. As we will shortly notice, the very concept of an NRI/ Foreign Nationals/ Revenue Compensation quota is contrary to the rationale of the judgment of the Supreme Court in T.M.A. Pai Foundation. Such a quota detracts from merit and allows a certain group of students to gain admission only because of their ability to pay an exorbitantly higher fee. But, apart from this, the manner in which the admissions have been carried out leaves much to be desired. The process is lacking in probity and transparency. The amount of fees charged from different students has been so radically different as to be suggestive of the fact that absolutely no objective norm or procedure has been followed. There was no indication when the admissions process began of the number of seats set apart in the NRI/ Foreign Nationals/ Revenue Compensation quota. There was no indication of the fees that would be charged. All the guidance which the students were provided with was to contact the ubiquitous Registrar. Contact the Registrar means what it says to students: "Contact him if you wish to settle a seat and, a deal on your fees". The actual fees that have been charged have thus varied from student to student depending upon individual negotiations with the students and their guardians. The community outside was never informed when the admissions process began, that even for the management quota seat could be handed down to a student not meritorious enough to get admission otherwise even for Rs.59,000/- or for that matter for the regular fee of Rs. 1.49 lacs.
The manner in which fees have been charged at different levels to different students would reveal a brazen exploitation of its position by the Deemed University in the present case. Counsel for the university attempted to argue that subject to a maximum of five times the regular fee which could be charged, the university is free to charge anything at its discretion less than the maximum. If the submission of Counsel were to be accepted that would be destructive of the principles of merit, transparency and objectivity laid down, by the Supreme Court in T.M.A. Pai Foundation. Counsel then urges that though to some students a fee of Rs.26 lakhs was charged while to others, Rs.18.49 lakhs, Rs.11.99 lakhs or even Rs.1.49 lakhs, Rs.74,800/- and Rs.59,300/-, the Court should not draw the inference that amounts have been collected from some students in cash or in other dubious transactions. Counsel urged that this would be a speculative exercise, outside the judicial power under Article 226, in the absence of concrete evidence. Counsel then tells us that one of the NRI students from the U.S. is the son of a Vice Chancellor from a university in the State. How could we have charged him more than Rs.1.49 lakhs was the submission. We, above all, are conscious of the limitations on the judicial power and of the necessity to eschew surmises that are conjectural. A Judge must proceed with caution even if to a common person not in his position an inference appears probable. We have, therefore, refrained from expressing any opinion on the case of any individual student, because particularly those students are not before us. We have confined ourselves to examining what the university disclosed, to facts which are admitted. Even those facts are an eloquent commentary upon the nature of the process. The facts speak for themselves.
THE C.E.T. HELD BY BHARATI VIDYAPEETH
16. An analysis has been prepared for the Court of marks obtained in the CET held by Bharati Vidyapeeth by students admitted to Bharati Vidyapeeth in comparison with their corresponding marks in the subjects of Physics, Chemistry and Biology at the H.S.C. Board Examinations. The submission has been that there is a fairly consistent pattern in respect of students admitted to Bharati Vidyapeeth which reveals that those who scored low marks in the Bench mark subjects of Physics, Chemistry and Biology (PCB), obtained staggering marks in the CET conducted by the Bharati Vidyapeeth. For instance, in the chart, the first five students of the 102, who are admitted scored 99%, 98.5%, 98%, 97% and 98% respectively in Bharati Vidyapeeth's C.E.T. The percentage obtained by these students at the H.S.C. Examinations was 63%, 71%,71%, 68.5% and 62.44% respectively. The same pattern continues as one goes down the list of 102 admitted students. A student at serial 12 who had 52% in the HSC secured 93% in the CET of Bharati Vidyapeeth. Students at serials 32, 47, 62, 75, 92 and 100 had secured 57.83%, 50.2%, 57.6%, 51.5%, 58.5% and 59% in the H.S.C. subjects. In the CET of the Institute, these students secured 94.5%, 93%, 91.5%, 89.5%, 88.5% and 86%. Of the 102 admitted students,16 secured marks between 50% and 60% in the H.S.C. Examination, 45 secured between 60% and 70% marks; 29 between 70% and 80% of whom 20 secured less than 75% and only 7 students had secured over 80%, but even then less than 90%.
17. Counsel appearing on behalf of the State submitted before the Court a statement showing a comparison between the marks obtained by students in the CET of Bharati Vidyapeeth and the corresponding marks and position in the State merit list prepared in pursuance of the CET held by the State in sample cases where students had appeared in both sets of CETs. This comparison is as follows:
The chart shows that a student who stood third in Bharati's CET with 98.5% marks aggregated 60.5% in the CET conducted by the State and his merit position in the State CET was 21,910. A student with 92% marks in the CET conducted by the Bharati Vidyapeeth and 56th in merit secured 42% in the State CET and his merit position was 46,319. A student with 91.5% in Bharati's CET with a merit position of 63 secured 41.5% marks in the State CET with a position of 46,942. A student with 88% marks in Bharati's CET with merit position of 94 secured 39% in the State CET with a merit position of 51,749. These facts cast a doubt on the credibility of the process followed by Bharati Vidyapeeth. Counsel appearing on behalf of Bharati Vidyapeeth urged that the marks obtained by a student in the PCB combination at the H.S.C. Board Examinations or in the H.S.C. examinations as a whole is not a proper index because students in a CET regime neglect their studies in the Board examinations and concentrate only on the CET. While it is true that there may be aberrations in any system, what is striking in the present case is a consistent pattern of a wide disparity of marks obtained by students in the H.S.C. Examinations in comparison with marks obtained in the CET conducted by Bharati Vidyapeeth.
The learned Advocate General emphasised the disparity, noted earlier, between the marks obtained in the CET conducted by Bharati Vidyapeeth and the marks obtained by the same students in the CET conducted by the State. The facts which have come before the Court cast doubt upon the fairness and credibility of the selection process adopted by Bharati Vidyapeeth. Equally, we are conscious of the limitation that courts are not experts in matters of educationals assessment. One of the Counsel appearing for the Deemed Universities suggested :that an explanation may well be that it is a hard reality that the best students do not in any case seek admission to private colleges and their marks are correspondingly lower. At this stage, what must be emphasised is that in Islamic Academic of Education (supra) the learned Chief Justice of India speaking for the Constitution Bench noted the hardship that would be caused to students if each institute were to hold its own entrance test. The Supreme Court held that the words "Common Entrance Test" clearly indicate that each institute cannot hold a separate test. The management could select students of their quota 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. In the present case, when the U.G.C. considers the appropriate regime for regulating the admissions process in the Deemed Universities for the year 2004-2005 and onwards, the facts which have come before the Court in this batch of matters will undoubtedly be considered by it. The U.G.C. will doubtless have to consider the consequences of allowing unbridled freedom to each of the Deemed Universities to conduct their own entrances tests.
THE ADMISSIONS PROCESS OF DR. D.Y. PATIL VIDYAPEETH
18. Figures and charts have been placed before the Court in respect of the process which was adopted in Dr. D.Y. Patil Vidyapeeth for carrying out admissions under its own CET. Here again, the advertisement which was issued by the institution as well as its Brochure for admissions were completely silent in regard to the number of seats reserved for the "Foreign/ NRI/ Revenue Compensation" quota. The advertisement merely informs students that "a few seats for each course are reserved" under this quota and that those who wish to be considered under the quota may apply directly to the governing trustee, Dr. D.Y. Patil Vidyapeeth, Navi Mumbai. Similarly, the admissions brouchure is silent in respect of the fees which would be charged from such students.
19. An affidavit has been filed on behalf of the institute stating that all candidates in this category were selected on the basis of marks obtained in the PCB combination at the H.S.C. or equivalent examinations. It has been stated that when application forms were issued for management quota seats, a proforma undertaking was supplied to applicants and the undertaking which was to be signed by the student and his guardian stipulated that the fees which would be payable would be Rs.6,32,500/- annually or Rs.28.46 lacs for the full M.B.B.S. degree course under the Foreign/ NRI/ Revenue Compensation Category. For the B.D.S. degree course, the annual fees were fixed at Rs.4 lacs while the course fees for the full duration were fixed at Rs.16 lacs. The institute stated that it was only on the receipt of completed applications, that a call letter would be issued which specified that students were required to deposit fees in the amount which was informed. A uniform amount has been charged of Rs.6.32 lacs and Rs.4 lacs annually to all the students in this category for the M.B.B.S. and B.D.S. degree courses respectively.
20. In so far as the Dr. D.Y. Patil institutes are concerned, the facts which have been admitted before the Court reveal that the CET that was conducted was not a Common Entrance Test in the true sense of the term. The rationale for holding a CET is to subject students to a common yardstick with reference to which their performance can be judged. What has happened in the case of the Dr. D.Y. Patil Vidyapeeth is that there were four different sets of question papers, at the same CET. It is to be noted that the questions in each set of question papers were different. In other words, what was done was not merely to shuffle the order of questions but to give four different sets of question papers to different batches of students in the same examination. The process defies logic. When students appear for a CET they must be judged with reference to a performance on the basis of the same questions. The levels of difficulty in four different sets of questions papers can never be the same. Where different sets of students at the same entrance test have been subjected to different question papers, the very claim of this being a Common Entrance Test stands destroyed. Counsel for the Vidyapeeth made an attempt to urge that this should not make a difference because the syllabus for the entrance test is the same. This is only stated to be rejected. One of the fundamental principles of a competitive examination is that students who appear for the examination must be judged with reference to their performance on the same question paper. The course of action which has been followed by the Vidyapeeth is inexplicable with reference to any rationable or logic.
21. A chart of marks obtained by students admitted at the Dr. D.Y. Patil Medical College in the PCB combination at the H.S.C. Board Examinations has been submitted by the Registrar of the Vidyapeeth. The chart reveals that 17 out of 24 students in the management quota have secured less than 70% marks in the PCB combination in the H.S.C. examination. Similarly, out of 75 students in the general category, 37 students have less than 75% marks in the combination of PCB of which 33 have less than even 70%. In addition, 11 students had not secured 60% marks in the PCB combination in the H.S.C. examination.
22. As in the case of Bharati Vidyapeeth, Counsel for the State submitted a comparative statement of the marks obtained by certain students who had appeared both at the CET conducted by the Vidyapeeth as well as the CET conducted by the State Government.
The chart shows for instances, that a student who was third in the merit list in the CET conducted by the Vidyapeeth with 86% marks, was placed at position 13,140 with 70.5% in the State CET. A student with 80% and at merit position 44 in the CET in the Vidyapeeth secured 46.5% and was at merit position 39081 in the State CET. A student with 79% at merit position 65 in the CET of the Vidyapeeth secured 35.5% and was at merit position 56,936 in the State CET. Similarly, students at merit positions 67, 73 and 75 in the CET of the Vidyapeeth were placed at 50,122; 41,883 and 46,471 in the CET of the State. These facts again in our view cast doubt on the credibility of the selection process.
THE INVIOLABILITY OF THE PRINCIPLE OF MERIT.
23. The Court has before it cases of two deemed universities in the State. The foundation on the basis of which the UGC confers a Deemed University status on an institution is that institutions which are for historical reasons not universities may well be engaged in work of a high standard in specialised academic fields comparable to a university. The grant of the status of a Deemed University will enable the institution to contribute to the cause of higher education. These are universities at the cutting edge of knowledge. They are expected to fulfill the demands of innovative research and development. The guidelines framed by the UGC lay down that the institution must have a management capable of contributing to university ideals and traditions. The conferment of a Deemed University status carries with it a solemn responsibility, a responsibility which presumes that the institution which is recognized as a Deemed University will contribute to the ideals and traditions underlying the quest for knowledge and research. A Deemed University may by virtue of that designation be liberated from some of the bureaucratic controls which ordinary universities in a State are subjected to. However, the freedom which is conferred upon a Deemed University must not be a freedom to exploit, a freedom to subject hapless students and their parents to exploitation and hardship. University education is a source of social and economic advancement in the competitive times in which we live. The facts which have emerged before the Court in these cases demonstrate that the Deemed University status has been utilized in brazen defiance of the responsibilities which accompany a conferment of that status. The Court and the social interest which it cannot ignore, cannot countenance an attempt to trade upon the monopolistic position which the status of a Deemed University confers.
24. The judgment of the Supreme Court in the T.M.A. Pai Foundation emphasises the need for institutional autonomy to unaided institutions. Those who do not seek aid cannot be subjected to a regime of bureaucratic control by the State which is liable to generate a degree of inefficiency. The judgment of the Supreme Court is a landmark in the process of social evolution and in the constitutional jurisprudence in India on the debate on education. The Supreme Court recognized that the scheme that was formulated in Unnikrishnan had failed and held that it was unconstitutional. In Unnikrishnan, the Court had envisaged that half the total proportion of seats should be filled as "free seats" while the rest would be "payment seats". What resulted in reality was that those who secured admissions in the free seats were students from affluent homes whose economic resources enabled them to secure the best education and consequently, higher merit positions in the entrance examination. The poor, therefore, subsidized the rich. The Supreme Court held that a system of cross subsidy was unconstitutional and that it was "unreasonable to compel a citizen to pay for the education of another more so in the unrealistic world of competitive examinations which assess the merit for the purpose of admission solely on the basis of the marks obtained". The judgment of the Supreme Court in T.M.A. Pai Foundation, while it affirms a constitutional principle that safeguards institutional autonomy particularly in matters of admission and in charging of fees lays down four important constitutional precepts which are significant for the purpose of the present discussion:
(i) The first and basic precept which the Supreme Court has emphasised is that in admissions, particularly, to institutions of higher learning and instruction which would lead upto the conferment of professional degrees, merit must play an important role. In paragraph 58 of the judgment, the learned Chief Justice held that "while seeking admission to a professional institution and to become a competent professional, it is necessary that meritorious candidates are not unfairly treated or put at a disadvantage by preferences shown to less meritorious, but more influential applicants". Excellence in professional education, it was held, requires that greater emphasis be laid on the merit of a student seeking admission. Hence, the Supreme Court emphasised that while unaided professional institutions are entitled to autonomy, it is necessary that they do not forgo or discard the principles of merit.
(ii) The second important theme which emerges from the judgment in T.MA. Pai Foundation is that in order to ensure that merit prevails, unaided institutions must follow an objective and rational procedure for selection. An educational institution, even if it is unaided must follow-an identifiable or reasonable methodology for admitting students.
(iii) The third important theme is that the scale of fees to be charged must be left to each individual institution. There cannot be a rigid fee structure. The decision of the fee to be charged has to be left to the private educational institution that does not seek or is not dependent upon funds from the Government.
(iv) The fourth important constitutional theme is the prohibition of capitation fee and profiteering by the institution. An unaided institution is entitled to a reasonable revenue surplus which may be generated by the institution for the purpose of the development of education and the extension of the institution.
25. The judgment in T.M.A. Pai Foundation was revisited by the Constitution Bench in Islamic Academy of Education in which the learned Chief Justice of India delivered the main judgment on behalf of his Lordship and four learned Judges. In the present case we are not concerned with the issue of minority institutions and it would be appropriate to focus attention on the 1st, 3rd and 4th issues which were considered by the Court. These related to the fixation of the fee structure, the filling up of seats and the method of admission. The learned Chief Justice, Mr. Justice V.N. Khare, reaffirmed in the course of his judgment that T.M.A. Pai Foundation recognized that it is in the national interest to have good and efficient professionals. Consequently, national interest would prevail even over minority rights. Hence, in professional colleges both minority and non minority, merit has been made the criteria for admission. In non minority professional colleges a certain percentage of seats, it was held, can be reserved for admission by the management. The rest would be filled up by the State on the basis of counselling by its agencies. The prescription of percentage would be done by the Government according to local needs. In unaided non minority professional colleges, admissions of students, other than the percentage given to the management could only be on the basis of merit in accordance with the CET conducted by Government agencies. In so far as the quota of seats assigned to the judgment is concerned, the Supreme Court held that "it is impossible to control profiteering/ charging of capitation fees unless it is ensured that admission is on the basis of merit."
The learned Chief Justice accepted the submission that requiring students to appear for more than one entrance test would cause grave hardship, financially and otherwise. Hence, the Constitution Bench laid down that a CET by its very nature meant that each institute cannot hold a separate test. A management may admit students to its quota either on the basis of a CET conducted by the State or by an association of all colleges of a particular type in the State. The method which would be adopted has to be intimated before the issuance of a prospectus. Selection of students must then be strictly on merits in accordance with the merit list. The Supreme Court has thus balanced the need to ensure institutional autonomy on the one hand by allowing individual institutions that do not seek aid to determine their own fees and on the other hand to ensure that there is no profiteering and that the surplus which is generated is utilized only for the benefit of the institution and not for personal gain. Consistent with the concern of the Court that admissions should be transparent and on merit and that the fees which are charged should not lead to profiteering, the Supreme Court directed the constitution of two Committees to be headed by retired judges of the High Court nominated by the State Chief Justice. One of the Committees would be vested with the function of deciding whether the fees proposed by the institution are justified and do not amount to profiteering or the charging of a capitation fee. The second Committee which was directed to be constituted by the Supreme Court would have the power to oversee the entrance test to be conducted by an association of colleges. That would include the power to call for the proposed question papers, the names of paper setters and examiners and to check that the method adopted would ensure that there was no leakage of question papers. These concerns of the Supreme Court have a striking contemporary relevance in the facts which have emerged in the present cases.
26. The grant of admissions as in the present case under a quota which is euphemistically labelled as an "NRI/ Foreign national/ Revenue quota" is destructive of the values which are recognized by the Supreme Court as underlying the constitutional quest for a fair, transparent and merit based system of education. The facts of the cases before the Court in this batch of petitions only got to emphasise that the grant of admissions in a quota such as the ones involved in the present case would only ensure that a large body of students who would otherwise not aspire to obtain admission in a merit based system are granted admission based on their economic resources. The fact that admissions are granted in the NRI/ Foreign national/revenue quota inter se on the basis of merit does not answer the objection. Most if not almost all of these students could never aspire to obtain admission if they were to be judged on the basis of merit determined by their ranking in a Common Entrance Examination. These are candidates who are granted admissions purely based on their economic resources and the ability of their parents to meet an exorbitant demand made by the colleges. Such a quota is destructive of the principle of merit and is inconsistent with the law laid down by the Supreme Court in T.M.A. Pai Foundation and Islamic Academy of Education (supra) . No such quota can be countenanced.
T.M.A. PAI FOUNDATION AND DEEMED UNIVERSITIES
27. On behalf of Dr. D.Y. Patil Vidyapeeth Counsel has sought to urge that : (i) Neither the decision in T.M.A. Pai Foundation nor the Constitution Bench judgment in Islamic Academy of Education can apply to deemed universities. Counsel submitted that none of these judgments is binding precedent for Deemed Universities; (ii) Assuming that the judgment has value as a precedent or a persuasive value, the imposition of restrictions on the fixation of fees and on the holding of C.E.Ts. by Deemed Universities would be arbitrary and would not constitute a reasonable restriction under Article 19(6) on their rights under Article 19(1)(g); (iii) Deemed Universities are governed by the relevant provisions of the U.G.C. Act and therefore, cannot be subjected to any control except as specified therein; (iv) The scheme of the U.G.C. Act which is Central legislature reveals that in so far as deemed universities are concerned, only the U.G.C. can direct the fixation of fees and the conducting of a separate C.E.T.
28. Now undoubtedly, a perusal of the judgments of the Supreme Court in T.M.A. Pai Foundation and in the subsequent Islamic Academy of Education would show that the cases of deemed universities were not specifically before the Court for consideration. The judgment of the learned Chief Justice of India in Islamic Academy of Education takes due note of the fact that "as, at present, there are statutes/ regulations which govern the fixation of fees and, this Court has not yet considered the validity of those statutes/ regulations". Hence, in order to give effect to the judgment in the T.M.A. Pai Foundation case, the Supreme Court issued directions under Article 142 of the Constitution inter alia that two authorities should be set up headed by a retired judge of the High Court to be nominated by the Chief Justice of the State. The judgment of Mr. Justice S.B. Sinha in Islamic Academy of Education adverts to the provisions of several Central Acts enacted by Parliament in exercise of its power under Article 246 read with Entry 66 of the Union List of the Seventh Schedule. Among these Acts is the University Grants Commission Act, 1956, the relevant provisions whereof are extracted in the judgment. Mr. Justice S.B. Sinha noted that the U.G.C., A.I.C.E.T. and M.C.I. have issued provisional or ad hoc guidelines in terms of the provisions of the principle statutes governing the field in the light of the judgment in T.M.A. Pai Foundation. The constitutionality or otherwise of the aforesaid statutes, Rules and Regulations, it was noted, had not been examined. The Constitution Bench thus clarified that the validity of the statutes, Rules and Regulations framed by central bodies including the U.G.C. was not being specifically considered.
29. Yet, in our view, this Court cannot countenance the submission of Counsel for D.Y. Patil Vidyapeeth that the judgments of the Bench of 11 Judges of the Supreme Court in T.M.A. Pai Foundation and of the Constitution Bench of 5 learned Judges in Islamic Academy of Education do not have a binding or precedential value in so far as the Deemed Universities are concerned. The fundamental precept which underlies both the judgments of the Supreme Court is that while institutional autonomy of unaided colleges must be affirmed, admissions to these institutions shall be on the basis of merit determined with reference to objective and transparent criteria and that profiteering and the commercial exploitation of students is prohibited. In fairness it must be stated that Counsel for Dr. D.Y. Patil Vidyapeeth who urged the submissions which have been recorded earlier has not demurred on the point that these basic principles which have been embodied in the judgment of the Supreme Court must necessarily be applied in the field of education, including professional or higher education dispensed by all institutions and universities. Obviously, a Deemed University cannot be heard to say that it will not follow the principle of merit. Similarly, a Deemed University cannot be heard to contend that freed of the controls which other universities are subjected to, it can resort to capitation or profiteering. A Deemed University which is required to observe merit in granting admissions and to refrain from profiteering or imposing capitation fees cannot be heard to complain that there is a breach of Article 19(6). Plainly such regulations do not offend Article 19(6).
THE U.G.C. ACT, 1956: STATUTORY RECOGNITION OF MERIT
30. The provisions of the U.G.C. Act, 1956 establish that the principles which have been laid down by the Supreme Court find statutory reaffirmance in the Act of 1956 which was enacted by Parliament to govern the regulation of universities by the U.G.C. Section 12 of the U.G.C. Act, 1956 lays down the functions of the commission. Section 12 provides that it shall be the general duty of the commission to take, in consultation with the universities or other bodies concerned, all such steps as it may think fit for the promotion and coordination of University education and for the determination and maintenance of standards of teaching, examination and research in universities. Under Clause (a), the Commission for the purpose of performing its functions may inquire into the financial needs of universities. Under Clause (ccc) the Commission can establish institutions for providing common facilities, services and programmes for a group of universities or for the universities in general. Under Clause (d), the U.G.C. can recommend to any university the measures necessary for the improvement of university education and may advise the university of the action to be taken for the purpose of implementing such a recommendation. Section 12-A of the Act deals with the Regulation of fees and prohibition of donations. Sub-section (2) of section 12-A is significant and provides as follows:
"Without prejudice to the generality of the provisions of section 12 if, having regard to (a) the nature of any course of study for obtaining any qualification from any university:
(b) the types of activities in which persons obtaining such qualification are likely to be engaged on the basis of such qualification:
(c) the minimum standards which a person possessing such qualifications should be able to maintain, in his work relating to such activities and the consequent need for ensuring so far as may be. that no candidate secures admission to such course of study by reason of economic power and thereby prevents a more meritorious candidate from securing ad- mission to such course of study and
(d) all other relevant factors,
the Commission is satisfied that it is necessary so to do in the public interest, it may, after consultation with the university or universities concerned specify by regulations the matters in respect of which fees may be charged, and the scale of fees in accordance with which fees would be charged in respect of those matters on and from such date as may be specified in the regulations in this behalf, by any college providing for such course of study from, or in relation to, any student in connection with his admission to, and prosecution of such course of study:
Provided that different matters and different scales of fees may be so specified in relation to different universities or different classes of colleges or different areas". (emphasis supplied).
Clause (c) of sub-section (2) is indeed significant because it embodies a statutory recognition by Parliament of the need for ensuring that no candidate secures admission to a course of study by reason of economic power. The reason for that, as Parliament itself has recognised, is that such a candidate thereby prevents a more meritorious candidate from securing admission to a course of study. Having regard to the factors which have been spelt out in Clauses (a) to (d) of sub-section (2) of section 12-A, the Commission is empowered, when it is satisfied that it is necessary in the public interest, to specify the matters in respect of which fees may charged and the scale of fees in accordance with which fees shall be charged. The proviso lays down that different matters and scales may be specified in relation to different universities or different classes of colleges or different area. Once regulations have been laid down by the U.G.C. under sub-section (2) in relation to a course of study, there is under sub-section (3) a prohibition on a college levying fees on matters other than those specified in the Regulations; on levying fees in excess of the scale laid down and on accepting any payment otherwise than by way of fees or any donation or gift from or in relation to any student in connection with his admission to and prosecution of such course of study. Section 14 provides for the consequences of a failure of a university to comply with any recommendation made by the Commission inter alia under section 12. The U.G.C. is empowered to frame regulations by section 26 of the Act and under Clause (i) of sub section (1), the regulations can specify the matters in respect of which fees may be charged and the scale of fees under sub-section (2) of section 12-A.
REGULATIONS AND EXECUTIVE ORDERS POST T.M.A. PAI FOUNDATION
31. In exercise of its statutory powers, U.G.C. framed regulations which were published in the Gazette of India on 16th May, 1998. These regulations are the U.G.C. (Regulation of Admission and Fees in Private Non-Aided Professional Institutions) Regulations, 1997 which have already been adverted to earlier. The Regulations lay down the procedure for grant of admissions and the constitution of Committees for the determination of fees. Undoubtedly, these Regulations were made prior to the judgment of the Supreme Court in T.M.A. Pai Foundation and in the light of the regime in Unnikrishnan which was then in force. Executive orders were issued initially by the Ministry of Health and Family Welfare on 14th May, 2003 after the judgment in T.M.A. Pai Foundation. The guidelines of the Ministry of Health specified that they shall also apply to deemed universities offering courses in Medicine and Dentistry. The notification spelt out that the authority competent to conduct the C.E.T. for admission to professional courses in deemed universities shall be decided by the concerned State Government keeping in view the guidelines in this regard issued by the Ministry of Human Resource Development or the U.G.C. or as per the State policy/law whichever maybe applicable. Interim policy regulations were then issued by the U.G.C. on 10th June, 2003. These regulations provide that in accordance with Clause 13 of the guidelines governing deemed universities, these institutions shall join the C.E.T. as notified by the U.G.C. Hence, all the deemed universities offering technical and professional programmes were directed to join the AIEEE examination conducted by the CBSR for the purpose of admission.
32. In so far as this batch of matters is concerned, Counsel for the deemed universities stated before the Court that there was a considerable degree of ambiguity in so far as the year 2003-04 was concerned. Guidelines 13 provides that admissions shall be made on an All India basis through a C.E.T. conducted either by the U.G.C. or by an agency identified and approved by the U.G.C. The submission was that U.G.C. does not conduct a C.E.T. and no institution or agency was identified or approved by the U.G.C. Counsel submitted that the AIEEE examination was for Engineering degree courses and no C.E.T. was prescribed by U.G.C. for Medical Courses. While the Ministry of Health and Family Welfare in its notification dated 14th May, 2003 stated that the authority competent to conduct the C.E.T. for admission to professional courses in the deemed universities shall be decided by the concerned State Government, it was urged that obviously the C.E.T. conducted by the State Government which is confined only to students within the State would not apply to Deemed Universities. In the case of Deemed Universities, the U.G.C. guidelines require that admission shall be made on an All India basis and therefore, the State C.E.T. confined as it is only to students within the State cannot form the basis for admission. The guidelines framed by the U.G.C mandate that a Deemed University must grant admission on an All India basis. The C.E.T. conducted by the State government for admission to Medical Courses provides access only to students within the State. Hence, there would be some difficulty in incorporating to Deemed Universities for the year 2003-04, the direction that 50% of the seats be filled up by the Management and 50% by the State.
Admissions granted by the State are on the basis of its own C.E.T. which does not have an All India character. U.G.C. specifically mandates that the Deemed Universities conduct their admissions process on an All India basis. In this view of the matter, we had called upon Counsel for the U.G.C. to seek instructions and inform the Court of what course of action the U.G.C. considered appropriate and proper. The U.G.C. has responded in a communication dated 26th August, 2003. In its communication U.G.C. states that the State Government shall be the designated agency of the U.G.C. for making admissions for the year 2003-04. The State Government, it has been stated, shall have the responsibility to ensure that "three cardinal principles" are observed viz. (i) maintaining the all India character of the entrance examination; (ii) that this culminates into the grant of merit based admissions and (iii) the procedure must be open and transparent. Accordingly, the State Government has been permitted to follow either of two alternatives:
Alternative 1 is that the Central Board of Secondary Education which is a national level examining body has been conducting an all India pre-medical examination each year for the purpose of filling up 155 of the seats in Government medical colleges. This year 2,15,000 candidates appeared at the examination, of whom 2,700 candidates have been allotted to Government medical colleges in accordance with their ranks leaving a large number of qualified candidates who have still not been allotted any seat. The U.G.C. has stated that a list of these qualified candidates along with their ranks is available with the CBSE.
Alternative 2 is that the State Government may take the responsibility of holding a C.E.T. to fill in seats in the instant case, but, while doing so, the State must ensure observance of the three cardinal principles, namely the all India character of the entrance test, the grant of admission based on merit and the observance of openness and transparency in the conduct of the examination process. U.G.C. has informed the Court that this would be done for the current academic year, 2003-04. For the year 2004-05, U.G.C. regulations on admission and fees are being finalised which shall then apply.
WHETHER THE ADMISSIONS ALREADY GRANTED SHOULD BE DISTURBED
33. We have devoted a considerable amount of time and consideration to the question as to what course of action must now be adopted in so far as the two deemed universities are concerned. We have already expressed grave reservations about the manner in which admissions have been carried out both by the Bharati Vidyapeeth and by Dr. D.Y. Patil Vidyapeeth to the so called NRI/ Foreign nationals/revenue compensation quota as well as about the manner in which the admissions in general have been carried out in their C.E.Ts. In so far as Bharati Vidyapeeth is concerned, we have been informed that the admissions process has been completed and that students who have been admitted have started prosecuting their course of studies since July 2003. Two months of the course have already elapsed. Students from different parts of the country and in many cases students form abroad have already been admitted and have commenced their course of studies. Among the students from abroad are those from the U.S., Canada, Kenya, Iran and the U.A.E. The students admitted from different parts of the country have come from Andhra Pradesh, Assam, Delhi, Gujarat, Jharkhand and Uttar Pradesh, besides Maharashtra. Similarly, students for the B.D.S. course are drawn from South Africa, Iran and Oman and also from various States in India. The Court cannot be oblivious of the serious human issue involved in these matters because displacing those students who have been already admitted at this stage when the term has commenced two months ago will lead to a loss of one academic year and result in consequences of a catastrophic nature to the lives and careers of these students.
While the facts which have emerged before the Court about the C.E.Ts. conducted by Bharati Vidyapeeth and by Dr. D.Y. Patil Vidyapeeth cast doubt on the credibility of the process of selection, the Court has to be cautious in setting aside a whole process of selection of a large body of students on the basis of statistics placed before the Court. The statistics cloud the legitimacy of the process but whether that would be adequate in itself to set aside the admissions of over 300 students at this stage is a separate matter. Significantly, we do not have before us cases of individual students who may have fared high in merit in the H.S.C. Examinations (or in the P.C.B. combination) but who were excluded in the merit ranking of students admitted to the deemed universities. None of the students of this kind is before us and if admissions have to be cancelled at least a representative section amongst them would have to be heard. The end of the month of August has now approached and under M.C.I. Regulations, the admissions process has to be completed by the end of September. For this year that need, in the interest of students and the cause of education is to bring a quietus to litigation for it is then that the real function of training doctors can proceed effectively.
34. There was a certain degree of ambivalence on the part of all the authorities concerned in so far as the course of action that needs to be adopted this year. The judgment of the Supreme Court in the T.M.A. Pai Foundation case was interpreted by different State Governments in different ways and the interim orders which were passed by several High Courts led to a Constitution Bench of five Judges being constituted to clarify the position as it emerged from the judgment in T.M.A. Pai Foundation and to remove ambiguities and doubts. In Maharashtra, the ambivalence which prevailed is apparent from the fact that in its notification dated 17th April, 2003, the State Government excluded Bharati Vidyapeeth from the ambit of the C.E.T. which was being held by the State. Dr. D.Y. Patil Vidyapeeth was aggrieved because according to it what was to apply to Bharati Vidyapeeth must necessarily apply to it as well. A 15% management quota was contemplated in the brochure issued by the Medical Education and Drugs department in the State of Maharashtra in April, 2003. The representation which the State held out in the Brochure was that students who seek admission in the management quota need not appear for the C.E.T. Similarly, the Union Ministry of Health and Family Welfare in its own notification also contemplated the grant of a quota to private managements. The U.G.C. on its part has taken a final decision only on 26th August, 2003 in its communication to its Counsel before the Court in regard to the modalities which are required to be followed. The position in so far as unaided professional Colleges are concerned, was clarified by the Constitution Bench of the Supreme Court in Islamic Academy of Education, wherein judgment was delivered on 14th August, 2003. The present academic year has been a year of transition and in many respects a year of flux:
OUR CONCLUSIONS AND DIRECTIONS
35. On the balance therefore, the Court cannot disregard altogether the equities which have accrued in favour of those students who have been admitted, where colleges have begun and the course of studies has commenced in the month of July 2003. We have therefore, arrived at the conclusion that the appropriate course of action for this Court would be that in respect of those seats in the two deemed universities where admissions have not been granted and consequently, course work has not begun, seats should be filled up by following the first alternative suggested by the U.G.C. For all such seats, the State Government, which has been designated by the U.G.C. as its agency for conducting admission for 2003-04 shall forthwit
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h move the Central Board of Secondary Education for supplying the names of candidates who have appeared at the All India Pre-Medical examination in accordance with their ranking on the merit list. In order to ensure that the process of providing the names of candidates is completed expeditiously, we direct that U.G.C. shall also communicate our direction to the C.B.S.E. so that the names of candidates in accordance with their position in the merit list is forwarded to the State Government forthwith. Upon receipt of the names from the C.B.S.E., the State Government shall supply the names in the order of merit in the list supplied by C.B.S.E. to the deemed universities. The seats shall be filled up by the institutions, concerned in order of merit. In so far as Dr. D.Y. Patil Vidyapeeth is concerned, an interim order was passed on 20th June, 2003 by a Division Bench of this Court by which it was directed that the procedure for admissions may continue, but no actual admissions shall be granted. As a result, no admissions have been granted in the medical and dental colleges at Navi Mumbai. The seats therein shall be filled up by following the aforesaid direction in the light of the first alternative suggested by the U.G.C. in its communication dated 26th August, 2003. In so far as Bharati Vidyapeeth is concerned, it has been stated that five seats in the management quota for the current academic year still remain to be filled. These seats shall in any event be filled up by following the first methodology recommended by the U.G.C. in its communication dated 26th August, 2003. Bharati Vidyapeeth has stated before this Court in its affidavit that admissions to its management seats were completed even before the ad interim order of injunction came to be passed in respect of its admissions process on 11th July, 2003. We direct that Bharati Vidyapeeth shall supply the necessary information and material in that regard to U.G.C. within a period of three days from today. In the event that the U.G.C. comes to the conclusion that any seats were filled up by Bharati Vidyapeeth after the ad interim order of injunction dated 11th July, 2003, the direction issued in terms of U.G.C.'s communication dated 26th August, 2003 shall also apply to the aforesaid seats. The aforesaid directions shall apply to any further seats that may be vacant or which may hereafter fall vacant. 36. In so far as the fee structure is concerned, the U.G.C. is in the process of framing its regulations for the academic year 2004-05. For the present academic year, 2003-04, there cannot be a vacuum in the exercise of regulatory control. The direction issued by the Supreme Court in Islamic Academy of Education is under Article 142 of the Constitution of India. By its direction, the Supreme Court has directed the constitution of a Committee headed by a retired High Court Judge to be nominated by the Chief Justice for deciding whether the fee proposed by each institution is justified and so as to ensure that the fee would not amount to profiteering or the charging of capitation fees. For the academic year 2003-04 both sets of Deemed Universities concerned in these proceedings shall submit their proposed fee structure to the Committee set up in pursuance of the directions issued by the Supreme Court under Article 142 within one week from today. The fees which have been charged by the Deemed Universities for the current academic year shall abide by the decision of the Committee and in the event that any excess has been recovered, that will be subject to such adjustment as may be directed. The Committee shall have due regard to the amounts which have been charged in the NRI/ foreign nationals/revenue compensation quota in determining the scale of fees which would appropriately be allowed to the rest of the students. 37. The Court would emphasise the urgency of the need for the State Government to constitute the Committee directed to be appointed by the Supreme Court. This is a matter which cannot brook any delay. Prior to the decision in the T.M.A. Pai Foundation case, the fees that were fixed for payment seats in private unaided colleges by the competent authority were Rs. 1.05 lakhs for 2000-01 and Rs.1,26,500/- for the years 2001-02 and 2002-03. The fees for the year 2003-04 would have been subject to revision. The seats were then distributed amongst various categories namely, the payment seats, free seats and NRI seats. In a 100 seat medical college the total revenue earned was approximately Rs.1.40 crores. After the hearing of the batch of matters was concluded, the State Government has provided to the Court a tabular statement of the fees which are proposed to be charged by private unaided colleges for academic year 2003-04. The fees proposed vary from Rs.3.15 lacs to Rs. 3.80 lacs per annum for each candidate. This will be yielding a yearly revenue of Rs. 3.20 crores to Rs. 3.80 crores. This represents a steep increase of over 150%. Whether the proposed increase in fees should be granted will be determined by the Committee constituted in pursuance of the directions of the Supreme Court. Hence, we do not express opinion on the legality of the increase. A radical and across the board increase in fees will cause grave disquiet amongst the community in general and parents and students in particular. For meritorious students drawn from the middle class and the humble strata of society this may well mean the deprivation of education only because the fees charged are beyond their reach. The State Government must step in now and proceed forthwith to constitute the Committees as directed by the Supreme Court. The Committee on fees must begin its work with a sense of immediacy. Apart from constituting a Committee, the State Government will need to take a hard look at providing financial assistance to students. This may take place, in addition to the subsidy to weaker sections, by providing soft loans at minimal rates of interest. The State Government will do well to co-ordinate its efforts by envisaging a scheme for providing loans to students through co-operative and other banks with beneficial provisions in regard to repayment and interest. On this aspect we say no more since it lies in the realm of executive policy. We hope and trust that the Government will attend to the problem and find a solution with a sense of immediacy. Medical education should not remain for an humble student, a dream that was. 38. The interim orders which have been passed in Writ Petition Nos.3062, 3865 and 3829 of 2003 shall accordingly stand modified in terms of the directions issued in this judgment. In so far as Writ Petitions 3062 of 2003, 3865 of 2003 and 3829 of 2003 are concerned, we are passing separate orders therein. In Writ Petition No.3829 of 2003 the status of Dr. D.Y. Patil Vidyapeeth as a Deemed University is sought to be questioned. We are, therefore, not disposing of that petition since it will have to be placed before the regular bench. In the light of the judgment which has been delivered as aforesaid, separate orders are being passed, disposing of other individual petitions where that is possible. The petitions which cannot be disposed of finally at the present stage are being dealt with by the individual orders which are passed therein. 39. Writ Petition No.4165 of 2003 shall accordingly stand disposed of in terms of the aforesaid directions. There shall be no order as to costs.